Code- systematic arrangement

Constitution, act, sections, schedules

Difference between act and code
Act is framed by a legislative power. It is a substantive law. Rights and obligations of parties are
determined, not created. They already exist.
Code is a systematic arrangement of things. The unique thing of civil code 1908 is that it has two
parts:
1. Substantive part having sections (158 sections. Every section signifies rights and obligations).
2. Procedural part having orders (divided in 11 parts)
Ubi jus ibi remedium: right is given in the substantive part and the remedy is given in the
procedural part.
Prior to 1859, no one law governed civil procedure of courts. Civil side- Deewani
Earlier, every court used to decide its own procedure. The first code which came up, the CPC
1859. Sir John Ramley had to consolidate the different already existing procedure in India,
borrowing from UK, US. Lot of amendments were made in the first code. The second code was
the CPC of 1877. This code was further amended in 1878, 1879. Provisions regarding summons,
plaints, determination of plaintiffs and defendants, etc. The third CPC came in 1882 replaced the
earlier code. Finally, the present code of 21st March 1908 came into being. Came into force on 1st
January 1909.
The Uniform Civil Code
Concurrent list item 13: power to state as well as center to frame its own laws.
Due to the diversity, there was a need to form a central guideline which is the CPC. Every state
can then amend it according to whatever situation suits it. The diversification now is not so
evident.
Pecuniary and territorial jurisdictions
Giving notice via post, normal course and now through publication in newspaper. Services of
summons have changed over time. Now certain courts have allowed electronic communication.
Purpose of Code is to consolidate all the prevalent procedural laws into one code.
A plaint can also be rejected by:
1. Objecting the jurisdiction of the court.
2. Dispute does not survive
3. Issue has already been determined by a competent court. (principle of res judicata- Section 11
of CPC). Section 12-sub judice.
CPC is a general law, there do exist other special laws.
Difference between a plaint and a petition:
Plaint is where a procedure is given. Plaint: remedy required from a competent court, narration
of facts for adjudication of a particular right.
Petition: there is no such procedure, it is flexible in nature. Petition is a request.
Olga Tellis petition was presented on a cigarette packet. Thus, there is no fixed procedure. Even
letters are treated as petitions. However, if a procedure is not followed under CPC, the court will
reject it.
When there is nothing given under any provision, you file a petition under Section 151.
5.07.2022
WHO CAN FILE A SUIT, WHO CAN BE SUED AND WHAT IS A SUIT?
In case of dispossession of property: you can go file a civil suit or if you’re dispossessed by a
state, a writ petition can be filed.
If there is an infringement of a right and an obligation is not complied with, then there is a
remedy to go to a competent court to enforce the right.
 Wrongs are of two types:
1. Public wrong
2. Private wrong
There can also be a wrong of mixed nature.
Public wrong is against the society as a whole, public at large: EG. Murder, robbery, rape, theft,
assault, etc. Procedure is given in the CrPC.
a. Cognizable offence: police has suo motu right to file an fir. Police would not wait for the
victim to file an fir.
b. Complaint cases: legal damage to a person. He has a right to approach the police to file
an fir. EG. Criminal defamation
Outcomes of FIR: criminal chargesheet OR no offence is made out
Private offence: Private rights are infringed because of individuals. EG. Fight with neighbor
w.r.t boundary of their house, contracts. Procedure is given in the CPC.
 Damnum sine injuria: There must be an injury to your legal right to file a case. In case of
actual damage but not in consequence of infringement of a legal right, no suit can be
filed. There must be a damage to some legal right.
- Mare and Company, Bradford v. Pickles
Brad sued the defendant saying that the act of the def of digging a well has caused a loss of
groundwater in the ground of Brad. The manner in which the well has been dug is material. If
there is a breach of guidelines stipulating a particular size for the well, number of wells, etc.,
then there can be a cause of action. But no injury, no suit. No direct act infringing the right of the
plaintiff has been done.
 Injuria sine Damnum: violation of legal right without a harm or damage
- Ashby v. White (right to vote)
Plaintiff was a registered voter. Defendant restricted him from casting his vote. The particular
candidate won the election, thus the person who did not vote did not cause much difference to
the outcome.
 Ubi jus ibi remedium: Wherever there is a right, there is a remedy.
If there is no remedy, then this right also does not exist.
Suit:
a. It is presentation of a plaint for civil or legal rights to get justice or an order from a
competent court.
b. Person who files a plaint is called a plaintiff. The person against whom it is filed is called
the defendant.
c. Under CPC, the chain starts by presentation of a plaint.
Section 11: Res judicata
Definition of plaint:
Institution of proceeding by one or more persons against the other in the court of law where the
plaintiff pursues remedy which law affords for redressal of any legal injury or enforcement of
any legal or civil right whether under law or equity. The infringement should be that of a civil
right and not a criminal one.
In case of regular strives between neighbors, relatives, there can be a civil injunction avoiding
contact or actions of the party.
 Reference to section 26 of the CPC. The outcome of a suit is a decree unless the suit is
altogether rejected. If a decree is against a person A, A can file a first appeal in the
competent court. If even this decree goes against A, A has a very limited scope of filing a
second appeal. This second appeal would be accepted only in case of substantial question
of law which has never been decided before. Next, a more limited scope of SLP is
available.
Important orders:
• 1. Parties to the suit
• 2. Framing of suit
• 4. Institution of suit
• 6. Pleadings
• 7. Plaint
Requisite legal capacity to be a party in a lawsuit. It is called as a standing in a loose way.
Standing is locus standi – right or capacity to bring a legal action or appear in court. Impliedly
in order 7 rule 11. Locus means place, standi means to bring an action. Right to bring an action
before a cojuurt.
In ordinary proceedings, a person has to show his locus standi, his legal capacity. Unless it is
shown, it cannot be entertained. If a collective right of public at large is being infringed, any
person representing the public can file a public interest litigation.
Juristic person – existence of the person is through operation of law. EG. A company is a legal
person, a partnership is a legal (juristic) person.
Natural person – physical existence
6.07.2022
Non sui juris – This category of people does not possess right to sue or be sued.
Eg. A minor, mentally retarded, declared mentally incapable by law

AFFIDAVIT
Affidavits are of two kinds:
1. Administrative: EG. Explaining delay in filing of character certificate in college
2. Judicial: a sworn statement of facts by a person who knows that such facts and
circumstances have taken place. The person who makes the statement is called the
deponent. He deposes the statement of fact which he knows or has reason to believe to
have taken place. It is always in written form signed by the deponent confirming the
content that the content that they sign are true and correct to their knowledge and he has
concealed nothing material here.
EG. Affidavit in support of a writ petition
(types of affidavits to be taken)
When a WP is filed, it is supported by an affidavit.
There are three types of affidavits:
Affidavit in support of the WP (confirming the WP)
Affidavit in support of the documents annexed
Here, the deponent deposes that the documents submitted are true and original.

All evidence must be original (primary evidence). If not available, an application to bring
in secondary evidence (photocopies) must be made.
Now, courts allow both parties to file photocopies and the parties correlate and check
whether their versions match. Those which match are taken as evidence.

Affidavit in support of the stay petition

Along with WP, an application for an interim stay might be filed.
Also, affidavit to support reply to stay petition by other party.
 a. Affidavit in support of annexed documents
If original documents (primary evidence) are not available, secondary evidence can be
filrestitutioned with support of an affidavit.
This is in the district court
In HC, there is a need to support photocopies of original docs through affidavit.
b. Affidavit in support of writ petitions
Language is in a declaratory form, cannot be ambiguous, first person, must relate to the facts and
not to any inference

Ayushi’s notes for Affidavit:

Affidavit
Characteristics of an Affidavit –
1) A sworn statement of facts
An affidavit is a sworn statement of facts by a person who knows that such facts and
circumstances have taken place. The person who makes such statement is called as a deponent.
2) It is always in written
An affidavit is always in written, signed by the deponent, confirming the content that the content
that I am signing are true and correct to his knowledge and he has concealed nothing material
thereof.
3) The Language is in the form of a declaration. Language of affi is always in a declaration
form, has to be in first person, must relate to the facts and not to any inference --- cannot be left
to the ambiguity of the reader

4) It should be duly notarized by a registered notary or an oath commissioner. Notarization

– to verify who is the person signing the document—he will endorse that affidavit in his register,
he will put an entry

5) It should be paragraphed and numbered. the person making the affi must sign on each
page in the presence of notary. No opinions/beliefs/inferences

6) Duty of the deponent to disclose the nature and source of information - Sukwir Pal Bipin
Kumar v. State of Punjab, 1982, 1 SCC Pg 31 --- 3 judge bench decision wherein under order
19 rule 3 --- it in incumbent upon the deponent to disclose the nature and source of information
with sufficient particulars
Example of petitions always supported by an Affidavit – Writ Petition A writ petition always
needs to be supported by an affidavit =
1) Affi in support of the writ petition
2) Affi in support of the documents you have annexed
3) Affi for along with writ petition also a petition for stay
Repercussions of filing a wrong affidavit
The repercussions of filing a wrong affidavit are quite high – 191. 193, 195 and 199 of IPC ==
repercussions for filing a false affidavit – court may ask a senior person to file an affidavit – the
duty of government officials is more than private officials when filing an affidavit as they can
also lose their job

Fact: (Section 3 of Indian Evidence Act):

1. fact would mean and include anything, state of thing or relation of thing capable of being
perceived by the senses.
2. Any mental condition of which a person in conscious
3. Certain objects placed in a particular manner is a fact.
4. That a man said some words is a fact
Requirements of an Affidavit:
Not accepted unless it is either duly attested or notarized by a notary or an oath commissioner.
(take notes for notary)
The notary has to confirm that whoever has signed an affidavit is the identified person. Another
person identifies the persons’ identities.
Verification is another important part of an affidavit.
Paragraphs have to be numbered.
No opinions or beliefs are permitted.
- Sukhveer Pal Bipin Kumar v. State of Punjab 1982 1SCC pg.31
3 judge bench decision. Decided that under order 19 rule 3, it is incumbent on the defendant to
disclose the nature and source of information with sufficient particulars.
Under IEA section 3, evidence is defined. [check definition]
Evidence is of two types:
1. Documentary
2. Oral
Affidavit is no evidence. It simply certifies the content of what has been written.
Since oral affidavits cannot be an evidence, the court may order the party to file it by way of an
affidavit.
‘Rachkunda Venkatarao v.’
191, 193, 195, 199 of IPC – prosecution of private individuals who give false affidavits.
The court can ask specific senior persons to file affidavits if they are not satisfied with the filing
by juniors.
In case of wrong affidavit it can be held to be perjury
7.7.2022
(may refer to notes sent by Mridula)
DECREE, JUDGMENT AND ORDER
• Section 2(14): an order is a formal expression of any decision of a civil court which is not
a decree.
Formal expression is something which is related to the facts of the case and that can be
reproduced. When the court hears a matter, it makes various observations. Judges have
their personal beliefs and thinking systems. Their opinions are not orders, they are
informal expressions. An order is not an informal expression. At the time of taking a
decision, they have to base it on law. When a case is instituted in a court, an order sheet
starts compiling all those orders passed by the court.

• Decree:
Section 2(2) of CPC: it is a formal expression of an adjudication which so far as regards
the court expressing it conclusively determines the rights of parties.
Once a decree is drawn, the court has finally decided on an issue. A decree is pronounced
and then a judgment is passed.
It can be of two types:
a. Preliminary
b. Final
Essential ingredients: formal expression of the court with regards to conclusive
determination of the dispute.
A decree is executable.
• A judgment is the reasoning given behind a final decree.
Section 2(9). It is the statement given by the judge on the grounds of decree or order.
1. A judgment contains the entire controversy in detail. Facts of the case in brief, issue
involved, what was argued by the plaintiff, what was argued in the defendant, what
 were the issues framed by the court, which were the case laws relied upon by the
parties, After ‘we have heard the parties and now we ---’ the court gives its reasoning.
2. Obiters have persuasive values, although not binding. Ratios are binding.
3. A judgment is not executable (not allowed to be implemented.) However, a decree is
implementable. If a decree is not adhered to, the party can file an execution
application stating so. The court does not, then have to go into the facts of the case. It
only has to ensure the compliance by the party

• Difference between a decree and an order:

1. Decree determines final rights of parties. In an order, conclusive determination of rights
is not done.
2. There cannot be a preliminary order unlike a preliminary decree.
3. In most of the suits, only one decree is passed whereas in one suit of proceedings, there
can be multiple orders.
4. Not all orders are appealable. Such orders are mentioned in the CPC.
The Supreme Court in RC Sharma v. Union of India, has said that even though there is no time
period mentioned in the CPC, an unreasonable delay in pronouncing the judgment after hearing
is done unless substantiated by unavoidable circumstances is highly unacceptable.
Once a judgment is dated and signed by a judge, it can be altered only on two petitions or
circumstances as mentioned below. Other than extraordinary jurisdiction, judges do not have
power to change their judgment. The remedy is to file an appeal. Two circumstances:
1. Arithmetical or clerical error, calculation mistake.
The error is not it terms of appreciation of law.
Section 152: Amendment of judgment, decree or order
2. Errors due to accidental skips or omissions. Two provisions under CPC:
Section 114: Review (Larger than 152.)
July 8
• Characteristics of a decree:
1. There will be an adjudication. Judicial determination in a competent court of law.
A decision of administrative nature or a suit’s dismissal on want of merit either
because a party’s defaulted in appearance or an appeal’s dismissal on prosecution’s
absence as there is no judicial determination of rights in dispute.
2. Such adjudication must be in a suit
3. Determination of rights and liabilities of parties with regard to all or any matter
in controversy: Only those who are parties to the suit can claim rights and
obligations. These rights and obligations cannot apply to third parties.
4. Conclusive determination: must be final and executable
5. The expression of the court is formal. The decree will sit on the outcome of the
judgment. There is no reasoning.
If there is no decree, the judgment cannot be appealed.
 A counter claim is when a plaintiff approaches the court with his claim with regard to a
dispute, the duty of respondent is to file his written statement and deny the claims of the
plaintiff. The respondent may also resort to admission and compliance with plaintiff’s
pleading. The defendant may also file his counter-claim. Here, the defendant would
become the plaintiff and the plaintiff would be considered to be the defendant.
EG. A files a money suit of 10 lakh rupees against B. B can deny the existence of a
borrower-lender relationship. B may also say that he lent A his car and underwent an
accident, causing a loss of Rs. 2 lakh to B. This is a counter-claim. The decree would be
drawn in terms of conclusive determination.

• Difference between judgment and decree: BPCTFF

1. A judgment is based upon facts. Every judgment will have a different fact. A decree
is based upon the judgment.
2. A judgment is made prior to decree. First the court will pass the judgment, then the
decree would be made.
3. A judgment contains the issues involved, evidence brought forward by both the
parties and finding on all the issues which is based upon the arguments and evidence.
A decree contains the outcome of the suit and conclusively determines the rights of
parties with regard to the issue in dispute.
4. Formally, a judgment has no types. There is an informal segregation of facts,
arguments, reasoning, etc. A decree is divided into three categorizations.
5. Judgment may result into a preliminary or final decree or an order in itself. However,
the judgment is always final. Whereas, a decree may be preliminary or final or partly
preliminary partly final.
6. Judgment leads to final disposal of the suit after which the decree is drawn. Whereas,
after passing of the decree the suit stands disposed of since the rights of the parties
have been conclusively decided by the court.

• Difference between preliminary and final decree

1. In case the parties’ rights are decided with respect to all or any of the suits
disputed in a matter, however, the suit is not completely disposed of, then it would
be a preliminary decree. It is a preliminary stage in adjudicating rights of the parties
conclusively done or conclusively adjudicated by a final decree.
EG. Whenever there is a suit of partition and multiple persons have a claim. 5
plaintiffs. One can be the widowed wife, married daughter, a stranger, son, etc. Out of
100% share in the property, the court decides the shares of the parties. The suit is still
not identified or any formal determination of the property has not been done. This
determination of rights which still has not been done conclusively is called a
preliminary decree.
 EG. Foreclosure of mortgaged property
EG. Suit for redemption of mortgaged property
EG. Suit of pre-emption
In the case of Phoolchand v. Gopal Lal, it was held that as per the facts
circumstances and necessity of the case, there is nothing that precludes a court in
passing more than one preliminary decree. They substantiated by stating that their suit
is concerned with a partition suit and not any other private suit.
In a final decree, there is conclusive determination of the entire suit. There are two
ways to regard the decree as a final one:
a. When no appeal lies against the decree in the time period prescribed or the highest
appellate court has decided the matter.
b. Where the decree passed by the court is completely disposed of.
EG. If the decree passed against the defendant and the defendant executes the
decree.
EG. If in a suit for repayment, money recovery suit, when the decree holder’s
outstanding amount along with the procedure as to how the amount shall become
payable, when it is declared in the decree, it becomes final.
EG. A decree declaring the past and future mesne profit at a specified rate with no
further enquiry: a final decree.
11 July 2022
It is possible that a decree maybe partly final and partly preliminary.
EG. Directing enquiry of mesne profits in a preliminary decree as it is only after enquiry the
mesne profits can be drawn: In a suit of the possession of an immoveable property, owner files
for possession along with a suit for mesne profits. The owner is entitled to the compensation or
damages in mesne profits. In a suit of possession, ownership has to be established. Along with
that, prayer will be made in terms of possession. Thirdly, compensation may be asked for
because of loss in the rent or probable profits from the property. Determination of measne profits
is done by means of preliminary decree.
Once a suit is conclusively decided, the decree is passed. The judgment, to be executory should
transform into a decree. There must exist a decree of a judgment in order to be able to appeal
against the decree.
How can one appeal without a decree?
Writ petition: there is no decree, there is always a judgment. As per provisions of CPC, it is an
extraordinary remedy. The CPC is not binding for extraordinary jurisdiction. In a writ
jurisdiction, when an order is passed, it is appealable.
Whenever there are disputed questions of facts, you cannot approach court through Article 226.
In this case, evidence has to be presented to clarify the facts.
Parties will ask for a declaratory suit, ask for possession and meanwhile, order 39 rule 1 2
provides for an interim injunction.
Three necessities of an interim injunction:
1. Balance of inconvenience
2. Irretrievable harm or injury
3. Prima facie case
Article 226: Infringement of FRs by a state
Article 227: Infringement of FRs during a trial, and remedy is given under the supervisory
jurisdiction of the high court as mentioned in Article 227.
• Contents of a decree:
1. Suit number: Every suit has a number, that is how it is classified.
2. Names, descriptions and the registered address of the parties.
3. Particulars of parties’ claims and defenses. Details of a claim made by parties for
outcome of the suit.
4. The relief or the remedy granted to the aggrieved party.
5. The total amount of cost incurred in the suit.

• Section 30 of CPC:
30. Power to order discovery and the like.—Subject to such conditions and limitations as may be
prescribed, the Court may, at any time, either of its own motion or on the application of any
party, -
(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and
answering of interrogatories, the admission of documents and facts, and the discovery,
inspection, production, impounding and return of documents or other material objects producible
as evidence;
(b) issue summonses to persons whose attendance is required either to give evidence or to
produce documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit.
The person who produces the documents has to admit the document and get it exhibited in the
trial. At the time of execution of the documents, a red pen marks Pex1. P for plaintiff, ex for
exhibit. Pw1 is plaintiff- witness – 1 in case of a witness produced.
30a – any order
30b – issue summons
30c – order any fact to be proved by affidavit.
• Section 139
139. Oath on affidavit by whom to be administered. - In the case of any affidavit under this
Code—
(a) any Court or Magistrate, or [(aa) any notary appointed under the Notaries Act, 1952 (53 of
1952); or]
(b) any officer or other person whom a High Court may appoint in this behalf, or
(c) any officer appointed by any other Court which the State Government has generally or
specially empowered in this behalf,
may administer the oath to the deponent.

Order XI and XIX are with respect to affidavits.

• Order 11
Rule 8. Affidavit in answer, filing.—Interrogatories shall be answered by affidavit to be filed
within ten days or within such other time as the Court may allow.
Rule 9. Form of affidavit in answer.—An affidavit in answer to interrogatories shall be in Form
No. 3 in Appendix C, with such variations as circumstances may require.
Rule 13. The affidavit to be made by a party against whom such order as is mentioned in the last
preceding rule has been made, shall specify which (if any) of the documents therein mentioned
he objects to produce, and it shall be in Form No. 5 in Appendix C, with such variations as
circumstances may require.
• Order 19
Rule 1. Power to order any point to be proved by affidavit.—Any Court may at any time for
sufficient reason order that any particular fact or facts may be proved by affidavit, or that the
affidavit of any witness may be read at the hearing, on such conditions as the Court thinks
reasonable: Provided that where it appears to the Court that either party bona fide desires the
production of a witness for cross-examination, and that such witness can be produced, an order
shall not be made authorizing the evidence of such witness to be given by affidavit.
The lawyer of the opponent side has the authority to conduct a cross-examination of the
affirmations made in the affidavits.
Rule 2. Power to order attendance of deponent for cross-examination.
(1) Upon any application evidence may be given by affidavit, but the Court may, at the instance
of either party, order the attendance for cross-examination of the deponent.
(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance
in Court, or the Court otherwise directs.
Rule 3. Matters to which affidavits shall be confined. -
(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to
prove, except on interlocutory applications, on which statements of his belief may be admitted:
provided that the grounds thereof are stated.
(2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or
argumentative matter, or copies of or extracts from documents, shall (unless the Court otherwise
directs) be paid by the party filing the same.
12.07.2022
PLAINT AND WRITTEN STATEMENT
A suit is presented by means of a plaint. A plaint is a document which contains the statement of
plaintiff’s claim. Why has the plaintiff reached the court? What is the relief sought for?
Whenever there is a legal injury, the plaintiff for initiation of the civil suit will file a plaint. Plaint
per se is not defined under the CPC. However, there is an order 7 in CPC which talks about the
complete modalities with respect to the contents of the plaint.
Rule 1. Particulars to be contained in plaint.—The plaint shall contain the following
particulars:—
(a) the name of the Court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff;
(c) the name, description and place of residence of the defendant, so far as they can be
ascertained;
(as the court needs to have the details in order to send a notice to the defendant)
(1. Where the defendant resides, 2. Where the cause of action has taken place)
(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to
that effect;
(a minor cannot sue or be sued.)
(e) the facts constituting the cause of action and when it arose;
(For the purposes of limitation)
(f) the facts showing that the Court has jurisdiction;
(g) the relief which the plaintiff claims;
(Court will not provide anything that has not been prayed for. The prayer should be very
specific.)
(h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so
allowed or relinquished; and
 (A files a suit for money recovery against B for Rs.1 lakh. B comes up with a reply that
out of 1 lakh, Rs.50 thousand has been paid and accepted by A. The demand is then
balanced out. In a set off, the liability created is mitigated by a part payment. The
plaintiff raises a demand and the defendant balances out the demand. A counter-claim is a
completely fresh proceeding.)
(i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of
court-fees, so far as the case admits.
(Value of the suit is mentioned in order to determine court fees. Every court has a
territorial jurisdiction and a pecuniary jurisdiction. The valuation enables the court to determine
fees and jurisdiction.)
Rule 2: The precise amount of money has to be asked for in case of a money suit. The amount
will not be left open to the court.
Rule 3: Wherever there is an immoveable property, the plaintiff should give a complete
description of the same.
Rule 4: Where the plaintiff sues in a representative character the plaint shall show not only that
he has an actual existing interest in the subject-matter, but that he has taken the steps (if any)
necessary to enable him to institute a suit concerning it.
Rule 5: What is the defendant’s liability, interest and relation to the cause of action? In case of
multiple parties, breach by every defendant must be mentioned. At the time of prayer, the
plaintiff should mention the liability of each and every defendant. Whether the amount has to be
paid separately by the defendants or jointly.
Rule 6. Grounds of exemption from limitation law.—Where the suit is instituted after the
expiration of the period prescribed by the law of limitation, the plaint shall show the ground
upon which exemption from such law is claimed.
Application under Section 5 of the limitation act asking for condonation of delay. Day to day
delay has to be mentioned.
Rule 9
A plaint will have three parts, the
a. head and title:
i. name of the court
ii. Description of the parties, their complete addresses
iii. Title of the suit: reason for approaching the particular court and the jurisdiction of
the court.

b. body:
content giving description of dispute between the parties. Narration of the entire story
 i. Formal portion:
 Statement mentioning the date of cause of action, to determine whether the suit is barred
by limitation or not.
o Irregular payment of gratuity: the defense cannot claim bar to suit by cause of
limitation. This is a recurring cause of action.
o Environmental issue: Illegal factory running without permission. This is a regular
cause of action.
 Statement with regard to the jurisdiction of the court:
o Territorial: cause of action took place in X, hence territorial jurisdiction
o Pecuniary: value of suit, hence pecuniary jurisdiction
 Mentioning the value of the suit to determine the court fee.
 Statement regarding minority. If any party is a minor, it should be mentioned.
 Representative character of plaintiff. If the plaintiff presents the plaint in a representative
capacity, there should be a statement saying so.
 In case there is any limitation period the plaintiff has crossed and not approached the
court, the plaintiff has also to mention with regard to how many days the suit is barred by
limitation and reason for delay.

ii. Substantial portion

 The substantial portion must contain all the necessary and vital facts which constitute the
suit. If the plaintiff wants to pursue the cause of action on number of grounds, then all
these grounds must be duly mentioned. The relief can be claimed via multiple grounds.
You cannot travel beyond the pleadings. However, example: Res judicata: even if it is not
mentioned a defense in your plaint, it would be considered anyway because it is a legal
principle.
 Why a particular person is erred as a defendant, what is the interest of the defendant, how
has the defendant caused a legal injury to the plaintiff?
 If there are more than one defendant or respondents, and if their liability is not joined,
then individual liability of each respondent has to be shown.
 If there are more than one plaintiff and if the cause of action is not joined, then you have
to mention particulars of each plaintiff separately.

c. Relief
 It has to be drafted accurately and correctly. Must state all claims being made: interests,
loss of business, goodwill, harassment, legal costs, terms of compensation, etc.
SIGNATURE AND VERIFICATION:
 Signature to prove that the person has presented the document. It is a proof that you have
filed it, if it is via authority then seal, if it is a company or partnership sign + seal or
maybe letter of authorization too, or a duly passed resolution or issuing power of
 attorney. Authorization on behalf of the plaintiff is required when the plaintiff does not
himself file the plaint.
 The evidence has to be by the person who is the plaintiff. They cannot be substituted in
evidence stage.
 The person who verifies it states that the contents of the plaint are true.
 Two types of verification:
1. Para x-y pertain to the facts of the dispute and those are true to my knowledge.
2. Para a-j are believed by me based on the advice given to me.
 In case there is a language different than the formal language of the plaintiff, we have to
mention that the content of the particular letter has been read and explained to me.
Order 7
Rule 10:
10. Return of plaint.—(1) 2 [ Subject to the provisions of rule 10A, the plaint shall] at any stage of the
suit be returned to be presented to the Court in which the suit should have been instituted.

Eg. Court forwarding a plaint to the NGT after its formation.

Rule 11:
A suit can be rejected when:
(a) where it does not disclose a cause of action;
Cause of action are bundle of facts entitling a party to reach the court. All these facts will create
a cause of action.
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to
correct the valuation within a time to be fixed by the Court, fails to do so;
Value it properly, pay the proper court fee.
(c) where the relief claimed is properly valued, but the plaint is returned upon paper
insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite
stamp-paper within a time to be fixed by the Court, fails to do so;
In case the proper court fee has not been paid,. The court will give you time to do so. If not, the
suit will be dismissed.
(d) where the suit appears from the statement in the plaint to be barred by any law;
Some other law provides that this subject matter should be dealt with by some particular court
only.
EG. No suit for recovery of debt resolution would be filed in any court other than the Debt
Resolution Tribunal.
[(e) where it is not filed in duplicate;]
We have to give copies to the court and to all the defendants. If this has not been done, the court
rejects.
[(f) where the plaintiff fails to comply with the provisions of rule 9:]

WRITTEN STATEMENT
a. Statement of defense submitted by the defendant answering the contents of the plaint
presented by the plaintiff. WS would always be in answer to whatever has been stated by
the Plaintiff. It should not be anything extra, what is not stated in the plaint. It is a reply
to the allegations specifically denying all the contents.
b. A written statement is presented by the defendant or any person who is authorized to do
so. In case of multiple defendants, there can be one WS on behalf of all of them if there is
authorization. When the liability of all defendants is common, only then a single WS is
filed.
However, in case the cause of action as well as the relief claim are distinct, as also their
liability, it is imperative to file a separate written statement. WS written by one defendant
cannot bind other defendants unless there is authorization.
What options does the lawyer have?
1. Admission of the claim
May not be the entire claim, whatever part the defendant admits.
2. Deny the contents of the plaint. Deny each and every allegation.
Each and every allegation should be denied specifically. If some allegation is not denied,
it is presumed that it has been admitted.
3. Defend
Reason or justification of the allegation.

There may be acceptance, denial and defense in the same written statement.
Time allowed to file a WS: 30 days. In case of delay, reasons should be given and the extension
till 90 days may be given. Only in exceptional circumstances should the WS be allowed to be
filed after 90 days.

- Difference between a notice and a plaint.

Notice is served to a private individual, not to the court. No judicial authority involved. Notice and reply can become a part of the
plaint and WS once the matter goes to the court. Notice and reply can become evidence

Notice and reply will not adjudicate a dispute. In case of a plaint and a written statement, it will later be adjudicated because it is
presented to a judicial authority.

Rule 1: time period

1A: duty of defendant to produce documents upon which relief is claimed or relied upon by him
Rule 2: New facts to be specifically pleaded (show that the suit is not maintainable)
Rule 3: Specific denial
Rule 4: Evasive denial
Rule 5: If denial is not specific, presumption of admission
Rule 8: new ground of defense to be allowed in a written statement only in case of set off or
counter claim.
Rule 9: Subsequent pleadings

*notes for 15th taken on phone*

Order 20 CPC
Rule 1: judgment when pronounced
Rule 5: Court’s reasoning on each issue
Rule 11: order once passed
Judgment:
1. Brief background of facts
2. what case the plaintiffs and defendants brought forward
3. Court's finding on each and every issue.
The court may deliver a collective reasoning on joint issues.
4. Reasoning of the court.
Reasoning of the court is not required in bail applications, it depends entirely on the discretion of
the judges. NO flagrant and apparent injustice to be done, principles of natural law to be
followed.

Order 20 Rule 5A
Wherever the parties themself argue the matter, it is the duty of the court to tell them in case
aggrived, as to where should they file an appeal. Rule 5 A
Rule 6: Contents of decree
Rules 6, 7, 8
Contents of a decree:
1. Number of suit and title, description of parties
2. Conclusively determined rights and liabilities in favor of one of the parties
3. Court fees to be payable by one or both the parties.

REPARATION
- damages
- To compensate or give relief to somebody who has been wronged
- Restitution is putting the person to the same position he was in before the cause of action.
- Restitution of conjugal rights is given in Section 9 of Hindu Marriage Act.
- Restoration in relation to civil procedure code means giving back or restoring to the person who
is entitled to the benefit from the other party who has wrongly received such benefit under an
erroneous decree or order of the court. This means that if something is taken unjustly by another
person, giving back of the property is restoration.
- This doctrine strives to bring back the victim to the original position by modification, variation
or reversal of the decree.
- Restoration has been defined in 3 senses in black's law dictionary.
1. Return or restoration of some specific things to its original owner.
2. Compensation for benefit derived from a wrong done to other.
3. Compensation or reparation for the loss caused.
- Section 144 of CPC: Application of restitution
In case there are two suits, ---
16 July 2022
Actus curiae neminem gravabit: An act of the court should not affect anyone. The court is
obliged to ensure that no one is injured by its order and it should not pass any order to the
prejudice of any person. This was followed in SM Deshmukh v. Ganesh Krishnaji Khare.
Section 151: Inherent power to civil courts to pass any order. In absence of any other law, we can
ask the court for relief.
EXECUTION:
Every dispute has three stages.
1. The first stage is institution of a suit. If the case is admitted, summons would be sent, all pre-
trial stuff.
2. Adjudication of the suit.
3. Implementation of the decree/ order or judgment.
In a civil dispute once the decree is passed, the one for whom the decree is passed is called the
decree holder and the person against whom the decree has been pronounced is called the
judgment debtor. Execution has not been defined under CPC. But if we see that execution is in
part II of CPC, which is the substantive part. It starts from Section 36 and goes on till 74. These
provisions deal with the substantive portion of CPC. The procedure is provided under Order 21.
Execution also means the process of enforcing or giving effect to the order by compelling the
judgment debtor to carry out the mandate of the decree or order.
Section 36
Section 37: definition of court which passed a decree.
Section 38: Court by which decree may be executed.—A decree may be executed either by the Court
which passed it, or by the Court to which it is sent for execution.

In case a suit is filed against a person in Jodhpur. The person might have properties in Delhi. In case of a
decree passed against him and in consequence of an order to liquidate the assets, the court which
would pass the decree, would ask court of Delhi to execute it.

Section 39
Link court: There is huge pendency in the courts. Execution is a mechanical procedure. So the court
which passes the order may transfer it to this link court which tries to execute it.

Section 40 Entry 13 concurrent list: the states are allowed to carry out its own amendments. Wherever
a decree is passed to any other state, the amendments so passed would be effective.

Section 41
Section 42: 2(c) : attachment of decree means that the decree is considered to be a decree passed
by that court. List of assets provided are now monitored by the court, their nature may not be
changed once assets are attached.
43-74
18th July 2022
Modes of execution:
1. By delivery of any property. When a decree is passed, the possession of the property is given
to the rightful owner. The property maybe moveable or immoveable.
2. By sale of property - in case of a money recovery suit. With or without attachment of the
property (after order of attachment, no third party right can be created.) Realization - whatever
money is to be given to the plaintiff is given to them and the balance is paid back to the judgment
debtor.
3. By arrest and detention - usually not done without giving the judgment-debtor the complete
opportunity to be heard.
4. By appointment of a receiver/ administrator - If some person is appointed to take care of the
property that it is not demolished, general upkeep, etc. If the property is residential, commercial,
agricultural which is a source of earning, the receiver distributes this amount according to the
decree in favor of the decree holder.

Foreign countries could be of two types:

1. Reciprocating: You respect our laws, we respect your laws. EG. UK, Singapore, Bangladesh
2. Non-reciprocating: The decree would become one of the evidences in a new suit which has to
be filed within India.

MESNE PROFIT:
If a particular property is claimed and possessed by somebody illegally. EG. Tenant possessing
the property but does not pay rent, damages the property, makes permanent changes, etc. The
tenant is not vacating the property. The owner can then ask for the profits which they could have
earned had the possessor returned the property in time.
Ascertainment of market value of the property, time duration, etc. is determined by an inquiry.
There will be passing of a preliminary decree and then the final decree is to give back
possession.
Ubi jus ibi remedium: Every right has a remedy. Anyone should be compensated in case of
breach of legal right

Ownership gives you right to possession, but possession does not give you a right to own.
Ownership gives you a right to every other person.
1. Right to possess and use
2. Right to exclude others from possessing and using it
3. Right to transmit (sell/ transfer/ gift/ alienate)
4. Right to destroy
Maria Gonsalves v. State of Bombay: It is a settled law that a person may be in possession of
property for a huge number of years, but he cannot step in the shoes of the owner.

Concept of mesne profit - medieval times. Every piece of land was earlier owned by the kings.
The rule was that whoever possessed the land had to give a part of the livestock and other
products to the king. The concept of money came way later. This is from where the concept of
mesne profits emerged. The person to whom the returns had to be paid was known as mesne
landlord or intermediate.
Mesne profit: All the rent or profit that could be extracted by the intermediate landlord. Mesne
profit is a mode of such compensation facilitating remedy to the aggrieved party refraining the
wrongful possessor from enjoying profits derived from such property.
Section 2 (12) of the CPC defines mesne profits:
“mesne profits” of property means those profits which the person in wrongful possession of such
property actually received or might with ordinary diligence have received therefrom, together with
interest on such profits, but shall not include profits due to improvements made by the person in
wrongful possession

What under ordinary prudence would the possessor have earned is also included in mesne
profits.
a. Definition has added 'due dilligence'.
b. Mesne profit can be awarded if the property in concern was unlawfully occupied. In case of
lawful possession, mesne profit cannot be granted.
c. Interest on the profit earned is a fundamental part.
The calculation of mesne profit differs from case to case basis. Sometimes they are granted from
the date the property was taken in possession illegally, sometimes calculated from the day of
breach, etc.

Smt. Subhashini v. Sankaramma: the court opined that if the immoveable property is a joint
family property, then the appellant cannot claim mesne profit as the respondent is the owner
himself.

To get mesne profit from the court, there must be an order or a decree. There has to have
determination and adjudication for the calculation of mesne profits. The burden to get the relief
is on the claimant: the person who claims to be the owner of the property. Under law in most
cases, the party
PRECEPT: section 46
SECTION 46 of CPC:
Precept means a command/ order/ writ/ warrant. Object of this provision was to prevent the
judgment debtor from disposing his property before the decree holder can get the decree
transferred and take steps in the proper court for execution of the property. Time limt for precept
is 2 months.
There has to have an application under Section 39. The application must be before the court
which has passed the decree. Once the decree is transferred, we have to move an application for
execution, to the court where the decree has been sent.
- M/s Skyland Buildings v. Income Tax Officer 2020 Volume 4-9 ITR pg. 255: mesne
profits are revenue receipts, hence taxable.

19th July 2022

GARNISHI ORDER:
It is a very vital provision of CPC. The principle was incorporated in 1976 via the 1976
amendment to the CPC. Prior, the concept existed in equity but not in any law in India. The
principle did exist in India before that, but not in any statute. In order 21 Rule 46A was
introduced.
1. There are 2 parties in every civil suit. In case of money recovery suit, the plaintiff asks
for money and decree is passed in favor of the plaintiff. The judgment debtor now has to
pay the money.
2. In order to ensure the interest of the decree holder, the court can pass an order to the third
party. This third party is independent to the dispute. The role of this party comes only for
execution when the money from defendant is to be given to the plaintiff.
3. This third party is debtor of the judgment debtor. The defendant has a right to demand
certain money or property from this third party.
4. The court passes an order saying that instead of paying the amount to the defendant, they
will have to pay the amount to the plaintiff.
5. Purpose of garnishment is to protect the interest of the plaintiff.
The decree holder has to apply for this order. The decree holder has to inform the court that this
judgment debtor has certain assets lying with the third party and that instead of giving these to
the debtor, they should be given to the plaintiff himself.
These orders are passed by the court on a discretionary basis. The third party is known as the
garnishee. This term comes from a French word, garner which means to warn or to prepare.
In simple words, garnishee is the person who is liable to pay a debt to the judgment debtor or to
deliver any moveable property to him. A garnishi order is passed by the executive court directing
or ordering a garnishee not to pay money to judgment debtor since the latter is indebted to the
garnisher.
46A talks about where garnishee adheres to the order of the court.
46B talks about failure of garnishee. Where the garnishee does not pay to the decree holder and
does not answer as to why he should not pay, a notice may be issued by the court to the
garnishee. Execution can be made against the garnishee as if they are the judgment debtor.
- Background
- Sue and be sued
- Affidavits

MODULE II
JURISDICTION
- It means whether a court has the particular power to adjudicate on the particular suit or
not.
- Latin words ‘juris’ and ‘dicto’
- The word jurisdiction has not been defined in CPC per se.
- Jurisdiction is mainly decided on the grounds of:
1. The fiscal value of the suit (pecuniary jurisdiction)
2. The geographical boundaries of a court (territorial jurisdiction)
3. Subject matter of the court: Does the court have an express power to adjudicate or is
it barred.
EG. Under DRT Act, all other courts’ jurisdiction is barred from trying such suits.
- Types of jurisdiction:
1. Original jurisdiction:
Whenever there is a list, the court of first instance where the suit can be filed is said
to have original jurisdiction. Whether the court has the power to adjudicate suits at
the first instance.
EG. If consumer suit is of 10 lakhs, approach a district court.
Delhi, Bombay, Calcutta, Madras high courts are princely courts which accept direct
civil suits
2. Appellate jurisdiction:
The power or authority conferred upon a superior court to readjudicate the matter that
has been already adjudicated by the lower court.
3. Foreign jurisdiction:
There used to be a foreign jurisdiction act of 1947, but it was repealed in the 1970s.
As per Section 2 of the act, any jurisdiction which by treaty, agreement, grant, usage
or other lawful needs the central government has for the time being in or in relation to
any area outside India.
Now section 13 of CPC talks about foreign jurisdiction. S 2(5) (6), S13 talks about
when a foreign judgment can be challenged. Foreign jurisdiction has not been
defined, but there are provisions.
4. Exclusive Jurisdiction
 The particular nature of dispute can be adjudicated only by that particular court. This
gives power to only one court to decide a dispute of certain nature. That power cannot
be exercised by any other court.
5. Concurrent Jurisdiction:
A party is free to approach any court that shares such concurrent jurisdiction. Both
courts are at the same pedestal and both have the power to adjudicate the dispute.
EG. Under army law, whenever there is a dispute, it is filed before the armed forces
tribunal. In case of a matrimonial issue or petty criminal offences, then there is an
option to go to the armed forces tribunal or can go to the police and approach the
magistrate.
EG. A consumer and there is deficiency of banking services. The consumer has a
concurrent jurisdiction to approach the Banking ombudsman authority or Consumer
Court, permanent lok Adalat.
6. Territorial jurisdiction
The geographical location and the boundaries and limits of a particular court. Every
court’s territorial jurisdiction is clearly defined. In criminal law, the territorial
jurisdiction is determined on the basis of where the offence has been committed and
where the FIR has been lodged. Wherever the jurisdiction of police station lies, the
FIR has to be filed there.
In Civil Law as well, municipal limits are clearly notified.
7. Pecuniary Jurisdiction:
The jurisdiction depending upon the monetary value of cases or suits in consideration.
EG. You cannot approach the district commission for a suit, value of which is 10
crores.

SECTION 9
SECTION 15 of CPC: Important word: lowest grade, competent
22nd July 2022
HIERARCHY OF COURTS
- Hierarchy means chain of command
- A Civil Court deals with all Civil case which are between private individuals. They are
not against the state.
- In an adversary, the judge is independent and it is completely based on evidence. Every
fact that is brought to the court has to be proved. One who proves his facts gets the
decree.
In an inquisitorial system, the judge as well as the jury carry out the exercise of finding
out the truth. Wherever there is an inquisitorial system and the parties fail to prove facts,
it is not closed because the truth can come out any time.
- The suit is to be filed in the smallest court: Munsif Court or Court of sub judge class III.
Munsif court is the lowest court in every district. It has jurisdiction to try cases of a
 certain pecuniary limit. This limit is different in different states. The judge who presides
over these cases is called the Munsif magistrate or Judicial Collector (District Collector).
Presidency Small Cause Court Act, 1882:
Under this act in the metropolitan areas, certain small causes courts were established.
This act empowered the state government to establish small causes court in metropolitan
areas. Similarly, they had the pecuniary jurisdiction as decided by the state. These courts
are in parallel to the Munsif courts. In some places, these courts still function but as per
CPC
- Court of civil judge, Junior Division: It is the lowest court in deciding civil matters. They
have power and their jurisdiction is extended to all sorts of civil disputes in nature of
original jurisdiction and proceedings.
When a magistrate is appointed, the first posting given to a judge is the Civil Judge,
junior Division.
Above this court, there is the Court of Civil Judge, senior Division. This court comes to
the middle of the hierarchy. The judge or these courts have power and authority to try
civil cases of any value. Because the quantum of litigation might be very high, there
cannot be one single civil court. More judges are appointed which are known as
Additional Civil Judge, Senior Division.
They have same concurrent jurisdiction. The appointment of these judges is based upon
seniority. Out of the lot of all those who can be appointed, the senior most is in the Senior
Division.
- Above this court is the District Court. By definition, this is the highest court of that
particular district headed by the District Judge. Every district has ideally one District
court but if the quantum of location is high, the HC as well as the State government has
the authority to increase the number of District Courts. The judge is known as Additional
District Judge. The appointment of ADJ might be via promotion or by way of direct
recruitment. There might be a separate exam during this recruitment. A district judge is
always appointed by promotion. District judges have twin function:
1. Judicial function of adjudicating disputes
2. Administrative control of the district: submission of reports, budget allocation,
quantum of cases disposed, etc.
25th July 2022
When district court deals with civil matters, it is the district court. When DC deals with criminal
cases, it is the sessions court. Civil, domestic, criminal of all types can be handled by the District
Court.
DC has the power to give capital punishment.
Special courts like POCSO court, NDPS court, Financial courts, NIA are additional district
judges.
Above the district court is the high court. Ideally in every state there should be one HC. But
depending upon the size of state, population, cases, etc., the state has the authority to increase
number of benches. HC is established under Article 214 of the Constitution. The president
appoints chief justice and other judges.
Two methods of appointment:
1. By way of elevation.
The collegium system (chief justice with 2 senior-most judges)
CJI with four more judges scrutinize the names sent by the HC collegium. Once they
approve, the President appoints that advocate as the justice. This exercise is independent
because of separation of powers theory. However, there is a slight intervention of the
executive. Background verification, IP check, connections and affiliations, family
background is done by the state.
First Judges’ Case
Second Judges’ Case
2. By promotion
The district judge will be promoted.
Powers of the HC:
1. Article 226: Power to issue writs.
Previously known are prerogative writs. It is extraordinary jurisdiction, where there is no
remedy under any law. Condition is that there must be a breach of a fundamental right by
the state or state instrumentality.
2. Election related matters:
Election petitions
3. Power to issue contempt
Willful disobedience of the court and criminal contempt.
4. Power of review of judgments and orders of all other courts situated in the state.
5. To exercise appellate, supervisory and administrative jurisdiction.
6. HC is court of record. If a HC takes a particular view, the same view has to be adopted by
all the courts in the state.
7. Power of judicial review
SUPREME COURT
Article 124 of the constitution gives power to the SC. CJI is selected on the basis of seniority.
Powers:
1. Power to punish contempt
2. Power of judicial review: examining whether an enactment is contrary to the constitution
3. Elections of president and vice-president of various bodies (BCCI, UPSC)
4. Power to call up any case from the HC under Article 134.
5. Appointment of HC judges. Ad-hoc SC judges
6. Court of record
Law laid down by the SC is binding on every court of law in India.
 SC
HC:
1. Metropolitan:
Civil:
City civil courts
Small Causes Court
Criminal:
Sessions Court
Chief Metropolitan Court
Metropolitan Magistrate
2. Non-metropolitan
Civil:
District court
Senior civil judge
Junior civil judge
Munsif magistrate
Criminal:
Sessions Court
Judicial magistrate class I
Judicial Magistrate Class II
26th July 2022
Section 9: there is no discretion, shall is obligatory. Civil nature has a wider connotation than
civil proceeding. Examples of the bars could be:
a. Section 22 of payment of wages act: Bar on all cases related to wages of workmen. They
will be filed before the Labor Court and civil courts are barred.
b. Section 293 of Income Tax Act: If a proceeding is taken, the remedy lies to the statutory
authority given under the income tax act and not the civil court.
c. Bill of Wages Act Section 24:
Civil suits:
a. Civil related to right to worship.
b. Suit relating to accounts of firm
c. Recovery of arrears of rent between landlord and tenant, lessor and lessee
d. Suits for civil wrong: breach of a right of a private individual.
e. Right to property
f. Suit for specific performance, specific relied
g. Restitution of conjugal rights S9 of HMA
h. Suit for office: Dispute as to who would hold the office of profit.
i. Suit for declaration of title and possession
j. Rights of burial of individual or community
k. Suit for rights of franchise-franchiser
Civil nature is a very wide concept.
- Kehar Sinha Nihal Singh v. Custodian General
The SC enunciated what is civil nature. In simple words, it says an approbation of private
rights to corporation or human beings. Civil nature is more persuasive that civil
proceeding.
- PMA Metropolitan v. MM Marthoma
SC defined the term jurisdiction: ‘The expensive nature of the section is demonstrated by
the use of phraseology both positive and negative, the language used is simple but
explicit and clear. It is structured based on a civilized jurisprudence that the absence of
machinery for enforcement of civil rights renders it nugatory to get the heading which is
normally a key to the section brings out unequivocally that all civil suits are cognizable
unless barred.
What it meant by this explanation by widening the ambit of the section by use of the
word shall and the expression ‘all suits of civil nature unless expressly or impliedly
barred the court shall’ (concept of ubi jus ibi remedium- nobody can be denied their
right.)
- Shankar Narayanan v. K. Sridevi
SC here observed as follows:
Civil court has primary jurisdiction in all types of civil matters as per Section 9 of CPC
unless the action is expressly or impliedly barred.
Unless the jurisdiction is ousted by any legislation or by amending any provision in the
act itself, all courts will have jurisdiction.

Jurisdiction has also been defined in:

- Hridaynath Rao v. Akhil Chandra Rao 1928 Cal HC
The court stated that jurisdiction is the power of the court to hear and determine a cause
to adjudicate and exercise judicial powers.
Express bar:
A suit barred by an enactment for the time being in force is said to be expressly barred.
EG. In IBC 2016, express bar on filing a suit once resolution professional has been
appointed.
o A competent jurisdiction can bar jurisdiction of civil courts with respect to
particular class of suits of 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.
o Should not be violative of the Part III of the Constitution.
o Should not be prima facie arbitrary
Wednesbury principle: under normal circumstances how a prudent person should
behave.

Implied bar:
A suit barred by a general provision of law
EG. Res judicata- section 11 of CPC
 EG. When suits against public policy are barred. Public policy: patently illegal against
the mindset of societies: Child marriages, no chance given to defendant to present their
case before giving out a decree.

Section 9 covers jurisdiction of court. However, it is pertinent to note that there are two essential
pre-requisites that need to be fulfilled before any adjudication:
1. There must be a cause of action. (bundle of facts giving right to approach the court).
Lack of cause of action attracts order VII Rule 11. Without proving a cause of action,
the suit can be summarily rejected without delving into the merits.
2. There need to be an inherent right of the plaintiff to sue the defendant.
Both these conditions run parallel to each other. Common law gives an inherent right to all
individuals to approach civil courts in case of violation of rights. However, a right to appeal is a
creation of a statute. If right to appeal is not given in any provision, no appeal can be filed.
- Church of North India AIR 2005 SC 2544
An org established a church. The statute provided an express bar because there was
another adjudicating authority.
27.7.2022
Section 10: Res sub-judice
It puts a blanket bar on suits. The suit cannot proceed, there can be an institution of the suit. The
court cannot proceed with the trial, which commences by the institution of the suit. It puts a
condition as to when the court will not proceed. When the issue is directly and substantially same
as any other suit, it is barred. The one which is instituted first will remain.
In latin, the term means under formal consideration or under judgment. Common parties have
common issues. The purpose is to protect the person from multiple litigations. Prevents
unnecessary harassment. The suits are aimed to prevent inconvenience to the parties and finally
its purpose is to give rise to res judicata.
a. Prevent parallel litigation in two different courts between same parties and same subject
matter.
b. Prevent wastage of time of the court.
c. Avoid contradictory decisions on the same subject matter.
d. Reduce burden of the court. Already overburdened with pendency.
e. Protect the right of the other party.
f. Prevent unnecessary delays.
Conditions which have to be seen before sub-judice is applied:
1. There should be two suits at the same time, not the case of one suit already decided.
2. The matter in the subsequent suit should be directly and substantially the same in the
previous suit.
 3. Both suits must be pending at the same time in the same court or any other court.
4. The suit which is filed previously should be before a competent court to decide the issue.
Court should have jurisdiction over the suit.
5. Parties litigating in both suits should have same title. For EG., if in the first instance the
person sues in the capacity of a director and the next time he sues as a partner.
When will this principle not apply?
1. Where points in issues are distinct and different. If some issue is common but rest of the
issues are completely different. The relief claimed, parties have to be the same.
- GC Care Center and Hospital v. OP Care Pvt. Ltd. AIR 2004 SC pg.2339:
The principle laid down is that only the subsequently instituted suit will be stayed and the
previously instituted suit cannot be stayed.
2. The principle also applies where the previously instituted suit is before a foreign court.
3. The test it: whether the outcome of the previously instituted suit will operate as res
judicata on the subsequent suit? If yes, then the principle of sub-judice will apply,
otherwise not.
Section 11: Res judicata
Once a matter is already adjudicated, then it bars institution of a second suit. It has to be between
same parties. The second suit instituted should be directly and substantially on the same issue.
The difference is that in sub-judice, both the suits parallelly go on. However, in res judicata, the
previously instituted suit before a competent court has been decided and adjudicated upon. It is a
common law principle. This principle is mandatory and the court has to follow these principles.
They cannot be by-passed, ignored or the court cannot say that the issue would be decided during
final adjudication.
Three maxims the principle is based upon:
1. Nemo debet bis vexari pro una et eadem causa:
No man should be punished twice for the same cause.
2. Interest reipublicae ut sit finis litium:
It is in the interest of the state that there should be an end to the litigation.
3. Res judicata pro veritate occipitur:
A judicial decision must be accepted as correct and final.
28 July 2022
Principle of res-judicata is based upon the principle that no court shall try any suit or any issue in
a suit in which that issue has been decided between the parties to the suit or any other parties
under them for whose rights the suit has already been filed in any court of competent jurisdiction
heard and decided by that court on any point as been raised in the subsequent suit which has
already been heard and decided by any court of competent jurisdiction.
- Narayanam Chettiyar v. Anamale Chettiyar AIR 1959 SC pg. 275
 The principle of law laid down was that the doctrine attaches importance to one decision
for one case and prohibits another.
- Gulam Abbas v. State of UP AIR 1981 SC 2198
As per this judgment, the broad guidelines are that there should be end to litigation. It
gives a security to the litigants against double suits. To give finality to the decision.
- Satyacharan v. Devrajan AIR 1962 SC 941
Doctrine of res-judicata is based on the need of giving final shape to judicial decisions.
Any case decided once cannot be reopen for fresh decision.
Essential elements of res-judicata:
1. Subsequent suit must be on the same issue involving it directly or substantially the same
in comparison to the previous suit. If it is not directly or substantially the same, the
principle of res-judicata would not be applicable.
(RP Gupta v. Shrikrishna Potdar AIR 1965 SC 316) In the subsequent suit, the issue
involved if is not directly or substantially the same from the earlier suit, then the doctrine
of res-judicata will not be applicable.
2. The applicability of res-judicata will be if both the suits are between the same parties.
3. The parties claimed having the same title in the earlier and later suit. If in a later suit the
title changes, this doctrine would not be applicable.
4. The previous suit decided between the parties must be by a court having a competent
jurisdiction.
5. The dispute, the issue between the parties is decided and finally adjudicated on the
merits. Cannot leave any party remedyless.
The matter is actually decided by the court between the same parties in the earlier suit then the
same issue cannot be reopened in the subsequent suit.
Constructive Res-judicata;
The principle is that when a party brings up a dispute, it must bring the entire dispute and whole
of the claim and if you fail to bring out any ancillary claim related to the main claim, then that
ancillary claim cannot be raised in any other suit.
It means that any matter in which the issue might and ought to have been raised as a ground of
claim or as a ground of defense however a party ignores it, then the issue shall be deemed to
have been a matter directly or substantially covered in such suit.
Not applicable on a compromise decree. It is applicable to arbitration proceeding.
If the case has not been decided upon merits, that will not operate as res-judicata.
Difference between res-judicata and estopppel
Estoppel: If by actions or necessary implications if something is done, the person doing it is
bound by that.
EG. Tender for construction of roads. If X participates in the process and he has to procure 100
tractors, and he does so, and later a condition is changed saying that not tractors, lorries are
required. Now the condition cannot be changed.
1. Res judicata is a public policy that all litigation should come to an end whereas stoppel is
based upon law of evidence where a man cannot change his stand once taken.
2. Res judicata prevents someone from saying same thing whereas stoppel prevents from
saying different things in a same suit.
3. Res judicata bars the entire suit whereas in stoppel, it is only limited to that part of the
suit. Stoppel only prevents a certain piece of evidence from being taken on record.
4. Res judicata ousts the jurisdiction of the court, whereas stoppel shuts the mouth of the
party.
5. Res judicata is derived from a court decision whereas stoppel is from the facts asserted by
the parties. There is no judicial finding in stoppel, it is only by the conduct of the parties.
29.07.2022
SUIT AGAINST FOREIGN RULERS
Concept of sovereign immunity: Immunity granted to the sovereign that the sovereign cannot be
tried as an ordinary person before ordinary courts. It has to be proved that the person was acting
in sovereign capacity rather than his individual capacity. No action can be taken against a foreign
state without government’s prior written consent. Hence, this immunity is not absolute.
India endorsed on 12th January 2007 UN Convention on jurisdictional immunities of states and
their properties. Though India signed this convention, it neither endorsed nor rectified the
promulgated treaty. India does not have any such law as present in UK, USA.
Par im parum non habet imperium – A sovereign is not subject to jurisdiction of another state.
India as a country recognizes the principle of sovereign immunity but there are restrictions to it.
S.86 of CPC: Any individual can bring a legal action against a sovereign state. If conditions of
S.86 are met, any individual can bring the sovereign under jurisdiction.
86(1): Sovereign immunity is granted to a foreign leader, its ambassadors and its envoys (a
special task team).
When can a certificate be given:
1. The foreign national has itself sued the person himself
2. If the foreign state
4. If it can be proved that the foreign individual has expressly waived the sovereign
immunity protection, then the certificate will be granted. Implied waiver can be via
conduct.
- Mirza Ali Akbar Kashani v. The United Arab Republic
The first case that entered S.86 in statute books. This was basically a commercial dispute
wherein the concept of sovereign immunity was discussed. The sovereign or foreign country
cannot perpetrate a judicial misdeed while simultaneously is resistive to civil proceedings.
Certain exceptions:
a. Carriage by air act, 1972
b. Consumer protection act
c. Any industrial dispute
The principle is based on: Rex non potest peccare: The king can do no mistake
Supreme Court in the judgment of Ethiopian Airlines v. Ganesh Narayan Sahu AIR 2011 SC
3495, it said that it should be noted that in certain commercial or contractual matters between
sovereign bodies and other parties, this immunity may not be upheld and a suit can be very well
filed in appropriate court of law.
Harbajan Singh Dhalla v. Union of India: the law laid down was that while giving his consent,
the principle of natural justice has to be complied with. Whenever an individual approaches the
central government, it should not be based upon political considerations and the certificate must
be granted if the case falls within the parameters of 86(2). If this consent has been withheld for
no reason or the principles of natural justice have not been complied with, then the rejection of
consent is subject to judicial review.
The purpose of making government approval a legal condition for bringing a suit against a
sovereign body according to Supreme Court, is to ensure that parties with valid claims are not
left out without a redressal and sovereign states are not subject to baseless and frivolous
litigation in the Indian Legal system.
The certificate ensures that the grounds are not frivolous and the aggrieved party is not
remedyless.
Kenya Airlines v. Jinibai P Keshwala AIR 1998 Bom 287 : Litigation was going on for almost
10 years. They never raised the objection that sovereign immunity should be granted. The BOM
HC held that the immunity was impliedly waived off.
Other certain express ways of waiving:
1. Signing treaties and as per the treaty both nations expressly waive their right
2. In Ethiopian Airlines, it was held that several conditions for sovereign immunity can be
waived off. These conditions included the signing of carriage by air act, 1972 which
being a special law. S.86 is a general condition. Special law prevails over general laws.
Syrian Arab Republic v. AK Jajodia 116 2005 DLT pg.444: It was states that sovereign
immunity should not exist in situations concerning rental disputes in immoveable properties.
30.7.2022
S.13 ENFORCEABILITY OF FOREIGN JUDGMENTS:
Section 2(5) defines foreign court. Foreign judgment is defined under 2(6). Section 13 talks
about when foreign judgments are not conclusive. S. 14 is a presumption as to foreign
judgments. S.44 and S.44A talk about enforcement of foreign judgments.
13(a)
• Court has to be established by law.
• Court should have territorial and pecuniary jurisdiction.
• It is a fundamental principle of law that the judgment or order passed by the court which
has no jurisdiction is null and void. EG. Indian residing in Uk files a suit in South Africa
 no jurisdiction. The court should be established by the state laws.

13(b)
• Both the parties are heard
• Both parties have notice of the proceedings
• They have laid down their evidence
• Their evidences have been considered.
• The court after giving its reasoning and application of mind gives its final determination.
Such proceedings will then be called as something decided based on merits.
• If a defendant does not show up, the court can give out a decree but it is challengeable
because of lack of merits.
• Both parties must be given chance to present their case.
13(c)
• You have to establish prima facie that it is a settled principle of international law and it is
not in violation of any law of India.
• When a judgment is based on an incorrect proposition of law or refusal to recognize the
law of India, it is considered to be founded on an incorrect position of law.
13(d)
• No lawbook, statutes required. It is intrinsic. This is a minimum requirement.
• Court has to act fairly without any bias comprised of impartial process, act in good faith,
give reasonable opportunity to both the parties and affording opportunity to present their
case.
• Coram non judice – principle of natural justice if not followed, judgment not good in law
13(e)
• Where it has obtained been by fraud.
• Lord Denning said that no judgment of a court, no order of a minister can be allowed to
stand if it is obtained by fraud. Similarly, Cheshiar said that it is firmly established that a
foreign judgment is impeachable for fraud in the sense that upon proof of fraud, it cannot
be enforced by action in England.
 EG. Satya v. Teja Singh: A person obtained a divorce order against his wife in America.
HE posed himself as an American citizen when he was not. This order was not enforced
in India because of fraud.
13(f)
• Where it sustains a claim founded on breach of any law enforced in India
SECTION 14
When there is a certified copy of a foreign decree i.e. not a photocopy, digital copy, etc., once it
is produced in India, its authenticity cannot be challenged. It is presumed that the judgment was
given by a court of competent jurisdiction.
- Narsimharao v. Venkatalaxmi:
It was held by the Supreme Court that a certified copy will be conclusive proof but ff a
certificate is also required, then it will be an essential condition.
How to submit to foreign jurisdiction?
1. When a person against whom judgment has been obtained is subject to foreign court
(territorial jurisdiction residence, working there, etc.)
2. When the summons was served, the person was a residence of that country.
3. When the person voluntarily appears once the summons are issued.
4. Where by agreement between the parties, you select that this forum will have jurisdiction.
HOW THIS EXECUTION CAN BE DONE?
a. Reciprocating Country:
If a judgment is passed by such a country, it would be considered as that passed in India.
b. Non-reciprocating country
The judgment will form a basis to file a suit in India. A fresh suit will be instituted and it
would be shown that such a stance is taken by that court.
2.08.2022
Party filing the suit is the litigant. It differs from case to case. Order I of the CPC talks about who
are the parties. Whenever a suit is filed, there are 4 general rules. These are 4 essential
characteristics of the suit:
1. There has to be a litigant and a person against whom it is being filed. There has to have a
dispute, lis, cause of action and there has to have a demand (relief/ prayer) in front of the
judicial/ administrative authority Krishna v. Narsingh Rao AIR 1973 BOM 358: The
only pre-condition arises as to joint in one suit as a plaintiff if the common question of
law or fact arose between the plaintiffs. The court laid down a twin test: Whether right to
relief arises out of same act or transaction? AND Common question of law or fact will
arise in such case.
Object of joinder:
 1. To avoid multiplicity of suits
2. To provide speedy trials
3. To secure time
4. To avoid the expenditure incurred
Rule 2:
Rule 3: Difference with rule 1 in terms of repercussions:
Left out plaintiff can approach the court at any moment. Left out defendant cannot be ---.
A party to whom the relief is claimed is a necessary party. Banaras Bank ltd. v. Bhagwan Das :
Allahabad hc full bench laid down a twin-test for determining the question, whether a party is a
necessary party or not:
a. There has to be a relief against such party in respect of matters involved in the suit.
b. The court must not be in a position to pass an effective decree in the absence of such a
party.
EG. General Manager South Central Railways, Secunderabad v. AVR Siddhanti 1974
Vol 4 SCC pg. 335: case of non-joinder of parties. Plaintiff claimed a relief against the
railways and made the general manager as one of the defendants. A policy affecting rights of
all employees of railways was challenged. All the parties needed to be made necessary
parties. SC said that their rights are being affected but the relief that is being claimed is
against the railways, and the relief can be granted even in the absence of joinder. They are
not a necessary party, they are proper party.
A proper party is one who is not necessary, its presence will expedite the relief or help the
court to reach a particular conclusion. A decree cannot be granted in the absence of a
necessary party. A proper party is one whose presence enables a court to adjudicate a suit
effectively and completely.
Anil Kumar v. Shiv Nath 1995 Vol. 3 SCC pg. 147: SC observed that the object of the rule
of necessary parties is to bring on record all persons who are parties to the dispute relating to
the subject matter so as to avoid multiplicity of litigation and inconvenience.
Non joinder (somebody is required to join but is not joint) of parties and misjoinder of parties
(wrong party has been joined). Non joinder is very fatal, a misjoinder can be corrected.
3.08.2022
If you fail to implead a defendant as a necessary party then it is written, you’ll not get the
relief that you want and your suit may be rejected.
The proper party’s presence will enable you or the court to reach the final adjudication
process. Whenever there is non-impleadment of a necessary or proper party, the first is a
non-joinder and the latter is a disjoinder.
A misjoinder is one where the correct party is not.
 Section 99- It will not apply in case of a necessary party.
There can be non-joinder of plaintiffs/ defendants, but non joinder of plaintiffs is prerogative
of the plaintiff to approach the court.
Distinction between necessary and proper parties:
1. A necessary party is one against whom a relief is being sought, a proper party is that
party against whom relief is not sought.
2. In absence of a necessary party, no effective decree or order can be passed but in the
absence of a proper party, a decree and order can be passed but its presence only assists
the final determination of the case.
3. In case of non-impleadment of a necessary party, a suit is liable to be dismissed but in the
absence of a proper party, the suit cannot be dismissed.
4. A decree passed in the absence of a necessary party cannot be executed. It is a non-
executable decree. In the absence of a proper party, it cannot be reversed, varied or
remanded in appeal unless the conditions of S.99 are satisfied.
Abatement in CPC: to eliminate or cessation of something.
• If one of the parties to the suit expires, the suit is abated. however, if the legal
representatives are taken on record and the cause of action continues to survive, there is
no abatement.
• In a civil trial, whenever any party dies or is incapacitated to participate in the
proceedings, to prevent the suit from being abated, the legal representatives are put on
record. The trial then continues.
• Abatement is the discontinuation of a judicial process due to a fact not affecting the
merits of the case.
• The right to sue must survive and the cause of action must not die with the party.
• EG. There is a right in personam. If an artist dies, legal representatives cannot be asked to
complete the pending work.
• If the right to sue does not survive, the suit will automatically come to an end.
• The representative would not automatically come on record, they have to give consent. In
case the right to sue still survives and the defendant has died, the plaintiff has to provide
details as to who are the legal representatives of the person and the court has to then add
the defendant. It is a general rule that there cannot exist any proceedings against a dead
person.
• Cause of action is a bundle of material facts which empowers the plaintiff to lead to the
initiation of a suit. Cause of action are the whole of material facts that are necessary for
the plaintiff to allege and prove in order to succeed. It gives the right to participate in a
suit.
The burden of proving cause of action:
1. Place where contract is executed
2. Place where the contract was performed or contemplated.
3. Where consideration would be paid or is payable
 The cause of action must first occur. It is antecedent to the suit.
Counter-claim:
• If there exist two disputes of plaintiffs and defendants against each other, a counter claim
can be filed.
• Order 8 Rule 6 and 6A talk about counter-claim and set-off.
• They are inserted in the CPC to provide an opportunity to the defendant to plead for his
dues against the plaintiff. Concept of counter claim and set off has evolved through
judicial interpretations. It is equity based.
• Counter-claim is against the plaintiff whereas set-off reduces a certain portion of liability.
• Union of India v. Karanchand Thapar and Ors.:
The SC held that the concept of set-off as defined in Black’s law dictionary as debtor’s
right to reduce the amount of debt by any sum which the creditors owe to the debtor or
the counter-balancing sum owed by the creditor which means the cross-claim which the
debtor has against the creditor.
• EG. Money recovery suit of A against B for Rs.1 lakh. In WS, it is accepted that Rs.15k
has already been paid. The amount is removed from the original plaint.
• There can be a set-off only in case of money recovery suits and the money can be
ascertained in the transaction and it should not exceed the pecuniary jurisdiction.
• It should not be that the counter-claim are of a different character.
• A set-off is of two types:
a. Legal set-off
b. Equitable set-off
4.08.2022
Set offs are of two types
Legal set-off - given under Order VIII rule 6
Equitable set-off - based on justice, good sense and equity.
LS can be claimed as a matter of right (whenever the defendant has a claim agianst the
plaintiff, it canbe claimed as a right in amoney rcovery suit).
ES is based upon the court’s discretion- cannot be claimed as a matter of right.
The recovery amount in LS has to be ascertained, computed and fixed- the cpc requires it
to not be vague.
No such requirement for ES- court’s discretion only.
In LS, court fee also has to be paid
In ES, the court may or may not pay court fee- depends on courts discretion as the
amount is not ascertained.
 - Jayanthilal v Abdul Haziz
Case for recovery of rent amount. The tenant raised a counterclaim that the rental
premises was so bad that he had to incur a lot of costs for upkeep and maintenance and
claimed the amount against the plaintiff’s claim.
Court- it is a fit case under Order VIII Rule 6- tenant entitled to set-off the amount.
- Jitendra Kumar v. The PLS General Finance and Investment Company Limited:
The SC held that the difference between a legal set off and an equitable set-off is that a
legal setoff can be claimed as a matter of right whereas an equitable set-off is granted at
the discretion of the court.
COUNTER-CLAIM
• In 1976, the Law Commission of India recommended that the concept of counter
claim to be incorporated to be introduced in the Indian Legal System.
• A counter claim could be of any nature: property, injunction. If a suit is filed by A
against B for a recovery of sum of Rs.10 lakhs. B contends that A has not given
the possession of a certain property.
• Object was to avoid multiplicity of suits
• A counter-claim is considered just as a cross suit against the plaintiff and all the
rules applicable to the written statement will govern the reply that the plaintiff
will file to the counter-claim filed by the defendant.
Difference between set-off and counter-claim:
• Set off is governed under Order 8 Rule 6, Counter claim is governed under Order 8 Rule
6A.
• Object of set-off is to give opportunity to the defendant to mitigate his liability or to
adjust his claim. Whereas the object of counter claim is to avoid multiplicity of litigation.
• Set-off can occur only in a money recovery suit, whereas a counter-claim could be in
respect of all other types of claims as right, title or interest or injunction.
• The scope of set-off is narrow, only restricted to money recovery suits whereas the scope
of counter-claims is much wider.
• In set-off, the rules relating to written statement would be followed. There is mere
adjustment, whereas, in a counter-claim, the rules of how a plaint is filed are followed.
PLACE OF SUING
• The expression place of suing signifies the venue. Section 15 of CPC.
• Lowest competent court to adjudge the suit. However, if the HC has passed an order, it
cannot be argued that HC should not have decided.
• Why the suit should be tried in the lowest competent court was decided in:
Mazhar Hussain v. Niti Lal 1885 ILR Vol. 7 ALL 230
The SC said that the purpose is:
1. To reduce burden on Higher Courts.
 2. To afford convenience to the parties and the witnesses who may be called for
examination.

5.08.2022
If there is a decree/ judgement passed and against that judgement, decree or order there’s an
appeal or a revision. If you show that there is a complete failure of justice, or what prevented you
from raising that issue at the trial stage.
S.21- any objection with regard to the jurisdiction has to be taken up at the initial stage and not
the revisional or appellate stage. Once a decree is passed in a former suit, you cannot file a fresh
suit challenging that decree in the form
21(1)- territorial jurisdiction
Transfer of proceedings- 22,23,24,25
Section 21A: If you are aggrieved by a decree, then you can challenge the decree. However, you
cannot institute a fresh suit to set aside the decree primarily and only on the grounds of
jurisdiction.
Section 22: More than one court having jurisdiction.
In every civil suit: plaint – court will look at formal objections (barred by law, court fee,
jurisdiction, etc.) – court will issue summons – written statement – evidence will be produced by
the plaintiff – counterclaim – reply to counterclaim – examination of the evidence – court will
frame issues (settling of issues) – parties are free to suggest other issues – after this stage, no
amendments, no objections – start of trial
If a suit has been instituted and there may be other courts having jurisdiction then the court has
the power to shift the suit from one competent court in which a suit has been filed to another
competent court. The court looks at reasons of transfer application and then before
commencement of trial, that case can be transferred. We talk about two courts at the same level.
Section 25: Proceedings in different states: go to SC for transfer. Application that a particular
HC or a Civil court in A should be transferred
ORDER II:
Rule 2: If some particular claim is not mentioned, you are prevented from raising it later. The
substantial provision is there under section 11. The plaintiff has to bring out the entire claim.
However, he has the discretion to include those claims or not. All reliefs have to be taken in one
suit.
6.08.2022
REPRESENTATIVE SUIT
It is filed by one or two persons on behalf of the rest of the others, wherein there is common
interest and the entire bunch of persons interested have to approach the court.
A person approaching the court has to show what the cause of action is. There is cause of action
on behalf of several persons. Order 1 Rule 8 talks about representative suits. The court has to
give approval.
EG. PIL: a person can approach the court on behalf of the community at large. The petitioner
may or may not have any interest in the suit.
When a notice is issued, the plaintiff is expected to pay the requisite charges. If it is to be sent to
a community at large, it may be published in newspapers.
- Kodia Gounder v. Velandi Gounder AIR 1955 Madras 281:
The object of the rule is to afford convenience in suits where there is a community
interest among large number of persons so that only a few should be allowed to represent.
In other words, the object for which this provision is made is really to facilitate the
decision of question in which a large number of persons are interested without recourse to
ordinary procedure, otherwise there will be inseparable practical difficulties in the
institution of suits, where each individual has to maintain an action by a separate suit.
- Krishna Vasudev v. Shareef 2005 12 SCC pg. 180
Order 1 rule 8 does not prescribe any stage at which the application can be filed. In our
opinion, the trial court ought to have heard and decided the application on its own merits
without regard to the stage at which it was filed.
- Kalyan Singh v. Chhoti AIR 1990 SC 397
There are four essential conditions for a party to constitute a representative suit:
1. The parties are numerous
2. Same interest or community interest
3. Necessary permission from the court
4. Notice to all the parties
INTERPLEADER SUIT
Representative suit: you have to have interest
A third person should not have any interest in the subject matter. Only if there is either a charge
in the property or a cost, the third person can sue.
EG. Mortgaged property. C (third party) is the bank
To implead means to litigate against each other to settle a point concerning a third party. Two
parties fight over a claim on goods, property, debt, chattel. The plaintiff in such suit does not any
interest in the subject matter of the suit, but institutes this suit only to make sure that the property
in question is put in the custody of actual owner.
As per Halsbery Laws of England, ‘Where a person is under liability in respect of debt or in
respect of any money, goods or chattel and he is or expects to be sued for it or in respect of the
debt or money or those goods and chattels by two or more persons making adverse claims
thereto, he may apply to the court for relief by way of interpleader.’ The main object of filing an
interpleader suit is to get claims of rival defendants adjudicated. It is a process where the plaintiff
calls upon the rival claimants to appear before the court and get their respective claims decided.
Section 88 of CPC is the substantive part, the procedural part is given under Order 35.
8.08.2022
In an interpleader suit, A has some charge over the property, and the property is disputed
between X and Y. A is the plaintiff who files a suit to determine rights.
Essentials of S.88
1. There must be some debt, some money or some property (moveable or
immoveable) in dispute.
2. Two or more persons be claimant adversely to one another.
3. The plaintiff do not have any claim, any interest except the charge or cost and is
ready to pay or deliver it to the right owner.
4. There must be no pending suits in which the rights of parties can be adjudicated
upon.
Order 35:
Collusion: coming together with a mala fide intention.
Rule 3: Defendants suing the plaintiff.
Rule 5: No agent or tenant can sue.
Conditions to be satisfied in an interpleader suit:
1. The plaintiff shall state that he has no interest in the subject matter in dispute other than
charge and the cost. The claims made by the defendants are severally.
2. There is no collusion between the plaintiff and any of the defendant. There cannot be a
joint claim.
Jubil Kishor v. Bhagwan Das AIR 1990 Punjab and Haryana: An agent cannot sue their
principal and any tenant cannot sue their landlord.

____________SYLLABUS FOR CA2______________

ALTERNATIVE DISPUTE RESOLUTION

- Huge pendency of cases
- Recommendation by 29th law commission report of Justice Malimath that there should be
a provision for ADR. Every case should not come to ordinary courts.
- Section 89 of CPC provides for ADR.
- Even a part of the case can be sent to ADR
- It is a voluntary process and if tanahe award is not acceptable, it is not forced.