UNIVERSITY OF LLUCKNOW

TOPIC – CODE OF CIVIL PROCEDURE 1908 -I

UNIT 2

Submitted by
Samarth Saxena
(Research Scholar, Lucknow University)
As part of Course work for Ph.d.

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Topic – UNIT 2
Submitted by
Samarth Saxena
(Research Scholar, Lucknow University)
JURISDICTION
 Jurisdiction – Juris meaning law and dicto meaning to
speak which literally mean I speak by the law.
 Extent of power of the court to entertain to entertain
suits, appeals and applications
 Jurisdiction means power or authority of a court to
enquire into the facts, to apply the law and to
pronounce a judgment and to carry it into execution
with reference to the subject matter, pecuniary value
and local limits.
 A court that has jurisdiction is said to be competent
court.
 Jurisdiction and venue
o Two or more courts may have jurisdiction but
venue will be one
o Ex A car Lucknow, B car - Delhi accident –
Shimla – Jurisdiction – Lucknow, Delhi , Shimla
– Venue can be only one place
 Who grants jurisdiction – Legislature only – it may
grant or curtail jurisdiction. No court can grant
jurisdiction to itself.
 Who determines Jurisdiction –
o It is the court itself who determines the
jurisdiction
o For determination of jurisdiction of a court the
averments made in plaint are material.
o M.S.Hasnuddin v State of Maharashtra AIR 1979
SC 402 - whenever the jurisdiction of the court
 is challenged, the court has inherent jurisdiction
to decide the said question.
o The question is determinable at the
commencement and not at the conclusion of the
enquiry.
 Objection to jurisdiction – at the earliest possible
opportunity
 Consent of parties cannot give or take away
jurisdiction. But if two courts have jurisdiction the
parties can by consent choose one court
 A decree is said to be nullity if it is passed by a court
having no jurisdiction. Hiralal vs kalinath AIR 1962 SC
199 – Inherent lack of jurisdiction as to subject matter
– nullity while lack of territorial and pecuniary
jurisdiction – only technical – it can be waived
 Lack of jurisdiction – court does not have jurisdiction –
renders a decision null and void
 Irregular exercise of jurisdiction – it refers to wrong
decision or judgment- does not necessarily render a
decision nullity. Error can be remedied in appeal or
revision.
 KINDS OF JURISDICTION-
o Territorial – Sec 16 to 20
o Pecuniary jurisdiction – Sec 15 – every suit shall
be instituted in the court of lowest grade
(determined according to The Bengal Agra and
Assam Civil Courts (Extension to Oudh) Act,
1956 )
 CJ (jd) New posting – 1 lakh
 CJ (JD) Permanent – upto 5 lakh
 CJ (SD) – above 5 lakh
 Appeals-
 From order of CJ (JD) – to DJ
  From order of CJ (SD) upto 25lakh –
DJ
 From order of CJ(SD) above 25 lakh
– High court.
o Section 6 – courts will have jurisdiction only over
those suits the amount or value of subject
matter of which does not exceed the pecuniary
limits
PLACE OF SUING

Sec 15 to 20 – regulate the forum of institution of suits

15. Court in which suits to be instituted.-Every suit shall

be instituted in the Court of the lowest grade competent to
try it.

 Rule 15 deals with place of suing as per pecuniary

jurisdiction.
 Court of lowest grade
 Court must be competent
o Competency – with respect to all – subject
matter, territorial and pecuniary.
o Competency is to be determined at the time of
filing of the suit. Subsequent change in the value
does not affect the jurisdiction.
 Exercise of jurisdiction by a court of higher grade than
is competent to try the suit is a mere irregularity
(section 99 of CPC) and the decree passed by the court
is not a nullity - because it provides a rule of
procedure only. It does not oust the jurisdiction of
courts of higher grades.
 Exercise of jurisdiction by a court of lower grade than
is competent to try it, is a nullity as being without
jurisdiction.
  But if valuation is done bonafidely and court comes to
a finding that valuation was low – the court is not
deprived of the jurisdiction- but if plaintiff deliberately
undervalues- order 7 rule 10

 For the purposes of territorial jurisdiction suits may be

divided into three classes
o Suits in respect of immovable or movable
property (sec 16-18)
o Suits in respect of wrong to person or movable
property (Section 19)
o Residuary suits (Sec 20)

16. Suits to be instituted where subject-matter situate.-

Subject to the pecuniary or other limitations prescribed by
any law, suits-
(a) for the recovery of immovable property with or without rent
or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage
of or charge upon immovable property,
(d) for the determination of any other right to or interest in
immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint
or attachment,
shall be instituted in the Court within the local limits of
whose jurisdiction the property is situate:
Provided that a suit to obtain relief respecting, or
compensation for wrong to, immovable property held by or
on behalf of the defendant may, where the relief sought can
be entirely obtained through his personal obedience, be
instituted either in the Court within the local limits of whose
jurisdiction the property is situate, or in the Court within the
local limits of whose jurisdiction the defendant actually and
voluntarily resides, or carries on business, or personally
works for gain.

Explanation .-In this section "property" means property

situate in [India].

 Subject to pecuniary and other limitations

o Pecuniary – sec 15
o Suit under sec 92 must be instituted in principal
court of original jurisdiction
o Sec 120 -sec 16,17,20 do not apply to high
court.
 Sec 16 basically governs a suit in respect of immovable
properties.
 Proviso covers those cases where relief can be obtained
through personal obedience
 What is immovable property – sec 3(26) general clauses
Act
o lands
o benefits to arise of land
o things attached to earth, or permanently
fastened to anything attached to earth
o Suit for mesne profits (clause a)
 What is not covered –
o A suit merely for rent from lessee of immovable
property is not a suit in respect of immovable
property. (clause a – with or without rent allowed
– only rent not allowed)
 Clause d – determination of any other right
o A right to obtain water course through land
o Right of pre-emption
 Clause e – Wrong to immovable property
o Trespass, nuisance
  Clause f – movable property
o Exception to the general principle that movables
follow the person
o Where movable property is attached
 Proviso -

17. Suits for immovable property situate within

jurisdiction of different Courts .-Where a suit is to obtain
relief respecting, or compensation for wrong to, immovable
property situate within the jurisdiction of different Courts,
the suit may be instituted in any Court within the local limits
of whose jurisdiction any portion of the property is situate:
Provided that, in respect of the value of the subject-matter of
the suit, the entire claim is cognizable by such Court.
 Relief respecting immovable property situate within
jurisdiction of different courts
 Compensation for wrong to immovable property situate
within jurisdiction of different courts
 In both above conditions suit can be filed in any court
within local limits of whose jurisdiction any portion of
property is situate provided in respect of the value of
the subject matter of the suit the entire claim is
cognizable by such court.
 Sec 17 is only permissive. It is no bar to bring
successive suits where properties are situate within
different jurisdictions.
 A owner of property- in Nainital, SItapur,Lucknow,
Delhi – A dies – two sons B and C- B can sue for
partition in any court provided in respect of value of
subject matter of the suit the entire claim is
cognizable.
18. Place of institution of suit where local limits of
jurisdiction of Courts are uncertain .-(1) Where it is alleged
to be uncertain within the local limits of the jurisdiction of
which of two or more Courts any immovable property is
situate, any one of those Courts may, if satisfied that there is
ground for the alleged uncertainty, record a statement to
that effect and thereupon proceed to entertain and dispose of
any suit relating to that property, and its decree in the suit
shall have the same effect as if the property were situate
within the local limits of its jurisdiction:
Provided that the suit is one with respect to which the Court
is competent as regards the nature and value of the suit to
exercise jurisdiction.
(2) Where a statement has not been recorded under sub-
section (1), and an objection is taken before an Appellate or
Revisional Court that a decree or order in a suit relating to
such property was made by a Court not having jurisdiction
where the property is situate, the Appellate or Revisional
Court shall not allow the objection unless in its opinion there
was, at the time of the institution of the suit, no reasonable
ground for uncertainty as to the Court having jurisdiction
with respect thereto and there has been a consequent failure
of justice.

19. Suits for compensation for wrongs to person or

movables.-Where a suit is for compensation for wrong done
to the person or to movable property, if the wrong was done
within the local limits of the jurisdiction of one Court and the
defendant resides, or carries on business, or personally
works for gain, within the local limits of the jurisdiction of
another Court, the suit may be instituted at the option of the
plaintiff in either of the said Courts.
  A residing in Delhi, beats B in Calcutta. B may sue A
either in Calcutta or in Delhi
 A, residing in Delhi, publishes in Calcutta statements
defamatory of B, B may sue either in Calcutta or in
Delhi.
20. Other suits to be instituted where defendants reside
or cause of, action arises .-Subject to the limitations
aforesaid, every suit shall be instituted in a Court within the
local limits of whose jurisdiction-
(a) the defendant, or each of the defendants where there are
more than one, at the time of the commencement of the suit,
actually and voluntarily resides, or carries on business, or
personally works for gain; or
(b) any of the defendants, where there are more than one, at
the time of the commencement of the suit, actually and
voluntarily resides, or carries on business, or personally
works for gain, provided that in such case either the leave of
the Court is given, or the defendants who do not reside, or
carry on business, or personally work for gain, as aforesaid,
acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.

[ Explanation ].-A corporation shall be deemed to carry on

business at its sole or principal office in [India] or, in respect
of any cause of action arising at any place where it has also a
subordinate office, at such place.
(a) A is a tradesman in Calcutta, B carries on business in
Delhi. B, by his agent in Calcutta, buys goods of A and
requests A to deliver them to the East Indian Railway
Company. A delivers the goods accordingly in Calcutta. A
may sue B for the price of the goods either in Calcutta, where
the cause of action has arisen or in Delhi, where B carries on
business.

(b) A resides at Simla, B at Calcutta and C at Delhi A, B and

C being together at Benaras, B and C make a joint
promissory note payable on demand, and deliver it to A. A
may sue B and C at Benaras, where the cause of action
arose. He may also sue them at Calcutta, where B resides, or
at Delhi, where C resides; but in each of these cases, if the
non-resident defendant object, the suit cannot proceed
without the leave of the Court.

 Three things are covered –

o Each of the defendant

o Any of the defendant

o Cause of action arises

 Union of India vs Laulal Jain- Defendant should not be

put to the trouble and expense of travelling long
distance to defend himself.

 Cause of action- Cause of action means every fact

which it is necessary for the plaintiff to prove, if
traversed, in order to entitle him to decree the
suit.(read vs brown)

 Where the suit relates to both movable and immovable

property the court has no jurisdiction to entertain it if
the immovable property is wholly outside its
jurisdiction.

 A suit for infringement of copyright or trademark lies

at the place where the defendant resides or the
infringement has taken place.

 Where place is fixed for payment of debt the court of

that place will have jurisdiction. Otherwise a suit to
recover the money borrowed may be brought at the
place where the defendant resides.
 21. Objections to jurisdiction .- (1)] No objection as to the
place of suing shall be allowed by any Appellate or Revisional
Court unless such objection was taken in the Court of first
instance at the earliest possible opportunity and in all cases
where issues are settled, at or before such settlement, and
unless there has been a consequent failure of justice.
(2) No objection as to the competence of a Court with
reference to the pecuniary limits of its jurisdiction shall be
allowed by any Appellate or Revisional Court unless such
objection was taken in the Court of first instance at the
earliest possible opportunity, and, in all cases where issues
are settled, at or before such settlement, and unless there
has been a consequent failure of justice.
(3) No objection as to the competence of the executing Court
with reference to the local limits of its jurisdiction shall be
allowed by any Appellate or Revisional Court unless such
objection was taken in the executing Court at the earliest
possible opportunity, and unless there has been a
consequent failure of justice.
 Three conditions
o The objection must have been taken in the court
of first instance.
o It was taken at the earliest possible opportunity
and in cases where issues are settled, at or
before settlement of issues.
o There has been consequent failure of justice.
 All these three conditions must coexist
PARTIES TO SUITS

 Order 1 deals with parties to the suit. Plaintiff and

defendants are called parties to the suit. It contains
following provisions
o Joinder, misjoinder and non- joinder of parties
 o Addition, deletion and substitution of parties
o Representative suit
 Necessary party – If suit cannot be effectively
disposed of without him i.e. no order can be effectively
made. Non joinder of necessary party – suit is liable to
be dismissed. In a suit for eviction – not making tenant
a party – who will vacate?
 Proper party – whose presence enables the court to
adjudicate the matter more effectively and completely.
In case of non joinder – suit is not dismissed. Ex
 Misjoinder – where a person who is not a necessary or
proper party, has been made a party to the suit
 Non-joinder – Where a person who is necessary or
proper party to a suit has not been joined as a party to
the suit.
9. Misjoinder and nonjoinder. - No suit shall be defeated by
reason of the misjoinder or nonjoinder of parties, and the
Court may in every suit deal with the matter in controversy
so far as regards the rights and interests of the parties
actually before it:
Provided that nothing in this rule shall apply to nonjoinder of
a necessary party.
 Misjoinder – joining contrary to the provisions
o Misjoinder is not fatal to the suit
o Where there is misjoinder the court has power
inder o1 r 10 to strike out the name
 Non joinder – non joining necessary party
o Non joinder of necessary party – court will give
opportunity to the plaintiff to add necessary
party- if still not done – dismissal
o Non joinder of proper party- not fatal to the suit.

JOINDER OF PARTIES
 JOINDER OF PLAINTIFFS
Rule 1 - Who may be joined as plaintiffs. - All persons may
be joined in one suit as plaintiffs where-
(a) any right to relief in respect of, or arising out of, the
same act or transaction or series of acts or transactions is
alleged to exist in such persons, whether jointly, severally or
in the alternative; and
(b) if such persons brought separate suits, any common
question of law or fact would arise.
 Three conditions must coexist-
o When the right o relief is alleged to exist in each
plaintiff whether jointly, severally or in the
alternative.
o The right to relief arise out of same the same act
or transaction or series of acts or transactions
o If such persons brought separate suits, any
common question of law or fact would arise.
 For several plaintiffs to join in one suit it is not
necessary that their cause of action should be
identical.
 Right to relief- same act or transaction or series of acts
or transactions - jointly, severally or in the alternative
o Right to relief- a person who has no right to
relief can not be added as plaintiff- I am not a
student of LU now – I can not be joined as
plaintiff in a case to postpone exams
o Same Act- Different persons having different
lands- Land acquisition – Same Act- may be
joined as plaintiff.
o Jointly – single and indivisible right – joint
owners of property
o Severally – individual rights – affected by same
transaction.
 o Alternative – Either A or B entitled to relief- A
widow- B adopted son of deceased- sues C for
recovery of debt- objection on adoption deed-
both may be joined as plaintiff saying if deed is
proved B must get if not proved A must get.
 Common question of law or fact
o Ex- A, a publishing house uses words ILI and
DU in its name- Both ILI and DU have different
cause of action- But they may be joined as
plaintiffs.- common question whether use of
such words is prohibited
 It is not necessary that every plaintiff should be
interested in the entire subject matter.
Rule 2. Power of Court to order separate trial. - Where it
appears to the Court that any joinder of plaintiffs may
embarrass or delay the trial of the suit, the Court may put
the plaintiffs to their election or order separate trials or make
such other order as may be expedient.
 Applicable only in those cases where plaintiffs are
properly joined under rule 1 and does not apply in
case of misjoinder .
 Embarras
 Delay
 May put the plaintiffs to their election
 Order separate trials

JOINDER OF DEFENDANTS
 RULE 3 and Rule 3A
 Multifariousness – Misjoinder of defendants and cause
of action in a suit is called multifariousness. It takes
place where in a suit there are two or more defendants
and two or more causes of action, but different causes
 of action have been joined against different defendants
separately.
 Joinder of defendants in case of doubt – rule 7

Rule 4. Court may give judgment for or against one or

more of joint parties. - Judgment may be given without any
amendment-
(a) for such one or more of the plaintiffs as may be found to
be entitled to relief, for such relief as he or they may be
entitled to;
(b) against such one or more of the defendants as may be
found to be liable, according to their respective liabilities.
 Judgment need not be in favour of/ against all the
plaintiffs or in favour of /against all the defendants.
6. Joinder of parties liable on same contract. - The
plaintiff may, at his option, join as parties to the same suit
all or any of the persons severally, or jointly and severely,
liable on any one contract, including parties to bills of
exchange, hundis and promissory notes
 If two or more persons are severally and jointly and
severally liable then plaintiff has option to make them
party in the same suit
 A is liable to b . A dies liability survives to his sons
C,D,E. CDE are jointly liable.
 A and B jointly make a promise to pay C. liability is
several.
Representative suit
 Object – It saves time and expense
Rule 8. One person may sue or defend on behalf of all in
same interest. - (1) Where there are numerous persons
having the same interest in one suit,-
(a) one or more of such persons may, with the permission of
the Court, sue or be sued, or may defend such suit, on
behalf of, or for the benefit of, all persons so interested;
(b) the Court may direct that one or more of such persons
may sue or be sued, or may defend such suit, on behalf of, or
for the benefit of, all persons so interested.
(2) The Court shall, in every case where a permission or
direction is given under sub-rule (1), at the plaintiff's
expense, give notice of the institution of the suit to all
persons so interested either by personal service, or, where,
by reason of the number of persons or any other cause, such
service is not reasonably practicable, by public
advertisement, as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit
is instituted or defended, under sub-rule (1), may apply to
the Court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned
under sub-rule (1), and no such suit shall be withdrawn
under sub-rule (3), of rule 1 of Order XXIII, and no
agreement, compromise or satisfaction shall be recorded in
any such suit under rule 3 of that Order, unless the Court
has given, at the plaintiff's expense, notice to all persons so
interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit
does not proceed with due diligence in the suit or defence,
the Court may substitute in his place any other person
having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding
on all persons on whose behalf, or for whose benefit, the suit
is instituted, or defended, as the case may be.
Explanation.-For the purpose of determining whether the
persons who sue or are sued, or defend, have the same
interest in one suit, it is not necessary to establish that such
persons have the same cause of action as the person on
whom behalf, or for whose benefit, they sue or are sued, or
defend the suit, as the case may be.
 Essentials -
o The parties must be numerous
 Clubs and bodies or associations
 Suit by creditors to set aside a transfer of
immovable property as fraudulent.
 Individual tax payers can sue for
injunction restraining municipality from
misapplying the funds.
o They must have same interest in the suit.
 Explanation provides that for the purpose
of determining whether the person who
sue or defend have the same interest, it is
not necessary to establish that such
persons have same cause of action as the
persons on whose behalf they sue or
defend.
o The courts permission under the rule must be
obtained.
o Notice must be given in the parties whom it is
proposed to represent in the suit
 Exception to the general rule that all persons
interested in the suit ought to be made a party.
 Explanation 6 of sec 11 applies here- all persons are
deemed to be claiming under.
 The rule is only an enabling provision – it does not
compel any one to represent many.
 Court may itself give direction that one or more
persons may sue or defend on behalf of or for benefit of
all persons
  Where permission is given under clause 1 – at
plaintiff’s expense – give notice of institution of suit to
all persons so interested – personal service or where
personal service not feasible through public
advertisement.
 Person on whose behalf suit is filed or defended may
apply the court to be made a party.
 Compromise of suit – not allowed unless notice to all
the persons interested.

Situation when a person who is not a necessary party be

allowed to give opinion.
8A. Power of Court to permit a person or body of persons
to present opinion or to take part in the proceedings.-
While trying a suit, the Court may, if satisfied that a person
or body of persons is interested in any question of law which
is directly and substantially in issue in the suit and that it is
necessary in the public interest to allow that person or body
of persons to present his or its opinion on that question of
law, permit that person or body of persons to present such
opinion and to take part in the proceedings of the suit as the
Court may specify.

Striking out adding or substituting parties

10. Suit in name of wrong plaintiff. - (1) Where a suit has

been instituted in the name of the wrong person as plaintiff
or where it is doubtful whether it has been instituted in the
name of the right plaintiff, the Court may at any stage of the
suit, if satisfied that the suit has been instituted thought a
bona fide mistake, and that it is necessary for the
determination of the real matter in dispute so to do, order
any other person to be substituted or added as plaintiff upon
such terms as the Court thinks just.
(2) Court may stirke out or add parties.-The Court may at
any stage of the proceedings, either upon or without the
application of either party, and on such terms as may appear
to the Court to be just, order that the name of any party
improperly joined, whether as plaintiff or defendant, be
struck out, and that the name, of any person who ought to
have been joined, whether as plaintiff or defendant, or whose
presence before the Court may be necessary in order to
enable the Court effectually and completely to adjudicate
upon and settle all the questions involved in the suit, be
added.
(3) No person shall be added as a plaintiff suing without a
next friend or as the next friend of a plaintiff under any
disability without his consent.
(4)Where defendant added, plaint to be amended.-Where a
defendant is added, the plaint shall, unless the Court
otherwise directs, be amended in such manner as may be
necessary, and amended copies of the summons and of the
plaint shall be served on the new defendant and, if the Court
thinks fit, on the original defendant.
(5) Subject to the provisions of the [Indian Limitation Act,
1877 (15 of 1877)], section 22, the proceedings as against
any person added as defendant shall be deemed to have
begun only on the service of the summons.
 Different from substitution – order 23- in case of death
 Conditions for applicability –
o Suit must have been instituted in the name of
the wrong person.
o The action was commenced in name of original
plaintiff by a bona fide mistake - A, a agent of B
files suit in his name by a bonafie mistake.
 o Addition is necessary for the the determination
of real matter in dispute.
 At any stage of the suit.
 Ought to have been joined – necessary party- A sues B
for rent
 Without whose presence – Proper party.
 Under rule 2 court has power to transpose a defendant
13. Objections as to nonjoinder or misjoinder. - All
objections on the ground of non-joinder or misjoinder of
parties shall be taken at the earliest possible opportunity
and, in all cases where issue are settled, at or before such
settlement, unless the ground of objection has subsequently
arisen, and any such objection not so taken shall be deemed
to have been waived.

FRAME OF SUIT

 Order 2 deals with frame of suit.

Rule1. Frame of suit. - Every suit shall as far as

practicable be framed so as to afford ground for final
decision upon the subjects in dispute and to prevent
further litigation concerning them

 Object – all matters in dispute between the parties and

relating to the same transaction should, as far as

possible be disposed of in the same suit.

 Basic principle enshrined is that frame of suit should

be such that as to prevent further litigation.

Rule 2. Suit to include the whole claim. - (1) Every suit

shall include the whole of the claim which the plaintiff is
entitled to make in respect of the cause of action; but a
plaintiff may relinquish any portion of his claim in order to
bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.-Where a plaintiff omits
to sue in respect of, or intentionally relinquishes, any portion
of his claim he shall not afterwards sue in respect of the
portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.-A person
entitled to more than one relief in respect of the same cause
of action may sue for all or any of such reliefs; but if he
omits, except with the leave of the Court, to sue for all such
reliefs, he shall not afterwards sue for any relief so omitted.

Explanation.-For the purposes of this rule an obligation and

a collateral security for its performance and successive
claims arising under the same obligation shall be deemed
respectively to constitute but one cause of action.

Illustration
A lets a house to B at a yearly of rent Rs. 1200. The rent for
the whole of the years 1905, 1906 and 1907 is due and
unpaid. A sues B in 1908 only for the rent due for 1906. A
shall not afterwards sue B for the rent due for 1905 or 1907.

 Based on the principle that defendant should not be

twice vexed for the same cause of action. (similar to res
judicata)
 Merely deprives claimants of his remedy and does not
vest any right in any of the defendants.
 The object of the rule is clearly to avoid ‘splitting up of
claims or reliefs’ and to prevent multiplicity of suits.
 Conditions for applicability –
o Previous and present suit must arise of the same
cause of action.
o They must be between same parties.
 o The earlier suit must have been decided on
merits.
 Suit to include whole of the claim in respect of cause of
action- and rule 3 – contradiction-
o Rule 1 – whole of the claim
o Rule 3 – where plaintiff is entitled to several
reliefs he may sue for one or more of such reliefs
and reserve right with the leave of the court to
sue later on such reliefs.
o Ex – A entitled to recover 10000 from B
personally and also entitled to recover such
amount from B’s property. A sues B for 5000 –
later brings a fresh suit for remaining 5000 this
he can not do as he is barred by rule 1 – whole
claim
o Now A sues for 10000 personally from B after
taking leave to reserve his right for charging
property- B can not pay – now A has right to sue
again for property – difference lies in the word
Claim and remedy
 Cause of Action-
o Same – Not only the facts which would entitle
the plaintiff to the right claimed must be the
same but also the infringement of his right by
the hand of the defendant must have arisen in
substance out of same transaction.
o Explanation.-For the purposes of this rule an
obligation and a collateral security for its
performance and successive claims arising
under the same obligation shall be deemed
respectively to constitute but one cause of
action.
 o A lets a house to B at a yearly of rent Rs. 1200.
The rent for the whole of the years 1905, 1906
and 1907 is due and unpaid. A sues B in 1908
only for the rent due for 1906. A shall not
afterwards sue B for the rent due for 1905 or
1907.
 Omission to sue in respect of portion of claim- Bar
 Omission to sue for all reliefs- if leave of the court – no
bar otherwise bar
 Exceptions-
o Rule 2 does not apply to execution proceedings
o Failure to claim set off is no bar to a subsequent
suit.
o Rule 2 applies only to suits and not appeals.
 Difference with constructive res judicata –
o Explanation 4 says that all grounds of attack or
defence which ought and might be taken
o O2r2 – requires plaintiff to claim all reliefs
emanating from the same cause of action

Rule 3.Joinder of causes of action. - (1) Save as otherwise

provided, a plaintiff may unite in the same suit several
causes of action against the same defendant, or the same
defendants jointly; and any plaintiffs having causes of action
in which they are jointly interested against the same
defendant or the same defendants jointly may unite such
causes of action in the same suit.
(2) Where causes of action are united, the jurisdiction of the
Court as regards the suit shall depend on the amount or
value of the aggregate subject-matters at the date of
instituting the suit.
Rule 4. Only certain claims to be joined for recovery of
immovable property. - No cause of action shall, unless with
the leave of the Court, be joined with a suit for the recovery
of immovable property, except-
(a) claims for mesne profits or arrears of rent in respect of
the property claimed or any part thereof;
(b) claims for damages for breach of any contract under
which the property or any part thereof is held; and
(c) claims in which the relief sought is based on the same
cause of action:
Provided that nothing in this rule shall be deemed to prevent
any party in a suit for foreclosure or redemption from asking
to be put into possession of the mortgaged property.
Rule.6. Power of Court to separate trials. - Where it
appears to the Court that the joinder of causes of action in
one suit may embarrass or delay the trial or is otherwise
inconvenient, the Court may order separate trials or make
such other order as may be expedient in the interests of
justice.]
Rule 7. Objections as to misjoinder. - All objections on the
ground of misjoinder of causes of action shall be taken at the
earliest possible opportunity and, in all cases where issues
are settled, at or before such settlement unless the ground of
objection has subsequently arisen, and any such objection to
so taken shall be deemed to have been waived.
 PLEADINGS

 Order 6 deals with pleadings– it gives general

principles.
 Object of pleading – Ganesh trading company vs Moji
ram (SC) – Pleadings in civil cases are meant to give
side intimation of the case to the other so that it may
be met, to enable courts to determine what is really at
issue between the parties.
 Rule 1 - Pleading. - "Pleading", shall mean plaint or
written statement –
o any affidavit filed afterwards will not be a
pleading
o Any application filed is not a pleading – ex
application to file as an indigent person
o Examination on affidavit is not a pleading.
o Under order 8 rule 9 subsequent pleadings can
be given with the permission of the court.
 Every pleading must state affirmatively the material
facts as the basis of claim or defence, but not the
evidence by which they are to be proved.
 All necessary particulars must be stated in the
pleading. The object is to prevent surprise at trial, by
informing the opposite party what case he has to meet
and to define and narrow the issues to be tried. – this
is the reason for the principle that what has not been
pleaded cannot be argued before the courts.
 Condition precedent, the performance of which is
intended to be contested shall be distinctly specified.
 Rule of departure – Rule 7 – No pleading shall, except
by way of amendment, raise any new ground of claim
or contain any allegation of fact inconsistent with the
previous pleadings of the party pleading the same.
 o This rule applies to subsequent pleadings.- new
ground can be claimed only through amendment
and not through subsequent pleadings.
 A bare denial of contract alleged by opposite party is
not to be constituted as a denial of legality or
sufficiency in law of such contract.
 Presumption of law need not be specifically pleaded
unless specifically denied by other party.
 Every pleading should be signed by the party and his
pleader.
 Verification of pleadings –
o Every pleading should be verified at the foot
thereof by the party or by some other person
acquainted with the facts of the case. –
o non verification is a mere irregularity and
rectified under sec 99.
o False verification – sec 191 to 193 IPC.
 o
 Every pleading must be accompanied by a signed
statement indicating the address of the party. –
registered address.
 Striking out pleadings by court –
o At any stage
o Court may
o Strike out any matter contained in it –
unnecessary, frivolous, vexacious
 Amendment of pleadings
17. Amendment of pleadings. - The Court may at any stage
of the proceedings allow either party to alter or amend his
pleadings in such manner and on such terms as may be just,
and all such amendments shall be made as may be
necessary for the purpose of determining the real questions
in controversy between the parties:

Provided that no application for amendment shall be allowed

after the trial has commenced, unless the Court comes to the
conclusion that in spite of due diligence, the party could not
have raised the matter before the commencement of trial

o General law is that the parties cannot argue beyond

their pleadings- whatever is not written cannot be
argued. However owing to human ignorance and
mistake the provision for amendment of pleadings have
been incorporated.
o Object –
o Crooper vs. Smith – object of the court is to decide the
right of the parties and not to punish them for the
mistake in the conduct of their cases.
o Rajesh Kumar aggarwal vs K.K.Modi (SC) –
o The object of order 6 rule 17 is that the courts
should try the merits of the case that come
before them
o The courts should allow the amendments that
may be necessary for determining the real
question in controversy provided that it does not
cause injustice to the other side.
o The amendment of pleadings should be normally
allowed since procedural obstacles ought not to
impede the dispensation of justice.
 o The court always gives leave to amend the
pleadings unless it is satisfied that the party
applying was acting malafide.
o Leave to amend when given-
o At any stage –
 Application may be moved at any stage of
the proceeding
 Proviso- no application to be allowed after
trial has commenced unless court comes
to conclusion that in spite of due diligence
the party could not have raised the matter
before commencement of trial
o If amendment is necessary for purpose of
determining the real question in controversy-
general principal is amendment of pleadings
should be allowed. – real controversy test
 Rajesh Kumar Agarwal vs K.K.Modi – All
amendments of the pleadings shall be
allowed which are necessary for
determination of the real controversies in
the suit provided the proposed amendment
does not alter or substitute a new cause of
action.
o If the amendment does not cause injustice to the
other side.
o If the amendment sub serves the ultimate cause
of justice and avoids further litigation.
o Leave to amend when refused –
o Where amendment is not necessary for purpose
of determining the real question sin controversy
o Where the plaintiff’s suit would be wholly
displaced by the proposed amendment.
 o If the effect of amendment will be to take away
from the defendant a legal right which has
accrued to him by lapse of time.
o New and inconsistent case
o If anything is admitted in pleading it cannot be
amended.
o Not made in good faith.
o
o Constitutional validity – Salem Advocate bar
association II vs union of India (SC)
o 18. Failure to amend after order. - If a party who has
obtained an order for leave to amend does not amend
accordingly within the time limited for that purpose by
the order, or if no time is thereby limited then within
fourteen days from the date of the order, he shall not
be permitted to amend after the expiration of such
limited time as aforesaid or of such fourteen days, as
the case may be, unless the time is extended by the
Court.
Appearance and non appearance of parties

 Law of procedure is based on the basic principle that

each party to proceedings should get equal opportunity
of being heard and also each party gets opportunity to
put forth his case.
 Keeping this principle, code in order 9 provides for
appearance of parties in a suit and consequences of
non appearance.
 It also provides for remedies for setting aside an order
of dismissal of the suit as also the setting aside of an
exparte decree passed against the defendant.
 Rule 1 - On the day fixed in the summons- the parties
shall be in attendance in person or by their respective
pleaders- the suit shall then be heard unless the
hearing is adjourned to a future day fixed by the Court.
 DISMISSAL OF SUIT –
o Rule 2 – The suit may be dismissed
 Where the summons is not served upon
the defendant in consequence of the
plaintiff’s failure to pay costs for service of
summons –
  Failure to present copies of the plaint
(O7r9) – order 7 rule 11 attracted – decree
 REMEDY– rule 4
 Plaintiff may bring fresh suit or
 may apply for an order to set the
dismissal aside – he has to satisfy
the court that there was sufficient
cause for such failure.
o Rule 3 – When neither party appears when the
suit is called on for hearing, the court may make
an order that the suit may be dismissed.
 Remedy – rule 4 –
 Fresh suit
 may apply for an order to set the
dismissal aside – he has to satisfy
the court that there was sufficient
cause for his non appearance.

o Rule 5 – When the summons is issued on the

defendant and has been returned unserved and
the plaintiff fails for a period of 7 days to apply
to the court for issue of fresh summons ( shall is
used in bare so mandatory) unless the plaintiff
has within the said period satisfied the Court
that-
(a) he has failed after using his best
endeavours to discover the residence of the
defendant, who has not been served, or
(b) such defendant is avoiding service of
process, or
(c) there is any other sufficient cause for
extending the time, in which case the Court
 may extend the time for making such
application for such period as it thinks fit.
 Remedy – Fresh suit.
Procedure when only plaintiff appears - Exparte
decree
Ex parte – Sangram Singh vs Election tribunal (SC)
 Ex parte proceedings do not mean that defendant
cannot be allowed to appear at all in the
subsequent proceedings of the suit. It only related
to the particular day of of hearing on which the
defendant remains absent.

 Rule 6 - Where the plaintiff appears and the defendant

does not appear when the suit is called on for hearing,
then-
o If it is proved that the summons was duly
served, the Court may make an order that the
suit shall be heard ex parte.
o If it is not proved that the summons was duly
serve, the Court shall direct a second summons
to be issued and served on the defendant;
o If it is proved that the summons was served on
the defendant, but not in sufficient time to
enable him to appear and answer on the day
fixed in the summons, the Court shall postpone
the hearing of the suit to future day to be fixed
by the Court, and shall direct notice of such day
to be given to the defendant.
 Rule 7 - Where the Court has adjourned the hearing of
the suit ex-parte and the defendant, at or before such
hearing, appears and assigns good cause for his
previous non-appearance, he may, upon such terms as
the Court directs as to costs or otherwise, be heard in
 answer to the suit as if he had appeared on the day,
fixed for his appearance. – reverting back the cloak
 Where there are two or more plaintiffs and one or more
of them appear and others do not appear the court
may permit the suit to proceed as if all the plaintiffs
had appeared.
 Where there are more defendants than one, and one or
more of them appear, and the others do not appear,
the suit shall proceed, and the Court shall, at the time
of pronouncing judgment, make such order as it
thinks fit with respect to the defendants who do not
appear.
 Remedies against exparte decree –
o Application for setting aside the exparte decree –
o Rule 13 -
 Defendant may apply to the court by
which decree was passed for an order to
set aside
 He has to satisfy the court that
 Summons were not duly served
 He was prevented by any sufficient
cause from appearing
 The court shall make an order setting
aside the decree
 If the decree is of such a nature that it
cannot be set aside as against such
defendant only it may be set aside as
against all or any of the defendants.
 no Court shall set aside a decree passed ex
parte merely on the ground that there has
been an irregularity in the service of
summons, if it is satisfied that the
defendant had notice of the date of hearing
 and had sufficient time to appear and
answer the plaintiff's claim]
 Explanation.-Where there has been an
appeal against a decree passed ex parte
under this rule, and the appeal has been
disposed of any ground other than the
ground that the appellant has withdrawn
the appeal, no application shall lie under
this rule for setting aside that ex parte
decree.
 No decree shall be set aside on any such
application unless notice has been served
on the opposite party
 Limitation is 30 days from date of passing
the decree
 Effect of setting aside is suit commences
de novo and the evidence that has been
recorded is not taken into account.
o Appeal against ex parte decree – sec 96 – even if
o9r13 application is dismissed sec 96 appeal can
be done- however if appeal is dismissed then 9
13 can not be made.
o Another suit to set aside decree if earlier decree
was obtained by fraud.
o Rejection of order 9 rule 13 – order 43
appealable
o Allowing o9r 13 – revision.
Procedure where only defendant appears –
 Where the defendant appears and the plaintiff does
not appear when the suit is called on for hearing, the
Court shall make an order that the suit be dismissed,
unless the defendant admits the claim or part thereof,
in which case the Court shall pass a decree against
 the defendant upon such admission, and, where part
only of the claim has been admitted, shall dismiss the
suit so far as it relates to the remainder.
 Rule 9 -Where a suit is wholly or partly dismissed
under rule 8, the plaintiff shall be precluded from
bringing a fresh suit in respect of the same cause of
action. But he may apply for an order to set the
dismissal aside, and if he satisfies the Court that
there was sufficient cause for his non-appearance
when the suit was called on for hearing, the Court
shall make an order setting aside the dismissal upon
such terms as to costs or otherwise as it thinks fit.
and shall appoint a day for proceeding with suit.
o Lakshmi commercial bank vs Hans raj – the
term sufficient cause must be liberally
construed.
o Difference b/t rule 4 and rule 9 –
 rule 4 does not bars fresh suit whereas
rule 9 bars
 no need of notice under rule 4, notice is
required under rule 9
 rule 4 – technicalities dismissal , rule 9
default of plaintiff
 No order shall be made under this rule unless notice
of the application has been served on the opposite
party.
 Where a plaintiff or defendant, who has been ordered
to appear in person, does not appear in person, or
show sufficient cause to the satisfaction of the Court
for failing so to appear, he shall be subject to all the
provisions of the foregoing rules applicable to
plaintiffs and defendants, respectively who do no
appear.
Submitted by
Samarth Saxena
(Research Scholar, Lucknow University)

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