Unit C

Introduction: What is Judgement and Decree?

The word ‘judgement’ is derived after combining two words namely, judge and statement. It can
also be termed as an act of judging. It is the conclusion or the result of judging. On the other
hand, the term decree can be termed as the judicial decision in a litigated cause rendered by a
Court of equity. It is the determination of a cause in a Court of admiralty or Court of probate.
The Court, after the case has been heard, shall pronounce judgement, and on such judgement a
decree shall follow. Section 33 of the Code of Civil Procedure describes the term ‘Judgement
and Decree’ together.

JUDGMENT
The term Judgement is defined in Section 2(9) of the Code of Civil Procedure, 1908. A
judgement contains facts of the case, the issues involved, the evidence brought by the parties,
finding on issues (based on evidence and arguments). Every judgement shall include a summary
of the pleadings, issues, finding on each issue, ratio decidendi and the relief granted by the court.
On a daily basis, numerous judgements are pronounced and various cases are disposed of.
Judgements play a very important role in the working of our judicial system because they act as
precedents for cases to come in the near future. A judge in the judgement pronounced, always
states the reasons for such a decision.

Essentials of judgment: A judgment should possess the essentials of the case, reasoning and basic
contention on which it is delivered or the grounds of the decision. Judgments of other Courts shall
contain

 Summary of the pleadings which is a concise statement of the case

 Issues which are the points for determination
 Findings on each issue and the decision thereon
 Ratio decidendi (reasons for such a decision)
 The remedy, which is the relief granted

Pronouncement of a judgement

The word pronouncement means to make an official public announcement. Pronouncement of a

judgement means that after the hearing is completed i.e., after the Court has heard the pleadings
of the parties, the judgement shall be announced by the Judges in an open Court, either at once or
at some future day, after providing due notice to the parties or their learned counsels.

If a judgement is not pronounced immediately then it must be pronounced within 30 days from
the date of the conclusion of hearing. However, sometimes it so happens that due to exceptional
and some extraordinary reasons like a bank holiday, strike or some other situation it may be
delivered within 60 days from the conclusion of the hearing. It is not mandatory for a judge to
read out the whole judgement and it would be enough if only the final order is pronounced. The
judge shall put the date on which the judgement was pronounced along with his signature.

After the Amendment Act of 1976, the time limit was provided between the hearing of the
arguments and the pronouncement of the judgement. Prior to this amendment no time limit was
provided as such.

Copy of the judgment:

Copies of judgment shall be made available to the parties immediately after the pronouncement
of the judgment for preferring an appeal on payment of such charges as may be specified by the
High Court.

Alteration of a judgement

Once a judgement is dated and signed by the judge it can only be altered or amended if:

 There are arithmetical or clerical errors. (clerical errors refer to the errors made by clerks
and arithmetical errors refer to errors made in numbers such as addition, subtraction,
multiplication and division).
 There are errors due to accidental slips or omissions (these errors take place when some
essential element is left unnoticed) (Section 152)

DECREE
The term decree is defined in Section 2(2) of Code of Civil Procedure, 1908. A decree always
follows judgement and is based upon a judgement. It is divided into five types unlike judgement
which is final in itself. A decree may be final or preliminary. It is a formal declaration or
adjudication and is conclusive in nature. A decree is of three kinds namely, preliminary decree,
final decree and partly preliminary & partly final. A decree may be delivered with an order. The
decree contains the outcome of the suit and conclusively determines the rights of the parties with
regard to the issues in dispute in the suit. After passing the decree, the suit stands disposed of
since the rights of the parties are finally determined by the court.

Essentials of decree

 Formal expression: There must be a formal expression of such adjudication. All the
requirements of form must be complied with. The formal expression must be deliberate
and given in manner provided by law. The decree follows the judgment and must be
drawn up separately. If a decree has not been drawn up, then there is absolutely no scope
of an appeal from the judgment i.e., No appeal lies against the judgment, if decree is not
formally drawn the upon the judgment.

 Adjudication: It means determination of the matter in dispute. Hence, if the decision is of

administrative in nature, then it cannot be considered as decree. The adjudication must be
about any matters in controversy in the suit. The court should resolve the matter of
controversy through its own, by applying the facts and circumstances of the case therein.

 Suit: The expression "suit" is not defined in code. The adjudication must have been given
in a suit, which is commenced by filing a plaint in a civil court. without a civil suit there
lies no decree. However, there are several specific provisions which enable certain
applications to be treated as suits such as proceedings under Indian Succession act, Hindu
Marriage Act, the land Acquisition Act etc. They are regarded as statutory suits and the
decision given thereunder are decrees.

 Rights of the parties in Controversy: The adjudication must have determined the rights of
the parties with regard to all or any of the matter in controversy. The word "right" means
Substantive rights and not merely procedural rights. Similarly, the parties the rights in
controversy should be the plaintiffs and defendants and, if any order is passed upon the
application made by a third party who is a stranger to suit then it is not a decree.

 Conclusive Determination: Such determination must be of a conclusive nature. In other

words, determination must be final and conclusive as regards the court which passes it.
Thus, an interlocutory order, which does not decide the rights of the parties finally, it not
a decree. On the other hand, an order may determine conclusively the rights of the parties
although it may not dispose of the suit.
Kinds of Decrees

According to Section 2(2) of the Code of Civil Procedure,1908 decrees are divided into three
categories:

 Preliminary Decree

In general sense, the word preliminary means preparation for the main matter, initial,
introductory, preparatory. In a legal sense, a preliminary decree is a decree where further
proceedings have to take place before the suit can be completely disposed off. It decides the
rights of the parties in respect to all or any of the matters of discussion but it does not completely
dispose of the suit. In such a decree the rights and liabilities of the parties are stated leaving the
actual result or decision to be worked out in future proceedings. A preliminary decree is passed
in those cases where the proceedings are to be carried out in two different stages. The first stage
is when the rights of the parties are adjudicated and the second stage is when those rights are
implemented or executed.

 Final Decree

In general sense, the word ‘final’ means last, ultimate, conclusive or decisive. In legal sense, a
final decree is a decree which completely disposes of the suit and settles all the questions in
discussion between the parties and nothing is left further for deciding thereafter. It is only said to
be final when such adjudication completely disposes of the suit.

 Partly preliminary and partly final Decree

A decree is said to be partly preliminary and partly final when the court decides two questions by
the same decree. For instance, if the court passes a decree in favour of one party along with a
direction of inquiry for the other party, the former part of the decree is final while the latter part
is a preliminary decree for which further proceedings have to take place. For example, in a suit
of possession of a property with company ‘C’, if the court passes a decree of possession of the
property in favour of the plaintiff and directs an enquiry into the company ‘C’, then the former
part of the decree is final decree while the latter part is the preliminary decree.

The necessity of a Decree

The Code of Civil Procedure requires the passing of a decree in all the suits. A decree is based
upon judgement and it also follows a judgement which is the reason why it is an indispensable
and essential requisite. The decree is indispensable or an absolute requisite. It is an essential part
of the ultimate outcome of the suit. An appeal can be made against a decree and not against a
judgement. If the decree is absent an appeal cannot be ‘put in motion’.
Contents of a Decree

A decree always follows the judgement, coincide with it and contains:

 The suit’s number

 The names, description and registered addresses of the parties
 The particulars of the parties claims or defence
 The relief or the remedy granted to the aggrieved party
 The total amount of cost incurred in the suit
-by whom; or
-out of what property; and
-in what portions are they paid or are to be paid.
 The judgement’s date of pronouncement or delivery date of the judgement
 The judge’s signature on the decree

Difference between Judgement and Decree

Judgement Decree

A judgement is based upon facts. A decree is based upon judgement.

Judgment is made prior to decree. Decree always follows a judgement.

A judgement contains facts of the case, the issues

A decree contains the outcome of the suit and
involved, the evidence brought by the parties,
conclusively determines the rights of the parties
finding on issues (based on evidence and
with regard to the issues in dispute in the suit.
arguments).

Section 2(9) of the Code of Civil Procedure, Section 2(2) of the Code of Civil Procedure,
1908 describes the term judgement. 1908 describes the term decree.

Judgement may result in a preliminary decree or a

The decree may be a preliminary or final or
final decree or an order by itself, the judgement is
partly preliminary and partly final.
always final.

It is not necessary that there should be formal It is necessary that there must be formal
expression. expression.
 After passing the decree, the suit stands
Judgement leads to the final disposal of the suit
disposed of since the rights of the parties are
after the decree is drawn up.
finally determined by the court

ORDER
An order is defined under Section 2(14) of the CPC as the formal expression of any decision of a
civil court which is not a decree. An order determines the procedural rights of the parties. The
court may pass orders at any stage of a civil suit. Essentially, a decree is followed by one or
several orders. In finer terms, an order is the direction given by the judge or court to a party to
the suit, to perform a specific act or refrain him/her from doing certain acts or direct the public
official to take certain actions, is known as an order.

Essentials of an order: an order has the following essentials:

 Only the formal expression of a civil court’s decision is considered as an order.

 An order must be expressed formally, that is, in writing.
 no order can be a decree.

Types of orders

The following are the types of orders under CPC:

1. Final order: A final order is one which ultimately establishes and calls for the execution
of the procedural rights of the parties.

2. Interlocutory order: An interlocutory order is one which is passed as a temporary measure

to prevent the happening of any harm to any person or property. Interlocutory orders are
also called interim orders.
BASIS FOR
DECREE ORDER
COMPARISON

Meaning A decree is the official proclamation An order is the official

of the adjudication by the judge announcement of the decision taken
explaining the rights of the parties by the court, defining the
concerned with respect to the suit. relationship of the parties, in the
proceedings.

Pass It is passed in a suit initiated by the It can be passed in a suit initiated by

presentation of a plaint. presentation of plaint, application or
petition.

Deals with Substantive legal rights of the Procedural legal rights of the parties
parties

Defined in Section 2 (2) of the Code of Civil Section 2 (14) of the Code of Civil
Procedure Act, 1908. Procedure Act, 1908.

Ascertainment of It clearly ascertains the rights of the It may or may not clearly ascertains
rights parties concerned. the rights of the parties concerned.

Number There is only one decree in a suit. There can be many orders in a suit.

Type It can be preliminary, final or partly It is always final.

preliminary and partly final.

Appeal It is normally appealable except if it It can be appealable or non-

is specifically barred by law. appealable.
 SUMMONS TO DEFENDANTS [sec.27-29, order 5]
Meaning- A summons is a written notice served on a person under the authority of the court to
appear personally before the court. Summons in Civil Procedure Code, 1908 are served on the
defendants and witnesses. Defendants are summoned to intimate the suit filed against them.The
most important step comes after the institution of a suit, which is the issuance of summons
within seven days of the institution of the plaint, after which a defendant is under an obligation to
submit a written statement within 30 days. This is followed by further proceedings and
arguments.

The importance of summons lies in the fact that when a plaintiff files a suit, the defendant must
be informed about the suit that has been filed against him so that he can be heard and the
procedure of fair trial is followed. The document which is sent by the court to the defendant to
inform him about the suit filed against him is known as a summon.

The concept of summons emanates from the natural justice principle of audi alteram
partem (hear both sides). Only through such summons, the defendants become aware of
proceedings against them.

The word ‘summon’ has not been defined anywhere in the code. The definition of summons as
given by the Oxford dictionary states that, “a document which is issued from the court of justice
and calls upon a person to whom it is directed, to be present before a judge or court for a specific
reason is called a summon.” Issue and service of summons are given under Order 5 of the Code.

Summons to defendants

According to Rule 1 of the Order, whenever a lawsuit is instituted by a plaintiff, the defendant
has to file a written statement within 30 days of the issuance of the summons to him. If he fails to
do so and furnishes an appropriate reason, the court, after consideration, may extend the time up
to 90 days. However, the court will not issue any summons if the defendant was present at the
time of the institution of the plaint and has admitted the claim of the plaintiff. Section 27 of the
Code further provides that a summons must be issued to the defendant when the suit is instituted
to appear before the court and answer the plaint in the form of written statements.

Section 28 mentions the condition where the summons issued to a defendant has to be sent to a
different state or jurisdiction where he resides. In such a situation, the court will send the
summons to the court having jurisdiction in that particular area, and then the said court will
perform duties as if the summons had been issued by it. It will further return the record of its
proceedings to the court that originally issued the summons. If there is any difference in
language between the summons issued and the records, the records will be translated into Hindi
or English and then sent along with the summons.
Objective of summons

The following are the objectives of summons:

 It is important to inform a person about any legal action that has been taken against
them.

 It gives an opportunity to the defendant to present his case and side of the story.

 The basis of summons lies in the maxim “Audi Alteram Partem”, which means to hear
both sides.

 It further helps in following the principles of natural justice and ensures fair proceedings
and trial.

 It helps in ensuring the presence of either a witness or accused or any other person who is
involved directly or indirectly in a suit before the court.

 To produce the necessary documents.

Essentials of summons

The essentials of a summon are given under Order 5, Rules 1 and 2 of the code. These are:

 Every summon must be signed by the judge or any other officer whom he appoints to do
so on his behalf.

 It must be sealed properly.

 The court will not issue any summons to the defendant if he has appeared before the court
at the time of the institution of the plaint.

 After summons are issued, the defendant is required to file written statements within 30
days. If he fails to do so, he has to provide reasons, and if the court is satisfied, it can
extend the time period to file written statements to not more than 90 days.

 Another essential element of summons is that every summon must be accompanied by a

copy of the plaint.

 The format of a summons must be according to the prescribed form given in Appendix B
of the First Schedule under the code.
Contents of summons

Rule 5 to Rule 8 of Order 5 under the code gives the content of summons. A summon must
contain:

 Information, whether it is issued for settlement of issues or final disposal of the suit.
According to Rule 5, the court of small causes can only issue a summons for the final
disposal of a suit and nothing else.

 It must contain the date and day fixed for the appearance of the defendant, considering
the factors like the residence of the defendant, time, etc., so that he can get a reasonable
time and opportunity to appear before the court.

 It also contains the list of necessary documents that a defendant is required to produce in
court.

 If the summons is issued for final disposal, it must direct the defendant to produce
witnesses on his behalf to support his side.

Appearance of defendant

According to Rule 3, if summons has been issued to the defendant, he may appear before the
court in the following ways:

 He may appear himself in person or,

 Through his pleader, who will answer all the questions on his behalf or,

 by a pleader along with another person to answer all the questions.

The court, however, has the power to call defendants at any time to appear personally before the
court if there are reasons to do so.

Exemption from appearance

The code provides certain provisions that mention the people who are exempted from appearance
in the court on the issuance of a summons and the necessary conditions. These are:

 Section 132 provides that any woman who cannot be compelled to appear in public due
to the customs and other manners followed, will not be asked to appear before the court.
This does not mean that she will not be arrested if required in civil proceedings. This will
only happen if the code provides for any such exemption provision.
  Section 133 further gives the list of particular people who are exempted from appearing
before the court personally. This includes:

o The President of India

o Vice-President

o Speaker of house

o Union Ministers

o Supreme Court judges

o Governors of states and union territories

o Speakers of state legislative assemblies

o Chairman of the state legislative council

o States’ Ministers

o High Court judges

o Any other person on whom Section 87B is applicable.

 According to Rule 4 of Order 5, a person will be exempt from appearing before the
court if:

o He does not reside within the local limits of the court’s jurisdiction or

o He lives in a place that is more than 50 miles or 200 miles away from the court.

Mode of service of summons

This is one of the most fundamental and important rules of law that states that a party must be
given a fair chance to represent himself, and this is only possible if he has been served with fair
and reasonable notice of legal proceedings stating the legal action taken against him. This will
also give him the opportunity to defend himself and present his case.

One of the major causes of delay in justice or pendency in cases is the service of summons. The
defendants or people to whom the summons are issued may avoid it or ignore it, which results in
a delay in proceedings, leading to a delay in justice. The Law Commission and the makers of the
law felt a need to make certain amendments with respect to the service of summons and their
modes of service. The code gives several modes of service of summons, which are discussed
below in detail.
 1. Personal or direct service

This mode of service of summons is simple. In this mode, a copy of the summons is issued to the
concerned person or his agent or any other person on his behalf, and the person receiving the
summons must acknowledge the same. It is the duty of the officer serving summons to ensure
and make an endorsement with regard to the summons served that states the time and manner of
service, the name and address of the person receiving the summons, and witness to the delivery
of the summons.

Rules 10 to 16 and Rule 18 of the order deal with personal or direct service. While serving
summons through this mode, the following principles must be taken into consideration:

 The service officer must try to serve the summons to the defendant or his agent.

 If the defendant is not present at his place of residence and there is no agent, then it must
be served on any adult male or female member of the family living with him on his
behalf.

 If a suit is related to the business or work of a person who does not reside within the
territorial jurisdiction of the court, then it may be served to the manager or agent of that
business or work.

 In the case of a suit on immovable property, if the defendant is not found, then the
summons may be served on any person or agent who is in charge of such property.

 If a suit involves two or more defendants, then the summons must be issued to each of
them.

2. Service by the court

Rule 9 of the Order deals with the service of summons by court. It provides that if a defendant
resides within the jurisdiction of the court, then the summons must be served to him by the court
officer. It can also be served by post, fax, message, email service, approved courier service, etc.,
but if the defendant does not live within the jurisdiction, then it must be served by the officer of
the court within whose jurisdiction he resides.

In the case, summons are served by Registered post acknowledgment due (RPAD), the court will
assume the valid service of summons is complete even if there is no acknowledgement slip. If a
person refuses to accept it, the court may treat it as a valid service. The Supreme Court, in the
case of Salem Advocate Bar Association v. Union of India (2005), directed the high courts to
make appropriate rules or guidelines to ensure that the provisions of summons are implemented
properly without any abuse of power or process of law.
 3. Service by plaintiff

According to Rule 9A of the Order, the court may permit the plaintiff, on his application, to
serve summons to the defendants. He has to deliver the copy of the summons which is sealed and
signed by the judge or any other officer appointed by the judge to do so, and also make sure that
the defendant summons acknowledges the service. If the defendant refuses to acknowledge the
service or if it cannot be served personally, the court will re-issue the summons and serve it to
the defendant.

4. Substituted service

Substituted service means a mode of service of summons that is adopted in place of ordinary
service of summons. There are two modes of substituted service as given under Rules 17, 19 and
20 of the Order. These are:

 If the defendant or his agent refuses to acknowledge or sign the receipt of the summons,
or if the officer serving the summons reasonably believes that the defendant is not present
at his residence and will not be found within a reasonable time, and moreover if there is
no agent to receive summons on his behalf, he may affix the copy of the summons on the
door or any conspicuous part of his house.

o In this case, the serving officer has to make a report stating the reasons for
affixing the summons, the circumstances, the name and address of the person who
helped him and the witnesses to affixing the summons.

o The court can declare that the summons has been issued if it is satisfied with the
report of the officer.

 If the defendant is deliberately avoiding service and the court has a reason to believe so,
it may affix the summons in some conspicuous place in the court and house of the
defendant where he used to reside, carry on business or work for somebody.

According to Rule 20, if a court orders to advertise the summons in the newspaper, then it must
be done in a local newspaper where the defendant lived, had a business, or worked. This service
is an effective option to serve summons even if the defendant is not reading the newspaper (Sunil
Poddar v. Union Bank of India, 2008).

Before issuing the summons through this mode of service, the court must give the defendant a
reasonable time to appear before the court. In another case, State of Jammu and Kashmir v. Haji
Wali Mohammad (1972), the Supreme Court held that if a summon does not fulfil the
requirements of Rule 19 of Order 5 under the Code, then such service of summons is not in
accordance with the law.
Service by post

The Code earlier provided that the summons could be served through the post as well and was
given under Rule 20A of the Order, but this provision has been repealed by the Amendment Act
of 1976.

Service of summons in special cases

Rules 21–30 provide the mode of service of summons in special cases.

 If the defendant resides in another state or outside the jurisdiction of the court issuing the
summons, the court may send the summons to another court in whose jurisdiction the
defendant resides to serve it on him.

 According to Section 29 of the code, if any foreign summon has to be served, then it
must be sent to the court in the territories where the code applies, and they will further
serve the summons as if it had been issued by them.

 If the summons has to be served in presidency towns like Calcutta, Madras, and Bombay,
then it may be sent to the Small Causes Court of that particular jurisdiction.

 If the defendant does not live in India and has no agent then according to Rule 25, the
court can serve the summons by way of post, fax, email or any other appropriate means.
The other way of serving the summons to such sovereign country where the defendant
resides is either by a political agent or through the court of that country, which has
powers and authority to serve the summons as given under Rule 26 of the order.

 If the defendant is a public officer, a railway officer, or a servant of the local authority,
then the summons can be served through the head of their departments.

 If the defendant is a soldier, airman, or sailor, then the summons can be sent through their
commanding officer.

 If the defendant is a convicted prisoner, then the summons can be served through the
officer in charge of the prison.

 In case, the defendant is a company or a corporation, the summons may be served to the
secretary, director, or principal officer of the company or through post to the address
where such company carries on its business or at its registered office.
  If the defendants are partners in a firm, then it must be served to any one of the partners,
but if the partnership has dissolved before the suit has been instituted, then every partner
must be served the summons.

 The court issuing the summons also has the power to substitute it with a letter of request,
which will contain the same contents and information as the summons. This will be done
for any person depending upon the position or office held by such a person.

Refusal and objections to summons

There are instances where a defendant refuses to accept the summons or accepts it but refuses to
sign the acknowledgment or objects to the summons being issued. This leads to a delay in the
proceedings of the suit. To deal with such situations, the code has provided certain safeguards.

Refusal of summons

According to Rule 9 of the Order, if the defendant refuses to accept the summons, it is deemed
that the summons has been served on him. Similarly, when he or his agent refuses to sign the
acknowledgement, the court will assume that he has refused to take delivery of the summons and
treat such summons as duly served. This was also mentioned in the case
of PuwadaVenkateswara v. Chidamana Venkata (1976).

Objection to service of summons

In the case of Bherulal v. Shanti lal (1984), the court held that if there are any objections to the
summons served, they must be raised as soon as possible and at the earliest. If it is not done at
that stage, then the court assumes that the defendant has waived off this opportunity.
 SUMMONS TO WITNESS [Sec.30-32, order 16]

The witnesses are a crucial part of a case with their testimony being the major proof in favour of
or against the accused providing a fair judgement delivered on the principle of justice.

Summons in Civil Procedure Code, 1908 (hereinafter referred to as “CPC”) are served on the
defendants and witnesses. Defendants are summoned to intimate the suit filed against them.
Whereas as the witnesses are summoned to demand evidence or to produce documents or both.

The concept of summons emanates from the natural justice principle of audi alteram
partem (hear both sides). Only through such summons, the defendants become aware of
proceedings against them. In the later stage of a suit, the parties can prove their case with the
help of witnesses. To bring such witnesses to the court, the parties seek the court’s support. Thus,
summons are sent to the witnesses through the procedure laid under Order 16 of CPC. Without
summons, the parties cannot enforce the presence of witnesses and establish their case. Bereft of
such process, the attendance of witnesses cannot be achieved thereby the dispute cannot be
resolved on merits.

Who cannot be summoned

According to CPC, certain people cannot be summoned to appear in person. So, it should be
made sure that a summon is not served to such people. According to Rule 19 of Order 16, the
court cannot serve summons to persons who are residing outside the original jurisdiction of the
court. The rule is exempted if such a person’s residence is situated less than fifty miles from the
courthouse and even in the case where the person’s residence is situated less than two hundred
miles from the courthouse where there is an availability of public transport.

Apart from this, women according to certain customs who do not appear in public cannot be
summoned to appear in person before a court nor arrested under section 132 of CPC. Section 133
exempts persons holding constitutional positions from personal appearance in the court. So they
cannot be summoned by the court either.

List of witnesses

Order 16 Rule 1 of CPC stipulates that a list of witnesses has to be submitted to the court by the
parties. Such a list consisting of witnesses has to state details such as whether the witnesses are
summoned for giving evidence or to produce documents or both. This list has to be submitted
within fifteen days from the date on which the issues are framed.

But the entire summons process itself is not mandatory under CPC. A witness can also be
produced before the court without the name in the witness list or even without a summons under
Rule 1A of Order 16. This is used in cases where the party does not require the court’s help in
bringing a witness to the court. So, only when the party is unable to bring the witness by himself,
the court’s help is sought and a summon is sent.

Under Rule 14 of Order 16, the court may also summon a witness suo moto if the court feels it is
necessary to serve justice. The court can examine such witnesses on its discretion and may
require such a person to produce any evidence or documents he can.

Essentials in a summons

The basic necessity in any summons is the sign of the Judge and seal of the court issuing the
summons. With respect to the summons to a witness, Rule 5 of Order 16 states that particulars
such as date and time at which the witness is required to attend are to be specified. Along with
these, the reason for the procurement of the attendance of the witness such as to give evidence or
to produce a document or both should also be mentioned in the summons. If the witness is called
for producing any document, the name and description of the document required should also be
mentioned in the summons.

Mode of service of summons

Summons to a witness can be served in different ways as it is served to a defendant under Order
5. Summons can be delivered personally to the person or his authorised agent. If the person
cannot be found in his residence for a reasonable time, the summons can be delivered to any
adult family member residing with the witness.

The court can serve the summons through its court officer or by registered post
acknowledgement due. This shall be the most preferred method as there is a proof of
acknowledgement slip and there can be no false report of service of summons. If the person
consciously avoids the summons and cannot be reached by any means, the court officer can affix
the summon on the door or the other conspicuous part of the house where the person resides or
on the place where the person carries business.

The Supreme Court recently in a suo moto writ petition for the extension of limitation period due
to lockdown held that digital mediums such as WhatsApp, Telegram and Email can be used to
send summons. It was also held that the blue tick in WhatsApp can be considered as the
acknowledgement of the service.
Summons outside the court’s jurisdiction

According to Section 31 of CPC, Section 27, 28 and 29 can also apply in the case of summons to
witnesses. Wherein Section 28 in service of summons outside the State states that the summons
has to be sent to a court with jurisdiction in the other State and it has to be in accordance with the
rules in the transferee State. Such a court can serve the summon and a translation can also be
made accordingly. Similarly, under section 29, a foreign summons passed by a court in India
which does not come under CPC or a court under the authority of Central Government of Indian
outside India or a court notified by the Government in official gazette under the section can be
sent to courts under the CPC for service of such summons.

Non-compliance with summons

In case the witness fails to comply with the summons served, the person will face consequences
laid under Rule 10 of Order 16. On such a situation, it is given that the court may issue a
proclamation stating the person to be present at a specific time and date for giving evidence or to
produce the document and a copy of the proclamation has to be affixed on the witness’s outer
door or any conspicuous part of the house. Along with this, the court on its discretion may also
issue a warrant to arrest the person for not appearing. Rule 12 states that the court could impose a
fine less than five hundred rupees for non-appearance. Pertaining to which the court could also
attach the property of the person in order to recover the fine if imposed. All this consequence
could be avoided if the person gives any lawful excuse to the court for his absence.
 APPEARANCE AND NON- APPEARANCE
Order IX of the Code of Civil Procedure lays the laws regarding the appearance of parties and
what are the consequences of the non-appearance of parties.

The appearance of parties to the suit

As stated under Rule 1 of Order IX of the Code of Civil Procedure, the parties to the suit are
required to attend the court either in person or by their pleaders on the day which has been fixed
in the summons. If the plaintiff or a defendant, when ordered to appear before the court in, they
do not appear and neither show the sufficient cause for his non-appearance, the court is
empowered under Rule 12 of Order IX as follows.

1. If the plaintiff does not appear, dismiss the suit.

2. If the defendant does not appear, pass an ex-parte order.

Non-appearance of both parties to the suit

When neither the plaintiff nor the defendant appears before the court when the suit is called for
hearing, then the court is empowered to dismiss the suit under Rule 3 of Order IX. The dismissal
of the suit under this rule does not put a bar on filing a fresh suit on the same cause of action as
per Rule 4.

The plaintiff can also apply for setting aside the dismissal if he is able to satisfy the court that
there was sufficient behind his non-appearance. If the court is satisfied with the cause of non-
appearance then it may set aside the order of dismissal and schedule a day for the hearing of the
suit.

The appearance of the plaintiff

When only the plaintiff appears but the defendant does not appear, then an ex-parte order can be
passed against the defendant. But, the plaintiff has to prove that the summon was served to the
defendant.

If service of the summons is proved then only the court can proceed for ex-parte against the
defendant and the court may pass a decree in favour of the plaintiff. This provision applies only
for the first hearing and not for the subsequent hearings of the matter and the same has been held
in the case of Sangram Singh v. Election Tribunal.
Even while passing ex-parte order it is the duty of the court to secure the end of justice even in
the absence of the defendant. In the case of Maya Devi v. Lalta Prasad, it has been held by the
Supreme Court that -It is the duty of the court to ensure that statements in the plaint stand proven
and the prayers asked before the court are worthy of being granted. This provision of passing ex
parte order cannot be passed when there are more than one defendant in the case and any of them
appears.

Appearance of defendant

The provisions laid down to deal with the appearance of only the defendant has been laid down
from rule 7-11 of Order IX. When the defendant appears but there is non-appearance of the
plaintiff, then there can be two situations:

1. The defendant does not admit the claim of the plaintiff, either wholly or any part of it.

2. The defendant admits the plaintiff claim.

If the defendant does not admit the claim of the plaintiff, then the court shall order for dismissal
of the suit. But, when the defendant admits completely or any part of the claim made by the
plaintiff then the court is empowered to pass a decree against the defendant on the ground of
such admission and for rest of the claim, the suit will be dismissed.

Dismissal of the suit of the plaintiff without hearing him is a serious matter and it should not be
adopted unless the court gets satisfied that in the interest of justice such dismissal is required, as
cited by Beaumont, C.J. in the case of Shamdasani v. Central Bank of India.

When the plaintiff does not appear because of death, the court has no power to dismiss the suit.
Even if such order is passed it will amount to a nullity as held in the case of P.M.M. Pillayathiri
Amma v. K. Lakshi Amma.

Application to set aside the dismissal

When the suit has been dismissed on the ground of non-appearance of the plaintiff then he can
make an application to set aside the order of dismissal. If the court is satisfied with the reason of
non-appearance as a sufficient cause then the court can set aside the order dismissing the suit and
fix a day for the proceeding of the suit.

 Sufficient cause

For considering the sufficient cause of non-appearance of the plaintiff the main point to be
considered is whether the plaintiff really tried to appear on the day which was fixed for hearing
or not. When sufficient cause is shown by the plaintiff for his non-appearance, then it is
mandatory for the court to reopen the suit. In absence of sufficient cause, it is upon the discretion
of the court to set aside the dismissal or not as held in the case of P.K.P.R.M. Raman Chettyar v.
K.A.P. Arunachalam Chettyar. Sufficient cause depends upon the facts and circumstances of
each and every case.

In the case of Chhotalal v. Ambala Hargovan, the Bombay High Court observed that if the party
arrives late and find its suit dismissed due to his non-appearance then he is entitled to have his
suit or application restored with the payment of costs.

When summon is not served

Rule 2 to 5 of Order IX lays down the provision for the situation when the summon is not served
to the defendant. One of the fundamental law of procedural law is that a party must be given a
fair opportunity to represent his case. And, for this, a notice of the legal proceedings initiated
against him is obligatory. Therefore, service summons to the defendant is mandatory and it is a
conditional precedent.

When there is no service of summons or it does not give him sufficient time for effective
presentation of the case then a decree cannot be passed against him.

Rule 2 of Order IX also holds that when the plaintiff fails to pay costs for service of summons to
the defendant then the suit may be dismissed. But, no dismissal can be made even in the presence
of such failure if the defendant appears on the day of hearing either in person or through his
pleader. However, the plaintiff is entitled to file a fresh suit when the suit is dismissed under this
rule. and, if the court is satisfied that there is a reasonable reason behind such failure to pay costs
then the court may set aside the order of dismissal.

When the summon is returned unserved and the plaintiff does not apply for fresh summons for 7
days from which the summon is returned unserved by the defendant or any of the defendants,
then the court can dismiss the suit against the defendant or such defendants

When the summon was not duly served to the defendant is not proved then the court can direct to
issue a fresh summon to the defendant for service. When the service of the summons is proved
before the court but the time prescribed in the summon is not sufficient for him to answer on the
day which has been fixed, then the hearing can be postponed by the court to a future date and
notice will be given to the defendant.
Ex-parte Decree

An ex parte decree is a decree passed in the absence of the defendant. Such a decree is neither
null and void nor inoperative but is merely voidable and until it is annulled, it has all the force of
a valid decree. When the defendant is absent on the day of the hearing as fixed in the summon an
ex-parte decree can be passed. The ex-parte order is passed when the plaintiff appears before the
court on the day of the hearing but the defendant does not even after the summon has been duly
served. The court can hear the suit ex-parte and give ex-parte decree against the defendant.

An ex-parte decree is a valid one and it is not null and void but can be merely voidable unless it
is annulled on a legal and valid ground. An ex-parte can be enforced like a bi-parte decree and it
has all the forces as a valid decree as held in the case of Panduranga Ramchandra v. Shantibai
Ramchandra.

Setting aside an ex-parte decree

For setting aside an ex-parte decree an application may be made by the defendant. An application
to set aside decree can be made to the court passing that decree. There are certain rules to be
followed for setting aside an ex-parte decree and if the defendant satisfies the court with
sufficient reason, then only the ex-parte decree which has been passed can be set aside.

The limitation period for making an application for setting aside an ex-parte decree is of 30 days.

The grounds on which an ex-parte decree can be set aside are:

1. When the summons has not been duly served.

2. Due to any “sufficient cause”, he could not appear on the day of the hearing.

Sufficient Cause

The term sufficient cause has not been defined anywhere but as held in the case of UCO Bank v.
Iyengar Consultancy, it is a question which is determined upon the facts and circumstances of
the cases. The test to be applied for this is whether or not the party actually and honestly
intended to be present at the hearing and tried his best to do so. There are several instances which
have been considered as sufficient cause such as late arrival of the train, sickness of the council,
the strike of advocates, death of a relative of party etc.

The burden of proof that there was a sufficient cause of non-appearance is upon the defendant.
 Caveat (Sec. 148A)
Meaning of Caveat

The caveat in Latin means “let a person be aware” and in law, it may be understood as a notice
given asking not to act in a certain manner without informing the person who gave such a notice.
Under the Civil Procedure Court, the provision of caveat is dealt with in Section 148A. Even
Though CPC does not define caveat in the case of Nirmal Chand v. Girindra Narayan, the court
defined caveat as a warning given by an individual to the court that no order or judgment shall be
passed without giving notice or without hearing the caveator. The person who files a caveat is
called the Caveator and the person who has instituted a suit or is likely to do so is called
caveatee. The main object of caveat is to ensure that the court does not pass ex parte orders and
that the interests of the caveator are protected. Caveat also reduces the burden of court and brings
an end to the litigation as it reduces the multiplicity of proceedings.

When to lodge a Caveat?

According to Section 148A, when people apprehend that some case against them is filed or is
about to be filed in any court of law in any manner, they have a right to lodge a caveat. The
Caveat may be lodged in the form of a petition under the following circumstances:

During an ongoing suit or litigation and in that the application is already been made or is
expected to be made; The suit is about to be instituted and in that suit an application is expected
to be made.

Thus, firstly it is always about an application in a suit of the proceeding and secondly that suit or
proceeding can be in the present which is already instituted or it can be in the future where a suit
is not instituted yet but the same is expected. In all such situations the right to lodge a caveat
arises.

Who may lodge a caveat?

Section 148A further provides that a caveat may be filed by any person, whether a party to the
suit or not, as long as the person filing the caveat has the right to appear before the court in
regard to the suit in question. Thus, caveat can be filed by a third party as well, if they in any
manner are connected to the suit in question. However, as it is already discussed that a caveat
cannot be lodged by a person who is a total stranger to the case and the same principle was laid
down in Kattil Vayalil Parkkum Koiloth v. Mannil Paadikayil Kadeesa Umma. To conclude,
this clause is substantive in nature and caveat may be filed by any person claiming a right to
appear before the Court.
Where can a caveat be lodged?

As and when the caveator anticipates some legal proceedings to be filed against him in the near
future, he can file a petition for a caveat in any Civil Court of original jurisdiction, Appellate
Court, High Court as well as Supreme Court. Civil Courts include Courts of Small Causes,
Tribunals, Forums, and Commissions. However, in Deepak Khosla v. Union of India & Ors, the
court held that Section 148A of the code applies to civil proceedings only and caveat cannot be
made against petitions made under the Criminal Procedure Code or petition made under Article
226 of the Constitution of India.

How to file a caveat?

A caveat under Section 148A shall be signed by the caveator or his advocate. Where the caveator
is represented by an advocate, it should be accompanied by his Vakalatnama. The caveat
presented shall be registered in a caveat register maintained by the courts in the form of a
petition or any other form that may be prescribed. The register of caveat contains the date of
caveat, name, and address of caveator, name of the plaintiff, the name of the defendant and date
and a number of proceedings filed as anticipated by the caveator. A caveat is always filed with a
copy, the postal proof and an application explaining to the court that a copy of the caveat has
been sent to all the parties and thus the court need not do the same. Even though the court fees of
filing a caveat varies for different courts, it is generally a nominal amount of less than INR 100.
The rules and format of the caveat are similar for most of the courts.

While filing a petition of caveat in Delhi High Court, follow the below-mentioned steps:

Support the caveat petition with an affidavit. Both petition and the affidavit should be signed by
the caveator; Apart from this, a vakalatnama, impugned order (if any), and proof of service of
notice of caveat is also to be submitted to the Court.

What does a caveat contain?

A caveat or a notice given to the court that certain actions may not be taken without informing
the caveator should contain the following information:

 Name of the caveator;

 Address of the caveator where the notice would be sent;

 The name of the court where such caveat is filed;

 The number of the suit and the number of the appeal if applicable;
  Brief details about suit or appeal likely to be filed;

 Name of the probable plaintiffs or appellants and the respondents.

If subsequent to the filing of a caveat, any application is made in any suit or legal proceeding, the
court is required to give notice about such an application to the caveator. When a notice has been
served on the applicant, the applicant at the expense of the caveator is required to provide the
caveator with a copy of the application made by him along with any document that may have
been submitted with the application. If the court or applicant ignores the caveat and does not
inform the caveator, the decree or judgment passed becomes null and void.

Right and duties

When a caveat is filed, it gives certain rights and duties to the caveator, applicant as well as the
court. Let’s consider all these rights and duties separately:

 Rights and duties of the caveator

Clause (2) of the section provides that when a caveat has been lodged under sub-section (1), the
caveator shall serve a notice of the caveat to the person by whom the application has been made
or is expected to be made under sub-section (1). The caveator at the time of lodging the suit says
that either there is a suit in the present and in which I expect an application is going to be made
or there is an application existing in the suit and I want to be represented, or he says that a suit is
going to be filed in the future and in that suit an application will be made, and in that application
I want to be represented. So, whenever such an application comes, the caveator has the right to
be informed. However, before he becomes entitled to notice, he has to give a notice saying that I
have lodged a caveat to the person from whom he is expecting such an application to be made. In
other words, the caveator has to serve notice by registered post, on the applicant who is going to
file this application or who has already filed an application, saying that whenever you file an
application, you are bound to give notice.

 Rights and duties of court

The duty of the court arises, once the caveat is lodged and notice is served upon the applicant.
Clause (3) of the Section provides that after a caveat has been lodged and thereafter any
application is filed in any suit or proceeding, the court has to serve a notice to the caveator. This
means that once the caveator has filed the caveat saying I want to be represented and after that,
an actual application has been filed within the next 90 days, in that case, the court will serve a
notice to the caveator, informing him that the application that was expected by him has been
filed and the caveator thereby has the right to be heard before the court.
  Rights and duties of the applicant

In addition to the court giving notice, the applicant is also required to serve a notice to the
caveator, informing that an application in regard to the caveat filed has been made. Clause (4) of
the section, directs the applicant to provide a copy of the application made by him along with any
other document or paper that may have been filed by him in support of his application to the
caveator. The Court will not move forward with the application unless an affidavit is submitted
by the applicant that a notice has been served to the caveator.

Limitation of time

As provided by the section in clause 5, the caveat stays in force for a period of 90 days. If within
these 90 days an application is filed, then the court, as well as the applicant, has to give notice to
the caveator. However, if no caveat is filed within these 90 days, then no one has the duty to
inform the caveator, i.e., if the application is filed after the expiration of such period the caveat
stands null and void. If the caveator still wants to be informed then a fresh caveat needs to be
lodged for the next 90 days.

Common mistakes made while filing a caveat

Some of the common mistakes made while filing caveat are as follows:

The caveat is often filed in support of an application, it is important to remember that caveat can
be made only against an application; Caveator forgets to serve a notice to the applicant, which is
mandatory under Section 148A of CPC. Caveators often claim that the order or judgment was
incorrect because the notice was given, even after the expiration period. It is important to
remember that after 90 days, a fresh caveat needs to be filed.
 Inherent powers of the court [sec. 148-153]
Meaning of ‘inherent’ is existing in something as a permanent, absolute, inseparable, essential or
characteristic attribute. Inherent powers of courts are those powers which may be applied by the
court to perform full and complete justice between the parties before it. It is the duty of the
Courts to serve justice in every case, whether given in this code or not, brings with it the
important power to do justice in the absence of a definite or separate provision. This power is
said to be the inherent power that is maintained by the court, though not conferred. Section 151
of the Civil Procedure Code deals with the inherent powers of the court.

Provisions of Section 148 to 153B of CPC

The law relating to inherent powers of Court is mentioned in Section 148 to Section 153A of the
Civil Procedure Code, which deals with the exercise of powers in different situations. Following
are the provisions of Inherent powers of Courts:

 Section 148 and Section 149 deals with grant or enlargement of time;

 Section 150 deals with the transfer of business;

 Section 151 protects the inherent powers of the courts; and

 Section 152, 153 and Section 153A deals with amendments in judgments, decrees or
orders or in separate proceedings.

Enlargement of time

Section 148 of the CPC states that where any term is fixed or awarded by the Court for the doing
of any act provided by CPC, it is the discretionary power of the Court that the Court may enlarge
such period from time to time, even though the term originally fixed or awarded may have
departed.

In simple words, when a term is fixed by provision for the doing of any act, the Court has the
power to extend such period up to 30 days. This power is exercisable in the deficiency of any
specific provision to the contrary which reduces or rejects or withholds the period. The power is
limited to the extension of the time fixed by it and is of a discretionary nature.

Payment of court fees

According to Section 149 of CPC, “Where the entire or a portion of any fee commanded for any
certificate by the law for the time being in force relating to court-fees has not been met, the Court
may, in its discretion, at any step, permit the person by whom such fee is payable, to pay the
whole or part as the case may be, of such court-fee; and upon such payment, the document, in
regard of which such fee is payable, shall have the same force and result as if such fee had been
paid in the initial situation.”

It permits the court to allow a party to make up for the lack of court fees due on a complaint or
notice of appeal etc., even after the expiry of the limitation period for filing of the lawsuit or
appeal, etc. Payment of the expected court fee is compulsory for any document imputable with
court-fee to be presented in the court. If the necessary court fee is paid within the time set by the
court, it cannot be negotiated as time-barred. Such payment made within the time fixed by the
court retrospectively validates a faulty document. The power of the court is discretionary and
must be exercised only in the importance of justice.

Transfer of business

According to Section 150 of CPC, “Save as otherwise granted, where the business of any Court
is assigned to any other Court, the Court to which the business is so assigned shall have the same
authority and shall make the same duties as those sequentially presented and forced by or under
this Code upon the Court from which the business was so assigned.”

For example- When the business of a court A is transferred to any other court B, the court B will
exercise the same power or perform the same duties given or commanded by CPC upon the
transfer court.

Section 151 of CPC

Section 151 deals with “Saving of inherent powers of Court.” This Section states that ‘Nothing in
CPC shall be considered to restrict or otherwise affect the inherent power of the Court to make
such orders as may be important for the ends of justice or to limit abuse of the method of the
Court.’ It is not obligatory for the court to wait for the law made by parliament or order from the
higher judiciary. Court has discretionary or inherent power to make such an order which is not
given in terms of laws for the security of justice or to check misuse of the method of the Court.

The scope of exercising of Section 151 of CPC can be represented by some cases as follows:

 The court may recheck its orders and resolve errors;

 Issuance of provisional sanctions when the case is not included by order 39 or to place
alongside an ‘ex-parte’ order;

 Illegal orders or orders passed without jurisdiction can be set-aside;

  Subsequent events in the case can be taken into consideration by the court;

 Power of Court to continue trial ‘in camera’ or prevent disclosure of its proceedings;

 The court can erase remarks made against a Judge; and

 The court can improve the suit and re-hear on merit or re-examine its order.

Ends of justice

In the case of Debendranath v. Satya BalaDass, the meaning of “ends of justice” was explained.
It was held that “ends of justice” are solemn words, also there’s words that are not merely a
polite expression as per juristic methodology. These words also indicate that Justice is the pursuit
and end of all law. However, this expression is not vague and indeterminate notion of justice
according to laws of the land and statutes.

The Court is allowed to exercise these inherent powers in cases like- to recheck its own order
and correct its error, to pass injunction in case not included by Order 39, and an ex parte order
against the party, etc.

Abuse of process of the court

Section 151 of the CPC provides for the exercise of inherent powers to check the infringement of
the process of the court. Abuse of the powers of the court which happens in unfairness to party
needs to get relief on the ground that the act of a court shall not prejudice anyone. When a party
practices fraud on the court or on a party to a proceeding, the remedies have to be provided on
the basis of inherent power.

The word ‘abuse’ is said to occur when a Court uses a method in doing something that it is never
expected to do is the perpetrator of the said abuse and there is a failure of justice. The injustice so
done to the party must be given relief on the basis of the doctrine of actus curiae neminem
gravabit (an act of the court shall prejudice no one). A party to a case will become the
perpetrator of the abuse in cases when the said party does acts like obtaining benefits by
functioning fraud on the Court or a party to the proceedings, prompting the multiplicity of
proceedings, etc.

Amendment of judgments, decrees, orders, and other records

Section 152 of CPC deals with the “Amendment of judgements, decrees, and order.” According
to Section 152 of CPC, Court has the power to change (either by own actions or on the
application of any of the parties) written or arithmetical mistakes in judgments, decrees or orders
or faults arising from an unexpected lapse or imperfection.

Section 153 deals with the “General authority to amend.” This Section empowers the court to
amend any fault and error in any proceedings in suits and all required improvements shall be
made for the purpose of arranging raised issues or depending on such proceeding.

Section 152 and 153 of the CPC makes it clear that the court may set correct any blunders in
their experiences at any time.

Power to amend decree or order where an appeal is summarily dismissed and place of the trial to
be deemed to be open Court are defined under Section 153A and 153B of CPC,1908.

Limitation

The exercise of inherent powers carries with it certain barriers such as:

 They can be applied only in the deficiency of particular provisions in the Code;

 They cannot be applied in dispute with what has been expressly given in the code;

 They can be applied in rare or exceptional cases;

 While operating the powers, the court has to follow the method shown by the legislature;

 Courts can neither exercise jurisdiction nor entrust in them by law;

 To abide by the principle of Res Judicata i.e., not to open the issues which have already
been decided finally;

 To pick a mediator to make an award afresh;

 Substantive rights of the parties shall not be taken away;

 To limit a party from taking proceedings in a court of law; and

 To set apart an order which was valid at the moment of its issuance.