MULLA

The Key to
Indian Practice
A Summary of the Code of Civil Procedure

SIRDINSHAW FARDUNJI MULLA

12th Edition

K Kannan

LexisNexis
Pf

MULLA
The Key to
Indian Practice
Seventh Edition 1994
Eighth Edition 2003
Ninth Edition 2008

Tenth Edition 2012

First Reprint 2013

Second Reprint 2013

Third Reprint 2014

Fourth Reprint 2015

Fifth Reprint 2015
Eleventh Edition 2016

Twelfth Edition 2019

Reprint 2ul9
 MULLA

The Key to
Indian Practice
A Summary of the Code of Civil Procedure

Sir Dinshaw Fardunji Mulla

Twelfth Edition
2019

K Kannan
Chairman, Railway Claims Tribunal
Former Judge, Punjab & Haryana High Court

1^'LexisNexis*
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 Preface to the Twelfth Edition

The civil practice as administered by courts in India leaves a lot to be desired, in

spite of robust procedures laid under the Civil Procedure Code and not because of
them. A code of the British era underwent substantial changes in 1976 and still later"
in 1999 and 2002 by amendments, not to leave out the appendages of High Courts
rules, all aimed to scuttle delays and improve the court ecosystem from filing of
plaints to enforcement to satisfaction of decrees. When alternative dispute resolution
tools were suggested, they were still conceived within the ambit of the Code through
section 89. An intractable dispute that plunged the whole nation into turmoil over a piece
of land and what had been constructed upon it at Ayodhya looked for solution only
through courts but still remains outside it, on directions given by the Supreme Court in
M Siddiq (D) through LRs v Mahant Suresh Dasd The court skirted the objection that
representative action under Order I rule 8 is not amenable for mediatory efforts as
matter "left open to be decided at the appropriate stage." The court's power to direct
parties to mediation was exercised 'notwithstanding the lack of consensus between
parties.' One wished that the former had been answered and the latter had been dealt
with more elaborately of how court's power of refeiTal could not still go as far to
take away the voluntary character of participants in mediation. Yet another decision
under this section laid open the books of the mediator to hold that statements made by
the parents during the course of mediation, even if they may not be relied upon on the
ground of confidentiality, natural responses and statements made by the minor to the
Counsellor would certainly be accessible to courts and afford a chance to decide what
is in the best interest of the child.^
In Ccmara Bank v NG Siibbaraya Setty,^ the Supreme Court has delineated the exceptions
to the principle of resjudicata and underscores that an erroneous judgment on a question
of law, which sanctions something that is illegal cannot be allowed to operate as res
judicata. This case arose out of a transaction of assignment of trademark by a borrower
to a lending nationalised bank for satisfaction of his debt. Pointing out to the difference
from American law, the court said that a decree from which an appeal lies and has in
fact been filed would render the res sub judice and not res judicata. The preponderance
of Indian law is that until the limitation period for filing of an appeal is over, the res
remains sub judice. The hearing in the second case may be adjourned or stayed to
await the outcome of the appeal in the first case. Noticing that the limitation for filing
the appeal against the judgment in the first case had expired and a review application
had been filed more than four years later, the court found the first judgment granting a
decree in terms of assignment of trademark to a bank was against Banking Regulation
Act as forbidden by law and hence not binding.
In Shivnaarayan (D) by LRs v Manklal(D) by LRS'^, suit filed in respect of properties
situate in different states in one court challenging the alienations to different persons in
different states was found to be bad for multifariousness. Order II, rule 3(1), the Supreme
Court said, provides that plaintiff may unite in the same suit several causes of action
against the same defendant, or the same defendants jointly and what is permissible is

1. 2019 see OnLineSC 342.

2. 2019 sec OnLineSC211.
3. (2018) 16 see 228.
4. 2019(l)RCR(eivi])983; 2019(2) Scale 620.
 Mulla The Key to Indian Practice

to unite in the same suit several causes of action against the same defendant, or the
same defendants jointly. The interpretation was narrow, which could have been avoided.
It failed to take notice of the commonality of facts and law involved in the alienor
indulging in invalid sales to different persons in respect of properties was claiming
the authority for such transactions to the same source. Decisions in different courts in
respect of different properties, all of which the plaintiff was interested in, were bound
to create inconvenience and could result in inconsistency of decisions from various
'courts. If different defendants in the same suit claimed under the same defendant, the
rule should have still applied. Multipronged litigations in various courts in various States
with resultant inconvenience and expense, which the court did not mind, was however
dealt with differently in a different genre, when the parties in matrimonial discord were
living in different states.^ The court suggested video conferencing mode for trials to take
place in one state where one of the parties was residing and the other party, without
seeking for a transfer of proceeding, could offer evidence from another state through
video conferencing. The court directed that in matrimonial or custody matters or in
proceedings between parties to a marriage or arising out of disputes between parties to
a marriage, wherever the Defendants/Respondents ai-e located outside the Jurisdiction
of the court, the court where proceedings are instituted, may examine whether it is
in the interest of justice to incorporate any safeguards for ensuring that summoning
of Defendant/Respondent does not result in denial of justice. Order incorporating
such safeguards, the court reminded, could be sent along with the summons, such
as: i) Availability of video conferencing facility; ii) Availability of legal aid service;
iii) Deposit of cost for travel, lodging and boarding in terms of Order XXV Code of
Civil Procedure and iv) E-mail address/phone number, if any, at which litigant from
out station may communicate.
In Ahmed Abdulla Ahmed Al Ghurair v Star Health and Allied Insurance Cotnpany
Limited'' a hands off approach was adopted by the Supreme Court to a litigation
commenced in a court in India amongst foreign nationals as regards ownership of shares
of a company registered in India since the factors constituting the dispute between the
parties germinated where they resided in a foreign country.
A scheme suit under section 92 recognises now the public interest element of liberal rules
of standing that public law remedies through writs are familiar with. In Mrinalini Padhi
V UOP, the Supreme Court said that as regards any charitable or religious institution, any
devotee could move the jurisdictional district judge throughout India with any grievance
and the court could give appropriate directions for sound management and if need be,
send a report to the high court which will consider issues of public interest with reference
to these institutions and supplement or supplant the directions as may become necessary.
Court room drama could be events of public gaze, not just scenes in cinema. Supreme
Court of India is a real fortress that any member of public who has no stakes involved
in litigation in court cannot hope to get access. Swapnil Tripathi v Supreme Court of
India* inaugurates a new era, stoking interest in high octane cases, where the Supreme
Court has permitted use of technology to relay or publicise the live court proceedings.
By providing "virtual" access of live court proceedings to one and all, it will effectuate
the right of access to justice or right to open justice and public trial, right to know the

5. Krislmaveni Nagam v Harish Nagam, AIR 2017 SC 1345 :(2017)4 SCC 150.
6. AIR 2019 SC 413 : 2019(1) C TC 211 : 2019-1-LW577 : 2018 (15) Scale 133.
7. 2018 SCC OnLine 667.
8. (2018) 10 SCC 639.
 Preface to the Twelfth Edition

developments of law and including the right of justice at the doorstep of the litigants.
Open justice, after all, the court said, can be more than just a physical access to the
courtroom rather, it is doable even "virtually" in the form of live streaming of court
proceedings.
Many of the timelines brought through amendments in the year 1999 and 2002 were
whittled down in Salem Bar Association I & II as merely directory. Thankfully, the
Supreme Court felt the need to tighten the rigour by intervening in High Court's order
condoning delay in filing the written statement "by balancing the rights and equities",
a typical platitude employed every time when any court passes indulgent orders. The
Supreme Court said, no doubt, the provisions of Order VIII, rule I of the Code of Civil
Procedure, 1908 are procedural in nature and, therefore, handmaid of justice. However,
that would not mean that the defendant has right to take as much time as he wants in
filing the written statement, without giving convincing and cogent reasons for delay and
the High Court could condone it mechanically. In Satyanand v Shyam Lai Chauhanf it
was held, while recording that the order directing impleadment of legal representative
of a deceased party under Order VIII rule 5 is summary, that the court is bound to
take a decision on who amongst the contesting applicants shall be made as a legal
representative and shall not allow all of them to come on board and leave the issue of
contest to independent action.
This edition carries out some of the judicial trends in brief only to bring home the point
that procedural law is still capable of innovations through technology and in some areas,
the decisions could have been different. A student edition that presents the law in class
room lecture format ought to generate enough grist for debates and the decisions that I
have outlined above are to show that there is room for debate for every proposition made.
If the 1908 Code would required to be revamped, where should the discussion start?
These lectures and their reliance on the decisions are also to be discussed, revamped
and improved. This edition sets up the reader for such a challenge!

New Delhi K Kannan

June, 2019

9. 2018 (5) Scale 314: 2018 (7) SCJ 713.

 Preface to the Eleventh Edition

Change is inevitable and difficult. This is true not onlj' about life but also about law. The
over-arching mission of the author, in the preparation of this book is to avoid complexity
in the Code of Civil Procedure and eliminate the procedural difficulties.
The avowed reason behind accepting the offer to edit the Eleventh Edition of a work
on The Code of Civil Procedure 1908 by Sir Dinshaw Fardunji Mulla was much more
than to update and/or to provide the law students, young advocates, law-teachers and
judicial officers with an easy-to-use tool for reading, teaching and practising in the
conduct of suits in and out of court. The exercise was also aimed to provide a direct
link with practical work and,easy access to all the common and complicated troubles
of Civil Procedure. This is significant in view of the growing impression that the new
breed of lawyers is not passionate about procedural niceties in civil law, may be they
do not find it very 'interesting'.

(Praise for the earCier edition

"For those who want to study the core of the civil procedure code, this book is a
must as the language is simple and the subject is explained in a conceptual way
without the rote method of learning through section wise study. This book is very
logical in arrangement and enables the reader to grasp the essentials of the code
in a simple and reader friendly manner."
About the book

Mulla - The Key to Indian Practice by Sir Dinshaw Fardunji Mulla provides a summary
of the Code of Civil Procedure. As the book towards its end tends to drag a bit with lot
of technical details and information about Civil Procedure, the new edition is an attempt
to further simplify the learning of procedure adopted by Civil Courts. The discussion of
the subject-matter of the present edition, however, continues to be topic wise.
This book covers a lot of information and technical details of Civil Procedure in a very
simplified way. This might interest technically inclined readers to know the procedure
and the way civil courts are working. One of the things that stand out throughout the
book is the aim of the author to avoid complexity and to provide easy and comprehensive
knowledge about the Civil Procedure.
New to the Edition

• Latest Supreme Court and High Courts Judgments

• Contemporary topics that have emerged during the progress of this work have also
been incorporated, such as, right to impleadment of a beneficiary of Trust, effect of
delivery of possession of the 'property agreed to be sold' on the issue of limitation
of filing suit for specific performance, whether mortgage can be redeemed even after
the sale has taken place but before confirmation of such sale, duties of the High
Court while sitting as Court of first appeal, non-maintainability of separate suit under
Order 23 Rule 3 and 3A CPC, whether there is legal necessity to fresh impleadment
of legal representatives of a deceased plaintiff when they are afieady on record in
their individual capacity, and transfer of suit from one court to another for joint trial
• The provisions of the Code of Civil Procedure, 1908 have been concisely discussed
in a systematic manner with an attempt to co-relate the chapters aiming to make
the reading interesting
 Preface to the Eleventh Edition

Key Features
• Covers how the course of an ordinary suit is followed, from the moment the plaintiff
detenmnes to sue till the time he obtains a decree
• Elaborates in detail the critical process of execution of a decree and the possible
consequences of an appeal by an affected party
• Employs the explanatoiy method of treatment enabling advocates not only to
understand the provisions of the Code, but also to see how these provisions are
applied in practice
• Revised and updated thoroughly to include latest judgments and case laws
Content and Structure
This book contains 15 Chapters with 1 Appendix. Its opening chapter gives the introduction
to the Code of Civil Procedure, 1908, as to how it came into being, why its need was
felt and what is the scheme of the Code.
Chapter 2 explains the constitution of Courts and their Jurisdiction, namely, how many
types of courts are there in which suits of civil natuie can be presented and what is
their authority to decide such suits. Chapter 3 specifically elaborates the essentials of a
suit and the conditions which must be fulfilled to initiate civil proceedings in a court of
law, and what should there be in a plaint in the case of a suit for specific performance.
Chapter 4 details out the places where civil suits of different naturfe can be instituted,
and the possible objections which can be raised against the place of suing. Chapter 5
accounts the requisites for impleadment of parties and the ingredients of Cause of Action
and its joinder or misjoinder.
The different stages of a suit from its institution to execution are enumerated in Chapters
6, 7, 8 and 9. Chapters 10 and 11 contain the remedies of first and second appeals against
the order or decree of lower court(s). Chapter 12 gives an insight of the provisions of
reference, revision and review of the decisions of same or lower courts.
The nature of supplemental and special proceedings, say,for temporary relief to the parties,
death or maniage of parties, as well as friendly suit etc. are explained in Chapter 13.
Chapter 14 covers the procedure in case of special suits by minor, indigent person,
inter-pleader suit, suit by or against a firm, or Government, or summary suits etc. This
chapter further enlightens the principle of res-judicata in general as also its applicability
in the case of foreign judgments, besides the doctrine of res-subjudice. Eurther, Chapter
14 of the book deals with subjects like 'Eoreign Judgments' and 'Caveat'.
Chapter-15 addresses the Alternative Dispute Redressal Mechanism, which is now an
integral part of the mandatory procedure to be followed by Civil Courts.
Acknowledgements
1 liope that this edition will be useful for all entities in the legal profession. Any
suggestions towards its further improvement will be thankfully acknowledged and
incorporated in the next edition. They may be sent to the publisher.
1 shall remain grateful to the commissioning, editorial, and production teams of the
publisher, LexisNe'xis, for their invaluable inputs and utmost cooperation.
Further, 1 would like to express my special thanks to my wife - Smt. Savita Vashisht,
who is Associate Professor in English and Mr. Abhishek Mittal - my Law Researcher as
without their cooperation and assistance, this edition could never have been completed.
Justice Surya Kant
 Preface to the Tenth Edition

The Code of Civil Procedure, 1908, is a voluminous statute. For a law student or a fresh
advocate,- it is not possible to go through the entire Code and understand it completely.
Sir D F Mulla, in this work has given an idea of practice and procedure in the conduct
of suits in and out of court, to law professionals especially new entrants as well as law
students. It is a clear and sagacious exposition, in brief, of the important provisions of
the Code. In the form of just fourteen lectures he has very nicely unfolded the complete
Code. The treatment he adapted enables readers to understand the provisions of the Code
as well as inspires them to learn how to apply the provisions to the practice of civil law.
The present tenth revised edition has been updated by incorporating select decisions
delivered by the Supreme Court of India and various High Courts on the Civil Procedure
Code. The case law on the subject has been searched and collected from several Journals
including All India Reporter, All India High Court Cases, AIR Civil Cases, Supreme
Court Cases, Delhi Law Times, Madras Law Journal, Maharashtra Law Journal, MP Law
Journal, Gauhati Law Reporter, Kamataka Law Journal, etc.
In this lucid narration of the Code, important sections have been referred in appropriate
places and also supplemented with latest case law in a very penetrating way so as to
make the work not only a guide to Indian civil practice but also a readable summary
of the Code. It has been designed in a way best suited to the requirements of those
initiating their study of procedural law.
I take this opportunity to take the blessings of my revered parents and teachers, to thank
my wife, Saraswati, and daughter, Anushree, to express gratitude to my learned colleagues
Dr S S Srivastava, Dr Lily Srivastava, Dr Preeti Mishra, Dr S K Pandey and Advocate
Kuldeep Srivastava, and the rest who expressed their valuable ideas and put forth their
suggestions to enrich this new edition. I extend my most sincere thanks to my publishers,
M/s LexisNexis Butterworths, for their support in the publication of this edition.

Lucknow Shriniwas Gupta

 Preface to the Ninth Edition

An acclaimed classic that has been in existence for more than three quarters of a century
without losing any of its sheen or usefulness, was sure to present some difficulties in
revision. The arrangement of the book as conceived and adopted by Sir DF Mulla and
maintained by successive editors, is avowedly different from other books on the same
subject, which made the task of revision further difficult.
The object of the present work, as conceived by Sir Mulla, is to give an idea to the student
of law, of the practice and procedure in the conduct of suits in and out of court. The
Code of Civil Procedure, 1908 is a voluminous statute and it is impossible for anyone,
especially a student, to go through the entire code and understand the same or be able to
distinguish relevant provisions. The work is a clear and brief exposition of the important
provisions of the Code and gives an overview of the conduct of civil suits in Indian
courts. It is in the form of lectures that were fourteen in number earlier. Now in view of
section 89 CPC, a new chapter on 'Alternative Dispute Redressal Mechanisms'(ADRs)
has been added. In these chapters, the course of an ordinary suit is followed from the
moment the plaintiff determines to sue till the time he obtains a decree and thereafter it
follows appeal by the defendant and further appeals. This method of treatment has been
adopted so as to enable the student not only to understand the provisions of the Code,
but also to see how these provisions are applied in practice.
Every important section of the Code has been noted in its appropriate place supplemented
with latest decisions and efforts have been made to make the work as useful as possible to
all readers, not only as a guide to Indian practice but also as a readable summary of the
Code arranged in a manner best suited to the requirements of beginners in the study of law.
The work has been written in a special narrative form that gives it a very personal touch
distinguishing it from other books on the subject. Loyalty to the original form and style
has been maintained while incorporating the change in language of the pleadings and
terminology. Moreover, an attempt has been made to substitute the latest case law laid
down by the Supreme Court as well as various High Courts fin place of old case law.
The last edition in 2003 and since then the law through judicial decisions has undergone
a change, which has been duly incorporated at the appropriate places.
I take this opportunity to seek blessings of my parents and teachers, to thank my wife,
children and other family members, to express gratitude to my dear friends and esteemed
colleagues Dr Sudhir Kumar Jain, Sh Sanjay Kumar, Ms Neena Krishna Bansal, Ms
Shalinder Kaur, Ms Sarita Birbal and all those who guided me and gave valuable
suggestions in my work on this new edition. I express my sincere thanks to M/s LexisNexis,
Butterworths, New Delhi, for their support in publishing the book in its present form,
especially Ms Pankhuri Shrivastava Publishing Manager, Ms Sheeba Bhatnagar and Ms
Richa Kachhwaha, Senior Legal Editors, for providing all the necessary input, material
and support, as well as Ms Debarati Baneijee, Commissioning Editor.
New Delhi Vinay Kumar Gupta
February 2008
 Preface to the Eighth Edition

An acclaimed classic that has been in existenee for more than three quarters of a century
without losing any of its sheen or usefulness, was sure to present some diffieulties in
revision. The arrangement of the book as eonceived and adopted by Sir DF Mulla and
maintained by suceessive editors, is avowedly different from other books on the same
subject, which made the task of revision further difficult.
The object of the present work, as coneeived by Sir Mulla, is to give an idea to the student
of law, of the praetice and procedure in the conduct of suits in and out of court. The
Code of Civil Procedure, 1908 is a voluminous statute and it is impossible for anyone,
especially a student, to go through the entire Code and understand the same or be able to
distinguish relevant provisions. The work is a clear and brief exposition of the important
provisions of the Code and gives an overview of the eonduct of civil suits in Indian courts.
It is in the form of lectures that are fourteen in number. In these leetures, the course of an
ordinary suit is followed from the moment the plaintiff determines to sue till the time he
obtains a decree and thereafter it follows appeal by the defendant and fuither appeals. This
method of treatment has been adopted so as to enable the student not only to understand
the provisions of the Code, but also to see how these provisions are applied in practiee.
Every important seetion of the Code has been noted in its appropriate place, and efforts
have been made to make the work as useful as possible to students, not only as a guide
to Indian practice but also as a readable summary of the Code arranged in a manner
best suited to the requirements of beginners in the study of law.
Tire work has been written in a speeial narrative form that gives it a very personal touch
distinguishing it Ifom other books on the subject. The present edition, while trying to be
loyal to the original form and style, has tried to incorporate the ehange in language of the
pleadings and terminology. Moreover, an attempt has been made to substitute the latest case-
law laid down by tlie Supreme Court as well as various High Courts in plaee of old caselaw.
The last edition of the book was published in 1994 and thereafter, the Code underwent major
amendments. These amendments have been duly incorporated at the appropriate plaees.
I take this opportunity to thank my beloved wife and children and all those who assisted me
in my work on this edition. I would partieularly like to thank Mr Vidyaraya Chakravarthy,
Commissioning Editor, LexisNexis Butterworths whose invaluable help in providing the
neeessary material and support helped in publishing the book in its present form.

New Delhi Vinay Kumar Gupta

February 2003
 Preface to the Seventh Edition

Since the professed object of the present work is to give an idea to the student of the
practice and procedure in the conduct of suits in and out of court, and since the arrangement
of the book as conceived and adopted by Sir DF Mulla and painstakingly maintained by
successive editors is avowedly different than other books on the same subject, the task
of revision presented some difficulties. This work is acclaimed as a classic. It contains a
lucid exposition of the material provisions of the Code of Civil Procedure, 1908. However,
I felt that the utility of this work can be enhanced by providing further comments on the
material provisions of the Code with the decisions of Supreme Court and High Courts
and by adding certain topics which are useful from the student's point of view. While
making additions, I have tried to take care to see, as far as possible, that the flow and the
cadence of the book is not dismrbed. It became my obsession to ensure that this edition
must continue to meet the needs of the students as well as new entrants in the profession.
I feel immensely indebted to my father who has bestowed his utmost attention upon me
all throughout and which I have come to regard as my greatest fortune. I also take this
opportunity to acknowledge my deep sense of gratitude to Shri Girish R Pathak, Advoeate,
who affectionately initiated me into legal practice and whose bold and unhesitating
entrustment of contentious work gave me opportunities to observe and experience the
working of labyrinthine principles of civil law in actual practice and to M/s NM Tripathi
Pvt Ltd, Bombay for their support in publishing this work.

Ahmedabad Umesh D Shukla

15 February 1994
 Contents

Preface to the Twelfth Edition v

Preface to the Eleventh Edition viii
Preface to the Tenth Edition x
Preface to the Ninth Edition XI

Preface to the Eighth Edition xii

Preface to the Seventh Edition xiii

Table of Cases XXlll

Chapter 1 Introductory 1
Chapter 2 The Courts and Their Jurisdiction 6
2.1 Constitution of Courts 6
2.2 Jurisdiction 7
2.2.1 "Lack of Jurisdiction and Irregular exercise of Jurisdiction" 8
2.2.2 Original and Appellate Jurisdiction 9
2.2.3 Jurisdiction as regards Local Limits, Pecuniary Limits, and
Subject-matter 9
2.2.4 Ordinary Original and Extraordinary Original Civil Jurisdiction 11
2.3 Courts 11
2.3.1 Courts in Presidency Towns 11
2.3.2 Courts in Other Parts of India 11
2.3.2.1 Original Jurisdiction 12
2.3.2.2 Appellate Jurisdiction 12
2.3.2.3 Courts of Small Cause 13
2.3.2.4. Commercial Courts 13
2.4 The Three Rules 13
2.5 Suits of a Civil Nature 15
2.5.1 Express Bar 17
2.5.2 Implied Bar 19
2.5.3 "Jurisdictional Fact" 20
Chapter 3 The Four Essentials of a Suit 22
3.1 Parties 22
3.2 Cause of Action 25
3.3 Subject-Matter ' 28
3.4 Reliefs Claimed by the Plaintiff 28
3.4.1 Events Happening after the Institution of Suit 28
3.4.2 Reliefs in Suits on Contracts 29
3.4.3 Reliefs in Suits for Torts 30
3.4.4 Reliefs in Suits on Mortgage 30
xvi Mulla The Key to Indian Practice

3.5 Plaint in Suit for Specific Performance 31

3.5.1 Summary 32
3.5.2 Comment 33
Chapter 4 Place of Suing 34
4.1 Place of Suing 34
4.2 Sections 16, 17, 19 and 20 of the Code of Civil Procedure 35
4.2.1 Suits for Immovable Property 36
4.2.2 Where Cause of Action Lies in Foreign Country in Relation
to Shares of Indian Company Held by Foreign Citizens 38
4.2.3 Suits for Compensation for Wrong Done to the Person
or to Movable Property 38
4.3 Place where Wrong is Committed 39
4.4 Residence 43
4.5 Carries on Business 44
4.6 Personally Works for Gain 46
4.7 Clause 12 of the Charter 47
4.7.1 Suits for Land 47
4.7.2 Suits other than those for Land 47
4.8 Points of Distinction Between Sections 16, 17 and 20 of the Code and
Clause 12 of the Letters Patent 48
4.9 Ascertaining the Particular Court 48
4.10 Objection as to Place of Suing 49
4.10.1 Factors Constituting a Failure of Justice 51
4.10.2 Waiver of Objection to Territorial or Pecuniary Jurisdiction 51
4.10.3 "Objection under Section 21(3) Civil Procedure Code, 1908
in Execution Proceedings" 52
4.11 Objections as to Over-valuation and Under-valuation 52
4.11.1 "Forum Shopping" 53
4.11.2 Special Provisions with Regard to Matrimonial Disputes 54
Chapter 5 Parties and Cause of Action 55
5.1 Preliminary 55
5.2 Transactions as Distinguished from Cause of Action 55
5.3 Joinder of Parties 59
5.3.1 Joinder of Plaintiffs 59
5.3.2 Joinder of Defendants 60
5.4 Procedure in Case of Misjoinder of Parties 61
5.5 Joinder of Causes of Action 62
5.5.1 One Plaintiff, One Defendant, and Several Causes of Action 63
5.5.2 Joinder of Plaintiffs and Causes of Action 63
5.5.3 Joinder of Defendants and Causes of Action 64
5.5.4 Joinder of Plaintiffs, Defendants and the Causes of Action 66
5.6 Procedure in Case of Misjoinder of Parties and Cause of Action 66
 Contents

5.7 Non-Joinder of Parties <57

, 5.7.1 Effect of Non-joinder of a Necessary Party 67
5.7.2 Effect of Non-joinder of a Proper Party 68
5.7.2.1 "Who is a Proper Party? 68
Chapter 6 Steps; in a Suit 70
6.1 Institution of a Suit [Order IV, Rule 2] 70
6.2 Summons to Defendant [Order "V] 76
6.2.1 What Constitutes a Summons? 77
6.2.2 Service of Summons 78
6.2.3 Personal or Direct Service 78
6.2.4 Mode of Personal Service 80
6.2.5 Substituted Service 81
6.2.5.1 First Mode 81
6.2.5.2 Second Mode 82
6.3 Inspection of Documents Referred to in the Plaint [Order XI, Rule 15] 83
6.4 Written Statement [Order VIII] 83
6.4.1 Set-off and Counter Claim 86
6.4.1.1 Set-off 86
6.4.1.2 Counter Claim 88
6.4.2 Written Statement in Suit for Specific Performance 90
6.4.3 Non-Compliance with Order for Written Statement 90
6.4.4 Signing and Verification of Pleadings Under Order "VI,
Rules 14 and 15 91
6.5 Amendment of Pleading and Particulars 92
6.5.1 Application of Order "VI, Rule 17 to other Proceedings 95
6.5.2 Scandalous Allegations in Pleadings 95
6.5.3 Particulars 96
Chapter 7 Documents and Witnesses 97
7.1 Discovery and Inspection [Order XI] 97
7.1.1 Interrogatories 98
7.1.1.1 Form of Interrogatories 100
7.1.1.2 Form of the Affidavit in Answer 100
7.1.2 Affidavit of Documents 100
7.1.3 Premature Discovery 102
7.1.4 Inspection 103
7.1.5 Non-compliance with Order for Discover)^ or Inspection 104
7.2 Notice to Admit Facts or Documents [Order XII] 105
7.2.1 Admission should be Taken as "Whole 106
7.2.2 Conclusiveness of Admission 107
7.3 Summoning of Witnesses [Order XVI] 107
7.4 Production of Documents [Order XIII] 109
 Mulla The Key to Indian Practice

Chapters Hearing and Disposal 110

8.1 First Hearing and Settlement of Issues [Order X; Order XIII,
Rules 1-2; Orders XI-XV] 110
8.1.1 Whether the Suit can be Decided on a Single Issue Leaving
other Issues Undecided 113
8.2 Hearing of the Suit and Examination of Witnesses [Order XVIII] 117
8.2.1 Trial in Open Court 117
8.2.2 Trial in Camera 118
8.2.3 "Evidence Recorded by another Judge Under Order XVIII,
Rule 15" 120
8.3 Judgment [Order XX] 121
8.3.1 "Alteration in Judgment" 122
8.4 Decree [Order XX] 123
8.4.1 "Mesne Profits" 124
8.4.2 Kinds of Decree 125
8.4.3 Passing of more than one Preliminary or Final Decree 126
8.4.4 "Interest" Under Section 34 of Code of Civil Procedure 127
8.4.5 "Costs" Under Sections 35, 35-A and 35-B 128
8.5 Where Parties Do not Appear [Order IX] 130
Chapter 9 Execution of Decrees 134
9.1 Meaning of Execution 134
9.1.1 Application for Execution 135
9.1.2 Who May Apply for Execution 135
9.1.3 Against Whom Execution May be Applied for ' 135
9.1.4 Notice before Issuing Process 135
9.1.5 Mode of Execution 136
9.1.6 Execution Against Person of Judgment-Debtor 136
9.1.6.1 Decree for Payment of Money 136
9.1.6.2 Decree other than Money Decree 137
9.1.6.3 Procedure 137
9.1.6.4 Restriction and Conditions 138
9.1.6.5 Period of Detention and Release ' 138
9.2 Payment Out of Court 138
9.3 Garnishee 139
9.4 Stay of Execution 139
9.5 Execution Against Property of Judgment-Debtor 139
9.5.1 Irregularity in the Conduct of Sale of Attached Property 141
9.6 Disposal of Sale-Proceeds 142
9.7 Resistance to Delivery of Possession to Purchaser 142
9.8 Courts by which Decrees May be Executed 143
9.9 Percepts 143
9.10 Questions to be Determined by Court Executing Decree 143
 Contents XIX

9.11 Procedure 144

9.11.1 Execution of "Cross-Decrees" 144
9.12 Need for Parliaments Intervention to Scuttle Long Execution Process 144
Chapter 10 Appeals from Original Decrees 146
10.1 Appeals from Original Decrees 146
10.2 Court of Appeal 149
10.3 Memorandum of Appeal 149
10.4 Stay of Execution 151
10.5 Security for Costs 152
10.6 Notice of Day for Hearing Appeal 152
10.7 Cross-appeal and Cross-objections 152
10.8 Hearing of the Appeal I53
10.9 Judgment and Decree I57
0.10 Consequence of Non-appearance of Parties 157
Chapter 11 Appeals from Appellate Decrees or Second Appeals 158
11.1 Second or Special Appeals 158
11.1.1 What is Substantial Question of Law? 161
11.1.2 In what Cases is a Second Appeal Possible? 162
11.2 Appeals to the Supreme Court 163
11.2.1 Procedure in Appeals to the Supreme Court 164
11.3 Appeals from Orders 165
11.4 The Next Chapter 166
Chapter 12 References, Revision and Review 167
12.1 Reference I67
12.2 Revision 168
12.3 Review of Judgment [Order XLVll] I7I
12.4 The Next Chapter I74
Chapter 13 Supplemental and Special Proceedings 175
13.1 Arrest and Attachment before Judgment 175
13.1.1 Arrest before Judgment,[Order XXXVlll, Rules 1-4] 176
13.1.1.1 Application for Arrest before Judgment 176
13.1.2 Attachment before Judgment [Order XXXVlll, Rules 5-12] 177
13.2 Temporary Injunction [Order XXXIX] I79
13.2.1 Res Judicata on Injunctions 182
13.3 Receiver [Order XL] . 182
13.3.1 Status of Receiver 183
13.4 Security for Costs [Order XXV] 185
13.4.1 Discretion of the Court 185
13.5 Withdrawal of Suits [Order XXlll, Rules 1-2] 185
13.5.1 Application of Order 23 Rules 1 and 2 to other Proceedings 187
 Mulla The Key to Indian Practice

13.6 Payment into Court [Order XXIV] 188

13.7 Compromise of Suits [Order XXIII, Rule 3] 188
13.8 Special Case [Section 90; Order XXXVI] 190
13.9 Death, Marriage and Insolvency of Parties [Order XXII] 191
Chapter 14 Suits in Particular Cases 195
14.1 Scope 195
14.2 Notice Before Suit 195
14.3 Consent before Suit 197
14.3.1 "Doctrine of Cypres" 198
14.4 Title of the Suit 198
14.5 Parties 198
14.6 Contents of Plaint 199
14.7 Signing and Verification of Pleading 199
14.8 Service of Summons, Appearance, etc. 199
14.9 Procedure 200
14.10 Decrees 200
14.11 Execution of Decrees 200
14.12 Other Special Provisions 200
14.13 Interpleader Suits [Section 88, Order XXXV] 200
14.14 Suits by or Against Minor and Lunatic [Order XXXII] 201
14.14.1 Order XXXII—A "Suits Concerning Family Matters" 202
14.15 Suits by Indigent Persons [Order XXXIII] 202
14.15.1 Appeal as Indigent Person 205
14.16 Suits by or Against Firms [Order XXX] 205
14.16.1 When Partners May Sue or be Sued in Firm Name 205
14.16.2 Suit by a Firm 205
14.16.3 Suit Against a Firm 205
14.17 Suit Involving Question of Interpretation of Constitution or Validity
of Statutory Instrument 206
14.18 Summary Suits 207
14.19 Bar of Certain Suits 209
14.19.1 A Suit may be Barred as Res Judicata [Section 11] 209
14.19.1.1 Conditions 211
14.19.2 "Res Judicata Between Co-Defendants" 211
14.19.3 "Pro Forma Defendants" 212
14.20 "Matter Collaterally in Issue" 213
14.20.1 Representative Suits 214
14.20.2 Courts of Limited Jurisdiction 214
14.20.3 Applicability of Res Judicata to other Proceedings 214
14.20.4 Stay of Suit 215
14.20.5 Restitution 217
 Contents XXI

14.21 Miscellaneous 219

14.21.1 Foreign Judgments 219
14.21.2 Caveat 220
14.21.3 Powers of Court 221
14.21.3.1 Enlargement of Time (Section 148) 221
14.21.3.2 Inherent Powers 222
14.21.3.3 Power to Correct Error 223
14.21.3.4 Transfer of Suit 224
Chapter 15 Alternative Disputes Redressal Mechanisms (ADR) 226

Appendix City Civil Courts and their Jurisdiction 229

Index 231
 Table of Cases

A
ABC Laminart Pvt Ltd yAP Agencies, Salem, AIR 1989 SC 1239 :(1989)2 SCC 163 7,43
Abdul Gafur v State of Uttarakhand,(2008) 10 SCC 97(102, 103): 2008 (11) Scale 263 26, 111
Abdul Hamid v Illrd ADJ Mainpuri, 2000 All LJ 763:2000 (1) All WC 276 13
Abdul Jabar v State ofJammu and Kashmir, AIR 1957 SC 280:(1957)SCR 51, 59 95
Abdul Kareein v Hashim, 2010 (3) KLT 667:2010 (2) Ren CR 647(DB) 68
Abdulla Bin Ali v Galappa, AIR 1985 SC 577: 1985 (1) Scale 1205 11
Abdul Raheem v Karnataka Electricity Board, AIR 2008 SC 956 :(2007) 12 SCR 389 162
Abdul Rahman z/Prasony Bai, AIR2003 SC718:(2003) 1 SCC488 113
Adarsh Palace Pvt Ltd z'Somanath Dwibedi,AIR2010(NOC)490(DB):(2009) 108 CLT74(77);
2010 AIHC(NOC)676(OrLDB):2009 (Supp.) Ori LR 902 99
Adi Pherozshah Gandhi v HM Seervai, Advocate General of Maharashtra Bombay, AIR 1971 SC
385:(1971) 1 SCR 863 147
Afcons Infrastructures Ltd v Cherian Varkey Construction Co Pvt Ltd, (2010) 8 SCC 24 (38):
(2010) 8 SCIU053 112, 226
AFL Developers Pvt Ltd v Veena Trivedi, AIR 2000 Del 354:2000 IV AD Delhi 492 99
Ahmed Abdulla Ahmed Al Ghurair y Star Health and Allied Insurance Co Ltd,AIR 2019 SC 413:
2019 (1) CTC2I1 : 2019 (1) LW577:2018 (15) Scale 133 vi, 38
Ajay Mohan v HN Rai,(2008)2 SCC 507: AIR 2008 SC 804 111
AjitGaitondeyEzilda EC Pinto, 2009 AIHC 3292(Bom-DB): 2011 (1) RCR (Civil) 477 113
Ajit Singh y Jit Ram,AIR 2009 SC 199 (203) : 170
AK Mukherjee v Regional Institute ofPrinting Technology, AIR 2003 Cal 40 10
Alchemist Ltd y State Bank ofSikkim,(2007) 11 SCC 335 :AIR 2007 SC 1812 : 2007 (6) Andh
1X21(SQ '25
Alka Gupta y Narendra Kr Gupta, AIR 2011 SC 09 (13, 14) : (2010) 10 SCC l4l (I47,
149, 150) 17,27,56,210
Amal Kumar Ghosh v Basant Kr Almal,(2010) 11 SCC 78 (83): 2010 (4) Scale 651 184
Amarjeet Singh y Devi Ratan, AIR 2010 SC 3676 (3681):(2010) 1 SCC 417 181
Amarjit Singh Kalra v Pramod Gupta,AIR 2003 SC 2588:(2003) 3 SCC 272 192
Amar Singh y Jagdish, AIR 1976 P&H 276 60
Amar y UOI, AIR 1973 SC 313:(1973) 1 SCC 115 75
Amir Khanna v Suchi Khanna,(2009) II DMC 227(All—DB) 224
Andhra Bank Ltd v R Srinivasan, AIR 1962 SC 232 219
Anil K Surana v State Bank of Hyderabad,(2007) 10 SCC 257 189
Anil Kumar Singh v Shiv Nath Mishra,(1995) 3 SCC I47: 1994 (4) Scale 953 24, 25
Anil Rai y State ofBihar, AIR 2001 SC 3173:(2001)7SCC 318 ' 121
AnisminicLtd y Foreign Compensation Commission,(1969)2AC 147 :(1969) 2 WLR 163 9
Anurag Mittal v Shaily Mishra Mitral,(2018)9 SCC 691 : AIR 2018 SC 3983 187
AR Antulay v RS Nayak, AIR 1988 SC 1531 :(1988)2 SCC 602 210
Archdiocese of Bhopal v Hasan Kabir, 2009 (4) MP LJ 530 (533, 535) (DB) : ILR [2009]
MP3351 104
Arjan Singh v Punit Ahluwalia, AIR 2008 SC 2718 (2720):(2008)8 SCC 348 (355. 357) 182, 188
Arjun Khiamal Makhijani yJamnadasTuliani, AIR 1989 SC 1599: 1989 (2) Scale 780 110 ■
Arjunlal Gupta v Mriganka Mohan, AIR 1975 SC 207:(1974)2 SCC 586 58
Arjun Singh y Kartar Singh, AIR 1951 SC 193:(1951)2 SCR 258 156
Arjun Singh y Mohindra Kumar, AIR 1964 SC 993: 1964 SCR(5) 946 182
Arundhati Mishra v Sri Ram Chatritra Pandey,(1994)2 SCC 29: 1994 3 RRR 146 93
ArunTiwari v Zila Mansavi Shikshak Sangh, AIR 1998 SC 331 : 1998 (I)JLJ 114(SC):(1998) 2
SCC 332 23
Asgar y Mohan Varma, 2019 (2) Scale 530:2019 (1) WLN 183(SC) , 19
Asghar Ali & Co y Vappala Satyanarayana, AIR 1957 Cal 317 4l
Ashok Kumar y National Insurance Co, AIR 1998 SC 2046 209
Ashok Sharma y Ram Adhar,(2009).11 SCC 47(50):(2009) 2SCR 9 108
Ashutosh Chaturvedi v Prano Devi, AIR 2008 SC 2171 :AIR 1975 Pat 336 ; AIR 1986 Ori 119:
(2004) 3 SCC 392:AIR 1957 SC 357:2006 (13) Scale 332 92
Aspi Jal y Khushroo Rustom Dadyburjor, 2013(4) SCC 333 215
 xxiy Mulla The Key to Indian Practice

Associated Engineering Industries v Indet Mohan Kohli, AIR 2000 Del 90 : 2000 (2) RCR
(Civil) 93 115
Atcom Technologies Ltd v YA Chunawala & Co,(2018)6 SCC 639:2018 SCC SC 499 84
Attar Singh n State of Uttar Pradesh, AIR 1959 SC 564 : 1959 Supp (1)SCC 928 85
Azeez Sait i/Aman Bai, AIR 2003 SC 4444:(2003) 12 SCC 419 192
Azizabi v Fatima Bi,(1977) 1 Andh WR 136 (141) DB 127

B
Babbar Sewing Machine Co nXrilokNathMahajan,AIR 1978 SC 1436:1978(4)ALR747 1978
4 SCC 188 ; 104
Babu Ram n Indra Pal Singh, AIR 1998 SC 3201 :(1998)3 SCR 1145 159
Bada Bodiah v Bada Lingaswamy, 2003 AIHC 1285 (AP): 2003(1) Andh LD 790 109
Balirein Petroleum Co vPappu, AIR 1966 SC 634 ;(1966) 1 SCR 461 49
Bajaj Hindustan Sugar & Industries Ltd'v Balrampur Chini Mills Ltd,(2007) 9 SCC 43(51) 196
Bakhtawar Singh Balkishan v UOI, AIR 1988 SC 1003 : AIR 1983 Del 201 : (1988) 2
SCC 293 ; J ; ' 40,43,45
Bakshish Singh v Prithi Pal Singh,(1995) Supp 3 SCC 577 : 93
Balbir Singh v Sanjay Dave,JT 2000 (7) SC 394:AIR 2002 SC 3563 ; : 184
Bal Mukund Ptasad Gupta v Mathura Prasad, AIR 2002 All 363:(2002) ILR 2 All 586..... 70
Balraj Taneja v Sunil Madan,(1999) 8 SCC 396:AIR 1999 SC 3381 86, 91, 122
.Baluram v P Chellathangam, AIR 2015 (SC) 1264 : 2015 (2) Andh LT 44 (SC): 2015 1 All
WC3SC : ; 25
Balwant Singh v Jagdish Singh,(2010) 8 SCC 685 (698): AIR 2010 SC 3043 194
Banarsi v Ram Phal, AIR 2003 SC 1989 :(2003)2 SCR 22 ;(2003)9 SCC 606 147, 153
Bankof Baroda f Moti Bhai, AIR 1985 SC 545 : 1985 SCR(2)784 ; ' 8
Bank ofIndia v Mehta Bro's, AIR 1984 Del 18 : 1983(5) DRJ 252 ' 46
Banwari Lai v Chando Devi,(199.3) I SCC 581 :AIR 1993 SC 1139 ' 189
Basant Singh n Roman Catholic Mission,(2002)7SCC 531 : AIR 2002 SC 3557 ^ 81
Bashir Ahmed v Abdul Rahman, AIR2004SC3284 158
Bengal Waterproof Ltd v Bombay Waterproof Mfg Co, AIR 1997 SC 1398:(1997) 1 SCC 99 .... 56
Bennett Coleman & Co Ltd t'Janaki Ballav Patnaik, AIR 1989 Ori 145 109
Bhagwani Devi Mohata Hospital vADJ Raigath, AIR 2005 Raj 274:2005 (2) WLC 90 101
Bhagwati Prasad v Chaudramaul, AIR 1966 SC 735:(1966) 2 SCR286: 1967(15) BLJR 158.... 28
Bhakti Hari Nayak v Vidyawati Gupta,AIR 2005 Cal 145 ; 2005 (2) CHN 575 71
Bhanu Kumar Jain f'Archana Kumar, AIR 2005 SC 626:(2005) 1 SCC 787 132, 148, 209
Bharatha Matha f R Vijya Renganathan,(2010) 11 SCC 483(489):(2010) 11 SCC 483 162
Bharat Overseas Construction Pvt Ltd t/University Teachers Co-op Housing Society Ltd, AIR 1991 ■
Del 20:39(1989) DLT 446 105
Bhaskar Aditya v Minati Majumdar, AIR 2003 Cal 178(DB);(2003)2 Cal LT 463 '. 184
Bhavesh Jayanti Lakhani v State of Maliarashtra,(2009)9 SCC 551 (588)...! 220
Bhikaji Keshao Joshi v Brijlal Nandlal Biyani, MR 1955 SC 610:(1955)2SCR 428 92
Bhopd Wholesale Consumer Co-op Store Ltd v Madan Lai Gandhi, 2009 (2) MP LJ 219
(221-22)(DB) 203 '
Bhuti Bai v Ramnaiayan,(2009)4 SCC 56 : 2009 (2) Scale 3 '. 161
Bihari Chaudhary v State of Bihar, AIR 1984 SC 11, 1043:(1984)2 SCC 627 196, 197
Bijay Kumar v State ofJharkhand, AIR 2005 SC 2435 223
Billajagan Mohan v Billa Sanjeeva,(1994) 4 SCC 659 109
Bimal Kumar v Shakuntala Debi, 2012(3) SCC 548:AIR 2012 SC 1586 126
Bina Murlidhar Hemdev v Kanhaiyalal Lakram Hemdev, AIR 1999 SC 2171 : 1999 (3)
SCR 677 ; 8
Bisham Dayal & Sons v State of Orissa, AIR 200! SC 544 ■ 197
Bishnu Bhagat v Puhpa Devi, AIR 2006 Jhar 117; 2006 (3)JCR 457(Jhr) 147
Bishundeo Narain v Seogeni Rai, AIR 1951 SC 280:(1951)2 SCR 548 96
B Jagadeswar v Govt ofAP, 2008 (2) All LT 515 (520)(DB) 221
B Janakiramiah Chethy v AK Partita Sarthi, AIR 2003 SC 3527:2003 (3) Scale 660 117
BKN PillaivPPiUai, AIR 2000 SC 614 95
Board of Control for Cricket, India v Netaji Cricket Club, AIR 2005 SC 592 : (2005) 4
see 741 ; 171,173
BOI!/Lakhimani Das,AIR2000 SC 1172:(2000) 3 SCC 640 ; ' 176
Bollepanda P Poonacha v KM Madapa,(2008) 13 SCC 179 (183-185):AIR 2008 SC 2003 88,93
Bombay Gas Co vShridhar Bhau, AIR I96I SC 1196:(1975) 4 SCC 690 214"
Bondla Ramalingam v Shiv Barasiddiah, AIR 1979 AP 180 83
 Table of Cases

BP Moiddeen Sevamandir vAM Kutty Hassan,(2009)2SCC 198 (205): 2008 (16) Scale 364 ... 115
B Prabhakar Rao V State of AP,(1985) Supp SCC 432 ; AIR 1986 SC210:1985 Lab IC 1555 24
British Association of Glass Botde Manufacturer v Netdeford,(1912)AC 709 ;■ 81 LJKB 1125 , 102
Brunsden f Humphrey, (1884) 14 QBD I4l ; 5g
BS Krishna Murthy v BS Nagaraj, AIR 2011 SC 784 : 2011 (1) Scale 431 ....: 227
Bullock V London General Omnibus Co, (1907) KB 264 61
BV Sulunka v Kadarappa, AIR 1974 Mys 63 ; '. 216
Byram Pestonji Gariwala a Union Bank of India, (1992) 1 SCC 31 : AIR. 1991 SC 2234 189, 190
c
Calcutta Swimming Club v Laiit Singh, 2009 (2) Cal HN 379 (384) (DB) 182
Canara Bank v Garts IndTex Pvt Ltd, 2009 (1) KLT 368 (371-72) (DB) 26
Canara Bank v NG Subbaraya Setty, (2018) 16 SCC 228 : AIR (2018) SC 3395 v, 18
Cantonment Board v Church of North India, 2012 (12) SCC 573 50, 123
CA Suiaiman v State Bank ofTravancore, AIR 2006 SC'2848 : (2006) 6 SCC 392 160
Cellular Operators Association of India v UOI, AIR 2003 SC 899 ; (2003) 3 SCC 186 164
Central Bank of India, Manipur v Vasant Kimi, AIR 1999 Bom 409 207
Central Bank of India v Ravindra, (2002) 1 SCC 367 ; AIR 2001 SC 3095 127
CentraiBankofIndia!;ShivamUdyog,AIR1995 SC711 :(1995)2SCC74 ' 101
Central Bank of India y State of Gujarat, AIR 1987 SC 2320 ; 1987 (2) Scale 510 on other point.... 151
Central Bank of India v Vrajlal Kapurchand Gandhi, AIR 2003 SC 3028 : (2003) 6 SCC 573 168
Century Textiles Industries v Deepak Jain, (2009) 108 Cut LT 226 (231) (SC) ; 223
Chananjit Lai Mehra v Kamal Saroj Mahajan, AIR 2005 SC 2765 : (2005) 11 SCC 279 106
Chander Kanta Bansal v Rajinder Singh Anand, (2008) 5 SCC 117 (122): 2008 AIR SCW 3225 ... 92
Chand Koer yPratap Singh, (1889) 15 lA 156 : (1889) ILR 16 Cal 98 25
Chandrabhai K Bhoir v Krishna A Bhoir, AIR 2009 SC 1647 : (2009) 2 SCC 315 211
Chandra Shekhar Pattjoshi y Jogendra Pattjoshi, AIR 2004 Ori 131 : 97 (2004) Cut LT 465 ,119
Cbandrika Prasad y Umesh Kuinar Verma, AIR 2002 SC 108 : (2002) 1 SCC 531...'. 169
Chetak Construction Ltd y Om Prakash, 1998 (3) RCR (Civil) 644 53
Chhagan Lai y Kamal Chand, (2008) 3 SCC 303 179
ChhotalalyAmbalalHargovan, AIR 1925 Bom 423: (1925) 27 Bom LR 685 " 132
Chhotanben y IGritbhai Jalkj-ushnabhai Thakltar, AIR 2018 (SC) 24^7 : 2018 (5) Andh LD 29 :
2018 (5) ALL MR 946 ; 2018 (128) ALR 719 : 2018 (4) Bom CR 293 : 126 (2018) CLT 346 :
2018 (4) CTC206 : 2018 GLH (3) 338 : (2018) 3 GLR2308': 2018 (3) JLJR 199 : 2018 (2)
JKJ 10 (SC), 2018-3-LW 118 : 2019 (2) Mad LJ 17 : (2018) 5 Mad LJ 588 : 2018 (II) Ori LR-
188 : 2018 (3) Pat LJR234 : 2018 140 RD 418 : 2018 (5) Scale 472: (2018) 6 SCC 422 : 2018
(4)SCJ517 ; 74
Chief Secretary to Government y Khalid Mundappilly, 2011 (l)RCR (Civil) 769 : 2010 (3)'
Ker LT 757 i 172
Chinnammal y Arumugbam, AIR 1990 SC 1828 : (1990) 1 SCC 513 218
Chitra Constructions Pvt Ltd y S Subramanyam & Co, AIR 2008 (NOC) 2501 (Mad) 188
Chittam Subbayya y Muthyala Ramachandrappa, AIR 1945 Mad 84 129
Chloride India Lrd y Ganesh Das Ram Gopal, AIR 1986 Cal 74 (DB) 221
Chunilal y Mehta and sons y entury Spg & Mfg Co Ltd, AIR 1962 SC 1314 162
Church of Christ Charitable Trust & Educational Charitable Society y Ponniamman Educational
Trust, 2012 (8) SCC 706 : 2012 (3) RCR (Civil), 811 ; 73
Church of North India y Lavajibhai Ratanjibhai, AIR 2005 SC 22544 : (2005) 10 SCC 760 ; 2005
(7) Scale 75 20, 73
CIT, Bhubaheshwar y Parmeshwari Devi Sultania, AIR 1998 SC 1276 : (1998) 3 SCC 481 1 17
C Natrajan y Ashim Bai, AIR 2008 SC 383 (DB) : (2005) 7 SCC 5101 (2004) I SCC 271,
relied on ! : 74
Cohen y Nursing Dass, (1892) 19 Cal 201 81
Collector y Bagathi Krishna Rao, (2010) 6 SCC 427 (429): AIR 2010 SC 2617 198
Commissioner, Hindu Religious Endowments, Madras y Sri Lakshmindra Thirtha Swamiar of
Sri Shirur Murt 1954 SCR 1005 : AIR 1954 SC 282 ; ,...; 15
Commr, Hindu Religious and Charitable Endowment y P Sharrmugamma, AIR 2005 SC 770 : .
(2005) 9 SCC 232 ! 158,161
Compania Sansinena y Houlder Bros, (1910) 2 KB 354 65
Competent Authority Calcutta, Under the Land (Ceiling And Regulation) Act, 1976 y David
Mantosh, 2019 SCC SC 277 . 19
Cooke yGill, (1873) 8CP 107 ,. .-. 25
\ - ' "
xxvi Mulla The Key to Indian Practice

Cotton Corp ofIndia v United Industrial Bank, AIR 1983 SC 1272 223
Cropperi;Smith,(1884) 29 Ch D 700 92
OS Mani B Chinnasamy Naidu,MR 2oio SC 3600(3601):(2010)9 SCC 513 140
Currimbhai y NH Moos, MR 1929 Bom 250 :(1929) 31 Bom LR468 132
CW Corp V Central Bank ofIndia, MR 1973 AP 387 45
D

Dabur India Ltd v KR Industries, MR 2008 SC 3123(3130):(2008) 10 SCC 595 26

Dalip Singh v Mebar Singh,(2004)7 SCC 650 56, 57
Dalpat Kumar z'Prahlad Singh, MR 1993 SC 276:(1992)2 Mad LJ 49 SC 8
Daman Singh v State ofPunjab, MR 1985 SC 973, relied on 203
Damodarar Pillai z; South Indian Bank, MR 2005 SC 3460:(2005)7 SCC 300 ' 222
Daryao v State of Uttar Pradesh, MR 1961 SC 1457 214
Datta Ram Ramesh Kr z; DIG, BSF, Rajasthan, MR 2011 Raj 76 (78)(DB): RLW 2011 (1)
Raj 800 160
Datt Enterprises Ltd v VK Dua,MR 2006 Del 16 207
DAV Boys Sr Secondary School v DAV College Managing Committee,(2010)8 SCC 401 (405)... 224
Dayaram z'Sudhir Batham, 2012(1) SCC 333 : 2011 (11) Scale 448 160
DCS Bureau v United Concern,MR 1967 Mad 381 41
DDA z; Joginder S Monga,(2004)2 SCC 297:MR 2004 SC 3291 128, 147
Deepa Bhargava z/Mahesh Bhargava,(2009) 2 SCC 294:2009 (1)SC 472 189
Delhi Administration v Gurdip Singh,(2000)7 SCC 296:2000 (5) Scale 651 172, 173
Delhi Financial Corpn v Ram Parshad, MR 1973 Delhi 28 167
DeshBandhu Gupta z^NLAnand,(1994) 1 SCC 131 : 1993 (3) Scale 791 143
Devaki Antharjanam zz Srudharan Namboodri,(2009)7SCC 798 170
Deva Ram v Ishowar Chand,(1995)6 SCC 733:MR 1996 SC 378 147
Devarapalli Pattabhi Ramaiah v Lakshmi Prasanna,'(1997) 3 AP LJ 475 ;(1998)2Andh LD 783:
(1997)6A11LT475(DB) 119
Devchand v Ghanshyan,MR 1935 Bom 136 :(1935) 37 Bom LR417 15
Dexter Ltd z^ Hill Crest Oil Co,(1926) 1 KB 348 148
Dharam Singh z; Karnail Singh, MR 2009 SC 758 (760):2008 (13) Scale 444 161
D Hemchandra Sagar v D Prithviraj, MR 2004 Kant 33... 203
Dhian Singh z/ UOl,MR 1958 SC 274 197
Dhruv Green Field Ltd v Hulcam Singh,(2002)6 SCC 416:2002 Supp (1) SCR 449 20
Dhulabhai v State of Madhya Pradesh, MR 1969 SC 78: 1968 SCR (3) 662 19
Dhurander Pratap Singh zz JP University, MR 2001 SC 2552:(2001)6 SCC 534 192
Dijabar zz Sulabha, MR 1986 Ori 38, MR 1987 Guj 205 151
Dinesh K Singhania v Calcutta Stock Exchange Association Ltd,(2005) 2 CHN 601 (Cal-DB) 85, 106
Director ofInspection ofIncome Tax*zzPooran Mai & Sons,(1975)4 SCC 568 : MR 1975 SC 67:
(1975)2 SCR 104 3
Dist Collector, Srikakulam zz Bagathi Krishna Rao,MR 2010 SC 2617:2010(81) ALR247: 2010
(3)UC16I0 23
DLF Housing and Construction Co Pvt Ltd v Sarup Singh, MR 1971 SC 2324 170
Dolfy A Pias @ Adolphys Joseph Pais,(2014) 10 SCC 731 190
Dondapati Narayanan Reddy v Duggi Reddy,(2001)8 SCC 115: MR 2001 SC 3685 93
D Ram Mohan Rao v Sridevi Hotels Pvt Ltd, MR 2003 NDC 345 (AP) : 2005(3) AP LJ
(HC) 199 104
Drincqubier zz Wood,(1889) 1 Ch393 60
Dr Rao VBJ Chelikani v Govt ofAP,2010 (2) All LT 94 (125)(DB) ! 214
DR Rathna Murthy zzR^uappa, 2011 (1) SCC 158:2010 (10) Scale 625 159
DR Somayajulu, Secretary DLS zz Attili Appala Swamy, 2015 (2) SCC 390:MR 2015 SC 569 193
DTC zz International Avenues, 161 (2009) DLT 16:MR 2009(NOC)2760 (Del-DB) 218
DV Paul V Manisha Lalwani, MR 2010 SC 3356 (3361) 221
Dwarika Prasad v Rameshwar Dayal,(2010) 13 SCC 569 (572): 2010 (2) Andh LD 79(SC) 74
Dwarka Prasad Agarwala v Ramesh Chandra Agarwala, MR 2003 SC 1969:(2003)6 SCC 220... 16
Dwarka Prasad Aggarwal zz BD Aggarwal,(2003)6 SCC 230 : MR 2003 SC 2686 188
Dwarka Prasad Bai v Rajkunwar Bai, MR 1976 MP 214: 1976 Jab LJ 242 108
E

Eastern Equipment & Sales Ltd zz Yash Kumar Khanna,MR 2008 SC 2360 : 2008 (6) Scale 498.... 156
East India Cotton Manufacturing Co Ltd v SP Gupta, 28 (1985) DLT 22 ; 1985 (8) DRJ 348 132
 Table of Cases xxvii

East India Transport Agency v National Insurance Co Ltd, AIR 1991 AP 53(FB) 43
Ebrahim Mohammadbhai v State, AIR 1975 Bom 17 73
Embassy Hotels Pvt Ltd v Gajaraj & Co,2015 (1) RCR (Civil) 310 ;(2015) 14 SCC 316 I4l
Emkay Exports v Madhusudan Shrikrishna, 2008 Bom CR 522 208
Escorts Farms Ltd v Commissioner Kumaon Division, Nainital, AIR 2004 SC 2186 ; (2004) 4
SCC 281 209
Estralla Rubber v Dass Estate,(2001)8 SCC 97: AIR 2001 SC 3295 94
Eureka Estates Pvt Ltd v APS CDR Commission', AIR 2005 AP 118 (DB): 20C4 (6) Andh
LD212 172
Everest Coal Co Pvt Ltd v State of Bihar, AIR 1977 SC 2304:(1978) 1 SCC 12 184
Exphar SA V Eupharma Laboratories Ltd, AIR 2004 SC 1682:(2004)3 SCC 688 73
F
Far Eastern Steamship Co v Kokia Trading Co Ltd, AIR 1978 AP 433 39
Fargo Freight Ltd v Commodities Exchange Corporation, AIR 2004 SC 4109 : (2004) 7
SCC 203 139
Fatehji & Co V LM Nagpal, 2015 (2) RCR (Civil) 999: AIR 2015 SC 2301 74
Fatma Bibi Ahmed Patel v State of Gujarat,(2008)6 SCC 789(796):AIR 2008 SC 2392 214
Firm Seth Radha Kishan v Administrator, MC, Ludhiana, AIR 1963 SC 1547 : 1964 SCR
(2)273 20
Food Corp ofIndia v Yadav Engineer and Contractor, AIR 1982 SC 1302 1 84
Foreshore Co-op Housing Society Ltd v Praveen D Desai (Dead), 2015 (2) RCR (Civil) 442:AIR
2015 SC 2006 114
Fuerst Day Lawson Ltd vjindal Exports Ltd, 2011 (8) SCC 333:(2011) 11 SCR 1160

G
Ganapati Madhav Sawant v Dattur Madhav Sawant,(2008) 3 SCC 183 : 2008 (1) Scale 645 124
Ganesha Row vTuljaram,(1913)40 lA 1 202
Gangabai Gopal Das Mohata v Ful Chand, AIR 1997 SC 1812: 1997(1) Scale 1 144
Gangadhar v Raj Kumar,(1984) 1 SCC 121 I93
Gangai Vinayagar Temple f Meenakshi Ammal,(2009) 9 SCC 757(769) 17
Gauri Shankar Das v KC Das Pvt Ltd, 2011, AIR CC 1711 (Cal-DB) 72
Gayathri Women Welfare Association v Gowramma, (2011) 2 SCC 330 (339) : AIR 2011
SC785 88
GC Care Centre & Hospital v OP Care Pvt Ltd, AIR 2004 SC 2339 :(2004)6 SCC 756 ' 216
G Christhudas r; Anbiah, AIR 2003 SC 1590 ' 222
Geeta Devi v Puran Ram Raigar,(2010)9 SCC 84:(2010) 10 SCR 969 159
Ghanshyam Das v Dominion ofIndia,(1984)3 SCC 46 197
Ghewarchand vMahendra Singh,(2018) 10 SCC 588 ; 2018 SCC (SC) 1582 -74
Ghulam Rasool v Ghulam Hassan Reshi, AIR 2003 J&K 6 202
Giasi Ram vRam Lai, AIR 1969 SC 1144 :(1969) 3 SCR 944 I54
Gita Ram Kalsi v Prithvi Singh, 1956 PLR 200 212
Globe Transport Corp v Triveni Engineering Works,(1983)4 SCC 707:(1984)86 PLR 259 7
Gopal Krishna f Meenakshi, AIR 1967 SC 155: 1967(15) BLJR222 149
Gopal Singh v Swaran Singh,(2019)2 SCC 177 19, 196
Government ofAP v M Pratima Reddy, 2010 (1) All LT 256 (271)(DB) 147
Govindammal (dead) by LRs v Vaidiyanathan, 2019 (132) ALR 232 : 2019 1 AWC 51 SC : 127
(2019) CLT 245 ; 2019 GLH (1) 64 : 2019-1-LW 385, 2018 (II) Ori LR 1002 ; 2018 (14)
Scale 198 , 17,211
Govindraju v Mariamman,AIR 2005 SC 1008 :(2005) 2 SCC 500 161
Govindram v Devi, AIR 1982 SC 989 177
Govt of Kerala v Sudhir Kumar Sharma, 2013 (10) SCC 178 196
GP Srivastava v RK Raizada, AIR 2000 SC 1221 ;(2002) 3 SCC 54 130
Gram Panchayat vAmar Singh,(2000) 10 SCC 644 194
Gujarat Bottling Co Ltd v Coca Cola Co,AIR 1995 SC 2372:(1995) 5 SCC 545 181
Gujarat Maritime Board v GC Pandya, 2015 (3) RCR (Civil) 94:2015 (111) ALR 234 91
Gujarat Urja Vikas Nigam Ltd v Solar Semiconductor Power Co (India) Pvt Ltd (SC). Civil Appeal
No.6399 OF 2016 dated 25-10-2017 222
Gullipalli Naram Naidu v Kanthali Kumaswami Pandian, AIR 2003 AP 481 : 2003 (2) All
LT406 ' 120
Gurbux Singh v Bhooralal, AIR 1964 SC 1810 : 1964 SCR(7) 831 57
 Mulla Hie Kev to Indian Practice

' Gurdev Kaur y Kaki, AIR 2006 SC 1975 ;(2007) 1 see 546 158
Gufdev Singh v Amarjit Singh, AIR 2011 P&H 77(80): 2011 (5) RCR (Civil) 643 ; 194
Gurdial Singh v Raj Kumar Aneja, AIR 2002 SO 1003 :(2002) 2 SCO 445 95
^Gurinderpal i/Jogmitter Singh,(2004) 11 SCC219 56
Gurnam Singh(D)by LRs v Lehna Singh (D) by LRs Civil Appeal No 6567 of2014 dt 13.3.2019
(SO 159
Gyanajeet Moharana v Binodini Patianaik,(2009) 107 Cut LT 132(134-135)(DB) 196
H
Hakam Singh v Gammon (India) Ltd, AIR 1971 SC 740 41,45
Hameeda Begum v Champa Bai, 2009 (3) MPLJ 472(492)(DB) 211
Hammappa v Chikkannaiah, 2009 (1) Kar LJ 269(273)(DB) 72
Hanil Era Textiles Puromatic Filters, AIR 2004_SC 2432..'. 4l
Hardyal Singh v Kamlinder Kaur, 2002 AIHC 2171 (Del):97(2002) DLT 868 109
Hari Shanker Rastogi v Sham Manohar,(2005) 3 SCC 761 :(2005) 2 SCR 950 152
Harry Kempson Gray v Bhagu Mian, AIR 1930 PC 82 125
Harshad Chimanlal Modi v DLF Universal Ltd,(2006) 1 SCC 364: AIR 2006 SC 646:AIR 2005
- SC4446:(2005)7SCC 791 41, 51. 76
Harshvardhan Chokkani v Bhupendra N Patel, AIR 2002 SC 1373 :(2002) 3 SCC 626 170
Haryana State Co-op Land Development Bank v Neelam, AIR 2005 SC 1843 :(2005) 5 SCC 91... ' 186
Haryana State Industrial Development Corporation v Cork Manufacturing Co,AIR 2008 SC 56 :
2007 (10) Scale 515 156
Hatimbhai V Framroz, AIR 1927 Bom 278 :(1927) 29 Bom LR 498 47
HBLLtdz^UOI,(2001)7ADDeI 1060 68
H Dohil Constructions Co Pvt Ltd v Nahar Exports Ltd, 2015 (1)SCC 680 ; 2014(9) Scale 503... 151
Hema Khattar i; Shiv Khera, AIR 2017 SC 1793: 2017(4) Andh LD 85 : 2017.(4) ALL MR 982 :
2017 (122) AI.R 893 : 2017 (4) ALT 1 : 2017 (3) Arb LR 76 (SC): 2017 (3) Bom CR 405 :
. (2017) 4 CALLT 65 (SC): 2017 (4) CDR716(SC): 2017 (2) CHN (SC) 164 : 124 (2017)
CLT 34:2017 (3) CTC 94:2017(5)JKJ 69(SC); 2018 (1) MhLj 119 : 2018 (1) MPLJ 93:
2017(3) RCR (Civil) 277 ; 2017 136 RD 558 ; 2017(4) Scale 382:(2017)7SCC 716:2017
(3) SCJ 646:(2017) 6 WBLR(SC) 14I 64
Hemlata Panda v Sukuri Dibya,(2000) 2 SCC 218 : 2000 (40) Andh LR 425 164
Hero Vinoth v Seshammal,jAIR2006 SC 2234:(2006) 5 SCC 545 159
Hindaico Industries Lid v UOI,(1994)2 SCC 594: 1993(4) Scale 666 29
Hindustan Motors Ltd v DR Motors, ILR (2010) MP 215 57
Hiralal Doshi v Barot Ramanlal,(1993)SCC 458 : AIR 1993 SC 1449 51
Hira Lai Patni v Kali Nath,'AIR 1962 SC 199 :(1962) 2 SCR 747 7. 52
Hiralal y Kali Nath, AIR 1962 SC 199:(1962)2 SCR 747...-. 51
Homeo DrTK Prabhavi'ati i/ CP Kunhathabi Unema, AIR 1981 Ker 170:ILR 1981 (2) Ker 249 ... 187
Hotel Lecla Venture Ltd v Yaseen Begum, 2009 (1) Andh LD 519 ; 2009 (1) All LT 386(DB) 181
HP State Civil Supplies Corp Ltd v Palli Banal Co-op Agri Services Society Ltd, AIR 2003 NOC
551 (HP) 92
Hubli Dharwar Municipal Corp v HS Mohd Khan,(2002) 2 SCC 109 :(2002) 2 SCC 109 158
I
ICICI y I^nataka Ball Bearing Corp Ltd,(1999)4 LRI 829:AIR 1999 SC 3438 184
Iftikhai Ahmed v Syed Meharban Ali, AIR 1974 SC 749 211
Inacio Martins through LRs y Narayan Hari Nayak, AIR 1993 SC 1756 :(1993) 3 SCC 123 56, 58
Inderchand Jain v Motilal,(2009) 14 SCC 663(669):(2009) 11 SCR 252 172, 223
Indian Bank v Maharashtra State Co-op Marketing Federation Ltd, AIR 1998 SC 1952 :(1998) 5
SCC 69 215
Indian Overseas Bank y Ashok Saw Mill,(2009)8 SCC 366 (376) 173
Indian Overseas Bank v Shreekrishna Woollen Mills Pvt Ltd, AIR 1988 Bom 343 ;(1987) 89 Bom
LR510 104
Iridium Indian Telecom Ltd v Motorola Inc, (2005) 1 CTC 304 (SC) (2005) 2 SCC 145 :
AIR2005SC514 3,84
Isabella Johnson v MA Susai through LRs, AIR 1991 SC 993 :(1991) 1 SCC 494 210
Ishwarappa v Dhanji, AIR 1932 Bom 111 :(1932) 34 Bom LR 44 10
Ishwar Bhai Patel v Harihar Bahera, AIR 1999 SC 1341 : (1999) 3 SCC 457 : [1999] 1
SCR 1097 : 22,61
Ishwar Dutt v Land Acquisiton Collector, AIR 2005 SC 3165:(2005)7 SCC 190 209
 Table of Cases . xxix

ITC Ltd V Commissioner of Central Excise, New Delhi, AIR 2005 SC 1370 210
ITC Ltd V Debt Recovery Tribunal, AIR 1998 SC 634 :(1998)2 SCC 70 74
ITI Ltd V Siemens Public Communication Networks Ltd, AIR 2002 SC 2308 : (2002) 5
SCC 510 : 169
Ittavira Mathai v Varkey Varkey, AIR 1964 SC 907: 1964 SCR (1) 495 ; 9

j
Jagannath Akali,(1894) ILR 21 Cal 463 15
Jagannath v Chandrawati, AIR 1970 All 309(FB):(1969) 39 AWR 720 72
Jagatbhai Punjabhai Palkhiwala v Vikrambhai Punjabhai Palkhiwala, AIR 1985 Guj 112:(1984)2
GLR1242 104
JagatTarini Dasi v Naba Gopal Chaki, ILR(1907) 34 Cal 305 183
Jagdish Lai v MF Periera, AIR 1977 Del 12: 1976 Ren LR 382 ! ^ 144
Jagtu y Suraj Mai, 2010 (3) ARC 877 (SC):(2010) 13 SCC 769 (770) : AIR 2010 SC 3490
(3491) 23, 199
Jaidev Tripathy v Dilip Kumar Panda, AIR 2004 Ori 194 ; 98 (2004) CLT 295 156
Janki Devi V Mannilal, AIR 1975 All 91 : 1975 All WC 87 y 38
Jarnail Singh v Naranjan Kaur, 2011 (2) RCR (Civil) 215 201
Jaswanc Singh V Custodian,(1985) 3 SCC 648 210
Jawar Prasad Shaw y Jhaina Ghosh, AIR 2005 NOC 303(Cal): 2005 (1) CHN 12 130
Jeevan Diesels & Electricals Ltd v Jasbir Singh Chadha, AIR 2010 SC 1890 (1893) : (2010) 6
SCC 601 :(2010)4 LW 114 :(2010) 5 Mad LJ 311 (SC) : ■ 106
Jet Plywood Pvt Ltd v Madhnkar Nawlakha, AIR 2006 SC 1260 ;(2006) 3 SCC 699 5. 187, 222
Jitendra Singh v Bhanu Kumari, AIR 2008 SC 2987(2989):(2009) 1 SCC 130 - 224
J Kumardasan Nair v IRIC Sohan, AIR 2009 SC 1333(1336):2010 (2) Andh LT(SC) 17
Jogdhayan Babu Ram, AIR 1983 SC 57:(1983) 1 SCC 26 221
Johri Singh f Sukh Pal Singh, AIR 1989 SC 2073 168
Jolly George Varghese vThe Bank of Cochin,(1980) 2 SCC 360 : AIR 1980 SC 470 i 137
Joy P Chungath vLawkin Ltd, 2012(5) RCR (Civil) 331 46
Joy Verghese v State of Kerala, AIR 2005 Ker 49 173

k
Kailash yNankhu,(2005)4 SCC 480:AIR 2005 SC2441 84
Kalabharti Advertising v Hemant Vimalnath Narichania, AIR 2010 SC 3745 (3749) : (2010) 9
SCC 437 173
Kalipindi A Narasamma vAllaN Rao,(2008) 10 SCC 107(109) 20
Kalpana Kothari v Sudha Yadav,(2002) 1 SCC 203:2001 AIR SCW 5214 183
Kaipatru Agroforest Enterprises v UOI,(2002) 3 SCC 692:(2002)2SCR 298 172
Kalu Parvati v Krishnan Nair,(1969) Ker LJ 599 ; 11
Kalyan Singh y Vakil Singh, AIR 1990 MP 295 122
Kamala v KT Eshwara S A,(2008) 12 SCC 661 (668): 2008 (7) Scale 436 72
Kamlesh Verma 1/Mayawati, 2013 (8)SCC 320 , 171
Kanakarathanammul v Logananatha, AIR 1965 SC 271 ; 2004(3) ALT 16(SC) ; 68
Kancherla Lakshminaray^a v Mauaparthi Shyamala, AIR 2008 SC 2069 : (2008) 14,SCC ' '
258 (266) 140
Kanchusthabam Satyanarayana v Namuduri Atchutaramayya, AIR 2005 SC 2010 : (2005) 2
SCR 294 ; 154
Kanhaiya Lai v Anup Kumar, AIR 2003 SC 689 :■ (2003) 1 SCC 430 121
Kanhaiya Lai yDRBanaji(Dr), AIR 1958 SC 725 (1959) 1 SCR 333 184
Karam Kapahi v Lai Chand PC Trust, (2010) 4 SCC 753 : AIR 2010 SC 2077 106
Karam Kaur yjalandhar Improvement Trust, 2015 (1) RCR (Civil) 83 : (2014) 6 SCC 409 192
Karam Singh v Ram Rachhpal Singh, AIR 1977 HP 28 91
Karedla Parthasaradhi v Gangula Ramanamma,,AIR 2015 (SC) 891 193
Kartick Ch Mandal v Netai Mandal, (2009) 107 Cut LT 82 (SC) : (2009) 2 SCC 105 162
Karuppa Swamy v C Ramamurthy, AIR 1993 SC 2324 : (1993) 4 SCC 41 192
Kashamma v Mahadevappa, 2008 (1) Kar LJ 652 (653, 655-56) (DB) : ILR 2007 KAR 3512 170
Kashi Math Sansthan v Sfimad Sudhindra Tritha Swamy, AIR 2010 SC 296 (299) : (2010) 1
SCC 689 - 182
Kasturi v lyyamperumal, AIR 2005 SC 2813 : (2005) 6 SCC 733 : 2005(60) ALR 487 67, 68
Katari Suryanarayana v Kappisethi Subba Rao, (2009) 11 SCC 183 (187) : AIR 2009 SC 2907 192
KavitaTrehan v Balsara Hygiene Products Ltd, AIR 1995 SC 441 : (1994) 5 SCC 380 217
 Mulla The Key to Indian Practice

Kawal Kishan v Dina Nach, AIR 1993 SC 881 ;(1992) 2 SCC 51 113
Kehar Singh f State (Delhi Admin),(1988)3 see 609: 1988 (2) Scale 117 118
Keith Allams v Irwin D'silva, AIR 2000 Bom 182: 2000 (1) Bom eR 788 120
Kerela Financial Corp v Syndicate Bank, AIR 1999 Ker 213(FB) 199
Kewal Singh v Lajwanti,(1980) 1 See 290 : 1980 AIR 161 58
K Goundan v MSP Rajesh, AIR 1966 Se 1861 85
Khatuna Ramsewak Kashinath, AIR 1986 Ori 1 : 59(1985) eLT 101 187
Khetrabasi Biswal i/Ajaya Kumar Bansal,(2004) 1 See 317 67
Kidar Nath Goenka v Munshi Ram,AIR 1935 PG 139 212
Kiran Singh v Ghaman Paswan,AIR 1954 SC 340:(1955) 1 SGR 117 7, 8, 21, 52
Kishan Goyal v Secretary to Govt of Orissa, (2008) 106 Gut LT 92 (DB): 2008 (Supp) Ori
LR551 172
Kishnu z/ Bihari, AIR 2005 SC 3799:(2005)6 SCC 300 159
Kishore K Sippy v Vaishnav S Puri,(2008) 12 SGG 770 : 2008 (4) AWG 3703 189
Kishor Singh Ratan Singh Jadeja v Maruti Corporation,(2009) 11 SGG 229(238):AIR 2009 SC
2882;2009 (5) Scale 229 181
KLG Systel Ltd v Fftijitsu IGIM Ltd, AIR 2001 Del 357: 92(2001) DLT 88 207
K Majeed v Pappa, AIR 2004 Mad 457(DB) 79
Koksingh v Deokabai, AIR 1976 SG 634 ;(1976)2 SGR 963 154
Kondiba Dagadu Kondam v Savitribai Sopan Gujar, AIR 1999 SG 2213:(1999)3 SGG 722 159, 162
Koopilan Uneen Pathumma v Koopilan Uneen Kuntalan Kutty, AIR 1981 SC 1683 : (1981) 3
SGG 589 50
Kota Sreevalli v Ghinni Seetharamaiah, AIR 2005 AP 521 63
KPJayakumar y K Ravindran, AIR 2004 Ker 209(DB): 2004 (1) KLJ 115 133
KP RangaRao y KV Venkatesham, 2015 (1) RGR (Civil) 301 50
Krishna Veni Nagam z/Harish Nagam,(2017)3 WBLR(SG)622:(2017)4SGG 150: 123(2017)
GLT 1054:2017(122) ALR905:2017(2)AJR462:2017(2) GDR202(SG): 2017(2) GLJ
(SG) 55, 123 : 2017(2) GTG 457 ; 2017 (2) Gau LT 29:2017(2)JKJ 35 (SG): 2017(2) Ker
LT 593 ; 2017 (2) KHG 380:2017 (2) KLJ 549 ; 2017(2) RGR (Civil) 358 ; 2017 (2) WLN
26(SG): 2017 (3) Andh LD 151 : 2017 (3) BomGR 62:2017(3) LW 721 :2017(3) MPLJ
344 : 2017(3)Scale 471 :2017(4) MhLj764:2017(5) Andh LT 4:2017(6) SGJ 392:2017
(I) Ori LR 1033 : 2017-3-LW 721 : AIR 2017 SG 1345 : II (2017) DMG 173 SG vi, 54, 225
KS Bhoopathy v Kokila,(2000) 5 SGG 458 ; AIR 2000 SG 2132 186
K Shyamalambal v MS Ramamurthi, AIR 1948 Mad 318:(1948) ILR Mad 639 183
Kuldeep Singh v Ganpat Lai,(1996) 1 SGG 243 : AIR 1996 SG 729 : JT 1995 (9)SG 157 26
Kulwant Kaur v Gurdial Singh Mann, AIR 2001 SG 1273 ;(2001) 2SGR 525 162
Kulwinder Kaur v Kandi Friends Education Trust,(2008)3 SGG 659:AIR 2008 SG 1333 225
Kunjan Nair Sivaraman Nair v Naraynan Nair, AIR 2004 SG 1761 :(2004)3 SGG 277 55
KV George v Secretary to Government, Water and Power Depart, AIR 1990 SG 53 :(1989) 4
SGG 595 59

L
Lachhman Singh v Hazara Singh,(2008) 5 SGG 444 (446-447): 2008 (8) Scale 220 156
Laka Kula Sujatha vThummu Manemma,2004 AIHG 2237(AP): 2004(3) Andh LD 215:2004
(3) All LT 298 124
Lakshmi Narain v Secretary of Govt, Dept ofSurvey & Land Records, 2010 (4) All LT 774(781):
2010 (5) Andh LD 91 171
Lakshmi Ram Bhuyan v Hari Prasad Bhuyan, AIR 2003 SC 351 224
Lakshmi v Ghinnammal,AIR 2009 SG 2352:2009 (3) ALT 46(SG) 109
Lai Ghand v Radha Kishan, AIR 1977 SG 789 :(1977) 2SGG 88 209
Lalicha J Rai Aithapparai, AIR 1995 SC 1984:(1995)4 SGG 244 107
Lalic Kishore v Mee'ru Sharma,(2009)9 SGG 433(434) 222
Laxman Pd v Prodigy Electronics Ltd,(2008) 1 SGG 618 :(2008) 1 SGG 618 75
Laxman Prasad v Prodigy Electronics Ltd, AIR 2008 SG 685 :(2008) 1 SGG 618 43
Laxmidevamma v Ranganath, 2015 (4)SGG 264 ; 2015 (1) Scale 489 161
Leach & Go f Jardine Skimmers, AIR 1957 SG 357 95
Ledgard 1/Bull,(1887)ILR 9 All 191 :(1884-85) 13 lA 134(PG) 50
LIG V R Suresh,(2008) 11 SGG 319 (324-25): 2008 (2) AWG 1806(SG) 21
Life Insurance Gorp ofIndia Automobiles & Go,AIR 1991 SG 884:(1990)4 SGG 286 8
Lilu Ram v Mangtu Ram,2012(5) RGR (Civil) 18 83
Lily Thomas v UOI,AIR 2000 SG 1650 ;(2000)6 SGG 224 171, 172
Lisamma Antony I'Karthiyayani, 2015 (2)RGR (Civil) 575 :(2015) 11 SGG 782 155, 161
 Table of Cases XXXI

Lucy Kochuvareed v P Mariappa Gounder,(1979) 3 SCC 150 : AIR 1979 SC 1214 124
M
Madan Copal Kanodia v Mamraj Maniram, AIR 1976 SC 461 ;(1977) 1 SCC 669 109
Madan Lai Raja Ram v Munshi Data, AIR 1956 Pepsu 80 66
Madhavi Das v Tata Engineering,(2005) 3 CHN 252(DB)(Cal) 75
Madhukar D Shende i^Tarabai AbaShedage,(2002)2 SCC 85 ' 210
Madhukar y Sangram,(2000)2 LRI 1126 : AIR 2001 SC 2171 146
Madbvi Amma Bhawani Amma v Kunjikuntty Pillai Meenakshi Pillai, AIR 2000 SC 2301 211,213
Magna Publishing Co Ltd v Shilpa S Shetty, AIR 2008 SC 681 ; 2007(14) Scale 320 182
Magnum Builders & Developers & Chawla Construction (JV) v Ircon International Ltd, 2008 (4)
Arb LR 235 (All); 2008 (3) All WC 2980 : AIR 2005(NOC)59 (All): 2008 (5) All LJ 362 .... 45
Mahadkar Agency v Padmakar Archana Shetty, AIR 2003 Bom 136:2002(50) BLJR 2537 186
Mahakal Automobiles v Kishan Swaroop Sharma,(2008) 13 SCC 113 : AIR 2008 SC 2061 140
Mahalaxmi Co-op Housing Society Ltd y Ashabhai Atmaram Patel, 2013 (4)SCC 404 224
Mahant Narayana Dasjee y Tirumalai Urupathi Devasthanam, AIR 1965 SC 1231 125
Maharaja Jagat Singh y Sawai Bhavani Singh, AIR 1993 SC 1721 : 1993 Supp (2)SCC 313 182
Mahavir Singh y Naresh Chandra, AIR 2001 SC 134:2000 (7) Scale 356 155
Mahendra Kumar y State of Uttar Pradesh, AIR 1987 SC 1395 89
Mahesh Kumar Joshi y Madan Singh Negi, AIR 2015 (SC)974 208
Mahijibhai y Manibhai, AIR 1965 SC 1477 219
Major SS Khanna y Brig FJ Dillon, AIR 1964 SC 497 169
Makhan Lai Bangal v Manas Bhunia, AIR 2001 SC 490 : 2001 (1) Scale 11 110, 111
Malwa Strips Pvt Ltd y Jyoti Ltd,(2009) 2 SCC 426(431): AIR 2009 SC 1581 106, 151,-208
Malyalam Plantations Ltd y State ofKerala, AIR 2011 SC 559 (563):(2010) 13 SCC 487 (493).... 156
Management of Devi Theatre v Vishwarnath Raju, AIR 2004 SC 3325:(2004)3 SCR 1039 147
Mandali Ranganna y T Ramchandra,(2008) 11 SCC 1 (9-10): AIR 2008 SC 2291 182
Mangal PrasadTamoIi y Navedswar Mishra, AIR 2005 SC 1964 : 2005 (3) RCR (Civil) 171 155
Mangat Ram y Chura Dutt, AIR 2003 HP 143 ; 2003 (2) Shim LC 122 .". 186
Mange Ram y Brij Mohan, AIR 1983 SC 925 :(1983) 4 SCC 36 109
Manick Chandra Nandy v Debdas Nandy, AIR 1986 SC 446:(1986) 1 SCC 512 149, 168
Manjuiata y Sidhkaran, AIR 2005 Raj 32(DB) 203
Manoharamma H&I Pvt Ltd y Aruna Hotels Ltd, AIR 2004 Mad 344 62
Manohar Lai Bhogilal Shah y State of Maharashtra, AIR 1971 SC 1511:(1971)2 SCC 119 4
Manohar Lai Chopra y Hira Lai, AIR 1962 SC 527 181
Manohar Lai y Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527:(1962)Supp 1 SCR 450... 3
Manohar Lai y Seth Hiralal, AIR 1962 SC 527 223
Manohar Singh v DS Sharma,(2010) 1 SCC 53 221
Manohar y Jaipal Singh,(2008) 1 SCC 520 : AIR 2008 SC 429 124
Manoramabai Moreshwar y Ibrahim Khan Bismilla Khan, AIR 1969 Bom 366 46
Manoramabai y Ibrahim, AIR 1969 Bom 366:(1969)71 Bom LR 317 46
Man Ronald Drukimachiner AG v Multicolour Offset Ltd, AIR 2004 SC 3345 : (2004) 7
SCC 447 41
Mansoor Mumtaz y Saudi Arabian Airlines Corp,AIR 2002 Del 103 198
Manti Devi y Kishun Sah, AIR 2017 SC 2002 : 2017 (4) Andh LD 81 : 2018 (1) ALLMR 908 :
2017 (122) ALR 508 : 2017 (4) CDR 748 (SC): 2017 (2) Gau LT 53: 2017 (2) JLJR.289 :
2017 (2) KLJ 655 ; 2017 5 LW482:2017 (2) PLJR 314 : 2017(3) RCR (Civil) 22:2017(1)
Ren CR443: 2017 (3) RLW2182(SC) ; 66
Maqbool y Khodaija, AIR 1966 SC 1194 ' 218
Maria Colaco y Alba FHD'Souza,(2008) 5 SCC 268 (271): AIR 2008 SC 1965 162
Mario Cotta Pereira y State of Goa, 2010 (6) Mah LJ 115 (122)(DB):2010 (3) Bom CR 88 20
Mario Shaw y Martin Fernandes, AIR 1996 Bom 116: 1996 (2) BCR 536 187
Marks and Co y Knight Steamship Co,(1910) KB 1021 65
Maruti Real Estate Pvt Ltd y LIC ofIndia, 2008 (1) CHN 442 171
Maudala Suryanarayana v Barla Babu Rao, AIR 2010(NOC)573(DB):2010 (2) Andh LT 839 :
(Misc. Appeal No. 997 of2009 dated 6-11-2009 179
Mayadevi Kukreja y Meera Agarwal, 2009 (3) MP LJ 688 : AIR 2010 MP 27(DB) 116
Mazagaon Dock Ltd y CIT, AIR 1958 SC 861 ;(1959) 1 SCR 848 44
MCD y International Security & Intelligence Agency Ltd, AIR 2003 SC 1515 : 2003 (1)
Scale 771 153
Mechalec Engineers y Basic Equipment Corp, AIR 1988 SC 577 208
Meera Bhanja y Nirmala Kumari Chaudhari, AIR 1995 SC 455 :(1995) 1 SCC 170 173
 Mulla The Key to Indian Practice

Melepurath Sakunni vThekittil Geopalankutty,(1986) 1 SCC 118: AIR 1986 SC 411 191
Merla Ramanna v Nallaparaju, AIR 1956 SC 87 143
Mgt of Devi Theatre v Vishwanath Raja,(2004) / SCC 337 : AIR 2004 SC 3325 151
Minakshi Sundaram Chettiar f Venkatachalani Chettiar, AIR 1979 SC 989:(1980) 1 SCC 616... 73
Minati Dutta v Sushi! Chaudharry, AIR 2006 Pat 62; 2005 (3) BLJR 1763 " 192
MirzaAIi Akhar f UAR,AIR 1966 SC 230 198
MK Modi V KK Modi, AIR 2005 Dei 219 75
MLM Mahalingam Chettiar v Ramanarhan Chettiar,(1940) 42 Bom LR 1166 144
ML Sethi V RP Kapur, 1972(2) SCC 427: 1973 SCR(1)697:AIR 1972 SC 2379 9, 102, 171
M Manmutti v State of Karnataka, AIR 1979 SC 1705:(1979)4 SCC 723 85
MMB.Catholicos v MP Athanasius, AIR 1954 SC 526 173
M Nagabhushana t; State of Karnataka, AIR 2011 SC 1113(1118) ;(2011) 3 SCC 408 17, 209
Modi Entertainment Network f WSG Cricket Pte Ltd, AIR 2003 SC 1177 :(2003) 4SCC341... 41, 182
Mohana Kumaran Nair v Vijaya Kumaran Nair, AIR 2008 SC 213:2007(12) Scale 130 40
Mohan Das v Ghrisia Bai, AIR 2002 SC 2436 116
Mohan Lal v Sawai Man Singh, AIR 1962 SC 73:(1962) 1 SCR 702 4
Mohan Meakin Ltd v Internations Trade, AIR 2004 HP 11 ; 2002(3) Shim LC 39 10
Mohan Raj v Surender Kumar, AIR 1969 SC 677 68
Mohan Singh t/Lajya Ram, AIR 1956 Punj 188 43
Mohd Hadi Hussain f Abdul Hathid Chaudhary,(2000) 10 SCC 248 , ■ 158
Mohd Hussain v Gopibai,(2008) 3 SCC 233 194
Mohd Hussain v Occharlal, AIR 2008 SC 1462 .1 194
Mohd Khali! t/Mahbubali, AIR 1949 PC 78: 1948 61 LW686....; 59
Mohd Quaranuddin f State ofAndhra Pradesh,(1994)5 SCC 118 197
Mohd Saudt-Shaikh Mahfooz, AIR 2011 SC485(488):(2010) 13 SCC 517(520) 159
Mohd Serajuddin v Mohd Ahdul Khalique, AIR 2005 Gau 40 123
Mohinder Kumar Mehra v Roop Rani Mehra, AIR 2017 SC 5822:2018 (1) Andh LD 159 : 2018
(127) ALR 735 :2018 (1) Andh LT 27 : 2018 (2) CDR 322(SC): 2018 (2) CHN (SC) 21 :
. 125 (2018) CLT 758 : 245 (2017) DLT 487: 2018 (167) DRJ 9 : 2018 (1) JLJR 16: 2018-
2-LW 11 :2018 (I) Ori LR 550:2018 (1) Pat LJR 91 ; 2018 (1) RCR (Civil) 501 : 2018 139
RD 541 :2017(14) Scale 223:(2018) 2 SCC 132:2018 (1) SCJ 450:(2018) 2 WBLR(SC)
390:2018 (1) WLN 59(SC) .- 94
Moloji v Shankar, AIR 1962 SC 1737 219
Moola Vijaya Bhaskar v Moola SS Ravi Prakash, AIR 2009 AP 150 : 2009 (3) All LT 663 114
Motorola India Ltd v Kiklu I Malani, AIR 2003 Bom 92 : .- 207
M Rajeswar Rao v Chitluri Satyam, Review ASMP No. 2386 OF 2013 decided on 09-12-2013 .... ' 128
Mrinalini Padhi v UOI,(2018)7SCC 785 ; 2018 SCC OnLine 667 vi, 197
MR Lakshamanappa v Ramachandra Bhatt, 2008 AIHC 1678 (Kar) 178
Mschelska Mills Mothers v Chorus Girl Inc, AIR 1991 Del 129 : 1990 RLR 340 177
M Siddiq (D) rhrough LRs v Mahant Suresh Das, 2019 SCC OnLine SC 342 : Civil Appeal
Nos. 10866-10867/2010 dated 8-3-2019 ! v, 228
MSM Buhari fSM Buhari, AIR 1971 Mad 363 43
Mst Sugani v Rameshwar Das,AIR 2006 SC 2172:(2006) 3 CTC 108 159
MSV Raju V Seeni Thevar, AIR 2001 SC 3389 :(2001)6 SCC 652 162
Mt Munni Bibi v Tirloki Nath, AIR 1931 PC 114 212
Mumbai International Airport Pvt Ltd v Regency Convention Centre 8c Hotels Pvt Ltd, AIR 2010
SC 3109 (3112):(2010)7SCC 417 22,23,25
Municipal Committee v Parshotam Das,(1996)8 SCC 324 210
Municipal Corp of City v Shiv Shanker Gauri Shanker Mehta, (1998) 9 SCC 197 : AIR 1998
SC 2874 167
Muni Singh v Laxmi Rai, 2015(1) RCR (Civil) 158 : 2014(2) RCR (Rent) 506 89
Muthia Chettiar v Shanmugham, AIR 1969 SC 552:(1969) 1 SCR 444 43
Muthoor Vehicle 8c Asset Finance Ltd v Gopalan Kuttapan, 2009 (4) KLT 123 (126)(DB): 2009
(3)KerLJ280 178
M Veerappa v Evelyn Sequeira,(1988) 1 SCC 556:AIR 1988 SC 506 191
M Venkata Swamy v Marudapurshpam,(1992) 2 Mad LJ 245 40, 45
N
Naba Kumar v Radhashyam, AIR 1931 PC 229 : 1931 (54) Cal LJ 274 :(1931)61 Mad LJ 294... 24,67
Nafeesa Usmani v Anwar Jahan, 2009 AIHC (NOC) 913 (MP)(DB); WP No. 8987 of 2007,
Dated 28-1-2009 113
 Table of Cases

Nagendra Nath Dey v Suresh Chadrna Dey, AIR 1932 PC165:(1932)63 Mad LJ 329 146
Nagindas Ramdas v Dalpatiam Icchaiam, AIR 1974 SC 471 :(1974) 1 SCC 242 105
Nagri Pracharini Sabha v Fifth ADJ, Varanasi, 1990 SCR(3) 971 :(1991) Supp (2)SCC 3620
Nagubai Ammal v B Shama Rao,AIR 1956 SC 593 j07
Nahar Enterprises v Hyderabad Aliwyn Ltd,(2007)9 SCC 466(467,468):2007(6^ ALR 462 .... 77
Nahar Industrial Enterprises Ltd v Hong Kong & Shenghai Banking Corp, (2009) 8 SCC
646(703) 223
Nalakath Saimuddin v Koorikadan Sulaiman,(2002)6 SCC 1 169
NaniGopalMitra f State of Bihar, AIR 1970 SC 1636: 1970 CrLJ 1396 . 4
Narain Swadeshi Weaving Mills v Commissioner ofExcess Profit Tax,AIR 1955 SC 176:(1955) 1
SCR 952
Narasimha Rao v Venkata Lakshmi,(1991)3 SCC 451 220
Narayana Gramani vMariammal,2018(11) Scale 91, 2018(8)SCJ 359 1!..".!".". 158
Narayanan v Kochupennu,AIR 1954 Tr & Coch 10, p I4l .."."1"...."!.L. 43
Naiayan v Krishnaji,(1886) 10 Bom 233
Narendra Gole v Ram Krishna Sharma, AIR 2011(NOG)229(MP-DB) .".."..".'I 102
Naresh Kr Aggarwala v Canhank Financial Services Ltd,AIR 2010 SC Tin:(2010)6 SCC 178.... 89
National Institute ofMH & NS v C Parameshwara, AIR 2005 SC 242:(2005)2SCC 256 216
National Rice & Dal Mills v Food Corp ofIndia, AIR 1972 P&H 163 . 108
Natraj Studios Pvt Ltd i/Navrang Studios,(1981) 1 SCC 523:(1981) 2 SCR 466 18
Nawah Shaugafkth All Khan v Nawah Imdad Jab Bahadur,(2009) 5 SCC 162 (178) ■ 2009 (3)
Scale 934:(2009)4 SCR 589 ' 114 jgg
Nazim All » Anjuman Islamia,(1999) 3 SCC 91 '210
N Balraju v G Vidyadhar, AIR 2004 AP 516:2004(5)All LT 55 107
NDMC V Satish Chand, AIR 2003 SC 3187:(2003) 10 SCC 38 I9
N Eashwara Prasad v Margadershi Chit Fund Ltd, 2004 AIHC 2134(AP) 89
Neelakantan v Mallika Begum,AIR 2002 SC 827:(2002)2SCC 440 11.11."..".".".. 169
Neela Productions, Sreekumar Theatre,Trivandrum i/S Kumaraswamy,AIR 1966 Ker 239 46
Neelathupara Kumni v Montharapalia Padipura, AIR 1994 SC 1591 : 1994 Supp (3)SCC 760 218
NERlyAdmi/Bhagwandas,(2008)8SCC511 J5g
New Maneekchowk Spinning Etc Co v Seth Govinddas (judgment of the Supreme Court"dlted
4-03-1966 in CA No.621 of 1963) !. 30
NwMogaTransportCo i'UnitedIndiaInsuranceCoLtd,AIR2004SC2154 11." 43
Nilkanth Balwant Nath v Vidya Narsingh Bharathi Swami, AIR 1930 PC 188 .11 38
Nirmal Chandra v Girindra Narayan,AIR 1978 Cal 492 1.1.111.1.11. 221
Niyamat All MoUa v Sonargon Housing Co-op Society Ltd, AIR 2008 SC 225 : (2007) 13
see 421 223
N Jayaram Reddi v Revenue Divisional Officer and Land Acquisition Officer, Kunoor AIR 1979
SC 1393:(1979)3 SCC 578 J53 jgj jg4
N Kamalam v Ayyasamy, AIR 2001 SC 2802:2001 (5) Scale 65 11, ' '155
N Kodandarama Reddy v GIK Sangha, 2008 (1) Kar LJ 703 (711): ILR 2008 KARNATAKA
■ 184
Noharlal Verma v Distt Co-op Central Bank Ltd,Jagalpur, AIR 2009 SC 664(666) 210
N Padmamma v S Ramakrishna Reddy,(2008) 15 SCC 517(523); AIR 2008 SC 2834 11 20
NP Thirugnanam (deed) by LRs v R Jagan Mohan Rao, AIR 1996 SC 116:(1995)5 SCC 115.... 193
N Ravindran v V Ramachandran,AIR 2011 Mad 136(138): 2011 (3) CHN 416 73
Nrisingh Prosad Paul v Steel Products Ltd, AIR 1953 Cal 15 93
NS Mills i/UOI, AIR 1976 SC 1152:(1976) 1 SCC 120 .l.llll.ll.lllll.ll! 223
N SureshNathan.vUOI,(2010)5 SCC 692:AIR 2010 SC 2171 (2176) 1.1.11.1 211
NV Sriniwasa Murthy v Mariyamma, AIR 2005 SC 2897:(2005)5 SCC 548 !!111.1 56
o
Official Trustee, West Bengd v Sachindta Nath Chatterjee, AIR 1969 SC 823:(1969) 3 SCR 92... 7
Cm A^arwal v Haryana Financial Corp,(2015)4 SCC 371 :AIR 2015 SC 1288 .1. 74
Cm Prakash Gupta v Ranhir B Goyal,(2002) 2 SCC 256:2002(6) Andh LT 11 (SC):2003 (1)
BLJR96 29
Cm Prakash Singh v M Lingamaiah,AIR 2009 SC 3091 :(2009) 12 SCC 613 11^ 20
Cm Prakash Verma v State ofAP,(2010) 13 SCC 158 (188): 2010(10) Scale 707 1.1.1' 123
Cm Praksah Agarwal since deceased through Lrs v Vishan Dayal Rajpoot, AIR 2018 SC 5486 :
2019(1)Andh LD 87:2019(1) All LJ 337:2018 (131) ALR453:2018(14) Scale 116 35
ONGC Ltd V Modern Construction and Co,AIR 2014(SC)83:(2014) 1 SCC 648 76
 Mulla The Key to Indian Practice

Oriental Bank of Commerce v Santosh Kr Agarwal, 2008 (3) CHN 202; 2008 AIHC(NOG)610
(Gal): AIR 2008 Gal 148; APD No. 179 of 2001, Dt. 15.5.2008 (DB): 2010 Gal WN 810
(819)(DB) 34,51
Oriental Insurance Go v Kalawati Devi,(2009) 13 SGG 767(768)
Overseas Aviation Engineering(GB)Ltd, Re,(1962)3 All ER 12 134
P

PA Jayalakshmi v H Saradha,(2009) 14 SGG 525:(2009) 11 SGR 131

Pandurang Dhondi Ghougule v Maruti Hari Jhadav, AIR 1966 SG 153 17"
Pankaj Bhargav v Mahendra Nath,(1991) 1 SGG 556 ; AIR 1991 SG 1233 11
Panne Khushali vjeevanlal, AIR 1976 MP 148 ®
Pappu Ramireddy v Pappu Lalcshmi Narayana Reddy,(2009) 16 SGG 346(347) 141
Paramananda Fatehsingh v Labanya Bawa, AIR 1979 Ori 132 119
Parasurama Odayar v Appadurai Chetty, AIR 1970 Mad 271 :(1970) ILR 2 Mad 393 82
Parivar Seva Sanstban v Veena Kalra, AIR 2000 Del 349:86 (2000) DLT 817 196
ParmanandPatel f SudhaAGhowgule,AIR2009 SG 1593 :(2009) 11 SGG 127(938) 183
Parsion Devi v Sumitri Devi,(1997) 8 SGG 715: 1997(6) Scale 432 173
Patel Roadways Ltd, Bombay v Prasad Trading Go,AIR 1992 SG 1514:(1991)4 SGG 270 7
Pattnaik Industries Pvt Ltd v Kalinga Iron Works, AIR 1984 Ori 182 42
Payal Ashok Kumar vAshok Kumar,(1992) 3 SGG 116: 1992SGR(3)81 133
P Balan v Central Bank of India, AIR 2000 Ker 24:(2001) 103 Gomp Gases 746(Ker) 99
P Dasa Muni Reddy v P Appa Rao,AIR 1974 SG 2089 ; 1975 SGR(2)32 7
Perumen B Devaswam v Bhargavi Amma,(2008)8 SGG 321 (331).:.2008 (II) Scale 96 192, 193
Phool Ghand v Gopal Lai, AIR 1967 SG 1470:(1967) 3 SGR 153 126
Phool Kumari v Nandu Ram,AIR 2003 HP 75 : 2003(1) Shim LG 284 122
PK Kuruvilla v Corporation Bank, 2008 (1) KIT 604'(6l4) (DB): 2008 AIHG (NOG) 891
(Ker-DB)
PMA Metropolitan v Moran Mar Marthoma, AIR 1995 SG 2001 :'1995'Supp'(4) SGG 286 15
Pondichery Village and Khadi Inds Board v P Kulothangan, AIR 2003 SG 4701 : (2004) 1
SGG 68
Popat and Kotceha Property v State Bank ofIndia,(2005)7 SGG 510.: 2005(61) ALR 457 73
PradeepGMody!/SashikantGMody,AIR1998Bom351 : 1998(3);BomGR823 183
Prakash Ghander Manchanda c Janki Manchanda, AIR 1987 SG 42:(1986)4 SGG 699 117
Pramada Prasad Mukherjee v Sagarmal, AIR 1954 Pat 439
Pranjivandas Virjibahi v PM Modi, AIR 2011 Guj 89(92) 187
Pratibha Singh v Shanti Devi Prasad, AIR 2003 SG 643:(2003)2 SGG 330 223
Pratima Sinha v Shashi Kumar Naraina Sinha,(2004) 13 SGG 599 113
Prema v Nanje Gowda,2011 (6) SGG 462:AIR 2011 SG 2077 126
Prem Bakshi v Dbaram Dev, AIR 2002 SG 559:(2002)2 SGG 2 93
Prithvi Ghand v Shinde,(1993)3 SGG 271 1^^
Profulla Ghorone v Satya Ghorone,AIR 1979 SG 1682 67
PS Sathappan y Andhra Bank Ltd, AIR 2004 SG 5152:(2004) 11 SGGj672 164
PT Thomas v Thomas Job, AIR 2005 SG 3575:2006(61) ALR 150:(2006) 142 PLR 397 79, 147
Public Service Commission, Uttaranchil v Mamta Bisht, AIR 2010 SG 2613 23
Pukhraj D Jain v G Gopalakrishna,(2004)7SGG 251 216
Punjab 6c Sind Bank v Ram Prakash Jagdish Ghander,(1990)40 DLT 497 207
Punjab National Bank v Indian Bank, AIR 2003 SG 2284:(2003) 3 SGR 836 93
Pushpa Devi v Rajeev Kharbanda,AIR 2011 P&H 83(86):2011 (5) RGR(Civil) 468 186
P Venkatavaradan v Lakshmi Ammal,AIR 1982 Mad 5: 1981-94-IW 630 144
PV Guru Raj Reddy Rep by GPA Laxmi Narayan Reddy v P Neeradha'Reddy,2015(2)RGR(Civil)
43: AIR 2015 SG 2485 75
PV Sherry i/ BS Giridhar,(1982)3 SGG 403 216
Pyarelal v Shubhendra Pilania (Minor) Through Natural Guardian (Father) Shri Pradeep Kumar
Pilania,2019SGGSG98 19
Pyarelal v Shubhendra Mania; 2019(2) Scale 492:(2019) 3 SGG 692 74
R
40
RP Goala(Dr) w Amarpal Singh, AIR 1972 Raj 142
RSDV Finance Go Pvt Ltd fShreeVallabh Glass Works Ltd,(1993) 2 SGG 130 50
Radha Amma v Balakfishnan Nair, AIR 2006 SG 3343:(2006)7SGG 546 :.2006 (8) Scale 239 ... 158, 159
Radhey Shyam Gupta v Punjab National Bank, AIR 2009 SG 930(934):(2009) 1 SGG 376 170
 Table of Cases

Rafi v Abdul Aziz, AIR 1987A11 17 131

Raghunatb Prusti v Sauddin Khan, AIR 1958 Ori 111 :24 (1958) CLT 28 74
Raghwendra Sharan Singh v Ram Prasanna Singh (Dead) hy LRs Civil Appeal No. 2960 of 2019
(Arising out ofSLP(C) No. 20068 of2013) decided On: 13-3-2019 74
Rai & Sons Pvt Ltd v Trikamji Kanaji Gajjar & Sons, 16 GLR 31, AIR 1975 Guj 72 42
Raizada Topandas v Gorakhtam Gokalchand, AIR 1964 SC 1348: 1964 SCR (3) 214 8
Raja Dehi Baksh v Hahih Shah,(1913) 40 lA 151 ;(1913) ILR 35 All 331 (PC) 133
Raja Hussain v Gaviappa, AIR 1984 Kant 108 ; 1984 (1) Kat LJ 47 .5 167
Rajamma Joseph v Binu Ptasad, 2010 (1) Ket LT 572(576-77)(DB) 203
Rajasthan SRTC v Mohar Singh,(2008) 5 SCC 542(545-46): AIR 2008 SC 2553 21
Raj Duggal V Ramesh Kumat, AIR 1990 SC 2218: 1991 Supp (1) SCC 191 208
Rajendet Kumar v Kalyan, AIR 2000 SC 3335 209
Rajender Kumar v Sanatan Dharam Mahahir Dal,(1999) ILR I P&H 362 202
Rajendran v Shankar Sundaram,(2008) 2 SCC 724 : AIR 2008 SC 1170 178
Rajendra Prasad Gupta v Prakash Chandta Mishra, 2011 (1) Scale 469 : AIR 2011 SC 1137 :
(2011)2 SCC 705 186
Rajinder Singh v Pushpa Devi Bhagat, AIR 2004 Del 228:2005 (1) RCR (Rent) 314 189
Rajini Kumar v Suresh Kumar Malhotra, AIR 2003 SC 1322:(2003)5 SCC 315 208
Rajiv Sharma v Rajiv Gupta, AIR 2004 Delhi 248(DB) 106
Raj Kumat v Dipender Kaur,(2005)9 SCC 304 : AIR 2005 SC 1562 93
Raj Rajendta Sardar Moloji Nat Singh v Shankar Saran, AIR 1962 SC 1737 ■ 220
Rakesh Ahuja vjagan Nath,(2004) 138 PLR 249 ; 2004(3) RCR (Civil) 707 88
Ramakrishna Naidu v Sethuraman, AIR 2005 Mad 108 137
Ramakrushna Mahopatra v Gangadhar Mahopatra, AIR 1958 Ori 26 16
Raman Tech & Process Engg Co v Solanki Traders,(2008) 2 SCC 302: 2008 (2) SCJ 381 178
Ram Chand and Sons Sugar Mills Pvt Ltd Barahanki (Uttar Pradesh) v Kanhayalal Bhargava, AIR
1966 SC 1899:(1967) 37 Comp Cases 42(SC) 3
Ramchandra Dagdu Sonavane v Vithu Hira M^ar, AIR 2010 SC 818 (828) : (2009) 10
SCC 273 17
Ramdhan Sinha v Notified Area Authority, AIR 2001 Gau 149 190
Ramesh Chandra Chandhok v Chuni Lai Sahharwal through LRs, AIR 1971 SC 1238 :(1971) 2
SCR 573 148
Ramesh Chandra ShankIa fVikrara Cement, AIR 2009 SC 713:2008 (10) Scale 112 114
Ramesh Chand w Anil Panjwani, AIR 2003 SC 2508 ;(2003) 7 SCC 350 88
Ramesh Ch Sankla v Vikram Cement,(2008) 14 SCC 58 (76) 210
Ramesh Govindtam v Sugra Humayun Mirza Wakf, AIR 2010 SC 2897 (2900) : (2010) 8
SCC 726 16
Ramesh H Kundanmal v Municipal Cotp of Greater Bombay, (1992) 2 SCC 524 : [1992] 2
SCR 1 69
Rameshwar Prasad v Shamhehari Lai Jagannadi, AIR 1963 SC 1901 154
Rameswar Sarkar vThe Collector Nadia, 2009 (1) Cal LJ 303 (305)(DB) 222
Ramji Gupta v Gopi Ktishan Agtawal,(D)2013(9)SCC 438 222
Ram Kumar v State of Rajasthan,(2008) 10 SCC 73 (78): AIR 2009 SC 4 (8, 9) 196
Ram Kumar v Thanwar Das, AIR 1999 SC 3248 159
Ramon Services Pvt Ltd v Suhhash Kapoor, AIR 2001 SC 207:(2001) SCC(L&S) 152 116
Ram Prakash Gupta v Rajiv Kr Gupta,(2007) 10 SCC 59 :(2007) 10 SCR 520 74
Ram Prasad Dagduram v Vijay Kumat Moti Lai Hirakhanwala, AIR 1967 SC 278 : 1967(69) Bom
LR20 192
Ram Rati v Mange Ram, AIR 2016 SC 1343 ; 2016 (3) Andh LD 162 : 2016 (115) ALR 880 :
2016(2) CDR334(SC): 2016(4) CHN (SC) 184 : 2016(5) CTC 555 : 120(3) CWN 121 ;
2016 (157) DRJ 7: 2016 (2) JLJR 170 : 2016 4 LW447: 2016 (2) Pat LJR298 : 2016 (2)
RCR (Civil) 464 : 2016 131 RD 717:2016(3) RLW 2328 (SC): 2016(3) Scale 219:(2016)
11 SCC 296:2016(9) SCJ 69:2016 (3) WLN 75 (SC) 120
Ram Sarup Gupta v Bhishun Narain Inter College, AIR 1987 SC 1242:(1987)2 SCR 805 92
Rani Ramakant v First Additional Civil Judge, AIR 2006 All 5 194
Ranju Ram t/Nand Lai, AIR 2011 HP 35 (37) 216
Rasiklal v Natwarlal, AIR 1975 Guj 178a:(1975) 16 GLR 533 69
Raveesh Chand Jain vRaj Rani Jain, 2015 (2) RCR (Civil) 118 107
Ravinder Kaur v Ashok Kumar, AIR.2004 SC 904:(2003)8 SCC 289 154
Ravjihhai Mathurhhai Solanki v Bijahhai Devjihhai Prajapati, AIR 2004 Guj 102 : 2003 GLH
(3) 645 58
 Mulla The Key to Indian Practice

Razia Beg^m y Sahebzadi An^rar Begum, AIR 1958 SC 886: [1959]1SCR1111 69, 106
RBI Employee's Association v RBI, AIR 1981 AP 246 221
RBM Pati Joint Venture v Bengal Builders, AIR 2004 Cal 58 179
RC Sharma y UOI,(1976) 3 SCC 574:AIR 1976 SC 2037 121
Reena Sadh v Anjana Enterprises, AIR 2008 SC 2054 :(2008) 12 SCC 589 130
Reg V Commissioner for special purpose ofIncome Tax,(1888) 21 QBD 313 20
Rekha Mukherjee r Ashish Kumar Das,AIR 2005 SC 1944:(2005)3 SCC 427 147
REMCO Indl Workers House Bldg Co-op 'Society v Lakshmesha, AIR 2003 SC 3167: 2004 (6)
Scale 789 155
Remeshwar Narayan Singh v Rikhanath Koeri, AIR 1920 Pat 131(DB) 97
Renubala Naraa v Renubala Das,(2009) 5 Gau LR 120(124-125): AIR 2010 Gau 8 114
Renu Sagar Power Co Ltd v General Electric Co, AIR 1994 SC 860: 1994 Supp (1) SCC 644 128, 220
Reptacos Brett Co Ltd v Ganesh Property, AIR 1998 SC 3085: 1998 Supp (1)SCR 485 72
Revanna y Anjamma, AIR 2019 SC 940:2019(3) Scale 412:2019(2) SCJ 446 93
Revlon Inc v Kemco Chemicals, AIR 1987 Cal 285 185
R Gopalkrishna vKS Corp. 2008(5) Kant LJ 327(331-332)(DB):AIR 2008 Kant 77:ILR 2008
KAR2034 113
Rhodes v Suithenbank,(1889)22 QBD 577 148
Rita Chaudhrie y Samtya Dev,2004 AIHC 2181 (Del):2004(72) DRJ 518 132
R Lakshmi Narayan v Santhi,(2001)4 SCC 668 158
Rohit Singh v State of Bihar,(2006) 12 SCC 734:AIR 2007 SC 10 90
Roop Lai y Nachhattar Singh,(1982)3 SCC 487:AIR 1982 SC 1559 75
Roshan Lai z;Madan Lai, AIR 1975 SC 2130:(1975)2 SCC 785 189
RP David v M Thiagarajan, 1996 AIHC 1194 124
RPS Associates v Om Parkash @ Hari Singh, 2012 (5) RCR (Civil) 109 : (2012) ILR 2
P&H 596 94
R Rajanna vSRVenkataswamy, AIR 2015(SC)706 ;(2014) 15SCC471 190
R Rathinavel Chettian v Sivaraman,(1999)4 SCC 89:(1999)2SCR 313 186
RSD Finance Co Pvt v Shree Vallabh Glass Works Ltd,(1993)2SCC 130 42
Ruby Sales & Services Pvt Ltd v State of Maharashtra,(1994) 1 SCC 531 189
R Viswanathan v Rukn-ul-Mulk-Syed Abdul, AIR 1963 SC 1 219
Ryan v PN Juneja & Sons, 163(2009) DLT 14:II (2009) DMC 767 179
s
Sacchar in Corp Ltd v Wild,(1903) 1 Ch 4I0 63
Saiyad Mohammad Baker El-Edroos v Abdul Habib Hasan Arab, AIR 1998 SC 1624 :(1998) 4
SCC 343 2
Saleem Bhai v State of Maharashtra, AIR 2003 SC 759:(2003) 1 SCC 557 73
Salem Advocate Bar Association (II), Tamil Nadu v UOI, (2005) 6 SCC 344 : AR 2005
SC3353 3,80.84, 103,
115, 116, 129,
197,221,227
Salkia Businessmen's Association v Howrali Municipal Corporation, AR2001 SC 2790:(2001)6
SCC 688 189
Salma Majhi i; Bija Majhl,MR 2004 Ori 46:2003(ID Ori LR 596 184
Samarendra Nath Sinha v Krishna Kumar Nag, AR 1967 SC 1440 : 1967(4) SCC 368 122
Sameermal Runwal f Prakashchandra Kothari, 2011 (2) RCR (Civil) 5I2:AR2010MP 178 83
SameerSinghr;AbdulRab,2015(1)SCC379 171
Sampath Kumar v Ayyakannu,AR 2002 SC 3369:(2002)7SCC 559 93,95
Sandesh Ltd v Chandulal Jethalal Jaiswal, AR 2005 Guj 219 186
Sandhyarani Sahoo v DJs,(2009) 107 CLT 160 (161)(DB) 62
Sangram Singh f Election Tribunal, AR 1955 SC 425: 10 ELR 293:(1955)2 SCR 1 2, 110, 131
Sankaran Govindan v Lakshmi Bharathi,(1975) 3 SCC 351 219
Sankar Das PP Ltd,(2009) 108 Cut LT 553(556)(DB): 2009(2) Ori LR790 173
Sankar Sealing System Pvt Ltd v Jain Motor Trading Co, AR 2004 Mad 127 : 2004 (1) ARBLR
496 (Madras) 178
Santilata Tripathy v Krushna Priya Pani, 99(2005) Cut LT 542:2005 (Supp) Ori LR 354 88
Santosh Kumar v Mool Singh, AIR 1958 SC 321 208
Santosh t/Jagat Ram,(2010) 3 SCC 251 :(2010)2SCR 429 188
Sant Singh v Des Ram,AR 1974 P&H 276 60
Saradekanta Panda v Poonam Padhi,(2010)(1) DMC 728 (731)(DB):AR 2009 Ori 145 114
 Table of Cases

Saraswatibai v Govind Rao Keshav Rao Mahajan, AIR 1961 MP 145 (FB): 1961 MP LJ 1256 137
Saraswati Co-op Bank v CM Shah,AIR 2002 Bom 203 I79
Sardar Govindrao Mahadik v Devi Sahai, AIR 1982 SC 989 ;(1982) 1 SCC 237 175
Sardarji M Waghela v UOI,2009 (2) Guj LR 1399(DB); 2009 Cr LJ 3238 210
SardarISIisam All vMohammadAli,AIR 1932 PC 172:(1932) 59 IA268 36
Sarguja Transport Service v STA Tribunal, Gwalior, AIR 1987 SC 88:(1987) 1 SCC 5 186
Saroj Anand v Prahlad Rai Anand,(2009) 15 SCC 505 (512): 2009 (4) Scale 474 106
Sasanagouda v SB Amarkhed, AIR 1992 SC 1163: 1992(1) UJ 773(SC) 97
Sathi Vijay Kumar vTota Singh,(2006) 13 SCC 353 ; 2007(5) ALT 9(SC) 96
Satyadhyan Ghosal v Deorjin Debi,AIR 1960 SC 941 209
Satyanand v Shyam Lai Chauhan, 2018 (5) Scale 314 ; 2018 (7) SCJ 713 vii, 193
Satya vTeja Singh, AIR 1975 SC 105 ;(1975) 1 SCC 120 ' 39. 43
Savitri Devi v District Judge, Gorakhpur, AIR 1999 SC 976 : (1999) 2 SCC 577 : 1999 (36)
ALR 93 23, 25
Sayeda Akhtar v Abdul Ahad, AIR 2003 SC 2985:(2003)7SCC 52 113
SBI t; Allwyn Alloys Pvt Ltd,(2018)8 SCC 120 19
SBV Patel V NJ Tiwari,(2010) 5 SCC 104 :(2010)6 Mad LJ 616(SC) 188
SCG Contracts India Pvt Ltd v KS Chamankar Infrastructure Pvt Ltd Civil Appeal No. 1638 of
2019 (Arising out ofSpecial Leave Pedtion (C) No. 103/2019) decided On; 12-2-2019 84
Scott V Scott, 1913 AC 417 II7
Secretary to the Government of Orissa v Sarbeswar Rout, AIR 1989 SC 2259 : (1989) 4
SCC 578 70
Selvi vGopalakrishnan Nair,(2018)7 SCC319:2018 (129)ALR241 :2018 (7) Scale 385 126, 148
Seth Ramdayal Jat v Laxmi Prasad,(2009) 11 SCC 545 (554):AIR 2009 SC 172 86
Shah Umed Mtd v Shah Bhutaji, ILR(1969) 19 Raj 701 178
Shaikh Salim Haji Abdtd Khayumsab v Kumar,(2006) 1 SCC 46 : AIR 2006 SC 396 84
Shalimar Chemical Works Ltd v Surendra Oil & Dal Mill,(2010) 8 SCC 423 (430):(2010) 10
SCR 703 155
Shahmar Rope Works Ltd vNC John and Sons Ltd, 1986KerLJ 1051 178
Shankar K Mandal v State of Bihar, AIR 2003 SC 4043:(2003)9 SCC 519 ; 122
Shanker Sit^am v Balkrishna Sitaram, AIR 1954 SC 352: 1955 SCR 99 ; 57
Shanti Budhiya Vesta Patel vNirmalaJaiprakash Tiwari, AIR 2010 SC2132:(2010) 5 SCC 104.... 188
Shanti Devi v Nand Kishore, AIR 2004 P&H 46:(2004) 136 PLR 377 ' 153
Shand Devi v Srate of Haryana,(1999) 5 SCC 703 173
Sharda Dhir v Ashok Kumar Makhija, AIR 2003 Del 288 : 99 (2002) DLT 350 .., '. 99
Shardamma Kaveri v Sharad G Jadav, AIR 2005 Kant 445:2005 (6) Kant LJ 284 104
Sharda v Dharampal,AIR 2003 SC 3450:(2003)4 SCC 493 223
Shasidhar v Ashwini Uma Mathad, AIR 2015 (SC) 1139 : 2015 (1) Scale 341 : (2015) 11
SCC 269 126,154
Sheela Barse v UOI,(1988)4 SCC 226:AIR 1988 SC 2211 .-. 118
Sheo Kumar V Thakurji Maharaj, AIR 1959 All 463 187
Shib Shankar Rudra f Jyotirmoy Rudra, AIR 2004 Cal 54:2004 (3) CHN 370 184
Shipping Corp ofIndia v Machadeo Brothers, AIR 2004 SC 2093:(2004) 11 SCC 168 222
Shiv Corex v Tirgun Auro Plast Pvt Ltd, 2011 (9) SCC 678 :(2011) 10 SCR 787 116
Shiv Kumar Chadha v MCD,(1993)3 SCC 161 : 1993 SCR (3) 522 180
Shivnarayan(D) by Lrs v Maniklal(D) by Lrs, 2019 (1) RCR (Civil) 985:2019 (2) Scale 620 v, 37,65
Shiv Shakri co-op Housing Society v Swaraj Developers, AIR 2003 SC 2434 ;(2003)6 SCC 659.... 169, 170
Shri Anand Parkash v Shri Bharat Bhushan Rai, AIR 1981 Punjab 269: 1982(1) RCR (Rent) 1... 130
Shriram City Union Finance Corp Ltd v Rama Mishra, 2001 (1) Ori LR 164 : (2002) 9
SCC 613 21
Shub Karan Bubna @ Shub Karan Prasad Bubna v Sita Saran Bubna,(2009) 9 SCC 689:(2009)
14 SCR 40 144
Shyam Singh v Collector, District Hamirpur,(1993) Supp (1)SCC 693: 1993 (2) BLJR 1171 136
Shyam SunderSharma f PannalalJaiswal, AIR2005 SC 226:(2005) 1 SCC436 150
Siddagangaiah v NK Giriraja Sherry,(2018) 7 SCC 278 142
Siddalingappa v Veeranna, AIR 1981 Kant 242 220
Siraj Ahmed Siddiqui v Prem Nath ICapoor, AIR 1993 SC 2525:(1993)4 SCC 406 110
Sita Ram Kashi Ram Kanda v Pigments Cakes & Chemicals Manufacturing Co,AIR 1980 SC 16:
(1979)4 SCC 12 21
Sitaram Motilal Kalal vSantanu Prasad Jaishanker Bhatt, AIR 1966 SC 1697:(1966) 3 SCR 527... 105
Sira Ram v Rajender Chandra, AIR 1956 Assam 7 60
 Mulla The Key to Indian Practice

Sita Ram v State of Uttar Pradesh. AIR 1979 SC 745:(1979)2 SCR 1085 146
SiteRam«RadhaBai,MR 1950 PC68 113
Sivarajan K v State of Kerala, AIR 1998 Ker 98 204
S Malla Reddy v Future Builders Co-op Housing Society, 2013 (9) SCC 349 : AIR 2013
SC3693 54
Smruti Pahariya v Sanjay Pahariya, AIR 2009 SC 2840:(2009) 108 Cut LT 205 (SC):(2009) 13
see 338
SN Arora v Brokers & Brokers Pvt Ltd, AIR 2011 Del 89 (93-96)(DB): 2010 (118) DRJ 631 24
S Nazeer Ahmed v State Bank of Mysore, AIR 2007 Se 989 : 2007 (2) Scale 349 :(2007) 11
see 56
Sneha Gupta v Devi Sarup,(2009)6 See 194 : 2009(2) Scale 765 1®^
SNP Shipping Services Pvt Ltd v World Tanker earrier Corp, AIR 2000 Bom 34 : 2000(102(1))
BomLR56 57
Somnath Banerjee vArati Rani ehakraborty, AIR 2010 Gau 187(190) 62
Sonic Surgical v National Insurarice Go Ltd,(2010) 1 SGG 135 (137); 2009 (13) Scale 363 25
Sopan Sukhdev Sable v Assistant eharity eommissioner, AIR 2004 SG 1801 : (2004) 3
see 5^5
South Eastern Coalfields Ltd v State of Madhya Pradesh, AIR 2003 SG 4482 : (2003) 8
see 648 128,217,218
Southern Ancillaries Ltd v SA Foundries Pvt Ltd, AIR 2003 Mad 416:(2003)2 Mad LJ 56 89,90
Southern Sales & Services v Sauermilch Design & Handles GMBH, 2009 (1) Kar LJ 276 :
AIR 2009 se 320 :(2008) 14 SCC 457(462) 207, 208
Southern Structurals Ltd v KSE Board, 2008 (1) Ker IT 105 (FB) 227
South Konkan Distilleries v Prabhakar Gajanan Naik, AIR 2009 SG 1177 (1181) ; 2009 (1)
ueii
Span Go Ltd v A2Z Maintenance & Engineering Services Ltd, 2010 (5) Bom GR 832
(836)(DB) 171
Splendor Landbase Ltd i/ Mirage Infra. Ltd,2010 AIHG(NOG)1030(Del-DB): 169(2010) DLT
126 FAO (OS) No. 150 of2010, dt. 9-4-2010:AIR 2010(NOG)933 (Del) 36
SP Minocha r' Lila Ram, AIR 2002 Del 223 : 2002(2) RGR (Rent) 328 189
Sreevalli v Ghinni Seetharamaiah, AIR 2005 AP 521 205
Sri Laxmi Paper Depot v SDM,Bangaun, AIR 1998 Gal 195 1^8
Sri Niwas f Election Tribunal of Lucknow, AIR 1955 All 251 (DB) 103
Sri Sina Ramanuja Jeer v Sri Ranga Ramanuja Jeer, AIR 1961 SG 1720 : 1962 SGR (2) 509 16
Sri Sri Iswar Gopal Jen v Bhagwandas Shan, AIR 1982 Gal 12 190
S Santokh Singh v Gurbax Singh, AIR 2003 NOG 6(Del) 57
S Satnam Singh v Surender Kaur,(2009)2 SGG 562(569): AIR 2009 SG 1089 123
State Bank ofIndia v Chandra Govindji,(2000) 8 SGG 532:-2000 (7) Scale 354 115
State Bank of India SN Goyal, AIR 2008 SG 2594 (2599):(2008)8 SGG 92/103) 161
State Bank of Patiala v Vinesh Kr Bhasin,(2010)4 SGG 368 (375): AIR 2010 SG 1542 41, 182
State ofAssam vUOI,(2010) 10 SGG 408 (412): 2010 (9) UJ 4680 : 2010 (10) Scale 352 23
State of Bihar Dr Radha Krishna,(2002)6 SGG 308 : AIR 2002 SG 2755:2002(5) Scale 301.... 28
State of Bihar v Secretariat Press Ministerial Staff Union, AIR 2002 SG 2145'(2002) 9 SGG 68.... 121
State of Gujarat v Central Bank ofIndia, Ahmedabad, AIR 1987 Guj 113 : 1987 GLH (1) 372 151
State of Gujarat v Jaipalsingh Jaswantsingh Engg & Contractors, (1994) Guj LR 258 : 1994
GLH (2)403 111
State of Haryana v Babu Singh, AIR 2009 SG 472(476, 477) 223
State of Haryana v Baldev Raj,(2008) 162 PLR 204 203
State of Madhya Pradesh v Mangilal Sharma, AIR 1998 SG 743 :(1998) 2 SGG 510 57
State of Madhya Pradesh v Pradeep Kumar,(2000)7SGG 372: 2000 (6) Scale 347 151
State of Maharashtra v National Construction Go, Bombay, AIR 1996 SG 2367 : 1996 (28)
ALR26 56
State of Maharashtra v Prabhakar Bhikaji Ingle, AIR 1996 SG 3069:(1996) 3 SGG 463 209
State of Maharashtra v Prashant Preetam Kr Shegaonkar, AIR 2011 Bom 100(105)(DB):2011 (4)
Bom GR 334 168
State of Orissa v Gommr of Land Records and Settlement, AIR 1998 SG 3067 : (1998) 7
see 162 171
State of Orissa v Klockner & Go,AIR 1996 SG 2l40 ;(1996) 8 SGG 377 22
State of Punjab (Haryana) v Amar Singh, AIR 1974 SG 994 : (1974) 2 SGG 70 : (1994) 2
SGG 70 l'^7> 148
State ofPunjab v Darshan Singh, AIR 2003 SG 4179 :(2004) 1 SGG 328 223
State of Punjab I'Geeta Iron and Brass Works, AIR 1978 SG 1608 :(1978) 1 SGG68 196, 197
 Table of Cases xxxix

State of Rajasrhan v Rustamji Savkasha, AIR 1972 Guj 179 134

State of UP y Roshan Singh,(2008) 2 see 488 , 223
State of West Bengal v Indian Iron and Steel Co Ltd, AIR 1970 SC 1298 :(1970)2 SCC 39 19
State ofWest Bengal v Karan Singh Binayak, AIR 2002 SC 1543 :(2002)4 SCC 188 223
State ofWest Bengal v Partha Basu,(1997) 2 CHN 387 144
State V Sarvodaya Industries, AIR 1975 Bom 197 39
Stround v Lawson,(1898) 2 QB 44 64
Subba Rao y Jaganadha Rao, AIR 1967 SC 591 :(1964) 2 SCR 310 190
Subhash Bhimshanker Kalase v State Bank of India, AIR 2005 Bom 165 179
Sudamdih Coal Co yEmpire Coal Co,(1915)ILR42 Cal 942 47
Sudershan Goel v New Bank of India, AIR 1984 P&H 233 : (1984) ILR 2 Punjab and
Haryana 178 60
Sudhir G Angur v M Sanjeev,(2006) 1 SCC 141 :(62) ALR 135 4
Sugani y Rameshwar Das, AIR 2006 SC 2172 ;(2006) 11 SCC 587 162
Sugesan & Co Pvt Ltd y Hindustan Machine Tools Ltd, AIR 2004 AP 428 : 2004 (3) Andh
LD57 . 88
Sukhbir Singh y Brij Pal Singh, AIR 1996 SC 2510 :(1997)2 SCC 200 2,4
Sulochana Amma y Narayanan Nair, AIR 1994 SC 152:(1994)2 SCC 14 210
SulochanayRajendraSingh,AlR2008 SC2611 (2615): AIR 2008 SC 2611 :(2008) 15 SCC 538
(593,547) 20
Sumtibai v Paras Finance Co,(2007) 10 SCC 82(85): AIR 2007 SC 3166 83
Sunil Gupta v Kiran Girhotra,(2007) 8 SCC 506 (510): AIR 2008 SC 140 ; 2008 (1) All WC
985(SQ 24
Sunil Kumar yPPrakash, AIR 2005 Ker 181 (DB): 2005 (1) KerLT800 13
Sunil Poddar v Union Bank ofIndia, AIR 2008 SC 1006 :(2008)2 SCC 326 82
Sunni Central Waqf Board v Gopal Singh Vishrad, AIR 1991 All 89 114
Sunni Sand Hotel Ltd v W Kumar HUF,AIR 2003 Bom 168 207
Supt Engineer v B Subba Reddy, AIR 1999 SC 1747:(1999)4 SCC 423 152
Surender Singh Bajaj v Kitty Steels Ltd, AIR 2003 AP 13(DB); 2002(4) Andh LD 191 178
Surendra Sawhney y Murlidhar, 2008 (2) Raj LW 929 (933-34)(DB) 216
Suresh y Yeotmd Dist Central Co-op Bank Ltd, AIR 2008 SC 2432 (2435) : (2008) 12
SCC 558 ' 23
Surjit Singh y Gurwant Kaur, 2015 (1) SCC 665:2017 (9) Scale 768 155
Susheel Naik v GK Naik,(2000)9 SCC 366 172
Sushil Kr Jain v Manoj Kumar,AIR 2009 SC 2544:(2009) 10 SCC 434 92
Swami Shankaranand v Mahant Sri Sadguru Sarnanand, AIR 2008 SC 2763:(2008) 14 SCC 642
(644-46) 147
Swapnil Tripathi v Supreme Court ofIndia,(2018) 10 SCC 639 vii

T
Tanusree Basu y Ishani Pd. Basu, AIR 2008 SC 1909:(2008)4 SCC 791 223
T Arivendandam y TV Satyapal, AIR 1977 SC 2421 ;(1977) 4 SCC 467 72
Tek Singh v Sashi Verma,AIR 2019 SC 1047, 2019(3) Scale 86 170
Templeton v Laurie,(1901) 25 Bom 230 19
Thakorbhai H Patel v Shree DGA Samaj Seva Sangh, AIR 2009 Guj 155 ; 2009 GLH (3) 250 84
The Firm of N Peddanna Ogeti Balayya v Katta V Srinivasayya Setti Sons, AIR 1954 SC 26 128
The Rajah ofTomkuhi y Braidwood,(1887)9 All. 505 91
Thingarajan y Venugopalaswamy B Koil, AIR 2004 SC 1913 :(2004) 5 SCC 762 160
Thirumuruga Kirupananda Variyar y State ofTamil Nadu, AIR 2002 Mad 42 198
Thomson Press (India) Ltd v Nanak Builders & Investors Pvt Ltd, 2013 (5) SCC 397 ; AIR 2013
SC2389 67
Three Cheers Entertainments Pvt Ltd v CESC Ltd, AIR 2009 SC 735 (740) : (2006) 12
SCC 592 185
Thungabhadra Industries Ltd v Govt ofAP,AIR 1964 SC 1372 172
Tilak Raj v Baikunthi Devi, 2009 (4) Bom CR(SC) 570 (B): AIR 2009 SC 2136:2009 (3) ALL
MR956(SQ 124
Tirumala Tirupati Devasthanam y KM Krishnaiah, AIR 1998 SC 1132:(1998)3 SCC 331 159
TK Jain y NS Reddy, AIR 1971 Del 86:AIR 1970 SC 1573 73
TK Mohammed Abubucker v PSM Ahmed Abdul Khader,(2009) 14 SCC 224 (232): AIR 2009
SC 2966:2009 (75) ALR 632 29
TN Housing Board v TN Ganapathy, (1990) 1 SCC 608 : AIR 1990 SC 642 : (1990) 2
GLR852 24
xl Mulla The Key to Indian Practice

T Srinivasan v V Srinivasan, AIR 1985 Mad 269 179

TS Swamlnathaudayar v Official Receiver of West Tanjore, AIR 1957 SC 577 : (1957) 1 ■
SCR 775 128
TThimmaiah y Venkatachala Raju,(2008) 11 SCO 107(108); 2008(8) Scale 138 172
T Vijendradas v M Subramanian,(2007)8 SCC 751 :AIR 2008 SC 563 79
TVR Fund V Official Receiver, 2009 (3) Ker LT 508 (510, 512)(DB): ILR 2009 (3) Ker 481 l4l

u
Udhavdas Tyagi v Srimurti Radha Krishna Mandir,(2001)4 SCC 443(MP) 90
Udhav Sin^ r Madhav Rao Scindia, (1977) 1 SCC 511 : (1976) 2 SCR 246 : AIR 1976
SC744 25,28
Ujjam Bai v State Uttar Pradesh, AIR 1962 SC 1621 : 1963 SCR (1) 778 7
Uma Pandey v Munna Pandey, AIR 2018 SC 1930:(2018) 5 SCC 376 162
Union Bank ofIndia v KI Constructions, AIR 2001 SC 2277 203
Union Bank ofIndia fManku Narayana,(1987) 2SCC 335:AIR 1987 SC 1078 199
Union Bank ofIndia vNaurang,(2009) 16 SCC 352(353) 223
Unistal System Pvt Ltd y Prodata Doctor Pvt Ltd,2009(112) DRJ 345:2009(41)PTC626:2010
(1) AD (Del) 286 182
United India Insurance Co Ltd v Ajai Sinha,(2008)7SCC 454(467) 20
United Telephone Co v Donohue,(1886) 31 Ch D 399 : 55 L J Ch 480 188
UOI V Delhi High Court Bar Association,(2002)4 SCC 275:AIR 2002 SC 1479 16
UOI V HK Dhruv,(2005) 10 SCC 218 57
UOI V KCT & Bros (Coal Sales) Ltd, AIR 2004 SC 3024 : 2004(3)Scale 203 87
UOI V Khader International Construction,JT 2001 (5)SC 218 203
UOI V Ladu Lai Jain, AIR 1963 SC 1621 : 1964 SCR(3)624 14,40
UOI 1/MV Damodar, AIR 2005 Bom 137 219
UOI V Pramod Gupta,(2005) 12 SCC 1 212
UOI V Somasundaram Mills Pvt Ltd, AIR 1985 SC 407:(1985)2SCC 40 142
Upadhyay & Co v State of Uttar Pradesh, AIR 1999 SC 509 ;(199) 1 SCC 81 186
Usha Harshad Kumar Dalai 1/ORG Systems,(2000) 1 SCC 742:AIR 2000 SC 2719 183
Uttam Singh Duggal & Co Ltd v United Bank ofIndia,(2000)7SCC 120:AIR 2000 SC 2740.... 106
Uttar Pradesh Avas Evam Vikas Parishad v Gyan Devi, AIR 1995 SC 724:(1995)2 SCC 326 23
Uttar Pradesh State Road Transport Corp v State of Uttar Pradesh, AIR 2005 SC 446:(2005) 1
SCC 444 210

V . ,
Vadiraj Naggappa Vernekar v Sarad Chand Prabhakar Gogate, AIR 2009 SC 1604 (1607):(2009)
4 SCC 410 120
Van Vibhag Karamchari GNSS Maryadit v R Chander, AIR 2011 SC 41 (46) : 2010 (11)
Scale 99 27
Vareed Jacob v Sosamma Geevanghese, AIR 2004 SC 3992:(2004)6 SCC 378 133, 176
Varun Pahwa v Renu Chaudhary, 2019 (4) Scale 75:AIR 2019 SC 1186 94
Vasantha Viswanathan v VK Elayalwar, AIR 2001 SC 3367:(2001) 8 SCC 133 163
Vasudevan VA v State of Kerala, AIR 2004 Ker 43 228
V Balakrishnan v TM Gowrieshan, AIR 2001 Mad 20 176
Ved Pal V Prem Devi,(2018)9 SCC 496 190
Vellappa v Govinda Dass,(1929)ILR Mad 809(FB):AIR 1929 Mad 721 48
Venkataramaiah y A Seetharama Reddy, AIR 1963 SC 1526 ;(1964)2 SCR 35 156
Venture Global Engineering v Satyam Computer Services Ltd, AIR 2010 SC 3371 (3374):(2010)
8 SCC 660 94
Vidyabati v Padmalatha, AIR 2009 SC 1433(1436);(2009) 2 SCC 409 94
Vijay Arjun Bhagat v Nana Laxman Tapkire, AIR 2018 SC 2625:(2018)6 SCC 727 161
Vijay Kumar Madan v RN Gupta Technical Education Society, (2002) 5 SCC 30 : AIR 2002
SC2082 132
Vijay L Mehrotra f State of Uttar Pradesh,(2001) 9SCC687: AIR 2000 SC 3513 183
Vimal Builders v Ketan KThakkar, 2010 (1) Bom CR 398 (407-409)(DB) 58
Vimal Chand Ghevarchand Jain v R Eknath Jajoo,(2009) 5 SCC 713:(2009)5 SCR 794 156
Vinod Kumar Singh v Banaras Hindu University, AIR 1988 SC 371 :(1988) I SCC 80 122
Vinod Seth v Devinder Bajaj,(2010) 8 SCC 1 : 2010 (82) ALR 335 '129, 130
Vishnu Dutt Sharma v Daya Sapra,(2009) 13 SCC 729(736):2009 (4) AWC 3405 (SC):2009
(8) Scale 698 16,73
 Table of Cases xli

Vishnu V State ofMP,2009(3) MPLJ 39(42)(DB):2009 (4) MPHT 123 46

Vishwavidyaiaya v Rajkishore, AIR 1977 SC 615:^977) 1 SCC 279 95
Vithalbai Pvt Ltd w Union Bank ofIndia, AIR 2005 SC 1891 :(2005)4 SCC 315 73
Vitt^Shetiyf Parameshwari alias UjjakkeShedthi, AIR 1954 Mad 100 ;(1952) II Mad LJ 932 128
Vivekananda Nidhi f Asheema Goswami,(2000) 10 SCC 23 224
VK Enterprises v Shiva Steels, AIR 2010 SC 2885 ZZ'ZZ^Z''Z1 208
Vogel Media International v Jasu Shah, 115 (2004) DLT 679 r AIR 20oT(NOCr292(Del) 76
VPeddarangaswamii/State ofMadras, AIR 1953 Mad 583(1953)ILR Mad 583 129
VSanjeevammafYPuranamma,AIR1984AP28(DB); 1983(2) AndhLT335 .ZZ. 183
VS Saini v DCM Ltd, AIR 2004 Del 219
VTVeerappaChettiarvPS PalaniappaChettiar, AIR 1973 Mad 313:(1973) 1 Mad LJ 316 142
w

^^lio'^"" ^009)°2fee 4^32'' Supply & Sewerage Board, AIR 2009 SC 1027 170, 208
Wall Mohd V Rahmat'Bee,(1999)3 SCC 145 ZZZZZZZZZ
Wipro Ltd v OCA India Pvt Ltd, AIR 2008 Mad 165(DB):2008(3) CTC 724 ^73
210

Workmen CP Trust v Board ofTrustee, AIR 1978 SC 1283 ;(1978)3 SCC 119 213 214
Y
Yakub All V Rubi,2011 (1) RCR (Civil) 129
Yerragorla Narayana v Gawala Nellesu, AIR 2006 AP 305:2006(4)Andh LD 164 1 nr
YNarasimhaRao vYVenkataLakshmi,(1991)3 SCC451 219

^ ^Src^7 " Engineer, WRO/PWD 2015 (1) RCR (Civil) 89 ; (2015) 5

Yun^M f Khursheed aI^,(2008)7SCC 293 ^95-297); 2()08'sc'26of 70

169
Z
ZairHusainwKhurshedJan,(1906)ILR28A11545
^fAhmad(D)t- Mohd Farooq, AIR 2015(SC) 1236:20T5(l^siie 690 ,ex ,«
Zolba V Keshao, AIR 2008 SC 2099:(2008) 11 SCC 769
84
 CHAPTER 1

INTRODUCTORY

Law may be divided into civil and criminal. It is not easy to distinguish between
crime and civil wrong and, in some cases, the ■ same act may be a crime as well as a
civil wrong. Yet there is a distinction between the two, which, in its essence, is quite
simple. The distinction does not lie in the nature of the act complained of, but in the
consequences which visit the wrongdoers. In case of a crime, the wrongdoer is punished
and kinds of punishment va^ from fine to imprisonment, depending upon the nature
of crime. In case of a civil wrong, the aggrieved person is normally compensated by
monetary relief and certain kinds of contracts also enable specific performance. Law
dealing with civil wrongs and the remedies available for their redressal may be conve
niently labelled as civil law. In the present lecture we are concerned with civil law, as
distinguished from criminal law. There is another division of law, often expressed by
the words "substantive" and "adjective" or "procedural".
Substantive law deals with rights and liabilities, imposes and defines the nature and
extent of legal duties; adjective law deals with practice and procedure. The Indian
Contract Act, 1872, the Transfer of Property Act, 1882, the Specific Relief Act, 1963,
the Indian Trusts Act, 1882, the Indian Succession Act, 1925, are all instances of
substantive law. The Code of Civil Procedure, 1908, the relevant civil courts Acts, the
Presidency Small Cause Courts Act, 1882, the Indian Evidence Act, 1872, are instances
of adjective law.
In these lectures, we are concerned with adjective law, but the study of substantive
law should precede the study of adjective law and, therefore, it is advisable to study the
five Acts mentioned above before commencing the study of the Code of Civil Procedure,
1908 (Code) or of the Indian Evidence Act, 1872. A prior study of the said Acts is
essential to have a thorough understanding of the Code. In order to grasp the provisions
of the Code, simpler and easier methods have been evolved in the present lectures.
In these lectures, we have traced the course' of an ordinary suit from the moment
a plaintiff determines to sue until an appeal is preferred to the Supreme Court. As
our typical suit, we have ;taken a suit for specific performance, and we have given
the forms of the plaint, writ of summons, written statement, affidavit of documents,
interrogatories, summons to witnesses, issues, and decree in the suit. The suit is then
carried to an appeal,,and ultimately to an appeal to the Supreme Court. The proceedings
in the suit and appeal are so conceived in these lectures as to facilitate taking note of
almost every important section and rule contained in the Code, and the relevant civil
courts Acts. Within the limits of 15 lectures, an endeavour has been made to give a
clear idea of the important steps that are usually taken in an ordinary suit.
As stated above, the Code is an instance of adjective law dealing with practice
and procedure. Procedure is a mere machinery, having its object to facilitate the
administration of justice, meaning thereby that procedure is a process necessary to
be undertaken for enforcement or recognition of the legal rights and liabilities of the
litigating parties by a court of law. The procedural rules are equally important as much
2 Mulla The Key to Indian Practice

as the rules of substantive law, but they are not meant to defeat the substantive law or
obstruct the administration of justice.
The procedural rules are not mere technicalities and it is a misconception to ignore
them altogether as several other rules if procedure serve the very ends of justice under
the substantive law and some rules are needed for proper resources, time management
and public policy. However, procedural law is always subservient to substantive law.
The procedure is handmaiden to the substantive rights of the parties.' Nothing can be
given by a procedural law that is not sought to be given by a substantive law.^ "It is
a procedure, something designed to facilita e justice and further its ends: not a penal
enactment for punishment and penalties; nc t a thing designed to trip people up."^
Civil procedural law is an indispensable in: trument for the attainment of justice. It
fulfils many legal and social functions and it assumes complementary character when it
puts into motion and gives life to substantive hw. It assumes the protective character
by representing the orderly, regular and public functioning of the legal machinery and
the operation of the due process of law, and sustains and safeguards every person in
his life, liberty, reputation and property, while it assumes remedial or practical character
when it deals with the actual litigation process itself and enhances the importance and
application of rules for the conduct of the judicial process.
Before 1 July 1859, there were no less than nine difierent systems of civil procedure
simultaneously in force in Bengal. The systems of procedure in other parts of British
India were equally numerous. The evils arising from this state of things had been
felt, and they were to a certain extent, remedied by the Code of 1859. However, the
Code of 1859, as passed, did not apply to Supreme Court, or to the presidency small
cause courts, nor did it extend to non-regulation provinces. In course of time, it was
extended to almost the whole of British India, and it was also made applicable to the
high coutts by virtue of their respective charters. As the Code was ill-dtawn, ill-arranged
and incomplete, a fresh Code had to be passed in 1877. A few months' experience,
however, showed that sevetal amendments were desirable, and after five years, another
Code was passed, namely the Code of 1882. The Code of 1882 remained in operation
for more than quarter of a century and to remedy the defects experienced during that
period, a comprehensive revision of the code was undertaken in the first decade of 20th
century, and the Code of 1882 was supplanted by the present Code in the year 1908.''
There have been extensive amendments' to the Code in the year 1976. The objects
behind such amendments were to ensure more expeditious disposal of civil suits and
proceedings consistent with accepted principles of natural justice and to simplify the
procedure to a certain extent. Having regard to the fact that the procedural niceties
wete becoming potential source of motivated delays at the hands of unscrupulous
litigants that the necessity to cut short the delays at various levels was considered
and the Code was drastically amended by the Code of Civil Procedure (Amendment)
Act, 1999, which proposed several changes to the Code. However, the same was not
notified and some of the proposed changes under the Amendment Act of 1999 were

1. Sukhbir Singh vBrijPal Singh, MR 1996 SC 2510 :(1997)2 SCC 200.

2. Saiyad Mohammad Baker El-Edroos V Abdul Habib Hasan Arab, AIR SC 1624;(1998)4 SCC 343.
3. Sangram Singh v Election Tribunal, AIR 1955 SC 425 : 10 ELR 293:(1955)2 SCR 1.
4. Dr Whitley Stake's Anglo-Indian Codes, Vol II, pp 380-86.
5. Act 104 of 1976. For the background, see Law Commission ofIndia, 27th and 54th Reports,section I(3).
 Chapter 1—Introductory 3

deleted or substituted through the Code of Civil Procedure (Amendment) Act, 2002,
consistent with the demands of fair play and justice which came into force on 1 July
2002. The important changes in the Code brought about by these amendments fix the
time limit for doing certain things, permit the parties to adduce evidence by affidavits,
and further the provision for settlement of disputes through arbitration, conciliation,
lok adalats and mediation. The Supreme Coun in Salem Bar Association v UOP has
held the amendments in the Code brought into force with effect from 1 July 2002
as constitutionally valid. It is a moot point, however, if the provisions achieved their
intended objective, and interventions of higher courts have been inconsistent and in
many cases liberal, with the ambit of discretion exercised by the trial courts in the
matter of dealing against litigants who manipulate to deliberately cause c'elays.
The Code of 1882 contained 49 chapters, each chapter consisting of several sections,
the total number of sections being 652. The arrangement of the present Code is a novel
one. It proceeds upon the lines of the Judicature Acts and the Rulra framed under those
Acts. It consists of two parts—the first containing provisions whkh are more or less of
a substantive character, and the second containing provisions which relate to matters
of mere machinery. The sections which form the body of the Code constitute the first
part. The rules and orders comprised in Sch I constitute the second part. As regards
the sections, they cannot be altered or amended except by the legislature. As regards the
rules, the high courts are empowered to annul, or add to, all or any of the said rules,
provided that they are not inconsistent with the provisions of the sections.^ The high
courts have been showing considerable agility in exercising this power, and the work
of annulling, altering and adding to the rules has been going on an extensive scale. As
regards high courts, it is to be observed that they have the power under section 129
to make rules to regulate their own procedure in the exercise of original jurisdiction.
Such rules may be inconsistent with the provisions of the Code, but they must not be
inconsistent with the Letters Patent® establishing those courts.
The Code was enacted with the object of consolidating and amending the laws
relating to the procedure of the courts of civil judicature. It is a complete Code in itself
as regards the subject it deals with. It would govern all actions of a civil nature, unless
otherwise provided for' and thus, its provisions are to be construed as exhaustive with
regard to the matters dealt within it.'" However, when there is no specific provision
in the Code, courts must be guided by the principles of justice, equity and good
conscience." Some of the provisions do make certain exceptions and it is necessary to
notice them.'^

The present Code came into force on 1 January 1909. It extends to the whole of
India except" the areas mentioned in section 1, but it does not apply in its entirety

6. Salem Bar Association v UOI,(2005)6 SCC 344:AIR 2005 SC 3353: 2005 (5) ALD 1 (SC).
7. Director ofInspection ofIncome Tax v Pooran Mat&Sons,(1975)4 SCC 568: AIR 1975 SC 67 ;(1975)2
SCR 104.
8. Those established under the Royal Charter of the British, before advent ofthe Constitution of India.
9. iridium Indian Telecom Ltd v Motorola Inc,(2005) 1 CTC 304,(SC):(2005)2 SCC 145.
10. Manohar Lai v Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527:(1962) Supp 1 SCR 450.
11. See Code of Civil Procedure 1908, section 4(1). Ram Chand and Sons Sugar Mills Pvt Ltd Barabanki
(Uttar Pradesh) v KanhayalalBhargava, AIR 1966 SC 1899 :(1967) 37 Comp Cases 42(SC).
12. Iridium Indian Telecom Ltd v Motorola Inc.,(2005) 1 CTC 304 (SC).
13. Code of Civil Procedure, 1908, secdon 1(3).
4 Mttlla The Key to Indian Practice

to all the courts of India. Its preamble states that the Code was enacted to consolidate
and amend the law, relating to the procedure of the courts of civil judicature, but the
expression "courts of civil judicature" is not defined in the Code. However, by judicial
process, it will be determined in each case, whether the Code is applicable to a particular
court or forum and if yes, to what extent. Its applicability can be extended or restricted
by legislatures. For instance, the Code applies to proceedings in the testamentary and
intestate jurisdiction, except as otherwise provided by Indian Succession Act, 1925. Insol
vency courts are courts of civil judicature, but their procedure is regulated by special
Acts'. The Code also maltes certain specific provisions to this effect. Thus, only a few
portions extend to the president:}'' small cause courts, and those portions are declared
by section 8 and by O LI. As regards provincial small cause courts, the whole of the
Code extends to diese courts, except the portions specified in section 7 and in O L. As
regards high courts in the exercise of their ordinary original civil jurisdiction, the whole
of the Code extends to those courts, except the portions specified in section 117 and.
section 120, and in O XLIX, rule 3. We shall revert to this subject later on.
The Code is in two parts:
(i) the body of the Code which contains sections 1 to 158; and
(ii) the First Schedule containing O I to O LI and rules thereunder. While
sections lay down the general principles of the jurisdiction, the orders and
rules prescribe the method and manner in which that jurisdiction may be
exercised. Further, if the rules are inconsistent with the sections, the latter
shall prevail, the former being secondary in nature. However, the sections
and the rules have to be read together and construed harmoniously.
The Code, being a procedural law, is retrospective in operation and its provisions
apply to the proceedings pending at the time of its having come into force. However,
the procedure correctly adopted and concluded under the previous (repealed) law cannot
be re-opened for the purposes of applying new procedure.'^ At the same time it shall not
affect the vested rights except where the amendment has been expressly or by necessary
implication been made retrospective.'^ The legal position has been aptly summarized
saying that "all procedural laws are retrospective unless the Legislature expressly states to
the contrary. It has been held that the procedural laws in force must be applied at the
date when the suit or proceeding comes on for trial or disposal. It has been held that
a court is bound to take notice of the change in the law and is bound to administer
the law as it was when the suit came up for hearing. It has been held that if a court
has jurisdiction to try the suit, when it comes on for disposal, it then cannot refuse
to assume jurisdiction by reason of the fact that it had no jurisdiction to entertain it
at the date when it was instituted".""

The function of adjective law is to facilitate justice and further its ends,'^ and,
therefore, the rules of procedure must be construed liberally and in such manner so as
to render the enforcement of substantive rights effective.'^

14. Nani Gopal Mitra v State ofBihar, AIR 1970 SC 1636: 1970 Cr LJ 1396.
15. Mohan Lai v Sawai Man Singh, AIR 1962 SC 73 :(1962) 1 SCR 702.
16. Sudhir G Angur v MSanjeev (2006) 1 SCC I4l ; (62) ALR 135.
17. Manohar Lai Bhogilal Shah v State ofMaharashtra, AIR 1971 SC 1511 ; (1971) 2 SCC 119.
18. Sukhbir Singh v BrijPal Singh, AIR 1996 SC 2510 ; (1997)2 SCC 200.
 chapter 1—Introductory 5

The Code recognizes the inherent powers of the court and specifically provides that
nothing is to limit or otherwise affect the inherent powers of the court to make such
orders as may be necessary for the ends of justice or to prevent abuse of the process of
the court." Where the Code is silent regarding a procedural aspect, the inherent power
of the court can come to its aid to act ex dehito justitiae for doing real and substantial
justice between the parties.^"

19. Code of Civil Procedure 1908, section 151-

20. Jet Plywood Pvt Ltd V Madhukar Nowlakha, AIR 2006 SC 1260:(2006)3 SCC 699.
 CHAPTER 2

THE COURTS AND THEIR JURISDICTION

SYNOPSIS
2.1 Constitution of Courts 6 2.3.1 Courts in Presidency
2.2 Jurisdiction 7 Towns 11
2.2.1 "Lack of Jiurisdiction and 2.3.2 Courts in Other Parts
Irregular exercise of of India 11
Jurisdiction" 8 2.3.2.1 Original Jurisdiction 12
2.2.2 Original and Appellate 2.3.2.2 Appellate Jurisdiction 12
Jurisdiction 9 2.3.2.3 Courts of Small
2.2.3 Jurisdiction as regards Local Cause 13
Limits, Pecuniary Limits, 2.3.2.4. Commercial Courts 13
and Subject-matter 9 2.4 The Three Rules 13
2.2.4 Ordinary Original and 2.5 Suits of a Civil Nature 15
Extraordinary Original 2.5.1 Express Bar 17
Civil Jurisdiction 11
2.5.2 Implied Bar 19
2.3 Courts 11
2.5.3 "Jurisdictional Fact" 20

2.1 Constitution of Courts

The Code pre-supposes knowledge on one's part of the various courts in India and
of their jurisdiction.'
In the year 1858, i.e., the next year after the Revolt of 1857, a statute was passed by
the British parliament called the Government ofIndia Act, by which the Government of
India was transferred ftom the East India Company to Her Majesty, Queen Victoria. In
the year 1861, there were (amongst others) two statutes passed by the British parliament
called the High Courts Act, and the Indian Councils Act.
The High Courts Act, 1861 empowered Her Majesty to establish, by letters patent,
under the great seal of the United Kingdom, a High Court at Calcutta for the Bengal
Presidency, a High Court at Bombay for the Bombay Presidency, and a High Court
at Madras for the Madras Presidency. The said Act also empowered Her Majesty, if at
any time it was thought fit to do so, to establish a high court in and for any other
portions of the territories within Her Majesty's dominions in India. Pursuant to the
power so ,given, three high courts were established in the year 1862, namely, the
High Courts of Calcutta, Bombay and Madras, and one high court was established
in the year 1866, namely, the High Court of Allahabad. All these high courts were
established by letters patent or charter, and they are therefore called Chartered High
Courts. The charter, for each of these high courts defines the nature and the extent
of its jurisdiction.
The other statute, namely, the Indian Councils Act, 1861, empowered the Governor-
General ofIndia in the Council to establish other courts in British India. Pursuant to the
power so given, a large number of courts were established in British India, such as the
 Chapter 2—The Courts and Their Jurisdiction 1

presidency small cause courts, provincial small cause courts, district courts, subordinate
judges' courts, mimsiffs' courts, etc. The jurisdiction of these courts is defined in the
Acts by which they have been established.
Before proceeding to enumerate the principal courts of India and to state the nature
and extent of their jurisdiction, the following is a short note on the meaning of the
word 'jurisdiction.

2.2 Jurisdiction
Jurisdiction means the extent of power of a court to entertain suits and applications.
It signifies the power, authority and competency of the court to adjudicate disputes
presented before it. It refers to the right of admiriisteting justice by means of law.'
'Before a court can be held to have jurisdiction to decide a particular matter it must
not only have jurisdiction to try it but must .also have the authority to decide the
questions at issue and pass appropriate orders.'^
Thus, jurisdiction means the power or authority of a court.to inquire into the facts,
to apply the law and to pronounce a judgment and to carry iit into execution.'
There are three kinds of jurisdiction of courts, viz, pecuniary, territorial and
jurisdiction as to the subject-matter. It is also classified into original and appellate
jurisdiction.
The limits on the jurisdiction of the court are imposed by a statute under which
the court is constituted and can be extended or restricted by the statute. Where no
restriction is imposed on the jurisdiction, it is said to be unlimited. Relying on the
maxim ex dolo mah non oritur action, the Supreme Court held that by an agreement
which absolutely ousted the jurisdiction of a court having jurisdiction to decide the
matter, would be unlawfiil and void, being contrary to public policy under section 28
of the Indian Contract Act, 1872.^
Where a court lacks inherent jurisdiction-whether pecuniary or territorial or the
subject-matter jurisdiction to try a matter, express consent of the parties,' waiver® or
acquiescence^ cannot create it. Conversely, where a court has the jurisdiction, consent
of the parties, waiver, acquiescence or estoppel cannot take it away.® However, if two
or more courts have jurisdiction to try a suit, the parties may, by consent, select the
one and exclude the other.' The defect in the inherent jurisdiction of a court, strikes at
the very authority of the court to pass a decree. And a decree passed by a court lacking
jurisdiction is nullity and its invalidity can be set up as a defence, when the decree is
being relied upon, even at the stage of execution or in collateral proceedings, and the

1. Official Trustee, West Bengal v Sachindra Nath Chatterjee, AIR 1969 SC 823 : (1969) 3 SCR 92.
2. Official Trustee, West Bengal v Sachindra Nath Chatterjee, AIR 1969 SC 823 : (1969) 3 SCR 92.
3. Ujjam Bai v State Uttar Pradesh, AIR 1962 SC 1621: 1963 SCR (1) 778.
4. ABC Laminart v AP Agencies, AIR 1989 SC 1239 : 1989 SCR (2) 1.
5. Patel Roadways Ltd, Bombay v Prasad Trading Co, AIR 1992 SC 1514 :(1991) 4 SCC 270.
6. P Dasa Muni Reddy v P Appa Rao, AIR 1974 SC 2089 : 1975 SCR (2) 32.
7. Hira Lai Patni v Kali Nath, AIR 1962 SC 199 :(1962) 2 SCR 747.
8. Kiran Singh v Chaman Paswan, AIR 1954 SC 340 : (1955) 1 SCR 117.
9. Globe Transport Carp v Triveni Engineering Works, (1983) 4 SCC 707 :(1984) 86 PLR 259.
8 Mulla The Key to Indian Practice

defect cannot be cured, even by tbe consent of the parties to the suit.'" A decree passed
by a court without jurisdiction is a coram non judice (not before a judge)."
A court is entitled to determine whether a matter, in which it is asked to exercise
its jurisdiction, falls within its purview or not. In other words, a civil court has the
inherent jurisdiction to decide as to whether it has jurisdiction in a matter or not'^
and in deciding the question of jurisdiction, the substance of the pleadings and not
their form must be considered.'^ '

The Apex Court approved the Full Bench decision of Allahabad High Court, which
holds that:'''

The plaintiff chooses his forum and files his suit. If he establishes the correctness of his
facts he will get his relief from the forum chosen: If he frames his suit in a manner not
warranted by the facts, and goes for his relief to a court which cannot grant him relief on
the true facts, he will have his suit dismissed. Then there will be no question of remrning
the plaint for presentation to the proper court, for the plaint, as framed, would not justify
the other kind of court to grant him the relief. If it is found, on a trial on the merits
so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff are nor true
and the facts alleged by the defendants are true, and that the case is not cognizable by
the court, there will be two kinds of orders to be passed. If the jurisdiction is only one
relating to territorial limits or pecuniary limits, the plaint will be ordered to be returned
for presentation to the proper court. If, on the other hand, it is found that, having regard
to the nature of the suit, it not Cognizable by the class of court to which the court
belongs, the plaintiff's suit will have to be dismissed in its entirety.
The court, having jurisdiction, has the power to grant interim relief. The power
to grant interim relief is discretionary and inherent in every court of competent
jurisdiction.'^

2.2.1 "Lack ofJurisdiction and Irregular Exercise ofJurisdiction"

The 'existence' of jurisdiction and 'exercise' of jurisdiction are not synonymous. A
court draws its jurisdictional competence from pecuniary and territorial limits, as also
the nature of subject-matter. The court acquires jurisdiction only when all three tests
are satisfied. It may while exercising the jurisdiction properly vested in it, also adjudicate
other questions related and incidental to the main cause. If the court makes an error
while deciding such incidental or related issues, it amounts to "irregular exercise of
jurisdicrion" as compared to a decision where irs jurisdiction is barred expressly or by
implication and thus the decision of court suffers from "lack of jurisdiction".
An error ofjudgment committed by inferior court is curable by the appellate forum,
but a void order cannot be validated even by the superior forum.
"Where a court having jurisdiction over the subject matter of the suit and over the
parties thereto passes a decree in a claim which is barred by limitation and fails to do

10. Ktran Singh v Chaman Paswan, AIR 1954 SC 340 : 1955 SCR 117.
11. Kiran Singh v Chaman Paswan, AIR 1954 SC 340 : 1955 SCR 117.
12. Life Insurance Carp ofIndia Automobiles & Co, AIR 1991 SC 884 : (1990) 4 SCC 286.
13. Bank ofBaroda v Moti Bhai, AIR 1985 SC 545 : 1985 SCR (2) 784.
14. Raizada Topandas v Gorakhram Gokalchand, AIR 1964 SC 1348 : 1964 SCR (3) 214.
15. Dalpat Kumar v Prahlad Singh, AIR 1993 SC 276 : (1992) 2 Mad LJ 49 SC; Bina Murlidhar Hemdev
V Kanhaiyalal Lakram Hemdev, AIR 1999 SC 2171 : 1999 (3) SCR 677.
 Chapter 2—The Courts and Their Jurisdiction .9

its duty imposed by S.3 of the Limitation Act, the court has merely made an error of
law which could be corrected only in the manner laid down by this Gode."'^
"Lack of Jurisdiction may arise in various ways. There may ibe an absence of
those formalities ox things which are conditions precedent to the tribunal having any
jurisdiction to embark on an enquiry. Or the tribunal may at the end make an order
that it has no jurisdiction to make..."'^ "The dicta of the majority of the House of
Lords, in the cited case shows the extent to which 'lack' and "excess' ofjurisdiction have
assimilated. The net effect is to reduce the difference between jurisdictional error and
error of law within jurisdiction dmost to vanishing point. The practical effect of the
decision is that any error oflaw can be reckoned as jurisdictional... The question whether
there is excess of jurisdiction or mere error within jurisdiction can be determined only
by construing the empowering statute which will give little guidance ... Even if lack
of jurisdiction is assumed to result from every material error of law - even an error of
law within jurisdiction in the primitive sense of the term ... it does not mean that the
order was vitiated by any error of law."'®

2.2.2 Original and Appellate Jurisdiction

A court may have original or appellate jurisdiction or both. In the exercise of its
original jurisdiction, a court tries original suits instituted in that court. In the exercise of
its appellate jurisdiction, it hears appeals from orders and decrees passed by subordinate
courts. Thete are some courts that are courts of original jurisdiction only, e.g., the
provincial small cause courts. There are some courts that are courts only of appellate
jurisdiction, and not of original jurisdiction; thus, the High Court of Allahabad is not
a court of original jurisdiction, that is to say, no suits can be instituted in that court,
but it has jurisdiction to hear appeals from decrees passed by subordinate court in the
state. There are other courts which have both original and appellate jurisdiction, e.g.,
the High Courts of Calcutta, Madras, Delhi and Bombay," district courts, etc.
2.2.3 Jurisdiction as Regards Local Limits, Pecuniary Limits, and Subject-matter
Then again we speak of the jurisdiction of a court:
(i) as regards its local limits;
(ii) as regards its pecuniary limits; and
(iii) as regards the subject-matter of suits.
Every court has its own specific local territorial limits, which refers to the geographical
boundaries, beyond which it cannot exercise its jurisdiction.' These limits (in the case
of subordinate courts) are usually, fixed by the State Government by notification in
the Official Gazette. Thus, the district courts can exercise jurisdiction only within
the district and high courts can exercise jurisdiction only over the territory of that
particular state.
The pecuniary limits of a civil court are laid down in the relevant Civil Court Act.
The pecuniary jurisdiction of a civil court refers to the amount or the value of cases
16. Ittavira Mathai v Varkey Varkey, AIR 1964 SC 907 : 1964 SCR (1) 495.
17. Anisminic Ltd v Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163.
18. ML Sethi v RP Kapur, 1972 (2) SCC 427 : 1973 SCR (1) 697.
19. See chapter 4; under clause 12 of the Charter.
10 Mulla The Key to Indian Practice

that can be presented before it for adjudication and is determined on the basis of
the value of the relief claimed by a plaintiff. At the same time, it is always open to
the court to consider and also, to the defendant to challenge, the correctness of the
valuation fixed by the plaintiff.
As regards pecuniary limits, there are certain courts which have no such limit imposed
upon their jurisdiction, such as high courts, district courts, and (in certain ^tates),
certain other courts. The City Civil Court at Ahmedahad has unlimited pecuniary
jurisdiction while High Court of Gujarat has only appellate jurisdiction in so far as
suits are concerned. For areas outside Ahmedahad, courts of civil judge (senior division),
established under Bombay Civil Courts Act, 1879 have unlimited pecuniary jurisdiction
but there are other courts that have pecuniary limits imposed upon their jurisdiction,
e.g., the courts of civil judge (junior division) cannot try suits in which amount claimed
exceeds Rs 50,000, the presidency small cause courts,^" which cannot try suits in which
the amount claimed exceeds Rs 5,000, and provincial small cause courts, which cannot
try suits in which the amount claimed exceeds Rs 2,000,^' or the amount fixed in
each state by local legislature. In Delhi, the court of civil judge has the jurisdiction to
try suits in which the amount claimed does not exceed Rs 3,00,000 and the court of
district judge has the pecuniary jurisdiction to try suits in which the amount claimed
is more than Rs 3,00,000 but does not exceed Rs 2 crores and for suits in which the
amount claimed is more than Rs 2 crores, the High Court of Delhi has the original
jurisdiction to try such suits. '
For the pecuniary jurisdiction of different grades of courts, the various Civil Courts
Acts in the states can he referred to.

Further, the forum of appeal, as far as the pecuniary jurisdiction is concerned, is

also determined by the value of the suit and not by the amount decreed.
It is not proposed to go into the exhaustive details of hierarchy of courts or their
respective pecimiary jurisdictions. The establishment of various courts in diflferent parts
of India differs from each other in their nomenclature as well as extent of jurisdiction.
Absence of uniformity in this regard is a factor which prevents the author from making
any further elaboration, except to the extent indicated hereafter.
In a suit for rendition of accounts, a court can pass a final decree for a sum exceeding
the limits of its pecuniary jurisdiction^' and also for future mesneprofits. However, where
a decree passed by court is beyond its pecuniary jurisdiction, executing court cannot
refuse to execute the decree as 'decree without jurisdiction'.^"'
It is the plaintiff's valuation in his plaint which prima facie determines the
jurisdiction^' and the allegation made in the plaint which decide the forum. There
is no denying the fact that the allegations made in the plaint decide the forum.

20. Presidency Small Cause Courts Act, 1882 (15 of 1882), section 15.
21. Provincial Small Cause Courts Act, 1887 (9 of 1887). section 15(2). The amount may be altered by
the local amendments.
22. The pecuniary jurisdiction was enlarged by the High Court (Amendment) Act, 2015 (23 of 2015)
that came into force from 26.10.2015.
23. Mohan Meakin Ltd v Internations Trade, AIR 2004 HP 11 : 2002 (3) Shim LC 39.
24. AK Mukherjee v Regional Institute ofPrinting Technology, AIR 2003 Cal 40.
25. Ishwarappa v Dhanji, AIR 1932 Bom 111 ; (1932) 34 Bom LR 44.
 chapter 2—The Courts and Their Jurisdiction 11

The jurisdiction does not depend upon the defence taken by the defendants in the
written statement.^^

Jurisdiction, as to the subject-matter refers to the power and authority of the court
to try and entertain a partictdar type of suits. The jurisdiction of a court depends
upon the right to decide the case and not upon the merits of its decision.^^ All courts
cannot try all types of suits. Different courts are empowered to try different, types of
suits and certain courts cannot try certain suits because of the subject-matter involved.
The presidency small cause courts have no jurisdiction to try suits for damages, for
libel and slander, suits for specific performance of a contract, suits for the recovery or
partition of immovable property, suits for the foreclosure or redemption of a mortgage
of immovable property, suits for dissolution of partnership or for partnership accounts,
etc. Subject-matter means the relief claimed and not property involved.^®

2.2.4 Ordinary Original and Eictraordinary Original Civil Jurisdiction

In the exercise of its ordinary original jurisdiction, a chartered high court tries and
determines suits instituted in that court.

In the exercise of its extraordinary original civil jurisdiction, a chartered high court
has the power to remove any suits from a court subordinate to it, and to try it itself,
if it thinks proper to do so for the purpose of justice.^' By special Acts, certain high
courts (besides chartered high courts) also have original civil jurisdiction.^®

2.3 Courts

2.3.1 Courts in Presidency Towns

The object of this lecture is not to provide a complete list of the courts, but to explain
some of the most important sections of the Code, which are hereinafter reproduced
in the form of rules.''

In each of the three presidency towns, there is a high court, a city civil court
and a small cause court. As regards high courts, there is ,no limit to their pecuniary
jurisdiction.
As regards city civil courts, their jurisdiction is dealt with in the appendix.
The jurisdiction of presidency small cause courts has been dealt under 'jurisdiction.
2.3.2 Courts in Other Parts ofIndia
Outside the presidency towns, there is in each state, a number of courts of different
grades. Their hierarchy differs from state to state, but they may roughly be divided
into the classes shown in the table of courts given on next page.

26. Abdulla Bin Ali v Galappa, AIR 1985 SC 577 : 1985 (1) Scale 1205-
27- Pankaj Bhargav v Mahendra Nuth-, (1991) 1 SCC 556 : AIR 1991 SC 1233.
28. Kalti Parvati v Krishnan Nair, (1969) Ker LJ 599.
29. Clause 13 of the Charter.
30. For instance, Delhi, Himachal Pradesh and Jammu & Kashmir.
31. See 'The Three Rules' below, p 13.
 12 Miilla The Key to Indian Practice

TABLE OF COURTS
Maharashtra State and West Bengal and Tamil
Order of Grade Delhi State Nadu State
I (a) District Judges District Judges and District Judges
Additional District Judge
(b) Assistant Judges
II Courts of Civil Judges Civil Judges Courts Subordinate Judges Courts
(Senior Division)
■III Courts of Civil Judges MunsifPs Courts
(Junior Division)

2.3.2.1 Original Jurisdiction

(i) Of these three grades' of courts, the district court is the principal court of
original civil jurisdiction in the district. In other words, it is the court of
the highest grade in the district.
(ii) Next in order of grade are the courts of civil judges of the senior division in
Maharashtra and Gujarat; courts of civil judges in Delhi and of subordinate
judges in West Bengal. There is no limit to the pecuniary jurisdiction of
these courts, and they may entertain any suit of a civil nature except in
Delhi, where the court of civil judges can try and enterrain suits of the
value upto Rs 3,00,000. In Tamil Nadu, the pecuniary limit is between
Rs I lac and 10 lacs and where the subject-matter exceeds 10 lacs, it shall
be to the District Court.
(iii) Then come the courts of civil judges of the junior division in Maharashtra
and Gujarat, and the munsijfs' cowns, in Tamil Nadu and West Bengal. The
pecuniary jurisdiction of a civil judge of the junior division in Gujarat is
confined to suits of which, the value does not exceed Rs 50,000. Since
pecuniary jurisdiction differs from srate to state and it is revised time and
again, it is otitside the scope of this book to provide further details in this
regard.

2.3.2.2 Appellate Jurisdiction

Of these three grades of courts, the district coutts have everywhere appellate
jurisdiction. An appeal lies to the disttict courts:
(i) from decrees passed by the courts belonging to grade III; and
(ii) from decrees passed by courts belonging to grade II, where the value of
the original suit does not exceed the presctibed amount.
An appeal lies to the high court:
(i) from decrees of courts belonging to grade II, where the value of the suit
exceeds the prescribed amount;
(li) from decrees passed by the district court.
In some states, coutts other than district judges have also been vested with .such
jurisdiction.
 Chapter 2—The Courts and Their Jurisdiction 13

2.3.2.3 Courts ofSmall Cause

Besides the above courts, there are provincial small cause courts established under
the Provincial Small Cause Courts Act, 1887. The courts of small causes are courts of
preferential jurisdictions and not of exclusive jurisdiction.'^ The pecuniary jurisdiction
of these courts is confined to suits of which the value does not exceed specified limits.
Again, there are about 44 kinds of suits which these courts have no jurisdiction to
entertain. A list to these suits is contained in the second schedule to the Act." However,
a decree passed by a court ofsmall causes can be transferred to a civil court for execution
and can be executed by sale of immoveable property.'^
2.3.2.4. Commercial Courts
The Commercial Courts Act of 2015 (4 of 2016) establishing commercial courts
at the High Court and District level for subject matter of commercial dispute over
Rs. 1 crore has been amended by Act 28 of 2018 reducing the value of subject rnatter
to Rs. 3 lacs. They operate at two levels, one at the High Court which holds original
jurisdiction with a commercial division and another at District Court. The Act gives
the State Government power to specify the pecuniary jurisdiction of such commercial
courts which shall not less than 3 lacs and not more than the normal pecuniary
jurisdiction of district courts. In High Courts which have no original jurisdiction,
commercial courts are set up at the level of district court as well ^ at level
the district court. In the latter situation, appeals below the level of district judge shall
lie before the Commercial Appellate Court and appeals from commercial courts at
the District level shall lie before the High Court commercial division. There shall
also be Commercial Appellate Division of the High Court against decision of
Commercial Division exercising original jurisdiction, as in Calcutta, Madras, Bombay,
Himachal and Delhi High Courts. The special feature in this Act as amended is there
shall be mandatory mediation, where the suit does not contemplate interim prayers.
The authorities constituted under Legal Services Authority Act 1987 will complete the
process of mediation within 3 months from the date of application. The settlement
arrived at such mediation shall have the eflFect of award under section 30(4) of the
Arbitration and Conciliation Act, 1996.

2.4 The Three Rules

The following rules are of great importance:
(i) No court shall entertain any suit, the amount or the value of the subject-
matter of which, exceeds the pecuniary limits of its jurisdiction (section 6).
Thus, a small cause court at Ahmedabad cannot entertain any suit in which
the amount claimed exceeds Rs 5,000.
(ii) No court shall entertain any suit which, as regards the subject-matter
thereof, has been excepted firom its cognizance. Thus, neither a presidency
nor a provincial small cause court can entertain a suit for the recovery of
immovable property.

32. Abdul Hamid v Illrd ADJ Mainpuri, 2000 All LJ 763 : 2000 (1) All WC 276.
33 The Provincial Small Cause Courts Act, 1887, Second Schedule.
34. Sunii Kumar v P Prakash, AIR 2005 Ker 181 (DB): 2005 (1) Ker LT 800.
 Mulla The Key to Indian Practice

(iii) Evety suit shall be instituted in the court of the lowest grade competent to
try it (section 15). Thus, a suit to recover Rs 500 as damages for breach
of a contract should, in a presidency town, be instituted in the presidency
small cause court, and not in the city civil court or the high court. It is
not that the high court or city civil court has no jurisdiction to try the
suit. It certainly has such jurisdiction but the above ride, which is a.rule
of procedure, requires that the suit being one, which it is competent for
the small cause court to try, should be instituted in the small cause court,
that being the court -of the lowest grade in the presidency town.
(iv) "The object underlying section 15 is to see.that courts of higher grades rare
!not'.overburdened with suits and to afford convenience to the parties."^'
®ut if the suit is one, which is not competent for the small cause court
to tiy, e.g., suit ifor the recovery of land situated in .a presidency town, it
^odd be instituted in the high court or city civil court, as .the case may
be,^ however small die value of the land may be.
Excepting .certain sidts specifically provided "by )law, as a rule, no original suit is
mstimted in,a districtnourt. Itiisinot because.a.district,court has no-originaljurisdictiion
but because in -every district diere is a ,court, besides district court. This is the couri
of.civfi judge, sMJor division, an the State of Maharashtra and (Gujarat or the court
corresponding to them in .other.states. Tbese courts may .try suit.of any value, as there
IS no limit to their pecuniary jurisdiction.
Thus, let us take the case of a suit for partition of immovable property of the
vdue of Rs 10 lakh. Such a suit cannot be instituted in any court belonging to class
111, berause the value of the property exceeds its pecuniary jurisdiction. Then; is a
court belonging to class II competent to ciy die suit? Yes. And is a court beloi^ing
to class I (that is, a district court) competent to try? Yes. In wliich court should
then the suit be instituted? In the court of die lowest grade competent to try it
And which is the court? It is a court belonging to class II, that is, .the court of the
civil judge of the senior division in Maharashtra or Gujarat, and die court of die
subordinate judge in Tamil Nadu and West Bengal. It is because of the -rule now
under consideration that no original suit is, except as aforesaid, instituted in a district
court, and the work of a district court is confined mosdy to the hearing of appeals.
Ho-wwer, in Delhi, the district court has the original as well as appellate jurisdiction
and the suit of the nature mentioned above shall be filed in the district court as
the ^urt of civil judge does not have a pecuniary jurisdiction to try and entertain
a suit of such value.

As regards suits cognisable by a provincial small cause court, it is to be observed

that these courts have an exclusive jurisdiction in respect thereof, that is to say, suit
cognisable by a small cause court cannot be tried by any other court, having jurisdiction
within the local limits of the jurisdiction of the small cause court by which the suit
is triable.^®

35. UOI V Ladulaljain, AIR 1963 SC 1681 : 1964 SCR (3) 624.
36. As to city courts, see Appendix.
37. Code of Civil Procedure, 1908, section 15.
38. Provincial Small Cause Courts Act, 1887, section 16.
 Chapter 2—The Courts and Their Jurisdiction 15

2.5 Suits of a Civil Nature

Another important rule is that no court has jurisdiction to try any suit unless it is of
a civil nature (section 9). Here, a question arises as to what is a suit of a civil nature.
There is no definition provided in the Code nor any guidelines mentioned to
determine the 'civil nature'. A suit can be said to be of civil nature if it involves
determination of civil rights. Civil rights mean the rights and remedies vested in a
citizen, within the domain of private law as distinct from rights related to criminal or
political matters and public law.^'
The civil rights can be of a private individual or other known legal entities as
distinguished from groups or associations which have no distinct legal personality or
recognition.
However, it does not follow that such groups or associations can never bring actions
in court of law. Certain religious denominations, such as mutts established following
certain philosophy, say, mutts believed to have been established by Sankara, Ramanuja
and Madhvacharya, may have peculiar rights pertaining to that denomination. They
are constitutionally protected as under fi"eedom of religion guaranteed under the
Constitution but they shall be still subject to public order, morality and healthl^" Rules
of reservation in education and public employment may have caste as basis'and there
is no reason to suppose, post constitution, the legitimacy of caste outfits that espouse
the causes of its members belonging to that caste. The test shall be to examine whether
the rights canvassed could be legally supported through any Constitutional or legislative
provisions and whether the legal action is only to uphold such rights. If a person is
expelled from his caste, a suit will lie for declaration that his expulsion was unlawful
and for damages.'" Any suits in which the principal question relates to religious rites or
ceremonies are not suits of a civil nature. Suits for vindication of mere dignity attached
to an office are not suits of a civil nature. In Devchand v Ghanshyan,^^ it was held
that a suit to decide whether sutpanth cult is within Vedic religion or not, or whether
it is abhorrent to the feelings of Leva Patidar community as a whole is not a suit of
a civil nature. A claim by a priest that he is entided to receive certain honours in a
specific manner will not be entertained by a civil court. Following this rule, courts
have refused to entertain claims for precedence in worship of deity and to receive gifts
on ceremonial occasions.'*^ If one has to trace the underlying principle behind such
and other decisions of similar nature, it can be safely stated that the relations between
parties in all such cases were governed by either social or moral code of conduct. There
was no legal right which was sought to be enforced. In absence of such legal right,
courts wisely refrained from regulating behaviour of public on the basis of any social
or moral code of conduct which obviously did not possess any legal sanction. Such
litigation must now be rare, but the underlying principle should be grasped so that
new situations in different garbs meet the same fate, if rights or obligations sought to
be enforced are not based upon, or derived from, statutes or contract.

39. PMA Metropolitan v Moran Mar Marthoma, AIR 1995 SC 2001 : 1995 Supp (4) SCC 286.
40. Commissioner, Hindu Religious Endowments. Madras v Sri Lakshmindra Thirtha Swamiar ofSri Shirur
Mutt, 1954 SCR 1005 : AIR 1954 SC 282.
41. Jagannath v Akali, (1894) ILR 21 Cal 463.
42. Devchand v Ghanshyan, AIR 1935 Bom 136 : (1935) 37 Bom LR 417.
43. Narayan v Krishnaji, (1886) 10 Bom 233.
16 Mulla The Key to Indian Practice

However, the fact that determination of a question relating to civil rights depends
upon the decision of a caste question as regards religions rites and ceremonies, does
not take out the suit from the category of civil suits.''''
When the principal question in a suit relates to an ofiSce, it will be a suit of a
civil nature. The right to an oflSce is a right of a civil nature. The suit to vindicate
such right is maintainable notwithstanding the fact that it may be necessary to decide
questions as to religious rites or ceremonies. The term office is nowhere defined, but it
has been judicially held that the essential condition for existence of an office is that its
holder must be under legal obligation to discharge certain duties which are attached to
the office and for the non-observance of which, he may be visited with penalties. It is
immaterial whether any fees are attached to such office or not. It is equally immaterial
whether such office is attached to a particular place or not.
The leading case on the subject is Sri Sina Ramanuja Jeer v Sri Ranga Ramanuja
Jeer^'^ The principles in the aforesaid decision are stated as follows;
(i) A suit with respect to religious honours, dignities or privileges simpliciter
is not a suit of a civil nature.
(ii) A suit to enforce one's right to office and to recover or enjoy perquisites,
remuneration, privileges or honours attached to such office is maintainable.
(ill) The essential condition for existence of office is that its holder shall be
under legal obligation to discharge the duties attached to such office and
if he fails to discharge such duties, he can be either compelled to perform
such duties or he shall be subjected to penalties.
The courts are empowered to decide all suits of a civil nature, excepting suits of
which, their cognisance is either expressly or impliedly barred."®^ The prohibition may
be contained in some specific enactment or by the Code itself. The bat may operate
if thS' dispute itself is not of civil nature.
There is no absolute right in any person to demand that his dispute be adjudicated
upon only by a civil court.''^ It follows, therefore, that courts do not possess jurisdiction
to try all suits of a civil nature. There are certain types of suits of a civil nature
from which the courts are precluded, either expressly or impliedly, from trying and
adjudicating. The provision under section 9 of the Code enables a person to file a suit
of civil nature excepting those, the cognizance whereof is expressly or by necessary
implication barred.^® The civil courts have the jurisdiction to try all the suits of civil
nature except those entertainment whereof is expressly or impliedly barred. Any statute
which excludes such jurisdiction is an exception to general rule that all disputes shall be
triable by a civil court. Any such exception cannot be readily inferred by the courts.'"
It is well settled principle of law that mentioning of a wrong provision or non-
mentioning of any provision of law would by itself, be not sufficient to take away the

44. Ramakrushna Mahopatra v Gangadhar Mahopatra, AIR 1958 Ori 26.

45. Sri Sina Ramanuja Jeer v Sri Ranga Ramanuja Jeer, AIR 1961 SC 1720 ; 1962 SCR (2) 509.
46. Dwarka Prasad Agarwala v Ramesh Chandra Agarwala, AIR 2003 SC 1969 : (2003) 6 SCC 220.
47. UOI V Delhi High Court Bar Association, (2002) 4 SCC 275 : AIR 2002 SC 1479.
48. Vishnu Dutt Sharma v Daya Sapra, (2009) 13 SCC 729 (736) : 2009 (4) AWC 3405 (SC).
49. Ramesh Covindram v Sugra Humayun Mirza Wakf, AIR 2010 SC 2897 (2900) : (2010) 8 SCC 726.
 Chapter 2—The Courts and Their Jurisdiction 17

jurisdiction of a court if it otherwise vested in it in law. While exercising its power, the
court would merely consider whether it has the source to exercise such power or not.'"
Both cases of express and implied exclusion or bar shall be illustrated separately.
2.5.1 Express Bar
The expression 'expressly barred' used in the Code means barred by any enactment
or statutory instrument. A legislature can bar the jurisdiction of civil courts, in suits
of civil nature, provided it keeps itself within the legislative competence and does not
contravene the provisions of the Constitution. Section 11 of the Code bars a court
from trying a suit in which the matter in issue has already been finally decided earlier.
It is also a case of express bar contained in the Code itself.
The principles of finality or res judicata means a thing adjudicated that is, an issue
that is finally settled by judicial decision. The plea of res judicata is a restraint on
the right of a plaintiff to have an adjudication of his claim. The plea must be clearly
established; more particularly where the bar sought is on the basis of constructive
res judicata. The plaintiff who is sought to be prevented by the bar of constructive
resjudicata should have notice about the plea and have an opportunity to put forth his
contentions against the same.'^ It is of universal application as it is based on two age
old principles, namely, "interest reipublicae ut sitfinis litium which means that it is in
the interest of the State that there should be an end to the litigation, and the other
principle is "Nemo debet bis vexari si constet curiae quot sid pro una et eadem causa
meaning thereby that no one ought to be vexed twice in a litigation if it appears to the
court that it is for one and the same cause. The plea of res judieata is not a technical
doctrine but a fundamental principle which means the rtile of law in ensuring finality
in litigation. Thus principle seeks to promote honestly and fair administration ofjustice
and to prevent abuse in the matter of accessing court for agitating on issues which have
become final between the parties.^.' The principle is founded on three principles which
are non-negotiable in any civilized version of jurisprudence, namely:
(1) no man should be vexed twice for the same cause,
(2) it is in the interest of State that there should be an end to a litigation,
(3) a judicial decision must be accepted as correct.''®
If there is an issue between the parties that is decided, the same operate as a
resjudicata between the same parties in the subsequent proceedings." The same parties
shall mean plaintiflf and defendant respectively. Amongst the defendants inter se, unless
the adjudication required any conflict of interest amongst them to be resolved, the
decision will not be used as a bar in a subsequent suit between the co-defendants."

50. J Kumardasan Nair v IRIC Sohan, AIR 2009 SC 1333 (1336) ; 2010 (2) Andh LT (SC).
51. CIT, Bhubaneshwar v Parmeshwari Devi Sultania, AIR 1998 SC 1276 : (1998) 3 SCC 481.
52. Alka Gupta v Narendra Kr Gupta, (2010) 10 SCC I4l (149, 150).
53. M Nagbhusana v State ofKamataka, AIR 2011 SC 1113 (1118) ; (2011) 3 SCC 408.
54. Gangai Vinayagar Temple v Meenakshi Ammal, (2009) 9 SCC 757 (769).
55. Ramchandra Dagdu Sonavane v Vithu Hira Mahar, AIR 2010 SC 818 (828) : (2009) 10 SCC 273.
56 Govindammal(dead) by LRs v Vaidiyanathan, 2019 (132) ALR 232:2019 1 AWC 51 SC ; 127 (2019)
CLT 245 : 2019 GLH (1) 64 : 2019-1-LW 385, 2018 (II) Ori LR 1002 : 2018 (14) Scale 198.
 Mulla The Key to Indian Practice

The obverse side of this doctrine of public policy 'not to vex the party on the same
cause is that, when applicable, if it is not given full effect to, an abuse of process of
the court takes place. However, there are certain notable exceptions to the application
of the doctrine. One well-known exception is that the doctrine cannot impart finality to
an erroneous decision on the jurisdiction of a court. Likewise, an erroneous judgment
on a question of law, which sanctions something that is illegal, also cannot he allowed
to operate as res judicata. For example, a civil court cannot send a person to jail for
an offence committed under the Penal Code. If it does so, such a judgment would not
bind a Magistrate and/or Sessions Court in a subsequent proceeding between the same
parties, where the Magistrate sentences the same person for the same offence under
the Penal Code. Equally, a civil court cannot decide a suit between a landlord and a
tenant arising out of the rights claimed under a Rent Act, where the Rent Act clothes
a special court with jurisdiction to decide such suits. As an example, under section 28
of the Bombay Rent Act, 1947, the Small Cause Court has exclusive jurisdiction to
hear and decide proceedings between a landlord and a tenant in respect of rights which
arise out of the Bombay Rent Act, and no other court has jurisdiction to embark upon
the same. In this case, even though the civil court, in the absence of the statutory bar
created by the Rent Act, would have jurisdiction to decide such suits, it is the statutory
bar created by the Rent Act that must be given effect to as a matter of public policy.^^
An erroneous decision clothing the civil court with jurisdiction to embark upon a suit
filed by a landlord against a tenant, in respect of rights claimed under the Bombay Rent
Act, would, therefore, not operate as res judicata in a subsequent suit filed before the
Small Cause Court between the same parties in respect of the same matter directly and
substantially in issue in the former suit. Similarly, a decision by a civil court acting on
an unregistered assignment deed of patent and trademark in favour of a bank on the
basis of which two decrees were p^sed in favour of a person who had stood guarantee
for the load issued by the bank will not operate as resjudicata to bind the bank since,
the decree relied on unregistered assignment deed against the provisions of section 45
of the Trade Mark Act, 1999 (47 of 1999) and operated against the provisions of the
Banking Regulation Act, 1949 (10 of 1949) which through section 46(4) barred the
bank to engage in any business other than batiking.^®
Another exception to this general rule follows from the matter in issue being an issue
of law different from that in the previous suit or proceeding. This can happen when
the issue of law in the second suit or proceeding is based on different facts from the
matter direcdy and substantially in issue in the first suit or proceeding. Equally, where
the law is altered by a competent authority since the earlier decision, the matter in
issue in the subsequent suit or proceeding is not the same as in the previous suit or
proceeding, because the law to be interpreted is different.
A right of obstruction that is available to a stranger who is not bound by the decree
could seek for an adjudication of his right under O XXI rule 97. If he had made any
improvements in the property under the bonafide belief that he was entitled to do so,
he ought to claim the value of improvements in the manner provided under section 51

57. Natraj Studios Pvt Ltd v Navrang Studios, (1981) 1 SCC 523 : (1981) 2 SCR 466.
58. Canara Bank v NG Subharaya Setty, (2018) 16 SCC 228 : AIR (2018) SC 3395.
59. Ibid
 chapter 2—The Courts and Their Jurisdiction 19

of tlie Transfer of Property Act. If he failed to do so and eviction was ordered, he will
be barred from bringing a fresh suit seeking for value of improvements.®
In the same way, section 293 of Income-tax Act, 1961 provides that no suit shall
be brought in any civil courts to set aside or modify any assessment made under that
Act. However, civil courts have the jurisdiction to examine cases where the provisions
of the Act have not been complied with or where the statutory tribunal has not acted
in conformity with the fundamental principles of judicial procedure.'^'

2.5<2 Implied Bar

A suit is said to be impliedly barred when it is not barred expressly, but yet its
cognisance is barred on account of general principles of law or public policy. For
example, a suit cannot lie to recover costs incurred in a criminal court.® A suit also
cannot lie for damages for defamatory statements made during course of judicial
proceedings by a party or a witness.''' Act of state cannot be called in question in civil
courts. Their cognisance is impliedly barred. It is an act of executive as a matter of
policy in the course of its relations with other states, e.g., making and performance of
treaties, seizure or annexure of territories etc., are acts of states in its' sovereign capacity.
Political questions are also impliedly excluded from the jurisdiction of civil courts.
Matters of policy in relation to other states cannot be made subject-matter of a suit.
An implied bar may be raised when a statute provides for a special remedy to an
aggrieved party. Section 34 of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 (54 of 2002) specifically lays
down that no civil court can exercise jurisdiction to entertain any suit or proceeding
in respect of any matter which only a Debt Relief Tribunal or Appellate Tribunal is
empowered to grant and no injunction can be granted by any court or authority in
respect of any action taken or to be taken in pursuance of any power conferred by or
under the Act.® Land Ceiling legislation of various States also contains similar provisions
excluding civil courts jurisdiction.® There are certain statutes which set up or establish
tribunal for redressal of grievances arising under the statutes. Whether such tribunals
take away the jurisdiction of civil courts in absence of an express bar contained in the
statutes is, a question which has repeatedly cropped up and the extent of jurisdiction
of such tribunals and finality attached to their decisions have been subject-matter of
several decisions. The leading decision on this point is Dhulahhai v State of Madhya
PradeshF It has been laid down that where there is no express bar, it is necessary to
examine the remedies and the scheme of the statute as a whole. If a statute creates a
new special right or liability and provides for the determination of the right or liability

60. Asgar v Mohan Varma 2019 (2) Scale 530 : 2019 (1) WLN 183 (SC).
61. State of West Bengal v Indian Iron and Steel Co Ltd, AIR 1970 SC 1298 : (1970) 2 SCO 39.
62. (1899) 12 All 166.
63. Ternpleton v. Laurie, (1901) 25 Bom 230.
64. NDMC V Satish Chand, AIR 2003 SC 3187 :(2003) 10 SCC 38.
65. SBI V Allwyn Alloys Pvt Ltd, (2018) 8 SCC 120; Pyarelal v Shubhendra Pilania (Minor) Through
Natural Guardian (Father) Shri Pradeep Kumar Pilania, 2019 SCC SC 98 (UP Tenancy Act excluding
jurisdictiofi of civil courts for declaration of Khatedari rights); Gopal Singh v Swaran Singh, (2019)
2 SCC 177 (excluding civil courts jurisdiction for declaration regarding package deal properties).
66. Competent Authority Calcutta, Under the Land (Ceiling And Regulation) Act, 1976 v David Mantosh,
2019 SCC SC 277.
67. Dhulabhai v State ofMadhya Pradesh, AIR 1969 SC 78 : 1968 SCR (3) 662.
20 Mulla The Keyjto Indian Practice
and also provides that the tribunal shall decide all questions relating such right or
liability, it may be held that the jurisdiction of the civil court is impliedly barred. It
is a settled legal position that if the statute is ultra vires the constitution, the tribunal
or authority established, the statute cannot decide about such vires. Where vires of the
provisions is not involved, other aspect of the matters are normally left to tribunals or
authorities and remedy of a civil suit is barred. Special Courts and tribunals are not
substitutes for civil courts.''^

A statute ousting the jurisdiction of the civil court is strictly construed^' and exclusion
is not to be readily inferred,^" such exclusion must be either explicitly expressed or
clearly implied.^' 'A suit in a civil court will always lie to question the order of a
tribunal created by a statute, even if its order is, expressly or by necessary implication,
made final, if the said tribunal abuses its power or does not act under the Act but in
violation of its provisions.'^^

2.5.3 "Jurlsdictional Fact"

'Jurisdictional fact' means the composition of such facts and events which must be
in existence to enable the court of first instance to assume jurisdiction over a subject-
matter.

Where an inferior court or tribunal or body which has to exercise the power of
deciding facts is first established by an Act of Parliament, the legislature has to consider
what powers it will give to that tribunal or body. It may in effect say that if a certain
state of facts exists and is shown to such tribunal or body before it proceeds to do
certain thing, it shall have jurisdiction to do such things but not otherwise. Therefore,
the requirement of condition precedent prior to the exercise of jurisdiction is called
"Jurisdictional Fact".^^
The jurisdiction of civil court is to be determined having regard to the averments
contained in the plaint.^'* A plea of bar to jurisdiction of a civil court shall be considered
having regard to the contentions raised in the plaint and not having regard only to
the reliefs claimed debars the factual averments made in the plaint.^' The civil court's
jurisdiction is not ousted where special officer could have been moved for the grant
of ancillary relief.^''
It is always open to a party for his convenience to fix the jurisdiction of any
competent court to have his disputes adjudicated by that court alone, that is to say, if
one or more courts have jurisdiction to try the suit, the parties may choose any one
of the two competent courts to decide their disputes. And where parties under their

68. Om Prakash Singh v M Lingamaiah, AIR 2009 SC 3091 : (2009) 12 SCC 613.
69. Dhruv Green Field Ltd v Hulcam Singh (2002) 6 SCC 416 : 2002 Supp (1) SCR 449; N Padmamma
V S Ramakrishna Reddy, (2008) 15 SCC 517 (523): AIR 2008 SC 2834; Sulochana v Rajinder Singh,
(2008) 15 SCC 538 (593, 547) : AIR 2008 SC 2611; United India Insurance Co ltd v Ajai Sinha,
(2008) 7 SCC 454 (467).
70. Nagri Pracharini Sabha v Fifth ADJ, Varanasi, 1990 SCR (3) 971 : (1991) Supp (2) SCC 36.
71. Mario Cotta Pereira v State ofGoa, 2010 (6) Mah LJ 115 (122) (DB) : 2010 (3) Bom CR 88.
72. Firm Seth Radha Kishan v Administrator, MG, ludhiana, AIR 1963 SC 1547 : 1964 SCR (2) 273.
73. Reg V Commissioner for special purpose ofIncome Tax, (1888) 21 QBD 313.
74. Sulochana v Rajendra Singh, AIR 2008 SC 2611 (2615) : AIR 2008 SC 2611.
75. Church ofNorth India v lavajibhai Ratanjibhai, AIR 2005 SC 22544 : (2005) 10 SCC 760.
76. Kalipindi A Narasamma v Alia N Rao, (2008) 10 SCC 107 (109).
 21
Chapter 2—The Courts and Their Jurisdiction

own agreement, expressly agree that their disputes shall be tried by that particular
competent court, then the party can only file the suit in that court alone and it is
not open to the parties to go at a different jurisdiction. Such a suit if filed would be
in violation of the said agreement between the parties.^ At the same time, consent or
failure to object,^® admission, omission or previous conduct cannot confer jurisdiction
on the court, where there is inherent want of jurisdiction/^ In case of overlapping
jurisdictions of two courts in service matters, the employee has option to choose foruni
when right accrues under statute or common law.^° A workman in LIC has choice of
seeking remedy from civil court or industrial court.^'
For further reference, well-known commentaries on section 9 of the Code may
be referred to. It is one of the important provisions and before instituting any suit,
one should be careful to examine whether it is of civil nature and if yes, whether its
cognisance is not expressly or impliedly barred.

77. Shriram City Union Finance Corp Ltd v Rama Mishra, 2001 (1) Ori LR 164 : (2002) 9 SCC 613.
78. Kiran v Chaman, AIR 1954 SC 340 : 1955 SCR 117. /io^on
79. Sita Ram Kashi Ram Kanda v Pigments Cakes & Chemicals Manufacturing Co, AIR 1980 SC 16 :(1979)
4 see 12.
80 Rajasthan SRTC v Mohar Singh, (2008) 5 SCC 542 (545-46): AIR 2008 SC 2553.
81. LIC V R Suresh. (2008) 11 SCC 319 (324-25) : 2008 (2) AWC 1806 (SC).
 CHAPTER 3

THE FOUR ESSENTIALS OF A SUIT

SYNOPSIS
3.1 22 3.4.3 Reliefs in Suits for Torts .. 30
3.2 25 3.4.4 Relieft in Suits on
3.3 28 Mortgage .. 30
3.4 28 3.5 Plaint in Suit for Specific
3.4.1 Events Happening after the Performance
Institution of Suit 28 3.5.1 Summary .. 32
3.4.2 Reliefs in Suits on 3.5.2 Comment .. 33
29

The four essentials of a suit are as follows:

(i) Parties;
(ii) Cause of action;
(iii) Subject-matter;
(iv) Reliefs claimed by the plaintiff.
All these essentials must concur in every suit properly framed.

3.1 Parties

There must be at least two parties to every suit, namely, a plaintiff and a defendant.
There may, however, be two or more plaintiffs. Similarly, there may be two or more
defendants, but there must be at least one plaintiff and one defendant in every suit.
A person is a party to a suit if there is a cause of action against him.' In other words,
if cause of action no longer survives against a person due to his death or any other
unforeseen circumstance or if his name has been struck-off such person shall not remain
party to a suit even if his name continues on record erroneously.
The Code provides for a necessary party and a proper party and also contains
provisions relating to joinder, non-joinder and misjoinder of parties in a suit. A proper
party is a party who, though not a necessary party, is a person whose presence would
enable the court to completely, effectively and adequately adjudicate upon all matters
in disputes in the suit, though he may not be a person in favour of or against whom
the decree is to be made.^
The necessary party is one, without whom no order can be made effectively and
a proper party is one in whose absence an effective order can be made but whose
presence is necessary for a complete and final decision of the question involved in the

1. IshwarBhai Patel v Harihar Bahera, AIR 1999 SC 1341 :(1999)3 SCC 457.
2. MumhaiInternationalAirport Pvt Ltd v Regency Convention Centre & Hotels Pvt Ltd, AIR 2010 SC 3109
(3112):(2010)7 SCC 417.

22
 Chapter 3—The Four Essentials ofa Suit 23

proceedings.^ Where the plaintiffs sought declaration of certain rights in a suit on land
belonging to State of Haryana, the State of Haryana was a necessary party.^
The proviso to rule 9 of O I of the Code provides that non-joinder of necessary
party would be fatal.' A petition was filed to challenge the promotion. The candidates
higher up in the seniority were not impleaded in the petition. Such a petition could
not be adjudicated upon in the absence of those senior candidates.''
There is a distinction between a necessary party and a proper party. A necessary
party is one, whose presence is essential and in whose absence, no effective decree or
order can be passed or made. A proper party is one, without whom a decree or order
can be passed or made, but whose presence is necessary for an effectual and complete
adjudication of the matter.^
There is difference between the locus and right of impleaded, and the two cannot
be equated. A person having locus may not be denied appearance, but a person who is
a necessary party cannot be denied impleadment. Option to participate does not mean
right to be impleaded. A person is impleaded or can claim to be impleaded if he has
any interest or lis} For example, in a suit for pre-emption, the vendee is a necessary
party. The plaintiff in a suit being dominus litis, may choose the persons against whom
he wishes to litigate and cannot be compelled to sue a person against whom he does
not seek any relief. Consequently, a person who is not a party has no right to be
impleaded against the wishes of the plaintiff.
However, rule 10(2) of O I of the Code provides for impleadment of proper or
necessary parties. If necessary party is not impleaded, the suit itself would be liable
to be dismissed. If a person is not found to be a necessary or proper patty the court
has no jurisdiction to implead him against the wishes of the plaintiff.' Further, if the
court is satisfied that the presence of a particular person is necessary to effectively and
completely adjudicate all the disputes between the parties, irrespective of the wishes
of the plaintiff, the court may exercise the power [O I rule 10(2)] and join a person
as party to the suit.'"
Where, in a suit, the plaintiflf fails to join a person who is either a necessary party
or a proper party to the suit, it is a case of non-joinder of parties. Where two or more
persons are joined as plaintiffs or defendants, although they should not have been joined
in the suit, it is a case of misjoinder of parties.
Order I of the Code deals with parties to the suit and O I, rule 9 provides that the
suit shall not be defeated for non-joinder or misjoinder of a proper party. However, it
is not so in case of non-joinder of a necessary party.

3. State ofAssam v UOI,(2010) 10 SCC 408 (412): 2010 (9) UJ 4680: 2010 (10) Scale 352. .
4. JagtuvSurajMai, AIK20\Q SC 3490 (3491):(2010) 13 SCC 769 (770):(2010)3 ARC 877(SC).
5. Public Service Commission, Uttaranchal v Mamta Bisht, AIR 2010 SC 2613. See also Distt. Collector,
Srikakulam v Bagathi Krishna Rao, AIR 2010 SC 2617:2010 (81) ALR 247:2010 (3) UC 1610.
6. Suresh v Yeotmal Distt. Central Co-op Bank Ltd, AIR 2008 SC 2432(2435):(2008) 12 SCC 558.
7. Arun Tiwari v Zila Mansavi Shikshak Sangh, AIR 1998 SC 331 : 1998 (1) JLJ 114 (SC) : (1998)
2 SCC 332.
8. Uttar Pradesh Avas Evam Vikas Parishad v Cyan Devi, AIR 1995 SC 724:(1995)2 SCC 326.
9. Mumbai International Airport v Regency Convention Centre & Hotek Put Ltd, (2010) 7 SCC 417
(422, 423): AIR 2010 SC 3109.
10. Savitri Devi v DistrictJudge,(1999)2 SCC 577:AIR 1999 SC 976 ; 1999 (36) ALR 93.
24 Mulla The Key to Indian Practice

Similarly, no decree may be reversed or substantially varied, nor any case be remanded
in appeal on account of any misjoinder-or non-joinder of parties not affecting the
merits of the case or the jurisdiction of the court as provided under section 99 of
the Code. However, this also does not apply to non-joinder of a necessary party. But
where all the affected persons had not been joined as parties to the petition, and some
of them only were joined, the Supreme Court took the view that the interests of the
persons who were before the court and were sufficiendy and well represented and,
therefore, the petition was not liable to be .dismissed on that ground i.e. non-joinder
of necessary party."
The objections as to the non-joinder or misjoinder of parties must be taken at the
earliest possible opportunity and in all cases at or before, the setdement of issues and
if such objections not so taken, it will be deemed to have been waived. If the objection
as to non-joinder of necessary party has been taken by the defendant at the earliest
stage and the plaintiflF declines to add the necessary party, he cannot subsequendy be
allowed in appeal to rectify the error by applying for amendment.'^
With the object of bringing before the court, all the persons interested in a suit so
that all the disputes/questions may be finally decided in the presence of all the parties,
the court has been given power to strike out a party improperly joined and to add
party(ies), whose presence the cqurt considers, necessary for the effecmal and complete
adjudication of the questions involved in a suit, enabling the court to decide all such
questions without much delay, inconvenience and expense.
The general rule as regards parties to a suit is that all persons interested in a suit
shall be parties thereto. An exception to this general principle is formulated under O I,
rule 8. It provides that when there are numerous persons having the same interest in
a suit, one or more of them, may with the permission of the court, sue or be sued
or defend such suit on behalf of others also. "Since, O I rule 8 is merely an enabling
provision. It does not compel an individual to represent the body of persons having
the same interest if his action is otherwise maintainable without joining the rest in the
suit. Moreover, O I rtde 8 can be invoked on the premise that the persons have 'same
interest' in the suit. It is not necessary that the "Cause of Action must be the same."'^
Ordinarily a transferee pendente lite without leave of the court cannot be impleaded as
a party.'' The Us pendens transferee/purchaser has no right of impleadment. Us pendens
does not prohibit a transfer. It, however, mandates that transferee will be fully bound
by decree that may be passed against his transferor.'^
The power of the court to add, strike out or substitute any party to a suit is general
in nature and discretionary, and is subject to specific statutory provisions. The provision
under rule 10(2) of O I of the Code speaks about the judicial discretion of the court
to strike out or add parties at any stage of proceedings. The court can strike out any
party who is improperly joined. It can add anyone as a plaintiflF or defendant if it finds
that he is a necessary party or proper party. A beneficiary of trust has right to implead

11. B Prahhakar Rao v State ofAP,(1985) Supp. SCC 432:AIR 1986 SC 210: 1985 Lab IC 1555.
12. Naba Kumar v Radhashyam ,AIR 1931 PC 229: 1931 (54) Gal LJ llA :(1931)61 Mad LJ 294.
13. AnilKumar Singh v Shiv Nath Mishra,(1995)3 SCC 147: 1994(4) Scale 953.
14. TN Housing Board V TN Ganapathy ,(1990) 1 SCC 608:AIR 1990 SC 642:(1990)2 GLR 852.
15. Stmil Gupta v Kiran Girhotra,(2007)8 SCC 506(510): AIR 2008 SC 140:2008 (1) All WC 985 (SC).
16. SNArorav Brokers &Brokers Pvt Ltd, AIR 2011 Del 89 (93-96)(DB):2010 (118) DRJ 631.
 Chapter 3—The Four Essentiab ofa Suit 25

as party—He is a proper party—He cannot be treated as stranger.'^ The court under

rule 10(2) of O I of the Code will of coinse act according to reason and fair play and
not according to whims and caprice.'^
The main object behind striking out or adding parties is to bring before the court
all the persons interested in a suit so that all the disputes may be finally determined
in presence of all the parties" effecmally and completely, without much delay,
inconvenience and expense.^" The power to add, strike out or substitute any party to
a suit can be exercised by the court suo motu.

3.2 Cause of Action

"Action" means suit while a "cause of action" means literally the cause or the set
of circumstances which leads up to a suit. A cause of acdon arises when a legal right
is infringed. The expression "cause of action" as used in the Code means every fact
which it is necessary for the plaintiff to prove that he is entitled to a decree in the
suit; in other words, the media upon which the plaintiflf asks the court to arrive at a
conclusion in its favour.^'

The term "cause of action" has not been statutorily defined although it has received
judicial interpretation. The term is held to include all those facts which must be
proved or established in order to succeed. To put it dififerendy, everything which if
not proved would give the defendant a right to an immediate judgment must be part
of cause of action. The expression "cause of action" means the bundle of facts which
gives rise to a right or liability.^^ It is a bundle of facts, whose proof is a sine qua non
for ultimate success in the suit. The classic definition of the expression "cause of action"
is found in the instant case,^' wherein Lord Brett observed:
Cause of action means every feet which it would be necessary for the plaintiff to prove,
if traversed, in order to support his right to the judgment of the court.
Whether a particular fact constitutes a cause of action is determined with reference
to the facts as disclosed in the plaint and by taking into account the substance of
the matter rather than the form of action.^^ For deciding whether the facts averred
by the plaintiff would or would not constimte cause of action, pardy or wholly, the
court must consider whether such facts constitute material, essential or integral part
of the cause of action. If it is, it forms a cause of action, but if it is not, it does not
form a cause of action.^' It has no reladon whatsoever to the defence which may be
set up by the defendant, nor does it depend upon the character of the relief prayed
for by the plaintiff.

17. Baluram v P Chellathangam ,AIR 2015 (SC) 1264: 2015 (2) Andh LT 44(SC): 2015 1 All WC 3 SC.
18. MumbaiInternationalAirport PvtLtd v Regency Convention Centre dr Hotels Pvt Ltd, AIR2010SC3109
(3114):(2010)7see 417.
19. Savitri Devi v DistrictJudge, Gorakhpur, AIR 1999 SC 976:(1999)2SCC 577.
20. AnilKumar Singh v Shiv Nath Mishra,(1995)3 SCC 147: 1994(4) Scale 953.
21. ChandKoer v Pratap Singh,(1889) 15 lA 156:(1889)ILR 16 Cal 98.
22. Sonic Surgical vNationallnsurance Co Ltd,(2010) 1 SCC 135 (137):2009 (13) Scale 363.
23. Coflyff (1873)8 CP 107.
24. Udhav Singh v Madhav Rao Scindia, AIR 1976 SC 744:(1977) 1 SCC 511.
25. Alchemist Ltd v State Bank ofSikkim, (2007) 11 SCC 335 : AIR 2007 SC 1812 : 2007 (6) Andli LT
21 (SC).
26 Mulla The Key to Indian Practice

A court enjoys jurisdiction in a suit, if the cause of action arises within tlie local
limits of its jurisdiction. And even if a part of the cause of action arises within the
local limits of its jurisdiction, it has the jurisdiction to try and entertain the suit. The
provision under rule 3 of O II of the Code, specifically provides where causes of action
are united, the jurisdiction of court as regards the suit shall depend on the amount or
value of aggregate subject-matters at the date of instituting the suit.^^
Every plaint must disclose a cause of action; if it does not, it is the duty of the
court to reject the plaint (O VII, rule,11). V^en the plaint read as a whole does not
disclose material facts giving rise to a cause of action which can be entertained by a
civil court, it may be rejected in terms of O VII, rule 11 of the Code.^^ The court
cannot dismiss a suit for not disclosing cause of action, but can only reject the plaint.^®
Hence in drafting a plaint, one must be very careful to see that the plaint discloses a
cause of action. The object underlying O VII rule 1(e), which requires that the plaint
shall contain die particulars about the facts constituting the cause of action and when
it arose, is to enable the court to find ,out whether the plaint discloses the cause of
action, because the plaint is liable to be rejected under O VII, rule 11 CPC, 1908.
The purpose behind the requirement that the plaint should indicate when the cause
of action arose is to help the court in ascertaining whether the suit is not barred by
limitation. Further, the error in mentioning the date on which the cause of action had
arisen in the plaint in such a case would not disentide the plaintiff from seeking relief
from the court in the suil.^'

What is the cause of action in a suit for damages for breach of a contract? In order
to answer this question, we must ask ourselves the further question as to what facts must
be proved by the plaintiff in such a suit so that he may succeed in obtaining a decree
in his favour? The answer is that there are two facts which he must prove, namely:
(i) that the defendant entered into the alleged contract with him; and
(ii) that the defendant committed a breach of this contract.
In other words, the cause of action consists of two parts, namely:
(i) the making of the contract; and
(ii) the breach thereof by the defendant. Both these facts must therefore be
alleged in the plaint, and they must both be proved at the hearing of the
suit, to entide the plaintiff to a decree for damages against the defendant.
If A enters into a contract with B in Mumbai to sell and deliver goods to B in
Mumbai, but A fails to deliver the goods, the whole cause of acdon is said to arise
in Mumbai. If the contract is made in Mumbai, and the goods are to be delivered to
B in Chennai, and A fails to deliver the goods to B in Chennai, a part only of the
cause of action (namely, the making of the contract) is said to arise in Mumbai, and
a part (so far as the breach is concerned) in Chennai. In other words, if the contract
is to be performed at the place where it is made, the whole cause of action is said to
arise in that place, but if it is made in one place, and is to be performed in another

26. DahurIndia Ltd vKR Industries, sail?,(3130):(2008) 10 SCC 595.

27. Abdid Gafitr v State ofUttarakhand,(2008) 10 SCC 97(102) ; 2008 (11) Scale 263.
28. Canara Bank v Garts Ind Tex Pvt Ltd, 2009 (1) KLT 368 (371-72)(DB).
29. Kuldeep Singh v Ganpatlal,(1996) 1 SCC 243 ; AIR 1996 SC 729:JT 1995 (9) SC 157.
 Chapter 3—The Four Essentials ofa Suit 27

place, a part of the cause of action is said to arise in one place and a part in another
place. Even the performance of contract may be required to be made at more places
than one. If A enters into a contract with B in Mumbai whereby A agrees to deliver
goods to B at Chennai in consideration of B agreeing to pay to some other person, on
A's behalf, the price of such goods at Kolkata, then the contract is made at Mumbai
and is required to be performed by A at Chennai and by B at Kolkata. It can be said
that a part of the cause of action has arisen at all the three places. This distinction is
very important in determining the court in which the suit is to be instituted, and it
will be dealt with in the next chapter.^"
Let us now take the case of a tort. If A brings a suit against B for damages for a
libel upon A, then A must prove, in order that A may be entitled to a decree, the
following three facts, namely:
(i) that the writing complained of was published by the defendant; .
(ii) that it is untrue; and
(iii) that it is defamatory for A.
These three facts constitute As cause of action, and they must all be alleged in A's
plaint. In the case of tort of malicious prosecution, A must establish that the defendant
launched a criminal prosecution against him, that it terminated in A's favour and that
it was launched maliciously against A without any reasonable and probable cause.
To know the essential facts which constitute the cause of action in a particular case,
one must have a thorough knowledge of the substantive law bearing upon the case. In
case of doubt or difficulty, leading cases compiled in various textbooks on the subject
must be referred to.

Before drafting the plaint, one is well advised to look at the substantive law
governing the matter. In, fact, without close examination of relevant facts in the
context of applicable substantive law, it is highly possible that litigation may misfire.
It is recommended that standard textbooks on drafting pleadings be referred to before
finalising a plaint in order to avoid any mishap. In bigger cities, courts have shown a
tendency to construe pleadings rather strictly in such cases. A plaint will constitute a
foundation and except by amendment thereof, one is not permitted to travel beyond
the plaint.
In a suit for declaration of title and injunction the appellant'had the cause of action
to sue for specific performance in 1991 but he omitted to do so, and hence he should
not be allowed to sue on that course of action which he omitted to include when he
filed his suit. The court considered this omission as relinquishment of that part of
its claim. The suit was therefore, hit by the provision of O II, rule 2 of the Code.^'
Where two causes of action are distinct and different, O II, rule 2 of the Code would
not come into play. O II, rule 2 of the Code would co.me into play only when both
suits are based on the same cause of action and the plaintiff had failed to seek all the
reliefs based on or arising from the cause of action in the first suit without the leave
of the court.^^

30. Chapter 4,"Place of Suing".

31. Van Vibhag Karamchari GNSS Maryadit v R Chander, AIR 2011 SC 41 (46): 2010 (11) Scale 99.
32. Alka Gupta v Narendra K Gupta, AIR 2011 SC (14):(2010) 10 SCC 141.
28 Mulla The Key to Indian Practice

3.3 Subject-Matter
Jurisdiction over subject-matter is a sine qua non, without which a court shall be
incompetent to try the cause.
The subject-matter of a suit is the property claimed in the suit. Such property may
be movable or immovable.

3.4 Relief Claimed by the Plaintiff

Every suit shall be instituted by presenting the plaint to court or any officer appointed
in this behalf. Every plaint shall comply with rules contained in O VI and O VII as
far as they are applicable. The plaint shall contain the following particiJars:
(i) Name of the court in which suit is brought.
(ii) Name, description and place of residence of the plaintiff. ■
(iii) Name, description and place of residence of the defendant, so far as they
can be ascertained.
(iv) Facts constituting cause of action and when it arose.
(v) Facts sharing that the court has the jurisdiction over the matter.
(vi) Valuation of subject-matter for the purposes of jurisdiction and court fees.
(vii) Reliefs claimed.
Every plaint shall state specifically the reliefs which the plaintiff claims. The same
rule apphes to any relief claimed by the defendant in his written statement.^' The
general rule, no doubt, is that the relief should be founded on pleadings made by the
parties. But where the substantial matters relating to the tide of both parties to the suit
are touched, though indirecdy or even obscurely, in the issues and evidence have been
led about them, then the argiunent that a particular matter was not expressly taken in
the pleadings would be purely formal and technical and cannot succeed in every case.
Further to allow one party to rely upon a matter in respect of which the other party
did not lead evidence and has had no opportunity to lead evidence, would introduce
considerations of prejudice, and in doing justice to one party, the court cannot do
injustice to another.'^
Moreover, the suit cannot be dismissed merely on the ground that the plaintiff has
claimed a larger relief that he is entitled to. But the lesser relief to which the plaintiff
is entitled will be granted in his favour,'^ and the court cannot grant a larger relief to
the plaintiff than that claimed by him even if he is entitled to it unless he gets his
plaint amended with the leave of the court.^''

3.4.1 Events Happening after the Institution ofSuit

The underlying principle is that the court shall determine the rights of the parties
on the basis of their claim or counter-claim as on the date of institution of suit and
ignore the subsequent events, if any. This rule of prudence however can be deviated

33. Code of Civil Procedure, 1908, O VII, rule 7.

34. Bhdgwati Prasad v Chandramaul, AIR 1966 SC 735 :(1966)2 SCR 286: 1967(15) BLJR 158.
35. Udhav Singh V Madhav Rao Scindia,(1977) 1 SCC511 :(1976) 2 SCR 246: AIR 1976SC744.
36. State ofBihar v Dr Radha Krishna,(2002)6 SCC 308:AIR 2002 SC 2755 : 2002(5) Scale 301.
 Chapter 3—The Four Essentials ofa Suit 29

by the court in a case where the effect of overlooking the later events would lead to
miscarriage of justice. ■
However, the court has power to take note of subsequent events and mould the
relief accordingly subject to the following conditions being satisfied:
(i) that the relief, as claimed originally has, by reason of subsequent events, become
inappropriate or cannot be granted;
(ii) that taking note of such subsequent events or changed circumsrances would shorren
litigation and enable complete justice being done to the parties;
(iii) that such subsequent event is brought to the notice of the comt promptly and in
accordance with the rules of procedural law so that the opposite party is not taken
by surprise...'^
The cotut may thus depart from the above rule and mould the relief in the light
of altered circumstances.

Every suit must, as far as practicable, be framed to provide grounds for final decision
on the subjects in dispute and prevent further litigation.concerning them, and thus
must include the"whole of the claim which the plaintiff is entided to make in respect
of the cause of action. Where neither the tide of the. plaintiff nor previous possession
of the plaintiff nor encroachment by the defendants.was made out, the suit w^ held
liable to be dismissed.'^ Splitting of claims is barred, however, any portion of the claim
can be relinquished. " •
Where a question arises as to whether a plaintiff has claimed a particular relief, the
court must read the plaint as a whole, and consider the substance of the matter rather
than the form of pleading.^'
Where the suit is for recovery of money, precise amount must be stated unless
suit itself is for accounts or mesne profits or debts which cannot be estimated. In
such cases, approximate amount must be mentioned so that reliefs can be claimed
simultaneously or in the alternative. In fact, it is convenient to file a suit for specific
performance and in the alternative, for damages. WTiere the subject-matter of suit is
an immovable property, there must be proper description of such property, sufficient
to identify it and whenever, applicable, its boundaries and number in revenue records
must be provided.
Ubijus ibi remedium means, where there is a right, there is a remedy. The vford.jus
has reference to the cause of action, the word remedium to relief. The nature of the
relief or remedy to which a plaintiff is entitl.ed depends upon the nature of his rights
or his cause of action.

3.4.2 Reliefs in Suits on Contracts

In suits on contracts, there are three remedies open to the aggrieved party according
to the nature of the contract, namely:

37. Om Prakash Gupta v Ranbir B Goyal,(2002)2 SCC 256:2002(6)Andh LT 11 (SC):2003(1) BLJR 96.
38. TKMohammedAbubucker v PSMAhmedAbdulKhader,(2009) 14 SCC 224(232): AIR 2009 SC 2966:
2009 (75) ALR 632.
39. Hindalco Industries Ltd v UOI,(1994)2 SCC 594: 1993 (4) Scale 666.
30 Mulla The Key to Indian Practice

(i) specific performance;'"'

(ii) damages;^'
(iii) injunction/^
As a general rule, it may be stated that where there is a breach of a contract to
transfer immovable property, the plaintiff is entitled to specific performance of the
contract,^' but where the breach is of a contract to transfer movable property, the
plaintiff is not entided to specific performance, but to damages only. Thus if A agrees
to sell B,-A's house for Rs 1000 and A fails to transfer the house to B, then B is
entitled to a decree directing A to convey the house to B on B paying the purchase
money to A. If A agrees to sell 5 100 maunds of sugar at the rate of Rs 3 per maund
on a certain day and fails to deliver sugar to B, then B is entitled to only damages
against A-, for B can buy sugar of a similar quality in the market, and if B has to pay
more for it, say at the rate of Rs 4 per maund, B may claim from A as damages
Rs 100, being the difference between the contract price and the market price.
Injunction is also one of the remedies in the case of certain contracts. Thus, if A
lets B his land on condition that B should not dig sand or gravel thereout, and B
threatens to do so, A is entided to sue B for an injunction to restrain B from digging
in violation of the contract.

3.4.3 Reliefs in Suits for Torts

Where a tort has been committed, the remedy open to the party aggrieved is damages.
Where a tort is about to be committed, the appropriate remedy is injunction. Thus,
if B is about to publish statements defamatory of A, A may sue B for an injunction
to restrain B from publishing them. If B has already published them, A may sue B
for damages.

3.4.4 Reliefs in Suits on Mortgage

In suits on mortgage, there is one remedy open to the mortgagor, namely, redemption,
and there are two remedies open to the mortgagee, namely, sale or foreclosure, according
to the nature of the mortgage.'*^

Illustration
A borrows Rs 5000 from B. It is agreed that A should repay the amount with interest on
1 January 1915. As security for the debt, A transfers the house to B, subject to a proviso
that B will re-transfer the house to A upon payment of the mortgage-money on 1 January
1915. If A tenders the mortgage-money to B on or after the due date, but B refuses to
accept it alleging that more is due to him, and refuses also to transfer the house to A,
A may sue B for redemption of the mortgage. On the other hand, if A fails to pay the
mortgage-money to B on the due date, B may sue A either for foreclosure of the mortgage

40. Under provisions ofSpecific ReliefAct, 1963,.

41. Indian Contract Act, 1872, sections 73.
42. Specific Relief Act, 1963, sections 36-37.
43. In a proper case, damages can be awarded, see New Maneekchowk Spinning Etc Co v Seth Govinddas
(judgment of the Supreme Court dated 4 -03-1966 in CA No. 621 of 1963).
44. Transfer ofProperty Act, 1882, section 67.
 Chapter 3—The Four Essentiak ofa Suit 31

or for sale of the house. The effect of a final decree for foreclosure in favour of B is to
debar A from ail rights to redeem the mortgaged property.'''
The reliefs claimed in a plaint are called prayers; they are contained in the last
paragraph of the plaint.

3.5 Plaint in Suit for Specific Performance

Having stated the four essentials of a suit, the following is the form of a plaint
in a suit for specific performance. Such a suit is brought by one person (AB) against
another person (CD) when the latter (CD) has agreed to sell his property to AB,
but he refuses to carry out the agreement to sign the necessary deed of sale. If AB wants
the property himself he has to sue for specific performance, but if he is not particular
about getting the property, he may sue CD for damages only for breach of the contract.
Under the newly amended law by Amendment Act 18 of 2018, the plaintiff shall also
have a right to cover" or obtain substituted performance through a third party and
claim damages for the difference in valuation of similar property.
Form of Plaint in Suit for Specific Performance
In the High Court of Judicature at Bombay [O VII, rule 1(a)]
Ordinary Original Civil Juris^ction
Suit No of 1914
AB of Bombay, Hindu inhabitant, a coal broker,
residing in the Fort. Plaintiff-[O VII, rule 1(b)]
CD of Bombay, Mohammedan inhabitant, a
cloth merchant, residing outside the Fort. Defendant [O VII, rule 1(c)]
The plaintiff above named states as follows:
1. By an agreement, dated 1 April 2019, and signed by the defendant, the
defendant contracted to sell to the plaintiff certain immovable property
therein described and referred to, for the sum of Rs 2,00,000. A copy of
the said agreement is hereto annexed and marked A [O VT, rule 9- O VII
rule 3].
2. On 1 May 1914 the plaintiff tendered Rs 2,00,000 to the defendant, and
demanded a transfer of the said property by a sufficient instrument, but
the defendant has not executed any instrument of transfer [O VII, rule
1(e), rule 5].
3. The plaintiff has been and is still ready and willing to pay the purchase-
money of the said property to the defendant.'"^
4. The said agreement was made in Mumbai, the said property is situated in
Mumbai, and the defendant resides in Mumbai. [O VII, rule 1(f)].
5. The value of the subject-matter of this suit for the purpose of jurisdiction
IS Rs 2,00,000 and it is the same for the purpose of court-fees [To be
45. Ibid, section 87; Code of Civil Procedure, 1908, O XXXIV, rule 3.
46. See para 3.5.2. The specific requirement of pleading of readiness and willingness under section 16(c)
been dropped in the Amending Act 18 of 2018. It is more an issue of actual proof than compulsorv
pleading. ^ ^
32 Mulla The Key to Indian Practice

omitted in plaints in suits to be instituted in a High Court] [O VII,

rule l(i)].
6. The plaintiff will rely on the documents a list whereof is hereto annexed
. and marked B [O VII, rule 14].
7. The plaintiff, therefore, prays: [O VII, rule 1(g)]
(a) That the defendant may be ordered to transfer the said property to
the plaintiff by a sufficient instrument [O VII, rule 7].
(b) In the alternative, that toe defendant may be ordered to pay to the
plaintiff Rs 2,00,000 as lamages for breach of the said contract
[O VII, rule 7].
(c) That the defendant may be ordered to pay the plaintiffs costs of his
suit (Note: Stricdy speaking, this prayer is unnecessary).
GH AB
Plaintiffs Attorney Plaintiff
[O VI, rule 14] [O VI, rule 14]
I, AB, the plaintiff above named, do solemnly declare that what is stated in paras 1,
2, 3, 4 and 6 is true to my own knowledge, and that what is stated in the remaining
paras, is stated on information and belief, and I believe the same to be .true. [This
clause is called verification clause.]

[O VI, rule 15] [O VI, mle 15]

Solemnly deqlared AB
at Mumbai on Plaintiff
1 June 2019
Before me
XY
Commissioner

3.5.1 Summary
In the form of the plaint given above there are four essentials of a suit, namely:
(i) the parties, who are AB, the plaintiff and CD, the defendant;
(ii) the cause of action, which is set out in paras 1 and 2 of the plaint,
consisting of the making of the contract and breach thereof;
(iii) the subject-matter, which is referred to in para 1 of the plaint, being the
property agreed to be sold by the defendant to the plaintiff; and
(iv) the reliefs claimed, which are specific performance. At the option of the
plaintiff, he has a right to obtain substituted performance of alternate
property through a third party and claim expenses and other costs actually
incurred, spent or suffered by him from the party committing the breach,
provided however, notice in writing not exceeding 30 days of substituted
performance shall be issued calling upon the party in breach to perform
the contract within a period specified in the notice.^^

47. Specific ReliefAct, 1963, sections 20.

 Chapter 3—The Four Essentials ofa Suit 33

3.5.2 Comment

The reason why para 3 has been inserted is that a plaintiff suing for specific
performance must himself be ready and willing to perform his part of the ^reement.
It is more a matter of proof than one of essential pleading. The law has changed by
dropping section 16(c) that mandated pleading regarding readiness and willingness.
Though the change- would appear to be procedural, it is submitted, in the context of
other provision relating to substituted performance and amendment to section 20 where
the provision relating to the relief being discretionary has been omitted, the change is
of substantive law and hence prospective.
The first part of para 5 has reference to the pecuniary jurisdiction of the court; the
second part to the Court Fees Act, 1870. Another thing which is not given in the form
above is that only material facts are stated in the plaint as required by O VI, rule 2.
Further, the forms of plaints are given in Appendix A to Sch 1 of the Code, namely.
Form Nos. 47 and 48, as required by O VI, rule 3.^®

48. Read Code of Civil Procedure, 1908, O II, rule 2(3); O VI, rules 1-3, 9, 14, 15; and O VII rules 1 2 3
5,7,9,11,14-18.2. ' '
 CHAPTER 4

PLACE OF SUING
.SYNOPSIS
4.1 Place of Suing 34 4.8 Points of Distinction Between
4.2 Sections 16, 17, 19 and 20 of Sections 16, 17 and 20 of the
the Code of Civil Procedure 35 Code and Clause 12 of the
4.2.1 Suits for Immovable Letters Patent 48
Property 36 4.9 Ascertaining the Particular Coiut.... 48
4.2.2 Where Cause of Action Lies in 4.10 Objection as to Place of Suing 49
Foreign Country in Relation to .10.1 Factors Constituting a
Shares of Indian Company Failure of Justice 51
Held by Foreign Citizens 38 .10.2 Waiver of Objection to
4.2.3 Suits for Compensation for Territorial or Pecuniary
Wrong Done to the Person Jurisdiction ^ 51
or to Movable Property 38 .10.3 "Objection Under Section 213)
4.3 Place where Wrong is Committed.... 39 Civil Procedure Code, 1908
4.4 Residence 43 in Execution Proceedings" ■ 52
4.5 Carries on Business 44 4.11 Objections as to Over-valuation
4.6 Personally Works for Gain 46 and Under-valuation 52

4.7 Clause 12 of the Charter 47 .11.1 ".^orum Shopping" 53

4.7.1 Suits for Land 47 .11.2 Special Provisions with
4.7.2 Suits other than those Reiprd to Matrimonial
for Land '. 47
Disputes 54

4.1 Place of Suing

Before instituting a suit on behalf of a client, the first thing to be determined is the
conn in which the suit should be brought. To do this, first of all, the place of suing must
be determined. The expression "place of suing" refers to the venue of trial in India and
has nothing to do with the competency of the court. The questions of pecuniary and
subject-matter jurisdiction come subsequendy, i.e., only after the question of territorial
jurisdiction is answered, but there may be as many as three courts of different grades in that
place, namely the district court, the subordinate judges' court, and the munsiffs court. The
next thing, therefore, to be determined is, in which particular court in that place the suit
should be instituted, having regard to the value of the suit, and the subject-matter thereof.
Sections 15 to 20 regulate the venue where a suit can be filed and apply only
to those places where the Code is in force. The important provisions as to place of
suing are contained in sections 16, 17 and 20 of the Code, and are imperative for the
suitor. These sections do not apply either to chartered high courts (section 120) or
to presidency small cause courts (section 8). The former courts being in this respect
governed by the provisions of clause 12 of the Charter, and the latter courts by those
of sections IS and 19 of Presidency Small Cause Courts Act, 1882.^ When a small

1. Oriental Bank ofCommerce v Santosh Kr. Agarwal, 2010 Cal WN 810 (819)(DB): 2008 AIHC(NOC)
610 (Cal-DB).

34
 Chapter 4—Place ofSiting 35

cause suit not exceeding value of Rs 1 lakh was cognizable by court of small causes.
Additional District Judge to whom small causes suit in question was transferred since
its valuation was more than Rs 25,000 will not be competent.^ For the purpose then,
of determining the place of suing, we have to deal with three classes of courts, namely:
(i) high courts;^
(ii) presidency small cause courts;
(iii) courts to which the provisions ofsections 16, 17 and 20 of the Code apply,
e.g., district courts, subordinate judges'^ courts, munsiffs courts, provincial
small cause courts.

Now, as re^ds suits, there is large variety of tliem. To get a rough idea of the
diflferent kinds of suits, it is advisable to read the list of suits given in section 19 of
the Presidency Small Cause Courts Act, 1882 and Sch II of the Provincial Small Cause
Courts Act. There are suits for land or other immovable property. There are suits to
recover debts and suits on contracts. There are .suits for torts, snd the tort or wrong
complained of may be:
(a) wrong to the person, e.g., assault, battery, false imprisonment; or
(b) wrong done to one's reputation, e.g., defamation; or
(c) wrong done to movable property, e.g., conversion; or '
(d) wrong done to immovable property, e.g., trespass and nuisance in different
forms (of which, the disturbance of a casement of light and air is a familiar
instance).
There are suits arising out of life, marine and fire insurance policies. There are suits
to enforce trusts, suits for the cancellation or rectification of instruments, suits for
legacies, suits to contest awards, suits to set aside decrees and suits on foreign judgments.

4.2 Sections 16, 17, 19 and 20 of the Code of Civil Procedure

For the purpose of the present inquiry, suits may be divided into three classes, namely:
(i) suits for immovable property (sections 16-17);
(ii) suits for compensation for wrong done to the person or to movable
property (section 19);
■ (iii) suits of all other kinds (section 20).
Under suits for immovable property there are five' kinds of suits referred to in
ckuse 1(a) to (e) of section 16 of the Code, namely, suits:
(a) for the recovery of immovable property;
(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;

2. Om Praksah Agaruialsince deceased through Lrs v Vishan DayatRajpoot SC 5486,2019 (1)Andh

LD 87,2019(1) All LJ 337, 2018 (131)ALR453,2018(14) Scale 116(This judgment was in the context
of UP Civil Laws (Amendment) Act, 2015 enhancing the pecuniary jurisdiction of the Small Causes
Court in the state from Rs 25,000 to Rs 1 lakh.
3. As to city civil courts, see Appendix.
36 Mulla The Key to Indian Practice

(d) for the determination of any other right to or interest in, immovable
property, e.g., a suit by a purchaser for specific performance of a contract
for the sale of a house to him;
(e) for compensation for wrong to immovable property, e.g., trespass and
nuisance.

The property within the meaning of section 16 of the Code refers only to property
situated in India.

4.2.1 Suits for Immovable Property

It can only be instituted in the court within the local limits of whose jurisdiction
the property or any portion thereof is situated in consonance with sections 16—17.
Where agreement for development of property was recorded in Delhi and dispute was
related to the determination of rights and interest of parties over immovable property
situated at Chandigarh, fact that defendant does not reside or have any office in
Delhi will not clothe courts at Delhi with territorial jurisdiction. Suit is governed by
section 16(d).^ It may be noted that neither a presidency nor a provincial small cause
court can try suits for immovable property.
Where the suit is for compensation for wrong or any other relief in respect of
immovable property situated within jurisdiction of different courts, the suit can be
brought in any one court within whose jurisdiction, any portion of the property
is situated. Further a suit to obtain relief or compensation in respect of wrong to
immovable property, held by a defendant or on his behalf, where relief can be obtained
entirely by his personal obedience, can be instituted apart from the court within whose
local limits the property is situated, in a court within the limits of whose jurisdiction,
the defendant actually and voluntarily resides, or carries on business, or personally works
for gain. Its object is to benefit suitors and to avoid multiplicity to legal proceedings.
It is applicable to suits for partition, if there are several immovable properties situated
at different places, a suit for partition of such properties can be brought at any one of
the places in respect of all the properties.
Questions arise as to whether it is compulsory for the plaintiff to bring a suit in
respect of all the properties at one place? Is it possible to bring separate suits? While
cases are conflicting, the words used in section 17 suggest that they are permissive, and
do not prohibit a person from bringing separate suits at different places.
Section 17 has no application if cause of action in respect of properties situated
outside the jurisdiction of the court in which suit is brought is different from the cause
of action in respect of properties situated within its jurisdiction. The applicability of
section 17 depends upon existence of a single or common cause of action in respect
of all such properties. In Nasir Ali v Mohamad Ali^ the plaintiff filed a suit in Oudh
court to recover immovable properties .some of which were outside the jurisdiction of
the court. He claimed all the properties under a will. He also prayed for appointing/
declaring himself to be mutawali of a wakf oi some other property. Regarding the
last prayer. Privy Council stated that cause of action in respect of property was

4. Splendor Landbasc Ltd v Mirage Infra. Ltd, 2010 AIHC(NOC) 1030 (Del-DB): 169 (2010) DLT 126
FAO (OS) No. 150 of2010. dt. 9-4-2010 ; AIR 2010(NOC)933 (Del).
5. Sardar Nisam AH v Mohammad Ali, AIR 1932 PC 172,(1932) 59 lA 268.
 Chapter 4—Place ofSuing 37

entirely different, and coiild not have been clubbed merely on the ground that the
other properties claimed imder the will were situated in the same district.
Sections 16 and 17 of the CPC, 1908 are part of the one statutory scheme.
Section 16 contains general principle that suits are to be instituted where subject-matter
is situated whereas section 17 engrafis an exception to the general rule as occurring
in section 16.

(i) The word "property" occurring in section 17 although has been used in
"singular" but by virtue of section 13 of the General Clauses Act it may
also be read as "plural", i.e., "properties".
(ii) The expression any portion of the property can be read as portion of one
or more properties situated in jurisdiction of different courts and can be
also read as portion of several properties situated in jurisdiction of different
courts.

(iii) A suit in respect to immovable property or properties situated in jurisdiction

of different courts may be instituted in any court within whose local limits
of jiuisdiction, any portion of the property or one or more properties may
be situated.
(iv) A suit in respect of more than one property -situated in jurisdiction of
different courts can be instituted in a coiut within local limits ofjurisdiction
where one or more properties are situated provided suit is based on same
cause of action with respect to the prbperaes situated in jurisdiction of
different courts. . .

The misjoinder of parties and causes of action, such as when the cause of action for
each defendant is distinct and they do not form part of the same transaction in which
they are jointly interested, is said to be bad for -midtifariousness. However, before the
court dismisses the suit on this ground, the court may give the option to the plaintiff
to elect to sue in respect of particular properties or persons which arise out of the same
cause of action. In Shivnarayan (D) by Lrs v Maniklal(D) by Lrf, the suit filed by the
appellant contained three different sets of defendants with different causes of action
for each set of defendants. Defendant nos. 4 to 6 are defendants in whose favour a
will was executed by late Smt. V In the plaint, relief.as claimed was the will executed
by late Smt. V was to be declared as null and void. The second cause of action in the
suit pertained to sale deed executed by late Smt. V on 15 October 2007 executed in
- favour of defendant nos. 7 and 8 with regard to Mumbai property. The third set- of
cause of action related to transfer documents relating to Indore property which was in
fevour of defendant nos. 9 and 10. The transfer documents dated 21 October 1986,
21 November 1988 and 20 August 1993 were relating to Indore property. The plaint
encompassed different causes of action with different set of defendants. The cause of
action relating to Indore property and Mumbai property were entirely different with
different set of defendants. The suit filed by the plaintiff for Indore property as well
as Mumbai property was based on different causes of action and could not have been
clubbed together. The suit as framed with regard to Mumbai property, the Supreme
Court held, was clearly not maintainable in the Indore courts. When there is a single
cause of action in respect of several properties situated at different places, a suit can

6. Shivnarayan(D)by Lrs v Manikfal(D)by Lrs, 2019(1) Ren CR)Civil 985,2019 (2) Scale 620.
 38 Mulla The Key to Indian Practice

be brought at one of such places provided the entire claim falls within the pecuniary
jurisdicrion of the court. The principle is that it is only in those cases where cause of
action is common in respect of all the properties or the basis of claim is same then
the suit can be brought at one of such places included within its scope and reliefs
in respect of properties situated outside the jurisdiction of the court.^ However, it is
necessaiy that all such properties must be in India, for courts have no jurisdiction in
respect of properties situated abroad.®
The question arises that in the event of an uncertainty as regards the court within
whose jurisdiction the property is situated, what is the remedy?
In circumsrances, where ir is doubtful in which of two or more courrs, a particular
property is situated, you are entitled to file suit in any one of such courts alleging
such uncertainty. If the court is satisfied about uncertainty, it will record a statement
to that effect and proceed to dispose of the suit. Its decree will be binding. However,
rhe court must enjoy pecuniary as well as subject-matter jurisdiction in respect of the
suit. Any objection regarding jurisdiction raised in appellate or revisional court shall
not succeed unless there is a failure in justice. Even failure to record a statement is
not fatal to the decree. However, if there is no reasonable ground to believe that there
was any uncertainty and if there is consequent failure of justice, such a decree becomes
vulnerable and liable ro be set aside.

4.2.2 Where Cause of Action Lies in Foreign Country in Relation to Shares of

Indian Company Held by Foreign Citizens
Mere situs of the company as having registered in India will not clothe Indian courts
jurisdiction to entertain a suit involving the dispute between parties who are foreign
nationals whose holding was alleged to be for beneficial inrerest of another company
which was also regisrered in a foreign country.'

4.2.3 Suits for Compensation for Wrong Done to the Person or to Movable
Property
It may be instituted at the option of the plaintiff in the court of the place where
the wrong was done or the court of the place, where the defendant resides or carries on
business which may be done through an agent or personally work for gain in accordance
wirh section 19. Thus ifA, residing in Delhi, publishes in Poona starements defamatory
to 5, B may sue A, either in Delhi or in Poona.
This section is limited to actions in torts committed in India and to the defendant
residing or carrying on business or personally working for gain, in India. It excludes
suits in respect of torts committed outside India. In such cases, if the defendant is
residing in India, suit can be brought under secrion 20, and not under this section.
In order ro make this section operative, commission of wrong as well as position
of the defendant about his residence or place of business or work, both must be
in India.

7. Nilkanth BalwantNath v Vidya Narsingh Bharathi Swami, AIR 1930 PC 188.

8. Janki Devi v Mannilal, AIR 1975 All 91 : 1975 All WC 87.
9. Ahmed Abdtdla Ahmed At Ghurair v Star Health and Allied Insurance Co Ltd, AIR 2019 SC 413, 2019 (1)
CTC 211, 2019 (1) LW 577, 2018 (15) Scale 133.
 chapter 4—Place ofSuing 39

What is a wrong? It is nowhere defined in the Code. The word "wrong" signifies
an action, violative of a legally recognized right. Salmond defines a wrong as simply
a wrong act—an act contrary to the rule of right and justice. However, it must be a
legally recognized rule before any action can be maintained in a court of justice. The
use of the word in the section is confined to a tort or actionable wrong to person or
movable property. In cases of such wrongs, this section is attracted, and the plaintiff
has an option to choose the forum for filing a suit.

4.3 Place where Wrong is Committed

Ordinarily, there should be no difficulty in ascertaining the place where wrong is
committed. However, in some cases, wrong may consist of a series of acts and it is
sometimes not easy to specify the place where it was committed. In such a case, a suit
can be brought at any place where any of the acts have been committed. In other cases,
it may also happen that a wrong may be committed at one place, but its consequences
or effects are suffered at another place and in such cases, it has been held that the place
at which consequences or effects are suffered will also get jurisdiction."'
Where actionable wrong occurs at place A and its resultant effects are suffered at
place B, the court at place B will also have jurisdiction. Damage resulting at a place,
different from the place where wrong is committed, in consequences of such wrong
will also furnish a cause of action."
It is necessary that the suit must be for compensation and if other reliefs are sought,
it would fall outside the scope of the present section.
All other suits may be instituted at the plaintiff's option, in any one of the following
courts, namely:
(i) the court of the place, where the.cause of action arises either wholly or in
part;
(ii) the court of the place, where the defendant resides or carries on business,
or personally works for gain;
(iii) where there are two or more defendants, the court of the place where any
one of them 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, in that place, acquiesce in such institution (section 20). Whether
there was acquiescence on the part of the defendant is a question of fact.'^
The word "actually" used in sections 16, 19 and 20 of the Code, means really and
not constructively, and "voluntarily" means his own volition. To constitute residence,
the following two things must be present: '
(i) the factum of residence; and
(ii) the animus—an element of intention.'^

10. State V Sarvodaya Industries, AIR 1975 Bom 197.

11. (1984) 1 GLR 706.
12. Far Eastern Steamship Co v Kokia Trading Co Ltd, AIR 1978 AP 433.
13. Satya v Teja Singh, AIR 1975 SC 105 :(1975) 1 SCC 120.
40 Mulla The Key to Indian Practice

Confinement of a person in jail is not an actual and voluntary residence although

he is actually and physically present there.
The word "business" in the expression "carries on business" in sections 16, 19 and
20 of the Code, means some real and systematic or organized course of activity or
conduct with a set purpose.'"'
The expression "carries on business" does not necessarily require the actual presence
of a person to carry on the business, and it may be carried on through others, provided
the person retains the control of the business."
The expression "personally works for gain" means a place where a person is gainfiilly
employed and was inserted to give jurisdiction to the courts, when a person lives outside
the local fimits of its jurisdiction."'
And out of the three expressions—(a) actually and voluntarily resides; (b) carries on
business; and (c) personally works for gain, used in sections 16, 19 and 20 of the Code
dealing with the territorial jurisdiction of the civil courts, the expression "carries on
business" is the widest of all and applies to natural as well as juristic persons, carrying
on business with or without profits.'"' The relevant date for determining territorid
jurisdiction is the date of institution of suit.'^
All these expressions have been dealt in detail in this chapter.
Illustrations
(a) A resides at DeUii, and B at Agra. B borrows Rs 2,000 from A at Benares, and passes
a promissory note to A payable at Benares. B feils to repay the loan. A may sue B at
Benares where the cause of action arose, or at Agra where B resides. A cannot sue B
at Delhi where A resides.
(b) If in illustration (a), the note was inade payable at Amritsar, a part of the cause of
action would arise at Benares, where the note was passed (i.e., where the contract was
made), and a part of Amritsar, where it was made payable (i.e., where the contract
was to be performed), and A could then sue B, at his option also at Amritsar.
(c) B and C pass a joint promissory note to y4 at Benares and made payable at Benares.
B resides at Agra and G at Simla. A may sue B and C at Benares, where the cause
of action arose. He may also sue them at Agra where B resides, or at Simla where
C resides, but in either of these cases, if the non-resident defendant objects, the suit
carmot proceed without the leave of the court.
Here are similar references to some other causes of action.

In case of a tort, where section 19 is not attracted, the place where tort is committed
or its effects suffered will be a place where a suit can be instituted. In a suit of malicious
prosecution, the place where summons of criminal case is served is a place where a part
of cause of action arises and the court at such place shall have jurisdiction in respect
of such suit." In a suit to administer the estate, or for the grant of probate or letters

14. Narain Swadeshi WeavingMills v Commissioner ofExcess Profit Tax..'M.R llfiS SC 176:(1955) 1 SCR 952.
15. MVenkatsivamy VMarudapurshram, IMzdhl 24'i'.
16. Bakhtawar Singh Balkrishan v UOl,AIR 1983 Del 201.
17. Bakhtawar Singh Balkrishan v i/0/, AIR 1988 SC 1003; UOI v Ladu LaiJain, AIR 1963 SC 1621.
18. Mohana Kumaran Nair v Vijaya Kumaran Na'.r, AIR 2008 SC 213 ; 2007 (12) Scale 130.
19. R.P Goala {Dr.) vAmarpalSingh, AIR 1972 Raj 142.
 chapter 4—Place ofSuing 41

of administration and the undertaking to administer will furnish a part of the cause of
action. In a suit to set aside a decree obtained by fraud, the court, which passed such
decree will have jurisdicdon to try such suit. If such decree is sought to be executed,
and some action is taken in pursuance of execution, such as attachment of property
etc., the court at which execution application is made or the court where such action
is taken will also have jurisdiction to entertain a suit to set aside siich fraudulent
decree.^® A suit for infringement of trademark or copyright can be brought at a place
where such infringement takes place.^' Where the respondent was working at Dehradun
and retired from service at Dehradun, no part of cause of action arose in the State of
Uttar Pradesh. An order issued by Allahabad High Court would not be sustainable.^^
The parties to a contract may stipulate that the suit shall be brought at a partictilar
place only. Suppose A enters into a contract with B to sell goods at Mumbai, and B
agrees to make payment to A at Ahmedabad and a clause is inserted in the contract that
a suit, in respect of the contract shall be instituted only at Mumbai, what is the effect
of such agreement? Is it vahd? In commercial transactions also, one can come across
clauses such as subject to Mumbai jurisdiction only, etc. How far do such agreements
bind the courts? Several interesting questions having far-reaching implications arose
out of such choice of forum made by parties and law, in this respect can now safely
be taken to be well-setded.

Consent of parties cannot confer jurisdiction upon courts which they otherwise do
not possess. Agreement between the parties conferring jurisdiction on court ofsome place
which would otherwise not have jurisdiction, would be void being opposed to public
policy.^^ However, the parties to an international trade contract may agree to submit and
to have their disputes resolved by a foreign court termed as a "neutral court" or "court
of choice" creating exclusive or non-exclusive jurisdiction in it.^'' At the same time, the
parties are not entided to take away, by their consent, the jurisdiction vested in the courts,
but if there are more than one courts having jurisdiction, it is possible for the parties
to stipulate that the suit shall be brought in one of such courts only. In other words,
the patties can, by their agreement, restrict themselves to institute a suit at a particular
place only out of several places available tmder law for institudng legal proceedings. Such
agreements are upheld as valid being neither contrary to public policy nor contravene
section 28 or secdon 23 of the Indian Contract Act, 1872^' nor against the statute.^®
In Hakam Singh v Gammon (India) Ltdf it has been observed as follows:
It is not open to the parties to an agreement to confer by their agreement jurisdiction
on a court which it does not possess under the Code. But where two courts or more
have under the- Code of Civil Procedure jurisdiction to try a suit or proceedings,
an agreement between the parties that the disputes between the parties shall be tried in
one of such courts is not contrary to public policy. Such an agreement does not contravene
section 28 of the Contract Act.

20. Asghar All & Co v Vappala Satyanarayana, AIR 1957 Cal 317.
21. DCS Bureau v United Concern, AIR 1967 Mad 381.
22. State Bank ofPatiala v Vinesh Kr Bhasin,(2010)4 SCC 368 (375):AIR 2010 SC 1542.
23. Harshad Chinman LaiModi v DLF Universal Ltd, AIR 2005 SC 4446:(2005) 7 SCC 791.
24. Modi Entertainment Network v WSG Cricket Pvt Ltd, AIR 2003 SC 1177.
25. Man RonaldDrukimachiner AG v Multicolour Offset Ltd, AIR 2004 SC 3345 :(2004)7 SCC 447.
26. HanilEra Textiles v Puromatic Pikers, AIR 2004 SC 2432.
27. LLakam Singh v Gammon (India) Ltd, AIR 1971 SC 740.
42 Mulla The Key to Indian Practice

Now if such kind of agreement is valid, what is its effect? Does it mean that the
court selected by the parties alone wjll have jurisdiction to the exclusion of other courts?
Does it mean that parties can exclude, by their agreement, jurisdiction of other courts
granted under the law? The answer is in the negative.
By virtue of such agreements, the courts excluded thereby, do not lose jurisdiction
which they otherwise possess. They retain jurisdiction notwithstanding, the agreement
of the parties. It is always held that excluded courts do not lose jurisdiction and such
freedom cannot be conceded to the parties to take away, by consent, jurisdiction
granted under the law. The courts will lean in favour of upholding such agreements,
and will insist that the parties adhere to the chosen forum and will not allow them to
ignore the stipulation, but they are not bound by it. They can try suits or proceedings
notwithstanding the agreement if they are satisfied that the circumstances justify
departure from agreement or that it would be oppressive or unjust to insist that the
suit or proceedings should be instituted at the selected place only. The courts have
the discretion and power to relieve the parties from their self-imposed restriction,
if rigid insistence on such selection is likely to lead to injustice or unreasonable
harassment or inconvenience in view of the surrounding circumstances, the balance
of convenience, the nature of the claim and of the defence, the history of the case
and the stakes involved.^® In Rat & Sons Pvt Ltd v Trikamji Kanaji Gajjar & Sond^
it has been observed as follows:

The primafacie leaning of the court is that the contract should be enforced and the parties
should be kept to their bargain. Subject to the prima facie leaning, the discretion of the
court is guided by the consideration of justice. The balance of convenience, the nature
of the claim and of the defence, the history of the case, the proper law which governs
the contract.... are all material and relevant considerations. If on a consideration of all
the circumstances of the case, the court comes to the conclusion that it will be imjust or
unfeir to stay'the suit, it may refuse to grant the stay asked for.
The courts have tended to construe such clauses or stipulations rather stricdy. There
must be very clear expression of intention to restrict the parties to a particular forum.
Such clauses do not find favour with courts and they are viewed with suspicion. It is
now accepted that the doctrine of freedom of contract is quite illusory and in many
cases, the parties do not have equal bargaining strength. In such cases, the stronger
party succeeds in inserting clauses favourable to itself on account of its vastly superior
bargaining power. In RSD Finance Co Pvt v Shree Vallabh Glass Works LteP" such tendency
is clearly evident. In that case, the fixed deposit receipts issued by the defendant contained
the endorsement "Subject to Anand Jurisdiction". It was held that such endorsement was
insuffcient to amount to an ouster clause. It has been observed as follows:
The endorsement "Subject to Anand Jurisdiction" does not contain the ouster clause
using the words like "alone", "only", "exclude" and the like. Thus, the maxim "expressio
unius est exclusio alterius' cannot be applied under the facts and circumstances of the case
and it cannot be held that merely because the deposit receipt contained the endorsement
"subject to Anand Jurisdiction" it excluded the jurisdiction of all other courts who were
otherwise competent to entertain the suit.

28. Pattnaik Industries Pvt Ltd v Kalinga Iron Works, AIR 1984 Ori 182.
29. Rai dr Sons Pvt Ltd v Trikamji Kanaji Gajjar &Sons, 16 GLR 31, AIR 1975 Guj 72.
30. RSD Finance Co Pvt. v Shree Vallabh Glass Works Ltd,(1993)2 SCC 130.
 Chapter 4—Place ofSuing 43

The Supreme Court observing that such agreements must be properly construed
keeping in view the intention of the parties and the expressions used in the agreement,
has taken similar view in ABC Laminart Pvt Ltd v AP Agencies, Salem?^
An agreement conferring an exclusive jurisdiction on one court to the exclusion of
another court should be clear, unambiguous, explicit and specific.^^
An agreement as to the choice of forum or the exclusion of jurisdiction of a court
is binding on parties thereto, and does not affect a third party who is a stranger to
the contract.^^

The object of section 20 is to secure justice to every man's hearthstone and that
defendant should not be put to any trouble and expense of travelling long distances
in order to defend himself.^^ It deals with personal actions and various alternative
places are made available to the plaintiff to file a suit. Options are given to select the
place where cause of action has arisen, either wholly or in part or the place where
the defendant actually and voluntarily resides or personally works for gain or carries
on business. "We shall now consider certain aspects regarding residence and place of
business and work for gain.

4.4 Residence

This word is not defined in the Code. It must be given its plain, natural and ordinary
meaning. According to dictionary meaning, the term "to reside" means to dwell for
a long time or to live at a particular place or in a particular house. "Resides" refers
oiJy to natural persons, and not legal entities or the government.^^ "Whether a person
resides at a particular place is a question of fact, and it must depend upon, partictilar
circumstances. There can be neither a hard and fast rule or criterion to determine the
question about residence nor any straight jacket formula to help.
The twin requirements to constitute residence are—(i) factum of residence and (ii)
the amintis, i.e., the element of intention.^® The person must have an established home.
However, the term "residence" at least signifies a permanent dwelling place where a man
lives with his family, if any. It must be actual residence, and not merely technical or
constructive residence.^^ It must be voluntary residence, and not a compulsory residence.
A person confined in jail actually resides there, but it is a compulsory residence, and
it cannot be said that he voluntarily resides there.'' Similarly, where a person has no
established home and is compelled to live in hotels, boarding house or the house of
others, his actual and physical habitation is the place where he currendy resides."
The relevant date of residence is when the suit is instituted.'"' In order to satisfy the
statutory requirements, both the elements regarding residence ought to be present before

31. ABCLaminartPvtLtd V AP Agencies, Salem, AIR 1989 SC 1239 :(1989)2 SCC 163.
32. Nau Moga Transport Co v UnitedIndia Insurance Co Ltd, AIR 2004 SC 2154.
33. EastIndia TismsportAgency V Nationallnsurance Co Ltd, AIR 1991 AP 53(PB).
34. Laxman Prsssad v Prodigy Electronics Ltd, AIR 2008 SC 685 :(2008) 1 SCC 618.
35. Bakhtawar Singh v UOI,AIR 1988 SC 1003:(1988)2SCC 293.
36. Satya v Teja Singh, AIR 1975 SC 105.
37. MSM Buhari v SMBuhari,AIR 1971 Mad 363.
38. Narayanan V Kochupennu,I'AK\95iTs &lCoc\\ 10,p 141.
39. Mohan Singh V Lajya Ram, Von] 19,%.
40. Muthia Chettiar v Shanmugham,NLR. 1969 SC 552:(1969) 1 SCR 444.
 44 Mulla The Key to Indian Practice

a suit can be brought. The residence or dwelling must be of a more or less permanent
character. The residence must be actual as well as voluntary. If residence is actual but
involuntary, as in the case of a person in prison, statutory requirement is not satisfied.
It is possible that a person may have more than one places of residence. In such cases,
he is said to reside at all such places. His temporary absence from one place will not
make any difference if he has animus revertendie, i.e., intention to revert."" At the same
time, if he resides at a particular place temporarily or casually, it cannot be said that
it is sufficient for the purpose of filing a suit against him at such place. It will depena
upon the facts and circumstances of each case, whether his stay at a particular place
can be claimed to be sufficient for the purpose of his residence.

4.5 Carries on Business

Business means some real, substantial and systematic or organized course of activity
or conduct with a set purpose.^^
The place where the defendant carries on business is a place where suit can be brought
under section 20. The expression "carries on business" used in this section is the widest of
all and apphes to natural as well as juristic persons. It is not required that the defendant
must personally carry on business. The word "personally" appearing before work for gain
is advisedly not used against the words carries on business". The omission is significant
and deliberate. Therefore, it is not necessary that the defendant must personally carry on
business at a particular place. It is not necessary that there should be actual presence or
personal effort of the defendant in such business. He must be sharing gains or losses, as
the case may be. Even if he carries on such business through specially appointed agent, it
is sufficient to bring a suit against him. The agent must be a special agent, who attends
exclusively to the business of the defendant and not a general agent, who also does
business for anyone who pays him.
Suppose A is carrying on business at Ahmedabad and habimally sends its products
for sale at Mumbai to another person who acts as a commission agent. If that person
has an independent business at Mumbai, a suit can be filed against A at Mumbai, only
if A is carrying on business at Mumbai. A suit can also be filed against A at Mumbai if
that person carries on business in As name and if he remains exclusively attached to A.
It is equally important that essential part of the business is carried on at a particular
place. It is not sufficient if only incidental or consequential functions are performed
at that place.
Suppose A is carrying on retail business of selling products at Ahmedabad and A is
acquiring such products through its agent at Mumbai who imports or purchases them
at Mumbai, it cannot be said that A is carrying on business at Mumbai. Similarly,
if A is carrying on manufacturing and selling activities at Ahmedabad, and if A
has appointed an agent merely for the purpose of procuring orders and forwarding
the same to himself, it cannot be said that A is carrying on business at Mumbai.
However, if As agent is authorized to accept orders and finalize them, it may be a
different story altogether.

41. (1881)ILR3A1191(PC).
42. Mazagaon Dock Ltd v CIT,AIR 1958 SC 861 :(1959) 1 SCR 848.
 Chapter 4—Place ofSuing 45

After ascertaining the nature oif business, it is necessary to examine whether essential
activities of such business are carried out in order to decide whether it can be said that
a person is doing business at that place. If A is a retailer at X place, and if for this
business, makes a wholesale acquisition at Y place, it carmbt he said that A is carrying
on business at Y place.
Where an offer is accepted at Delhi it would mean that the contract has been entered
into at Delhi and jurisdiction would be of Delhi, irrespective of the fact that formal
documentation by way of agreenient was made at Jhansi.^^
What will be the position in respect of other entities and individuals? One finds
an explanation attached to section 20, which speaks of corporations. They include
companies incorporated under Companies Act, 1956.^ If a suit is instituted on the
ground that cause of action has arisen at a particular place, in that case, the explanation
is not attracted, and a suit is maintainable even if a corporation is not carrying on
business at such place.'^' However, a suit can also be brought against the corporations
where it carries on business. How can it be determined where a corporation carries on
business? The answer is provided by this explanation.
If it has only one place of business, there can be no difFiculty. If it carries on business
at several places for this purpose, it carries on business at its principal office in India.
However, if a cause of action has arisen at a place where such corporation has its
subordinate office, it is deemed to carry on business at such place where subordinate
office is situated. In other words, then a cause of action has arisen at a work place
where subordinate office is situated, the suit cannot be brought at the place; of its
principal office. In such cases, by statutory fiction, it is presumed that corporation
carries on business at the place of its subordinate office where the cause of action has
arisen. Conversely, cause of action or a part of cause of action must have arisen at the
place where the subordinate office of the corporation is situated, for the explanation
to apply. The use of the word or in the explanation must be read as disjunctive and
not as conjunctive. Therefore, in such cases, it is quite immaterial where the principal,
office is situated. .
Whether a person carries on business at a particular place is a question of fact.'^ ,
The expression "carries on business" applies to Government of India as well as
corporations. However, it does not refer to fimctions carried on by the Union of India
in discharge of its executive powers conferred by the Constitution.'^^
Transaction occurred at a particular place is specifically affirmed or alleged in rhe
plaint showing right to sue. Suit can be instituted in the court within the local limits
of whose jurisdiction that transaction occurred. Presence of a subordinate office of a
company in the place where cause of action wholly or in part arises is not necessary to
attract clause (c) of seaion 20 in the case of corporation or companies. "Carrying on
business" occurring in clauses (a) and (b) has no significance on relevance in interpreting

43. Magnum Builders &Developers &Chawla Construction(JV)v Ircon InternationalLtd,2008(4)Arb LR 235

(All): 2008 (3) All WC 2980 ; AIR 2005(NOC)59 (All): 2008 (5) All LJ 362.
44. Hakan Singh v Gammon (India)Ltd, AIR 1971 SC 740.
45. CW Coip V Central Bank ofIndia, AIR 1973 AP 387.
46. M Vc ikata Swamy v Marudapurshpam,(1992) 2 Mad LJ 245.
47. Bakhtaiuar Singh Balkishanv UOI,
 ^^6 Mulla The Key to Indian Practice

clause (c) of section 20. Explanation to a main provision of an Act cannot be allowed
to override it. Held:^®

(i) Territorial jurisdiction may fall under more than one clause and the suit
can be filed in more than one court.
(ii) Plaintiff has the right and liberty to choose any one of the courts
simultaneously having jurisdiction.
(iii) Cause of action is the basis from which issues can he formulated and
issue arises when material proposition of fact or law is affirmed by one
party and denied by the other.
4.6 Personally Works for Gain
^^Cdiere a person resides outside the jurisdicfion of court, but personally worl.s for gain
within its jurisdiction, a suit will lie against him in that court. Suppose A is residing
at Gandhinagar, but is practicing as an advocate at Ahmedabad, a suit can be brought
against A at Ahmedabad. The word "works" implies efforts on the part of the defendant
and if such effort is absent, it cannot be said that he is personally v orking for gain.
It implies mental or physical effort. Suppose if a priest is receiving gifts or offerings at
a particular place, it cannot be said that he is working there. Thk part of the section
does not apply to non-personal entities such as government, companies or corporation.
Where there are more than one defendants and the court enjoys jurisdiction only
over one or some of the defendants, but not over all the defendants, the leave of the
court must be sought before a suit can be filed before it. The leave must be express.
The leave may be granted even without hearing the opposite party,"'' and even after
institution of the suit. The leave can even he granted at the stage of appeal.'" In
granting or refusing leave, the court shall consider the convenience of the parties, the
availability of the evidence and the larger interest of justice." The collector of stamps,
Satna passed the order directing the appellants to deposit deficit stamp duty as well
as registration charges. In appeal, order of collector was affirmed by Commissioner
Rewa Division, Rewa. An appeal filed challenging both the orders was dismissed by
Board of Revenue at Gwalior on merits. The order of Collector as well as that of the
Commissioner was merged in the order of the Board of Revenue. The part of cause
of action had arisen to the appellants at Cwalior also. The Bench of High Court at
Cwalior shall have jurisdiction to decide the writ petition.'^
In cases, where one or more defendants in a suit are outside the jurisdiaion of the
court, such a suit shall fall within the jurisdiction of the court only if such defendant(s)
acquiesces to its jurisdiction and an objection against the jurisdiction can be raised.
However, if no objection is raised, such a non-objecting defendant(s) will be estopped
from challenging the jurisdiction of the court subsequently." "VCffiether there is an
acquiescence on the part of the defendant is a question of fact.

48. JoyP Chungath v Lawkin Ltd, 2012(5) RCR (Civil) 331,

49. Neela Productions, Sreekumar Theatre, Trivandrum v S Kumaraswamy,AIR 1966 Ker 239.
50. ManoramabaivIbrahim, Bom 71 BomLR317.'
51. Bank oflndiavMehtaBros., AIR 1984 Del 18 ; 1983(5) DRJ 252.
52. Vishnu v State ofMP,2009 (3) MPLJ 39 (42)(DB):2009 (4) MPHT 123.
53. Manoramabai Moreshwar v Ibrahim Khan Bismilla Khan, AIR 1969 Bom 366.
 Chapter 4—Place ofSuing 47

4.7 Clause 12 of the Charter

It has already been pointed out that the High Court ofAllahabad h^ no original civil
jurisdiction; in other words, no suits can be instituted in that court. "We therefore have
to confine our attention to the other high courts, namely, the High Courts of Calcutta,
Madras and Bombay. The extent of their ordinary original civil jurisdiction is defined
in clause 12 of their respective charters.''' Suits, so far as that clause is concerned, may
be divided into two classes, namely: (i) suits for land and (ii) suits other than those
for land. The effect of provisions of clause 12 is that barring certain suits which it is
quite unnecessary to mention, the said high courts , can try the suits as follows.

4.7.1 Suits for Land

(a) if the land is situated wholly within the local limits of the ordinary original
civil jurisdiction of the said high courts; or
(b) where the land or property is situated in part only within the said limits,
if the leave of the court shall have been first obtained.

4.7.2 Suits other than those for Land

(a) if the cause of action has arisen wholly within the said limits; or
(b) where the cause of action has arisen in part only within the said limits, if
the leave of the court shall have been first obtained; or
(c) if the defendant at the time of the commencement of the suit dwells, or
carries on business, or personally works for gain, within such limits.
As to the meaning of the expression "suits for land" in clause 12 of the Charter,
there is a conflict of decision.

According to the Calcutta High Court," the expression "suits for land" refers to
the five kinds of suits mentioned in clause (a) of section 16 of the Code. According
to the Bombay High Court,'^ suits for the foreclosure, sale, or redemption in the case
of mortgage of immovable property, and suits for specific performance of a contract to
transfer immovable property, are not suits for land. The result is that you may institute
in the High Court of Bombay, a suit for the sale of mortgaged property, though the
property may be situated outside Mumbai, provided that the mortgage was executed
in Mumbai, or the defendant resides in Mumbai. Such a suit from the point of view
of the Bombay High Court is a suit in personam to recover a debt, and it belongs to
the second of the two classes of suits mentioned above. It is a maxim of equity that
equity acts in personam.
Following the maxim, the courts of equity in England entertain suits relating to
immovable property, though the property may be situated abroad, e.g., in Germany,
provided that either the person of the defendant or his personal property is within the
jurisdiction of the court. The jurisdiction, however, is confined to three classes of suits
only, namely: (i) suits arising from breach contract; (ii) suits arising from a breach of
trust; and (iii) suits arising from fraud respecting land situated abroad. The High Court
of Bombay purports to follow the said maxim. The maxim is reproduced with some

54. Certain other high courts have original civil jurisdiction by the later Acts.
55. Stidamdih Coal Co v Empire Coal G?(1915)ILR 42 Cal 942, pp 951-52.
56. Hatimbhai v. v FramroZy AIR 1927 Bom 278 :(1927) 29 Bom LR 498.
48 Mulla The Key to Indian Practice

alteration in the proviso to section 16 of the Code. According to the Madras view,'^ a
suit for specific performance of a contract to sell land is not a suit for land.
In determining the place of suing in the case of suits other than those of land, the
two factors of importance are: (i) the cause of action and (ii) the place of residence of
the defendant. The place ,of residence of the plaititifif is of no consequence.

4.8 Points of Distinction Between Sections 16, 17 and 20 of the Code and
Clause 12 of the Letters Patent

The points of distinction are as follows:

(i) Leave to sue is necessary under clause 12 of the Charter in the case of
suits for land, if only a portion of the land is situated within local limits
of the original jurisdiction of the high court, and in the case of other suits,
where the defendant does not reside within the said limits, if only a part
of the cause, of action has arisen within the said limits. No such leave, is
necessary either under section 17 or section 20 of the Code.
(ii) In all cases in which leave to sue is necessary under clause 12 of the
Charter, it must be obtained before the suit is filed, otherwise, the suit
will be dismissed. Leave to sue under section 20 may be granted by the
court even after the suit is filed.
(iii) In a case where the suit is not one for land, where no part of the cause of
action has arisen within the local limits of the original jurisdiction of the
court, and there are two or more defendants, all of whom do not reside
within the said limits, if the suit is instituted in a high court, it has no
jurisdiction to entertain the suit; it has been held that every defendant
must be residing within the said limits to give jurisdiction to a high court;
but if the suit be instituted in a court to which the provisions of section
20 of the Code apply, the court has jurisdiction to try the suit, if either
the leave of the court is obtained or the non-resident defendant submits
to the jurisdiction of the coirtt.
Illustrations

(a) A resides in Bombay and B at Poona. A agrees in Mumbai to sell and deliver goods
to B at Poona on payment of the price in Poona. The goods are delivered, but the
price is not paid. Can A sue B in the High Court of Bombay? -Yes, but only after
obtaining leave to sue, for a part only of the cause of action has arisen in Mumbai,
namely, that the contract was made in Mumbai.
(b) A resides in Mumbai, and B and C reside in Poona. A, B, and C, being together at
Poona, pass a joint promissory note to D payable in Poona. D cannot sue A, B, and
C in the High Court of Bombay, for the cause of action arose wholly in Poona, and
all the defendants do not reside in Mtnnbai.

4.9 Ascertaining the Particular Court

Having ascertained the place of suing, one can have no difficulty in
ascertaining in which particular court in that place, the suit is to be brought. Let us

57. Vellappa v Govinda Doss,(1929) ILR Mad 809(FB):AIR 1929 Mad 721.
 Chapter 4—Place ofSuing 49

take an instance. A and B are co-owners of a house situated in Baroda. A resides in

Mumbai and B in Surat. The value of the house is Rs 75,000. A wants to sue B for
a portion. In which court will you advise him to institute the suit? First, determine,
the place of suing. It is Baroda, for the suit is one for- immovable property, and
the property is situated in Baroda. Next determine in which of the font courts in
Baroda^® the suit is to be brought. It cannot be the provincial small cause court,
for it has no jurisdiction to entertain suits for partition of immovable property.''
It cannot be the court of the civil judge of the jimior division, for thoiigh it has
jurisdiction to entertain suits for pardtion of immovable property, the value of the
subject matter is beyond its pecimiary jurisdiction and the value of the property is
exceeding Rs 50,000. There remain two other courts, namely, the district court and
the court of the civil judge of the senior division. Both these courts have jurisdiction
to entertain the suit. Of these two, the court of the civil judge of the senior division
is the court of lower grade. The suit must, therefore, he brought in the court of the
civil judge of the senior division.
Question arises as to what is the result, if a suit is brought in a court in which,
having regard to what is stated above, it ought not have been brought? And this leads
to the consideratioh of two more principles.

4.10 Objection as to Place of Suing

The first of the two principles referred to above relate to the place of suing. Thus,
suppose that in the case above, A sued B in Surat instead of suing him in Baroda
where the land was situated, and that a decree was passed by the court at Surat for
A. Suppose, further that B appealed from the decree to the High Court of Gujarat on
the ground that the court at Smat had no jurisdiction to try the suit. It would seem
that high court should entertain the objection and allow the appeal, but the rule is
different, and though the objection is one as to jurisdiction, the high court will not
entertain it, unless:
(i) the objection to jurisdiction was taken by B in the court of first instance
(the court at Surat) and at the earliest possible opportunity or .before the
issues were framed; and
(ii) there has been a failure of justice^" consequent upon the suit having been
tried by the court at Surat (section 21). The result is that, if no objection
. to jurisdiction was taken at all by 5 in the court at Surat, or if such
objection was taken at a later stage of proceedings before the court, or even
if such objection was taken at the earliest possible oppormnity, but there
has been ho failure of justice consequent upon the suit having been tried
by the court at Surat, the apjjellate court would not allow the objection,
and would not interfere with the decree passed by the Surat court.
All the three conditions, namely, objection in the court of first instance; objection
at the earliest possible opportunity or before the setdement of issues; and a consequent

58. See chapter 2, under the heading "Courts in othet parts ofIndia".
59. See chapter 2, under the heading "Courts ofSmall Cause".
60. As to "failute or justice", Bahrein Petroleum Co v Pappu.AlB. 1966 SC 634:(1966) 1 SCR 461.
50 Mulla The Key to Indian Practice

failure of justice, must co-exist.^' "Section 21 CPC, 1908 does not preclude objections
as to the place of suing being taken in the appellate or revisional court, if the trial
court has not decided the suit on merits."''^ '

Jurisdiction of courts is of three kinds, namely jurisdiction as to subject-matter,

pecuniary jurisdiction and territorial jurisdiction. The consequences of absence of
jurisdiction are not same, in respect of the aforesaid jurisdictions. They vary according
to the type or nature of jurisdiction. If the court has no jurisdiction as to subject-
matter, its decree will be a nullity, but if it did not have pecuniary or territorial
jurisdiction, its decree is not a nullity. "Objection to the maintainability of a proceeding
must be raised at the earliest but an objection that the authority did not have the
jurisdiction to entertain the proceedings over the subject-matter goes to the root of the
proceeding. However, a defect with respect to the lack of inherent jurisdiction is basic
and fundamental and validity of such an order can be challenged at any stage, even in
execution or in collateral proceedings."^' A suit was filed with regard to execution of
decree of specific performance. Objection that was decided by a court which had no
territorial jurisdiction. Judgment cannot be reversed purely on technical grounds unless
there is a failure of justice. Objection with regard to territorial jurisdiction is technical
objection.^'' It is liable to be set aside if aforestated conditions are satisfied. This is the
effect of provisions of section 21 of the Code. The provisions make it incumbent upon
B to make up his mind at the earliest stage of the suit as to whether, he should object
to the jurisdiction of the court. If he does not object at the earliest stage of suit, the
appellate court will not entertain the objection, but this does not mean that if B raises
the objection as to jurisdiction in the court at Surat at a later stage of the proceedings;
the court at Surat should decline to entertain the objection. The court at Surat, being
the court/of first instance, is bound to entertain the objection, whatever may be the
stage at which the objection is raised; and if it finds that it has no jurisdiction, it should
not try the suit any further. In that case it should dismiss the suit, and return the
plaint to A to present it to the proper court (O VII, rule 10). The effect of returning
a plaint as distinguished from rejecting it, is to save the plaintiff the court fees which
he has already paid.
Suppose now that no objection as to jurisdiction is raised by B in the court at
Surat, but if the court itself at a late stage of the proceedings discovers that it has no
jurisdiction to try the suit, it is the duty of that court to dismiss the suit, and return
the plaint, but what if after the court at Surat finds that it has no jurisdiction, both
A and B consent to the court at Surat proceeding with the suit and disposing it of on
its merits? Can the Sutat court proceed with the suit in such a case? The answer is
no, for it is an established principle that parties cannot by consent confer jurisdiction
upon a court as jurisdiction is conferred upon courts by the legislature. The leading
case on the subject is Ledgarcl v Bull.^^ A similar rule has been enacted with reference
to pecuniary limits.

61. Koopilan Uneen Pathumma v Koopilan Uneen Kuntalan Kutty, AIR 1981 SC 1683:(1981)3 SCC 589.
62. R.S.DVFinance Co Pvt Ltd V ShreeVallabh Glass Works Ltd,{Pi')T) 2 SCC 130.
63. Cantonment Board v Church ofNorth India, 2012(12)SCC 573.
64. KP Ranga Rao v KVVenkatesham, 2015 (1).RCR (Civil) 301.
65. Ledgard v Bull,(1887) ILR 9 All 191 :(1884-85) 13 lA 134 (PC).
 Chapter 4-—Place ofSuing 51

4.10.1 Factors Constituting a Failure of Justice

"Failure of justice" refers to the merits of the case.
It depends upon facts of each case. For this purpose, the court will have to go into
merits of the case and form its opinion on the justice and give the decision. If any-
party is prevented from adducing evidence, oral or documentary, due to the distance
between place of suing and place where such evidence would readily and easily be
available, it may result in failure of justice. If it appears to the court that on account
of the suit being in the court not having territorial jurisdiction, either party did not
have a fair trial, it would mean failure of justice. The court may not be unfair, but by
virtue of the distance or such other factor, if either party is handicapped in putting its
case properly and adequately, it may result in failure of justice. When a defendant has
actively participated in the trial and had full opportunity of defence in all aspects, he
cannot say that there was a failure of justice.

4.10.2 Waiver of Objection to Territorial or Pecuniary Jurisdiction

If the defendant does not raise an objection as to the territorial or pecuniary
jurisdiction, it is clear that judgment in such case would be valid. The general principle
of waiver has now found a statutory recognition in section 21 which clearly provides
that failure to raise objection in the court of the first instance and at the earliest
opportunity, shall prevent the defendant from raising such an objection at a subsequent
stage, and the judgment would not be vitiated on the ground of absence of territorial
or pecuniary jurisdiction. Section 21 of the Code does not apply to Fligh Court in
exercise of its original civil jurisdiction.''^
Incidentally, it may be pointed out that if the court does not possess jurisdiction as
to subject-matter, its judgment would be a nullity and of no legal effect whatsoever. In
Hiralal Doshi v Barot Ramanlalf Supreme Court has observed as under:
A decree is said to be a nullity if it is passed by a court having no inherent jurisdiction.
Merely because a court erroneously passes a decree or there is an error while passing the
decree, the decree cannot be called a nullity. The decree to be called a nullity is to be
understood in the sense that it is ultra vires the powers of the court passing the decree
and not merely an avoidable decree.
Thus, when objection is in respect of jurisdiction as to subject-matter and not
in respect of pecuniary or territorial jurisdiction, it goes to the root of the matter,
and such objection cannot be waived. Consent and waiver cannot cure inherent lack
of jurisdiction. An order passed by a court having no jurisdiction is nullity.^® It is a
fundamental rule that consent cannot confer jurisdiction as to subject matter, but.the
same rule will not apply to absence of territorial or pecuniary jurisdiction.
In Hiralal v Kali Nath^^ it has been observed as under:
It is well settled that the objection as to local jurisdiction of a court does not stand on the
same footing as an objection to the competence of a court to try a case. Competence of a

66. OrientalBank ofCommerce vSKAgarwal 2008(3) CHN 202: 2008 AIHC(NOC)610(Cal): AIR 2008
Cal 148; APD No. 179 of 2001, Dt. 15.5.2008 (DB).
67. Hiralal Doshi v Barot Ramanlal,(1993) SCC 458 : AIR 1993 SC 1449.
68. Harshad Chiman LaiModi v DLF Universal Ltd, AIR 2005 SC 4446.
69. Hiralal v Kali Nath, AIR 1962 SC 199 :(1962) 2 SCR 747.
52 Mulla The Key to Indian Practice

court to try a case goes to the very root of the jurisdiction and where it is lacking, it is a
'case ofinherent lack ofjurisdiction. On the other hand, an objection as to local jurisdiction
of a court can be waived and this principle has been given a statutory recognition.
In Kiran Singh v Chaman Paswan^^ it was held as under:
The policy underlying sections 21 and 99, CPC, and section 11 of the Suits Valuation
Act is the same, namely, that when a case had been tried by the court on the merits and
judgment rendered, it should not be liable to be reversed purely on technical grounds,
unless it has resulted in failure ofjustice and the policy of the legislature has been to treat
objections as to jurisdiction both territorial and pecuniary as technical and not open to
consideration by an appellate court, unless there had been a prejudice on merits.

4.10.3 "Objection Under Section 21(3) Civil Procedure Code, 1908 in Execution
Proceedings"
The object behind section 21(1) & (2) CPC, 1908 is to ciub the practice of raising
objections to the territorial and pecuniary jurisdiction of the court of first instance, at
the appellate or revisional stages. Sub-section (3) has further expanded this principle to
the competence of executing court and no objection with reference to the local limits of
its jurisdiction can be allowed by any appellate or revisional court unless such objection
is taken in the executing court at the earliest possible opportunity, and unless there has
been a consequent failure of justice. Sub-section (3) has been added to give effect to the
principle laid down by the Supreme Court in Hiralal Patni v Kali Nath7^ wherein it
was held that "Objection as to territorial jurisdiaion does not go to root of competence
and a validity of decree cannot be challenged on that groimd in execution proceedings."
4.11 Objections as to Over-valuation and Under-valuation
The second of the two principles referred to above relates to'over-valuation and
under-valuation of suits. The general rule is that it is the plaintifFs valuation in his
plaint which ftxes the jurisdiction not only of the court of first instance, but of the
appellate court, and not the amount, which may be ultimately decreed by the court.
Although it is the plaint value which fixes the jurisdiction, it does not follow that the
plaintiff is at liberty to assign any value he likes to his suit and thus, be free to choose
his own court for bringing his suit. If the defendant disputes the valuation, it is the
duty of the court in which the suit is filed to inquire what the real value of the suit
is. The rules for valuing suits are laid down in the Court Fees Act.^^ If the court finds
that the suit has been over-valued or tmder-valued by the plaintifF, and that there has
been a consequent change of forum, it should return the plaint to the plaintiff to
present it to the proper court(O VII, rule 10). If the suit has been tmder-valued but
not so as to change the forum, the court should grant time to the plaintiff to correct
the valuation and pay the extra court fees. If the valuation is corrected, within the time
fixed by the court, the court should proceed with the suit. If it is not corrected within
the fixed period, it is the duty of the court to reject the plaint.
Suppose now that a suit has been over-valued so that it is brought in a court of a
higher grade, or that is under-valued so that it is brought in a court of lower grade.
70. Kiran Singh v Chaman Paswan, AIR 1954 SC 340:(1955) 1 SCR 117.
71. HiralalPatni v Kali Nath, AIR 1962 SC 199.
72. The Coun Fees Act, 1870.
 chapter 4—Place ofSuing 53

Suppose, further, that the decree of the court is against the defendant, and that the
defendant appeals from the decree. Can the appellate court set aside the decree as a
matter of course? The answer is no, unless:
(i) the objection as to jurisdiction by reason of over-valuation or under
valuation was taken by the defendant in the court of first instance and
before the settlement of issues; and
(ii) the over-valuation or under-valuation is found by the appellate court to
have prejudicially affected the disposal of the suit on the merits.
This is the effect of the provision of section 11,.Suits Valuation Act, 1887. These
provisions are similar to those contained in section 21 of the Code. But once it is
found that valuation is proper, the court is entided to pass a decree for an amount
even higher than its pecuniary limits. Such decree is legal and free from vice. However,
if there is any amendment proposed to be made in the plaint as a result of which,
the valuation will exceed the pecuniary limits, the court granting the amendment will
lose jurisdiction.'''

Illustrations

(i) A sues B to recover possession of a house, valuing his claim at

Rs 4,500. The suit is filed in court X, which has no jurisdiction to try suits of a
value exceeding Rs 5,000. The market value of the house is Rs 7,000, but B does
not object to the jurisdiction of court X.- If B appeals from the decree and objecrs
to the jurisdiction of court X, the appellate court should not entertain the objection.
(ii) A sues B for accotmts and values his claim below Rs 50,000. The suit is filed in the
court of civil judge (junior division), but the amount found due on taking account
exceeds Rs 50,000. In such case, the court has power to pass a decree because it is
the plaintiffs valuation in his plaint which frxed jurisdiction, and not the amount
which has been found and decreed by the court.
(iii) A sues B to recover Rs 15,000. The suit is filed in the court of civil judge (junior
division). By a subsequent amendment, the claim is enhanced to Rs 55,000. The court
will lose jurisdiction to try the suit once amendment is granted.
4.11.1 "Forum Shopping"
"Forum Shopping" is an unethical recourse resorted to by some unscrupulous
litigants for getting their case heard in a court of law in order to get favourable order or
judgment. The courts have taken a very strong view against this growing (mal)practice.
In Chetak Construction Ltd v Om Prakash^^ the apex court observed that:
Indeed, no lawyer or litigant can be permitted to browbeat the court or malign the
presiding officers with a view to get a favourable order. Judges shall not be able to
perform their duties freely and fairly if such activities of justice would become a casualty
and Rule of Law would receive a set-back. The Judges are obliged to decide cases
impartially and without any fear or favour. Lawyers and litigants cannot, be allowed to
"terrorize" or "intimidate" judges with a view to "secure" orders which they want. This
is basic and fundamental and no civilized system of administration of justice can permit

73. See Code of Civil Procedure, 1908, sections 7, 8, 16, 17, 18, 19, 20, 21, 120; O VII, rules 10-11. Note in
particular, the amendments made in 1976 in sections 20, 21, and O VII, rules 10-11.
74. Chetak Construction Ltd v Om Prakash, 1998 (3) RCR (Civil) 644.
 /

54 ' Mulla The Key to Indian Practice

it. We certainly, cannot approve of any attempt on the part of any litigant to go "forum
shopping". A litigant cannot be permitted "choice" of the "forum" and every attempt at
"forum shopping" must be crushed with a heavy hand.

4.11.2 Special Provisions with Regard to Matrimonial Disputes

Section 19 of the Hindu Marriage Act was amended by Act 50 of 2003 to enable the
applicant to file the application in the court within whose jurisdiction was the place of
residence of the petitioner, if she was the wife, thereby expanding the jurisdiction^ ambit
of what CPC, 1908 normally provides. In Krishna Veni Nagam v Harish Ndgarn'^ the
Supreme Court opened the window larger to opt for cpntinuing the litigation from the'
places where the parties respectively resided, particularly when they were living in two
different states and thereby obviating the need for transfer of application from one state
to another by approach to Supreme Court and instead to adopt video conferencing as a
tool for evidence and arguments. The court said that when one or both the parties make
a request for use of video conferencing, the court will afford such facility in matrimonial
and custody proceedings.

75. Krishna Veni Nagam v Harish Nagam, AIR 2017 SC 1345 : 2017(2) AJR462 ; 2017(3) Andh LD 151 :
2017 (122) ALR 905 : 2017 (5) Andh LT 4 ; 2017 (3) BomCR 62 ; 2017 (2) CDR 202 (SC): 2017
(2) CLJ (SC) 55 ; 123 (2017) CLT 1054: 2017(2) CTC 457:11 (2017) DMC 173 SC: 2017(2) Gau
LT 29 : 2017 (2) JKJ 35 (SC): 2017 (2) KHC 380 : 2017 (2) KLJ 549 : 2017(2) Ker LT 593 : 2017
(3) LW 721 : 2017(4) MhLj 764 : 2017 (3) MPLJ 344 ; 2017 (I) Ori LR 1033 ; 2017(2) RCR (Civil)
358 : 2017 (3) Scale 471 :(2017) 4 SCC 150 : 2017 (6) SCJ 392 :(2017) 3 WBLR (SC) 622 : 2017
(2) WLN 26 (SC).
 CHAPTER 5

PARTIES AND CAUSE OF ACTION

SYNOPSIS

5.1 Preliminary 55 5.5.3 Joinder of Defendants and

5.2 Transactions as Distinguished from Causes of Action 64
Cause of Action 55 5.5.4 Joinder of Plaintiffs,
5.3 Joinder of Parties 59 Defendants and the Causes
5.3.1 Joinder of Plaintiffs 59 of Action 66

5.3.2 Joinder of Defendants 60 5.6 Procedure in Case of Misjoinder

of Parties and Cause of Action.... 66
5.4 Procedure in Case of Misjoinder
of Parties 61 5.7 Non-Joinder of Parties 67

5.5 Joinder of Causes,of Action 62 5.7.1 Effect of Non-joinder of

5.5.1 One Plaintiff, One Defendant,
a Necessary Party 67
and Several Causes of 5.7.2 Effect of Non-joinder of
Action 63 a Proper Party 68

5.5.2 Joinder of Plaintiffs and 5.7.2.1 Who is a Proper

Causes of Action 63 Party? 68

5.1 Preliminaiy
As discussed earlier,' the four ingredients of a suit are: (1) parties, (2) cause of
action,(3) subject-matter, and (4) reliefs claimed by the plaintiff. Of these four, the last
two do not require further comment, but the other two, namely, parties and cause of
acdon require a fuller statement. These two essentials are so intimately connected with
each other that one cannot be dealt with without dealing with the other. In fact, the
very expression "cause of action" conjures up the notion of parties, i.e., some persons
as plaintiffs having a cause of action against others as defendants.

5.2 Transactions as Distinguished from Cause of Action

It is very important for the purpose of the present chapter to note the distinction
between an act or a transaction and a cause of action. A cause of action always springs
from an act or a transaction. An act or a transaction may give rise to one cause of
action or it may give rise to two or more causes of action. Where there are several
causes of action, a separate suit may be brought in respect of each distinct cause of
action, though they may arise out of the same transaction. In a suit, the plaintiff is
bound to claim the entire relief. A suit has to be so framed as to afford ground for
final decisions on the subjects in dispute and to prevent further litigation concerning
them. However, one cannot split a cause of action, and bring two or more suits in
respect of the same cause of action as laid down in O II, rule 2 of the Code, which
centres around one and the same cause of action.^ The object of O II, rule 2 of the
Code is two-fold. First is to ensure that no defendant is sued and vexed twice in regard

1. Chapter 3,"The Four Essentials ofa Suit".

2. Kunjan Nair Sivaraman Nair v Naraymn Nair, AIR 2004 SO 1761 :(2004) 3 SCO 277.

55
56 Miilla The Key to Indian Practice

to the same cause of action. Second is to prevent a plaintiff from splitting the claims
and remedies based on the same cause of action. It does not bar a second suit based
on a different and distinct cause of action.^

Order II, rule 2 insists upon inclusion of the whole claim which the plaintiff is entitled
to make in respect of a cause of action put in the suit. It directs securing exhaustion of
relief in respect of a cause of action and not to the inclusion in one and same action of
different causes of action, even though they may arise from same transaction.^
As cab comes into collision with B's van. The collision causes (i) damage to As
cab and (ii) bodily injury to A. Here the same transaction, namely, collision, gives rise
to two distinct causes of action—one, in respect of the damage to A's cab and the
other, in respect of the injury to ^'s person. Here A may bring one suit against B in
respect of both causes of action though he is not bound to do so. He may, if he likes,
bring two separate suits against B, one for compensation for damage to his cab, and
the other, for compensation for injury to his person. However, he cannot bring more
than one suit in respect of either of these two causes of action. Thus, if he brings a
suit for damages for injury caused to his arms and legs, he cannot bring another suit
for damages for internal injury, though he may not have been aware, when he brought
the first suit, of such injury.
The leading case on the subject is Bmnsden v Humphrey? This sub-rule deals with
framing of suit and says that the plaintiff must include the whole of the claim in
respect of a particular cause of action and if he omits to sue 6r intentionally relinquishes
any portion of the claim, he shall not afterwards sue in respect of such portion.® The
provision, like the principle of resjudicata, is based on the salutary and cardinal principle
that all disputes must he settled once and for all and no person ought to be vexed twice
for one and the same cause,^ hut he can omit or relinquish the portion of the claim in
order to bring suit within the jurisdiction of a court. In the same way, if the plaintiff
is entitled to ptay for several reliefs, either concurrent or alternative, and if he omits
to sue for all such reliefs, he cannot afterwards sue for such omitted reliefs, unless he
has obtained leave of the court. It is important to notice that court can grant leave to
the plaintiff in respect of relief, but not in respect of portion of the claim. This rule
also applies to a defendant who claims a set-off or counter claim. 'When defendant
pleads O II, rule 2, he must file the pleadings in the previous suit.® The plea can be
established only on proof of the identity of the cause of action as well as the identity,
of the parties in two suits.'
The plea of bar under O II, rule 2. is a highly technical plea and must be taken
specifically. And if not taken, the court shall not entertain and decide the plea
suo motu?^

3. Atka Gupta v Narender Kumar Gupta,(2010) 10 SCC 141 (147): AIR 2011 SC 9.
4. SNazeer Ahmed v State Bank ofMysore. AIR 2007 SC 989 : 2007(2) Scale 349:(2007) 11 SCC 75.
5. Brunsden V Humphrey, XAkff)!) \A\.
6. NVSriniwasa Murthy v Mariyamma, AIR 2005 SC 2897:(2005) 5 SCC 548.
7. State ofMaharashtra v National Construction Co, Bombay,MR.1996 SC 2367 ; 1996(28)ALR26;Inacio
Martins through LRs v Narayan Hari Nayak, AIR 1993 SC 1756 ;(1993) 3 SCC 123.
8. BengalWaterproofLtd V Bombay WaterproofMfg. CsiAlR 1997 SC 1398 ; (1997) 1 SCC 99.
9. GurinderpalvJogmitter Singh, W SCQ2\9.
10. Dalip Singh v Mehar Singh,(2004)7 SCC 650.
 Chapter 5—Parties and Cause ofAction 57

For the plea of bar under O II, rule 2 to be successful, the defendant has to
establish that; (i) the previous and the second suit arise out of the same cause of action,
(ii) the cause of action on which subsequent claim is founded had arisen to the claimant
where the enforcement of the first claim has been sought and (iii) the earlier suit had
been decided on merits."

Raising of plea of bar of O II, rule 2 in appeal for the first time is not permissible,'^
and also cannot be permitted to be raised before the Supreme Court if not raised before
the high court.'^ There is material difference between rule 2(2) and rule 2(3) of O II.
These rules will not apply if causes of action are distinct.'''
In Shanker Sitaram v Balkrishna Sitaram,^^ the plaintiff filed a suit for partition
embracing the entire property, but abandoned certain claim for accounts. He
subsequently filed a suit to enforce that claim for accounts on the same cause of action.
It was held that the suit was bad under O II, rule 2. In the same way, if a person omits
any portion of the claim in order to bring the suit within the pecuniary limits of any
court, he cannot afterwards sue for such omitted portion. Suppose Rs 3,50,000 has to
be recovered from a person and only a suit for Rs 3,00,000 is filed in the court of the
civil judge, omitting to sue for Rs 50,000 in order to bring the suit within pecuniary
limits. The omitted portion cannot be sued for afterwards.
To give another example: A has let out his house to R at a yearly rent of
Rs 60,000 and, the rent is due and unpaid for the years 2000, 2001 and 2002, but
if A sues B only for the rent due for the year .2002, he cannot afterwards sue B for
rent, either for the year 2000 or 2001. Similarly, where a plaintiff files a suit for
declaration that he continues to be in service but does not claim arrearsTif salary and
other consequential reliefs, he cannot bring a second suit for reliefs, not claimed inThe^
previous suit."' Such a suit would be clearly barred under O II, rule 2.
Order II, rule 2 also applies where the plaintiff is entitled to several reliefs in
respect of the same cause of action.''' He must seek all such reliefs and if he omits to
sue in respect of any such reliefs, he cannot afterwards sue for such reliefs. In the suit
for specific perforrnance, one must also seek relief of damages/compensation in the
alternative. But in this part of the rule, it is provided that the plaintiff can omit to sue
in respect of a particular relief with the leave of the court. The leave of the court is
the sine qua non for entertaining a fresh suit for the relief omitted to be claimed. The
suit filed for omitted relief after the question of leave and limitation attaining finality
in earlier litigation could not be held barred by limitation.'® If leave is granted, he
can afterwards sue in respect of such omitted relief. Such leave may be granted at any
stage of the suit, and has to be obtained in the earlier suit and not in the subsequent
suit.'" There are divergent views as to whether this rule applies to concurrent reliefs

11. UOIvHKDhruv,(2005) 10 SCC 218.

12. S Santokh Singh v Gurhax Singh, AIR 2003 NOC 6(Dd).
13. Dalip Singh v Mehar Singh,(2004) 7 SCC 650.
14. UOl V HKDhruv,(2005) 10 SCC 218.
15. Shanker Sitaram v Balkrishna Sitaram, AIR 1954 SC 352: 1955 SCR 99
16. State ofMadhya Pradesh v MangilalSharma, AIR 1998 SC 743:(1998)2 SCC 510.
17. Gurbux Singh v BhooraM, AIR 1964 SC 1810: 1964 SCR (7) 831.
18. Hindustan Motots Lid v DR Motors, ILR (2010) MP 215.
19. SNP Shipping ServicesPvtLtd V World Tanker Carrier Corp.,PIKIQW Bom 34 ; 2000(102(l))Bom LR56.
58 Mulla The Key to Indian Practice

only and not to alternative reliefs. It is advisable to include alternative reliefs also, if
it is not possible to obtain leave of court for such omission. But without leave of the
court, reliefs must be omitted because reliefs are in the alternative. Before instituting a
suit for specific performance i.e. special civil suit, prior leave is required to be obtained
under O II, rule 2(3) of the Code.^"
What will happen if two suits are simultaneously filed? Will the O II, rule 2 apply
in such case? Different high courts have responded differendy. According to the Bombay
High Court, such suits may he consolidated. According to the Allahabad, Madhya
Pradesh and Rangoon High Courts, the later suit must be dismissed. The plaintiffs
must be given an option to elect the suit, according to Madras High Court. We must
await a definite pronouncement of the Supreme Court on such a point. Till a definite
pronouncement is made by the Supreme Court, the proper procediure must be followed,
which is to consolidate such suits.

The underlying object of O II, rule 2 is to prevent further litigation and to prevent
defendant being vexed twice in respect of the same cause of action. If the first suit is
pending, the second suit can be consolidated with the first and both may be heard
together. The word afterwards suggests that the prohibition contained in the rule is
intended to apply when the suit is already decided.
Order II, rule 2 will not apply where there are different causes of action arising from
the same transaction. Suppose A files a suit for"recovery on the basis of a promissory
note and the suit is filed on the ground that there were material alternations in the note.
As subsequent suit on original consideration will not be barred. In Arjunlal Gupta v
Mriganka Mohan^^ the first suit ended in a compromise and a consent decree was drawn
up. However, the terms of the consent decree could not be observed. The second suit
was brought, alleging failure to carry out the terms of the decree and such allegations
were part of the cause of action, which was different from the cause of action in the
first suit. Hence, it was held that the consequent suit was not barred.
However, the bar of O II, rule 2 of the Code will not apply, where a relief, for which
a subsequent suit is filed was not in existence when the previous suit was brought or
where the cause of action, on the basis of which the previous suit was brought does
not form the basis of the subsequent suit, or where in the earlier suit, the plaintiff
could not have claimed the relief, which he seeks in the subsequent suit.^^ The bar of
O II, rule 2, will also not apply where the court permitted withdrawal of the earlier
suit with liberty to file fresh suit on the same cause of action.^' The test for finding
out whether a subsequent suit shall be barred because of the previous suit is whether
the claim in the second suit is in fact, founded on a cause of action which was the
foundation of the former suit. If the answer is in affirmative, the bar of O II, rule 2
would apply. But if it is in negative, it would not be attracted.^''

20. VimalBuilders v Ketan KThakkar, 2010 (1) Bom CR 398 (407-409)(DB).

21. Arjunlal Gupta v Mriganka Mohan, AIR 1975 SC 207:(1974)2SCC 586.
22. Inacio Martins through LRs v Narayan Hari Nair, AIR 1993 SC 1756:(1993)3 SCC 123.
23. Ravjibhai Mathurhhai Solanki v Bijabhai Devjibhai Prajapati, AIR 2004 Guj 102 ; 2003 GLH (3)645.
24. KewalSingh v Lajwanti,(1980) 1 SCC 290: 1980 AIR 161.
 chapter 5—Parties and Cause ofAction 59

In Mohd Khalil v Mahbub AUP the Privy Council laid down the following principles
governing bar to a subsequent suit under O II, rule 2 CPC, 1908:
(i) The correct test in cases falling under O II, rule 2 is "whether the claim in the
new suit is in fact founded upon a cause of action distinct from that which was the
foundation of the former suit."
(ii) If the evidence to support the two claims is different, then the causes of action are
also different.
(iii) The causes of action in the two suits may be considered to be the same if in substance
they are identical.
Further, the previous barring of the splitting of claims applies only to suits and not
to appeals, insolvency proceedings, execution proceedings and writ petitions. However,
arbitration proceedings have been held to be within the ambit of bar under O II, rule
2 of the Code.^®

5.3 Joinder of Parties

An act may be done by a single individual and it may affect one person only,
say, if A assaults B, or it may affect two or more persons, when A assaults B and C
simultaneously. If A assaults B and C on different occasions, ahd not simultaneously,
it is a case, not of a single act or transaction, but of two acts or transactions.
An act, again, may be done by two or more individuals, and it may affect only one
person, as where A and B simultaneously assault C, or it may affect two or more persons
as where A and B simultaneously assault C and D. Where assault is simultaneous, it is
one act. Where it is made on different occasions, it is a case of several acts.
Where an act is done by a single individual, and it affects only one individual,
there is no question of joinder of parties. The question of joinder of parties arises only
where an act or transactions proceeds from two or more persons, or when it affects
two or more persons. Thus if A and B assault C, the question atises whether C can
join A and B as defendants in one suit, or whether he should bring a separate suit
against either of them. Similarly, if A assaults B and C, the question arises whether B
and C can join as plaintiffs in one suit against A, or whether they should each bring
a suit against A. The answer to the above questions is given in the rules below. There
is one set of rules for the joinder of plaintiffs and another set of rules for the joinder
of defendants.

5.3.1 Joinder of Plaintififs

All persons may be joined in one suit as plaintififs:
(i) where the right to relief alleged to exist in each plaintiff arises out of the
same act or transaction; and
(ii) where, if such persons brought separate suits, any common question of
law or fact would arise (O I, rule I).

25. Mohd Khalil V Mahbub all, AIR 1949 PC 78 : 1948 61 LW 686.

26. KV George v Secretary to Government, Water and Power Depart, AIR 1990 SC 53 :(1989)4 SCO 595.
60 Mulla The Key to Indian Practice

Both the conditions are cumulative and not alternative and both must be fulfilled.^''
However, it is not necessary that all the questions arising in the case should be common
to all the parties and it would be sufficient if one of the questions is common to them.^®
Although all the persons coming under this rule may join as plaintiffs, the court has
the power to order separate trials when any such joinder embarrasses the trial.^'

Illustrations
(a) A and B each buy a certain number of the debentures of a company on the faith of
certain statements made in a prospectus issued by the directors of the company. A
and B may join as plaintiffs in one suit for damages against the directors, because
the publications and the belief induced are common questions of facts arising out of
the same transaction namely, the issue of the prospectus.'"
(b) An altercation takes place between A on the one hand and B and his wife on the
other. A assaults B and his wife simultaneously. B and his wife may join as plaintiffs
in one suit for damages against A.
(c) A agrees to sell and deliver ro B, 500 maunds of sugar at the rate of Rs 3 per maund
on 4 May 1914. On the same day he agrees to sell and deliver to C a like quantity
of sugar at the same rate. B and C cannot join as plaintiffs in one suit against A
because the transactions are different.

Note-. It is immaterial that the plaintiffs in illustrations (a) and (b) each have separate
causes of action against the defendant. It is suflScient if the transaction is the same.
The test is not the identity of the cause of action, but of the act or transaction. Under
the Code of 1882, the test was the identity of the cause of action. Therefore A and B
in illustration (a) could not join as plaintiffs in one suit. It was necessary for each of
them to bring a separate suit. The same remarks apply to illustration (b).

5.3.2 Joinder of Defendants

All persons may be joined in one suit as defendants;
(i) where any right to relief alleged to exist against them arises out of the
same act or transaction; and
(ii) where, if separate suits were brought against such persons, any common
question of law or fact would arise (O I, rule 3).
Both the conditions are cumulative and not alternative and both must be fulfilled."
Like in a case of joinder of plaintiffs, it is enough if there is one question common
to all the defendants which is of sufficient importance.'^ It is also not necessary that
all the defendants should be interested in all the reliefs claimed or that their liability
should be the same;" the rule is only permissive and not mandatory. Similarly, the
court may order separate trials where any such joinder embarrasses or delays the trial.'"'

27. Sant Singh v Des Ram,AIR 1974 P&H 276.

28. Sita Ram v Rajender Chandra, AIR 1956 Assam 7.
29. Code of Civil Procedure, 1908, O I, rule 2.
30. Drincqubier V Wood,(1889) 1 Ch 393.
31. Sant Singh v Des Ram, AIR 1974 P&H 276.
32. Sudershan GoelvNew Bank ofIndia, AIR 1984 P&H 233 ;( 1984 )ILR 2 Punjab and Haryana 178.
33. Amar Singh v Jagdish, AIR 1976 P&H 276.
34. Code of Civil Procedure, 1908, O I, rule 3A.
 Chapter 5—-Parties and Cause ofAction 61

The primary object of rules 1 and 3 of O I is to avoid multiplicity of suits and

unnecessary expenses.^'

Illustrations
(a) A, riding in an omnibus belonging to B, is injured through a collision between the
omnibus and a cart belonging to C A may join B and C as defendant in one suit
of damages for personal injury caused by their negligence or the negligence of either
of them, because the case involves common questions of fact arising out of the same
transaction, namely, collision.^®
(b) An altercation takes place between A on the one hand and B and B's son on the
other. B and B's son simultaneously assault A. A may join B and B's son as defendant
in one suit of damages.
(c) A, B and C each enters into an agreement with D to supply coal to D for his factory.
A, B and C fail to deliver the coal. D cannot join A, B and C as defendant in one
suit for damages, for there are three distinct agreements and therefore, three different
transactions.

Note: It is immaterial that the plaintiffs in the aforesaid illustrations have separate
cause of action against each of the defendants. It is sufficient that the transaction is
the same. The test is not the identity of cause of action, but of the act or transaction.
It is important to note that such right existing in favour of the plaintiffs or against
the defendants need not be joint. It may be joint, several or even in the alternative.
When there is a promissory note payable to A and B jointly, they may sue together
and their interests can be said to be joint but where C has assaulted A and B, they
may bring a single suit though their interests are several and not joint. If a Hindu dies
leaving a widow, an adopted son and a separate brother and disputes arise between the
widow and the adopted son by brother, such a suit can still be maintained because
the claims of the widow and the son can be treated in the alternative. If adoption is
invalid, the property may go to the widow, and if valid, to the son. This also applies
to suits against the defendants, against whom the plaintiff may claim jointly, severally
or in the alternative.

5.4 Procedure in Case of Misjoindef of Parties

If two or more persons are joined as plaintiffs in one suit, in contravention of
the rule given above as to joinder of plaintiffs, the case is one of misjoinder of
plaintiffs. Similarly, if two or more persons are joined as defendants in one suit, in
contravention of the provisions of the rule given above as to joinder of defendants,
the case is one of the misjoinder of defendants. The objection on the ground of
misjoinder of parties should be taken at the earliest opportunity at the time issues
were raised or before the settlement of issues. However, if ground for objection has
arisen subsequently, it is permissible to raise such objection after setdement of issues.
It is the duty of the party to raise the objection in the written statement at the
earliest point of time and objection not so taken will be deemed to have been waived
(O I, rule 13). Where such objection is taken, and the court finds that it is valid, the
suit shall not be dismissed (O I, rule 9). The non-impleadment of a necessary party

35. IswarBhai v Harihar Behera,(1999) 3 SCC 457:[1999]1 SCR 1097.

36. Bullock V London General Omnibus Co,(1907) KB 264.
62 Mulk The Key to Indian Practice

is fatal even in a writ petition. If a necessary party is not impleaded, no order to the
detriment of a person can be passed without hearing him.^^ The plaint may be amended
by striking out the names of such persons as have been improperly joined as parties
(O I, rule 10(2)). A misjoinder of parties, either the plaintiffs or the defendants, is
not fatal to the suit. It is only a remedial defect^' even if the court has not deleted the
parties or any of them and even if such defect is not cured, the decree or order would
be valid and would not be liable to be reserved or substantially varied.
The objection as to the misjoinder or non-joinder of parties cannot be taken for
the first time in appeal or revision.
However, the things are different, where it is a case of non-joinder of parties. For
the purposes of non-joinder of parties, a distinction has been made between a necessary
party and a proper party.^'
The provision under O I, rule 9 of the Code lays down that no suit shall be defeated
by reason of misjoinder or non-joinder 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.'*"
Under O I, rule 9 of the Code, while non-joinder of a proper party is not fatal to
the suit, non-joinder of a necessary party does prove fatal of the suit, if the plaint is
not amended to implead a necessary party.

5.5 Joinder of Causes of Action <

As regards joinder of causes of action,- there are two general rules which apply to all
cases, irrespective of the number of plaintiffs or the number of defendants:
(i) In a suit for the recovery of immovable property, a plaintiff is not entitled,
without the leave of the court, to join any claim except: (a) claims for
mesne profits or arrears of rent; (b) claims for damages for breach of any
contract under which the property is held; and (c) claims in which the
relief sought is based on the same cause of action (O II, rule 4). The
provisions of O II, rule 4 of the Code are aimed at avoiding the claim to
property, to become complicated, by the joinder of other causes of action.
(ii) A agrees, to sell a house with all furniture in it to B. A fails to deliver
possession either of the house or of the furniture to B. B may sue A for
possession of the house and join in that suit (a), a money-claim for mesne
profits realized by A, subsequent to the date on which A ought to have
delivered possession of the house to B-, (b) a money-claim for any damages
tliat may have been sustained by B by reason of the breach of contract
on As part; and (c) a claim for the delivery of the furniture but B cannot
join any other claim with the suit.
(iii) A sells and delivers certain goods to B. A dies leaving a will, of which C
is the executor. C sells and delivers to B some goods belonging to him.

37. Sandhyarani Sahoo v DJs,(2009) 107 CLT 160 (161)(DB).

38. Manoharamma H&IPvt Ltd v Aruna Hatch Ltd, AIR 2004 Mad 344.
39. See chapter 3 for a necessary party and a proper party.
40. Somnath Banerjee v Arati Rani Chakraborty, AIR 2010 Gau 187(190).
 Chapter 5—Parties and Cause ofAction 63

C cannot, in the same suit, claim from B, the price of goods sold by his
tester A, and the price of goods sold by him. Similarly, B also sells some
goods to C for Cs purposes. B cannot, in the same suit claim from C the
price of goods sold to A and the price of goods sold to C. The general
rule is that no claim by or against an executor, administrator, or heir
as such shall be Joined with claims by or against him personally (O 11,
rule 5).
We now proceed to deal with the following three cases:
(i) One plaintiff, one defendant and several causes of action.
(ii) Two .or more plaintiflFs, one defendant and several causes of action. '
(iii) One plaintiff, two or more defendants, and several causes of action.
The rules given below are to be read subject to the two general rules given above.
5.5.1 One Plaintiff, One Defendant, and Several Causes ofAction
Where there is only one plaintiff and only one defendant, the plaintiff is at liberty
to unite several causes of action in the same suit against the defendant(O II, rule 3). If
the causes of action are so disconnected that they cannot be conveniently tried together,
the court may order separate trials (O II, rule 6). Thus, \{ A sues B for damages of
breach of a dozen contracts between him and B, the court may, in a proper case,
order separate trials of separate sets of contracts. In Saccharin Corp Ltd v Wild,''^ the
plaintiff sought to unite 23 causes of action against the defendant in the same suit. It
was considered an outrageous extension of latitude and almost an abuse of process of
the court. Though it is not expressly stated in the rule, it is implicit that two or more
causes of action can be united, provided they are intimately connected with each other
or when one was subordinate or collateral to the other.

5.5.2 Joinder of Plaintiffs and Causes ofAction

Where two or more persons are jointly entitled to the relief claimed, as where a
promissory note is passed to A, B and C jointly, there is but one cause of action In
all other cases, where there are two or more plaintiffs, it will be seen that their causes
of action are separare. In these cases, it is enough that the causes of action arise out of
the same transaction, and that there are common questions of law or fact It is further
necessary that they should be jointly interested in the several causes of action against
the defendant (O II, rule 3). If the plaintiffs are not so interested, the case is one
of misjoinder of plaintiffs and causes of action. It is not permissible to join together
persons having claims against different persons, and bring a single suit. Different persons
claiming under different pro-notes cannot join together and file a single suit.''^
be seen, however, that in almost every case, since the passing of the new rules, in
which the transaction was the same and there were common question of law or fact,
the plaintiffs, it was held, had a joint interest in the causes of action, and it was only
when there were two or more distinct acts or transactions, that the suit was held to
be bad for misjoinder of plaintiffs and causes of action.

41. Saccharin Corp Ltd v Wild,(1903) 1 Ch 410.

42. Kota Sreevalli v Chinni Seetharamaiah, AIR 2005 AP 521.
64 Mulla The Key to Indian Practice

Where despite objection as to the misjoinder of plaintiffs and causes of action, a

decree is passed for the plaintiffs, and the appellate court if finds that there has been
such a misjoinder, it shall not interfere with the decree, unless the misjoinder has
affected the merits of the case (section 99).

Illustrations
(a) A enters into two agreements with B and C jointly for the sale of goods and commits
a breach. B and C may file a suit claiming damages in respect of both the agreements.
Here, in both causes of action, B and C are joindy interested and they arise out of
same transaction.
(b) X sells to Y two plots of land. A claims one plot by adverse possession, while B
claims another plot by adverse possession. A and B cannot file a suit as co-plaintiffs
because they are not jointly interested in the plots. Their respective claims of adverse
possession are in respect of distinct plots, and A does not claim interest in the plot
adversely claimed by B and vice-versa.
(c) Where A enters into separate agreements with B, C, D, E and F, and commits breach
of such agreements, they cannot join as co-plaintiffs in a suit because they are not
jointly interested in separate causes of action.
(d) A, shareholder in a company, sues B, C, D, the directors, to recover damages on his
own behalf for fraudulently inducing him to purchase shares by declaring an illegal
dividend; and he joins a claim in the same suit on behalf of himself and all other
shareholders for repayment by the directors to the company of the amount of the
dividend illegally paid out by them. The suit is bad for misjoinder of plaintiffs and
causes of action, for though the transaction is the same in a sense, namely, declaration
of dividend, the plaintiffs are not all jointly interested in them. As grievance that he
purchased the shares owing to the declaration of the dividend (which showed that
the company was a flourishing one) is peculiar to him only. It is better to say in this
case that there are two acts or transactions, namely, the declaration of dividend which
affected A, with the payment of dividend, which affected all the shareholders.'*^
(e) Agreement between A1 and respondent for construction of building. A1 committed
breach. Fresh oral agreement between A2 and respondent to entrust to subcontractor
where A2, husband of A1 was to be the supervisor of works without any remuneration.
Suit by A1 and A2 for declaration that agreement was vitiated and for injunction
against respondent not to enforce the contract and by A1 for money for the value of
work done. Such a suit was competent and not barred for multifariousness.'*'*
5.5.3 Joinder of Defendants and Causes of Action
Where there are two or more defendants and two or more causes of action, the
plaintiff may unite several causes of action in the same suit against the same defendants
jointly (O II, rule 3). It is not enough that the causes of action arise out of the same
transaction, and that there are common questions of law or fact. It is further necessary
that the defendants should be jointly interested in the main questions raised by rhe
litigation. If this is not so, the case is misjoinder of defendants and causes of action.

43. StroundVLawson, 2 QB 44.

44. Hema Khamr v Shiv Khera, AIR 2017 SC 1793 ; 2017(4) Andh LD 85 : 2017 (4) ALL MR 982 ; 2017
(122) ALR 893 : 2017(4) ALT 1 ; 2017(3) Arb LR 76(SC):2017(3) Bom CR 405 ; (2017) 4 CALLT
65 (SO) ; 2017 (4) CDR716(SC); 2017 (2) CHN (SC) 164: 124(2017) CLT 34:2017(3) CTC 94 ;
2017 (5) JKJ 69 (SC):2018 (1) MhLj 119 : 2018 (1) MPLJ 93 : 2017 (3) RCR (Civil) 277 ; 2017 136
RD 558: 2017(4) Scale 382 ;(2017)7 SCC 716: 2017(3) SCJ 646 ;(2017)6 WBLR(SC) 141.
 Chapter 5—Parties and Cause ofAction 65

It will be seen, however, that in almost every case since the passing of the new rules,
in which the transaction was the same, and there were common questions of law or
fact, the defendants, it was held, had a joint interest in the main questions raised by
the litigation, and it was only when there were two or more distinct acts or transactions
that the suit was held to be bad for misjoinder of defendants and causes of action.
In the case given in illustration (c) below,'*' a great effort was made on behalf of the
defendants to show that though the causes of action arose out of the same transaction,
and there were common questions of fact, the defendants had no joint interest in the
main questions raised by the litigation. However, the efforts failed, and the court of
appeal held that the defendants were properly joined as parties. That case shows to
what length the Court of Appeal in England is prepared to go under the corresponding
English Rules. The rule comprised in O I and O II of the fitst schedule of the Code
has been taken from the English Rules, and there is no doubt that the courts in India
will follow the decision in that case. It is advisable to read the judgments in that case,
as also in Jvlarks and Co v Knight Steamship Co,^^ They throw a flood of light on the
rules relating to joinder of parties

Illustrations
(a) A and B enter into two agreements with C for the sale of goods and commit breach,
for which C may bring a suit against A and B as co-defendants, claiming damages in
respect of both the agreements. Here in both causes, A and R are jointly liable and
they arise out of the same transaction.
(b) A and B enter into separate agreements with C and commit breach. Here, C cannot
file a suit joining A and B as co-defendants because they are not jointly liable or
answerable. A is not liable for breach committed by B and vice-versa.
(c) A is the exporter of frozen mear, B is the owner of a line of steamers. By a contract
between A and 5, R agrees to carry frozen meat from Argentina to Europe in steamers
belonging ro him or in other suitable steamers to be procured by R. R procures
a steamer called the Devon belonging to C, and it is agreed between A and R as
regards a particular shipment of meat, that it should be made in the Devon. Meat
is accordingly shipped in the Devon, and the master of the Devon signs the bill of
lading in respect of it and hands it to A. The Devon turns out to be unseaworthy,
and the meat is damaged. A sues R and C, claiming damages against R on the
terms of the contract between rhem, and against C upon the bill of lading. It is an
implied condition of a bill of lading that the ship is seaworthy. The suit is not bad
for misjoinder, for the causes of a bill of lading that the ship is seaworthy. The suit
is not bad for misjoinder, for the causes of action arise our of the same transaction,
namely, the alleged unseaworthiness of the Devon-, there is a common question of fact,'
namely whether the ship was unseaworthy; and the causes of action are not of such
a character that they cannot be combined together.'*^
(d) A delivers cotton to R, C and D under separate contracts to be ginned in their
respective factories. B, C and D fail to gin the cotton; A sues R, C'and D,for damages
for breach of the contracts. The suit is bad for misjoinder of defehdants and ir is also
bad for misjoinder of defendants and cause of action. Here, there are three disrinct

45. Compania Sansinena v Houlder Bros, (1910) 2 KB 354. See also chapter 4 note 6 for illustration of the
principle as enunciated hy the Supreme Court in Shivnarayan(D) by Lrs v Maniklal(D) bv Lrs 2010 tr
RCR (Civil) 985:2019 (2) Scale 620. . / - t
46. Marks and Co v Knight Steamship Co,(1910) KB 1021.
47. Compania Sansinena V Hotibier Bros, 2KB
66 MuHa The Key to Indian Practice

agreements, i.e., three distinct transactions, each giving rise to a distinct cause of
action, one against B, another against C and the third against D.
5.5.4 Joinder of Plaintiffs, Defendants and the Causes of Action
Where there are two or more plai itiffs, two or more defendants and several causes
of action, the plaintiffs may unite th? cause of action against the defendants in the
same suit only when all the plaintiffs <md all the defendants are jointly interested in
all the causes of action. However, if neither the plaintiffs nor the defendants are jointly
interested in the causes of action, the suit will be bad on two counts—for misjoinder
of plaintiffs and causes of action; and misjlinder of defendants and causes of action.'^'
5.6 Procedure in Case of Misjoinder of Parties and Cause of Action
The objection as to misjoinder of parties and causes of action should be taken at
the earliest possible opportunity, otherwise, it ^vould be deemed to have been waived
(O II, rule 7). In all cases where issues are setded, objection must be raised before the
settlement of issues. However, it can be raised thereafter, if it can be shown that grounds
for objection arose subsequently. Where such objection is taken, and the court finds
that it is valid, the court may allow the plaintiffs, vvhere the case is one of misjoinder
of plaintiffs and causes of action, to elect which of them should proceed on the plaint
already filed, and the plaint may then be amended by striking out the names of the
other plaintiffs and all references to the claims made by them. Thus, in the case given in
the illustration (d) under the head "Joinder of Plaintiffs and Causes of Action", A may
be allowed to elect to proceed with his claim for damages, in which case, all references
to the claim made by A and the other shareholders for a l efund of the dividend should
be struck out and a separate suit may be brought in respect thereof.
No appeal could be filed on the ground that the suit was bad for misjoinder or
non-joinder of parties or cause of action, as per section 99 CPC. What is applicable to
suit is also applicable to revision and hence no revision could be filed against disposal
of case by pointing out to misjoinder. In a case of eviction, where the husband and
wife had sought eviction in respect of property on the ground of joint necessity and
on the ground of joint ownership against the same defendant, the order of eviction
by the court of first instance was modified by the appellate court on the ground of
misjoinder of parties and causes of action. The judgment was set aside and trial court
decision affirmed by placing reliance on section 99.^^'
Where the case is one of misjoinder of defendants and causes of action, the court
may allow A, in illustration (d) under the head "Joinder of Defendants and Causes of
Action" to elect to proceed against any one of the three defendants B, C and D. If A
elects to proceed against B, the names of C and D should be struck out from the tide
of the suit as well as from the body of the plaint, as also all reference to the agreements
with C and D (O VT, rules 17, 18).

48. Madan Lai Raja Rain v Munshi Data, AIR 1956 Pepsu 80.
49. Manti Devi v Kishim Sah, AIR 2017 SC 2002 : 2017 (4) Andh LD 81 ; 2018 (1) ALLMR 908 : 2017
(122) ALR 508: 2017(4) CDR 748(SC):2017(2) Gau LT 53:2017(2)JLJR.289:2017(2) KLJ 655
; 2017 5 LW 482 : 2017(2) PL]R 314 ; 2017(3) RCR (Civil) 22 ; 2017(1) Ren CR 443:2017(3) RLW
2182(SC).
 chapter 5—Parties and Cause ofAction 67

5.7 Non-joinder of Parties

Persons, who are necessary parties to a suit should all be joined as parties, otherwise
it is a case of non-joinder of parties. Necessary parties are the parties whose presence
is essential and in whose absence, no effective decree can be passed at all. They are
the parties "who ought to have been joined" within O I, rule 10(2).'" Rule 10(2) of
Civil Procedure Code "gives a wider discretion to the Court to meet every case or
defect of a party and to proceed with a person who is a either necessary party or a
proper party whose presence in the Court is essential for effective determination on
the issues involved in the suit."" Thus, if A passes a promissory note, jointly to B,
C and D, all thtee must join as plaintiffs in one suit against Similarly, in a suit
for a partition of joint family property, all the members of the joint faraily should be
joined as parties to the suit. On the same principle, all the members of a partnership
are necessary parties to a suit for partnership accounts. If any of the persons interested
refused to join as a plaintiff, he should be joined as a defendant, for no person can
be added as a plaintiff, without his consent [O I, rule 10(3)]. Tl^fiere a person, who is
a necessary party to a suit, has not been joined as a party, leitve to amend the plaint
may be applied for, and such leave will, as a rule, be granted. Such leave will not be
granted, if on the date of the application, the suit in respect of that person is barred
by limitation." A, B and C are members of a partnership. The partnership is dissolved
on 1 January 1910. A sues B in December 1912 for partnership accounts, but omits
to join C as a defendant. R-contends that C is a necessary party to the suit, and that
the suit cannot be proceeded with, in his absence. Thereupon, A applies in February
1913 for leave to add C as a party. The application must be refused, for in February
1913, the suit as respects C is barred by limitation, and the suit, must be dismissed.
A suit for an account of a dissolved partnership should be brought within three years
from the date of dissolution.''* A could have joined C as a defendant at any time up
to 1 January 1913. He cannot do so after that date. It is highly damaging to omit to
join parties to a suit, particularly if they are necessary parties thereto.
5.7.1 Effect of Non-joinder of a Necessary Party
If a necessary party is not joined, its absence shall be fatal to the suit and it will
be liable to be dismissed. Its defect cannot be cured in any manner. The decree passed
in absence of a necessary party will be nullity" or null and void, being violative of
principles of natural justice. In the case of necessary parties, the courts cannot decide
tlie suit at all in their absence.'" Even in a case where a necessary party is not joined,
the court cannot straight away dismiss the suit and opportunity must be given to the
plaintiff to amend the plaint by adding parties necessary for effective adjudication.'^
If the plaintiff does not do so, even after being required to add a necessary party, the
suit shall be dismissed." The plaintiff will not be allowed to rectify the error in an

50. Kasturi v lyyamperumal, AIR 2005 SC 2813:(2005)6 SCC 733.

51. Thomson Press (India) Ltd v Nanak Builders &Investors Pvt Ltd, 2013(5)SCC 397:AIR 2013 SC 2389.
52. Indian Contract Act, 1872, section 45.
53. Limitation Act, 1963, section 21.
54. Limitation Act, 1963, Article 5.
55. Khetrabasi Biswal VAjaya Kumar Bansal,(2QM) \ ^CC ?>\7.
56. Profiilla Chorone v Satya Chorone, AIR 1979 SC 1682.
57. AIR 1979 Tri 80.
58. Naha Kumar v Radha Shyam, AIR 1931 PC 229.
 68 Mtdlii Tkc Key to Indian Practice ^
appeal Irom the decree in a suit, where there was a case of non-joinder of necessary
parly and where objection was taken in the suit.^'
The question whether any person is a necessary party has to be answered in the
background of facts and circumstances of each case. There is no hard and fast rule to
answer this question. No guidance is available from the Code as to the persons who
oug.hr to have been joined in a suit, but the underlying principle from the decided
case.s shov/s that those petsons are considered necessary parties, without whom no
effective decree can be past ;d at all,'" and-who are directly and legally interested in
the dispute involved"'. A person is not a necessary party, if an effective decree can be
granted in its absence or who is not directly interested in the issues but only indirectly
affected. "If a special statute makes a person a necessary party to the proceedings and
also provides that non-joinder thereof will result in dismissal of the petition, the court
cannot use the curative powers of O I, rule 10 as to avoid the consequences of non
joinder of such party.""^
In certain cases, there are enacted rules to determine necessity of a party, for example,
O XXXI provides that in a suit against a trust, all trustees ought to be joined as
defendants. Here, it will not be necessary to consider whether effective decree can be
passed in absence of all the trustees, because rules require that all the trustees must be
joined. Therefore, where there are statutory provisions regulating the constitution of
the suit and parties to be joined, the answer is provided by statute itself and all such
parties ought to be joined, unless provision is construed to be directory.
5.7.2 Effect of Non-joinder of a Proper Party
The consequences of omission to join a proper party are not the same as in the
case of a necessary party. If a proper party is not joined, the suit will not fail, but the
court will decide the suit as it stands and its outcome shall not bind the party. The
court shall decide the matters in controversy on the basis of rights and liabilities of
parties actually before it but the court cannot determine rights or liabilities or parties
in their absence and, therefore, its decree, as a general rule, shall not bind persons who
were not parties before it.
5-7.2.1 Who is a Proper Parlyf
A person whose presence may be necessary in order to enable the court to adjudicate
effectively and completely all questions involved in the suit, is a proper party. In cases of
eviction on the ground of sub-letting or unauthorized transfer, sub-tenant or transferees
are proper parties if not necessary parties."" The presence of such a party is a matter
of convenience for the court. It will depend upon the facts and circumstances of each
case. It is a matter of discretion and the court will decide whether presence of a party
is so necessary or not.

59 Kanakarathanammul v Logananatha, AIR 1965 SC 271. ; 2004(3) ALT 16(SC)

60. Kasturi v lyyamperumal, AIR 2005 SC 2813:2005(60) ALR 487.
61. HBL Ltd V VOL (2001)7 AD Del 1060.
62. Mohan Raj v Surender Kumar, AIR 1969 SC 677.
63. AbdulKareem V Hashim, 2010 (3) KIT 667:2010 (2) Ren CR 647(DB).
 Chapter 5—Parties and Cause ofAction 69

In Razia Begum v Sahebzadi Anwar Begum,^ the Supreme Court considered the
power of court to add parties and observed as under:
Rule 10(2) gives the court "a wide discretion to meet every case of defect of
parties, and is not affected by the inaction of the plaintiff to bring the necessary
parties on record."
A necessary party is one without whom no order can be made effectively. A
proper party is one in whose absence an effective order can be made but whose
presence is necessary for a complete and final decision on the question involved
in the proceeding.
The addition of parties is a question of judicial discretion, which has to be exercised
in view of all the facts and circumstances of a particular case.''^
The power of the court is not restricted to cases where either party makes an
application for addition of parties. It can he exercised suo motu by the court if it appears
that there is a necessity to join any person as necessary or proper party. In a suit for
specific performance, a stranger to the contract is not a proper party.^''

64. Razia. Begum v Sahebzadi Anwar Begum^ AIR 1958 SC 886 ; [1959]1 SCR 1111.
65- Ramesh H Kimdanmal V Municipal Corp ofGreater Bombay,(1992) 2 SCO 524 :[1992]2 SCR 1.
66. RasiklalvNatwarlal,MK\975.G\:i:] 178a:(1975) \6 GLK5?>?>\ Panne Khushali vjeevanlal, MK\97GUV
148. See the Code of Civil Procedure, 1908, O I, O II, rules 3, 4, 5; O VI, rules 17, 18.
 CHAPTER 6

STEPS IN A SUIT
SYNOPSIS
6.1 Institution of a Suit [Order IV, 6.4.1.1 Set-off 86
Rule 2] 70 6.4.1.2 Counterclaim 88
6.2 Summons to Defendant 6ai.2 Written Statement in Suit
[Order V] 76 for Specific Performance 90
6.2.1 What Constitutes a 6ai.3 Non-Compliance with Order
Summons? 77 for Written Statement 90
6.2.2 Service of Summons 78 6.4.4 Signing and Verification of
6.2.3 Personal or Direct Service 78 Pleadings Under Order VI,
6.2.4 Mode of Personal Service 80 Rules 14 and 15 91
6.2.5 Substituted Service 81 6.5 Amendment of Pleading and
6.2.5.1 First Mode , 81 Particulars 92
6.2.5.2 Second Mode 82 6.5.1 Application of Order VI,
6.3 Inspection of Documents Referred Rule 17 to other
to in the Plaint [Order XI, Proceedings 95
Rule 15] 83 6.5.2 Scandalous Allegations
6.4 Written Statement [Order VIII] 83 in Pleadings 95
6.4.1 Set-off and.Coimter Claim 86 6.5.3 Particidars 96

6.1 Institution of a Suit [Order IV, Rule 2]-

Every suit is to be instituted by presenting a plaint to the court or to such officer as
it appoints in that behalf(O TV, rule 2). The plaint must be presented in duplicate, and
must comply with the general rides as to pleadings' and with the provisions of the Code
dealing with the plaints,^ to the extent they are applicable. Unless these requirements are
fulfilled, the plaint cannot be deemed to have been duly instituted. Usu^y, the plaint
must be presented on a working day and during office hours, however, a judge may
accept a plaint at his residence, even after the office hours. The day of institution of
proceedings shall be the day of filing of claim, in accordance with the procedure pres
cribed, before the authority empowered to receive it, and not the day when the court
takes up the plaint for consideration, and applies its mind to the merits of the matter.'
A plaint may be presented personally by the plaintiff or by a person duly authorised
by him or by his pleader. As per the provisions of Order III Rule 4, once the counsel
gets power of attorney/authorization by his client to appear in a matter, he gets a right
to represent his client in the Court and conduct the case. '' Presentation by a person
who had no power of attorney is a mere irregularity. Similarly, omissions to sign and
verify a plaint are mistakes which can be rectified subsequently.' Further, where the

1. Code of Civil Procedure, 1908, O VI.

2. Ibid,OV\\.
3. Secretary to the Government ofOrissa v Sarbeswar Rout, AIR 1989 SC 2259:(1989)4 SCC 578.
4. YSleebachen v Superintending Engineer, WRO/PWD 2015 (1) RCR (Civil) 89:(2015) 5 SCC 747.
5. BalMukund Prasad Gupta v Mathura Prasad, AIR 2002 All 363:(2002)ILR 2 All 586.

70
 chapter 6-—Steps in a Suit 71

plaint filed is not accompanied by supporting affidavit as required by the provisions

of O VI, there would be no due institution of the plaint. The defect can be removed
by filing the affidavit. However, the rectification would not relate back to the when,
in view of deeming clause, there would be no valid institution of the suit.^
Further, the plaintiff must enter in a list, all the documents on which he relies in
the suit and which are in his possession or power and produce the list in court, at
the time of presentation of the plaint. At the same time, the plaintiff must deliver the
documents and a copy of the documents to be filed with the plaint.^
Where the plaintiff relies on a document which is not in his possession and power,
he must state in whose possession or power it is, wherever possible.® A document
which ought to be produced in the court by the plaintiff at the time of presentation
of the plaint, or to be entered in the list and annexed with the plaint, but which is
not produced or entered accordingly will not be received in evidence on his behalf at
the hearing of the suit without the leave of the court.' However, these provisions are
not applicable to documents produced for the examination of plaintiffs wimesses or
handed over to a witness to refresh his memory."
Where the plaint is admitted and the court orders for service of summons on the
defendant(s) which has to be in the manner as provided under O V of the Code, it
will direct the plaintiff to present as many copies of the plaint alongwith copies of all
documents on which plaintiff relies as there are defendant(s), within seven days of the
order along with requisite court fee for the service of summons on the defendant(s),"
as non-compliance of O VII rule 9 will result in rejection of plaint.
The court, in which a plaint is presented, may accept the plaint, or reject the plaint,
or it may return it. to the plaintiff.
The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action;
(b) where the suit appears to be barred by the law of limitations;
(c) where the relief claimed is undervalued, and the valuation is not corrected
by the plaintiff within the time fixed by the court;
(d) where the relief claimed is properly valued, but the plaint is written upon
paper which is insufficiently stamped, and the requisite stamp-paper is not
supplied by the plaintiff within the time fixed by the court;
(e) where the plaint is not presented in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9, i.e., with
the procedure on to admission of plaints."

6. Bhakti Hari Nayak v Vidyawati Gupta, AIR 2005 Cal 145 :2005 (2) CHN 575.
7. Code of Civil Procedure, 1908 (as substituted by the Amendment Act of 1999), O Vlll, ttde 14(1).
8. Ibid,(as substituted by the Amendment Act, 1999 w.e.f. 11-7-2002 which is the same as O Vll, rule 15
earlier), O Vll, rule 14(2).
9. Ibid,(as substituted by the Amendment Act, 2002 w.e.f. 1-7-2002), O Vll, rule 14(3).
10. Ibid,(as substituted by the Amendment Act, 1999 w.e.f. 1 -7-2002), O VII, rule 14(4).
11. Ibid,(as substituted by the Amendment Act,2002 w.e.f. 1-7-2002), O Vll, rule 9.
12. Code of Civil Procedure, 1908,(as amended by the Amendment Act, 2002 w.e.f. 1-7-2002 under which
clause 1 (e) and (f) are inserted), O Vll, rule 11.
72 Midla The Key to Indian Practice

Different clauses in O VTI, rule 11 provided in relation to rejection of plaint should

not be mixed up. In a given case, an application for rejection of the plaint may be
filed on more than one ground and a clear finding to that effect must be arrived at.'^
A plaintiff, whose plaint is rejected may appeal from the order rejecting the plaint
(section 96), or he may present a fresh plaint(O VII, rule 13), but it is no use presenting
a fresh plaint where the original plaint is rejected on ground (b). The proper course in
such a case is to appeal from the order. The order falls within the definition of "decree"
(section 2(2)) and is appealable. The appeal was liable to be rejected where trial court
has considered matters which were outside the purview of the plaint, to hold that the
suit is barred by law.'"'
The provision contained in O VII, rule 11 is mandatory and the court has no
discretion to reject the plaint once contingencies specified in the Code occur. However,
before rejecting the plaint, opportunity should be given to the plaintiff to remove the
ground of objection wherever it is possible to do so. Suppose the plaintiff makes an
application for amendment of plaint which seeks to remove the objection on account
of which the plaint was liable to be rejected, such amendment should be considered
before rejecting the plaint.
A plaint is liable to be rejected, if it does not disclose a cause of action. However,
in order to reject a plaint on this ground, it is only the substance of the plaint and
not its form, that has to be looked into.
In T Arivendandam v TV Satyapal,^'' Krishna Iyer J observed as under:
If on a meaningful—nor formal—reading of the plaint it is manifesdy vexatious and
meritless in the sense of not disclosing a clear right to sue, the trial court should exercise
its power under O. VII, R II, CPC...
A distinction lies between "there is no cause of action" and "the plaint does not
disclose a cause of action . In the former case, the plaint can be rejected even without
issuing a summons to the defendant, whereas in the latter, the court, after considering
the entire material on record shall come to such a conclusion.'^
If, after examination of oral and documentary evidence adduced by the party, the
court comes to the conclusion that there is no cause of action, it is quite different than
a finding that the plaint itself does not disclose a cause of action. In the former case,
the suit has to be dismissed, while in the latter, the plaint is liable to be rejected.'^
It is settled law that for the purpose of disposal of an application for rejection of
plaint under O VII, rule 7(d) of the Code, the court must treat all the averments
made in the plaint to be true and if it appears that even if the statements so made are
treated to be true, the suit is barred by any law for the time being in force, the court
can reject the plaint.'^ An application for rejection of the plaint has to be decided by
the court on the basis of averments in the plaint and filing of written statement by

13. Kamala v KTEshwaraSA,(2008) 12 SCC 661 (668): 2008 (7) Scale 436.
14. Hamtnappa v Chikkannaiah, 2009 (1) Kar LJ 269 (273)(DB).
15. TArivendandam v TVSatyapal, AIR 1977 SC 2421 ; (1977)4 SCC 467.
16. Reptacos Brett Co Ltd v Ganesh Property, AIR 1998 SC 3085 : 1998 Supp (1) SCR 485; State ofOrissa v
Klockner & Co, AIR 1996 SC 2140:(1996) 8 SCC 377.
17. Jagannath v Chandrawati, AIR 1970 All 309(FB):(1969) 39 AWR 720.
18. GauriShankarDasvKCDasPvtLtd,2Ql\,MKCCni\ (Cal-DB).
 Chapter G—Steps in a Suit 73

contesting defendant is not necessary." The court would take the allegations contained
in the plaint as correct and would not look into the allegations made in the written
statement.^" Power under Order VII, Rule 11 of Civil Procedure Code can be exercised
at any stage of the suit either before registering the plaint or after the issuance of
summons to the defendants or at any time before the conclusion of the trial.. The
averments in the written statement are immaterial and it is the duty of the Court to
scrutinize the averments/pleas in the plaint. In other words, what needs to be looked
into in deciding such an application are the averments in the plaint. At that stage, the
pleas talcen by the defendant in the written statement are wholly irrelevant and the
matter is to be decided only on the plaint averments... If clever drafting has created
the illusion of a cause of action it should be nipped in the bud at the first hearing by
examining the parties under Order X, C.P.C.^' Where plaint is rejected for want of
jurisdiction, averments made in plaint are germane; pleas taken by defendant in written
statement would be wholly irrelevant at that stage.^^ WTien the plaint read,as a whole
does not disclose material facts giving rise to a cause of action, it may be rejected in
terms of O Vll, rule 11 However, disputed questions cannot be decided at the time
of considering application under O VII, rule 11.^'^ The power under O VII, rule 11
can be exercised at any stage of the suit, before registering the plaint or after issuing
summons to the defendant at any time before the conclusion of trial.^^ Application by
a party is not necessary.^"'
O VII, rule 11(d) provides for rejection of plaint if it is barred by any law. Such
an embargo in the maintainability of the suit must be apparent from the averments
made in the plaint. This rule of the Code being one of the exceptions must be stricdy
construed.^^ In Minakshi Sundaram Chettiar v Venkatachalam Chettiar}^ the Supreme
Court observed as under:

If on the materials available before it, the court is satisfied that the value of relief as
estimated by the plaintiff in a suit for accounts is undervalued, the plaint is liable to
be rejected under Order 7, R. 11(b)...The plaintiff cannot arbitrarily, and deliberately
undervalue the relief.

If the suit is instituted against Government, without addressing the statutory notice
under section 80, the plaint is liable to be rejected.^' However, if the plaintiff pleads
a waiver of notice, he must be given an opportunity to establish waiver. In view of
privileges enjoyed by members of Parliament, suit for damages for defamatory statements
made in Parliament is not maintainable, and is liable to rejected.^"

19. Saleem Bhai v State ofMaharashtra, AIR 2003 SC 759 : (2003) 1 SCC 557, see also N Ravindran v V
Ramachandran, Mad 136 (138): 2011 (3) CHN 416.
20. Exphar SA v Eupharma Laboratories Ltd, AIR 2004 SC 1682:(2004) 3 SCC 688.
21. Church ofChrist Charitable Lnist &Educational Charitable Society v Ponniamman Educational Trust, 2012
(8) SCC 706: 2012(3) RCR (Civil) 811.
22. Wipro Ltd V OCA India Pvt Ltd, MKim&U-aA 165(DB): 2008 (3) CTC 724.
23. Church ofNorth India v Lavajibhai Ratanjibhai, AIR 2005 SC 2544: 2005 (7) Scale 75.
24. Popat and Kotceha Property v State Bank ofIndia,(2005)7 SCC 510: 2005 (61) ALR 457.
25. Saleem Bhai v State ofMaharashtra, AIR 2003 SC 759;(2003) 1 SCC 557.
26. VithalbaiPvt Ltd V Union Bank ofIndia, AIR 2005 SC 1891 :(2005) 4 SCC 315.
27. Vishnu Dutt Sharma v Daya Sapra,(2009) 13 SCC 729 (736) ; 2009 (8) Scale 698.
28. Minakshi Sundaram Chettiar v Venkatachalam Chettiar, AIR 1979 SC 989:(1980) 1 SCC 616.
29. Ebrahim Mohammadbhai v State, AIR 1975 Bom 17.
30. TKJain vNSReddy, AIR 1971 Del 86: AIR 1970 SC 1573.
74 Mulla The Key to Indian Practice

If on examination of the plaint, it clearly appears that the suit is barred by limitation,
the plaint is liable to be rejected. A suit challenging a gift deed 21 years after its
execution that it was invalid is barred by limitation and liable for rejection.Where
the suit filed earlier was at the stage of recording of evidence and the application
under O VII, rule 11 of the Code is filed to delay the proceedings of the suit, the
application under O VII, rule 11 of the Code would be rejected.^^ The rejection of
plaint at a belated stage after the filing of written statement, framing of issues and
cross-examination is not approved.^' Limitation would not commence unless there has
been clear and unequivocal threat to rights claimed by the plaintiff.^'' In an action for
share in the property claimed to be held in joint ownership, the institution of section
145 CrPC proceedings and obtaining order of attachment alone could be the starting
point of limitation and not the endre period when one co-owner claimed to be in
possession to warrant rejection of plaint.^^ Similarly, a suit filed within two days when
they came to know about a sale deed purported to have been executed by the plaintiffs
and that it was a forgery is not barred by limitation by reference to the date of alleged
execution to the date of institution of suit. In a case of allegation of forgery, the cause
of action will arise only on the date of knowledge of the forgery and not on the date
of alleged execution which itself was denied as false.^®
At what stage can the rejection of plaint take place?
Rejection of the plaint on ground that the suit is barred by a law. A bar contained
in U.P. Zamindari Abolition Act excluding the jurisdiction of civil court from declaring
khatedari rights and vesting it in revenue court is good ground for rejection.^^ The
question can be raised at any time by defendant. Adjudication in respect of that question
would depend upon the facts and circumstances of each case. For deciding that question,
only averments made in the plaint are relevant.^® The grounds maintained in O VII,
rule 11 are not exhaustive. Those are not the only grounds upon which the plaint
can be rejected. The court has inherent powers to reject the plaint on the ground
other than those mentioned in O VII, rule II, if there is a failure to comply with the
mandatory legal requirements®' or where a reading the allegations in the plaint reveals
that the same is abuse of the process of law."" The fact that the plaintiffs were put
in possession of the property agreed to be sold on the date of agreement itself would
not make any difference with regard to the limitation of filing the suit for specific
performance.^'However, plaint can be rejected in part, i.e., any particular portion of

31. Raghwendra Sharan Singh v Ram Prasanna Singh (Dead) by LRs Civil Appeal No. 2960 of 2019 (Arising
out ofSLP (C) No. 20068 of2013) decided On: 13-3-2019.
32. DwarikaPrasadvRameshwarDayal,(2010) 13 SCO 569(572): 2010 (2) Andh LD 79 (SC).
33. RamPrakash Gupta v Rajiv Kr Gupta,(2007) 10 SCO 59:(2007) 10 SCR 520.
34. CNatrajan vAshim Bai, AIR 2008 SC 383(DB):(2005)7 SCC 5101 :(2004) 1 SCC 271, relied on. .
35. Gheivarchand v Mahendra Singh.(2018) 10 SCC 588: 2018 SCC(SC) 1582.
36. Chhotanben v KiritbhaiJalkmshnabhai Thakkar. AIR 2018(SC)2447: 2018 (5) Andh LD 29 : 2018 (5)
ALL MR 946:2018(128) ALR 719:2018(4) Bom CR 293: 126(2018) CLT 346: 2018 (4) CTC 206
: 2018 GLH (3) 338 :(2018)3 GLR 2308 : 2018 (3)JLJR 199: 2018 (2) JKJ 10 (SC), 2018-3-LW 118
: 2019 (2) Mad LJ 17:(2018) 5 Mad LJ 588 : 2018 (II) Ori LR 188:2018 (3) Pai lJR 234: 2018 140
RD 418 :2018 (5) Scale 472:(2018)6 SCC 422:2018 (4) SCJ 517.
37. Pyarda!v Shubhendra PUania 2019 (2) Scale 492 :(2019) 3 SCC 692.
38. Om Aggarwal v Haryana PinancinI Cmp,(2015)4 SCC 371: AIR 2015 SC 1288.
39. Raghunath Prusti v Sauddin Khan, AIR 1958 Ori 111 : 24 (1958) CLT 28.
40. ITCLtd V Debt Recovery Tribunal, AIR 1998 SC 634 :(1998)2 SCC 70.
41. Fatehji & Co V LM Nagpal,2Vi\')(2) RCR (Civil) 999: AIR 2015 SC2301.
 chapter 6-—Steps in a Suit 75

the plaint cannot be rejected'®^ though it can be rejected against one or some of the
defendants. The plaint can be rejected as a whole if it does not disclose the cause of
action. A part of it cannot be rejected.'^'
Rejection of the plaint under O VII, Rule 11 of the CPC is a drastic power conferred
in the court to terminate a civil action at the threshold. The conditions precedent to
the exetcise of power under Order VII Rule 11, therefore, are stringent... It is the
averments in the plaint that has to be read as a whole to find out whether it discloses
a cause of action or whether the suit is barred under any law.^^
For instance, plaint signed by a person not so authorised by the plaintiff and the
defect, not cured within the time granted by the court; or where the plaint does not
disclose a clear right to sue.
The rejection of a plaint on any of the grounds stated in O VII, rule 11 of the
Code, does not preclude the plaintiff from presenting a fresh plaint, in respect of the
same cause of action.^'
Where the plaint is presented to a wrong court, it "shall" be returned to be presented
to the proper court; and this may be done at any stage of the suit (O VII, rule 10).
Where at any stage of the suit, the court finds that it has no jurisdiction, whether
territorial, pecuniary or as to subject matter, the court is bound to return the plaint to be
presented to the proper court where it ought to have been instituted. The requirement
under the rule is mandatory, but such an order cannot be made till court has come to
a definite finding that it has no jurisdiction, and the suit should have been instituted in
another court. A court has no power to order return of a plaint simply because it would
be more advantageous for the defendant. The plaint can be returned, provided absence of
jurisdiction is disclosed in the plaint itself. If the court comes to such a conclusion after
contest and after evidence is adduced, the suit should be dismissed.'^® The plaint can be
returned for presentation before the proper court having jurisdiction even at the stage of
final hearing of the suit.'^^ However, where by an amendment in the suit, the valuation of
the suit is increased so as ro go beyond the pecuniary jurisdiction of the court, it would
not be a case of suit wrongly instituted attracting provisions of O VII, rule 10.^' Where
an application for rejection/return of the plaint is filed only to delay the progress of suit,
dismissal of such application with costs would not require any interference."^'
Where plaint is returned under this rule, the second suit instituted in proper court
cannot be regarded as continuation of first suit for the purpose of limitation.^" The
time taken in the first suit may be excluded in the computation of period of limitation
in view of section 14 of Limitation Act, 1963. When the plaint is filed in a proper

42. Sopan Sukhdo'Sable v Assistant Charity Commissioner, AIR 2004 SC 1801 ;(2004)3 SCC 137.
43. Roop Lt-l V Nachhattar Singh,(1982)3 SCC 487:AIR 1982 SC 1559.
44. PVCiiru RajReddy Rep by CPA Laxmi Narayan Reddy v PNeeradha Reddy, 2015 (2) RCR (Civil) 43:AIR
2013 SC 2485.
45. Code of Civil Procedure, 1908, O VII, rule 13. However, ir mar' not apply to ca.ses where the plaint has
been rejected on the ground enumerated in O VII, rule 11 (d) of the Code.
46. (1979) All LJ 1086.
47. Madlmvi Das v Tata Engineering,(2005) 3 CHN 252(DB)(Cal).
48. MKModi V KKModi, AIR 2005 Del 219.
49. Laxman Pd v Prodigy Electronics Ltd,(2008) 1 SCC 618 :(2008) 1 SCC 618.
50. Amar v UOI,AIR 1973 SC 313:(1973) 1 SCC 115.
 Mulla The Key to Indian Practice

court, after getting it back from the wrong court, it cannot be said to be a continuation
of the suit and the suit must be deemed to commence when a plaint is filed in the
proper court.''
^ order passed under O VII, rule 10 for return of plaint is an appealable order
under O XLIII, rule 1(a). An order for return of plaint can be passed at the appellate
or revisional stage even after the decree is passed. If suit filed had been in the court
which had no jurisdiction, the plaint could be returned to plaintiff even if trial was
concluded and decree passed.'^
Once tfte court has decided to return the plaint, it must intimate its decision to
the plaintiff before actually passing any order. The plaintiff may, thereafter, make an
application that the court may specify the other court where and on what date the
plaint has to be presented, and may issue notice to the plaintiff and the defendant. If
such an application is made, the court shall fix the date for appearance in a specified
court and issue notices to the plaintiff, and the defendant of such date. In such a case,
the necessity of issuance ofsummons when the second suit is brought is obviated unless
die court otherwise directs and the said notice is deemed to be a summons. However,
it must be remembered that if the plaintiff makes such an application, he loses the
right to prefer appeal from order under O XLIII, rule 1(a).
The suit which is instituted on the re-presentation of the plaint in the competent
court after its return by the court which lacked jurisdiction, is a freshly instituted suit
within the provisions of the Code. Such a suit will be tried de novo in accordance with
the provisions of the Code."
If there is no ground for rejecting or returning the plaint, the court should admit
the plaint. After the plaint is admitted, it is numbered and registered as a suit (O IV
rule 2). '

6.2 Summons to Defendant [Order V]

The next step after the suit has been duly instituted and admitted is that a summons
may be issued to the defendant to appear and answer the claim, and the defendant may
be seiwed in the manner prescribed, not beyond 30 days from the date of institution
of the suit.^^

The day for the appearance of the defendants may be fixed with reference to the
current business of the court, the place of residence of the defendant(s) and the time
necessary for service of summons, and must be fixed in such a manner as to allow the
defendant sufficient time to enable him to appear and answer."
The surnmons must also order the defendant to produce all documents or copies
thereofin his possession or power upon which he intends to rely in support of his case.^^

51. Harshad ChimanlalModi V DLF UniversalLtd,(2006) 1 SCC 364 ; AIR 2006 SC 646.
52. 0N6CLtd V Modern Construction and Co, ALKlOlA (SC)83:(2014) 1 SCC 648.
53. VogelMedia International vjasti Shah, 115 (2004) DLT 679 ; AIR 2005(NOC)292 (Del).
54. Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 11-7- 2002), section 27
55. Ibid, O V, rule 6.
56. Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 11-7-2002), O V, rule 7
 chapter C—Steps in a Suit 77

Every summons must be accompanied by a copy of the plaint.''^ When a summon is

sent calling upon a defendant to appear in the court and fde his written statement, it
is obligatory on the part of the court to send a copy of the plaint and other documents
appended thereto, in terms of O V, rule 2. In the absence of a copy of plaint and other
documents, the defendant would be unable to fde his written statement.^®
What is a summons? There is no definition provided in the Code. In substance,
summons means a notice that suit or legal proceedings have been filed and a person,
to whom it has heen issued, is required to remain present for specified purpose.

6.2.1 What Constitutes a Summons?

(a) The name of the court in which the suit or legal proceedings are instituted.
(b) The purpose for which the presence of defendant is required.
(c) The date and time of appearance.
(d) The seal and signature of the judge or officer appointed in this behalf.
It must be accompanied by a copy of plaint, or where permitted, a concise statement
thereof. In summary suits under O XXJCVII, it must also be accompanied by copies
of documents produced along with a copy of the plaint.
There can be several purposes for which summons can be issued to the defendant.
It may be for appearance and answer, or for settlement of issues or final disposal of
the suit, etc.
The following is the form of summons for the final disposal of the suit:
[In the Court ]
Suit No 500 of 1914

AB of Bombay Hindu Inhabitant, a coal broker. Plaintiff residing in the Fort CD

of Bombay Hindu Inhabitant, a cloth merchant Defendant residing outside the Fort
To

CD of Bombay Hindu Inhabitant,

Whereas AB of Bombay Hindu Inhabitant has instituted a suit against you for
specific performance of an agreement to sell certain immovable property described in
the said agreement, you are hereby summoned to appear in this court in person or
by a pleader duly instructed, and able to answer all material questions relating to the
suit, or who shall be accompanied by some person able to answer all such questions
on the day of 20 at o'clock in the noon,
to answer the claim, and as the day frxed for your appearance is appointed for final
disposal of the suit, you must be prepared to produce on that day all the witnesses
upon whose evidence and all the documents upon which you intend to rely in support
of your defence.
Take notice that in default of your appearance on the day before mentioned, the
suit will be heard and determined in your absence..

57. (as substituted by the Amendment Act, 1999w.e.f. 1-7-2002), O V.

58. Nahar Enterprises v HyderabadAllwyn Ltd,(2007)9 SCC 466(467,468): 2007(67) ALR 462.
 7® Mulla The Key to Indian Practice

Given under my hand and the seal of the court, this day of 20...
Judge
Notice—1. Should you apprehend your witnesses will not attend on their own accord,
you can have a summons from this court to compel the attendance of any witness,
and the production of any document that you have a right to call upon the witness,
and the production of any document that you have a right to call upon the witness to
produce, on applying to the court and on depositing the necessary expenses.
2. In case of a money claim, if you admit the claim, you should pay the morey
into court together with the costs of the suit, to avoid execution of the decree which
may be against your person or property or both.
A summons may be issued to the ■defendant(s) to appear and answer the daim to
the plaintiff, and to ftle the written statement of his defence, within 30 day- from the
date of service of summons.'' Where a defendant(s) appears on the date of 'presentation
of the plaint and admits the claim of the plaintiff, summons may not be issued to
such a defendant(s).''° Where the defendantfs) fails to file written stateirent within the
specified period of 30 days from the date of service of summons, he may be allowed
to file the same on some other day not beyond the period of 90 days from the date
of service of summons, for reasons to be recorded in writing.'^'
As a measure to give effect to the constitutional directive for legd aid under
Article 39A, formats of summons of many courts make reference to the facilities for
availing of legal aid with the legal services authority at state expense, if the parameters
for free legal assistance are met. After the amendment Act 2002 introducing tools of
ADR under section 89 CPC, information is also provided, particularly in matrimonial
disputes that parties can avail of court annexed mediation services by approaching the
Member Secretary of the Legal Services Authority concerned.
6.2.2 Service of Summons
Tiie next step after the issue of summons is to serve it on the defendant. The service
of summons of the defendant is quite necessary and is of prime importance, as it is
intended to inform him of the institution of a suit against him, and to extend him
an opportunity to resist the suit. Keeping in pace with the technological and other
developments, O V of the Code, dealing with service of summons, has been thoroughly
amended by the Amendment Act, 2002 incorporating all these technological and other
developments to be used for service of summons.
6.2.3 Personal or Direct Service
In ordinary cases the summons should be served either upon the defendant in person
or on his agent empowered to accept service on his behalf. Where the defendant or his
agent so authorised is residing within the jurisdiction of the court, in which the suit
has been ■ instituted, the summons may be delivered or sent to the proper officer or to
a courier service approved by the court.

59. Code of Civil Procedure (as substituted by the Amendment Act. 2002 w.e.f. 1-7-2002) O V, rule 1(1).
60. Ibid (as substituted by the Amendment Act, 2002 w.e.f. 1-7-2002), first proviso to O V, rule 1(1).
61. (as substituted by the Amendment Act. 2002 w.e.f. l-7-2002h second proviso to O V, rule 1(1).
62. Code of Civil Procedure, 1908 (as substituted by the Amendment Act, 2002 w.e.f. 1-7-2002) O V
rule 9(1).
 Chapter (y—Steps in a Suit 79

The service of summons, addressed to the defendant or his agent, so authorised may
be made by delivering or transmitting a copy of the summons by;
(i) registered post acknowledgement due;
(ii) speed post;
(ill) a courier service approved hy the high court;®^
(iv) any other means of transmission of documents, including,
(a) fax message;
(b) electronic mail service, etc.
However, all the expenses for the service of summons to the defendant have to be
borne by the plaintiff^
Where the defendant does not reside within the jurisdiction of the court in which the
suit has been instituted and the court directs the service of summons on the defendant
in any of the aforesaid modes, except by registered post acknowledgement due, the
provisions relating to the service of summons, where the defendant resides within the
jurisdiction of another court, shall not apply.
The summons shall be taken to have been duly served, if the article containing
summons is received back with the endorsement of the postal employee or the person
authorised by the courier service, that the defendant or his agent has refused to accept
the delivery of the article^® as it is presumptive evidence of due service, especially when
the address given on the registered letter is admitted to be correct.®^ Where the summons
was properly addressed, pre-paid and duly sent by registered post acknowledgement due,
the summons shall be taken to be duly served, even if acknowledgement has been lost,
mislaid or not received back by the court, within 30 days from the date of issue of
summons.Where summons or notice by registered post is sent at the given and Correct
address, there is a presumption of due service.® The filing of the registered cover of the
notice is not enough and the contents of the nature have also to be brought on record.^"
In addition to the service of summons on the defendant by the court, the court
may permit the plaintiff to effect service of summons for appearance on the defendant
and deliver the summons to the plaintiff, if the plaintiff moves an application for the
same.^' However, where the summons so delivered to the plaintiff is returned back as
refused by the defendant, then the service of summons shall he effected by the court.^^
Though there can be no objection in giving an opportunity to the plaintiff to serve
summons on the defendant, there should be sufficient safeguards to avoid false report
of service of summons. High Courts should make appropriate rules or issue practice

63. Ibid(as inserted by the Amendment Act, 2002 w.e.f. 1-7-2002), O V, rule 9(3).
64. Ibid(as inserted by the Amendment Act, 2002 w.e.f. 1-7-2002), proviso to O V, rule 9(3).
65. Ibid(as inserted by the Amendment Act, 2002 w.e.f. 1-7-2002), O V, rule 9(4).
66. Code of Civil Procedure, 1908 (as inserted by the Amendment Act,2002 w.e.f. 1-7-2002), OV,rule 9(5).
67. KMajeed v Pappa, AIR 2004 Mad 457(DB).
68. Ibid.
69. PT Thomas v ThomasJob, AIR 2005 SC 3575 : 2006(61) ALR 150.
70. TVijendradas v MSubramanian,(2007) 8 SCC 751 :AIR 2008 SC 563.
71. Code of Civil Procedure, 1908 (as inserted by the Amendment Act, 2002 w.e.f. 11-7-2002), O V,
rule 9A(2).
72. Ibid (as inserted by the Amendment Act, 2002 w.e.f. 11-7-2002), O V, rule 9A(4).
80 Mulla The Key to Indian Practice

directions to ensure that the provisions are properly implemented and there is no abuse
of process of law7^
(i) Where there are two or more defendants, service should be made on each
defendant.
(ii) Where the defendant cannot be found and has no agent empowered to
accept service, service may be made on any adult member of the family.
Before summons can be served upon adult member of the family of the
defendant, certain conditions are required to be satisfied:
(a) At the time of service, the defendant is absent.
(b) There is no likelihood of his being found at residence, within a
reasonable time.
(c) There is no authorised agent to receive summons, on behalf of the
defendant.
(iii) In a suit relating to any business against a non-resident defendant, service
may be made on the manager.
(iv) In a suit for immovable property, within the meaning of section 16, service
may be made on any agent of the defendant in charge of the property, if
the service cannot be made on the defendant in person, and the defendant
has no agent empowered to accept the service. (O V, rules 9 to 15).
6.2.4 Mode of Personal Service
In each of the five cases mentioned above,^^ service is to be made by delivering or
tendering a copy of the summons to the person proposed to be served, and obtaining
his signature to an acknowledgement of service endorsed on the original summons. If
the acknowledgement is signed, the summons is deemed to be served, and the service
is then called personal or direct service as distinguished form substituted service. After
the service is made, the serving officer should endorse the time and mode of service
on the original summons, the names and addresses of the person, if any, identifying
the person served and witnessing the delivery or tender of summons and then return
it, to the court from which it was issued (O V, rules 10-16 and 18). The serving
officer is usually called a bailiff and his duty is to serve the process of the court, i.e.,
summons, warrants, etc.

A natural question may arise as to what shall be done, if a person sought to be

served refuses to accept such service. He may try to evade service for motives. There are
also a category of recalcitrant persons who wish to accomplish their objects by avoiding
service of summons. Service of summons is a vital step in any legal proceedings and
if there is any lethargy in effecting service, the very purpose of filing the suit may
sometimes be frustrated. In a suit for specific performance, you require an interim
injunction restraining the defendant from transferring the subject matter of the suit
because otherwise the suit may become infructuous. Having obtained an injunction, if
one fails to serve the summons and thereby to notify the defendant that the injunction
has been granted, the defendant may conveniently transfer the subject matter and plead

73. Salem Advocate Bar Association (II) v UOI,(2005)6 SCC 344:AIR 2005 SC 3353.
74. Note the amendment of O V, rule 15 in the year 1976.
75- See under the heading "Personal or Direct Service" above.
 Chapter &—Steps in a Suit 81

that he was not aware of the injunction at all. If such plea is believed, the suit for
specific performance becomes meaningless and infructuous. Utmost attention has to
be given to ensure service of summons.

6.2.5 Substituted Service

The word "substituted" suggests that it is a substitute or alternative mode of service
of summons. Where it is not possible to serve summons in an ordinary way, it must be
served by one of the alternative modes provided in the Code, i.e., by affixing a copy
of it in some conspicuous place in the court house, and also on some conspicuous
part of the house, in which the defendant is known to have last resided, or carried on
business, or personally works for gain, or by publication in the newspaper or by the
beat of drum, etc. However, certain conditions must be satisfied, before summons can
be served by subsrituted service of summons and one may notice the difference between
the two. Substituted service cannot be claimed as a matter of right. When ordered,
substituted service is as effectual as personal service. It, however, must be remembered
that this is not a regular mode of service and hence, it should not normally be allowed
and can be effected only as a last resort.^®
The substituted service can be resorted to where the defendant refuses to accept the
summons and sign the acknowledgment, and where he successfully avoids service of
summons. One may notice the difference between the two. Without satisfaction, court
cannot direct substituted service. However, in a petition for divorce by mutual consent
where husband was absent on the first date of hearing and summons revised were not
properly served, court though not satisfied that husband was evading service, directed
substituted service of summons.^^

6.2.5.1 First Mode

This is provided under O V, rule 17. It can be resorted to when the defendant or
his authorised agent or any of the aforesaid persons upon whom the Code permits
service of summons, refuses to sign acknowledgement. It can also be restored to when
following conditions are satisfied:
(i) The service officer cannot find the defendant after using all due and
reasonable diligence.
(ii) The defendant is absent from his residence and there is no
likelihood of his return within a reasonable time.
(iii) There is no authorised agent or any other person upon whom the Code
permits service of summons.
In Cohen v Nursing Das^^ the expression "due and reasonable diligence to find out
the defendant" has been explained:
It is true that you may go to man's house and not find him, but that is not attempting
to find him. You should go to his house, make enquiries and, if necessary, follow him.
You should make enquiries to find out when he is likely to be at home, and go to the

76. Basant Singh v Roman Catholic Mission,(2002) 7 SCC 531: AIR 2002 SC 3557.
77. Smruti Pahariya v Sanjay Pahariya, AIR 2009 SC 2840 : (2009) 108 Cut LT 205 (SC) : (2009)
13 SCC 338.
78. Cohen v Nursing Doss,(1892) 19 Cal 201.
82 Mulla The Key to Indian Practice

house at a time when he can be found. Before service like this can be effected it must
be shown that proper efforts have been made to find'out when and where the defendant
is likely to be foimd—not as seems to be done in this country, to go to his house in a
perfunctory way, and because he has not been found there, to affix a copy of the summons
on the outer door of his house.

If the defendant refuses to sign the acknowledgement or if the aforesaid three

conditions are satisfied, summons can be served in the following manner:
(i) A copy of summons shall be affixed on the outer door or other conspicuous part
of the house where the defendant ordinarily resides or carries business or personally
works for gain.
(ii) The original summons shall be returned with the report of the serving officer. Such
report must state the circumstances undet which a copy was afftxed and the name
and address of a person who has identified the house.
The matter does not end here. Affixing of copy and submission of report are not
enough. After report is submitted, the court shall examine the serving officer, either
on affidavit or otherwise and declare that summons is duly served. If the court is not
satisfied with affidavit or oral examination, it may make such other inquiries as may be
deemed fit. Still if the court is not satisfied, it may call for fresh service of summons.
In this mode, the serving officer affixes a copy of summons on his own decision and
later on the court declares that there is a valid or proper service of summons. The
declaration of due service under this rule should be express.^' The failure to file affidavit
by process server renders the service not one in accordance with law.^°
6.2.5.2 Second Mode

What does one do if defendant successfully avoids service of summons?

The first mode is available only when defendant refuses to sign acknowledgement.
However, if the defendant keeps out of way so as not to be available at all, and there
are no other persons on whom service can be made under the Code, what can be
done in such cases? The second mode provides an answer. It says that if defendant is
keeping out of the way to avoid service of summons, or if summons cannot be served
in ordinary way for any other reason, summons can be served in following manner:
(i) A copy ofsummons may be afftxed on a conspicuous part of the court house.
(ii) A copy of summons may also be affixed on conspicuous part of house
where defendant is last known to have resided or carried on business or
personally worked for gain.
(iii) It may be ordered to be served in such other manner as the court may
direct. If necessary, the court may direct that a public advertisement may
be issued in a local newspaper having circulation in the area where the
defendant is last known to have resided or carried on business or personally
worked for gain. Where summons were served by newspaper publication,
the plea that person sought to be served does not read such newspaper is
not open.®'

79. Parasurama Odayar vAppadurai Chetty, AIR 1970 Mad 271 :(1970) ILR 2 Mad 393.
80. AIR 1970 SC 2538.
81. SunilPoddarv Union Bank ofIndia, SC 1006:(2008)2SCO 326.
 chapter 6-—Steps in a Suit 83

In the second mode, the court's order has to be obtained first and service is made
later on.

Here lies the distinction between two modes of substituted service. In the former,
service precedes the order, while in the latter, service follows the order. It is as effective
as a personal service. However, as substituted service is not a regular mode of service,
it should not be resorted to, unless the serving officer had been unable to find the
defendant despite all due and reasonable diligence.®^ Substimted service could be ordered
only if the defendants were getting out of the way for the purpose of avoiding service
or for any other reason, summons could not be served in the ordinary way. No such
evidence adduced in the instant case. Effort was made only once when the defendants
were not available at their house. Consequently, there was no ground for ordering
substituted service by way of munadi. Accordingly, ex parte proceedings ordered against
the defendants on the basis of substituted service by way of munadi, cannot be said
to be proper.^' Thus, you will find elaborate rules for service of summons. It shows
anxiety of draftsmen to ensure observance of principles of natural justice before any
matter is adjudicated. Every possible effort ought to be made to make defendant aware
of legal proceedings made against him.
The court has a very wide discretion in directing service of summons in such other
manner as it thinks fit. It may also direct that, summons may be served merely by
affixing a copy at the last known address of the defendant only that such service is
valid even if no copy is affixed on the conspicuous part of the court house.®^
6.3 Inspection of Documents referred to in the Plaint [Order XI, Ride 15]
After the writ of summons is served on the defendant, he has to file a written
statement of his defence, if so ordered by the court. Before a written statement is drafted
on behalf of the defendant, one must refer to a copy of the plaint very careftilly. If any
documents are referred to in the plaint, of which the defendant has not got copies, a
notice should be given to the plaintiff or his pleader to produce them for inspection
(O XI, rule 15) and the same should be inspected. The discovery, inspection and
production of documents have been discussed in detail in the next lecture.
6.4 Written Statement [Order \TII]
After inspection of the said documents has been done, the defendant's written
statement should be drafted. In drafting the written statement, it is necessary to refer
-to the.rules contained in O VI and O Vlll. Order VI is general in nature, which deals
with pleadings, i.e., plaints and written statements. Order Vll deals exclusively with
plaints, and O Vlll with written statements. Every party in a case has a right to file a
written statement. "Even if, the allegation was that fraud was played while obtaining
the signature..., then too, no permission to file a fresh written statement coidd be
given to him as there cannot be two written statements on record."®' This should be
in accordance with natural justice.®'' A written statement may be described as a reply

82. Bondla Ramalingam v Shiv Barasiddiah, AIR 1979.AP 180.

83. Lilu Ram vMangtu Ram,2012(5) RCR (Civil) 18.
84. AIR 1969 SC 1552.
85. Sameermal Runwal V Prakashchandra Kothari, 2011 (2) RCR (Civil) 512:AIR2010MP 178.
86. Sumtibai v Paras Finance Co,(2007) 10 SCC 82(85):AIR 2007 SC 3166.
 84 Mulla The Key to Indian Practice

of the defendant to the plaint of the plaintiff, and is pleading of the defendant, and
may contain newer facts in favour of the defendant. The defendant has to present the
written statement within 30 days of the date of service of summons on him.®® However,
the court may allow the defendant to file the written statement on any other day,
beyond the initial period of 30 days, which shall not be beyond 90 days from the date
of service of summons, after recording reasons for such permission.®' The provisions
contained in O VIII, rule 1 spell out a disability on the defendant, and do not impose
an embargo on the power of the court to extend the time and as such are directory,
and not mandatory. The court in its discretion has the power to allow the defendant
to file a written statement even after the expiry of the period of 90 days. However,
the time can be extended only in exceptionally hard cases, and not so frequently and
routinely so as to nullify the period fixed by O VIII, rule 1. Delay in filing written
statement can be condoned in exceptionally hard cases. Proviso to O VIII, rule 1 is
directory and use of the word "shall" not by itself is sufficient to indicate its mandatory
nature.'® There is no provision in the Code for cancelling or setting aside a written
statement already filed, and substituting it with a fresh one."
A prayer seeking time beyond 90 days ought to be made in writing.'^ This limitation
of 90 days for filing the written statement does not apply to suits filed on the original
side of the high court.'^ The Supreme Court was called upon to consider whether
the time-limit of 90 days prescribed by the provision to rule 1 of O VIII for filing
written statement by the defendant was mandatory or merely directory. Considering
the provision of the Code as originally enacted, and to ensure speedy disposal of cases
but without sacrificing fairness of trial and principles of natural justice inbuilt in all
procedural laws, the court held the provision is directory and permissive and not
mandatory and imperative All the rules of procedure are the hand maid of justice.
The process of justice may be speeded up and hurried but the fairness which is a
basic element of justice cannot be permitted to be buried.'^ At the same time, this
court has also mandated that time can be extended only in exceptionally hard cases.
Onus upon the defendant is of a higher degree to plead and satisfactorily demonstrate
a valid reason for not filing the written statement within 30 days. A delay of 5-year
period was considered by the Supreme Court could not be lightly taken and set aside
the order of the High Court condoning delay,'' Beyond 120 days from the date of
service of summons, all things considered, the defeiidant shall forfeit the right to file -
the written statement and the court shall not allow the written statement to be taken
on record.'"
X

87. Food Corf ofIndia v Yadav Engineer and Contractor, AIR 1982 SC 1302.
88. Code of Civil Procedure (as substituted by the Amendment Act, 2002 w.e.f. 11-7-2002), O VIII, rule 1.
89. Ibid, proviso to O VIII, rule 8(1).
90. Zolba V Keshao, AIR 2008 SC 2099 :(2008) 11 SCC 769.
91. Thakorbhai HPatel v Shree DGA SamajSeva Sangh, AIR 2009 Guj 155 : 2009 GLH (3) 250.
92. Salem Advocate Bar Association v UOI, AIR 2005 SC 3353 ; AIR 2005 SC 3353; Kailash v Nankhu, AIR
2005 SC 2441 :(2005)4 SCC 480; Shaikh Salim HajiAbdulKhayumsab v Kumar(2006) 1 SCC 46:AIR
2006 SC 396.
93. Iridium India Telecom Ltd v Motorola Inc, AIR 2005 SC 514 :(2005) 2 SCC 145.
94. Kailash v Nankhu,(2005)4 SCC 480: AIR 2005 SC 2441.
95. Atcom Technologies Ltd v YA Chunawala & Co,(2018)6 SCC 639 ; 2018 SCC SC 499.
96. SCG Contracts India Pvt Ltd v KS Chamankar Infrastructure Pvt Ltd Civil Appeal No. 1638 of 2019
(Arising out of Special Leave Petition (C) No. 103/2019) decided on 12 February, 2019.
 Chapter 6-—Steps in a Suit 85

The defendant in his written statement apart from replying to the plaint, may
also bring his claim for set-off or counter claim, and where the defendant relies on
documents for his defence, claim for set-off or counter claim, and those documents
are within his possession or power, he must file the same along with a copy and list
of documents, at the time of presentation of the written statement.'^
In case, the document(s) relied upon by the defendant is not within his possession or
power, he must state in whose possession or power the same is, wherever possible,'® and
a document, which ought to be produced by the defendant, is not produced, may not
be received in evidence on his behalf without the leave of the court." The documents
produced for the cross examination of the plaintiff's witness or handed over to a witness
for refreshing his memory are exempted from the operation of the aforesaid provision.""
It is of utmost importance to remember that as a general rule every allegation of fact
in the plaint,'if not denied specifically or by necessary implication, shall be taken to be
admitted by the defendant. It is also no use denying genetally the grounds of liability
alleged in the plaint; every allegation of fact, the truth of which the defendant does not
admit, must be dealt with specifically. "Where a defendant denies an allegation of fact
in the plaint, he must not do so evasively, but answer the point of substance. Thus, if
it is alleged .in the plaint that the defendant received a certain sum of money it is not
sufficient to deny that he received that sum or any part thereof, or else set out how
much he received. In case of evasive denial and non-specific denial by defendant of
the plaintiff's case, there can be constructive admission."" Lastly, the defendant must
raise by his pleading, all matters which show the suit not to be maintainable, as, for
instance, limitation, or want of jurisdiction, and also all matters, which show that the
transaction, in respect of which the suit is brought is void or voidable, as for instance,
fraud, misrepresentation, or facts showing illegality"'^ (O VII, rules 2-5).
If such matters are not raised and do not find their place in the written statement,
the defendant shall not be entitled, as of right, to,rely upon them."® The defendant
shall also not be entitled to raise a case different from the one pleaded in written
statement,"'^ unless there is an amendment.
As regards facts alleged in the plaint, begin the paragraphs of the written statements
as far as possible in one or other of the following forms:
(a) the defendant denies that ... (set out facts);
(b) the defendant does not admit that ... (set out facts); [this form is to be
used where the defendant is not in a position either to admit or to deny
the facts];
(c) the defendant admits that ... (set out facts), but says that ... (set out
facts);

97. Code of Civil Procedure, 1908 (as inserted by the Amendment Act, 1999), O VIII, rule 1A(1).
98. Ibid, O VIII,"rule lA (2).
99. Ibid(as substituted by the Amendment Act, 2002), O VIII, rule lA (3).
100. Ibid(as inserted by the Amendment Act, 1999), O VIII, rule lA (4).
101. Dinesh KSinghania V Calcutta Stock Exchange Association Ltd,(2005)2 CHN 601 (DB)(Cal).
102. Indian Contract Act, 1872, sections 19, 19A, 23, 24 and 25.
103. Mlilanmutti v State ofKamataka, AIR 1979.SC 1705 ;(1979) 4 SCC 723; KGoundan v MSP Rajesh,
AIR 1966 SC 1861.
104. Attar Singh v State of Uttar Pradesh, AIR 1959 SC 564 ; 1959 Supp (1)SCC 928.
86 Mulla The Key to Indian Practice

(d) the defendant submits that the court has no jurisdiction to hear the suit
on the ground that ... (set for the grounds) or that the suit is barred by
article... of the schedule to the Limitation Act, 1963. [This form is to he
used when the defence raises a point of law (O VIII, rule 2)].
There is a distinction between denial of a fact and non-admission of a fact. In the
former, there is a positive assertion that the alleged fact does not exist, while in the
latter, there is merely absence of knowledge, on the part of the defendant regarding such
alleged fact. If facts, not specifically denied are deemed to be admitted, their proof is
dispensed with and the court shall proceed on the footing that such facts are true, but
this is discretionary. Where the defendant does not deny the averments in the plaint, the
same would be deemed to have been admitted under rule 5 of O VIII of the Code.""
In construing pleadings, the proviso [to O VIII, rule 5(1)], must be involved only in
exceptional circumstances, so as to prevent obvious injustice to a party, or to relieve
him from the results of an accidental slip or omission, and not to help a pa^, who
deliberately made vague denials, and thereafter sought to rely upon them for non-suiting
the plaintiff.'"® The court may require any such fact to be provided otherwise than by
admission where it appears to the court that if such facts are accepted as proved, it will
lead to unjust result and where such admission occurs on account of circumstances which
do mot inspire confidence, it may be proper to insist on independent proof of such facts.
6.4.1 Set-off and Coimter Claim
Suppose if one has to prepare a written statement for the defendant who has to
recover from or adjust certain sum of money against the claims of the plaintiff, how
will one advise him? In all cases where the defendant does not merely defend, but seeks
to claim or recover money or other relief against the plaintiff, there are provisions for
set-off and counter claim which are applicable in different sets of circumstances. There
are certain prescribed conditions and circumstances under which one is allowed to claim
-set-off or counter claim or both. We shall examine them one by one.
6.4.1.1 Set-off
"Set-off" means a claim set against another.'"^ It is a reciprocal acquittal of debts
between two persons.'""
WTiere a written statement contains a claim for set-off, it has the same effect as
plaint in a cross-suit, and the rules relating to written statement by a defendant apply
to a written statement in answer to claim of set-off.'"'

Following conditions must be satisfied before the defendant can plead set-off against
the plaintiff:
(i) The suit of the plaintiff must he for recovery of money.
(ii) The claim of the defendant against the plaintiff must be for an ascertained
sum of money.

105. SethRamdayalJatvLaxmiPrasad,(2009) 11 SCC 545 (554): AIR 2009 SC 172.

106. Balraj Taneja v SunilMadan, AIR 1999 SC 3381 :(1999) 8 SCC 396.
107. Chamber's Twenty-first Century Dictionary 1997. p 1283; Concise Oxford Dictionary, 1995, p 1268.
108. Pramada PrasadMukherjee v Sagarmal, AIR 1954 Pat 439.
109. Code of Civil Procedure, 1908, O VIII, rule 6(3).
 Chapter 6-—Steps in a Suit 87

(iii) Such sum must be legally recoverable.

(iv) Such sum must not exceed pecuniary limits of jurisdiction of the court.
(v) Both the parties must fill in the same character in set-off as well as suit
claim.
(vi) Claim of set-off must be recoverable by the defendant or by all the
defendants, if more than one.
(vii) It must be recoverable from"the plaintiff or from all the plaintiffs, if more
than one.

No set-off can be pleaded where suit is not for recovery of money. If the amount
is unascertained, set-off cannot be pleaded, e.g., unliquidated damages. If the claim of
set-off is time-barred, it is not legally recoverable and hence, set-off cannot be allowed.
If it exceeds pecuniary limits, the proper course is to file a separate suit. However, it
is open to the defendant to abandon or relinquish a portion of the claim in excess of
pecuniary limits and continue set-off within such limits in order to avoid bringing a
separate suit. If the parties do not fill the same character, set-off is not permissible.
Suppose A is appointed as executor of a Will and B filed a suit to claim a legacy
under the Will against A, hence A cannot set-off his personal claim against B, because
in the suit claim and claim for set-off, A does not file in the same character. In the
former, he is sued as an executor, while he seeks set-off in his personal capacity.
In case of set-off claimed by the defendant, the plaintiff is entitled to file a written
statement. The court can pass a decree in favour of the defendant and against the
plaintiff. The effect of set-off, if allowed, is either to negative or to reduce the claim
of the plaintiff against the defendant. The court fees are payable in respect of set-off.
Some decisions laying down that no court fees are payable in respect of legal set-off
do not lay down good law.
The provisions dealing with legal set-off and their application is limited to ascertained
sums of money only. However, the provision regarding set-off is not exhaustive and
courts have allowed the defendant to claim set-off in certain circumstances de hors the
Code. Such set-off is called equitable set-off. Even unascertained sums of money are
also allowed to be claimed by way of set-off on condition that such claim arises out
of the same transaction out of which the suit claim has arisen. The brief points of
distinction between legal and equitable set-off are as follows:

Legal set-off Equitable set-off

(1) It must be for an ascertained sum (1) It may even be for unascertained sum of
of money. money

(2) It can be claimed as a matter of (2) It is a matter of discretion of the court.

right if conditions are fulfilled.
(3) It is not necessary that claim for
set-off should have arisen out of
the same transaction.
(3) The claim for equitable set-off must have
arisen out of the same transaction and it
cannot be allowed if the cross-demand relates
to a different transaction.""

no. UOIvKCTdrBros(CoalSales)Ltd, MK20QASC302A : 2004(3) Scale 203.

 Mulla The Key to Indian Practice

1 Legal set-off Equitable set-off |

(4) The amount must be legally (4) The amotmt may not be legally recoverable
recoverable. and may be allowed if there exists a fiduciary
relationship between the parties.
(5) Court fee is payable. (5) Court fee is payable.

(6) However, even in case of equitable set-off, if at the date of the written statement,
the defendant's claim is time barred, though not barred at the date of the suit, it will
be allowed only to the extent of the plaintiff's claim, and no decree will be passed for
the balance found due to him. But not in the case of legal set-off.
6.4.1.2 Counter Claim

A counter claim is a claim made by a defendant in a suit against a plaintiff.'" It is

a claim, independent of and separable from the plaintiff's claim, enforceable by cross-
action. A counter claim is treated as a cross-suit which must contain all the features
of a regular suit,"^ and must be filed within the limitation period."^
The provisions for counter claim were added in 1976. The relief under O VIII,
rule 6A of the Code is discretionary remedy but discretion is to be exercised in judicious
manner."'' The object was to ensure trial of all issues between the parties at one time as
far as possible. It makes a complete departure from provision for set-off, and makes it
easier for the defendant to make a counter claim. The restrictions attached to set-off are
not applicable to the counter claim. The right to make a counter claim is in addition
to the right to claim set-off and both are not inconsistent or mutually exclusive. In
fact, when the claim against the plaintiff exceeds the claim against the defendant, it is
a combination of both, set-off, to the extent of plaintiff's claim, and counter claim for
the excess over and above such claim. The counter-claim is required to be treated as an
independent suit in view of provisions of O YIII, rule 6A of the Code."'
The defendant can set up any right or claim arising out of a cause of action accruing
against the plaintiff. However, there is one important condition. Such cause of action
must have arisen before the written statement is submitted or before the time to submit
written statement has expired. It is immaterial whether it has accrued before or after the
institution of the suit, but no counter claim can be made to set up any right or claim
arising out of cause of action which has accrued after the time for filing the written
statement or delivering the defence has expired.'"" Once the right to file the written
statement has been lost or the time limited for delivery of defence has expired, then
neither the written statement can be filed as a right, nor can counter claim be allowed
to be raised."^ It is not necessary that counter claim must be submitted alongwith the
written statement. It can be submitted later on, provided cause of action has already

111. Stroud'sJudicial Dictionary^ vol 5, 1986, p 2388.

112. Sugesan & Co Pvt Ltd v Hindustan Machine Tools Ltd, AIR 2004 AP 428 : 2004 (3) Ajidh LD 57.
113. Rakesh Ahuja v Jagan Nath,(2004) 138 PLR249: 2004 (3) RCR (Civil) 707.
114. BollepandaPPoonachavKMMadapa.(2008) 13 SCC 179 (183-85); AIR 2008 SC 2003.
115. Gayathri Women Welfare Association V Gowramma,(2011)2 SCC 330 (339): AIR 2011 SC785.
116. Santilata Tripathy v Kmshna Priya Pani, 99 (2005) Cut LT 542: 2005 (Supp) Ori LR 354.
117. Ramesh Chand v AnilPanjwani, SC 2508 :(2003)7 SCC 350.
 Chapter 6-—Steps in a Suit 89

accrued earlier as aforesaid."*' However, the defendant would not be permitted to file a
counter claim after closure of plaintiff's evidence.'" Court cannot allow the application
for amending the written statement by adding a counter claim after the conclusion
of the trial.'^"In a suit for dissolution of firm, counter-claim was limited to damages
caused to the defendant till filing of Written Statement. After 13 years amendment
of Written Statement and enhancement of counter-claim were sought. The court held
that the claim was barred by limitation.'^'
The counter claim musr not exceed the pecuniary limits of the jurisdiction of the court.
It has the same effect as that of a cross-suit, and the rules relating to a written statement
by a defendant apply to a written statement filed in an answer to a counter claim.
However, the court is empowered to exclude such counter claim upon application
of the plaintiff to that effect, if it appears that right or claim ser-up ought not to be
disposed of by way of counter claim and independent suit should have been filed.
The counter claim may be excluded, but if it is allowed, it has the effect as if it is
a cross suit. The plaintiff is entitled to file a written statement to such claim. Even
if the suit is withdrawn, dismissed or stayed, counter claim will stand independently
and continue. It is just as if the defendant has become plaintiff and the plaintiff has
become defendant. In a suit for recovery of money the appellant was found to be not
entitled to claim any amount. A counter-claim was lodged by the respondent, which
was allowed by an order of special court. The view expressed by the special court did
not call for any interference in the opinion of the apex court.'"
The distinction between set-off and counter claim is given below:

Set-oflF Counter Claim

(1) The claim against the plaintiff must
be for money-ascertained in case of
legal set-off, ascertained also in case of
equitable set-off.
(2) The suit must be for recovery of money.
(1) The claim against the plaintiff need not
be monetary claim alone. Any other
right or claim can also be made.
(2) It is not necessary that suit must be for
recovery of money. Even in other suits
without monetary relief, counter claim
can be made,

(3) In equitable set-off, claim must arise
out of same transaction.
(4) The amount must be recoverable on the
date of institution of the suit.
(3) It is not necessary that counter claim
must arise out of the same transaction.
It is' an independent action.
(4) The,amount mtist be recoverable on the
date of filing of the written-statement.

A set off or counter claim cannot travel beyond the scope and limit of the suit with
which it is concerned. It cannot bring out something which is completely foreign to

118, Mahendra Kumar v State ofUttar Pradesh, AIR 1987 SC 1395,

119 N Eashwara Prasad v Margadersht Chit Fund Ltd, 2004 AIHC ,2134 (AP); Southeni Anctllartes Pvt Ltd v
SA Foundanes Pvt Ltd, AIR 2003 Mad 416:(2003) 2 M.ad LJ 56,
120 Mum Singh v Laxmi Rai, 2015(1) RCR (Civil) 158 ■ 2014 (2) RCR (Rent) 506
121, South Koiikan Distilleries v Prabhakar Gajanan Naik, AIR 2009 SC 1177 (1181): 2009 (1) UC 11
122, Naresh Kr Aggarwala v Canhank Financial Services Ltd, AIR 2010 SC 2722 : (2010) 6 SCC 178,
90 Mulla The Key to Indian Practice

the suit. Both the original suit as well as the counter claim has to be well within the
pecuniary limits of jurisdiction of the court in which the suit has been instituted. A
counter claim exceeding the pecuniary limits of jurisdiction of the court would be
returned.

A counter claim can be entertained against the plaintiff and not against a co-
defendant.'^' Normally, it is the defendant who may file a counter claim against the
plaintiff. But incidentally and along with the plaintiff, the defendant may also claim
relief against the co-defendants in the suit. But a counterclaim against co-defendants is
not maintainable.'^^ Court fee is payable on the counter claim. A counter claim cannot
be entertained when made for the first time at the appellate stage.
These are valuable provisions to avoid multiplicity of legal proceedings. They enable
parties to agitate their grievances against each other before one forum. They seek to
ensure consistent and coherent trial of suit. They are salutary provisions at a time when
litigations take a long time and deter persons from seeking redressal of grievances.
6.4.2 Written Statement in Suit for Specific Performance
The following is the form of a written statement in answer to the plaintiff's suit
for specific performance:
[Title of suit as in Plaint]
The written statement of the defendant ahovenamed
1. The defendant admits the agreement referred to in paral of the plaint,
but says that the sale has to be completed and the purchase-money was
to be paid on 1 May 2014, and that it was agreed that time should be of
the essence of the agreement.
2. The plaintiff was not ready with the purchase-money on the aforesaid day.
On the 5th day of May 2014, the contract was rescinded by agreement
between the plaintiff and the defendant.
3. The defendant denies that the plaintiff tendered Rs 2,00,000 to him as
alleged in para 2 of the plaint or at all [O VIII, rulfe 4].
4. The defendant submits that the plaintiff is not entitled to any of the reliefs
claimed by him, and that the suit should be dismissed with costs.
5. The defendant will rely on the documents a list whereof is hereto annexed
and marked as No. 1.
[Signature and verification clause as in Plaint]

6.4.3 Non-Compliance with Order for Written Statement

Where a party, from whom a written statement is required by the court, fails to
present it within the time fixed by the court, the court may pronounce judgment against
him, or it may grant him further time, or make such other order as it thinks fit. It
123. Udhavdas Tyagi v Srimurti Radha Krishna Mandir,(2001)4 SCC 443(MP).
124. Rohit Singh v State ofBihar,(2006) 12 SCC 734: AIR 2007 SC 10.
125. Southern AnciHaries Ltd V SA Foundries Rvt Ltd, Mad4l6:(2003)2 Mad LJ 56.
126. chapter 3.
127. 5^^ Indian Contract Act, 1872, section 55.
 Chapter 6-—Steps in a Suit 91

may be added that there are certain courts, in which no written statement is required
at all. Where the written statement is not filed, the civil court has the jurisdiction to
proceed under O VIII, rule 10 of CPC and pronounce the judgment - However, the
orders are not required to be in mechanical manner. Further, in spite of admission,
court may still require the plaintiff to prove the fact which has been admitted by the
defendant. The court, at no stage, can act blindly or mechanically.'^^
Considering the relevant provisions of O VIII and O XX "of CPC, the Hon'ble
Supreme Court in Balraj Taneja v Sunil Madan™ stated:
The court has not to act blindly upon the admission of a fact made by the defendant
. in his written statement nor should the court proceed to pass judgment blindly merely
because a written statement has not been filed by the defendant traversing the facts set
out by the plaintiff in the plaint filed in the court.
In a case, especially where the defendant has not filed a written statement, the court
should be a little cautious in proceeding under Order 8, RulelO CPC. Before passing
the judgment against the defendant it must see to it that even if the facts set out in the
plaint are treated to have been admitted, a judgment could possibly be passed in favour
of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a
matter of the court's satisfaction and, therefore, only on being satisfied that there is no fact,
which needs to be proved on account of deemed admission; the court can conveniently
pass a judgment against the defendant who has not filed the written statement. But if
the plaint itself indicates that there are disputed questions of fact involved in the case
regarding which two different versions are set out in the plaint itself, it would not be safe
for the court to pass a judgment without requiring the plaintiff to prove the facts so as
to settle the factual controversy.

6.4.4 Signing and Verification of Pleadings Under Order VI, Rides 14 and 15
Order VI rule 14 CPC provides that every pleading shall be signed by the party
and his pleader (if any) except in a case where a party, by reason of absence or for
other good cause is unable to sign the pleading, it may be signed by any person duly
authorized by him to sign the same or to sue or defend on his behalf. The object of
requiring every pleading to be signed by the party is to prevent, as far as possible,
dispute.? as to whether a suit was instituted widi the plaintiff's knowledge and authority.
"In cases where the plaint contains allegations of fraud which must be false or true to
the knowledge of the plaintiff, the defendant can insist on the plaintiff himself sienine:
the plaint."'^"
Rule 15 pertains to verification of pleadings at the foot by the party or by one of
the parties pleading or by some other person proved to the satisfaction of the court to
be acquainted with the facts of the case.
"A defect in signature or verification is only an irregularity in procedure and will not
be a ground for rejecting the plaint."'^' "Where the allegations in an election petition
under the Representation of the People Act purport to be based on information and
the verification clause refers to the entirety of the petition and the attached schedule.

128. Gujarat Maritime Board v GCPandya, 2015 (3) RCR (Civil) 94: 2015 (111) ALR 234.
129. Balraj Tatieja v SunilMadan,(1999) 8 SCC 396 ; AIR 1999 SC 3381.
130. The Rajah ofTomkuhi v Braidwood. (1887) 9 All. 505.
131. Karam Singh v Ram Rachhpal Singh, AIR 1977 HP 28.
92 Mulla The Key to Indian Practice

absence of enumeration of the various paragraphs therein as having been based on

information cannot be considered to be a defect."''^

6.5 Amendment of Pleading and Particulars

The pleadings must contain all the material facts in a concised form for substantiating
its case set up by a party so that the opposite party is not taken by surprise. "It is also
equally well settled that no party should be permitted to travel beyond its pleadings
and that all necessary and material facts should be pleaded by the party in support of
the case set up by it. The object and purpose of pleadings is to enable the adversary
party to know the case it has to meet. In order to have a fair trial it is imperative that
the party should state the essential material facts so that the other party may not be
taken by surprise"."^ After the written statement is filed, one has to consider, where
one is acting for a plaintiff, whether the plaint requires any amendment. An application
for leave to amend the pleading may be made at any stage of the proceedings. Such
an application may be made, not only by a plaintiff to amend the plaint, but also by
a defendant to amend the written statement (O VI, rule 17) as has been observed by
the Supreme Court that admission made in the written statement can be explained
through an amendment.
In the leading case of Cropper v Smith, the object underlying amendment of
pleadings has been laid down as follow:
It is a well established principle that the object of courts is to decide the rights,of the
parties, and not to punish them for mistakes they make in the conduct of their cases by
deciding otherwise than in accordance with their rights. Courts do not exist for the sake
of discipline, but for the sake of deciding matters in controversy.
However, no application for amendment will be allowed after the commencement
of trial unless the court is of the opinion that in spite of due diligence, a party could
not have raised the matter before the commencement of the trial. Whether the party
seeking amendment has acted with due diligence depends on the facts and circumstances
of each case.'^^ "Due diligence" means reasonable diligence; it means such diligence as a
prudent man would exercise in the conduct of his own affairs.'^® During the intervening
period of framing of issues and the date frxed for evidence, trial does not commence and
to an application for amendment of pleadings, the proviso shall not apply. Preferential
rights can ordinarily be claimed within one year and a plaintiff seeking amendment
after 13 years is not maintainable."' Before the amendments of the year 2002 in the
Code, leave to amend the pleadings could be granted at any stage of the proceedings.

132. Bhikaji Keshao Joshi v BrijlalNandlal Biyani, AIR 1955 SC 610:(1955)2 SCR 428.
133. Ram Sarup Gupta v Bhishun Narain Inter College, AIR 1987 SC 1242 ; (1987)2 SCR 805.
134. SushilKrJain v ManojKumar, AIR 2009 SC 2544 :(2009) 10 SCC 434.
135. Cropper v Smith,(1884) 29 Ch D 700.
136. Code of Civil Procedure, 1908 (as inserred by the Amendment Act, 2002 w.e.f. 1-7-2002), proviso
to O VI, rule 17. The proviso to O VI, rule 17 does not apply to pleadings completed before the
commencement of the Amendment Acts of 1999 and 2002 i.e. before 1 July 2002.
137. HP State Civil Supplies Carp Ltdv Palli Banal Co-op Agri Services Society Ltd, AIR 2003 NOC 551 (HP).
138. Chander Kanta Bansal V Rajinder Singh Anand,(2008) 5 SCC 117 (122):2008 AIR SCW 3225.
139. Ashutosh Chaturvedi v Prano Devi, AIR 2008 SC 2171 : AIR 1975 Pat 336: AIR 1986 Oti 119 :(2004)
3 SCC 392; AIR 1957 SC 357 and 2006(13) Scale 332 telied on.
 chapter &—Steps in a Suit 93

before or after the trial and even at the appellate staged^" After the amendment Act of
2002, the Supreme Court thwarted the attempt of the plaintiffs to even abandon the
suit for after an amendment and impleadment of parties which were sought on the
ground that there had been already a partition in the year 1972, more especially when
the suit had been filed in 1992 on an express plea that there was no partition and the
amendment itself was sought at the time of arguments in 2008.''"
Generally, all amendments would be allowed which are necessary for the purpose of
determining the real question in controversy between the parties to any proceedings or
for correcting any defect or error in any proceedings,'^^ provided it does not substitute
a new cause of action,'^^ and where the injury caused to the opposite party can be
compensated for by costs. However, negligent or careless may have been the first
omission, and however late, the proposed amendment should be allowed, if it can be
made without injustice to the other side. There is no injustice if the other side can
be compensated by costs, but leave to amend will be refused if the amendment would
convert the suit or the defence into another of a different and inconsistent character.
Amendments are allowed to avoid uncalled for multiplicity of litigation. An
amendment which clears confusion in the pleadings,'"'^ brings subsequent facts on
record,'^" would be allowed. However, no amendment would be allowed which amounts
to defeating a legal right accruing to the opposite party on account of lapse of time.
If amendment sought does not require any further evidence or inconsistent evidence,
such type of amendment giving clarification in pleading must be allowed.""'
"The condition which must be satisfied before the amendment can be allowed by
the court is whether such amendment is necessary for the determination of the real
question in controversy. If that condition is not satisfied, the amendment should not
be allowed. On the other hand, if the amendment is necessary to decide the "real
controversy" between the parties, the amendment should be allowed even though the
court may think that the party seeking the amendment will not be able to prove the
amended plea. This is the basic test, which governs the courts unchartered powers of
amendment of pleadings. No amendment should be allowed when it does not satisfy
this cardinal test."'''®

The merits of the averments sought to be incorporated through amendment are not
to be adjudged at the stage of consideration of prayer for amendment.''" In dealing with
a prayer for amendment the courts normally prefer substance to fo. n and technicalities
and the interest of justice is one of the most important considerations. If a party is
entitled to amend its pleadings, the right of the party to amend cannot be defeated
just because a wrong section or a wrong provision has been quoted in the amendment

140. Bakshish Singh v Prithi PalSingh,(1995) Supp 3 SCC 577;Anmdhati Mishra v Sri Ram Chatritra Pandey,
(1994)2 SCC 29 : 1994 3 RRR 146.
141. RevannavAnjamma.MP^lQX')SC 940 : 2019 (3) Scale 412: 2019 (2) SCJ 446.
142. RajKumar v Dipender Kaur,(2005) 9 SCC 304: AIR 2005 SC 1562.
143. Bollepanda P Poonacha V KMMadapa,(2008) 13 SCC 179 (183-185): AIR 2008 SC 2003.
144. Dondapati Narayanan Reddy v Duggi Reddy,(2001) 8 SCC 115 : AIR 2001 SC 3685.
145. Punjab NationalBank v Indian Bank, AIR 2003 SC 2284 :(2003) 3 SCR 836.
146. Prem Bakshi v Dharam Dev, AIR 2002 SC 559:(2002)2 SCC 2.
147. Yakub Ah VRubi,lQl\ (1) RCR (Civil) 129.
148. Nrisingh Prosad Paul V SteelProducts Ltd, NLK 19511 Cal 15.
149. Sampath Kumar vAyyakannu, AIR 2002 SC 3369 :(2002) 7 SCC 559.
94 Mulla The Key to Indian Practice

petition.'^" Even an inartistic description of party made in cause title, such as instead
describing the plaintiff as a company through its director, the original pleading was
by the name of the person describing him as director of the company, the Supreme
Court held that it must have been on account of mistake of the counsel due to his
lack of understanding of law as to how a company which is a juristic person had to
be described and permitted amendment.'^'
A delay in making an application for an amendment may be a ground for doubling
the genuineness of the amendment, but not a good ground for refusing the application.''^
O VI, rule 17 of the Code speaks of amendment of pleadings whereas O VIII, rule 9 of
the Code provides for subsequent pleadings by a defendant. The distinction between the
two provisions is widest. Whereas by reason of the former unless a contrary intention is
expressed by the court, any amendment carried out in the pleadings shall relate back to
the date of filing original thereof, subsequent pleadings stand on different footings.'" It
is the duty of the court to decide as to whether the amendment of Written Statement
after the trial has commenced is necessary to decide the real dispute between the parties.
Only if such a condition is fulfilled the amendment should be allowed. The proviso
to rule 17 of O VI of the Code restricts the power of the court and puts an embargo
on exercise of its jurisdiction.'" Relief sought for by the defendants in a subsequent
petition under O Vt rule 17 Civil Procedure- Code was elaborately dealt with on the
two earlier petitions filed by the defendant-appellants under O VI, rule 16 and O VIII,
rule 9 Civil Procedure Code. Subsequent petition labeling the petition under O VI,
rule 17 Civil Procedure Code is wholly-misconceived and was not entertainable. Filing
of subsequent application for the some relief is an abuse of the process of the court.'"
Petitioner filed application for amendment of written statement on the ground
that he has obtained a licence for setting up a housing colony during pendency of
suit. Application filed after about 4-3/4 years after issuance of licence and after issues
have been framed. No cogent explanation forth coming on record why application
for amendment was not filed before commencement of trial. As per proviso to O VI,
rule 17 of the Code, no application for amendment shall be allowed after trial has
commenced, unless court comes to conclusion that in spite of due diligence party
could not have raised the matter before commencement of trial. Therefore application
cannot legally be allowed.'" However, if the amendment application had been filed
before the commencement of the trial but no orders were passed by the court and
the trial allowed the party to let in evidence also in respect of matters covered in the
amendment application, no prejudice could be caused by allowing the amendment,
although trial had concluded.'"

150. Venture GlobalEngineeringv Satyam Computer Services Ltd, AIR 2010 SC 3371 (3374):(2010)8 SCC 660.
151- Varun Pahwa v Renu Chaudhary, 2019(4) Scale 75 : AIR 2019 SC 1186.
152. Estralla Rubber v Doss Estate,(2001) 8 SCC'97:AIR 2001 SC 3295.
153. PA Jayalakshmi V H Saradha,(2009) 14 SCC 525 :(2009) 11 SCR 131.
154. Vidyabati v Padmalatha, AIR 2009 SC 1433(1436):(2009) 2 SCC 409.
155. S Malla Reddy v Future Builders Co-op Housing Society, 2013(9)SCC 349 : AIR 2013 SC 3693.
156. RPS Associates v Om Parkash @ Hari Singh, 2012(5) RCR (Civil) 109 :(2012) ILR 2 P&H 596.
157. Mohinder Kumar Mehra v Roop Rani Mehra, AIR 2017 SC 5822 : 2018 (1) Andh LD 159 : 2018 (127)
ALR 735 :2018 (1) Andh LT 27 : 2018 (2) CDR 322(SC); 2018 (2) CHN (SC) 21 ; 125 (2018) CLT
758 : 245 (2017) DLT 487: 2018 (167) DRJ 9 : 2018 (1) JLJR 16 : 2018-2-LW 11 : 2018 (I) Ori LR
550 : 2018 (1) Pat LJR 91 :2018 (1) RCR (Civil) 501 : 2018 139 RD 541 : 2017(14) Scale 223 :(2018)
2 SCC 132: 2018 (1) SCJ 450 :(2018)2 WBLR (SC) 390 ; 2018 (1) WLN 59 (SC).
 Chapter 6-—Steps in a Suit 95

A party seeking amendment is required to give cogent reasons than mere inadvertence
for not taking the said plea earlier."^ The principles applicable to the amendment of
the plaint are equally applicable to amendments of the written statement but not with
the same rigour and the courts are more generous in allowing the amendment of the
written statement.

Case law on this subject abounds with instances where courts have taken extremely
liberal views in consideration of grant of amendments. As a general rule, amendments
are allowed unless they cause such injustice to other party which cannot be compensated
in terms,of money or they are malafide or they take away vested rights accrued to other
party. Suppose A has filed a suit for recovery of money against B, and later on seeks to
raise a new claim which is barred on the date of application for amendment, can such
amendment be allowed? Does the court have power to allow such amendment and if
yes, what is the effect? The court undoubtedly has the power to allow such amendment
and if allowed, the amended claim or new claim shall be deemed to have been made
on the date of suit and, therefore, will be saved from being time barred."''' It is a power
which can save a claim by giving, so to speak, retrospective effect as if it was originally
included on the date of institution of the suit. In appropriate cases, the court may
order that the amendment would take effect from the date an application was made
or the amendment would take effect from the date an application was made or the
amendment was allowed and not from the date when the plaint or written statement
was presented."^' Such power would be sparingly exercised and as a general rule, amend
ments which have the effect of taking away vested rights will not be allowed.
Some of the important rules for drafting the client's pleading, i.e., plaint"^^ or written
statement'have already been covered.'^''

6.5.1 Application of Order VI, Rule 17 to other Proceedings

The provisions of rule 17 are equally applicable to other proceedings such as
execution proceedings, insolvency proceedings, arbitration proceedings, election matters,
proceedings under the Land Acquisition Act, claim petitions etc. Even where provisions
of the code are not applicable, courts and tribunals evolve their own procedure in
conformity with the principles of natural justice, equity and good conscience.
6.5.2 Scandalous Allegations in Pleadings
One should not introduce any matter in any pleading which may be unnecessary or
scandalous or which may tend to embarrass or delay the fair trial of the suit. If there
is any such matter in the opponent's pleadings, one may apply to the court to have it
struck out. In a suit to enforce a compromise of a former action, it is embarrassing if
the plaintiff sets out in the plaint the original disputes; such allegations will therefore
be struck out (O VI, rule 16). .

158. Gurdial Singh v RajKumar Aneja, AIR 2002 SC 1003:(2002)2 SCC 445
159. BKNPiUai vPPiUai, AIR 2000 SC 614.
160. Leach drCov Jardine Skimmers, AIR 1957 SC 357.
161. Sampath Kumar vAyyakannu,(2002)7 SCC 559 : AIR 2002 SC 3369.
162. AbdulJabar v State ofjammu and Kashmir, AIR 1957 SC 280 :(1957) SCR 51, 59; Vishwavidyalaya v
Rajkishore, AIR 1977 SC 615 ;(1977) 1 SCC 279.
163. See chapters 3 and 5.
164. See in this chapter, under the heading "Written Statement".
96 Mulla The Key to Indian Practice

In Sathi Vijay Kumar v Tota Singh,^^^ the Supreme Court stated:

It cannot be overlooked that normally, a court cannot direct as to how they should
prepare their pleadings. If the parties have not offended the rules of pleadings by making
averments or raising arguable issues, the court would not order striking out pleadings.
The power to strike out pleadings is extraordinary in nature and must be exercised by
the court sparingly and with extreme care, caution and circumspection.

6.5.3 Particulars
In all cases in which a party relies on any misrepresentation, fraud, breach of trust,
willful default or undue influence, etc; particulars (with dates and items if necessary)
should be stated in the pleading. Thus, it is not sufficient for a party to make general
allegations of fraud in his pleading. He ought to set out the particulars of the alleged
fraud. If no particulars are given, the other party may apply to the court for an order
directing the party pleading to give the particulars. If the particulars given are not
sufficiently specific, the court may order further and better particulars (O VI, rule 4).
It is only when one knows the particulars that one knows the specific case at the
hearing. When acting for a defendant, first get the particulars, and then draft the
written statement.

In Bishundeo Narain v Seogeni the Supreme Court observed:

Now if there is one rule which is better established than any other, it is that in cases of
fraud, undue influence and coercion, the parties pleading it must set forth full particulars
and the case can only be decided on the particulars as laid. There can be no departure
from them in evidence.

The courts have taken a strict view of the requirement to give particulars. If general
averments are made without giving particulars, it is held that such averments are
insufficient even to amount to averments of fraud or other misconduct. In absence of
particulars, the court will not treat the case as containing averments ofsuch nature at all.
No evidence will be allowed to be adduced when particulars are not pleaded. Moreover,
when such particulars are pleaded it is necessary to confine to such particulars only
and the case can be decided on such'particulars. No other evidence will be permitted
to be adduced."'''

165. Sathi Vijay Kumar v Tota Singh,(2006) 13 SCC 353: 2007(5) ALT 9(SC).
166. Bishundeo Narain v Seogeni Rai, AIR 1951 SC 280:(1951) 2 SCR 548.
167. Read the Code of Civil Procedure, 1908, O IV, O V, O VI, O VII, rule 10-11; O VIII and O XI, rule 15.
 CHAPTER 7

DOCUMENTS AND WITNESSES

SYNOPSIS

7.1 Discovery and Inspection 7.2 Notice to Admit Facts or

[Order XI] 97 Documents [Order XII] 105
7.1.1 Interrogatories 98 7.2.1 Admission should be Taken
7.1.1.1 Form of as Whole 106
Interrogatories 100 7.2.2 Conclusiveness of
7.1.1.2 Form of the Affidavit Admission 107
in Answer 100 7.3 Summoning of Witnesses
7.1.2 Affidavit of Documents 100 [Order XVI] 107
7.1.3 Premature Discovery 102 7.4 Production of Documents
7.1.4 Inspection 103 [Order XIII] 109
7.1.5 Non-compliance with Order
for Discovery or Inspection... 104

7.1 Discovery and Inspection [Order XI]

The purpose of discovery, inspection and production of documents is to enable a
party to a suit to obtain necessary information regarding the material facts constituting
the case of the opposite party and to support their own case either directly by obtaining
admissions of the opposite party or indirectly by impeaching the case of the opponent.
There can be a discovery of document for the purposes of securing, as far as possible,
a disclosure of all material documents in the possession or power of the opposite party
and to put an end to unnecessary and protracted inquiry as to the material documents
in the possession or under the control of opposite party.' Grant or refusal of discovery
of documents is at the discretion of the court, which is exercised keeping in mind the
expediency, justness and the relevancy of the documents to the matter in question.^ The
objection as to discovery of any document must be in affidavit in prescribed form,^
with such variations as circumstances may require.^
Every party to a suit is entitled to know the nature of his opponents case, so
that he may know beforehand what case he has to meet at the hearing. He is also
entitled to obtain admissions from his opponent to facilitate the proof of his own case.
However, he is not entitled to know the evidence of his opponent's case or the names
of his witness, for if this were allowed, an unscrupulous party might tamper with his
opponent's witnesses, and might manufacture evidence in contradiction and so shape
his case as to defeat justice. It is different, however, as to documentary evidence. A
party to a suit is entided to know beforehand what documents his opponent has in

1. Remeshwar Narayan Singh v Rikhanath Koeriy AIR 1920 Pat 131 (DB).
2. Sasanagonda v SB Amarkhed, AIR 1992 SC 1163 : 1992 (1) UJ 773 (SC).
3. Code of Civil Procedure, 1908, Form No. 15, Appendix "C", Sch 1.
4. Ibid, O XI, rule 13.

97
98 Mulla The Key to Indian Practice

his possession or power and to inspect them, whether they relate to his own case or
to his opponents case.
It is clear from what has been stated above that A is bound, if B so requires it, to
make discovery of, i.e., to disclose:
(i) all material facts which constitute As case (but no evidentiary facts necessary
to prove his case), and all facts necessary to support Bs case;
(ii) all documents in As possession or power relating to matters in question
in the suit, even if they are against his case.
In case (i), B obtains the information by administering interrogatories to his
opponent. A, which A is bound to answer by affidavit. In case (ii), A is bound to
disclose the documents by affidavit; such affidavit is called the affidavit of documents.
Section 139 of the Code lays down that an affidavit is a statement in writing, made on
oath before an officer of the court authorized to administer oaths. A person making an
affidavit is called a deponent; he deposes to the facts contained in the affidavit. These
two modes of discovery shall be dealt with separately.
7.1.1 Interrogatories
There can be discovery of facts by interrogatories. "Interrogatories" refer to a set of
series of questions drawn up for the purpose of being propounded to a party, witnesses
or other person, having some information of interest in a case,' and if the information
relates to documents in possession of the other party, the disclosure of the documents
is called discovery of documents.
A plaintiff may administer interrogatories to the defendant and a defendant
may administer interrogatories to the plaintiff. There are, however, cases in which
one defendant may administer interrogatories to another defendant, as where the
plaintiffs case is that if one of them is not liable, the other is. Interrogatories can be
administered only by leave of the court. As a general rule no such leave is granted to
a plaintiff until after the .written statement is filed or the time to file it has expired,
and no such leave is granted to the defendant until after he has filed his written
statement. The interrogatories must be in a prescribed form^ with such variations
as circumstances may require.^ The party to whom interrogatories are delivered is
bound to answer them by affidavit to be filed within 10 days after service of th?
interrogatories. The affidavit in answer to interrogatories must be in prescribed form®
with such variations as circumstances may require.' In this context, O XI, rules 1-11
and 22 are relevant and states that if the person finds any of the interrogatories to
be scandalous or irrelevant or not exhibited hona fide for the purposes of the suit,
he may apply to the court within seven days after service thereof to strike them
out on that ground under O XI, rule 7. However, he is not bound to do so; he
may take the objection in the affidavit in answer, and refuse to answer them as is
allowed under O XI, rule 6. They can be objected also on the ground of privilege

5. Black's Law Dictionary, 6th Edn.

6. Code of Civil Procedure, 1908, Sch I, Appendix "C", Form No. 2.
7. Ibid, O XI, rule 4.
8. Code of Civil Procedure, 1908, Sch I, Appendix "C", Form No. 2.
9. Ibid, O XI, rule 9.
 Chapter 7—Documents and Witnesses 99

or that the matter inquired into ate not sufficiently material at that stage or any
other ground. The party interrogating may then, if so advised, apply to the court
for an order requiring the party served to answer the interrogatories not answered by
him. The court will then consider-the propriety of the objection taken by the party
served, and if ir disallows the objection to any interrogatory, it may order the party
served to answer the interrogatory by a further affidavit. Any party may, at the trid
of a suit, use in evidence any one or more of rhe answers of the opposite party to
interrogatories withour putting in the others.
Interrogatories must relate directly to the matters in issue in the suit. The
interrogatories in the nature of a fishing enquiry cannot be allowed. Interrogatories
would not be disallowed merely because the opposite party has filed certain documents
which give answer ro the interrogatories." Interrogatories which do not relate directly
to the matters in issue are deemed to be irrelevant, notwithstanding that they might
be admissible on the oral cross-examination of a witness. Thus, as per section 146 of
the Indian Evidence Act, 1872, questions which are put only to test the credibility
of a person will not be allowed, although of course they may be asked in cross-
examination. At the same time, one must be very cautious as to what interrogatories
should be exhibited to the opposite party. Delivering interrogatories ro the opposite
party gives him an opportunity of shaping his answers in the manner most favourable
to him. The answers as a rule will be framed by his pleader, and that is an advantage
which he does not possess while he is under cross-examination in the witness box.
Therefore, only those interrogatories must be administered, rhe answers to which are
absolutely necessary ro enable one to determine the line of action. The rest must be
left for cross-examinarion.

The power to serve interrogatories would be liberally used whenever it can shorten
litigation and serve the interest of justice, within certain limits and with considerable
care and caution,'^ and shall be refused if scandalous or are abuse of process of the
court. The proper time for considering the question what particular questions the party
interrogated should be compelled to answer, is after the party interrogated has made
his affidavit in answer (O XI, rule 8).
One defendant may administer inrerrogatories to another defendant, provided there is
some right to be adjudicated in the action between them, as the words "opposite party"
in O XI, rule 1 are not restricted solely to the relationship of plaintiff and defendant.
The proceedings referred to in section 141 of the Code include all "miscellaneous
applications" and is not restricted only to original proceedings. The provisions of the
Code are applicable as far as possible to all proceedings and for that purpose application
under O XI, rule 1 cannot be an exception.'^ Since the order granting or rejecting
prayer for interrogatories is neither a "decree" nor an "appealable order", no appeal
lies against it.

10. AFL Developers Pvt Ltd v Veena Trivedi, AIR 2000 Del 354 : 2000 IV AD Delhi 492.
11. Sharda Dhir v Ashok Kumar Makhija, AIR 2003 Del 288 : 99 (2002) DLT 350.
12. P Balan v Central Bank ofIndia, .AIR 2000 Ker 24 : (2001) 103 Comp Cases 746 (Ker).
13. Adarsh Palace Pvt Ltd v Somanath Dwibedi, AIR 2010 (NOG) 490 (DB) : (2009) 108 CLT 74
(77) : 2010 AIHC (NOG) 676 (Ori-DB) : 2009 (Supp.) Ori LR 902.
 100 Mulla The Key to Indian Practice

7.1.1.1 Form ofIntenogataries

Title ofthe suit as in plaint
Interrogatories on behalf of the abovenamed plaintiff (or defendant) for the
examination of the abovenamed defendant (or plaintiff):
(1) Did not, etc.
(2) Has not, etc.
(3) Was not, etc.
7.1.1.2 Form ofthe Ajfdavit in Answer
Title ofthe suit
The answer of the abovenamed defendant (or plaintiff) to the interrogatories for his
examination by the plaintiff (or defendant).
In answer to the said interrogatories, I, the abovenamed defendant (or plaintiff),
make oath and say as follows:
(1) As to interrogatory No. 1, I say that...
(2) As to interrogatory No. 2, I say that...
(3) I object to answer the interrogatory numbered 3 on the ground that ...
{state grounds of objections).
Sworn at Mumbai on the
8th day of May 1914.
CD
Defendant
Before me
XY
Commissioner

7,1.2 Affidavit of Documents

The provisions regarding the discovery of documents, enable a party to compel his
opponent to disclose the documents in his power or possession, relating to any matter
in question in a suit, in order to put an end to unnecessary and protracted inquiry as
to the material documents in possession or under control of the opposite party.
Any party to a suit may apply to the court for an order directing any other party
to make his affidavit of documents. Even a defendant may apply for an order directing
a co-defendant to make his affidavit of documents, where issues are joined between
them, as where a claim in the alternative is made against them. As a general rule, no
such order is made on the application of a plaintiff until after the written statement is
filed or the time to file it has expired, as no such order is made on the application of
a defendant until after he has filed his written statement. The party required to make
an affidavit of documents is bound to disclose all documents which are, or have been
in his possession or power, relating to any matter in question in the suit. However,
discovery shall not be ordered if the court is of. the opinion that it is not necessary
either for a fair disposal of the suit or for saving costs, or if the document is altogether
 Chapter 7—Documents and Witnesses 101

irrelevant or immaterial or where the prayer has been made with a view to delaying the
proceedings.'" Before ordering discovery or inspection, the court is also to satisfy itself
that the documents are in existence." If there be any documents which he objects to
produce for the inspection of the opposite party, he must specify them in a separate
list and state the ground of his objection. After the affidavit has been filed and a
copy thereof furnished to his adversary, the adversary is entitled to inspection of such
of the documents as the party filing the affidavit does not object to produce. As
regards the last-mentioned documents, it is for the court to decide whether they are
privileged from inspection. If they are privileged, no order for inspection is made. The
denial of inspection of privileged documents originates from the well-known
solus-populi est suprema lex (public welfare is the highest law). The following is a list
of such documents:

(i) Documents which of themselves evidence exclusively the party's own case or
title and contain nothing supporting or tending to support the adversarys
case or title. Thus if A sues B for the recovery of immovable property,
B is not bound to produce for his inspection the title-deeds of the property
which B may have in his possession, provided they constitute evidence
exclusively of B's title to the property, and contain nothing supporting his
title to the property.
(ii) Confidential communications between a party and his legal adviser, e.g.,
professional advice given by the legal adviser, entries in his diary of
communication between him and his clients, etc.'"
(iii) Public official documents, the production whereof would be injurious to
public interests."'
The following is a form of an affidavit of documents:
[Title of the suit]
I, the abovenamed defendant, CD, make oath and say as follows.
(1) I have in my possession or power the documents relating to the matters
in'(question in this suit set forth in the first and second parts of the first
schedule hereto.
(2) I object to produce the said documents set forth in the second part of the
first schedule hereto [state grounds of objection].
(3) I have had, but have not now, in my possession or power the documents
relating to the matters in question in this suit set forth in the second
schedule hereto.
(4) The last-mentioned documents were last in my possession or power on
[state when and what has become ofthem, and in whose possession they now
are].
(5) According to the best of my knowledge, information and belief I have not
now,and never had, in my possession, custody or power or in the possession.

14. Central Bank ofIndia v Shivam Udyog, AIR 1995 SC 711 : (1995) 2 SCC 74.
15. Bhagwani Devi Mohata Hospital v ADJ Raigarh, AIR 2005 Raj 274 : 2005 (2) WLC 90.
16. Indian Evidence Act, 1872, sections 126 andl29.
17. Ibid, sections 123 andl24.
 ^02 Mulla The Key to Indian Practice

custody or power of my pleader or agent, or in the possession, custody or

power of any other person on my behalf, any account, book of account,
voucher, receipt, letter, memorandum, paper or writing, or any copy of,
or extract from any such document whatsoever, relating to the matters in
question in this suit or any of them, or wherein any entry has been
made relative to such matters or any of them, other than and except the
documents set forth in the said first and second schedules hereto.
Sworn at Mumbai, etc.
In para 5, A states on oath that he has no other documents in his possession or
power, however, B has reasons to suspect or believe that he has other documents in
his possession relating to the matters in issue in the suit. The question would be as to
whether B is entitled to an order directing A to make a further affidavit of documents
and to disclose therein the documents which B says he must have in his possession.
The answer is no, since as a general rule. As adversary's oath is conclusive. A reading
of O XI, rules 12-19 makes it clear that the only cases in which the court will make
an order for a further affidavit are;
(i) when it appears (1) from the affidavit itself, or (2) from the
documents disclosed therein, or (3) from the pleadings, that he has other
documents in his possession;
(ii) where A has misconceived his case so that the court is particularly certain
that if he had acted on a proper view of the law he would have disclosed
further documents as in the case of British Association of Glass Bottle
Manufacturers v Nettelford}^
It is not necessary that documents sought to be discovered must be
admissible in evidence. It is sufficient if they are relevant and relate to any matter in
quption. If they can throw any light on the case, it is adequate to order discovery.
It is also not necessary that a party seeking discovery must specif^ the documents. It
is quite likely that he may not be aware about the details and he may come to know
only after the affidavit is filed." It is not incumbent upon applicant to file affidavit
along with application for discovery of documents. Also there is no need to specify
document sought to be produced. Every document throwing light on the case is relevant
though inadmissible.^"

7.1.3 Prema,ture Discovery

'^J^ere the right to the discovery or the inspection sought depends on
the determination of any issue in the suit, the court may try that issue as a preliminary
issue before deciding upon the right to the discovery or inspection. Thus if a person
is sued for an account of profits made by him by an alleged breach of trust, and if
he denies that he was a trustee for the plaintiff, the court may try the issue as to
whether the^ defendant was a trustee, before directing him to produce his books for
the plaintiff's inspection.

18. British Association of Glass Bottle Manufacturer v Nettleford, (1912) AC 709 ; 81 LJKB 1125
19. ML Sethi v RP Kapur, AIR 1972 SC 2379 : (1972) 2 SCO 427.
20. Narendra Gole v Ram Krishna Sharma, AIR 2011 (NOG) 229 (MP-DB); WP No. 5857 of 2010, dated
13~10—2010.
 Chapter 7—Documents and Witnesses 103

7.1.4 Inspection
Where a party Icnows that the other party is in possession of relevant documents,
then an application can be made for their production, without first asking for discovery
of documents^' The primary ob ject of O XI, rules 15-19 is the exchange of documents
between parties to the suit even before settlement ofissues so as to curtail the procedural
delay.
Where in the pleadings, affidavit or list of documents annexed with the pleadings
of a party, or a reference is made to any document, the other party may give notice
to poduce such documents for the inspection of the party giving notice and to permit
taking copies of it.^^
It is a valuable right given to a litigant to inspect original documents produced
before the court or otherwise relevant to the subject-matter of inquiry. The documents
are required to be divided into three broad categories for the purpose of understanding
the right of inspection available under the Code with regard to them:
(i) Documents referred to in pleadings or affidavirs.
(ii) Documents entered in the list annexed to pleadings.
(iii) Other documents.
Every party to a suit is entitled to inspect the documents falling within the first two
categories as a matter of right. The other party cannot refuse inspection in respect of
such documents. It is also entitled to talte copies of such documents. If the other party
does not offer inspection, it shall not be entitled to put the same in evidence in that
suit unless he can establish that it relates to his own title or that there was any other
sufficient cause for nor complying with the notice.
For documents falling within the third category, inspecrion cannor be obtained
as a matter of right. An application is required to be made showing relevance of the
documents of which inspection is sought and that they are in power or possession of
other party. Inspection will be granted if the court is satisfied about relevance and rheir
necessity or utility in the fair disposal of the case.
The notice to produce the documents for inspection must be in the prescribed form^^
with such variations as the circumstances may require^"* and must be given at or before
rhe settlement of issues.^' This stipulation in O XI, rule 15, is norhing but directory
and does nor mean rhat inspection cannot be allowed after the settlement of issues.^^
The party to whom notice to produce the documents is given, within 10 days of the
receipt of notice has to notify to the other party giving notice of the date, time and
place where the document can be inspected and such time shall not be beyond three
days from rhe dare of delivery of such notice. Such notice has to be in the prescribed
Code of Civil Procedure 1908, Sch 1, Appendix "C", form no 8.

21. Sri Nitvas v Election Tribunal ofLucknow, AIR 1955 All 251 (DB).
22. Code of Civil Procedure, 1908, O XI, rule 15.
23. Ibid, Sch I, Appendix "C", Form No. 7.
24. Ibid, O XI, rule 16.
25. Ibid, (as amended by the Amendment Act, 1999, wef 1-7- 2002), O XI, rule 15.
26. Salem Advocate Bar Association v UOI, AIR 2005 SC 3353 : (2005) 6 SCC 344.
104 Mulla The Key to Indian Practice

A question that would arise here would be as to at what stage can inspection be
obtained. Normally, a party is entitled to ask for inspection after pleadings are over
on both sides, but the Code does not impose any restrictions in this regard and allows
inspection at any time. Inspection can be obtained even before the written statement
is filed. It rests within the discretionary powers of the court. In one case, however, the
Bombay High Court refused to allow production and inspection of documents before
the written statement was filed.^^ During the course of inspection, a party is entitled
to make notes or even take out photocopies of the same.^'

7.1.5 Non-compliance with Order for Discovery or Inspection

The party not complying with the notice to produce the documents will not be able
to put any such documents in evidence, on his behalf in such suit.^'
The consequences of non-compliance with the order to answer interrogatories, or
for discovery or inspection of documents have been dealt with under O XI, rule 21 of
the Code, which provides that if the non-compliance of such an order is on the part
of the plaintiff, his suit is liable to be dismissed and if the non-compliance of such
order is on the part of the defendant, his defence is liable to be struck off. The party
seeking discovery, interrogation or inspection may give an application which may be
decided after hearing the defaulting party. The power to dismiss the suit or strike out
the defence can be exercised either suo motu or upon application of any patty. Where
the defendant does not care to comply with the orders of the court and in a way
ignores the orders, his defence can be struck off.'" However, the defence would not be
struck off merely because the defendant has not responded to the notice to produce
the documents." The power must be exercised only where the defaulting party fails to
attend the hearing or is guilty of prolonged or inordinate or inexcusable delay which
may cause substantial or serious prejudice to the opposite party.'^ The sine qua non
for exercising the power order rule 21 is failure to answer the interrogatories, order of
discovery or inspection of documents. The suit cannot be dismissed under O XI, rule
21 for non-compliance of rule 14 which is with respect to production of documents."
Where a suit has been dismissed under rule 21, the plaintiff shall be precluded from
bringing a fresh suit on the same cause of action.
A dtastic power is conferred under this rule and it is quite essential that it must be
sparingly used. A suit or defence cannot be lightly thrown out. The default must be
willful. There must be obstinacy or contumacy in disregarding the order of the court.
Such power must be exercised as a matter of last resort when faced with willful and
deliberate disregatd of the order of the court.'^

27- Indian Overseas Bank v Shreekrishna Woollen Mills Pvt Ltd, AIR 1988 Bom 343 :(1987) 89 Bom LR
510.
28. Jagatbhai Punjabhai Palkhiwala v Vikrambhai Punjabhai Palkhiwaht, AIR 1985 Guj 112 : (1984) 2
GLR 1242.
29. Code of Civil Procedure, 1908, O XI, rule 15-
30. D Ram Mohan Rao v Sridevi Hotels Pvt Ltd, AIR 2003 NOC 345 (AP) : 2005(3) AP LJ (HC) 199.
31. Shardamma Kaveri v Sharad G Jadav, AIR 2005 Kant 445 : 2005 (6) Kant LJ 284.
32. Babbar Sewing Machine Co v Trilok Nath Mahajan, AIR 1978 SC 1436 : 1978 4 SCC 188.
33. Archdiocese ofBhopal v Hasan Kabir, 2009 (4) MP LJ 530 (533, 535)(DB): ILR [2009] MP 3351.
34. Babbar Sewing Machine Co v Trilok Nath Mahajan, AIR 1978 SC 1436 : 1978 (4) ALR 747 .
 Chapter 7—Documents and Witnesses 105

7.2 Notice to Admit Facts or Documents [Order XII]

Facts admitted by the parties to a suit need not be proved. Admission in the pleadings
or judicial admissions made by the parties, at or before the hearing of the case, stand
on a higher footing than evidentiary admissions and are binding on the party making
them and constitute waiver of proofs' Admission of a document means admission of
facts contained in the document.^^

Admissions are not conclusive and a gratuitous or erroneous admission can be

withdrawn. Further, admissions are to be taken in entirety.
Admissions need not be made expressly in the pleadings and the court can proceed
even on constructive admissions. Admissions can be de hors the pleadings and need not
necessarily be contained in the pleadings. And such admissions can be oral or in writing.
Order XII, rules 2-5 of the Code provide that after discovery is made and inspection
is taken, the next step to be taken is to call upon the adversary, by notice in writing,
to admit within seven days of the date of service of the notice,^^ the genuineness of
documents which one wants to use at the hearing, and to admit facts constituting
evidence of the case. If no such admission is made by the adversary where it ought to
have been made, he will be liable to pay the costs of proving the documents and facts.
By virtue of O XIII, rule 3A, the court may, at any stage of the proceedings, without
any notice to admit documents being given by the other party, of its own motion call
upon a party to admit a document and record whether that party admits, refuses or
neglects to admit that document. If the documents are not denied specifically ot by
necessary implication or stated to be not admitted, they are deemed to be admitted
unless the court insists upon their formal proof independently. Therefore, every notice
for admission of documents must be carefully replied and denied or not admitted,
failing which the court may treat them as admitted, dispensing with their formal proof.
A notice in writing calling upon the other party to admit facts can also be served at
any time no later than nine days before the hearing, and if the other party refuses
or neglects to admit such facts within six days of service of such notice, the costs of
ptoving those facts shall be paid by the party so refusing or neglecting. An admission
made in pursuance of the notice shall be only for the purposes of that patticular suit
(O XII, rule 4).
Where admissions of facts are made, the court is empowered to make order or give
judgment having due regard to admissions made. Such admissions may be oral or
written. For such order or judgment, it is not necessary to wait for determination of
other disputed matters. In one case, the Delhi High Court gave judgment in respect
of a portion of an award admitted by the other party holding that this provision is
applicable to applications under the Arbitration Act, 1940.^® The object behind the
rule is laudable. The court should be able to make an order at least whete there are no
disputes between the parties. It need not wait till other disputed mattets are resolved

35. Nagindas Ramdas v Dalpatram Iccharam, AIR 1974 SC 471 : (1974) 1 SCC 242.
36. Sitaram Motilal Kalal v Santanu Prasad Jaishanker Bhatt, AIR 1966 SC 1697 ; (1966) 3 SCR 527.
37. Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 wef 1-7-2002), O XII,
rule 2. Mohd Yunus v Deviant, (2010) 4 MP LJ 24 (28) (DB).
38. Bharat Overseas Construction Pvt Ltd v University Teachers Co-op Housing Society Ltd, AIR 1991 Del
20 : 39 (1989) DLT 446.
106 Mulla The Key to Indian Practice

or adjudicated. However, judgment on admissions cannot be claimed as a matter of

right and depends on the discretion of the court, which must be satisfied that the
admission relied upon is clear, definite and unequivocal.^' A party, on the admission
of other party can press for judgment as a matter of legal right. However, the court
always retains its discretion in the matter of pronouncing judgment.'*"

7.2.1 Admission should be Taken as Whole

It is well settled that an admission must be taken as whole or not at all.

In Uttam Singh Duggal & Co Ltd v United Bank of India,^^ it was observed that,
"where one portion of the claim was admitted and the other portion was denied, and
both the portions were severable, the plaintiff could ask for a judgment on the portion
admitted by the defendant."
Whether there is a clear admission or not, cannot be decided on the basis of judicial
precedents. The decision of the question depends on the facts of the case.^^ If there is
any admission by the defendant or an admission can be inferred from the facts and
circumstances of the case without any dispute, such admissions can be acted upon
in order to expedite and dispose of the matter.^^ It is a well settled principle of law
that a counsel can make not only concession on a question of law but also on facts
which would be binding on the parties. A decree can be passed on the basis of such
concession in terms of O XII, rule 6 of the Code.'*'* Judgment on admissions can be
passed by the court on its own motion without an application made hy a party or on
the application of any party.'*' The judgment—on admission can be passed even after
issues have heen framed,'*" and even at the stage of final arguments. The power to give
judgment under this rule is discretionary and enabling in nature and the party cannot
claim it as of right. The Court is also not bound to pass a judgment upon admission.
If the court is of the opinion that it is not safe to pass a judgment on admission, or
that a case involves questions which cannot be appropriately dealt and decided on the
basis of admission, it may, in the exercise of its discretion, refuse to pass a judgment
and may insist upon clear proof of even admitted facts.'*'' The provision under O XII,
rule 6 of the Code is not mandatory but still the purpose for which such a provision
has been inserted should be taken into consideration.'*® Order XII rule 6 confers wide
discretion on court to pass judgment either at stage of suit on basis of admission of
facts made in pleadings or otherwise. But court shall later on decide other questions
which arise for consideration in suit. Provisions of O XII rule 6 are not mandatory
rather discretionary. While exercising the power of passing Judgment on admission

39. Razia Begum v Anwar Begum, AIR 1958 SC 886.

40. Karam Kapahi v Lai Chand PC Trust, (2010) 4 SCC 753 : AIR 2010 SC 2077.
41. Uttam Singh Duggal & Co Ltd v United Bank ofIndia, (2000) 7 SCC 120 : AIR 2000 SC 2740.
42. Jeevan Diesels & Electricals Ltd v Jasbir Singh Chadha, AIR 2010 SC 1890 (1893) ; (2010) 6 SCC 601 ;
(2010) 4 LW 114 : (2010) 5 Mad LJ 311 (SC).
43. Chananjit Lai Mehra v Kamal Saroj Mahajan, AIR 2005 SC 2765 : (2005) 11 SCC 279.
44. Saroj Anand v Prahlad Rai Anand, (2009) 15 SCC 505 (512) : 2009 (4) Scale 474.
45. Rajiv Sharma v Rajiv Gupta, AIR 2004 Delhi 248 (DB); Dinesh K Singhania v Calcutta Stock Exchange
Association Ltd, (2005) 2 CHN 601 (Cal-DB).
46. Parivar Seva Sansthan v Veena Kalra, AIR 2000 Dei 349 : 86 (2000) DLT 817.
47. Razia Begum v Sahebzadi Anwar Begum , AIR 1958 SC 886
48. Malwa Strips Pvt Ltd v Jyoti Ltd, (2009) 2 SCC 426 (431) : AIR 2009 SC 1581.
 Chapter 7—Documents and Witnesses 107

made in pleading or otherwise court must keep matter pending for adjudication so far
as other issues are concerned."^'

7.2.2 Conclusiveness ofAdmission

In Nagubai Ammal v B Shama Rao,'^" "An admission is not conclusive as to the truth
of the matter stated therein. It is only a piece of evidence; the weight to be attached
to such admission should depend upon circumstances under which it was made. It can
be shown to be erroneous or untrue.

7.3 Summoning of Witnesses [Order XVI]

Rule 1 of O XVI provides for presenting a list of witnesses proposed to be called
by a party and obtaining summonses to such persons on or before the day appointed
by the court, which must not be later than 15 days after the date on which issues
are settled. If the party failed to obtain the summonses through court for attendance
of witnesses, they are at liberty to have the witness brought without the assistance of
the court under rule lA of O XVI. Nonetheless, when they seek the assistance of the
court, they are enjoined to give reasons as to why they have not filed the application
within the time prescribed under rule 1 of O XVI.
In order to issue a summons to a witness to adduce evidence or to produce documents
in court, the parties to the suit must present a list of witnesses of whom they propose
to call as witnesses, not later than 15 days from the date of settlement of issues. The
court may, in appropriate cases, condone the delay and receive the list even after 15
days." To ensure the attendance of a witness, either party may apply to the court for
issuing summons upon them; stating in such application the purpose for which the
witness is proposed to be summoned. Summons shall be issued by the court only in
respect of the witness whose names appear in the list of witnesses. The court, in its
discretion, may permit a party to summon any witness, other than those whose names
appear in the list of witnesses on sufficient cause for omission of name of such witness,
shown. A person may be summoned to produce a document without being summoned
to give evidence and any person summoned merely to produce a document will be
deemed to have complied with the summons if he causes the document required to
be produced in the court.
A person is entitled to apply to the court for a witness-summons (or subpoena as it
is called), at any time after the institution of the suit. It does not matter at what stage
of the suit it is applied for. It may be applied for even after the hearing has commenced
and the court has no power of refusal to issue it. The only case in which it may be
refused is when the application is not made bona fide, where the person knows that
the opposite party is not going to come into court on sentimental grounds, and yet
proposes to call the opposite party as his own witness to put pressure upon him. To
issue the summons in such a case would amount to an abuse of the process of the court
and the court may refuse it under its inherent powers as specified under section 151.

49. Raveesh Chand jain v Raj Rani Jain ,2015 (2) RCR (Civil) 118
50. Nagubai Ammal v B Shama Rao, AIR 1956 SC 593.
51. Lalitha J Rai v Aithapparai, AIR 1995 SC 1984 : (1995) 4 SCC 244.
52. N Balraju v G Vidyadhar, AIR 2004 AP 516 : 2004 (5) All LT 55 .
108 Mulla The Key to Indian Practice

Before the summons is granted, a sum of money should be paid into court sufficient
to defray the travelling and other expenses of the person summoned and his subsistence
allowance for one day. The sum so paid into court is to be tendered to the person
summoned at the time of serving the summons. If the person summoned is detained
for a longer period than one day, a further sum sufficient to defray the expenses of
his detention has to be paid into court, and the same is then to be tendered to him.
Order XVI clearly lays down that a summons to a witness is to be served as nearly
as may be in the same manner, as a summons to a defendant. If the witness fails to
attend, the court may issue a proclamation requiring him to attend and may at the
same time issue a warrant for his arrest and make an order for the attachment of his
property. If the witness then appears and satisfies the court that there was sufficient
cause for his non-appearance, the court may order the property to be released from
attachment. However if he does not appear or appears but fails to satisfy the court, the
court may impose upon him a fine not exceeding Rs 500, and may order the property
attached to be sold for the payment of the amount of the fine. The above provisions
enact the machinery for procuring attendance of witnesses. It is the duty of the court
to enforce attendance of witnesses summoned by the parties, if necessary, by coercive
process. These provisions are essential and have been enacted with a purposeful eye,
because the consenting parties in a suit usually have no control over witnesses who may
be required to give evidence.'^ It should not, however be forgotten that a party runs
a serious risk by invoking coercive machinery for compelling his witnesses to remain
present. It is quite likely that on account of such process being issued, he may turn
hostile and may not support the case of the party at whose instance he is called as
witness. Since the provisions of rule 10 are penal in nature, the procedure laid down
therein must be strictly followed.'^ The provision under rule 1 of O XVI of the Code
is subject to the provisions of sub-rule (3) of rule 1; so before proceeding to examine
any witnesses who might have been brought by a party for the purpose, the leave of
the court may be necessary. This by itself would not mean that rule lA is in derogation
to sub-rule (3) of rule 1 of the Code." However, O XVII, rule lA states that if it is
managed to bring in witnesses, there is no necessity that they must appear in response
to summons. They can volunteer to give evidence at the behest of either party. This
applies to the production of documents by the witness also.
In case where witnesses are not likely to come on their own and summons are
required to be issued, a list of witnesses for evidence or production of documents
must be provided within 15 days from the date of settlement of issues. One will not
be entitled to examine a witness whose name is not shown in the list unless sufficient
cause for the omission of his name is shown. It is also to be remembered that when
an application is made for summons, it must specifically state the purpose for which
summons is required to be issued. If it is for giving evidence, it must state so. If it is
for production of documents only, it must be clarified. The idea seems to be that the
person to whom summons has to be issued must know for what purpose he is being
summoned to the court.

53. National Rice dr Dal Mills v Food Corp. ofIndia, AIR 1972 P&H 163.
54. Dwarka Prasad Bai v Rajkunwar Bai, AIR 1976 MP 214 : 1976 Jab LJ 242 .
55. Ashok Sharma v Ram Adhar, (2009) 11 SCC 47 (50) : (2009) 2 SCR 9.
 chapter 7—Documents and Witnesses 109

As regards service of summons, now there is an additional mode of service made

available by rule 7A. If a party applies, the court can hand over or deliver such summons
for service to that party. This is called direct service. The party is not required to pay any
process fees in such a case. If the witness refuses to accept or to sign acknowledgment
or if it cannot be served directly, the summons thereafter may be served through the
court machinery as if it were a summons to the defendant. If the witness is served, the
party must report to the court accordingly. If such witness does not remain present, the
court shall examine the party before taking any action against the witness.
It is not expected that the name of a witness be given in the list if he is going to
attend voluntarily. The list is required only for those witnesses for whom summons
must be issued. If there is any delay or omission, it may be condoned on sufficient
cause being shown. The court must adopt a liberal approach on the ground that
procedural laws are handmaidens ofjustice and they must not be construed in a narrow
or pedantic manner.'^

7.4 Production of Documents [Order XIII]

The parties are required to produce the documentary evidence in their power and
possession, i.e., in actual physical possession or control, on or before settlement of
issues. There are some rules which require production of certain documents along with
pleadings (O VII, rule 14; O VIII, rule lA). All original documents not produced
earlier must be produced before settlement of issues. Such production is a matter of
right and no permission is required to be obtained, but once that stage is crossed, the
production of documents passes into the domain of discretion of court and can be
done only on permission. While granting permission, court may impose costs. It may
even refuse permission if late production is likely to lead to irreparable injustice to
other side. Where the documents were in possession of the plaintiff even on the date of
filing of the suit, but were not filed at the appropriate stage, they cannot be admitted
at later stage unless cogent reasons are given. At the same time; omission to mention
the documents in the plaint or subsequent incidental or supplemental pleadings, does
not affect the power of the court to grant leave to produce the documents at a later
stage." The court has power to receive any document at a later stage if the genuineness
of a document is beyond doubt and it is relevant or material to decide the real issue in
controversy.® It is a well settled principle of law that where a civil proceeding as well
as criminal proceeding is pending, the latter should be given primacy.""'
The court may adopt a liberal approach and late production, normally allowed, is
attended to with costs and further opportunity is given to the other side to adduce
further evidence, if necessary."^ There are two exceptions to this rule. When documents
are tendered for cross-examination of witness of the other side or refreshing the memory
of a witness, this rule does not apply and such production is allowed at any stage and
this may be understood in the light of O XI, O XII, and O XVI of the Code.

56. Mange Ram v Brij Mohan, AIR 1983 SC 925 : (1983) 4 SCC 36.
57. Bennett Coleman & Co Ltd v Janaki Ballav Patnaik, AIR 1989 Ori 145.
58. Hardyal Singh v Kamlinder Kaur, 2002 AlHC 2171 (Del) : 97 (2002) DLT 868.
59. Bada Bodiah v Bada Lingaswamy, 2003 AlHC 1285 (AP) : 2003 (1) Andh LD 790.
60. Billa Jagan Mohan v Billa Sanjeeva, (1994) 4 SCC 659.
61. Lakshmi v Chinnammal, AIR 2009 SC 2352 : 2009 (3) ALT 46 (SC).
62. Madan Copal Kanodia v Mamraj Maniram, AIR 1976 SC 461 : (1977) 1 SCC 669.
 CHAPTER 8

HEARING AND DISPOSAL

S\"NOPSIS
8.1 First Hearing and Settlement of 8.3 Judgment [Order XX] 121
Issues [Order X; Order XIII, 8.3.1 "Alteration in Judgment" 122
Rules 1-2; Orders XI-XV] 110 8.4 Decree [Order XX] 123
8.1.1 Whether the Suit can be 8.4.1 "Mesne Profits" 124
Decided on a Single Issue 8.4.2 Kinds of Decree 125
Leaving other Issues
8.4.3 Passing of more than one
Undecided 113
Preliminary or Final
8.2 Hearing of the Suit and Decree 126
Examination of Witnesses
8.4.4 "Interest" Under Section 34
[Order XVIII] 117
of Code of Civil
8.2.1 Trial in Open Court 117 Procedure 127
8.2.2 Trial in Camera 118
8.4.5 "Costs" Under Sections 35.
8.2.3 "Evidence Recorded by another , 35-A and 35-B 128
Judge Under Order XVIII, 3.5 Where Parties Do not Appear
Rule 15" 120 [Order IX] 130

8.1 First Hearing and Settlement of Issues [Order X; Order XIII,

Rules i-2; Orders XI-XV]
The suit is now ready for hearing. In a large majority of courts outside the presidency
towns, the hearing is split into two parts, namely;
(1) First hearing at which issues are settled; and
(2) hearing when evidence is taken of the parties and their witnesses.
The term "first hearing" of a suit has not been defined in the Code. It is the day
on which the court applies its mind and goes into the pleadings of the parties in order
to understand their contention.' In cases in which no issue need be framed, e.g. small
cause suit, the first hearing would be the day on which the trial starts.'^
It has already been mentioned^ that every pleading should contain a statement
of the material facts on which the party pleading, relies for his claim or defence.
Framing of issues is an important stage at which scope of the trial is determined
by laying the path on which the trial shall proceed excluding departures and
diversions therefrom.'' The correct decision of civil Us largely depends on correct
framing of issues, correctly determining the real points in controversy which needs
to be decided.

1. Arjun Khiamal Makhijani v Jamnadas Tuliani, AIR 1989 SC 1599 : 1989 (2) Scale 780; Siraj Ahmed
Siddiqui V Prem Nath Kapoor, AIR 1993 SC 2525 :(1993) 4 SCC 406.
2. Sangram Singh v Election Tribunal, AIR 1955 SC 425 ; (1955) 2 SCR 1.
3. See chapter 3.
4. Makhan Lai Bangal V Manas Bhunia, SC 490 ; 2001 (1) Scale 11.

110
 Chapter 8—Hearing and Disposal 111

An issue means a point in question at the conclusion of pleadings between'contending

parties in an action.' Issues arise when a material proposition of fact or law is affirmed
by one party and denied or not admitted by the other.
Issues are the backbone of a suit. They are also the lamp-post which enlightens the
parties to the proceedings, the trial court and even the appellate court as to what is
the controversy, what is evidence and where lies the way to truth and justice.^
The duty of framing proper issues rests with the judge himself, but however, the
parties and their consents are bound to assist the court in the process of framing of
issues.^ It does not mean that the failure to take part in framing issues, shall amount
to abandonment of issues or that such party shall not have a right to cross-examine.
The question of maintainability of suit by itself does not give rise to a triable
issue.® The high court is competent to dispose of the suit on preliminary issues,
as contemplated in O XIV, rule 1,' which may include the issues with regard to
maintainability of suit.'
Order XIV, rule 1(2) states that material propositions are those propositions of law
or fact which a plaintiff must allege in order to show a right to sue, or a defendant
must allege in order to constitute his defence. Issues are of two kinds, namely
(1) issues of fact; and (2) issues of law. However, there may be issues of mixed law
and fact. Every material proposition affirmed by one party and denied by the other
shall form a subject of a distinct issue. No issues should be raised on subsidiary
matters of fact. The object of framing issues is to direct the attention of parties to
the principal question on which they are' at variance. What one has to prove at the
hearing is the existence or non-existence of facts in issue, these have to be proved
by facts, which are called evidentiary facts. These evidentiary facts must be relevant
facts, i.e., they must be relevant to the facts in issue. One should, at the hearing of
the suit, direct the attention to the facts in issue, in other words, the issues and the
evidence which lead to prove either the existence or non-existence of the facts in issue,
must be relevant to the facts in issue. Not every fact which has a bearing of some
sort on the fact in issue is a relevant fact. There are relevant facts in sections 5 to 55
of the Indian Evidence Act, 1872.
At the first hearing of the suit, the parties have to:
(i) appear in court either in • person or- by a pleader who is able to answer
all material questions relating to the suit, or to send some person on his
behalf who is able to answer such questions;
(ii) produce in court all documents on which he intends to rely and which have
not already been filed in court, when the plaint was presented as required
by O XIII, rule 1; O VII, rules 14-18; O VIII, rule lA. No document
which is not produced at the first hearing wiU be received in evidence at
any subsequent stage of the proceedings, unless good cause .is .shown.

5. New Shorter Oxford English Dictionary, 1993.

6. State ofGujarat v Jaipaisingh Jaswantsingh Engg & Contractors,(1994) Guj LR 258: 1994 GLH (2) 403.
7. Makhan LaiBangui V Manas Bhunia,MK 2001 SC Aw :2QQ\ {V) SciltW.
8. Ajay Mohan v HNRai,(2008)2 SCC 507:AIR 2008 SC 804.
9. Abdul Gafurv State ofUttarakhand,(2008).10 SCC 97(103): 2008 (11) Scale 263.
112 Mulla The Key to Indian Practice

At the first hearing of the suit, after reading the plaint and the written statement,
the answers to interrogatories (if any), and such documents as it thinks proper, the
court has to:

(i) ascertain from the party or his pleader which material facts in the pleading
of either party are admitted or denied by the other, and for that purpose,
to examine, if necessary, the parties or any person on their behalf who is
able to answer material questions relating to the suit according to O XI
and if any party refused or was unable to answer any material question, the
hearing must be postponed for not more than seven days with directions
to the party to appear in person'" and after so doing;
(ii) direct the parties to opt for one of the modes for settlement of dispute
outside the court, namely, through arbitration, conciliation, judicial
settlement, settlement through Lok Adalat, and mediation;" If it is
arbitration, it cannot be suggested by court unless both parties agree to
the same in writing. Other modes of alternative disputes resolution (ADR)
processes could be undertaken by the court even without prior consent of
parties by the court on its own initiative;'^
(iii) The only practical way of reading section 89 and O X, rule 1-A is that after
the pleadings are complete and after seeking admission/denials wherever
required, and before framing issues, the court will have recourse to
section 89. Such recourse requires the court to consider and record the
nature of the dispute, inform the parties about the five options available
and taken note of their preferences and then refer them to one of the ADR
processes. But once evidence is commenced, the court will be reluctant to
refer the matter to the ADR processes lest it becomes a tool for protracting
the trial.
(iv) frame and record the issues on which decision of the case appears to
depend;
(v) at once pronounce the judgment, if it appears that the parties are not at
issues on any question of law or fact in accordance with O XV, rule 1. It
will thus be seen that the principal object of the first hearing is to settle
issues, and that issues are framed from the following materials:
(a) pleadings;
(b) answers to interrogatories;
(c) documents produced by the parties; and
(d) statements made on oath by the parties or by any persons present
on their behalf, and statements made by the pleaders of the parties
(O XIV, rule 3).
Where it appears to the court that issues cannot be framed properly without
examination of any person or inspection of any document not produced on record, it
may order examination of the person or documents as the case may be.

10. Code ofCivil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 1-7-2002), O X, rule 4(1).
11. Ibid (as Inserted by the Amendment Act, 1999 w.e.f. 1-7-2002), section 89.
12. Afcom Infrastructure Ltd v Cheiran Varkey Construction Co PvtLtd,(2010)8 SCC 24:(2010)8 SCR 1053.
13. Ibid
 Chapter 8—Hearing and Disposal 113

Issues which do not arise from pleadings or other aforesaid materials should not
be framed.''^

The court has the power under O XIV, rules 1(5) and 5 of the Code at any time
before passing the decree to amend the issues, to frame additional issues, and to strike
out issues that appear to it to be wrongly framed. One has to be careful at the time
when issues are framed since the burden of proof is sometimes reflected in the way in
which they are framed. No important issues should be omitted to be raised because
it may vitiate the trial, but not always. Where the parties well understood the two
cases opposed to each other and led all the evidence in support of their contentions,
the absence of an issue shall not be fatal to the case and there shall be no miscarriage
of justice. A de novo trial may be ordered only if the omission to frame a particular
issue affects the disposal of the case on merits,"' e.g., dismissal of suit being barred by
limitation without framing appropriate issue regarding limitation.'^ Necessary issues
ought to be framed by the trial court in order to determine rights of the parties.'®

8.1.1 Whether the Suit can be Decided on a Single Issue Leaving Other Issues
Undecided

There may be situations where the whole suit may be disposed of on a particular
issue or ground and where there may not be any necessity to frame and decide other
issues. Here the question that arises is, suppose the suit is barred by res judicata or the
court has no jurisdiction over rhe subject-matter, is it possible to dispose of the suit
on this issue alone? Here O XIV, rule 2 provides an answer. A civil court can dispose
of a suit on preliminary issues. The issues of res judicata constructive res judicata as
also the maintainability of the suit can be adjudicated upon as preliminary issues. And
when facts are admitted such issues shall be decided as preliminary issues." Ordinarily,
and as a general rule, the court must pronounce judgment on all issues. Once issues
have been framed, court has to proceed to record evidence and pronounce judgments
on all issues. The dismissal of suit as not maintainable, after framing issues, is wrong
procedure and is illegah^" It is not permissible to decide a case on a preliminary issue
even when it is possible to do so unless certain conditions mentioned in O XIV,
rule 2 are satisfied. The conditions are:

(i) The court must be of the opinion that a case or any part thereof may be
disposed of on any particular issue.
(ii) It must be an issue of law. If it is an issue of fact or mixed issue of fact
and law, it cannot be decided as a preliminary issue.
(iii) The issue of law must relate to the jurisdiction of the court or bar created
by any law to the suit.

14. Site Ram v Radha Bai, AIR 1950 PC 68.

15. SayedaAkhtar v AbdulAhad, AIR 2003 SC 2985 :(2003) 7 SCO 52.
16. KawalKishanvDinaNath,MB.1993 SC 881 :(1992) 2 SCC 51.
17. Pratima Sinha v Shashi Kumar Naraina Sinha,(2004) 13 SCC 599.
18. Nafeesa Usmani v AnwarJahan, 2009 AIHC(NOC)913(MP)(DB); WP No. 8987 of 2007, Dated 28-
1-2009, Ajit Gaitonde v Ezilda ECPinto, 2009 AIHC 3292(Bom-DB):2011 (1) RCR (Civil) 477.
19. Abdul Rahman v Prasony Bai, AIR 2003 SC 718 :(2003) 1 SCC 488.
20. R Gopalkrishna v KS Corp. 2008 (5) Kant LJ 527 (331-332)(DB): AIR 2008 Kant 77: ILR 2008 KAR
2034.
 114 Mulla The Key to Indian Practice

If the aforesaid conditions ate satisfied, the court may frame the preliminary issue and
decide the suit and postpone the settlement of other issues to a later stage, if and when
required. If the suit is required to be decided after decision of preliminary issue, other
issues may he framed. If not, the suit shall he dismissed. Issue relating to sufficiency
of court fees is not mere issue of law, hence cannot be decided as preliminary issue.-'
Only issues of laws pertaining to jurisdiction or bar created by any law to the suit
are capable of being framed as preliminary issues. Issues of fact, mixed issues of fact
and law and issues of law other than the aforesaid cannot he tried as preliminary issues.
In view of provisions under O XIV, rule 2, evidence must be accepted on all issues.
Where jurisdiction becomes a mixed question of fact and law, it cannot be decided as
a preliminary issue.^^ Issues regarding territorial jurisdiction and limitation can also be
tried as preliminary issues even if they depend upon factual evidence.
Order XIX, rule 2 of the Code of Civil Procedure confers power upon the Court
to pronounce judgment on all the issues hut where issues both of law and fact arise in
the same suit and the Court is of the opinion that the case or any part thereof may
he disposed of on the issue of law, it may try that issue first if that issue relates to the
jurisdiction of the Court or a bar to the suit created by any law. There is a mandate
to the Court that notwithstanding that a case may be disposed of on a preliminary
issue, the Court has to pronounce judgment on all the issues. The only exception to
this is contained in sub-rule (2). This sub-rule relaxes the mandate to a limited extent
by conferring discretion upon the Court that if the Coutt is of opinion that the case
or any part thereof may be disposed of "on an issue of law only", it may try that issue
first. The exercise of this discretion is further limited to the contingency that the issue
to be so tried must relate to the jurisdiction of the Court or a bar to the suit created
by a law in force.^^
The power to dispose of the suit on preliminary issues is, however, discretionary.
Even if the aforesaid conditions are fulfilled, the court may refuse to decide the matter
on preliminary issues in exercise of its discretion.^^ The allegation of fraud cannot he
heard and decided as a preliminary issue. Ordinarily suits and proceedings should be
decided by rendering finding on all the issues.^^
The following will be the eight issues in the suit for specific performance in the
plaint and the written statement given in this bookE^
(i) Whether the sale was not to he completed and the purchase money to be
paid on 1 May 2014 as alleged in para (1) of the written statement?
(ii) Whether it was not agreed between the plaintiff and the defendant that
time should he the essence of the contract as alleged in the said paragraph?

21. Moola Vijaya Bhaskar v Moola SSRaviPrakash, AIR 2009 AP 150:2009(3)All LT 663, Natvab Shaqafath
Ali Khan v Natvab ImdadJan Bahadur,(2009) 5 SCC 162(178):(2009)4 SCR 589.
22. Saradekanta Panda v Poonam Padhi,(2010)(1) DMC 728 C31)(DB): AIR 2009 Ori 145.
23. Foreshore Co-op Housing Society Ltd v Praveen D Desai (Dead), 2015 (2) RCR (Civil) 442 ■ AIR 2015
SC 2006.
24. Sunni Central WaqfBoard v GopalSingh Vishrad, AIR 1991 All 89.
25. RenubaU Nama v Renubala Das, (2009) 5 Gau LR 120 (124-125) ; AIR 2010 Gau 8; Ramesh Chandra
Shankia v Vikram Cement, AIR 2009 SC 713 : 2008 (10) Scale 112.
26. See chapters 3 and 6.
 Chapter 8—Hearing and Disposal 115

(iii) Whether the plaintiff was ready and willing to perform his part of the
contract on the aforesaid date as alleged in para 3 of the plaint?
(iv) Whether the agreement was not rescinded by mutual consent on the fifth
day of May 2014 as alleged in para 2 of the written statement?
(v) Whether the plaintiff tendered Rs 2,00,000 as alleged in para 2 of the
plaint?
(vi) Whether in any event, the plaintiff is entitled to specific performance of
the said agreement?
(vii) Whether the plaintiff is entitled to any damages, and if so, what?
(viii) General issue (i.e., whether the plaintiff is entitled to any relief at all.)
It is pertinent to note that there is no issue as to the factum of the agreement
between the parties, as the agreement has been admitted by the defendant in para 1
of his written statement.^^

It is essential to mention here that certain new provisions relating to adjournments

were introduced by way of amendments in 1976 and 1999 with effect from 1-7-2002.
They have a far-reaching impact upon the suits and their conduct by the court.
As a general rule, at any stage, the court is empowered to adjoutn the mattet if
sufficient cause is shown. Such order of adjournment may also be attended by order of
costs to be paid by one party to other or to a witness. Adjournment cannot be claimed
as a matter of right. The courts have wide discretion and, in practice, adjournments are
granted liberally. In ascertaining whether a party has reasonable ground for adjournment,
the court should not travel beyond the date on which adjournment is sought for.
Merely because a party had taken many adjournments eatlier is no ground for refusal
of adjournment.^^ While considering a prayer for adjournment, the court shall keep in
mind the legislative intent to restrict grant of adjournments.^' However, where hearing
of suit' has commenced, it must be continued from day-to-day till all witnesses in
attendance are examined. There can be no adjournment in such cases, unless there
are exceptional reasons which must be recorded in writing. This rule is statutory. It is
always desirable to take evidence as a whole continuously. It helps the court in having
better appreciation and a cohesive picture of the entire trial in the mind of the judge.
A piecemeal trial may lead to complications and an imperfect understanding of the
case as a whole.

The fact that the pleader is engaged in another court shall not be a ground
for adjournment. When a counsel who is ready in the pre-lunch session, seeks
accommodation in the post-lunch session on the ground of a sudden illness or physical
ailment, the court cannot reffise a short accommodation and dismiss the appeal on the
ground that the client was cantankerous and unreasonable before the Lok Adalat. The
two issues have no relation to each other and such dismissal can only be attributed to
prejudice.^" Similarly,• boycott of court by advocates'' and strike by advocates are not

27. See chapter 6.

28. State Bank ofIndia v Chandra Govindji,(2000) 8 SCC 532: 2000 (7) Scale 354.
29. Salem Advocates Bar Association v UOC AIR 2005 SC 3353:(2005)6 SCC 344.
30. BP Moiddeen Sevamandir v AM Kutty Hassan,(2009) 2 SCC 198 (205): 2008 (16) Scale 364.
31. Associated Engineering hidustries v hider Mohan Kohli, AIR 2000 Del 90 : 2000 (2) RCR (Civil) 93.
 116 Mulla The Key to Indian Practice

sufficient grounds for adjournment^^ If the pleader is ill or unable ro conduct procee
dings on account of any reason, matter cannot be adjourned unless the court is satisfied
that the party applying for adjournment could not have engaged another pleader in
time. Adjournments have grown like cancer corroding the entire body ofjustice delivery
system. It is sad, but true, that the litigants seek and the courts grant adjournments
at the drop of hat. Though provisions of O XVII, rule 1 of CPC are not mandatory,
but adjournments beyond three may be granted for justifiable cause. Justifiable cause
means a cause which is not only sufficient cause as contemplated under O XVII, rule 1
of CPC, but unavoidable and sort of compelling necessity like sudden illness of the
litigant or the witness or the lawyer; death in the family of any one of them; natural
calamity like floods, earthquake, etc. in the area where any of these persons reside; an
accident involving the litigant or the witness or the lawyer on way to the Court and
such like cause. The list is only illustrative and not exhaustive.^'
However, the total number of adjournments granted to a party, during the hearing
of the suit shall not be more than three''* and the court shall impose costs occasioned
by the adjoutnment." However, absence of lawyer or his non-availability because of
professional work in other court or elsewhere or on the ground of strike call or the
change of a lawyer or the continuous illness of the lawyer or similar grounds will not
justify more than three adjournments to a party during the hearing of the suit.'^ The
proviso to O XVII, tule 1 comes into play only if a party seeks adjournment after
having availed the same for more than three times during hearing of the suit.'^ The
provision limiting adjournments cannot be held to be ultra-vires or unconstitutional.'^
If the witness is present, but the party or his pleader is not ready to examine or
cross-examine, the court may close the stage of evidence against that party.
If the party remains absent on the day on which the matter is fixed for hearing, the
court may proceed under O IX or pass such other order as it may deem fit. Where
neither the plaintiff nor the witnesses ate present, the suit has to be dismissed under
O XVII, rule 2 and not under O XVII, rule 3." However, if the absent party has
already led or adduced substantial evidence, the court may proceed as if it is present
and decide the matter on merits in accordance with O X'HI, rule 2.
If the matter is adjourned at the instance of a party for his evidence or attendance
of witnesses or any other specific purpose and if that party fails to do so, the court may
proceed to decide the suit if parties are present or it may proceed under the aforesaid
rule 2, if both the parties or any of them are not present.
Where the party fails to appear on the date and no substantial evidence is adduced
by it, the court cannot proceed on merits treating that party as ptesent. The court
must proceed under O XVII, rule 2 and if a decree is passed, it must be regarded

32. Ramon Services Pvt Ltd V Subhash Kapoor, AlKJOQl SC 207 :(2001)SCC(L&S) 152.
33. Shiv CotexvTirgun Auto PlastPvt Ltd, 2011 (9) SCC 678 :(2011) 10 SCR 787.
34. Code of Civil Procedure, 1908 (as substituted by the Amendment Act, 1999 w.e.f. 1-7-2002), O XVII,
rule 1(1), proviso.
35. /AV.O XVII, rule 1(2).
36. Shiv CotexvTirgun Auto PlastPvt Ltd, 2Ql\ (9) SCC-678 :(2011) 10SCR787.
37. Mayadevi Kukreja v Meera Agarwal, 2009 (3) MP LJ 688 ; AIR 2010 MP 27(DB).
38. Salem Advocate Bar Association (II) v UOI,(2005)6 SCC 344 ; AIR 2005 SC 3353.
39. Mohan Das v Ghnsia Bai, AIR 2002 SC 2436.
 chapter 8—Hearing and Disposal 117

as ex-parte and it is liable to be set aside under O IX, rule 13.^° If a suit is decreed
or dismissed under O XVII, rule 2 coupled with O IX, rule 6 or O IX, rule 8, the
remedy is an application under O IX, rule 9 or O IX, rule 13, as the case may be.
And if it is under O XVII, rule 3 the remedy is an appeal or review, as the decision is
on the merits in the presence of the parties. At the same time, if the suit is decreed or
dismissed by proceeding under the explanation to O XVTI, rule 2, the decision will be
on merits and the remedy will be an appeal. However, if the order does not indicate
as to what evidence was evaluated and/or whether the merits of the case were tested,
an application under O IX, rule 13 would lie.""

8.2 Hearing of the Suit and Examination of Witnesses [Order XVIII]

There is no such thing as a first hearing in courts in the Presidency towns. The
following is the practice followed in the high courts at the hearing of suits:
(a) Plaintiffs counsel reads pleadings, i.e., plaint and written statement.
(b) Defendant's counsel raises issues.
(c) Plaintiff's counsel opens the case by stating briefly the facts of the case and
giving an outline of the evidence he intends to call to prove the issues as
to which the burden of proof lies on him.
(d) Then follows the examination, cross-examination and re-examination of
the plaintiff and his witness.
(e) Plaintiff's counsel then closes his case by saying "I close my case, or this
is my case".
(f) Defendant's counsel opens the defence by stating shortly what the defence
is and what evidence he proposes to call.
(g) Then follows the examination, cross-examination, and re-examination of
the defendant and his witnesses.
(h) Defendant's counsel then closes his case, and addresses the court generally
on the whole case.
(i) Plaintiff's counsel then replies generally on the whole case, and thus finishes
the hearing of the suit. This procedure is in accordance with O XVIII,
rules 1, 2 of the Code.

8.2.1 Trial in Open Court

It is well settled that, the courts shall hear, all cases brought before it, whether civil,
criminal or others, in public unless expressly barred under the law.
In Scott V Scott,'^'^ it was observed that, in the darkness of secrecy, sinister interest and
evil in every shape have full swing. Only in proportion as publicity has place can any
of the checks applicable to judicid injustice operate. Where there is no publicity, there
is no justice. Publicity is the very soul of justice. It is the keenest spur to extortion and
surest of all guards against improbity. It keeps the judge himself while trying under
trial in the sense that the security of securities is publicity.

40. Prakash Chander Manchanda v Janki Manchandai AIR 1987 SC 42:(1986)4 SCC 699.
41. BJanakiramiah Chethy v AKPartha Sarthi, AIR 2003 SC 3527: 2003(3) Scale 660.
42. Scott V Scott, 1^X3 KQ A\7.
 11S Mulla The Key to Indian Practice

8.2.2 Trial in Camera

In Kehar Singh v State (Delhi Admin.), it was observed that, indeed the principle
that all cases must be tried in public is really and ultimately based on the view that all
cases must be tried in public is really and ultimately based on the view that it is such
public trial of cases that assists the fair and impartial administration of justice. The
administration of justice is thus the primary object of the work done in courts; and
so, if there is a conflict between the claims of the administration of justice itself and
those of public trial, public trial must yield to the administration of justice.
Order XVIll, rule 1 states that at trial, the plaintiff has the right to begin. It is an
enabling provision entitling the plaintiff with the right to begin. The plaintiff's counsel
states his case and calls evidence in support, arid then addresses the court generally on
the whole case. The defendant's counsel then replies generally on the whole case. If it
is ,proved after the pleadings are read and issues raised, that the burden of proving the
whole case lies on the defendant, the defendant's counsel has to begin, i.e., he has to
state the defendant's case and call evidence in support of his case. Thus, if A sues B
for money lent and advanced, and if B admits the loan but contends that the loan has
been repaid, the burden of proof lies on B, the defendant. Similarly, if A sues B for
damages for breach of contract, and if B admits the contract, but denies liability on
the ground that it is a wagering transaction, the burden of proof lies on B.
Where there are several issues, the burden of proving some of which lies on the
plaintiff, and some on the defendant, the procedure laid down in O XVIll, rule 3
is to be followed. That procedure may be explained by an illustration. A sues B for
damages for breach of a contract. B denies die contract, and contends that, if there
was any contract at all, it was one by way of wager, and that he is. not, therefore liable.
Here there are two issues, (i) as to the factum of the contract; and (ii) as to whether
the contract was a wagering contract. The burden of proving the first issue lies on A,
and proving the second issue on B. Here A must begin and prove the contract. He
may then adopt one of the courses, namely (a) produce his evidence on the other issue
and then close his case; or (b) reserve it by way of answer to the evidence that may
be produced by B. In the latter case B has to produce his evidence on the issue as to
wager, and A may then call his evidence in the rebuttal. B may then reply specifically
on the evidence produced by A. A is then entitled to reply generally on the whole case.
In the hypothetical suit for specific performance with vvhich we have been dealing all
along, the burden of proving issues 3, 5, 6 and 7 lie on the plaintiff and that of proving
the remaining issues lie on the defendant. It is a case, however, which, having regard
to its facts, will proceed in the ordinary manner, and does not require any evidence in
rebuttal. If the plaintiff's counsel is absent at the time of hearing or arrives late, and
in the meantime the counsel for the defendant starts his arguments, the counsel for
the plaintifT has no right of interruption.'*'^
The same procedure as that laid down above is to be followed in cases in which
there has been a first hearing, except (a) and (b), for the pleadings in these cases have
been read and the issues have been raised at the first hearing.

43. Kehar Singh V State (DelhiAdmin.),(1988) 3 SCC 609: 1988 (2) Scale 117.
44. Sheela Parse v UOI,(1988)4 SCC 226 : AIR 1988 SC 2211.
 Chapter 8—Hearing and Disposal 119

The rules as to burden of proof are laid down in sections 104-114 of the Indian
Evidence Act, 1872. The rules as to the examination, cross-examination, and re-
examination of witnesses are laid down in sections 135-166 of the said Act. As regards
witnesses, it may be observed that the evidence of a witness of his examination-in-chief
shall be given by an affidavit and copies of the same shall be supplied to the other
party."'' However, according to O XVIII, rule 16, a witness may be examined before
the hearing when he is about to leave the jiirisdiction of the court, or if there is other
sufficient cause to examine him immediately. This is called examination de bene esse.
A witness may also be examined on commission in the cases specified in O XXYI,
rules 1, 4 and 5. One of the cases is where he'resides beyond the local limits of
the court's jurisdiction."'^ However, a witness residing within the local limits of the
jurisdiction may also be examined on commission in the interest ofjustice or expeditious
disposal of the case or for any other reason."'^ In this connection O V, rule 4 states as
to when a defendant cannot be ordered to attend in person and O XVI, rule 9 explains
as to when a witness cannot be so ordered.

As far as cross-examination and re-examination of the witnesses is concerned, it

may be taken either by the court or by the commissioner appointed by the court.''^
The commissioner has the power to remark as to the demeanour of the witness and
record the objections raised during the evidence. However, he has no power to decide
such objections and they have to be decided by the court at the stage of arguments.^'
As a general rule, the plaintiff has the right to begin in leading evidence. However,
if this claim or fact is admitted by the defendant, and he contends that the plaintiff
is disentitled to any relief on other grounds of fact, the defendant has a right to begin
in such cases. As regards the defendants inter se, which of the defendants should begin
has not been dealt with under O XVIII. The defendants who wholly or in part support
the case of the plaintiff should be called upon to lead evidence before those defendants
who do not support the case of the plaintiff.'" Whoever begins evidence, it is necessary
that the parties must give evidence before their respective witnesses, as has been stated
in O XVIII, rule 3A. This provision is salutary because no party can be allowed to fill
up the lacuna found in the evidence given by their witnesses. However, the prohibition
is not absolute. It is possible to obtain permission from the court for later examina
tion of the party. Such permission should be obtained before witnesses are examined.
However, there are judicial decisions which grant such permission even if it is sought
after witnesses are examined."

The order of adducing evidence outlined above is liable to be distributed or

disregarded by the court. It can examine any witness at any stage, with reasons to
be recorded for such deviation from the order. Suppose if a witness is suffering from

45. Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 1-7-2002), O XVIII,
rule 4.
46. See chapter 2, under the heading "Jurisdiction".
47. Code of Civil Procedure, 1908 (as inserted by the Amendment Act, 1999 w.e.f. 1-7-2002), O XVIII, rule
19 read with O XXVI, rule 4A.
48. /W,O XVIII, rule 4(2).
49. Ibid
50. Chandra Shekhar Pattjoshi v Jogendra Pattjoshi, AIR 2004 Ori 131 :97(2004) Cut LT 465.
51. Paramananda Fatehsingh v Lahanya Bawa, AIR 1979 Ori 132; Devarapalli Pattabhi Ramaiah v Lakshmi
Prasanna,(1997)3 AP LJ 475 ; (1998)2 Andh LD 783:(1997)6 AU LT 475(DB).
120 Mulla The Key to Indian Practice

disease and it is not likely that he may survive till trial takes place in its sequence,
he may be examined before recording evidence of any party or witness. The court
will exercise its discretion looking at the exigencies. If it appears that insistence on
normal sequence is likely to result in loss of evidence or non-availability of material or
valuable evidence, the order can be departed from and such witness may be examined
at any stage.

8.2.3 "Evidence Recorded by another Judge Under Order XVIII, Rule 15"
Order XVIII, rule 15 addresses an imforeseen situation where a Judge is prevented
by death, transfer or other cause from concluding the trial of a suit. It empowers his
successor to deal with any evidence or memorandum taken down or made under the
foregoing rules as if such evidence or memorandum had been taken down or made by
him or under his direction under the said rule and may proceed with the suit from
the stage at which his predecessor left it.
This rule does not apply to the Chartered High Courts. Evidence heard and
recorded by one-Judge is to be treated as evidence in suit before another Judge,
when the suit on account of change of assignment or any other reasons comes up
for hearing before some other Judge. For that, neither consent of parties nor specific
order of release of suit as part heard is required by earlier Judge who has merely
recorded evidence.'^

Further, the court has the power to recall at any stage of the proceedings, any
witness already examined as stated in O XVIII, rule 17. The provision of O XVIII,
rule 17 is merely an enabling provision for the convenience of the court and does
not permit a party to re-examine the witness to fill the lacuna in the case.'^ Under
O XVIII, rtde 17 a party or a witness can be recalled for re-examination. The
power under rule 17 of O XVIII of the Code is to be sparingly exercised and in
appropriate cases and not as a general rule merely on the ground that the recall and
re-'examination would not cause any prejudice to the parties. That is not the scheme or
intention of rule 17 of O XVIII of the Code. The power to recall any witness under
this rule should be invoked not to fill up the lacima in the evidence of the witness
which has already been recorded but to clear any ambiguity that may have arisen during
the course of his examination.'^

Where a vital question has not been put to the witness during examination due to
lapse of counsel, the witness may be re-called under this provision. The party seeking
re-call of the witness must point out the essential questions tliat had not been put to
the witness earlier. The right of the coiurt to act under this rule is not restricted to
action on its own motion."

52. Keith Allams v Irwin D'silva, AIR 2000 Bom 182:2000(1) Bom CR 788.
53. Ram Ran v Mange Ram, AIR 2016 SC 1343: 2016(3) Andh LD 162: 2016(115) ALR 880 : 2016(2)
CDR 334(SC): 2016 (4) CHN (SC) 184:2016(5) CTC 555: 120(3) CWN 121 :2016(157) DRJ 7
:2016(2)JLJR 170:2016 4 LW 447:2016(2)Pat LJR 298:2016(2) RCR (CivU) 464:2016 131 RD
717: 2016 (3) RLW 2328 (SC): 2016(3) Scale 219 ;(2016) 11 SCC 296:2016 (9) SCJ 69: 2016(3)
WLN 75 (SC)
54. Vadiraj Naggappa Vemekar v Sarad Chand Prabhakar Gogate, AIR 2009 SC 1604 (1607) : (2009)
4 SCC 410.
55. Gullipalli Naram Naidu v Kinthali KumaswamiPandian,AIR 2003 AP 481 :2003(2) All LT 406.
 Chapter 8—Hearing and Disposal 121

After the conclusion of evidence of the parties, the parties may address the oral
arguments and before the conclusion of oral arguments they shall submit concise written
arguments,"' and the court shall fix the time limit for oral arguments.'^

8.3 Judgment [Order XX]

After the case has been heard, the court may pronounce judgment at once, or
it may take time to consider its judgment and in that case the judgment may be
pronounced within 30 days of the conclusion of hearing which in exceptional and
extraordinary circumstances may be extended not beyond a period of60 days from the
date of conclusion of the hearing,^' and copies of the judgment shall be made available
to the parties immediately after pronouncement of the judgment.'' An unreasonable
delay between hearing of arguments and delivery of judgment, unless explained by
exceptional or extraordinary circumstances, is highly undesirable even when written
arguments are submitted. It is not tmlikely that some points, which the litigant considers
important, may have escaped notice. But, what is more important is that litigants
must have complete confidence in the results of litigation. This confidence tends to
be shaken if there is excessive delay between hearing of arguments and delivery of
judgments. Justice, as we have often observed, must not only be done bust must
manifesdy appear,to be done.^Tn civil cases, the judgment must be pronounced within
two months of conclusion of the hearing of the case.®' The court is to record reasons
for delay in pronouncing judgment beyond 30 days after hearing. An unreasonable delay
unless explained by exceptional or extraordinary circumstances is highly imdesirable. A
judgment delivered after a long delay is liable to be set-aside without examining the
case on merits.®^ "Judgment" means the statement given by the judge on the grounds
of a decree or order as stated under section 2(g). Every judgment (other than one of
a court of small cause) should contain:
(1) a concise statement of the case;
(2) the points for determination;
(3) the decision thereon; and
(4) the reasons for such decision. Judgments of a court of small cause need
not contain more than items (2) and (3).
In suits in which issues have been framed the court should state its findings or
decision, with the reasons for the findings, upon each separate issue. The last paragraph
of a judgment must'state in precise terms the relief granted by such judgment. The relief
allowed by the court should be specific and not in general terms.®' If a party has any
grievance as to the statement of facts recorded in the judgment, which is conclusive of
the facts so stated and cannot be contradicted by affidavit or other evidence, or about

56. Code of Civil Procedure, 1908 (as inserted by the Amendment Act, 1999 w.e.f. 1-7-2002), O XVIII,
rule 2(3A).
57. O XVIII, rule 2(3D).
58. Code of Civil Procedure, 1908 (as substituted by the Amendment Act, 2002), O XX,rule 1(1).
59. Ibid(as substituted by the Amendment Act, 1999), O XX, rule 6(B).
60. y 170/,(1976)3 see 574: AIR 1976 SC 2037.
61. AnilRai v State ofBihar, AIR 2001 SC 3173:(2001)7 SCC 318.
62. Kanhaiya Lai vAnup Kumar,AIR 2003 SC 689 :(2003) 1 SCC 430.
63. State ofBihar v Secretariat Press Ministerial StaffUnion, AIR 2002 SC 2145:(2002)9 SCC 68.
122 Mulla The Key to Indian Practice

the recording of concessions made by a party, they can call the attention of the very
judges who have made the record. And if no such step is taken, it is not open to the
party to canvass the same before the superior court to the conttary.^^
The judgments delivered/pronounced which have remained unsigned are valid,
effective and opetative as any other effective judgment signed by the judge*^' as signing
is a formality to follow the judgment, and the judgment to be operative does not await
signing thereof.®^

8.3.1 "Alteration in Judgment"

Order XX, rule 3 says that the judgment shall be dated and signed by the Judge in
open coutt at the time of its pronouncement, and once signed, such judgment shall
not afterwards be altered or added to, save as provided by section 152 CPC, 1908 or
on review.

This rule applies to appeals also. The court is well within its competence to reconsider
the draft otder so long as it has not been perfected under this rule hut it cannot do
so once the judgment is signed. "In view of the provisions under O XX, rules 3 and 6
and section 152 and section 153 of CPC, once the judgment and decree in pursuance
thereof has been passed by a court of competent jurisdiction it cannot be made subject
matter of interpretation by another court so as to mean something different from what
it shows."^^ "This rule does not bar the power of the High Court to alter under section
section 151a scheme framed by it under section 92 on a proper cause being shown."'^®
The court should state its findings or decisions with reasons thereof upon each
issue separately (O XX, rule 5) in the judgment. A judgment must be a self-contained
document from which it should appear as to what wete the facts of the case and what
was the controversy which was tried to he settled by the Court and in what manner. The
process of reasoning by which the Court came to a particular conclusion and decreed or
dismissed the suit should clearly he reflected in the judgment.^' Thus, in hypothetical
suit for specific performance widr which we have been dealing all along, the court
should record its finding on each issue. The findings form a part of the judgment. The
mode of recording the findings is "I find issue no. 1 in the negative, issue no. 2 in
the negative, issue no. 3 in the affirmative, issue no. 4 in the negative, issue no. 5 in
"the afifirmatiye, issue no. 6 in the negative, issue no. 7 in the affirmative—Rs 5,000".
This means "that^ the issues are found against the defendant except issue no. 6 as
to specific performance.-Tlye effect of the findings is the judgment for the plaintiff in
that suit for Rs 5,000. This has-been enumerated in O rules 1-5. The court may
also award costs to the plaintiff-as stated by section 35 of the Code and interest on
judgment (on Rs 5,000 and costs) at the specified rate stated in section 34.
It is pertinent to note that there is no judgment for the plaintiff for specific
performance.

64. Shankar KMandal v State ofBihar, AIR 2003 SC 4043:(2003)9 SCC 519.
65. Phool Kumari v Nandu Ram,AIR 2003 HP 75 : 2003(1) Shim LC 284.
66. VinodKumar Singh V Banaras Hindu AIR 1988 SC 371 :(1988) 1 SCC 80.
67. Kalyan Singh v VakilSingh, AIR 1990 MP 295.
68. Samarendra Nath Sinha v Krishna Kumar Nag, AIR 1967 SC 1440 : 1967(4)SCC 368.
69. Balraj Taneja v SunilMadan,(1999)8 SCC 396 : AIR 1999 SC 3381.
70. See chapter 3.
 Chapter 8—Hearing and Disposal 123

8.4 Decree [Order XX]

As clearly stated by section 33, a decree follows a judgment. O XX, rule 6A states
that after the judgment is pronounced, the decree shall be drawn up as expeditiously
as possible and in any case, within 15 days from the date on which the judgment is
pronounced. Delayed drawing up of a decree shall not have any adverse effect on its
validity as it has nothing to do with the merits of adjudication.^'
"Following essential requirements should be fulfilled if an order should be treated as a
"decree":

(i) there shoidd be an adjudication in a suit;

(ii) the adjudication should result in a formal expression which is conclusive so far as the
court expressing it;
(iii) the adjudication should determine the rights of parties with regard to all or any of
the matters in controversy in the suit; and
(iv) the adjudication should be one from which an appeal does not lie as an appeal from
an order (under section 104 and O XLIII, rule -1 of the Code) nor should it be an
order dismissing the suit for default."
The term "decree" has been defined in section 2(2). Thq essentials of the decree are:
(i) There must be an adjudication of disputes.
(ii) Such adjudication must conclusively determine rights of parties with
regards to all or any of the matters in controversy in the suit.
(iii) There must be formal expression of such adjudication.
Rejection of plaint under O.'VII and determination of any-question within section
144 are deemed to be decrees. However, any order from which an appeal lies or orders
of dismissal for default are not decrees. The decree will then be drawn up by an officer
of the court. It should contain the number of the suit, the names and descriptions of
the parties, and particulars of the claim, and shall clearly state the relief granted or
other determination of the suit, e.g., that the suit is dismissed. While drafting a decree,
care must be taken to see that it agrees with the judgment as regards the relief granted
or other determination of the suit as enumerated in O XX, rule 6. The provision
under O XX of the Code requires a judgment to contain all the issues and findings or
decision thereon with the reason therefore. The judgment has.,-tq:;aate the relief allowed
to a party. The preparation of decree follows the judgnSht.'The decree shall agree
with the judgment. If the decree does not agree with the judgment, the court has an
inherent power to amend it so as to carry out its own.meaning. Defect in drawing up
a decree is a curable irregularity.^'' The court may not have suo motu power to amend
a decree but the same would not mean that it cannot rectify a mistake.^'. The court
has also the power conferred upon it by section 152 of the Code to correct clerical
or arithmetical mistakes, in a decree arising from any accidental slip or omission. The
principle' behind the provision under section 152 of the Code is that no one should

71. Mohd Serajuddin v MohdAbdulKhalique, AIR 2005 Gau 40.

72. Cantonment Board v Church ofNorth India, 2012(12)SCC 573.
73. Om Prakash Verma v State ofAP,(2010) 13 SCC 158 (188): 2010 (10) Scale 707.
74. Mohd Serajuddin v Mohd AbdulKhalique, AIR 2005 Cau 40.
75. SSatnam Singh v Surender Kaur,(2009) 2 SCC 562(569):.AIR 2009 SC 1089.
124 Mulla The Key to Indian Practice

suffer due to a bonafide mistake/'' In either of the above cases, a dectee may be amended
by the coutt either of its own motion or on the application of any of the parties. If a
decree is sought to be amended in any other case, it can only be done by a review of
judgment which will be explained hereafter^^ or by an appeal.^® The provisions of O XX,
rule 6A enable a party to file an appeal without annexing the certified copy of the
decree alongwith the memorandum of appeal. Filing of certified copy of the judgment
would suffice and the operative portion of the judgment shall for all practical purposes
be deemed to be a dectee.'^'

The grant of mesne profit without any inquiry in terms of O XX, rule 12 of the
Code is not permissible^" and the computation of mesne profit must be in accordance
with provisions given under O XX, rule 12 of the Code."'

8.4.1 "Mesne Profits"

Section 2(12) CPC ptovides that "mesne profits" of property means those profits
which the person in wrongful possession of such property actually received or might
with ordinary diligence have received therefrom, together with interest on such profits,
but shall not include profits due to improvements made by the person in wrongful
possession. "The object of awarding a decree for mesne profits is to compensate the
person who has been kept out of possession and deprived of enjoyment of his property
even though he was entitled to possession theteof.""-'
It is thus clear that;

...Wrongful possession of the defendant is the very essence of a claim for mesne profits and
the very foundation of the defendant's liability therefor. As a rule therefore, liability to pay
mesne profits goes with actual possession of the land. That is to say, generally the person
in wrongful possession and enjoyment of the immoveable property is liable for mesne
profits. But, where the plaintiff's dispossession, or, his being kept out of possession can
be regarded as a joint or concerted act of several persons, each of them who participates
in the commission of that act would be liable for mesne profits even though he was
not in actual possession and the profits were received not by him but by some of his
confederates."'

It is no doubt the settled law that the test set by the statutory definition of "mesne
profits" is not what the plaintiff has lost by his exclusion, but what the defendant has,
or might reasonably have made by his wrongful possession."''
However, "when the person in wrongful possession planted indigo for use in his
adjacent factory and it was proved that the ordinary farmer would have grown sugar

76. TiUk Raj v Baikunthi Devi, 2009 (4) Bom CR (SC) 570 (B): AIR 2009 SC 2136 : 2009 (3) ALL MR
956 (SC).
77. See chapter 12.
78. chapters 10-11.
79. Laka KttU Sujatha v Thummu Manemma,2004 AlHC 2237(AP):2004(3) Andh LD 215:2004(3) All
LT 298.
80. Ganapati Madhav Sawant V DatturMadhav Sawant,(2008)3 SCC 183 : 2008 (1) Scale 645.
81. Manohar v Jaipal Singh,(2008) 1 SCC 520 : AIR 2008 SC 429.
82. Lucy Kochuvareed v PMuriappa Gounder,(1979)3 SCC 150: AIR 1979 SC 1214.
83. Lucy Kochuvareed v P Mariappa Gounder,(1979)3 SCC 150 ; AIR 1979 SC 1214.
84. RP David V M Thiagarajan, 1996 AlHC 1194.
 Chapter 8—Hearing and Disposal 125

cane, wheat or tapioca mesne profits should be assessed on the profits of cultivation of
those more profitable crops.
Similarly:
... Interest is an integral part of mesne profits and has, therefore, to be allowed in the
computation of mesne profits itself. That proceeds on the theory that the person in wrongfid
possession appropriating income from the property himself gets the benefit of the interest
on such income.®^

The following is a form of a decree:

Form of Decree
(Title of suit as in plaint)®^
Claim for specific performance of an agreement, dated the day of 2014, and
in the alternative for damages, Rs 5,000.
The suit coming on this, day for final disposal before [name ofthe judge] in
the presence of [pleader's namd\ for the plaintiff and of [pleader's
name] for the defendant, it is declared that the plaintiff is not entitled to specific
performance of the said agreement, and it is ordered and decreed that the defendant
do pay Rs 5,000 to the plaintiff as and for damages for breach of the contract referred
to in the plaint, and Rs on account of the costs of the suit, with interest thereon
at the rate of 6 percent per annum from this date to date of realization.
Given under my hand and seal of the court, this day of 20....
Judge

8.4.2 Kinds of Decree

A decree may be either preliminary or final. A decree is preliminary when further

proceedings have to be taken before the suit can be completely disposed of. It is final when
the suit has been completely disposed of and this has been clearly stated in section 2(2).
The form given above is a form of a final decree. A preliminary decree, as is stated by
O XX, rules 13-16, is usually passed in suits for dissolution of partnership, suits for
account between principal and agent, administration suits, and pre-emption suit. Thus,
in a suit for the dissolution of a partnership and for partnership accounts, the court
before passing a final decree, may pass a preliminary decree declaring the proportional
shares of the parties, fixing the day on which the partnership shall stand dissolved
or be deemed to have been dissolved, and directing such accounts to be taken as it
thinks fit. Where such a decree is passed,-the suit is adjourned to a date fixed by the
court for passing a final decree.. After the accounts are taken and the amount due to
each partner has been ascertained, the court may pass a final decree.
The instant case was a suit for partition of property. Where parties were entering into
compromise, it was stipulated therein that they were in separate and exclusive possession
of properties allotted to them. A decree was passed entirely on basis of compromise. As
the parties were already in possession of their shares no further enquiry was required

85. Harry Kempson Gray V Bhagu Mian, MK 1^50 82.

86. Mahant Narayana Dasjee v Tirumalai Tirupathi Devasthanam, AIR 1965 SC 1231.
87. See chapter 3.
126 Mulla The Key to Indian Practice

to be made. Held, in the circumstances the compromise decree was final decree and
not preliminary decree.®®
It is very important to note section 97 of the Code which states that if a party
aggrieved by a preliminary decree does not appeal from that decree, he will be precluded
from disputing its correctness in any appeal which may be preferred from the final
decree. If the defendant point out at the trial that the property with reference to a
particular survey number is in his possession and that it was not included in suit, the
fact that he did not file an appeal against the preliminary decree would not preclude
the defendant to point out at the final decree proceedings that his property was not
included in the decree and possession could not bc granted in respect of the same. The
trial court is bound to examine the evidence with reference to identify the property
with reference to boundaries to come to a just conclusion.®'
While passing a decree in suit for partition of property or separate possession of a
share. It is necessary for Court to examine..., the nature and character of the properties
in suit such as who was the original owner of the suit properties, how and by which
source he/she acquired such properties, whether it was his/her self-acquired property or
ancestral property, or joint property or coparcenery property in his/her hand and, if so,
who are/were the coparceners or joint owners with.him/her as the case may be. Second,
how the devolution of his/her interest in the property took place consequent upon his/
her death on surviving members of the family and in.what proportion, whether he/
she died intestate or left behind any testamentary succession in favour of any family
member or outsider to inherit his/her share in properties and if so, its effect. Lasdy,
whether all properties are included in the suit and all co-sharers, coparceners, co-owners
or joint-owners, as the case may be, are made parties to the suit.'"
A preliminary decree can be varied if law governing the parties is amended before
conclusion of the final decree proceedings,-the party'benefited by such amendment
can,make a request to the Court to take cognizance of the amendment and give effect
to the same, if the rights of the parties to the suit change due to other reasons, the
Court seized with the final decree proceedings is not only entitled but is duty bound
to take notice of such change and pass appropriate order."

8.4.3 Passing of more than One Preliminary or Final Decree

There can be more than one preliminary or final decree within the meaning of
section 2(2) CPC. There is nothing in the Code of Civil Procedure which prohibits the
passing of more than one preliminary decree, if circumstances justify the same and that
it may be necessary to do so, particularly in partition suits when after the preliminary
some parties die and the shares of other parties-are thereby augmented. If such an
event transpires the court can and should pass a second preliminary decree correcting
the shares and if there is a dispute in that behalf the order of the court deciding the
dispute and making the variations in the shares specified in the preliminary decree
already passed, is a decree in itself, which would be liable to appeal.'^

88. BimalKumar V Shakuntala Debi, 2012(3)SCC 548 : AIR 2012 SC 1586.

89. Selvi V Gopalakrishnan Nair,(2018)7 SCC 319 : 2018 (129) ALR 241.
90. Shasidhar V Ashwini Uma Mathad, KPKTDXb (SC) 1139 :(2015) 11 SCC 269.
91. Prema v Nanje Gowda, 2011 (6) SCC 462 : AIR 2011 SC 2077.
92. Phool Chand v GopalLal, AIR 1967 SC 1470 :(1967)3 SCR 153.
 chapter 8—Hearing and Disposal 127

Ordinarily there will be only one final decree in a suit. Special circumstances like
two or more causes of action joining together may require the passing of more than one
final decree in the same suit. The definition of decree itself does not put any limitation
on the power of the court to make one or more final decrees nor does it declare that
the court would become functus-officio or would be bereft of its jurisdiction no sooner
than it passes a- final decree irrespective of whether that decree finally disposes of the
suit or not.'^ There is nothing in the Code to infer that the court cannot pass more
than one final decree in a suit.

8.4.4 "Interest" Under Section 34 of Code of Civil Procedure

The term "interest" has not been defined in the Code. Black's Law Dictionary
(7th Edition) defines "interest" inter alia as the compensation fixed by agreement or
allowed by law for the use or detention of money, or for the loss of money by one
who is entitled to its use; especially, the amount owed to a lender in return for the
use of the borrowed money. According to Stroud's Judicial Dictionary of Words and
Phrases (5th Edition) interest means, inter alia, compensation paid by the borrower to
the lender for deprivation of the use of his money.
There are three divisions of interest according to the period for which intere;st is
allowed by the Court, viz:
(1) Pre-lite-. interest accrued due prior to the institution of the suit on the
principal sum (due) adjudged. Interest for the period anterior to institution
of suit is not a matter of Procedure as it is referable! to substantive law and
can be sub-divided into two sub-heads; (i) where there is a stipulation for
the payment of interest at a fixed rate (contract rate) and (ii) where there
is no such stipulation as per statutory provisions providing certain rate of
interest and in its absence as per the interest Act (from date of demand
(from date of service of demand notice) and at prevailing market rate and
bank lending rate as guidance).
(2) Pendent-lite-. In addition to pre-lite interest, it is the additional interest on
the principal sum adjudged or declared due from the date of the suit either
at contract rate if reasonable or at such rate as the Court deems reasonable
in the discretion of the Court (as per section 34 CPC till date of decree
or under O 34 rule 11 CPC in case of mortgage debt if contract rate is
unreasonable and excessive to reduce even from date of suit till expiry of
the period of redemption) as not a substantive law;
(3) Post-lite-. In addition to pre-lite interest on principal sum and pendent-lite
interest on the principi sum adjudged or found due, it is the further
interest on such principal sum (as per section 34 CPC or under O 34
CPC as not a substantive law, from the date of the decree to the date
of the payment and in mortgage decree from date of preliminary decree
till expiry of period of redemption and thereafter till realization/payment
as the case may be in any decree for money held due with or without
charge preliminary or final or pardy final decree) or to such earlier

93. Azizabi V Fatima Bi,(1977) 1 Andh WR 136(141) DB.

94. Central Bank ofIndia v Ravindra,(2002) 1 SCC 367:AIR 2001 SC 3095.
128 MulL The Key to Indian Practice

date as the Court thinks fit, in the discretion of the Court, at a rate
not exceeding 6 per cent per annum except where the transaction is a
business or commercial one to grant above 6 percent but does not exceed
contract rate.''
So far as the rate of pendent-lite and post-lite interest is concerned, no doubt it is
at the discretion of the court save the power is exercised judiciously, having regard to
the principle of restitution. It was by taking note of drastic fall in bank rate of interest
that the Apex Court reduced the post lite interest from 18% to 9% p.a."'
Interest is also payable in equity in certain circumstances. The rule in equity is
that interest is payable even in the absence of any agreement or custom to that effect
though subject, of course, to a contrary agreement. Interest in equity has been held
to be payable on a market rate even though the deed contains no mention of interest.
Applicability of the rule to award interest in equity is attracted on the existence of
a state of circumstances being established which justify the exercise of such equitable
jurisdiction and such circumstances can be many.'^
Section 34 CPC does not provide for the payment of "Compound Interest" i.e
interest on interest. But it can be awarded if stipulated by way of agreement. The
Hon'ble Supreme Court has noted the practice of charging interest as prevalent in
Australia, Canada and India to hold that "compound interest can be awarded by Courts
in India when justice so demands and is not to be regarded as being against public
policy. The Court noted that it is a common knowledge that provision is made for the
payment of compound interest in contracts for loans adviJiced by banks and financial
institutions and such contracts are enforced by Courts."'®

8.4.5 "Costs" Under Sections 35,35-A and 35-B

According to Black's Law Dictionary "costs is a pecuniary allowance made to
the successful party for his expenses in prosecuting or defending a suit or a distinct
proceeding with a suit." "Costs" under CPC may be divided into four heads i.e. General
Costs (section 35), Miscellaneous Costs(O XX-A), Compensatory Costs (section 35-A)
and Costs for causing delay (section 35-B).
Section 35 confers the courts with discretionary power to award the costs. Even if
the court has no jurisdiction to try the suit yet it can award costs in exercise of such
powers. "The object of section 35 is not to enable litigant to make anything in the way
of gain or profit, over and above the expenses for maintaining or defending the action,
nor to give exemplary damages or smart money, by way of penalty or punishment on
the opposite party."" "Awarding of costs under section 35 must be a judicial discretion
exercised on sound legal principles.""" "The general rule is that costs shall follow the
event i.e. successful party is entitled to his costs, unless he is guilty of misconduct or
there is other good cause for depriving him of it.""" "But where the court directs that

95. MRajeswar Rao v Chitluri Satyam, Review ASMP No. 2386 OF 2013 decided on 09-12-2013.
96. DDA V Joginder S Monga,AIR 2004 SC 3291 :(2004)2 SCO 297.
97. South Eastern Coalfields Ltd v State ofMR AIR 2003 SC 4482:(2003)8 SCO 648.
98. Renusagar Power Co Ltd v GeneralElectric Co, 1994 Supp (1)SCC 644: AIR 1994 SC 860.
99. The Firm ofNPeddanna Ogeti Balayya v Katta VSrinivasayya Setti Sons, AIR 1954 SC 26.
100. Vittal Shetty v Parameshwari alias Ujjakke Shedthi, AIR 1954 Mad 100 :(1952) II Mad LJ 932.
101. TS Swaminathaudayar v Ojficial Receiver ofWest Tanjore, AIR 1957 SC 577:(1957) 1 SCR 775.
 Chapter 8—Hearing and Disposal 129

any costs shall not follow the event, the court shall state its reasons in writing."'"^ The
court has full power to determine by whom or out of which property and to what
extent such costs are to be paid, and to give directions for such purposes.
Order XX-A inserted by the Code of Civil Procedure (Amendment) Act, 1976 gives
explicit powers to the court to award costs in lieu of expenditure, including expenses
incurred on notices, typing charges, expenses of witnesses and obtaining copies etc.
The award of costs .under this provision shall be regulated by the rules made by the
high court.
Section 35-A empowers the court to make an order for compensatory costs in respect
of false or vexatious claims or defences. "Section 35-A is intended to deal with cases
for which the exercise of ordinary discretion of the Court under section 35 would not
afford a sufficient compensation.""" "Section 35-A empowers a civil court to award
compensatory costs in extremely exceptional cases. Three conditions are to be satisfied
before the court proposes to award compensatory costs in a suit. They are (1) the claim
or defence must be false or vexatious (2) objection must be taken that the claim or
defence is false or vexatious to the knowledge of the party raising it (3) such claims or
defence must have been disallowed or withdrawn or abandoned in whole or in part. "104

Section 35A is sufificiendy wide to bring within it not only a party who actually
puts forward a false claim or defence but also a person who instigates and supports
the party who puts forward such claim or defence. Thus, where one of the defendants
is the real actor or instigator behind the plaintiff's vexatious claim, the court can pass
an order for compensatory costs, under this section, both against the plaintiff and
the defendant. This provision does not apply to appeals or revision but includes
execution proceedings. The court can award costs under section 35A not exceeding Rs
3000 or the hmits of its pecuniary jurisdiction, and the amount awarded under this
section shall be taken into account in any subsequent suit for damages or compensation
in respect of such claim or defence. The Supreme Court said in Vinod Seth v Devinder
Bajaf^'^ that is provision in respect of false or vexatious claims or defences has become
virtually infructuous and ineffective, on account of inflation. The amount of Rs 3000
requires a jealistic revision keeping in view the observations in Salem Advocate Bar
Association .II case^"^ about the need to factor actual reasonable costs including the cost
of the time spent by the successful party, transportation and lodging, if any, or any
other incidental costs besides the payment of the lawyers fee, typing and other costs
in relation to the litigation.
Section 35-B enables the courts to impose "costs for causing delay". It provides
that if, on any date fixed for the hearing of a suit or for taking any step therein, a
party to the suit-(i) fails to take the required step, or (ii) obtains an adjournment for
taking such step or for producing evidence or on any other ground, the court may,
for reasons to be recorded, impose costs on such party payable to the other party
which are reasonably sufficient to reimburse the other party in respect of the expenses
102. Section 35(2) CPC 1908.
103. VPeddarangaswami v State ofMadras, AIR 1953 Mad 583 (1953)ILR Mad 583
104. 1986 KerLT 278.
105. Chittam Stibbayya v Muthyala Ramachandrappa, AIR 1945 Mad 84.
106. Vinod Seth v Devinder Bajaj, (2010)8 SCC 1 : 2010 (82) ALR 335.
107. Salem Advocate Bar Association (II), Tamil Nadu v UOI,(2005)6 SCC 344 ; AIR 2005 SC 3353
130 Mulla The Key to Indian Practice

incurred by him in attending the court on that date. Further, the payment of such
costs, on the date next following the date of such order, shall be a pre-condition to
further prosecution of- (a) the suit by the pl^ntiff, where the plaintiff was ordered to
pay such costs or (b)" the defence by the defendant, where the defendant was ordered
to pay such costs, as the case may be.
"The provisions of section 35-B are mandatory. The provisions of section 35-B(2)
of the code, which provide for the recovery of the amount of costs independently
on the basis of the order to be separately drawn up for that purpose, further shows
as to how sacrosanct and binding the order of costs is intended to be treated by
the legislature."'"^ The Supreme Court also lamented that courts seldom invoke this
provision and exhorted, if regularly employed, it will reduce delay.""

8.5 Where Parties Do not Appear [Order K]

"We have hitherto assumed that both the plaintiff and the defendant appear at the
hearing of the suit. We have now to consider the consequence of the non-appearance
of parties. The rule as to this may be briefly stated as follows:
(i) "Where on the day fixed for appearance, it is found that the summons was
not served upon the defendant in consequence of the plaintiff's failure to
pay the court fee or postal charges, chargeable for that service or to present
the copies of the plaint, the court may order for dismissal of the suit. This is
clearly stated by O K,rule 2 of the Code (as amended by the Amendment
Act, 2002 w.e.f. 1 July 2002). However, no order of dismissal may be made,
if the defendant appears in person or through agent on the day fixed for
him for appearance as is provided by proviso to O IX, rule 2.
(ii) Order EX, rules 3-4 state that where neither party appear when the suit
is called on for hearing, the court may make an order that the suit be
dismissed. However, it is not obligatory upon the court to dismiss the suit.
The dismissal under this rule does not amount to a decree and no appeal
lies therefrom. However, the plaintiff may then bring a fresh suit, or he may
apply for an order to set the dismissal aside. If the court is satisfied that
there was sufficient cause for his non-appearance, it "shall" make an order,
setting aside the dismissal and fix a day for proceeding with the suit. The
court has to consider whether there was sufficient cause for the absence on
the relevant date and not on previous/subsequent date."" No notice of the
application for setting aside the dismissal order is required to be served on
the defendant. But once the application is allowed, the defendant is entitled
to get notice of restoration and date of further hearing.'" Requirement of
■ notice is mandatory. Non service of notice is sufficient to get decree set
aside.

108. Shri Anand Parkash v Shri Bharat Bhushan Rai, AIR 1981 Punjab 269 : 1982(1) RCR (Rent) 1.
109. VtnodSethvDevinderBajaj,(2010)8 SCC 1 : 2010 (82) ALR335.
110. GP Srivastava v RKRaizada, AIR 2000 SC 1221 :(2002) 3 SCC 54. ,
111. JawarPrasadShaw vJhaina Ghosh, AIR 2005 NOC 303 (Cal): 2005 (1) CHN 12.
112. Reena Sadh vAnjana Enterprises, AIR 2008 SC 2054:(2008) 12 SCC 589.
 Chapters—Hearing and Disposal 131

The filing of a fresh suit by the plaintiff, after the earlier suit having been
dismissed under O IX, rule 2 or under O DC, rule 3, shall be subject to
the law of limitations prescribed for such suit, and if the plaintiff chooses
to apply for- setting aside the dismissal order of suit, he shall move an
application within 30 days of the order of dismissal of the suit.'"
(iii) Where the plaintiff appears and the defendant does not appear, the plaindff
has to prove service of summons on the defendant. If it is proved that
the summons was duly served, the court may proceed ex parte, and pass
a decree for the plaintiff, on the plaintiff proving his case. "The provision
of O K, rule 6 is-confined to first hearing and does not per.se apply to
subsequent hearings.""^ Where the date of hearing is declared a holiday,
the court should not proceed ex-parte on the next working day.'" Where
a decree is passed ex parte against a defendant, he may prefer an appeal
from the decree (a course that is rarely adopted), or he may apply for an
order to set it aside. If the court is satisfied that the summons was not
duly served or that there was sufficient cause for his -non-appearance, the
court "shall" make an order setting aside the decree, and shall appoint a
day for proceeding with the suit. Where an ex parte decree has been passed
against two or more defendants;, and if one, of them only applies for an
order to set it aside, the courf may set it aside as against all the defendants
if the decree is of such a nature- that it cannot be set aside as against such
defendant only. This happens when the decree is one and indivisible, as
where it has been passed against the members of joint Hindu family for
a debt alleged to be- due firom the family. The above has been stated in
O IX, rules 6-13.
Few changes were made in 1976 with regard to setting aside of an ex parte
decree or order and these deserve,our attention; We are aware that an ex
decree'can be set aside if summons were not properly served. This
provision was sometimes misused. A party, who may be fully aware of the
pendency of suit may remain absent because there is some irregularity in-
the service ofsummons and may apply for setting aside ex parte decree after
it is passed. To remedy this, now there is a provision under O IX, rule 13,
that an ex parte decree shall not be set aside on the ground of irregularity
in the service of summons if the court is satisfied that the defendant had
the knowledge of hearing of the suit. Secondly, no application for setting
aside ex parte decree will be maintainable once appeal against such decree is
disposed of by a higher court. If appeal is withdrawn, then such application
can be maintained.
In cases where the court has proceeded ex parte against the defendant,
and the hearing of the case is adjourned without passing a decree for the
plaintiff, O IX, rule 7 provides that the defendant may apply to the court
for setting "the ex parte order" aside. Neither the Code nor the Limitation
Act, 1963 prescribe the period of limitation in concrete terms for moving

113. Limitation Act, 1963, Article 123.

114. Sangram Singh v Election Tribunal, AIR 1955 SC 425 :(1955)2SCR 1.
115. Rafiv AbdulAziz, MK 1987 All 17.
132 Mulla The Key to Indian Practice

such an application. However, it has to be on or before the date for which

the hearing of the case was adjourned and on showing sufficient cause,
the court may set aside the ex pane order as is stated under O IX, rule 7.
But, where the hearing of the suit is complete and the court has adjourned
the case for pronouncing the judgment, application under O DC, rule 7
would not be maintainable."®
Where an ex-pane order is set aside, the defendant is relegated to the
position as on the date when he was proceeded ex pane and shall he allowed
to join the proceedings therefrom and not from a prospective date."^ The
court shall take care of the loss of time and inconvenience caused to the
plaintiff by relegating back the proceedings to an earlier stage."® In cases
where the defendant fails to show a good cause for his non-appearance, the
litigation does not come to end and he can take part in the proceedings
of the suit from the stage already reached till final decision."'
(iv) "Where the defendant appears and the plaintiff does not appear, and the
defendant does not admit the plaintiff's claim or any part thereof, the
court "shall" make an order that the suit be dismissed. The rule applies
where there is only one plaintiff who does not remain present or there are
two or more plaintiffs and all of them remain absent. The plaintiff is then
precluded from bringing a fresh suit in respect of the same cause of action.
However, he may apply for an order to set aside the dismissal, and if he
satisfies the court that there was sufficient cause for his non-appearance,
the court "shall" make an order setting aside the dismissal and appoint a
day for proceeding with the suit. This has been stated in O DC, rules 8-9.
A liberal approach should be made to understand the sufficient cause for
non-appearance.
In Chhotalal v Ambalal Hargovan,^^'^ the High Court of Bombay observed
that when a party arrives late and finds that his suit or application is
dismissed, he is entitled to have his suit or application restored on payments
of costs.
In a subsequent case in Cunimbhai v NH Moos^^^ the same high court
held that it would be difficult to agree with Chhotalal in principle as a
proposition of law. If such a rigid rixle is laid down, it might mean this
that a defendant could successively prevent his suit ever being heard. All
that he would have to do would be appear late on successive dates, and
allowed the suit to be heard ex parte and then to apply at the end of each
day to have the suit restored for hearing. That obviously is a course which
no court would allow.
Notice of the application is required to be given to the defendant before
restoration of the suit under this rule.

116. Bhanu KumarJain vArchana Kumar, AIR 2005 SC 626:(2005) 1 SCC 787.
117. Rita Chaudhrie v Samtya Dev, 2004 AIHC 2181 (Del); 2004 (72) DRJ 518.
118. Vijay Kumar Madan v RN Gupta Technical Education Society,(2002) 5 SCC 30:AIR 2002 SC 2082.
119. EastIndia Cotton Manufacturing Co Ltd v SP Gupta, 28 (1985) DLT 22: 1985 (8) DRJ 348.
120. Chhotalal v AmbalalHargovan, AIR 1925 Bom 423:(1925) 27 Bom LR 685.
121. Currimbhai V NHMoos, :(1929) 31 Bom LR 468.
 Chapter 8—Hearing and Disposal 133

On restoration of the suit all interlocutory orders which have been passed
before the dismissal would stand revived imless the court expressly or by
implication excludes the operation of the interlocutory orders passed before
the dismissal.'^^
If application for restoration of suit dismissed under O IX, rule 8, be filed
within 30 days of dismissal,'^ an appeal lies from an order rejecting an
application under O DC, rule 9'^^ and a revision against an order restoring
a suit dismissed in default.
These rules do not apply to non-appearance owing to death'^' as the rule
applies to a defaulter and not to a deceased.
(v) According to O DC, rule 10 where there are more plaintifliS than one,
and one or more of them appear and the others do not appear, the court
may permit the suit to proceed as if all had appeared, or make such order
as it thinks fit.
(vi) According to O DC, rule 11 where there are more defendants than one,
and one or more of them appear and the otherS' do not appear, the coiurt
may permit the suit to proceed as if all had appeared, or make such order
as it thinks fit.

The suit of the plaintiff is also liable to be dismissed under O DC, rule 5 where the
summons to the defendant.was received unserved and the plaintiff fails to apply for
issuance of fresh summons to defendant within 7 days fi-om the date of return made
to the court, unless he shows a sufficient cause for extending the time.'^^
The consequence of non-appearance as enumerated under O DC of the Code shall
ensue where either the plaintiff or the defendant who has been ordered to appear in
person neither appears, nor furnishes any sufficient'cause for such non-appearance is
stated in O DC, rule 12.
The term "sufficient cause" appearing at various places in O DC has received a liberal
interpretation. The ultimate purpose of doing substantial justice must be kept in mind.
After all, judgment rendered by the court after ofifering opportunities to all parties and
in satisfaction of principles of natural justice is much more valuable than judgment in
absence of either parties. Normally, if it appears to the court that cause for absence is
bona fide, rhe court will set aside the order passed ex parte. However, where it appears
that any party was recalcitrant or mala fide it may refuse ro set aside ex parte orders.
"The test to be applied is whether the party honesdy intended to remain present at
tlie hearing of the suit and did his best to do so."'^^ Negligence can be condoned, but
indifference stemming from ulterior motives may meet stern rejecrion of application to
set aside ex parte decree or order. Similar rerminology is used in section 5 of Limitation
Act, 1963 were also it has received such broad construction.'^^

122. VareedJacob v Sosamma Geevanghese, AIR 2004 SC 3992:(2004)6 SCC 378.

123. Limiiation Act, 1963, Article 122.
124. KP]a\akiimar v KRavindran, AIR 2004 Ker 209(DB); 2004 (1) KLJ 115-
125. Raja O' ebi Baksh V Habib Shah,(191.3) 40IA151 :(1913) ILR35A11331 (PC).
126. Code of Civil Procedute, 1908 (as amended by the Amendment Act, 1999 w.e.f. 1-7-2002), O DC, rule 5.
127. PayaiAshok Kumar V Ashok Kumar,(1992)3 SCC 116: 1992 SCR (3) 81.
128. It woiild be relevant and important at this stage to read Code of Civil Procedure, 1908, O X, O XIII,
rules 1-2.
 CHAPTER 9

EXECUTION OF DECREES
SYNOPSIS

9.1 Meaning of Execution 134 9.2 Payment Out of Court 138

9.1.1 Application for Execution.... 135 9.3 Garnishee 139
9.1.2 ^'ho May Apply for 9.4 Stay of Execution 139
. Execution - 135 9.5 Execution Against Property
9.1.3 Against Whom Execution of Judgment-Debtor 139
May be Applied for 135 9.5.1 Irregularity in the Condua
9.1.4 Notice before Issuing of Sale of Attached Property... 141
Process 135 9.6 Disposal of Sale-Proceeds 142
9.1.5 Mode of Execution 136 9.7 Resistance to Delivery
9.1.6 Execution Against Person of Possession to Purchaser 142
of Judgment-Debtor 136 9.8 Courts by whicb Decrees May
9.1.6.1 Decree for Payment of be Executed 143
Money 136 9.9 Percepts ". 143
9.1.6.2 Decree other than 9.10 Questions to be Determined
Money Decree 137 by Court Executing Decree 143
9.1.6.3 Procedure 137 9.11 Procedure 144
9.1.6.4 Restriction and 9.11.1 Execution of
Conditions 138 "Cross-Decrees" 144
9.1.6.5 Period of Detention 9.12 Need for Parliaments Intervention
and Release 138 to Scutde Long Execution Process... 144

9.1 Meaning of Execution

The term "execution" has not been defined in the Code. "Execution" means the
process for enforcing or giving effect to the judgment of the court, and is complete
when the judgment-creditor gets the money or other thing awarded to him by .the
judgment.' Execution is the enforcement of decree or orders by the process of the court
so as to enable the decree holders to realize the fruits of the decree, judgment, or order.^
Suppose that in the hypothetical suit for specific performance^ a decree is passed^
for the plaintiff for Rs 5,000. Suppose, further, that the defendant does not pay the
amount of the decree to the plaintiff. Then a'question that arises here is as to what steps
should the plaintiff take to enforce the decree against the defendant, in other words,
how should he proceed to execute the decree? The subject of execution of decrees is
dealt with in O XXI of the Code which makes detailed and exhaustive provision for
execution of decrees and orders, and are substantive as well a procedural. That order
contains 106 rules, and is the longest of all orders in the Code. The present chapter
contains an analytical abstract of that order. The reference to the rtiles given in this
chapter is to the rules of O XXI.

1. Re Overseas Aviation Engineering (GB) Ltd, (1962) 3 All ER 12.

2. State ofRajasthan v Rustamji Savkasha, AIR 1972 Guj 179.
3. See chapter 3.
4. See chapter 8.

134
 Chapter 9—Execution ofDecrees 135

A obtains a decree against 5 for Rs 5,000. Here A is the decree holder, B is the
judgment-debtor, and Rs 5,000 is the judgment-debt.. If B fails to satisfy the decree,
A may apply for execution of the decree against B's person, or against his property, or
both. This has been specified by rule 30. However, the court may, according to rule 21
in its discretion, refuse execution at the same time against the person and property of
the judgment-debtor. Execution against the person of the judgment-debtor consists in
arresting him and detaining him in jail. Execution against the property of the judgment-
debtor consists in attaching and selling his property, and paying the decree-holder the
amount of the judgment-debt out of the sale proceeds.
9.1.1 Application for Execution
Rule 10 specifies that all proceedings in execution are to be commenced by an
application for. execution. Rule 11(2) states that the application for execution must
be made in cases of decree, other than a decree granting a mandatory injunction,
within 12 years firom the date of the decree' and in cases of decree for a mandatory
injunction, within three years from the date of the decree^ in writing, and should contain
the particulars set forth in rules 11(2) to 14. However, rule 11(1) state that the only
exception is where the decree is for the payment of money and the judgment-debtor is in
the precincts of the court when the decree is passed, in which case the court may ordet
immediate execution on the oral application of the decree-holder at the time of passing
the decree. If the application complies with the requirements of rules 11(2) to 14, the
court will issue its process for the execution as per rule 24. If it does not, the court
may reject it, or may require it to be amended as stated by rule 17. If the application
is rejected, the decree-holder may present another application properly framed.
9.1.2 Who May Apply for Execution
Rule 16 primarily deals with the rights of a transferee of decree, who has been
given the right to seek execution at pat with the transferor-decree holder. If the decree
has been passed jointly in favour of more persons than one, any one of such persons
may apjply for execution as provided by section 146. For Example, a decree passed in
partition suit can be executed by the defendant as he is also a decree-holder to the
extent of share allocated to him.

9.1.3 Against Whom Execution May be Applied for

Section 50 specifies that if the judgment-debtor is living, execution is to be applied for
against him. If he is dead, execution may be applied for against his legal representatives.
In the latter case, the decree may not be executed against the person of the legal
representative, but only against the property of the judgment-debtor which has come
to the hands of the legal representative, and has not been duly disposed of by him.
Execution may be taken out against, "Surety of the judgment-debtor.
9.1.,4 Notice before Issuing Process
Rule 22 states that ordinarily, no notice is required to be issued and the court can
issue its process for the execution of the decree. However, under certain circumstances
notice is required to be to be issued before the issue of process. They are as follows:
5. Limitation Act, 1963, Article 136.
6. Ibid, Article 135.
136 Mulla The Key to Indian Practice

(i) Where the application for execution is made more than two years after
the date of decree.
(ii) WTiere such application is made against the legal representative of a party
to the decree.
(iii) WTiere such application is made against the assignee or receiver in
insolvency where a party to the decree is adjudged insolvent.
In a case where application for execution is made by arrest and detention
of the judgment-debtor in case of a money decree, the court is required to
issue a notice under rule 37, unless it appears that the judgment-debtor is
likely to abscond or leave the local limits of the jurisdiction of the court
in which case, no notice is necessary.
(iv) Where the execution of the money decree is sought against the person of
the judgment-debtor.
(v) WTiere the execution is sought against the surety of the judgment-debtor.
(vi) WTiere the execution is sought by the transferee or assignee of the decree-
holder.

The notice is issued to the judgment-debtor in order to afford an opportunity to him

to put forward his objections against the maintainability of the execution application
and to enable the judgment-debtor to satisfy the decree before execution is ordered
against him.

9.1.5 Mode ofExecution

More than one mode of execution of decrees has been provided under the Code.
Section 51 of the Code specifies thus.
The decree can be executed in any of the following modes:
(i) by delivery of any property specifically decreed;
(ii) by attachment and sale of property;
(iii) by sale without attachment of any property;
(iv) by arrest and detention in prison;
(v) by appointing a receiver;
(vi) by such other mode or manner as the nature of the relief granted may
require.
A decree-holder has the option to choose a particular mode for executing and
enforcing a decree in his favour. It is for him to decide in which of the several modes
he will execute his decree.'' The modes or kinds of execution are subject to the conditions
and limitations prescribed under the Code. We shall consider two chief modes of
execution of decrees.

9.1.6 Execution Against Person ofJudgment-Debtor

9.1.6.1 Decree for Payment ofMoney
In case of a money decree, it'can be executed by attachment and sale of the property
of the judgment-debtor or [ ] or both. The provision specifying this is not
7. Shyam Singh v Collector, District Hamirpnr, (1993) Supp (1) SCC 693: 1993 (2) BLJR 1171.
 chapter 9—Execution of Decrees 137

exhaustive and does not override other provisions of the Code of Civil Procedure,
1908.^ However, a person can be arrested and detained in civil prison in execution of
money decree in any one of the following circumstances only:
(i) the judgment-debtor has dishonestly transferred, concealed or removed his
property or has committed any other act of bad faith or the judgment-
debtor is likely to abscond or leave the local limits of the court's jurisdiction
with the object or effect of obstructing or delaying the execution of the
decree; or
(ii) the judgment-debtor has the means to pay the amount of the decree and
refuses or neglects to pay the same; or
(iii) the decretal dues are such that the judgment-debtor is bound in a fiduciary
capacity to be accountable.
However, section 51 also specifies that while calculating the means possessed by the
judgment-debtor, the properties, which cannot be attached in execution of a decree are
to be excluded. The words "refuses or neglects" envisages the capacity to pay. Inability
to pay is not the same thing as refusal or neglect to pay. Default due to inability as
distinguished from refusal or neglect does not justify arrest and detention. It would be
violative of Article 21 of the Constitution as well as spirit of Article 11 of International
Covenant on Civil and Political Rights. Earlier income of the judgment debtor would
be immaterial. The executing court is bound to enquire his present financial position
and ability to satisfy the debt.' Some element of bad faith must be present. Before a
person is arrested and detained, it is obligatory upon the court to issue notice and afford
opportunity of hearing to the judgment-debtor. Where the judgment-debtor disobeyed
the order of injunction and trespassed into the suit property, he may be ordered to be
arrested or detained in civil prison."

9.1.6.2 Decree other than Money Decree

Besides money decree, there are several kinds of decrees which can be executed by
arrest and detention of the judgment-debtor. They are as follows:
(i) Decree for specific movable properties.
(ii) Decree for specific performance of a contract.,
(iii) Decree for perpetual injunction.
9.1.6.3 Procedure

The procedure differs depending upon the nature of the decree. In case of a money
decree, the notice is required to be issued. As stated earlier, after such notice is issued,
if judgment-debtor does not appear in obedience to the notice, the court shall issue a
warrant for arrest as provided by rule 37(2). After the judgment-debtor appears, the
court shall hear the decree-holder and take the evidence and give opportunity to the
judgment-debtor to show cause. After hearing both the parties, the court may order
detention or release. The court also has the power to detain the judgment-debtor
pending the conclusion of the inquiry as stated under rule 40.
8. Saraswatibai v Govind Rao Keshav Rao Mahajan. AIR 1961 MP 145 (FB) : 1961 MP LJ 1256.
9. Jolly George Varghese v The Bank of Cochin, (1980) 2 SCC 360 : AIR 1980 SC 470.
10. Ramakrishna Naidu v Sethuraman, AIR 2005 Mad 108.
138 Mulla The Key to Indian Practice

In case of decrees other than money decrees, no notice is required to be issued unless
the case falls under rule 22. However, in all such cases, the court has the discretion to
issue notice instead of process for execution.

9.1.6.4 Restriction and Conditions

According to section 57, no woman can be arrested or detained in execution of

a money decree. No person can be arrested till the decree-holder pays subsistence
allowance in the court. The state government may fix the scales according to rank,
race and nationality as per section 57 and rule 39. No arrest can be made if the
judgment-debtor pays the amount of the decree and cost to the officer arresting him
as has been stated under section 55. Section 55 also provides that rlo dwelling house
shall be entered into after sunset and before sunrise for the purpose of making arrest.

9.1.6.5 Period ofDetention and Release

The total period of detention shall not exceed three months. However, in case where
the decretal amount does not exceed Rs 5,000 such period of detention shall not exceed
six weeks." If the decretal amount is Rs 2,000 or less, the judgment-debtor, in such
cases, cannot be detained in civil prison.'^ On expiry of the period of detention, he
shall be released. Such release does not discharge him from the judgment-debt. However,
he cannot be re-arrested in execution of the same decree. He can be released from the
detention before the expiry of the prescribed period in the following cases:
(i) payment of amount mentioned in the warrant;
(ii) satisfaction of the decree in any other manner;
(iii) request of the applicant at whose instance judgment-debtor is detained;
(iv) omission to pay subsistence allowance;
(v) serious illness.

9.2 Payment Out of Court

An important question to be asked here is that, suppose that B has paid, in part
payment, Rs 3,000 to A after the decree was passed out of court, is the court bound
to take such payment into account? It is quite unsafe to try and get a satisfying decree
out of court without complying with the procedural formalities.
Where any decree is satisfied, wholly or in part, out of court, the decree-holder
shall certify such satisfaction to the court and the court shall record the same. If the
decree-holder does not certify, the judgment-debtor may apply to the court and such
court may certify after issuing a notice to show cause of the failure of the decree-holder
to satisfy that there was no satisfaction of the decree as claimed. However, before such
satisfaction is recorded, it must be established that it is proved by documentary evidence
or that it is made in accordance with the rules.

If any satisfaction of the decree is not certified by the decree-holder or recorded by

the court after following aforesaid prescribed procedure, it shall not be recognized by

11. Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 1-7-2002),
section 58(1).
12. Ibid, section 58(1A).
 Chapter 9—Execution ofDecrees 139

the court executing the decree. If payment of Rs 3,000 is not certified by the decree-
holder and not recorded by the court, the decree for Rs 5,000 can be executed without
taking account of the part of Rs 3,000.

9.3 Garnishee
Suppose, in the case given above, B has to recover Rs 3, 500 from C. A can m^e an
application for attachment of the debt owned by C to R in order to secure satisfaction
of his decree against B. C is called "garnishee . Stated simply, garnishee means a
judgment-debtor's debtor. A garnishee has been defined as "one in whose hand money
belonging to a debtor is attached at the suit of the creditor".'^ The word "garnishee"
denotes one who is required to "garnish", i.e., to furnish a creditor with the money
to pay oflf a debt.'^
Garnishee proceedings are a process of enforcing a money judgment by the seizure
or attachment of the debts due or accruing due to the judgment debtor which form
part of his property available in execution. Before issuing attachment, the court may
issue a notice to the garnishee. Such notice calls upon the garnishee to pay the amount
to satisfy the decree or to show cause why he should not do so. If garnishee rnakes
payment in the court, it will amount to a valid discharge of his debt. The garnishee
has the right to show cause why such debt is not payable or why he should not be
called upon to make payment in the court. If the garnishee disputes the liability, it
shall be decided as if it was an issue in a suit and upon determination of such issue,
the court can make order as deemed fit. Such determination is appealable as a decree
as provided for in rules 46(A) to 46(1). Money payable by the issuing bank under the
letter of credit is not the one belonging to the judgment-debtor and such claim can be
decided only in independent proceedings and not in garnishee proceedings.''
9.4 Stay of Execution
In order to enable the judgment-debtor to obtain stay of execution or any other
order from the appellate court or the court which passed the decree, the execution of
the decree can be stayed by the court to which decree is sent for execution. Such stay
can be granted upon security or conditions required or imposed by the court.
9.5 Execution Against Property of Judgment-Debtor
This subject may be considered under two heads, namely, (i) attachment; and (ii)
sale. We shall first state the rules relating to attachment, and then the rules governing
sale, because attachment precedes sale. Attachment is levied, and the sale of the property
attached is effected by an officer of the court under a'warrant issued from the court.
Before considering the rules relating to attachment and sale, it is to be observed
that there are certain kinds of property which are not liable to attachment or sale in
execution of a decree. These are' described under section 60. Subject thereto, all saleable
property which belongs to the jtidgment-debtor, or over which he has a disposing

13. Shorter Oiford English Dictionary, vol 1, 1990, p 833.

14. (1981) All ER 225. • ,
15. Fargo Freight Ltd v Commodities Exchange Corporation, AIR 2004 SC 4109 :(2004) 7 SCC 203.
 140 Mulla The Key to Indian Practice

power which he may exercise for his own benefit, is liable to attachment and sale in
execution of a decree against him.
(i) Attachment: Attachment of property belonging to a judgment-debtor may
be divided into two classes (a) movable; and (b) immovable.
(a) Attachment ofmovable property. This is. done in different ways according
to the nature of the property, and is stated in rules 43 to 53.
(b) Attachment of immovable property. If the property is immovable, the
attachment is to be made by an order prohibiting the judgment-debtor
from transferring or charging the property in any way, and prohibiting
all other persons from taking any benefit from such transfer or charge.
The order is to be proclaimed at some place on or adjacent to the
property, and a copy of the order is to be affixed on a conspicuous
part of the property and then upon a conspicuous part of the court
house as according to rule 54. In execution sale, notice to judgment-
debtor is necessary at every stage. Sale gets vitiated where attachment
ofproperty and issuance of sale proclamation is done without notice to
judgment debtor."^ An attachment of an immovable property effected
in execution of a decree will continue until the said property is sold
and sale is confirmed.'^ Word "sold" in rule 58, proviso, clause (a)
means complete confirmed auction sale. Objection to attachment of
property is tenable even after auction sale.'®
Section 64 states that where an attachment has been made, any private
transfer of the property attached, whether movable or immovable, is void
as against all claims enforceable under the attachment.
If any claim is preferred to any;property attached in execution of a decree
by any person .other than a party to the suit, the procedure prescribed by
rules 58 and 59 are to be followed. If any question relating to the .execution
of the decree arises between the parties to the suit, or their representatives,
they are to be dealt with under section 47.
If during the pendency of the attachment the judgment-debtor satisfies
the decree through the .court, the attachment will be deemed to be
withdrawn as is given under rule 55; otherwise the court will order the
property to be sold under rule 64. If the property attached is currency
coins or currency-notes, the court may under rule 56, direct the same
to be paid to the decree-holder in satisfaction of his decree, for coin or
currency-notes do not require to be sold.
(ii) Sale of attached property. If the property attached is movable property
which is subject to speedy and natural decay, the same may be sold at
once according to rule 43. Rule 76 states that every sale in execution of
a decree should be conducted by an officer of the court except where the
property to be sold is a negotiable instrument or a share in a corporation,
which the court may order to be sold through a broker.

16. Mahakal Automobiles. V Kishan Swaroop Sharma, (2008) 13 SCC 113 : AIR 2008 SC 2061.
17. CS Mani v B Chinnasamy Naidu, AIR 2010 SC 3600 (3601) : (2010) 9 SCC 513.
18. Kancherk Lakshminarayana v Mattaparthi Shyamak, AIR 2008 SC 2069 :(2008) 14 SCC 258 (266).
 chapter 9—Execution ofDecrees 141

After the property is attached, and according to rule 66 the first step to
be taken by the court towards the sale thereof whether the property is
movable or immovable, is to cause a proclamation of the intended sale to
be made stating the time and place of sale, and specifying the property to
be sold, the revenue (if any) assessed upon the property, the encumbrances
(if any) to which it is liable, the amount for the recovery of which the sale
is ordered, and such other particulars as the court considers material for a
purchaser to know, in order to judge the nature and value of the property.
Rule 68 states that no sale should take place until after the expiration of
atleast 15 days in the case ofimmovable property and of at least seven days in
the case of movable property calculated from the date on which a copy ofthe
proclamation has been affixed on the court-house of the judge ordering the
sale, unless the judgment-debtor consents in writing to the sale being held
at an earlier date. Rule 68 speaks about the sale eflfected by Receiver acting
under Insolvency Act and after seeking permission from Court to effect
sale, it cannot be set aside for the sole reason that there is a transgression
of mandate of O XXI, rule 68." The court may in its discretion and in
accordance with rule 69 adjourn the sale from time to time, but if the sale
is adjourned for a longer period than 30 days, a fresh proclamation should
be made, unless the judgment-debtor consents to waive it.
It is important to note that no holder of decree in execution of which property is
sold, can bid for or purchase the property without the express permission of the court.

9.5.1 Irregularity in the Conduct ofSale of Attached Property

. Rule 90 specifies that no sale of immovable property can be set aside on the ground
of irregularity in publishing or conducting the sale, unless upon the facts proved, the
court is satisfied that the party seeking to set aside the sale has sustained substantial
injury by reason of such irregularity. As regards movable property, the rule is that a
sale of movable property is not liable to be set aside' in any case on the ground of
irregularity in publishing or conducting the sale. The only remedy open to the party
who has sustained any injury by reason of such irregularity is to institute a suit for
compensation against the person responsible for the irregularity. Where there was no
proper publication of the sale in the daily newspaper and the auction has been knocked
down in favour of the close relation of the decree-holder for a much less value of the
disputed property, the order of the executing court and all the consequent orders by
the courts below would be set aside.^" The mortgage can be redeemed by paying the
dues even after the sale has taken place but before the confirmation of such sale.^'
Rule 90(3) would not be applicable where sale, was held- in violation of mandatory
requirements of the rules 64 and 66 of O XXI of the Code.^^ However, in accordance
with rule 78 if such person be the purchaser himself, the party sustaining the injury
may sue for the recovery of the specific property, and for compensation in default of
such recovery. Again, if a party had earlier filed an application under O 21, rule 90
to set aside the sale but allowed it to be dismissed for default, a suit to set aside sale

19. TVR Fund v Official Receiver, 2009 (3) Ker LT 508 (510, 512)(DB): ILR 2009 (3) Ker 481.
20. Pappu Ramireddy v Pappu Lakshmi Narayana Reddy, (2009) 16 SCC 346 (347).
21. Embassy Hotels Pvt Ltd v Gajaraj dr Co, 2015 (1) RCR (Civil) 310 : (2015) 14 SCC 316.
22. PKKunivilla v Corporation Bank, 2008 (1) KLT 604 (614)(DB): 2008 AIHC(NOC) 891 (Ker-DB).
 142 ■ Mulla The Key to Indian Practice

even on the grounds of material irregularity, would still lie, more so, if there had been
■ suppression of earlier proceedings to which he was a party.^^
9.6 Disposal of Sale-Proceeds
The sale proceeds of property sold in the execution of a decree are to be applied
in the manner prescribed by section 73, which deals with powers of Executing Court
for proportionate distribution of assets of judgement-debtor amongst different decree-
holders. ,
In VT Veerappa Chettiar v PS Palaniappa Chettiar^^ it was observed that:
Section 73, Civil P. C. provides that where assets are sold by a Court and more persons
than one have before the receipt of such assets, made application to the Court for the
execution of the decrees for the payment of money passed against the same judgment-
debtor and have not obtained satisfaction thereof, the assets after deducting the costs of
realization shall be ratable distributed among all such persons. The following conditions
have to be satisfied before Section 73 Civil P. C. can be applied:
(1) The decree-holder claiming ratable distribution should have applied for execution of
his decree to the appropriate Court;
(2) such application shotdd have been made prior to the receipt of the assets by the Court.
(3) The assets of which a ratable distribution is claimed must be assets held by the Court.
(4) The decree-holder should be holder of a decree for the payment of money.
(5) Such a decree should have been obtained against the same judgment-debtor.
It is a general principle of law that debts due to the State are entitled to priority
over all other debts. If a decree holder brings a judgment-debtor's property to sale
and the sale-proceeds are lying in deposit in Court, the State may, even without, prior
attachment exercise its right to priority by making an application to the executing
Court for payment out. If however, the State does not choose to apply to the Court
for payment of its dues from the amount lying in deposit in the Court but allows
the amount to be taken away by some other attaching decree holder, the State cannot
thereafter make an application for payment of its dues from the sale proceeds since
there is no amount left with the Court to be paid to the State. However, if the State
had already effected an attachment of the property which was sold even before its sale,
the State would be entitled to recover the sale proceeds from whoever has received
the amount from the Court by filing a suit. Section 73(3) read with 73(2) C. P.C.
contemplates such a relief being granted in a suit contemplates such a relief being
granted in a suit."^'

9.7 Resistance to Delivery of Possession to Purchaser

Subject to rules 97-104, where immovable property is sold in execution of a decree,
and the purchaser is resisted in obtaining possession of the property, he may make
an application to the court complaining of such resistance. The court will thereupon
fix a day for investigating the matter, and will summon the party against whom the
application is made to appear and answer the same.
23. Siddagangaiah v NK Giriraja Shetty, (2018) 7 SCC 278.
24. VT Veerappa Chettiar v P$ Palaniappa Chettiar, AIR 1973 Mad 313 : (1973) 1 Mad LJ 316. •
25. UOI V Somasundaram Mills Pvt Ltd, AIR 1985 SC 407 : (1985) 2 SCC 40.
 Chapter 9—Execution ofDecrees 143

9.8 Courts by which Decrees May be Executed

Sections 38-39 provide that a decree may be executed either by the court which
passed it, or by the court to which it is sent for execution. A decree rhay be sent by
the coiirt, which passed it for execution to another court in the following instances:
(1) if the judgment-debtor resides or carries on business within the local limits of the
jurisdiction of such other coiirt; or - (2) if the property sought to be attached or sold
in execution of the decree is situated within those limits; or (3) if the decree directs
the sale or delivery of immovable property situate within those limits. A decree may
be sent for execution to another court either on the application of the decree-holder
or by the court suo motu, and once the decree is transferred for execution to another
court, the court which has passed the decree ceases to have the jurisdiction to execute
the decree and the transferee court gets all the powers to execute the decree as if it
had been passed by the transferee court, which shall decide all the questions arising
in execution proceedings.

9.9 Percepts
A percept means a command or an order.^® A percept is given by the court which
passed the decree to a court which would be competent to execute the decree, and to
attach any property belonging to the judgment-debtor at once, with the underlying
object to prevent the judgment-debtor from alienating or otherwise dealing with his
property to the detriment of the decree-holder till proper proceedings are taken.
It always takes some time to transfer a decree for execution to another court.
Section 46 specifies that if the decree-holder has reasons to apprehend that the judgment-
debtor will dispose of the property before "it is attached by the other court", he may
apply to the court which passed the decree to issue a precept to the other court to
attach the property at once. "Whenever such precept is issued, the court to which it is
issued, should proceed to attach the property.
The attachment under a percept remains in force for a period of two months, unless
the time is extended by the court which has passed the decree.

9.10 Questions to be Determined by Court Executing Decree

Section 47 provides that all questions arising between the parties to the suit in
which the decree was passed, or their representatives, and relating to the execution,
discharge or satisfying of the decree should be determined by the court executing
the decree on the application of parties, and not by a separate suit. The ambit and
scope of the provisions in the Code, dealing with questions to be determined by the
court executing the decree is very wide and comprehensive. Exclusive jurisdiction has
been conferred on the executing court in respect of all matters relating to execution,
discharge or satisfaction of decree arising between the parties. Once a decree is passed
in a suit, it is the executing court which will deal with and decide all questions in
executing proceedings and not by filing a suit.^^ This provision has- been enacted for

26. Concise Orford Dictionary, 1990, p 937.

27. Merla Ramanna v Nallaparaju, AIR 1956 SC 87; Desh Bandhu Gupta v NL Anand (1994) 1 SCC
131 : 1993 (3) Scale 791.
144 Mulla The Key to Indian Practice

the beneficial purpose of eliminating unnecessary litigation by allowing parties before

the court to obtain adjudication of all such questions and provides an inexpensive and
expeditious remedy.^^
Whether a person is a representative or not can be decided by applying the following
two tests:

(i) Whether any portion of the interest of the decree-holder or of the

judgment-debtor, which was originally vested in one of the parties to the
suit, has by an act of the parties or operation of law, vested in the person
who is sought to be treated as a representative; and
(ii) If there has been devolution of interest whether, so far as such interest is
concerned, that person is bound by the decree.^'
A decision determining any such question is appealable as decree under section 2(2).

9.11 Procedure
Rules 105-106 deal with the procedure for hearing in execution matters.
9.11.1 Execution of"Cross-Decrees"

Order XXI, rule 18 CPC provides for the execution of cross-decrees. The following
conditions must be satisfied to attract this rule:
(i) the cross-decrees have been passed in separate suits;
(ii) the cross-decrees are capable of execution; and
(iii) there are two existing final decrees, one in favour of decree-holder and
other in favour of judgment-debtor.
"It is true that effect cannot be given to the set off until applications are made to
the Court for the execution of the two decrees. The right nevertheless is there, and this
right of the holder of one decree cannot be defeated by an attachment in favour of a
third party of the other decree made after the right of set off has arisen."'" "Even if the
cross-decrees are not mutual in all respects still the petitioner is entitled to equitable set-
off provided it can be equitably worked out without detriment to any of the parties.""
9.12 Need for Parliament's Intervention to Scuttle Long Execution Process
It is a commonplace experience that execution does not turn out to be curtains down
to litigation but with several provisions that enable scuttling successfiil execution, the
Supreme Court observed in Shub Karan Bubna @ Shub Karan Prasad Bubna v Sita Saran
BubnaJ''^ thzt courts are preoccupied with disposal of suits but take decades to dispose of
execution petitions. It hoped that the Law Commission and Parliament will bestow their

28. Gangabai Gopal Das Mohata v Put Chand, AIR 1997 SC 1812 ; 1997 (1) Scale 1.
29. State of West Bengal v Partha Basu, (1997) 2 CHN 387; Jagdish Lai v MF Periera, AIR 1977 Dei 12 :
1976 Ren LR 382.
30. MIM Mahalingam Chettiar v Ramanathan Chettiar, (1940) 42 Bom LR 1166.
31. P Venkatavaradan v Lakshmi Ammal, AIR 1982 Mad 5 : 1981-94-LW 630.
32. Shub Karan Bubna @ Shub Karan Prasad Bubna v Sita Saran Bubna,(2009) 9 SCC 689 :(2009) 14
SCR 40.
 Chapter 9—Execution ofDecrees 145

attention on this issue and make appropriate recommendations/amendments so that the

suit will be continuous process from the stage of its initiation to the stage of securing
actual relief. In money suits and other suits requiring a single decree, the process of suit
should be a continuous process consisting of the first stage relating to determination
of liability and then the second stage of execution and recovery, withour any pause or
stop or need for the plaintiff to initiate separate proceedings for execution. In suits
for partition and other suits involving declaration of the right and ascertainment/
quantification of the relief, rhe suit should be continuous, consisting of the first stage
of determination and declaration of the right, second stage of ascertainment/division/
quantification and the third stage of execution to give actual relief.
 CHAPTER 10

APPEALS FROM ORIGINAL DECREES

SYNOPSIS

lO.I Appeals from Original Decrees... 146 10.7 Cross-appeal and

10.2 Court of Appeal 149 Cross-objections 152
10.3 Memorandum of Appeal 149 10.8 Hearing of the Appeal 153
10.4 Stay of Execution 151 10.9 Judgment and Decree 157
10.5 Security for Costs 152 10.10 Consequence of Non-appearance
10.6 Notice of Day for Hearing of Parties 157
Appeal 152

10.1 Appeals from Original Decrees

The expression "appeal" has not been defined in the Code. It is an application or
petition to a higher court for a re-consideration of the decision of a lower court.' It is
a proceeding for review to be carried out by a higher authority of a decision given by a
lower one.'' In other words, any application by a party to an appellate court, asking to
set aside or reverse a decision of a subordinate court, is an appeal within the ordinary
acceptation of the term.' An appeal is a creature of statute; and the right to appeal is
neither an inherent nor a natural right.
A person aggrieved by a decree is not entitled as of right to appeal from the
decree. The right to appeal must be given by statute. Section 9 confers on a litigant,
independent of any statute, a right to institute a suit of a civil nature in a court of
law. So, he has a right to apply for execution of a decree passed in his favour, but he
has no right to appeal from a decree or order made against him, unless the right is
clearly conferred by statute. "Unless a right of appeal is clearly given by a statute, it
does not exist. Whereas a litigant has independently of any statute a right to institute
any suit of a civil nature in one court or another."^ Section 96 of the Code gives a
right to a litigant to appeal from an original decree; section 100 gives him a right to
appeal from an appellate decree in certain cases; section 109 gives him in a right to
appeal to the Supreme Court in certain cases; section 104 gives him a right to appeal
from orders as distinguished from decrees.
An appeal from an original decree is called a first appeal. First appeal is a valuable
right and the parties have a right to be heard, both on question of law and fact and
decided by giving reasons in support of the findings.'
An appeal under section 96 lies only from a decree. A party is not entided to file
against some of the observations or findings which neither amount to a decree, nor

1. Chamber's 20th Century Dictionary, 1997, p 59.

2. Sita Ram v State of Uttar Pradesh, AIR 1979 SC 745 ;(1979)2 SCR 1085.
3. Nagendra Nath Dey v Suresh Chadma Dey, AIR 1932 PC 165 :(1932)63 Mad LJ 329.
4. Zair Husain v KhurshedJan,(1906) ILR 28 All 545.
5. Madhukar v Sangram,(2000)2 LRI 1126 ; AIR 2001 SC 2171.

146
 Chapter 10—Appealsfrom Orifnal Decrees 147

operate as res judicataf' Where a suit is dismissed, the defendant against whom an
adverse finding might have come to be recorded on some issue has no right to appeal
and these findings shall not operate as res judicata against him/ An appeal from an
appellate decree is called a second or special appeal. It is only in a limited number of
cases that appeals are allowed from appellate decrees, and that appeals are allowed to
the Supreme Court. As regards appeals from original decrees, it is provided in the Code
or by any other law. Thus, section 96 makes it clear that no appeal lies from a decree
passed by the court with the consent of parties. Where a decree cannot be said to be
a consent decree the bar tinder section 96(3) of the code would not apply.® However,
an appeal may lie from an original decree which is passed ex parte, i.e., without hearing
one of the parties. No appeal lies against the decree passed by small cause court, if the
value of the subject-matter does not exceed Rs 10,000' except on a question of law.
No appeal lies from the award of the Lok Adalat as it is an order under the consent
of the parties, and is deemed, to be a decree of the civil court.'" Ordinarily, only a
party to the suit adversely affected by"a decree or any of his representatives in interest
may file an appeal." However, a person who is not a party to the decree or order may
prefer an appeal with the leave of the court, if he is bound or otherwise prejudicially
affected by such decree or order, as in such an eventuality he may be said to be an
"aggrieved person".'^ If a third party establishes that he is interested in the welfare of
the trust, he would be an "aggrieved party" having locus standi to prefer an apjpeal.'^
On the first day of hearing at the admission stage, if the appellate court finds
arguable points iff appeal, then notices shall be issued to the respondents, fixing a
date for hearing of the appeal. And if the appellate court finds no merit in the appeal,
then it shall dismiss the- appeal even without issuing notices to the respondents.'"'
Conditional admission of aii appeal is not envisaged by section 96 and an appeal cannot
be dismissed for failure to comply with that condition." The appellate court may take
note of subsequent events.'"
A right of review and right to appeal stand on different footings although some
grounds may be overlapping if a review is granted, the decree stands modified but such
modification of a decree is not an ancillary or a supplemental proceeding so as to be
revived upon setting aside the decree granting review."'
An appeal during the pendency of the review petition is not maintainable.'®

6. Banarsi v Ram Phal, AIR 2003 SCI989:(2003) 9 SCC 606.

7. Deva Ram v Ishowar Chand,(1995)6 SCC 733:AIR 1996 SC 378.
8. Government ofAP V MPratima Reddy, 2010 (1) All LT 256(271)(DB).
9. Code of Civil Procedure, 1908 (as amended by'the Amendment Act, 1999 w.e.f. 1-7-2002), section 96(4).
10. PTThomos V ThomasJob, MKlOOh SCi575 • 142PLR397.
11. State ofPunjab (Haryana) vAmar Singh, AIR 1974 SC 994:(1994)2 SCC 70.
12. Adi Pherozshah Gandhi v HM Seervai, Advocate General ofMaharashtra Bombay, AIR 1971 SC 385 :
(1971) 1 SCR 863.
13. Swami Shankaranand v Mahant Sri Sadguru Samanand, AIR 2008 SC 2763 : (2008) 14 SCC 642
(644-46). . ■
14. Bishnu Bhagat v Puhpa Devi, AIR 2006 Jhar 117 ; 2006 (3)JCR 457 Qhr).
15. Management ofDevi Theatre v Vishwamath Raju, AIR 2004 SC 3325 ;(2004) 3 SCR 1039.
16. DDA V Joginder S Monga,(2004)2 SCC 297:AIR 2004 SC 3291.
17. Rekha Mukhetjee V Ashish Kiimar Das, AlK 2005 SC 1944 ; (2005)3 SCC 427.
18. Ibid
148 Mulla The Key to Indian Practice

Against an ex-parte decree, the aggrieved party can take the recourse to two
proceedings, file an appeal and file an application for setting aside the order under O
IX, ride 13 simultaneously. But in the event the appeal is dismissed, a petition under
O IX, rule 13 wotdd not be maintainable. However, where an application under O IX,
rule 13 is dismissed, it would be open to the aggrieved party to argue on the merits
of the suit so as to enable him to contend that the materials brought on record by the
plaintiff were not sufficient for passing a decree in his favour or the suit was otherwise
not maintainable." The two grounds cannot be raised in a first appeal against the ex
parte decree under section 96. In the first appeal under section 96, the defendant on
the merits of the suit can contend that the materials brought on record by the plaintiff
were not sufficient for passing a decree in his favour or that the suit was not otherwise
maintainable.

The right to appeal can be waived by a party under a legal and valid agreement, and
if a party has accepted the benefits under the decree, he is estopped from challenging
its legality.^" However, an agreement by the next friend of a minor not to apped is
not binding on the minor.^' The right of appeal also stands destroyed if the court to
which the appeal lies is abolished altogether, without any forum being substituted in
its place.^^
The court hearing an appeal, has the power to implead a person,as respondent who
has not been so impleaded where it appears to the court that he may be a person
interested in the result of the appeal.
In case where preliminary and final decree are required to be passed and if a
party aggrieved by preliminary decree does not prefer an appeal, he cannot be
permitted to raise disputes about correctness of such decree in any appeal against the
final decree. The exception could be when there is a dispute with regard to the
identity of the property which a defendant is interested in contesting and the matter
had not been resolved at the stage of preliminary decree, the property will not be
delivered on the basis of preliminary decree without entering an adjudication on
its identity.
An appeal is a continuation of suit proceedings. The appellate court can re-examine
questions of fact and law and may even re-appreciate evidence. The powers of the first
appellate court are co-extensive with those of the civil court of the original jurisdiction.
However, there may be certain self-imposed restraints in the exercise of such powers.
However, they are discretionary and do not fetter jurisdiction of the courts. Unlike
revision of the review where limited grounds of interference are available, the appellate
proceedings offer a much wider scope in deciding about correctness of the judgments
of the courts below. First appeal may be filed on a question of fact or on a question
of law or on a mixed question of fact and law. In first appeals the court is free to

19. Bhanu KumarJain vArchana Kumar,AIR 2005 SC 626:(2005) 1 SCC 787.

20. Dexter Ltd v Hilt Crest Oil Co, (1926) 1 KB 348; Ramesh Chandra Chandhok v Chuni Lai Sahharwal
through LRs, AIR 1971 SC 1238 ; (1971)2SCR 573.
21. Rhodes v Suithenbank,(1889) 22 QBD 577.
22. State ofPunjab (Haryana) vAmar Singh, AIR 1974 SC 994:(1974)2 SCC 70.
23. Code of Civil Procedure, 1908, O XLI, rule 20(1).
24. Selvi V Gopalakrishnan Nair(2018)7 SCC 319 : 2018 (7) Scale 385.
 Chapter 10—Appealsfrom Original Decrees 149

decide all questions of fact and law which atise in the case.^^ In determining the
appellate forum, the value of the subject-matter of the suit is material, and not the
claim in appeal.^""

10.2 Court of Appeal

The court to which appeal lies is governed by local law.^^

10.3 Memorandum of Appeal

If your client is aggrieved by a decree, and instructs you to file an appeal on his
behalf, you have to draw a memorandum of appeal, setting forth the grounds of
objection to the decree appealed from. These grounds are to be set forth without any
argument or narrative, and they are to be numbered consecutively. Be careful to see
that every ground of objection is set forth in the memorandum; for if any ground is
omitted the appellant cannot urge or be heard in support of it except by leave of the
court, and such leave is not granted as a matter of course. The object of the rule is
to give notice to the other party to the appeal, ie, the respondent, of the case that he
has to meet at the hearing of the appeal. It is not to preclude the appellate court from
deciding the appeal on other grounds.
The appellate court has the power under O XLI, rules 1-2, to rest its decision on
(1) grounds set forth in the memorandum of appeal; or on (2) grounds taken by leave
of the court; or on (3) any other ground, provided that the party who may be affected
thereby has had a sufiScient opportunity of contesting the case on the gtound.
In drawing the memorandum of appeal one must refer to the judgment, the issues,
and the findings thereon. The issues and the findings thereon will give a clue as to the
grounds that should be set forth in the memorandum. The memorandum of appeal
must be accompanied by a copy of the judgment. The following will be the form of
the memotandum of appeal in the hypothetical suit for specific performance in which,
we have assumed,^® a decree has been passed against the defendant for Rs 5,000:

Form of Memorandum of Appeal

In the High Court of Judicature at Bombay
In appeal &om its Original Civil jurisdiction
Suit No of 1914
Appeal No of 1914
CD etc AppeUant and defendant
Vs

AB etc Respondent and plaintiff

25. Manick Chandra Nandy v DebdasNandy, AIR 1986 SC 446:(1986) 1 SCC 512.
26. GopalKrishna v Meenakshi, AIR 1967 SC 155 : 1967(15) BLJR 222.
27. See chapter 2, under the heading "Courts in other parts of India... appellate jurisdiction."
28. chapter 8.
150 Mulla The Key to Indian Practice

The defendant abovenamed being aggrieved by the decree passed by... on rbe
day of 2014 in rbe above suit appeals from rbe said decree upon rbe following among
orber grounds, namely:
1. Tbar rbe learned Judge erred in holding rbar rbe sale was nor ro be
completed on rbe 1 May 2014.
2. Tbar rbe learned Judge ought ro have held rbar rbe sale was ro be completed
on rbe said dare, and rbar rime was rbe essence of rbe contract.
3. Tbar rbe learned Judge erred in holding rbar rbe plaintiff was ready and
willing ro perform bis parr of rbe contract.
4. Tbar rbe learned Judge erred in holding rbar rbe contract was nor rescinded
by mutual consent of rbe plaintiff and rbe defendant.
5. Tbar rbe learned Judge ought ro have held rbar rbe plaintiff was nor ready
and willing ro perform bis parr of rbe contract, and rbar rbe contract was
subsequently rescinded by mutual consent.
6. Tbar rbe learned Judge erred in holding rbar rbe plaintiff rendered
Rs 2,00,000 as alleged by bim.
7. Tbar rbe learned Judge ought to have held that rbe plaintiff did nor render
Rs 2,00,000 or any parr thereof ro rbe defendant.
8. Tbar rbe learned Judge ought not to have awarded Rs 5,000 or any sum ro
rbe plaintiff as damages, and that be ought ro have dismissed rbe plaintiff's
suit.
9. Tbar rbe decision of rbe learned judge is against rbe weight of evidence
in rbe case, and that it is against justice, equity and good conscience.
[Note—This paragraph is usually added at rbe end in rbe belief that it covers
all grounds of objection nor expressly taken in rbe memorandum, but , rbe idea is
erroneous.]
Besides rbe above grounds, which are based on rbe issues, one may set forth such
grounds as may suggest themselves on a perusal of rbe judgment.
Suppose that there were two defendants in rbe byporberical suir,^' both jointly
entitled ro rbe property, and rbe decree was passed against rbem both on rbe same
grounds. In rbe case either defendant could appeal from rbe whole decree, or rbe
appellate court may reverse rbe decree in favour of both.
According ro O XLI, rule 1 rbe memorandum shall be accompanied by a copy of
the judgment. The memorandum will be admitted, if it is in proper form. Where rbe
appeal is preferred against a decree for payment of money, rbe appellant shall deposit
the disputed amiounr in court or furnish such orber security within rbe rime granted
by rbe court.
Where an appeal is filed along with an application for condonation of delay in filling
rbe appeal, rbe dismissal of appeal on rbe refusal ro condone rbe delay is nevertheless
a decision in appeal.'"

29. See chapter 8.

30. Shyam Sunder Sharma v PannalalJaiswal, AIR 2005 SC 226 :(2005) 1 SCC 436.
 chapter 10—Appealsfrom Ori^nal Decrees 151

Delay in filing appeal - If there Is any delay in presenting the appeal beyond the
prescribed period of limitation, it shall be accompanied by an application for condo
nation of delay supported by an affidavit showing sufficient cause why the appeal
could not be lodged within the prescribed period of limitation. Such application shall
be decided prior to hearing and decision of appeal itself. The provision is, however,
directory, and not mandatory. If the. memorandum of appeal is filed without being
accompanied by an application for condonation of delay, the consequence is not
necessarily fatal and the defect is curable.^' If the Appellant subsequently files an
application to condone the delay before the appeal is rejected the same should be taken
up along with the already filed memorandum of appeal.. Only then the court can treat
the appeal as lawfiilly presented.'^ It also provides that no stay of execution of decree
shall be granted till the application for condonation is decided. However, the last pm
of the title has been rightly held to be directory.^' In an appropriate case, court may
stay execution pending decision of such application.^'®

10.4 Stay of Execution

After the appeal is filed, the appellate court can be applied to, if the client so
instructs, for a stay of execution of the decree appealed from. The court may or may
not grant the application. It may grant the application if it is satisfied that there
has been no unreasonable delay in making it, that substantial loss may result to the
appellant unless execution is stayed, and that the appellant has given security for
the due performance of such decree as may ultimately be binding upon him. Mere
pendency of appeal is no ground to stay execution of decree. It also does not operate
as stay automatically. The High Court while granting stay of execution of the decree
must take into consideration the facts and circumstances of the case before it. It
is not to act arbitrarily. If a stay is granted, sufiScient cause must be shown which
means that the materials on record were required to be pursued and reasons are to
be assigned. Such reasons should be cogent and adequate.^' There has to be a specific
order staying the execution of the decree. However, if the aforesaid conditions are
satisfied, a stay may be granted even ex parte. It is open for the court to impose any
condition as it may think fit and proper in the facts and circumstances of the case
while granting stay of execution.^'® Usually, it is granted on conditions of deposit or
furnishing of security or otherwise. It has been held that in appropriate cases, a stay
may be granted even without any condition for security.^^ On the other hand, there
are decisions holding that furnishing security is mandatory. No stay can be granted
without such security. Though the language used is quite empathetic and imperative,
it appears that it would be proper to regard such provisions as directory. The court
must have the power to dispense with the requirement of security if it is likely to
lead to injustice or extreme inconvenience.

31. State ofMadhya Pradesh vPradeep Kumar,{2Q00)7 SCC1)72: 2000 Ml.

32. HDohil Constructions Co Pvt Ltd vNahar Exports Ltd, 201^(1)see 600:20\A {9) ScAe^Oi. -
33. Dijabar v Sulabha, AIR 1986 Ori 38, AIR 1987 Guj 205.
34. Code of Civil Procedure, 1908, O XLI, rule 3A(3).
35. Malwa Strips Pvt Ltd v Jyoty Ltd,(2009)2 SCC 426(431):AIR 2009 SC 1581.
36. Mgt ofDevi Theatre v Vishwanath Raja,(2004)7 SCC 337:AIR 2004 SC 3325.
37. State ofGujarat V CentralBank ofIndia, Ahmedabad,KTKXIKl eC) 113: 1987 CLH (1) 372, reversed in
CentralBank ofIndia V State ofGujarat, MB,\S07 Se 2520: 1987(2) Scale 510 on other point.
152 Mulla The Key to Indian Practice

If the appeal has not yet been filed, and the client has reasons to apprehend that
the other side will apply for execution of the decree, then the client's lawyer may apply
to the court which passed the decree for a stay of execution.
Where an order is made for execution of the decree one may apply on behalf of
the appellant to the court which passed the decree for an order requiring the other
side to give security for restitution of the property that may be taken in execution of
the decree, and the court should make the order if sufficient cause is shown by the
appellant; or the appellate court may for like cause direct the court which passed the
decree to take such security.

10.5 Security for Costs

The appellate court may in its discretion demand from the appellant, security for
the costs of the appeal, or of the original suit, or both. In many cases it is provided
by the rules of the court that the appellant should deposit a fixed sum of money as
security for the costs of the appeal immediately after the appeal is admitted.
10.6 Notice of Day for Hearing Appeal
Notice of the day fixed for the hearing of the appeal has then to be served upon
the respondent in the manner provided for the service of summons.

10.7 Cross-appeal and Cross-objections

So far the position as regards the hypothetical suit is as follows. The suit was brought
by AB against CD for specific performance, and, in the alternative for damages. The
court of first instance refused specific performance, but awarded damages to AB. CD
preferred an appeal from the decree in so far as it awarded damages against him. AB
apparently was content with the decree, though specific performance was refused to
him. AB has now received a notice through the court informing him that CD has
preferred an appeal from the decree. Now is the time for him to consider whether he
should not as well take his chance and prefer an appeal ftom the decree in so far it
refused specific performance to him. If he decides to prefer an appeal, and does prefer
it, his appeal will be called a cross-appeal. However, it may be that the time to file a
cross-appeal has expired, for every appeal has to be filed within the fimitation period
prescribed by law.'® If the time has expired, AB may file what are called cross-objections;
right to file cross-objections is a substantive right.'' These may be filed at any time
within one month ftom the date of the service of notice upon him. In fact under the
present Code, AB does not run any risk if, instead of filing a cross-appeal, he files
cross objections. Under the Code of 1882 it was held that if the original appeal was
■ withdrawn or dismissed for default for non-appearance of the appellant at the hearing,
the cross-objections could not be heard. It is no longer so under the present Code.
Even when an appeal is withdrawn or dismissed for default, the court has to hear the
cross-objection and dispose it off.^" However, if the appeal is dismissed as time-barred
or has abated or is held to be not maintainable, the cross-objections cannot be heard

38. the Limitation Act, 1963.

39. SuptEnpneer v B Subba Reddy, MR 1999 SC 1747:(1999)4 SCC 423.
40. Hari Shanker Rasto^ v Sham Manohar,(2005) 3 SCC 761 :(2005) 2 SCR 950.
 chapter 10—Appealsfrom Original Decrees 153

on merits as they are contingent and dependent upon the hearing of the appeal.^'
Cross-ohjection would also be dismissed as not maintainable, where appeal is found
incompetent and not maintainable.''^
Further, while dismissing a defendants appeal, the appellate court cannot modify the
decree in favour of the respondents in the absence of cross-appeal or cross-objections.^^
Let us now assume that AB decides to file cross-objections. The cross-objections are
to he in the form of a memorandum and they must comply with the rules relating to
the memorandiun of appeal. No court fee is payable on cross-objections. The following
will then be the cross-objections of AB.
Whereas the defendant abovenamed has prefetred an appeal to the court at
from the decree of

In suit No of 2014, dated the day of 2014 and whereas notice of

the day fixed for hearing the appeal was served on the plaintiff abovenamed on the
day of 2014, the plaintiff abovenamed files this memorandum of cross-objections
imder Rule 22 of Order XLl of the Code of Civil Procedure, 1908, and sets for the
following grounds of objections to the decree appealed from, namely;
1. The learned Judge erred in holding that the plaintiff was not entitled to
specific performance of the contract referred to in the plaint.
2. The learned Judge having found all other issues for the plaintiff ought to
have decreed specific performance of the said contract.
Ordinarily, cross-objections may be filed against the appellant. However, in excep
tional circumstances, respondent may file cross-objections against co-respondents,
and the appellate court has the power to give whatevet order it thinks fit not only
between the appellant and the respondent, but also as between respondent and co
respondent.
After the cross-objections are filed, a copy thereof should be sent by the respondent
to the appellant. The cross-objections are heard as a rule after the original appeal.
The respondent may support the decree on any ground in respect of which findings
adverse to the respondent are recorded against him. If the judgment is in favour of
the respondent, hut some of the findings are decided against the respondent, he is
entided to contend that such adverse findings are erroneous even without raising any
cross objection.^ He can also file cross objection in respect of an adverse finding even
though the judgment and decree are in his favour on the basis of other findings under
O XLl, rule 22.

10.8 Hearing of the Appeal

On the day fixed for the hearing, the appellant will be heard in support of
the appeal. The court may then dismiss the appeal at once without calling upon
the respondent for a- reply. If this is not done, the respondent is to be heard against

41. NJayaram Reddi v.Revenue Divisional Officer and LandAcquisition Officer, Kumool, AIR 1979 SC 1393.
42. MCD V International Security &Intelligence Agency Ltd, AIR 2003 SC 1515 :2003 (1) Scale 771.
43. Banarsi v Ram Phal, AIR 2003 SC 1989 :(2003)2 SCR 22.
44. Shanti Devi v NandKishore, AIR 2004 P&H 46:(2004) 136 PLR 377.
154 Mulla The Key to Indian Practice

the appeal, and in such case the appellant is entitled to a reply. After this is done,
the appellate court may:
(a) determine the case-finally, if the evidence upon the record is sufficient to
enable it to pronounce judgment. The appellate court has power to pass
any decree or make any order which ought to have been passed or made.
It can even pass further other decree or order as the case any require. Such
power exists notwithstanding the fact that the scope of appeal may be
narrow. It can be exercised in respect of any party who has not preferred
any appeal for objection.'Where two or more decrees are passed in one suit,
it has power even if appeals in respect of some decrees are not preferred at
all. When the appellate court passes the decree, the original decree merges
into it and such appellate decree shall be final and binding. The powers
are very wide, but as a general rule, reliefs are founded on pleadings made
by parties. Such powers are to be exercised with restraint and only in
exceptional cases.''' The decree or order which ought to have been passed
or made mean diose which ought in law to have been passed or made.
The final determination of the case may result in confirmation, reversal,
liiodification or substitution of original decree or order. Sitting as a court
of first appeal, it is the duty of the High Court to deal with all the issues
and the evidence led by the parties before recording its findings.'"'^
(b) remand the case to the court from whose decree the appeal is preferred,
if that court has disposed of the suit upon a preliminary point, and the
appellate court holds that the decision of that court on the point is wrong.
"Appellate Court has power to remand the case, but only in rare situations,
a case should be remanded e.g. when the trial court has disposed of a suit
on a preliminary issue without recording evidence and giving its decision
on the rest of the issues."^® After the case is remanded, the lower court
should proceed with the trial of the suit on the other issues or such issue
as the appellate court may direct it to try and then determine the case.
Under rule 23A of O XLI introduced in 1976, the power to remand was
widened. Even when the trial court has decided the suit otherwise than
on a preliminary point and when decree reversed in appeal, if re-trial is
considered necessary, it can be so ordered by the appellate court. The
appellate court should not give any conclusive finding in matters it remands
for further consideration because after a conclusive finding there remains
nothing to be decided by the court to which the matter is remanded.
Further, it is not open to the appellate court to issue directions to the
remand court as to how the proceedings after remand are to be conducted
before the trial court.'" "Appellate Court has power to remand the case,
but only in rare situations, a case should be remanded e.g. when the trial

45. Rameshwdr Prasad v Shambehari LaiJagannath^ AIR 1963 SC 1901.

46. Giasi Ram vRamLaL MR 1969 SC 1144:(1969) 3 SCR 944; Koksingh v Deokabau MR 1976 SC 634
:(1976) 2 SCR 963.
47. Shasidhar V Ashwini Uma Mathad, (SC) 1139: 2015 (1) Scale 341.
48. ZarifAhmad(D) v MohdFarooq, MR 2015 (SC) 1236: 2015 (1) Scale 690.
49. Ravindev Kaut v Ashok Kumaty MR 2004 SC 904:(2003) 8 SCC 289.
50. Kanchusthabam Satyanarayana v Namuduri Atchutaramayydy MR 2005 SC 2010:(2005)2 SCR 294.
 chapter 10—Appealsfrom Original Decrees 155

court has disposed of a suit on a preliminary issue wirhout recording

evidence and giving its decision on the rest of the issues, but it is not so
in the present case. Remand makes the parties to wait for the final decision
of a case for the period which is avoidable. 'An order of remand is an
interlocutory order, which does not terminate the proceedings, and can be
challenged by the aggrieved party after the final judgment.^^ "Remanding
a case for reappreciation of evidence and fresh decision in the matter is
nothing but harassment of the litigant. The unnecessary delay in final
disposal of a lis, shakes the faith of litigants in the court."^'
(c) frame issues and refer them for trial to the court from whose decree the
appeal is preferred, if that court has omitted to frame or try any issue
essential to the right decision of the suit.^"* The lower court should then
proceed to try the issues, and then return to the appellate court, the
evidence on those issues together with its findings thereon and the reasons
therefor. Either party may then file in the appellate court, a memorandum
of objections to any finding, or that court will then proceed to determine
the appeal.
(d) take additional evidence or require such evidence to be taken by the court
from whose decree the appeal is preferred, if (i) rhat court has refused to
admit evidence which ought to have been admitted; or (ii) the appellate
court requires any document to be produced or any witness to be examined
to enable it to pronounce judgment or for any other substantial cause; or
(iii) the party who wants to produce additional evidence could not produce
it despite exercise of due diligence or it was not within his knowledge
before the decree was passed.
An additional evidence may be permitted to be produced in appellate court when
there is a substantial cause.^' "Appellate Court may call for addirional evidence where
the appellate court may require any document to be produced or any witness to be
examined to enable it to pronounce judgment, or for any other substantial cause. It is
the duty of the court to come to a definite conclusipn that it is really necessary to accept
the documents as additional evidence to enable it to pronounce the judgment.""' The
authority and jurisdiction of the appellate court to let in fresh evidence is restricted to
the purpose of pronouncement ofjudgment in a particular way.^'' The court is in-hound
under the circumstances mentioned under O XLI, rule 27 to permit additional evidence
and the parties are not entitled as of right to the admission of such evidence and the
matter is entirely in the discretion of the court.'^ When an application for reception
of additional evidence under O XLI, rule 27 of the Code is filed by the parties, it is
the duty of the high court to deal with the same on merits so as to find out whether
the documents or evidence sought to be adduced have any relevance/bearing in the

51. ZarifAhmad(D)v Mohd Farooq, AIR 2015 (SC) 1236: 2015 (1) Scale 690.
52. MangalPrasadTamoli vNavedswarMishra, AIR 2005 SC 1964:2005 (3) RCR(Civil) 171.
53. Lisamma Antony v Karthiyayani, 2015 (2) RCR (Civil) 575.
54. REMCO Indl Workers House Bldg Co-op Society v Lakshmesha, AIR 2003 SC 3167: 2004(6) Scale 789.
55- Shalimar Chemical Works Ltd v Surendra Oil&DalMill,(2010)8 SCC 423 (430):(2010) 10 SCR 703.
56. Surjit Singh V Gurivant KauttLOXh (\) SCCSSS'.2QV7 ScAe76&.
57. NKamalam v Ayyasamy, AIR 2001 SC 2802: 2001 (5) Scale 65.
58. Mahavir Singh vNaresh Chandra, AIR 2001 SC 134 ; 2000 (7) Scale 356.
156 Mulla The Key to Indian Practice

issues involved. Additional evidence can be adduced in one of three situations, namely,
(a) where the trial court has illegally refused the evidence although it ought to have
been permitted, (b) where the evidence sought to be adduced by the party was not
available to him/her despite the exercise of due diligence, (c) where additional evidence
was necessary in order to enable the appellant court to pronounce the judgment or any
other substantial cause of similar nature. Inadvertence or lack of proper legal advice
is not a ground to admit additional evidence in appeal.^"
It would be proper to consider the application for production of additional evidence
along with the appeal. However, it can be considered independently. An appeal in which
an application under rule 27 of O XLI of the Code has been filed should be decided
by appellate court along with application for acceptance of additional evidence under
O XLI,"rule 27 of the Code. The rejection of such an application would not be proper.®'
"Where a party is permitted to produce additional evidence, the other party shall also
be given opportunity to adduce evidence in rebuttal.®^
"Where the appellate court directs additional evidence to be taken by the lower
court, such court should proceed to take the evidence and send it when taken to the
appellate court. The power to take additional evidence is confined to the grounds
mentioned above. By a judicial process, it cannot be converted into a power to order
fresh trial or allow parties to fill up the lacuna or defect. It cannot be exercised to
help a party who has failed to exercise due diligence during original trial. "Where some
inherent lacuna or defect becomes apparent on an examination of evidence, additional
evidence may be allowed.®' Where the court would be able to pronounce judgment on
materials available before it, it cannot admit additional evidence. It is the court which
must require further evidence in order to enable it to pronounce judgment. The third
ground on which additional evidence can be admitted was added by way of amendment
in 1976. It seeks to expand the powers to receive additional evidence. While there is
nothing objectionable in principle in admitting evidence which could not be produced
or was not within knowledge before decree, such provision must be stricdy construed,
and stringent requirement of proof must be insisted upon. It should not be allowed to
convert appellate proceedings into further original proceedings. For adducing additional
evidence, the jurisdiction of the appellate court is to be exercised not only when clause
(a) or clause (aa) of sub-rule (1) of rule 27 of O XLI of the Code is attracted but also
when such a document is required by the appellate court itself to pronounce judgment
or for any other substantial cause.®"'
The appellate court has the power to direct that a person who was a party to the
suit, but not made a party to the appeal, be made a respondent, if it appears that he
is interested in the result of the appeal. It has also the power, as to which there was

59. Malyalam Plantations Ltd v State ofKerala, AIR 2011 SC 559 (563):(2010) 13 SCC 487(493), see also
NE RlyAdm v Bhagwandas,(2008) 8 SCC 511.
60. Haryana State Industrial Development Corporation v Cork Manufacturing Co, AIR 2008 SC 56:2007(10)
Scale 515.
61. Eastern Equipment & Sales Ltd v Yash Kumar Khanna, AIR 2008 SC 2360 : 2008 (6) Scale 498; see also
Vimal Chand GhevarchandJain v R Eknath Jajoo,(2009) 5 SCC 713 :(2009) 5 SCR 794.
62. Jaidev Tripathy v Dilip Kumar Panda, AIR 2004 Ori 194:98 (2004) CLT 295.
63. VenkataramaiahvASeetharamaReddy,KYK\')(ASC 1526:{\9(>A)2SCKiS",Arjun Singh v Kartar Singh,
AIR 1951 SC 193:(1951)2 SCR258.
64. Ljuhhman Singh v Hazara Singh,(2008) 5 SCC 444(446-447):2008 (8) Scale 220.
 chapter 10—Appealsfrom Original Decrees 157

some doubt under the old Code, to pass a decree in a case like the following: A claims
a sum of money from X or Y, and in a suit against them both obtains a decree against
X. X appeals and A and Y are respondents. The appellate court decides in favour of X
holding that X is not liable to A. It has power to pass a decree against Y, though A
did not prefer any cross appeal or file any cross-objections complaining of dismissal of
the suit against Y. Subject as aforesaid the appellate court has the same powers as the
courts of original jurisdiction in respect of suits instituted therein as specified under
section 107.

It is important to note before leaving this subject that section 99 provides that no
decree should be reversed or substantially varied, nor should any case be remanded in
appeal, on account of any misjoinder of parties or causes of action, or on account of
any error or irregularity in any proceedings in any suit, not affecting the merits of the
case or the jurisdiction of the court by which the suit was tried.

10.9 Judgment and Decree

The judgment of the appellate court should state the points for determination,
decision thereon, reasons for the decision, and the relief to which the appellant is
entided. The appellate court should state its own reasons; thus, it is not enough to say
in the judgment, "I concur with the decision the Munsiff has given on each point."
If this is done, the judgment will be set aside by the high court in the second appeal.
After the judgment is pronounced, the decree will be drawn up.

10.10 Consequence of Non-appearance of Parties

The rules relating to the non-appearance of parties at the hearing of an appeal are
very much the same as those relating to the non-appearance of parties at the hearing
of the suit.'''

65. See chapter 8 and Code of Civil Procedure, 1908, O XLI, rules 17, 19 and 21.
 CHAPTER 11

APPEALS FROM APPELLATE DECREES

OR SECOND APPEALS
SYNOPSIS

11.1 Second or Special Appeals 158 11.2 Appeals to the Supreme Court.... 163
11.1.1 What is Substantial 11.2.1 Procedure in Appeals to
Question of Law? 161 the Supreme Court 164
11.1.2 In what Cases is a Second 11.3 Appeals from Orders 165
Appeal Possible? 162 11.4 The Next Chapter 166

11.1 Second or Special Appeals

A party aggrieved by a decree passed by an appellate court may prefer an appeal to
the high court to which the appellate court is subordinate. An appeal to a high court
from a decree of an appellate court subordinate to it is called a second or special appeal.
Such an appeal is admitted on the ground that the case involved a substantial question
of law.' Second appeal is not a third trial on facts or one more dice in the gamble.^
The existence of a substantial question of law is the sine qua non for the exercise of
jurisdiction under section 100 of the Code.^ Such an appeal may also lie from an
ex pane decree. The memorandum shall state the substantial question of law. The high
court must also formulate such question if it is satisfied that a substantial question of
law is involved.^ So long as no substantial question of law was framed, the High Court
would have no jurisdiction to examine the issue in its second appellate jurisdiction.
For instance, if the High Court had framed only one question which did not pertain
to issue of ownership of the suit land, it would have no jurisdiction to examine the
issue of ownership.' The high court cannot proceed to hear a second appeal without
formulating the substantial question of law involved in the appeal:^ failure to do so
would vitiate the adjudication itself
No second appeal lies except on the ground mentioned above. The conditions
mentioned in the section must be stricdy fulfilled and no court has the power to add
to or enlarge those grounds.®
Thus, a second appeal does not lie on the ground of an erroneous finding of fact.
The concurrent findings of facts cannot be re-appreciated, howsoever erroneous, cannot

1. Section 100 as amended in 1976.

2. Gurdev Kaur v Kaki, AIR 2006 SC 1975 : (2007) 1 SCC 546.
3. Commr ofHindu Religious & Charitable Endowment v P Sharmugama , AIR 2005 SC 770 :(2005) 9
SCC 232.
4. Mohd Hadi Hussain v Abdul Hamid Chattdhary, (2000) 10 SCC 248; R Lakshmi Narayan v Santhi,
(2001) 4 SCC 668.
5. Narayana Gramani v Mariammal 2018(11) Scale 91, 2018(8) SCJ 359.
6. Hubli Dharwar Municipal Corp v HS Mohd Khan, (2002) 2 SCC 109 : (2002) 2 SCC 109.
7. Bashir Ahmed v Abdul Rahman, AIR 2004 SC 3284.
8. Radha Amma v C Balakirshnan Nair, AIR 2006 SC 3343 : 2006 (8) Scale 239.

158
 Chapter 11—Appealsfrom Appellate Decrees or Second Appeals 159

be disturbed by the high court in exercise of powers under this section.' But this is not
an absolute rule. The high court may substitute its own opinion for that of the first
appellate court, where the conclusion drawn by the lower court was erroneous being:
(1) contrary to mandatory provisions of applicable law;
(2) contrary to the law as laid down by the Supreme Court;
(3) based upon inadmissible evidence or no evidence;'"
(4) wrong casting of the burden of proof. .
The conclusion based on no evidence not only refers to a total dearth of evidence
but also the evidence taken as a whole is not reasonably capable of supporting the
finding. The respondent, at the hearing, is allowed to argue that the case does not
involve such a question.
Normally, the high court, while dealing with a second appeal, will not permit a
new plea based on question of the fact to be revised. Similarly, a' plea involving a
mixed question law and fact also cannot be allowed for the first time.'^ The high court
cannot interfere in appeal and modify the decree on a question which did not arise
for consideration in the suit or in the appeal and on which neither any evidence nor
any finding was recorded.'^ "High Court can interfere with the finding of fact even
m the Second Appeal, provided the findings recorded by the courts below are found
to be perverse i.e. not being based on the evidence or contrary to the evidence on
record or reasoning is based on surmises and misreading of the evidence on record or
where the core issue is not decided. There is no absolute bar on the re-appreciation
of evidence in those proceedings, however, such a course is permissible in exceptional
circumstances.""

Where the legal representatives of neither of the parties were brought on record in
the second appeal, the second appeal abates and no decree in favour of the party who
was dead and against a party who was also dead can be passed.'" Further, no appeal lies
^nst the decision of a single judge of a high court in appeal or second appeal. Intra
Court appeal m high court against order of single judge is not maintainable in view
of section lOOA of the Code notwithstanding anything in the high court Rules or the
Letters Patent to the contrary.'® The Letters Patent Appeal would not be maintainable
against the judgment and order passed by single judge of high court in appeal." In

9. Mst Suganiv Ram^hwar Das MK 2006 SC 2172:(2006) 3 CTC 108; Gumam Singh (D) by LRs v
Lehna Singh (D) by LRs .Cml ^^ipeal No 6567 of 2014 dt 13.3.2019 (SC).
10. Kondiba Dagdn Kadam v Savitribari Sopan Gujar, AIR 1999 SO 2213 : (1999) 3 SCC 722
11. Hero Vinoth v Seshammtl AIR 2006 SC 2234 : (2006) 5 SCC 545.
12. TtrumaU Tirupati Devasthanam v KM Krishnaiah, AIR 1998 SC 1132 • (1998) 3 SCC 331
(SsfHcR mT"' SC 3201 :
14. Radha Amma v Balakrishnan Nair, AIR 2006 SC 3343 :(2006) 7 SCC 546
15. DR Rathna Murthy v Ramappa,2011 (1) SCC 158 : 2010 (10) Scale 625
16. Kishnu v Bihari, AIR 2005 SC 3799 : (2005) 6 SCC 300.
17. Code of Civil Procedure 1908 (as substituted by the Amendment Act, 2002 wef. i luiv 20021
section lOOA
18. Geeta Devi v Puran Ram Raigar, (2010) 9 SCC 84 : (2010) 10 SCR 969.
19. Mohd Satid v Shaikh Mahfooz, AIR 2011 SC 485 (488) : (2010) 13 SCC 517 (520).
160 Mulla The Key to Indian Practice

Fuerst Day Lawson Ltd v Jindal Exports Ltd^^ following law has been culled out from
various decisions:

1. Normally, once an appeal reaches the High Court it has to be determined according
to the rules of practice and procedure of the High Court and in accordance with the
provisions of the charter under wl ich the High Court is constituted and which confers
on it the power in respect to the method and manner of exercising that power.
2. When a statute merely directs that an appeal shall lie to a court already established
then that appeal must be regulated by the practice and procedure of that court.
3. The High Court derives its intra-court appeal jurisdiction under the charter by which
it was established and its powers under the Letters Patent were recognized and saved
by section 108 of the Government of India Act, 1915, section 223 of the Government
of India Act, 1935 and finally, by Article 225 of the Constitution of India. The High
Court, therefore, cannot be divested of its Letters Patent jurisdiction unless provided
for expressly or by necessary intendment by some special statute.
4. If the pronouncement of the single judge qUulifies as a judgment , in the absence of
any bar created by a stamte either expressly c by necessary implication, it would be
subject to appeal under the relevant clause of die Letters Patent of the High Court.
5. Since section I04(I) Civil Procedure Code specifically saves the letters patent appeal
if could only be excluded by an express mention in section 104(2). In the absence of
any express mention in section 104(2), the mainfiinability of a letters patent appeal
is saved by virtue of section 104(1).
6. Limitation of a right of appeal in absence of any provision in a statute cannot be
readily inferred. The appellate jurisdiction of a superior court cannot be taken as
excluded simply because a subordinate court exercises its special jurisdiction.
7. The exception to the aforementioned rule is where die-special Act sets out a self-
contained code and in that event the applicability of the general law procedure would
be impliedly excluded. The express provision need not refer to or use the word letters
patent" but if on a reading of the provision it is clear that all further appeals are
barred then even a letters patent appeal would be barred.
The use of expression "heard and decided by single judge of high court" in
section lOOA suggest that only those appeals which were heard and decided by single
judge on and after 1 July 2002 would be hit by bar contained in section lOOA.^'
"Whenever a writ petition against order of the Scrutiny Committee is heard by a Single
Judge and the State Law or Letter patent permits an intra-court appeal. Such appeal is
maintainable. The jurisdiction of the civil court to entertain any suit of a civil nature
arising under a statute can be excluded only when cognizance is expressly or impliedly
barred by the statute which gives rise to such suits.
Where the appeal has been admitted on a particular substantial question of law,
the high court is empowered to hear, for reasons to be recorded, any other substantial
question of law, which was not formulated earlier, if it is of the view that the case
involves such question.^' However, the parties must be put to notice of such other
formulated question and be given opportunity to address the same.^^ i^iy decision
rendered on additional substantial questions of law not framed by the High Court at
20. Fuerst Day Lawson Ltd v Jindal Exports Ltd, 2011 (8) SCC 333 : (2011) 11 SCR 1.
21. Datta Ram Ramesh Kr v DIG, BSF, Rajasthan, AIR 2011 Raj 76 (78)(DB): RLW 2011 (1) Raj 800.
22. Dayaram v Sudhir Batham, 2012 (1) SCC 333 : 2011 (11) Scale 448.
23. G4 Sulaiman v State Bank of Travancore, AIR 2006 SC 2848 ; (2006) 6 SCC 392.
24. Thingarajan v Venitgopalaswamy B Koii, AIR 2004 SC 1913 : (2004) 5 SCC 762.
 Chapter 11—Appealsfrom Appellate Decrees or Second Appeals 161

the time of admission of the second appeal nor at the time of hearing of the second
appeal shall vitiate the judgment.^'
"In exercise of jurisdiction under section 100 CPC, 1908, concurrent findings of
fact cannot be upset by the High Court unless the findings so recorded are shown to
be perverse."^® The proviso is applicable only when any substantive question of law
has already been formulated. The expression "on any other substantial question of law"
clearly shows that there must be some substantial question of law already formulated
and then only any other substantial question of law which was not formulated earlier
can be taken up by the High Court for reasons to be recorded, if it is of the view that
the case involves such question.^^
No second appeal lies from any decree in a suit for recovery of money not exceeding
Rs 25,000.28

As regards procedure in second appeals, it is the same as in the first appeals as has
been clearly stated in section 108 and O XLII.

11.1.1 What is Substantial Question ofLaw?

Substantial question of law does not only mean a question of general importance but
also substantial question of law arising in a case as between the parties. In the context
of section 100 of the Code, any question of law which affects the final decision in a
case, is a substantial question of law as between the parties.^' "Where it is found that
the first appellate court has assumed jurisdiction which did not vest in it, the same
can be adjudicated in the second appeal, treating it as a substantial question of law...
Where the first appellate court is shown to have exercised its discretion in a judicial
manner, it cannot be termed to be an error either of law or of procedure requiring
interference in second appeal."'"
To be a substantial question of law, it must be debatable, not previously settled by
the law of the land or a binding precedent, and must have a material bearing on the
decision of the case, if answered either way, in so far as the rights of the parties before
it are concerned.'' Its foundation must have been laid in the pleadings and should
emerge from the sustainable findings of facts arrived at by the court and it must be
necessary to decide that question of law for a just and proper decision of the case.'^ It
depends on the facts and circumstances of each case whether a question of law involved
in the case is a substantial one or not; the paramount consideration being the need for
striking a judicial balance between the indispensable obligation to do justice at all stages
and impelling necessity of avoiding prolongation in the life of any /w." Interpretation
25. Vijay Arjun Bhagat v Nana Laxman Tapkire AIR 2018 SC. 2625 : (2018) 6 SCC 727.
26. Laxmidevamma v Ranganath, 2015 (4) SCC 264 : 2015 (1) Scale 489.
27. Dbaram Singh v Kartiail Singh, AIR 2009 SC 758 (760) ; 2008 (13) Scale 444.
28. Code of Civil Procedure, 1908 (as substituted by the Amendment Act, 2002 w.e.f. 1-7-2002),
section 102.
29. State Bank ofIndia v SN Goyal, AIR 2008 SC 2594 (2599) : (2008) 8 SCC 92/103). Bhuri Bai v
Ramnarayan, (2009) 4 SCC 56 : 2009 (2) Scale 3.
30. Lisamma Antony v Karthiyayani, 2015 (2)RCR (Civil) 575 ; (2015) 11 SCC 782.
31. Govindrajti v Mariamman, AIR 2005 SC 1008 : (2005) 2 SCC 500.
32. Commr, Hindu Religious and Charitable Endowment v P Sharrmugamma, AIR 2005 SC 770 • (2005)
9 SCC 232.
33. Ibid
162 MuL" The Key to Indian Practice

of any document including its contCiits or its admissibility in evidence or its effect
on the rights of the parties to the Lis also constitutes a substantial question(s) of law
within the meaning of section 100 of the Code.'^ "The proper test for determining
whether a question of law raised in the case is substantial would, in our opinion, be
whether it is of general public impi rtance or whether it directly and substantially
affects the rights of the parties and if ~o whether it is either an open question in the
sense that it is not finally settled by this Court or by the Privy Council or by the
Federal Court or is not free from difificulq' or calls for discussion of alternative views.
If the question is settled by the highest C lurt or the general principles to be applied
in determining the question are well setde.' and there is a mere question of applying
those principles or that the plea raised is p Ipably absurd the question would not be
a substantial question of law."'^
The subsistence of marriage if established tv law, is not a substantial question of
law.^"' Similarly finding arrived at by considering irrelevant fact or by non-considera*ion
of relevant fact gives rise to substantial question of law.^^
If a question of law is termed as substantial, rhe question stands already decided
by a larger Bench, its mere application to the facts of the case would not be termed
as a substantial question of law.^® Similarly, the date of alleged partition between the
plaintiff and the defendant is not a question of law.^'
Normally in second appeal, the high court should not interfere on the questions of
fact, but if on the scrutiny of the evidence it is found that the findings recorded by
the first appellate court is totally perverse then High Co irt can interfere in the matter
as it constitutes a question of law.'"' Perversity of a ■finding,'" propriety of a finding
recorded by the lower court, is a substantial question of ,aw.''-^ The question whether
the trial court should have exercised its jurisdiction difftrently is not a substantial
question of law.'"

11.1.2 In what Cases is a Second Appeal Possible?

It is now important to provide an idea of the cases in which a second appeal is
possible.^'' As regards high courts, a suit instituted on the original side of a high court
is heard ordinarily by a single judge of that court, and an appeal from a decree passed
by him lies, as a rule, to a Bench consisting of two other judges of the same court.
In this case, there can be no second appeal, for a second appeal lies to a high court
from a decree passed in appeal by a court subordinate to the high court (letters patent.

34. Uma Pandey v Munna Pandey .AIR 2018 SC 1930 : (2018) 5 SCC 376.
35. Chunilal V Mehta and sons v entury Spg & Mfg Co Ltd, .AIR 1962 SC 1314.
36. Bharatha Matha v R. Vijya Renganathan, (2010) 11 SCC 483 (489) ; (2010) 11 SCC 483.
37. Abdtd Raheem v Kamataka Electricity Board, AIR 2008 SC 956 : (2007) 12 SCR 389.
38. Kondiba Dagadu Kondam v Savitribai Sopan Gujar, AIR 1999 SC 2213 : (1999) 3 SCC 722.
39. Kartick Ch Mandal v Netai Mandal, (2009) 107 Cut LT 82 (SC) ; (2009) 2 SCC 105.
40. Maria Colaco v Alba FHD'Souza, (2008) 5 SCC 268 (271) : AIR 2008 SC 1965.
41. Kulwant Kaur v Gtirdial Singh Mann, AIR 2001 SC 1273 : (2001) 2 SCR 525.
42. MSV Raju v Seeni Thevar, AIR 2001 SC 3389 : (2001) 6 SCC 652.
43. Sugani v Rameshwar Das, AIR 2006 SC 2\72p. (2006) 11 SCC 587.
44. Chapter 2, relating to courts and their jurisdiction, may be referred to.
 Chapter 11—Appeak from Appellate Decrees or Second Appeak 163

clause 15). However, the party aggrieved by the decree of the high court inay appeal
to the Supreme Court, if the conditions of section 109 are satisfied.'*'
Outside the presidency towns, there are, in each state, a number of courts of different
grades, which may roughly be divided into the following three classes, in the order of
their grades— ^
(i) district courts;
(ii) subordinate judges' courts (in some states, courts of the civil judges, senior
division); and
(iii) munsiff's courts (in some states, courts of the civil judge, junior division).
Of these three classes of courts, usually the district court'*'* alone has appellate
jurisdiction. An appeal lies to the district court, usually from:
(i) decrees of courts belonging to class (iii); and
(ii) decrees of courts belonging to class (ii) in certain c;ises.
In both these cases, an appeal lies to the district court, atid a second appeal lies
to the high court if the case involves a substantial question of law, as stated above.
However, in neither case does an appeal lie from the appellate decree of the high court
to the Supreme Court; unless the high court certifies that the conditions of section 109
are satisfied.'*^

In certain cases, an appeal lies direcdy to the high court, and there can therefore
be no second appeal in such case. However, the party aggrieved by rhe decree of the
high court may appeal to the Supreme Court, if the high court certifies as above that
the conditions of section 109 are satisfied.

11.2 Appeals to the Supreme Comt

Section 109 of the Code of Civil Procedure states that an appeal lies to the Supreme
Court from any judgment, decree or final order of a high court in a civil proceeding
of high court, if the high court certifies that the case involves a substantial question of
law of general importance, and that in the opinion of the high court, the said question
needs to be decided by the Supreme Court.
A party cannot appeal to the Supreme Court unless the case is certified to be a fit
one for appeal to the Supreme Court, as where the case involves a question of company
law, and the question is of importance to Indian companies generally as affecting their
financial and commercial position. A party failing to obtain a certificate of fitness may
apply directly to the Supreme Court for leave to appeal, and the Supreme Court may,
in a proper case, grant such leave.
A mixed question of law and fact, when there is no pleading, no issue framed, nor
evidence led, cannot be allowed to be raised for the first time before the Supreme Court."*^

45. See below, "Appeals to the Supreme Court".

46. In some states, courts next in grade below district courts also have appellate jurisdiction.
47. See below "Appeals to the Supreme Court".
48. Vasantha Viswanathan v VK Elayalwar, AIR 2001 SC 3367 : (2001) 8 SCC 133.
164 Mulla The Key to Indian Practice

The Supreme Court will be concerned with a substantial question of law arising
in the case and its jurisdiction would not be -restricted to illegality, irrationality or
procedural impropriety in the decision making process.'''
A suit filed on the original side of high court may be heard by a single judge of that
court, or it may, in a special case, be heard by a Bench of two or more judges.'' An
appeal lies to the high court from the decree of one judge of the said court." These
are called letters patent appeals. Where a single judge of the high court, in appeal,
exercising jurisdiction as an appellate court passes an order. Letters Patent-Appeal does
not lie against that order. WTien the suit is heard by two or more judges, an appeal
lies directly to the Supreme Court, and this is the case contemplated by section 109.
The "decree" referred to in section 109 is, so far as the high courts are concerned, a
decree passed in appeal by a high court from:
(i) a decree of a single judge of that court; or
(ii) a decree of a subordinate court.
It is pertinent to note that it is not only a decree, but also a final order that is
appealable to the Supreme Court. Thus, an order in a partnership suit declaring the
rights of partners, and directing accounts to be taken on the footing of the rights so
declared, is appealable to the Supreme Court, if the conditions of section 109 are
satisfied.

11.2.1 Procedure in Appeals to the Supreme Court

Order XLV, rules 1-3 states that a party desiring to appeal to the Supreme Court
shotild apply by petition to the court. Every petition should state the grounds of appeal,
a prayer for certificate, that the case fiilfils the conditions mentioned above as regards
appeal to the Supreme Court.
In accordance with O XLV, rules 3-7, upon receipt of such petition, the court shall
direct that notice be served on the opposite party to show cause why the certificate
should not be granted. The parties will then be heard on the notice. Where the certificate
is refused, the petition shall be dismissed. When the certificate is granted, the applicant
should, within the specified period, furnish security for the cost of the respondent, and
deposit the amount required to defray the expense for preparing a correct copy of the
record of the suit for transmitting it to the Supreme Court. Where such security has
been permitted and deposit rnade, the court should declare the appeal admitted, give
notice thereof to the respondent, and transmit to the Supreme Court, a correct copy
of the said record.

As regards execution of the decree appealed from, O XLV, rule 13 clearly states that
the court may stay the execution, taking proper security from the appellant, or it may
allow the decree to be executed, taking proper security from the respondent.

49. Cellular Operators Association ofIndia v UOI, AIR 2003 SC 899 : (2003) 3 SCC 186.
50. Letters Patent, Bombay, Madras and Calcutta, clause 36.
51. Ibid, clause 15.
52. Hemlata Panda v Sukuri Dibya, (2000) 2 SCC 218 : 2000 (40) Andh LR 425; PS Sathappan v Andhra
Bank Ltd, AIR 2004 SC 5152 : (2004) 11 SCC 672.
 Chapter 11—Appealsfrom Appellate Decrees or Second Ap}>eals 165

The appeal will then be heard by the Supreme Coun, and an order shall be made.
O XLV, rule 15 states that a party desiring to obtain execution of the order of the
Supreme Court should apply by petition to the court from which the appeal was
preferred. Such court should then transmit the order to the court which passed the
first decree appealed from with directions to execute it.

11.3 Appeals from Orders

The decisions of a court of law may be divided into two classes, namely,(1) decrees
and (2) orders. Orders, again, may be divided into two classes, namely, appealable
orders and non-appealable orders.
Decision

- i
Decree . Order

Appealable Non-appealable
The following are the points of distinctions between a decree and an order.
(!) Section 96 of the Code of Civil Procedure states that every decree is
■ appealable, unless it is expressly provided that no appeal shall lie from it;
but every order is not appealable; only those orders are appealable which
are specified in section 100 and under O XLIII, rule 1.
(2) In the case of decrees, section 100 states that a second appeal lies to the
high court if a question of law is involved. Section 104, sub-section (2),
makes it amply clear that no second appeal hes in the case of orders at all. A
revision may, however, he in certain cases.'' It is for the above reasons that the
distinaion between a decree and an order is important. The term "order" is
defined in section 2, clause 14 of the Code as "the formal expression of any
decision of a civil court which is not a decree." The lists given in section 104
and O XLIII, rule 1 give an idea of which orders are appealable at a glance.
Where an order passed under the Code of Civil Procedure, 1908 is not appealable,
the party aggrieved by such order may challenge the legalitj' of the crder in appeal
against the decree and contend that no such order could have been passed and. the
judgment should not have been pronounced.'^
The term "decree" is defined in the Code as meaning "the formal expression of an
adjudication which, so far as regards the court expressing it, conclusively determines
the risrhrs of the parties witlt regards to all or any of the matters in controversy in the
suit." To constitute a decision in a decree, the following conditions must be present:
(i) The decision must have been expressed in a suit.

53. Chapter 12.

54. Code of Civil Procedure, 1908, O XLIII, rule 1A(1).
166 Mulla The Key to Indian Practice

(ii) The decision must have been expressed on the rights of the parties -with
regard to all or any of any matters in controversy in the suit.
(iii) The decision must be one which conclusively determines those rights.
If all the elements set forth above concur in a decision, the decision is a decree; if
nor, it is an order, for all decisions which are not decrees are orders.

Illustrations

(a) A applies for leave to sue as an indigent person. The application is rejected on a
finding that A is not an indigent person. This decision is not a decree, for it is not a
decision in a suit. The application is for leave to sue, which shows clearly that there
is yet no suit. Every suit is commenced by a plaint, and an application for leave to
sue as an indigent person does not become a plaint until the application is granted
(O. XXXIII, R. 8).
(b) In a suit by A against B, an application is made by X to be added as a plaintiflf to suit
on the ground that he is interested in the subject-matter of the suit. The application
is rejected. The decision is not a decree, for it is not a decision on any right which
X might have claimed in the suit had he been a party-plaintilf.
In both the cases cited above an appeal was sought to be preferred from the decision.
On referring to section 104 and to O XLI, ride 1, it will be seen that neither a
decision rejecting an application to sue as an indigent person, nor a decision rejecting
an application to be added as a party, is specified in the list of appealable orders given
there. The decision not being an appealable order in either of them, it was contended
on behalf of the appellant that it amounted to a decree, and it was therefore appealable.
However, it was felt that the decision did not amount to a decree, and that it was not
therefore appealable as such.
It may he asked why is it that no second appeal lies from orders after dealing with
appeals to the Supreme Court. The answer is that though the law does not allow a
second appeal from an order, whether it is interlocutory or final, it does allow an
appeal to the Supreme Court from an order which is final in its character. An order
is said to be final, if it has the effect of deciding finally the cardinal point in the suit.

11.4 The Next Chapter - -

Thus, there are certain decrees from which no appeal lies to the high court. The
next chapter considers whether'' there is any other way in which the party aggrieved
by such a decree can approach the high court. There are, again, cases in which, though
an appeal is allowed by law, the party aggrieved by the decree may apply for a review
ofjudgment to the very court which passed the decree. These cases are also considered
in the next chapter."

55. Chapter 12.

56. Ibid
 CHAPTER 12

REFERENCES, REVISION AND REVIEW

SYNOPSIS

12.1 Reference 167 12.4 The Next Chapter 174

12.2 Revision 168
12.3 Review of Judgment
[Order XLVII] 171

Where no appeal lies to the high court,' the legislature has empowered the subordinate
courts to refer questions of law for decision to the high court. This is called reference.
Similarly, where no appeal lies to the high court, the legislature has empowered
the high court to revise the proceedings of courts subordinate to it in certain cases.
This is called revision, and the jurisdiction of the high court exercised in these cases is
called revisional jurisdiction. The high courts alone have revisional jurisdiction under
sections 113, 115 of the Code.

12.1 Reference

According to section 113, a reference may be made by subordinate court to the high
court, on a question which arises:
(a) in a suit in which the decree is not subject to a second appeal to the high
court, or in the execution of such a decree.
(b) if it is a question of law or usage having the force of law, on which the
court trying the suit or appeal entertains reasonable doubts.
Section 113 also states that such reference may be made by the court either on
its own motion or on an application by any of the parties. Where a question of the
validity of any law is in issue, a reference must be made.
The primary object of making reference is to enable a subordinate court to obtain
the opinion of the high court in non-appealable cases on a question of law and to
avoid commission of an error which cannot be remedied at a later stage.
Under the Code of Civil Procedure, 1908, it is only the court of civil judicature,
who can make a reference to the high court. And while making a reference, the court
must draw a statement of facts, formulate a precise question of law and express its
own opinion on the question.
The jurisdiction of the high court in references is merely consultative and is neither
original or appellate. Hence, it cannot pass an order on merits.^ Once the high court
answers the questions referred to it, nothing further survives for the high court to
decide.'

1. Chapter 11.
2. Delhi Financial Corpn v Ram Parshad AIR 1973 Delhi 28; Raja Hussain v Gaviappa AIR 1984 Kant
108: 1984(1) KarLJ 47.
3. Municipal Corp ofCity v Shiv Shanker Gauri Shanker Mehta,(1998)9 SCO 197:AIR 1998 SO 2874.
167
168 Mulla The Key to Indian Practice

The following table contains the distinction between "reference" and "appeal".

1. Power ofreference is vested in the court. A right to appeal is conferred on a suitor.

2. Power of reference may be exercised suo An appeal may be filed by a party or person
motu. aggrieved.
3. It can only be to the High Court. It may be to any superior court which may
not necessarily be the High Court.
4. It can only be made during the It can be preferred only after the decree is
pendency of suit or appeal or execution passed or an order made which is appealable.
proceedings.

The high court then hears the parties, and decides the points referred. A copy of
its judgment is then sent to the court by which the reference was made. It is the duty
of the latter court, on receipt of the judgment by virtue of section 113 and O XLVI,
rule 1 to dispose of the case in conformity with the decision of the high court. In
certain cases, imder O XVI, rules 6-7 questions as to jurisdiction in small causes may
be referred.

The power to make reference is discretionary. However, where a question of validity

of an act. Ordinance or regidation is involved and where the court is of the opinion
that they are invalid or inoperative but they have not been declared to be so by the
Supreme Court or high court to which it is subordinate, the court shall make reference
to the high court.
Where the requirement laid down in the proviso to section 113 of the Code is not
satisfied, the reference made by the District Judge would be incompetent.^
If the high court has already decided the question as to the vahdity of an Act,
section 113 has no application.'

12.2 Revision

"Revision" means the action of revising and especially making a critical or careful
examination or perusal with a view to correcting or improving.® The revisional
jurisdiction has been conferred on the high court, for the effective exercise of its
superintending and visitorial powers over the subordinate courts.^ Independent of the
provisions of CPC, Rent Control Acts and some Revenue Acts of States also invest
in the High Court the power of revisional jurisdiction. The revisional powers can be
invoked by the high court either on an application of the aggrieved party or suo motu.
High court cannot reappreciate evidence and set aside concurrent findings of courts
below by taking a different view of the evidence. High court is empowered only to
interfere with the findings of fact if they are perverse or there is non-appreciation or

4. State ofMaharashtra v Prashant Preetam Kr. Shegaonkar. AlR TO! I Run.! lO'J i i03)(DB): 2011 (4) Bom
CR 334.
5. Central Bank ofIndia v Vrajial Kapwchand Gandhi, AIR 2003 SC 3028 : i-'003) 6 SCC 573.
6. Shorter Osford English Dictionary, vol. 2, 1990, p 1821.
7. Johri Singh v Sukh Pal Singh, AIR 1989 SC 2073; Manick Chandra'Nandy v Dehdas Nandy, AIR 1986 SC
446.
 chapter 12—References, Revision and Review 169

non-consideration of material evidence on record.® Section 115 does not, in any way,
confer a right on a litigant aggrieved by any order of the subordinate court to approach
the high court for relief. The scope of making a revision under this section is not liiied
with a substantive right.'
The primary object of revision is to prevent the subordinate courts from acting
arbitrarily, capriciously and illegally or irregularly in the exercise of their jurisdiction,
and keeping Ae subordinate courts within the bounds of their jurisdiction.'" The scope
of revisional jurisdiction depends on the language of the statute. Though revisional
jurisdiction is a part of the appellate jurisdiction, it cannot be equated,with that of a
ftill-fledged appeal." Once the civil revision applications are held to be not maintainable
ordinarily the high court should not enter in to the merits of the matter.'^
The high court has the power imder section 115 to call for the record of any case
which has been decided by any court subordinate to it and in which no appeal lies
thereto, if the subordinate court appears:
(a) to have exercised a jurisdiction not vested in it by law; or
(b) to have failed to exercise a jurisdiction vested in it by law; or
(c) to have acted in the exercise of its jurisdiction illegally or with material
irregularity;
and the high court may make such order in case as it thinks fit. "The section
is concerned with jurisdiction and jurisdiction alone involving a refusal to exercise
jurisdiction where one exists or an assumption of jurisdiction where none exists and
lastly acting with illegality or material irregularity."'^ Revision against interlocutory
orders is however, subject to certain limitations as per proviso to section 115. The
high court shall not vary or reverse any interlocutory orders except in following cases:
(i) if such order was made in favour of the applicant, it would have finally
disposed of the suit or other proceedings; or
(ii) if such order is passed without any legal evidence on the record, or on
misunderstanding of evidence or suffers from any legal infirmity which
materially prejudices the case of one of the parties or the finding is
perverse'^ and would occasion failure of justice or cause irreparable injury.
It can be seen that both the phrases "failure of justice" and "irreparable injury" are
very wide and confer discretionary powers to decide whether interference is called for
or not.

Any illegality, irregularity or impropriety is capable of being corrected by the high

court by passing such appropriate order or direction as the law requires and justice
demands."

8. YtmusAlivKhursheedAkram,(2008)7SCC 293(295-297):2008 SC 2607(2609): AIR 2008 SC 2607.

9. Shiv Shakti co-op Howing Society v SwarajDevelopers, AIR 2003 SC 2434:(2003)6 SCC 659-
10. ITILtd V Siemens Public Communication Networks Ltd, AIR 2002 SC 2308:(2002) 5 SCC 510.
11. Cbandrika Prasad v Umesh Kztmar Verma, AIR 2002 SC 108:(2002) 1 SCC 531.
12. Nawab Shaugafath All Khan v Nawab ImdadJab Bahadur,(2009)5 SCC 162(178):2009 (3) Scale 934.
13. Major SS Khanna v Brig FJDillon, AIR 1964 SC 497.
14. Neelakantan v Mallika Begum,AIR 2002 SC 827 ;(2002) 2SCC 440.
15. Nalakath Saimuddin v Kuorikadan Sulaiman,(2002)6 SCC 1.
170 Mulla The Key to Indian Practice

A revision shall be entertained by the high court only in respect of those orders
which would have finally disposed of the suit or other proceedings.'^ The revision
against order finally deciding the manner in which money decree is to be satisfied,
would be maintainable."'

If the order is of interim nature or does not finally decide the Its, the revision will
not be maintainable.'® Where application is an interlocutory application, the order
passed rejecting it will not amount to finally deciding final decree proceedings. Hence, a
civil revision petition would not be maintainable." Revision is not maintainable against
interim order of mandatory injunction but before such a relief is granted, the court
must be satisfied that the party seeking it has a higher standard than a mere primafacie
case.^" Further, mere possibility of a different view is no ground for ".nterference in
exercise of revisional powers.-"
The nature and extent of jurisdiction of the various courts subordinate to high
court have already been discussed.^^ It follows from what has been stated there, that if
a court tries a suit which it has no jurisdiction to try having regard to the local limit
of its jurisdiction not vested in it by law, it is a case of exercise of jurisdiction not
vested in it by law.
Similarly, where a court has jurisdiction to entertain a suit or to execute a decree, or
to review its judgment, but refuses to do so on the ground that it has no jurisdiction,
it is a case of failure to exercise jurisdiction vested in it by law. In all these cases, the
high court may interfere in the exercise of its revisional jurisdiction and make such
order as it thinks fit. Where a conditional leave to defend a suit is granted, a revision
application would be maintainable.^'
The third class of cases appropriate for revision by the high court is where a
subordinate court having jurisdiction and having exercised it, has acted illegally or with
material irregularity in the exercise of such jurisdiction. Thus it is an illegality to pass
a decree on an unstamped promissory note. Similarly, it is an illegality and a material
irregularity to make an order against a person without hearing him at all. High court
in its revisional jurisdiction under section 115 of the Code can interfere with finding
of fact arrived at by the Appellate Authority if it finds that the findings of the appellate
authority on the question of bona fide requirement were either perverse or arbitrary.^''
However, an error of fact or law cannot be interfered with in revision. The decision
of the subordinate court on all questions of fact and law not touching the jurisdiction
is final and not open to challenge in revision^' and the mere fact that decision of the
court is erroneous, whether it is upon fact or in law, does not amount to an illegality

16. VS Saini vDCM Ltd, AIR 2004 Del 219.

17. Radhey Shyam Gupta v Punjab National Bank, AIR 2009 SC 930 (934) ;(2009) 1 SCC 376.
18. Shiv Shakti Co-op Housing Society v SwarajDevelopers, AIR 2003 SC 2434:(2003)6 SCC 659.
19. KashammavMahadevappa, 2008 (1) Kar LJ 652(653, 655-56)(DB):ILR 2007 KAR 3512.
20. Tek Singh v Sashi Verma, AIR 2019 SC 1047:2019(3) Scale 86.
21. Harshvardhan Chokkani v Bhupendra NPatcl, AIR 2002 SC 1373:(2002) 3 SCC 626.
22. Ch.apter 2.
23. Wada Arm Asbestos PvtLtd v Gujarat Water Supply &Sewerage Board,(2009)2 SCC 432.
24. Ajit Singh v Jit Ram, AIR 2009 SC 199 (203); Devaki Antharjanam v Srudharan Namboodri, (2009) 7
SCC 798.
25. Pandurang Dhondi Chougule vMaruti HariJhadav, AIR 1966 SC 153; DIP Housing and Construction Co
Pvt Ltd V Sarup Singh, AIR 1971 SC 2324.
 Chapter 12—References, Revision and Review 171

or material irregularity. Therefore, the high court will not intetfere in the exercise of its
revisional jurisdiction merely because the lower court wrongly decides that the suit is
batted as res judicata, or that is barred by limitation, or because it proceeds upon the
erroneous construction of the sections of an Act. The principle is that where a court
has jurisdiction to decide the question before it, and in fact decides such question, it
cannot be regarded as acting in the exercise of its jurisdiction illegally or with material
irregularity, merely because its decision is erroneous. "If a subordinate court exercises
its jurisdiction not vested in it by law or fails to exercise the jurisdiction so vested,
the said order under Section 115 of the CPC is revisable. After the amendment of
Section 115, C.P.C. w.e.f. 1.7.2002, the said power is exercised under Article 227 of
the Constitution."^^

The revision application can be moved within 90 days from the date of decree or
order sought to be revised.^®

12.3 Review of Judgment [Order XLVII]

The term "review" means re-examination or second examination of a case.^' It is an
act oflooking at or offering something again with a view of correction or improvement.^"
It means to reconsider the same material. When it appears that an error on the face of
the record has occurred and it can be verified by mere looking at the record, a review
application is maintainable." "An error which is not self-evident and has to be detected
by a process of reasoning can hardly be said to be an error apparent on the face of
the record justifying the Court to exercise its power of review. The mere possibility of
two views on the subject is not a ground for review. Review is not re-hearing of an
original matter. The power of review cannot be confused with appellate power which
enables a superior court to correct all errors committed by a subordinate court. In
legal parlance it is a judicial re-examination of the case by the same court and by the
same judge.^^ The scope of review is ver}"^ limited under O XLVII, rule 1 of the Code.^'*
It is for review of an error apparent only and not to review judgment or order, even if
parties are in a position to satisfy the court that the order under review is erroneous.''
The Code, under section 114 confers a right of review if the conditions precedent laid
down therein are satisfied and lays down the procedure under O XLVII for it. The
substantive provision of law does not prescribe any limitation on the power of the
court except those which are specifically provided under section 114 in tetms whereof
it is empowered to make such order as it thinks fit.'^ Review in tetms does not apply
to an application for review in a writ petition.'^

26. ML Sethi vRPKapur,AIR 1972 SC 2379:(1972)2 SCC 427.

27. Sameer Singh v AbdtdRab,2015 (1)SCC 379.
28. Limitation Act, 1963, schedule, Article 131.
29. Chamber's 21st Century Dictionaryy 1997, p 1197.
30. Lily Thomas v UOL (2000)6 SCC 224.
31. Lakshmi Narain v Secretary ofGovt, Deptt. ofSurvey &Land Records, 2010(4) All LT 774(781): 2010 (5)
Andh LD 91.
32. KamleshVermav.Mayawatiy20\'i{^)SQQ?>2().
33. State ofOrissa v Commr ofLand Records and Settlementy AIR 1998 SC 3067:(1998)7 SCC 162.
34. Orientallnsurance Co v Kalawati Deviy (2009) 13 SCC 767(768).
35. Span Co Ltd v A2ZMaintenance &En^neering Services Ltd, 2010 (5) Bom CR832(836)(DB).
36. Board ofControlfor Cricket, India v Netaji Cricket Club, AIR 2005 SC 592:(2005)4 SCC 741.
37. Maruti RealEstate Pvt Ltd v LLC ofIndia, 2008 (1) CHN 442.
 172 Mulla The Key to Indian Practice

A review c^not be equated with the original heating of the case and finality of the
judgment delivered by a competent court cannot be reopened or reconsidered, unless
the earlier judicial view is manifestly wrong.^s It is beyond any doubt or dispute that
dae review court does not sit in appeal over its own order. A rehearing of the matter
is impermissible in law.'' A review is by no means an appeal in disguise whereby
an erroneous decision is regard and corrected, but lies only for patent error. We do
not consider that this furnishes a suitable occasion for dealing with this difference
exhaustively or in any great detail, but it would suffice for us to say that where without
any elaborate argument one could point to the error and say here is a substantial point
of law which stares one in the face, and there could reasonably be no two opinions
entertained about it, a clear case of error apparent on the face of the record wou'd he
made out."'®''

The remedy of review was nor known to Common Law and has been borrowed
from the courts of equity. The doctrine of review is based on the philosophy that the
mistakes and errors of human failing must be corrected so as to prevent miscarriage
of justice. It is exercised to remove the error and nor to disturb the finality.^' "Review
Petition has to be heard hy the Judges, who pronounced the judgir.ent, so long as
they are in service. In review petition petitioner can only seek correction of errors or
mistakes in the judgment apparent on the face of the record."^^
Consumer Disputes Redressal Agencies nnder the Consumer Protection Act, 1986,
have no power of review.^' The omission to cite an authority of law is not a ground to
review the earlier judgment. The purpose of review application cannot he "rehearing"
for the purpose of saying whether a difiFerent conclusion on merits could be adopted.-"
Order XLVII, rule 1 states that a party aggrieved by a decree or order may apply
for a review of judgment not only where no appeal is allowed from it, but also where
an appeal is allowed from it, provided that no appeal has been preferred by him. A
decree or order from which an appeal is allowed but where no appeal has been filed
can be reviewed.'®' The fact that some other party to the decree has preferred an appeal
is no bar to an application for a review of judgment if such appeal is common to the
applicant and the appellant. Where principles laid down under O XLVII, rule 1 are
completely ignored, the order in review would be liable ro be set aside.^®
An application for a review of judgment may be made on any of the following
grounds:
(i) discovery by the applicant of new and important matter or evidence which,
after rhe exercise of due diligence, was nor wirhin his knowledge or could
nor be produced by him at the time when the decree or order was passed;
(ii) on account of some mistake or error apparent on the face of the record;
38. Delhi Administration v Gurdeep Singh (2000)7SCC 296; SusheelNaik v GKNaik,(2000)9 SCC 366
39. Inderchandjain v Motilal (2009) 14 SCC 663(669);(2009) 11 SCR 252.
40. Thungabhadra Industries Ltd v Govt ofAP,AIR 1964 SC 1372.
41. Lily Thomas v UOI,AIR 2000 SC 1650 ;(2000)6 SCC 224.
42. ChiefSecretary to Government v Khalid Mundappilly, 2011 (l)RCR (Civil) 769: 2010 (3) Ker LT 757
43. Eureka Estates PvtLtdvAPS CDR Commission, AIR 2005 AP 118(DB): 2004(6) Andh LD 212.
44. Kishan Gqyal v Secretary to Govt ofOrissa,(2008) 106 Cut LT 92(DB):2008 (Supp) Ori LR 551.
45. KalpatruAgroforest Enterprises v UOI,(2002)3 SCC 692 ;(2002)2SCR 298.
46. TThimmaiah v VenkatachalaRaju,(2008) 11 SCC 107(108):2008 (8) Scale 138.
 Chapter 12—Rrferences, Revision and Review' 173

(iii) for any other sufficient reason (which) means sufficient reason analogous
to those specified immediately to it in the provisions of O XLVII, rule 1.^^
The words 'sufficient reason are wide enough to include a misconception
of fact or law by a court or even an advocate. An application for review
may be necessitated by way of invoking the doctrine actus curiae neminem
gravabit^^ If the judgment is based upon any proposition of law which
is reversed or modified by a subsequent decision of a superior court in
any other case, it shall not be a ground for review.'" This has been clearly
stated in the explanation to O XLVII, rule 1.
An error apparent on the face of the record may be one of fact or of law. No error
can be said to be an error apparent on the face of the record if it is not self-evident
and requires an examination or argument to establish it.'"
The application should be in the same form as a memorandum of appeal." After the
application is admitted, a notice will be issued to the opposite party. The application
will then be heard. It is to be heard by the very judge who passed the decree, unless
he is no longer attached to the court, or is precluded ftom hearing it by absence or
other cause for a period six months next after the application. And here the main point
of distinction between an appeal and a review has to be noted. An appeal ftom a decree
lies to a judge other than the one who passed the decree. A review of judgment lies to
the same judge who passed the decree. In absence of any statutory provision proviing
for review, entertaining an application for review or under the garb of clarification/
modification/ correction is not permissible.'^,
Where there is no sufficient ground for a review, the application should be rejected.
Otherwise the court may grant the application. Where the application is granted, the
court may at once re-hear the case or appoint a day for re-hearing it. After re-heating
the case, the court may pass such decree or orders as it thinks proper as per O XLVII,
rules 4 and 6. Where review is allowed, the applicant would be entitled to refund of
court fee paid on the review petition."
The law does not allow a second review, that is to say, that under O XLVII,
rule 9 there can be no review of an application for a review and no review of a decree
passed on a review. Regarding the maintainability of appeal against the review petition
preferred by appellants themselves having invoked the jurisdiction of the appellate
court, it would not be open to the appellants to take a contrary view and to urge
that such appeal was not maintainable having being filed against an order passed in
review petition.''*

47. SankarDas v PP Ltd,(2009) 108 Cut LT 553(556)(DB); 2009 (2) Ori LR790,MMB CatholicosvMP
Athanasius, AIR 1954 SC 526; Meera Bhanja v Nirmala Kumari Chaudhari, AIR 1995 SC 455:(1995) 1
see no.
48. Board ofControlfor Cricket India v Netaji Cricket Club, AIR 2005 SC 592:(2005)4 SCC 741.
49. Shnnti Devi v State ofHaryana-,(1999) 5 SCC 703.
50. Delhi Administration o Gurdip Singh(2000)7 SCC 296: 2000(5) Scale 651; Parsion Devi v Sumitri Devi
(1997)8 see 715 : 1997 (6) Scale 432.
51. 5^^ Chapter 10.
52. Kalabharti Advertising V Hemant Vimalnath Narichania, AIR 2010 SC 3745 (3749):(2010)9 SCC 437-
53. Joy Verghese v State ofKerala^ AIR 2005 Ker 49.
54. Indian Overseas Bank v Ashok Saw Mill,(2009)8 SCC 366 (376).
 174 Mulla The Key to Indian Practice

The following table contains the points of distinction between "review" and "revision"
Si No. Review Revision
(1) Review jurisdiction can be exercised by Revisionai jurisdiction can be exetcised only
that very court which passed the decree by the high court.
or made the order

(2) Review is av-ailabie irre-spective of Revisiotl IS, available when no appeal lies.
whether an appeal lies frorn the" decree
or order.

(3) Review powers can be exercised by Revisional jlirisdicfion can be exercised even
the court only on applicafion of the siio molu.
aggrieved party,
(4) Ordec granting review is appealable,'. Order passed in revisional Jurisdi uion 'is not
appealable.
The review jurisdiction of the court can be invoked within 30 day from the dare
of the decree or the order."

12.4 The Next Chapter

The conduct of" suit in and out of court from the date of their institution up to
the final order of the Supreme Court have been explained thus far. There are, however,
supplemental proceedings which are nor obligatory upon a party to demand it. They
may be taken at any stage of a suit as occasion demands. These proceedings form the
subject-matter of the next chapter. I hat chapter also deals with certain special types of
proceedings and also with death, marriage and insolvency of parties.

55. Limitation Act, 1963,schedule, Arrick* 124

 CHAPTER 13

SUPPLEMENTAL AND SPECIAL

PROCEEDINGS
SYNOPSIS

13.1 Arrest and Attachment before 13.4 Security for Costs

Judgment 175 [Order XXV] 185
13.1.1 Arrest before Judgment 13.4.1 Discretion of the Court 185
[Order XXXVIII, 13.5 Withdrawal of Suits
Rules 1-4] 176 [Order XXIII, Rules 1-2] 185
13.1.1.1 Application for Arrest 13.5.1 Application of Order 23
before Judgment 176 Rules 1 and 2 to other
13.1.2 Attachment before Judgment Proceedings 187
[Order XXXVIII, 13.6 Payment into Court
Rules 5-12] 177 [Order XXTV] 188
13.2 Temporary Injunction 13.7 Compromise of Suits
[Order XXXIX] 179 [Order XXIII, Rule 3] 188
13.2.1 Res Judicata on ■ 13.8 Special Case [Section 90;
Injunctions 182 Order XXXVI] 190
13.3 Receiver [Order XL] 182 13.9 Death, Marriage and Insolvency
13.3.1 Status of Receiver 183 of Parties [Order XXII] 191

(A) Supplemental Proceedings

13.1 Arrest and Attachment before Judgment

Ordinarily, the property of a debtor may be attached or he may be arrested only
in execution of a decree. However, in order to prevent any attempt by a defendant
to defeat the execution of decree and to enable the plaintiff to realise a decree in the
event of the decree being passed in his favour, the Code provides ,for the arrest of a
defendant or the attachment of his property, in certain circumstances before the delivery
ofjudgment. The power of arrest of defendant or attachment of his property before the
judgment is an extraordinary remedy, and must be exercised sparingly and with utmost
care and caution. The process cannot be used by the plaintiff as a lever to coerce the
defendant to come to terms.'

A plaintiff may at any stage of a suit apply for arrest of the defendant before the
judgment is passed against him. Similarly, he may apply for the attachment of his
property before judgment. Such an application may be made at any time after the plaint
is admitted, even before the service of summons upon the defendant. It is certainly
not just that a defendant should be arrested or that his property be attached before a
decree is passed against him. Hence, it is only in certain specified cases that the law
allows an arrest or attachment before judgment. Where the arrest or attachment has

1. Sardar Govindrao Mahadik v Devi Sahai, AIR 1982 SC 989 ; (1982) 1 SCC 237.

175
176 Multa The Key to Indian Practice

been obtained on insufficient grounds, the law provides compensation to the defendant
for an amount not exceeding Rs 50,000.^ Section 95 is a specific provision to meet the
situation stated therein, and it is open to a party to institute an independent suit for
damages. The remedy imder section 95 is an alternative remedy in cases of wrongful
obtainment of injunction, and it does not in any way interfere with the principles
regulating suits for damages for tort or malicious legal process. The scope and ambit
of such suit for damages shall necessarily be wider than the limited scope envisaged
under section 95.

The regular suit shall be based on tort for abusing the process of court and the
plaintiff not only has to prove want of reasonable or probable cause for obtaining
injunction, but also that the defendant was attracted by malice or an improper motive,^
and according to section 95(2) an order determining such compensation shall bar any
suit for compensation in respect of such arrest. Separate suit for damages shall also be
barred where an application for compensation under section 95 is dismissed.'*

13.1.1 Arrest before Judgment[Order XXXVIII,Rides 1-4]

Whete the court is satisfied that the defendant with an intent to delay the. plaintiff
or to avoid any process or with intent to obstruct or delay the execution of any decree
that may be passed against him:
(a) has absconded or is about to abscond, or has left or is about to leave the
local limits of its jurisdiction; or
(b) has disposed of his property or any part thereof or has removed it from
the said limits;
the court may issue a warrant to arrest the defendant, and bring him before the
court to show cause why he should not furnish security of his appearance.
Where the defendant is about to leave India, it is enough if the circumstances
under which he is about to leave India aflford a "reasonable probability" that any
decree that may be passed against him in the suit will thereby be obstructed or delayed
in execution.' "The power to arrest the defendant and that too before a decree in
favour of the plaintiff is dtastic action and must be taken after due care, caution, and
circumspection."®

15.1.1.1 Application for Arrest before Judgment

In Vareed Jacob v Sosamma GreevargheseJ An application fot attest may be made
by the plaintiff at any time after the plaint is presented, even before the service of
summons is effected on the defendant. However, before this extraordinary power can
be exercised, the court must be satisfied about the following conditions:

2. Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 1-7-2002),
section 95 (1).
3. BOI V Lakhimani Das, AIR 2000 SC 1172 : (2000) 3 SCC 640.
4. Yerragorla Narayana v Gavvala Nellesu, AIR 2006 AP 305 : 2006 (4) Andh LD 164.
5. V Balakrishnan v TM Goivrieshan, AIR 2001 Mad 20.
6. Vareed Jacob v Sosamma Greevarghese, (2004) 6 SCC 378 : AIR 2004 SC 3992.
7. Vareed Jacob v Sosamma Greevarghese, (2004) 6 SCC 378 : AIR 2004 SC 3992.
 chapter 13—Supplemental and Special Proceedings 177

• The plaintiff's suit must be bona fide and his cause of action must be prima
facie unimpeachable subject to his proving the allegations in the plaint.
• The court must have reason to believe on adequate materials that unless this
extraordinary power is exercised there is a real danger that the defendant will
remove himself or his property from the ambit of the powers of the court.
The warrant should specify the amount of the plaintiflf's claim. If the defendant pays
the amount to the officer entrusted with the execution of the warrant, he will not be
arrested. If he does not pay the said amoimt, he will be arrested and brought before
the court. If he shows such cause, the court wiU make an order directing his release.
If he fails to show such cause, the court will make an order directing him either to
deposit in court, money or other property sufficient to answer the claim against him,
or to furnish security for his appearance at any time until satisfaction of any decree
that may be passed against him. If he fails to comply with the last-mentioned order,
the court may commit him to the civil person for a maximum period of six months
and where the value of the subject-matter of the suit does not exceed Rs 50, for a
maximum period of six weeks.
No arrest before judgment is allowed in a suit for land or immovable property
specified under section 16, clause (a) to (d).
An order passed under O XXXVIII, rules 2, 3, or 6 is appealable under O XXXVIII,
rule l(q).
A. woman cannot be arrested or detained in civil prison under this rule in case of
a suit for recovery of money.'

13.1.2 Attachment before Judgment[Order XXXVIII, Rules 5-12]

The sole object of attachnient.before judgment is to give an assurance to the plaintiff
that the decree which may be ultimately passed in his favour shall not be rendered
infructuous.'

"Where the court is satisfied that the defendant, with an intent to obstruct or delay
the execution of any decree that may be passed against him, is about to dispose of his
or any part thereof or remove it from its local limits, the court may direct the defendant
either to furnish security in such sum as may be specified in the order to place at the
disposal of the .court, the said property or the value thereof, or such portion thereof
as may be sufficient to satisfy the decree that may be passed against him, or to appear
and show cause why he should not furnish such security. Order XXXVIII, rule 5(1)
empowers the court to direct a defendant to furnish security in the specified sum or
produce and place his property or part thereof at the disposal of Court, to the extent
it is sufficient to satisfy the decree, if the Court is satisfied that such defendant is with
intent to obstruct or delay the execution of any decree that may be passed against him,
is about to remove the"same from the local limits of the jurisdiction of the Court. Sub-
rule (3) further empowers* to direct conditional attachment of the specified property.
Conditional attachment is provisional in nature and is always subject to modification.
"The power given under this rule to make an alternative order directing the defendant

8. Mschelska Mills Mothers v Chorus Girl Inc, AIR 1991 Del 129 : 1990 RLR 340.
9. Govindram v Devi, AIR 1982 SC 989.
178 Mulla The Key to Indian Practice

either to give security within a definite period or to appear and show cause why he
should not furnish security, carries with it, as an incident, the power to confirm the
order that security be furnished."'"
"The fact that the coutt has passed a conditional order of attachment does not mean
that the requirement of sub-rule (1) of O XXXVIII, rule 5 has been taken away, nor
does it mean that the defendant loses his right to show cause, why he should not furnish
security. Therefore, though a conditional order of attachment had been passed by the
court, the defendant would have a right to appear and show cause against it."" If he
fails to show such cause, the court may order that the property be attached, or if it has
already been attached, it may confirm the attachment. Attachment before judgment of
the movables'^ and of the money in the hands of a third party due to the defendant
can also be ordered.'^ In order to secure the attachment of property before judgment
in a money suit, it is not necessary to consider that whether the suit property is the
subject-matter of suit and that it is within or beyond the jurisdiction of the Court.'"'
An order of attachment before judgment may be likely to ruin the reputation of the
party against whom such an order is passed. Thus, the affidavit filed in support of
the contentions should not be vague and should clearly establish that the defendant,
with an intent to obstruct or delay the execution of the decree that may be passed
against him is about to dispose of the whole or any part of his property. Particulars
and grounds on which the belief or apprehension is based must be clearly stated with
the source of information. Mere general allegations or a mere mechanical repetition of
the language of the provision, unsupported by particulars would not be sufficient. The
power under O XXXVIII, rule 5 of the code is extra ordinary and drastic and hence
should not be exercised mechanically or merely for the asking. The power under O
XXXVIII, rule 5 should be used sparingly and strictly in accordance with rule." "While
exercising jurisdiction under O XXXVIII, rule 5 of the Code, the court is required
to form a prima facie opinion at that stage and need not go into the correctness or
otherwise of the contentions raised by the parties.'® Where property is attached before
judgment, and a decree is subsequently passed for the plaintiff, it is not necessary to
re-attach it in execution of the decree. Agriculture produce and production of such
produce cannot be attached before judgment. The Code does not empower a court of
small causes to make an order for attachment of immovable property.'''
An order of attachment made without complying with the requirements shall be
void according to O XXXVIII, rule 5(4). An order passed without giving reasons would
be an illegal order. Thus, the power to attach the property before judgment cannot be

10. Shah Umed Mai v Shah Bhutaji, ILR (1969) 19 Raj 701.
11. Shalimar Rope Works Ltd v NC John and Sons Ltd, 1986 Ker LJ 1051.
12. Sankar Sealing System Pvt Ltd v Jain Motor Trading Co, AIR 2004 Mad 127 : 2004 (1) ARBLR 496
(Madras).
13. Surender Singh Bajaj v Kitty Steels Ltd, AIR 2003 AP 13 (DB): 2002 (4) Andh LD 191.
14. Muthoot Vehicle S-Asset Finance Ltd v Gopalan Kuttapan, 2009 (4) KLT 123 (126)(DB): 2009 (3)
Ker LJ 280.
15. Raman Tech & Process Engg Co v Solanki Traders, (2008) 2 SCC 302 : 2008 (2) SCJ 381;
MR Lakshamanappa v Ramachandra Bhatt, 2008 AIHC 1678 (Kar) (merely having a prima facie case
will not entide the plaintifF to an order of attachment before judgment).
16. Rajendran v Shankar Sundaram, (2008) 2 SCC 724 ; AIR 2008 SC 1170.
17. Code of Civil Procedure 1908. O XXXVIII, rule 13.
 chapter 13—Supplemental and Special Proceedings 179

exercised in routine manner.'® "This process is never meant as a lever for the plaintiff
to coerce the defendant to come to terms. Hence utmost caution and circumspection
should guide the court. The court must advert to the provisions of the Code in this
regard, advert to and investigate the allegations thrown against the defendant, satisfy
itself that a case for attachment before judgment has been made out and then pass
the requisite order. These principles have come to be recognised as mandates to the
Court and if the Courts act.in breach thereof, such an order of the Court will have
to be ignored as the result of dereliction of duty."" Attachment before judgment made
without giving an opportunity to the defendant to furnish security shall be void.^" The
attachment of property must be made in the manner provided for the attachment of
property in execution of a' decree under O XXXVIII, rule 7. Under the said order,
rule 1 lA, an attachment made before judgment in a suit which is dismissed for default
will not become revived ipso facto on the restoration of the suit after setting aside of
the order of dismissal for default. Where the Supreme Court appointed a receiver and
possession was handed over to him, attachment would stand released.^'
Where any claim is made in respect of such property, it shall be decided in the
same manner as provided for attachment of property in execution of a decree. Such
attachment shall not affect rights of persons not parties to the suit if such rights were
existing prior to the attachment. The provision for attachment before judgment is not
applicable where the property has already been disposed of and the purchaser has a
right to object to attachment as he had become owner of the property before the filing
of the suit.^^ Mere non-appearance of the defendant despite service of notice,^® or, if
the defendant is in financial strain is not sufficient and does not justify an order for
attachment before judgment.^"*

13.2 Temporary Injimction [Order XXXIX]

An injunction is a judicial remedy prohibiting persons from doing a specified act
or commanding them to undo some wrong or an injury. The relief of injunction is in
the nature of declaratory and equitable.^^ In the former sense, it is called a restrictive
injunction and in the latter, a mandatory injunction.''^
Injunctions are of two kinds, namely, (i) temporary; and (ii) permanent. Temporary
injunctions are such as are to continue until a specified time, or until the further
order of the court. They may be granted at any stage of a suit, even before the service
of summons upon the defendant and are governed by the. Code. An injunction is in
the nature of a preventive relief granted to a litigant because he fears future possible
injury. A perpetual injunction can only be granted by a decree made at the hearing
and upon the merits of the suit; the defendant is thereby perpetually enjoined from the

18. Maudala Suryanarayana v Barla Babu Rao, AIR 2010 (NOC) 573 (DB) : 2010 (2) Andh LT 839 :
(Misc. Appeal No. 997 of 2009 dated 6-11-2009.
19. T Srinivasan v V Srinivasan, AIR 1985 Mad 269.
20. RBM Pati Joint Venture v Bengal Builders, AIR 2004 Cal 58.
21. Chhagan Lai v Kamal Chand, (2008) 3 SCC 303.
22. Subhash Bhimshanker Kalase v State Bank ofIndia, AIR 2005 Bom 165.
23. RBM Pati Joint Venture v Bengal Builders, AIR 2004 Cal 58.
24. Saraswati Co-op Bank v CM Shah, AIR 2002 Bom 203.
25. Ryan v PN Junqa & Sons, 163 (2009) DLT 14 : II (2009) DMC 767.
26. Black's Law Dictionary, 6th Edn.
180 Mulla The Key to Indian Practice

commission of an act, which would be contrary to the rights of the plaintiff. Perpetual
injunctions are governed by the Specific Relief Act, 1963.^^
A temporary injunction may be granted in any of the following cases:
(a) where any property in dispute in the suit is in danger of being wasted,
damaged or alienated by any party to the suit, or wrongfully sold in
execution of a decree;
(b) where the defendant threatens to dispose of his property with a view to
defrauding his creditors;
(c) where the defendant threatens to dispossess the plaintiff; or
(d) where the defendant is about to commit a breach of contract, or other
injury of any kind.

Illustrations

(1) A trustee threatens to sell trust property in breach of the mist. The beneficiary may
sue for an injunction to prevent the breach, and may at any time after the plaint
is admitted apply for a temporary injunction to restrain the trustee from selling the
property until the hearing and final disposal of the suit.
(2) A lets certain lands to R, and B contracts not to dig sand or gravel thereat. B is about
- to dig sand out of the lands in violation of his contract. A may sue for an injunction
to restrain B from digging sand, and may apply for a temporary injunction as in
illustration (1).
(3) A pollutes the air with smoke so as to interfere materially with the physical comfort
of his neighbour B. B may sue for an injimction to restrain the pollution, and may
apply for a temporary injunction as in illustration (1).
As a general rule, the court is required to issue a notice to the defendant before
issuing any injunction. However, where it appears that delay would defeat the object of
granting injunction, the court may issue injunction without even giving notice to the
defendant. It is called ex parte or ad interim injunction. Where the Court is satisfied
that a case for the grant of ex parte injunction without issuing notice to the opposite
party is made out, proviso to rule 3 obligates the court to record reasons which is not
a mere formality but a mandatory requirement.
In Shiv Kumar Chadha v MCD,^^ the Supreme Court held that:
The requirement for recording the reasons for grant of ex parte injunction cannot be
held to be a mere formality. This requirement is consistent with the principle, that a
party to a suit, who is being restrained from exercising a right which such party claims to
exercise either under a statute or under the common law, must be informed why instead
of following the requirement of Rule 3, the procedure prescribed under the proviso has
been followed. The party who invokes the jurisdiction of the Court for grant of an order
of restraint against a party, without affording an opportunity to him of being heard, must
satisfy the Court about the gravity of the situation and Coiut has to consider briefly these
factors in the ex parte order ... If it is held that the compliance of the proviso aforesaid
is optional and not obligatory, then the introduction of the proviso by the Parliament
shall be a futile exercise and part of Ride 3 will be a surplusage for all practical purpose.

27. Specific Relief Act, 1963, sections 38-42.

28. Shiv Kumar Chadha v MCD,(1993) 3 SCC 161 : 1993 SCR (3) 522.
 Chapter 13—Supplemental and Special Proceedings 181

Proviso to Rule 3 of Order 39 of the Code attracts the principle, that if a statute requires
a thing to be done in a particular manner, it should be done in that manner or not all.
When it is granted, the plaintiff is required to send copies of documents, plaint
and affidavit in support of application for injunction to the defendant immediately and
to file an affidavit which is done on the same or next day. If the plaintiff has made
a false statement or suppressed material facts, such ex parte injunction is liable to be
vacated forthwith. If ex parte injunction is confirmed after hearing ^d final disposal
of the suit, it can be subsequendy modified, discharged or set aside if there is a change
of circumstances which necessitate such variation or discharge or if it causes undue
hardship. Under the second proviso to rule 4 of O XXXIX of the Code the court is
empowered to discharge, vary or set aside the order of injunction on an application
made by any party, dissatisfied with the order of injunction, provided there is a change
in the circumstances or the court satisfies that the order caused undue hardship to
that party.^' If a party willfully disobeys the injunction or commits breach thereof, the
court has power to conunit him to civil prison or to attach and sell his properties. If
any movable property of perishable nature is a subject-matter of suit, there is also a
provision enabling the court to sell it.
While passing an interim order of injunction under O XXXIX, rule 1 of the Code,
the court is required to consider three basic principles, namely:
(i) the plaintiff has a prima facie case of infraction of legal rights;
(ii) the balance of convenience is in favour of the plaintiff; and
(iii) the plaintiff will suffer irreparable loss which cannot be compensated in
terms of money.^"
The grant of an injunction is a discretionary remedy and an equitable relief and
even if Ae above three conditions are satisfied, the court is not bound to grant interim
relief.^' However, the court is under an obligation to undo the wrong done to a party
by the act of the court. Any tmdeserved or-unfair advantage gained by a party invoking
the jurisdiction,of the court must be neutralised, as an institution of litigation cannot
be permitted'to confer any advantage on a suitor ftom delayed action by the act of the
court.'^ There are equitable considerations, e.g., the conduct of the applicant, the delay
in filing the application, which have to be carefiilly weighed before issuingi temporary
injunction. Since the power of the court is discretionary, it can be exercised and
injunctioii granted under the inherent powers, when judicial intervention is necessary
to protect the applicant, even though the relevant provisions of the Code are not
satisfied.'^ At the same time injunction may not be granted if it caused administrative
inconvenience or results in public mischief or perpetuates an illegality or where a party
does not come before the court with clean hands. Further if a party fails to prove prima
facie case to go for trial, it is not open to the court to grant injunction in his favour
even if, he has made out a case of balance of convenience being in his favour and

29. Hotel Leela Venture Ltd v- Yaseen Begum, 2009 (1) Andh LD 519 2009 (1) All LT 386 (DB).
30. Kishor Singh Ratan Singh Jadeja v Maruti Corporation, (2009) 11 SCC 229 (238) : AIR 2009 SC
2882 : 2009 (5) Scale 229.
31. Gujarat Bottling Co Ltd v Coca Cola Co, AIR 1995 SC 21,71 (1995) 5 SCC 545.
32. Amarjeet Singh v Devi Ratan, AIR 2010 SC 3676 (3681):(2010) 1 SCC 417.
33. Manohar Lai Chopra v Hira Lai, AIR 1962 SC 527.
182 Mulla The Key to Indian Practice

would suffer irreparable loss and injury if no injunction order is granted.^"^ Conduct of
the parties is also a relevant consideration for the grant of injunction.'^
Another specie of injunction is known as anti-suit injunction. When a court restrains
a party to a proceeding before it from instituting or prosecuting a case in another
court including a foreign court, it is called anti suit injunction. This power should
be exercised sparingly because such an injunction though directed against a person, in
effect causes interference in exercise of jurisdiction of another court.'^
Either party to the suit, plaintiflf or defendant, may apply for the grant of temporary
injunction. An injunction may be issued only against a party to the suit and not against
a third party, and further only against persons within the jurisdiction of the court. The
plaintiff must prove that a right to sue has accrued in his favour. No suit can be filed
by the plaintiff to protect a right of a third party.'^ Appeal against an interim order
is maintainable." 'KS^ere an injunction order is neither extended nor vacated after a
particular date, it shall not remain operative thereafter." At all events, the high court
will desist from issuing an ex parte mandatory injunction. Such interim orders are
issued in exceptional cases only where failure to do so will lead to an irreversible or
irretrievable situation.'"' The provision under rule 10, O XXXIX of the Code is to take
care of the cases of violation or breach of court order.^'

13.2.1 Res Judicata on Injunctions

The res judicata applies to different stages of the same suit or proceeding.
In Arjun Singh v Mohindra Kumar^^ if interim injunction is once granted or refused
by the court, the said power will operate till the disposal of the suit or throughout
the proceeding. An application for granting or vacating injunction will lie if there are
changed circumstances.

13.3 Receiver [Order XL]

A receiver is an impartial person appointed by the court to collect and receive the
rents, issues and profits of land or personal estate pending proceedings, where the court
does not deem it reasonable that either party shoidd collect or receive such rents, issues
or profits and to enable their distribution to the persons entided.'"

34. Kashi Math Samthan v Srimad Sudhindra Tritha Swamy, AIR 2010 SC 296 (299) : (2010) 1 SCC
689.
35. Mandali Ranganna v T Ramchandra, (2008) 11 SCC 1 (9-10) ; AIR 2008 SC 2291.
36. Modi Entertainment Network v WSG Cricket Pte Ltd, AIR 2003 SC 1177 ; (2003) 4 SCC 341.
37. Calcutta Swimming Club v Lalit Singh, 2009 (2) Cal HN 379 (384) (DB).
38. Magna Publishing Co Ltd v Shilpa S Shetty, AIR 2008 SC 681 : 2007 (14) Scale 320.
39. Arjan Singh v Punit Ahluwalia, (2008) 8 SCC 348 (355, 357) : AIR 2008 SC 2718.
40. State Bank ofPatiala v Vincsh Kr Bhasin, AIR 2010 SC 1542 ; (2010) 4 SCC 368.
41. Unistal System Pvt Ltd v Ptodata Doctor Pvt Ltd, 2009 (112) DRJ 345 : 2009 (41) PTC 626 ■ 2010
(1) AD (Del) 286.
42. Arjun Singh v Mohindra Kumar, AIR 1964 SC 993 ; 1964 SCR (5) 946.
43. Kerr on Receivers, 16th Edn, 1983, p 3; Maharaja Jagat Singh v Sawai Bhavani Singh, AIR 1993 SC
1721 ; 1993 Supp (2) SCC 313.
 Chapter 13—Supplemental and Special Proceedings 183

When a court receiver is appointed in respect of any property, he acts on behalf

of the court and holds the property for the benefit of the true o\vner.'®'^ He does not
become an assignee or a beneficial owner and the property does not vest in him in
his own right.
A receiver is an officer or representative of the court, and subject to its orders. He has
no power to deal with the property without the leave of the court. The court receiver
cannot encumber the property in any manner without the leave of the court. It is the
obligation of the court, as well as the receiver to preserve and maintain the property as
far as possible and practicable in the same form in which it was when it was taken in
possession, and to maintain status quol^^ A receiver cannot sue or be sued except with
the leave of the court. "No such sanction is, however, necessary to prosecute the receiver
for a criminal offence alleged to have been committed by him by abusing his authority
as receiver. He cannot delegate his duties. If any loss is occasioned to the property
by the willful default or negligence of a receiver, the loss, so far as it is not made good
by the receiver, is to be borne by all the parties. The court receiver in his endeavour
to protect the property cannot seek to make any profits as an agent of the court.''^
Appointment of a receiver pending suit is a matter which is within the discretionary
jurisdiction of the court. Ordinarily the court would not appoint a receiver save and
except on a prima facie finding that the plaintiff has an excellent chance of success in
the suit.''® It is a serious matter involving serious consequences and recourse to this
remedy niay be taken by a court only as a last resort.'"

13.3.1 Status of Receiver

Injagat Tarini Dasi v Naba Gopal Chaki,'''' the status ofreceiver has been appropriately
explained in the leading case in the following words:
The receiver is appointed for the benefit of all concerned; he is the representative of the
court, and of all the parties interested in the litigation, wherein he is appointed. He is the
right arm of the court in exercising the jurisdiction invoked in such cases for administering
the property; the court can only administer through a receiver.
When it appears to the court to be just and convenient, and also when there
is prima facie case in favour of the plaintiff and the case calls for taking of urgent
measure like appointment of receiver'' and the overall necessity to balance the interests
of both parties requires," the court may by order appoint a receiver of any property,
at any stage of a suit, whether before or after decree, and commit the same to his
possession and management. The object behind appointment of receiver is to preserve
the property in dispute pending judicial determination of the rights of the parties to
it. The appointment of receiver ensures that rights of parties are not jeopardised and

44. Usha Harshad Kumar Dalai v ORG Systems, (2000) 1 SCC 742 : AIR 2000 SC 2719.
45. Ibid
46. K Shyamalambal v MS Ramamurthi, AIR 1948 Mad 318 ; (1948) ILR Mad 639.
47. Pradeep C Mody v Sashikant C Mody, AIR 1998 Bom 351 : 1998 (3) Bom CR 823.
48. Parmanand Patel v Siidha A Chowgule, AIR 2009 SC 1593 : (2009) 11 SCC 127 (938).
49. V Sanjeevamma v YPuranamma, AIR 1984 AP 28 (DB) ; 1983 (2) Andh LT 335.
50. Jagat Tarini Dasi v Naba Gopal Chaki, ILR (1907) 34 Cal 305.
51. Vijay L Mehrotra v State of Uttar Pradesh, (2001) 9 SCC 687 AIR 2000 SC 3513.
52. Kalpana Kothari v Sudha Yadav, (2002) 1 SCC 203 : 2001 AIR SCW 5214.
184 Mulk The Key to Indian Practice

that injury to suit property is prevented." It is one of the hardest remedies which the
law provides for the enforcement of a party's right to property, and shall not be lightly
resorted to.

The appointment of a receiver, like injunction, is an equitable relief and is a

discretionary power of the court. Before appointment of a receiver, the court considers
and takes into account the totality of circumstances, the ends of justice and the
protection of the rights of the parties to the suit. The court may appoint a receiver
not as a matter of course but as a matter of procedure, having regard to the situation."
The court may confer upon the receiver all such powers (1) as to bring and defending
suits; (2) the realization, protection and management of the property; (3) the collection
and application of the rents thereof; and (4) the execution of documents as the owner
himself has, or such of those powers as the court thinks fit. Thus, in a suit for dissolution
of a partnership and for partnership accounts, the court may appoint a receiver of
the partnership assets. Similarly, in a suit for partition of joint property, the court
may appoint a receiver of the property. A receiver may also be appointed in a suit for
the administration of the estates of the deceased person, especidly where there is no
executor or administrator of the property. The remuneration to be paid to the receiver
is fixed by the court.
It is important to note that the mere fact that it is convenient to appoint a receiver or
that appointment of receiver will do no harm to any one^' is no ground for appointing
a receiver. It must be just to appoint a receiver. Thus, if the case is one in which the
plaintiff has not a present right to remove the defendant from the possession of property,
the court will not remove him from possession and commit the possession to a receiver.
As the property in the hands of the receiver is in custodia legis, any obstruction or
interference with him will amount to a contempt of court.'^
The receivers appointed by the court are expected to submit periodical accounts/
reports to the court with copies to the parties. If their assigned task is completed, they
should be discharged. They cannot continue as receivers for decades, without doing
anything and holding on to the amounts entrusted to them in trust. When any money
belonging to the parties is entrusted to the receiver, he should deal with it as per the
directions of the court."

The court can appoint receiver even on an application under section 151 of the
Code" and even on an application by a stranger." An order appointing a receiver
cannot be revoked or set aside merely because of the absence of the applicant on the
day of delivery of possession of the property. An order appointing a receiver would not
be proper where no prayer was made therefor, no application was filed and no reason
was assigned in support of such appointment. Even show cause notice was not issued

53. N Kodandarama Reddy v GIK Sangha, 2008 (1) Kar LJ 703 (711) : ILR 2008 KARNATAKA 192.
54. ICICI V Kamataka Ball Bearing Carp Ltd, (1999) 4 LRI 829 ; AIR 1999 SC 3438.
55. Salma Majhi v Bija Majhi, AIR 2004 Ori 46 : 2003 (II) Ori LR 596.
56. Kanhaiya Lai v DR Banaji (Dr), AIR 1958 SC 725 (1959) 1 SCR 333; Everest Coal Co Pvt Ltd v
State ofBihar, AIR 1977 SC 2304 : (1978) 1 SCC 12.
57. Amal Kumar Ghosh v Basant Kr Almal, (2010) 11 SCC 78 (83) : 2010 (4) Scale 651.
58. Shih Shankar Riidra v Jyotirmoy Rudra, AIR 2004 Cal 54 : 2004 (3) CHN 370.
59. Bhaskar Aditya v Minati Majumdar, AIR 2003 Cal 178 (DB) ; (2003) 2 Cal LT 463.
60. Balbir Singh v Sanjay Dave, JT 2000 (7) SC 394 : AIR 2002 SC 3563.'
 Chapter 13—Supplemental and Special Proceedings 185

to party. Also there was no prima facie finding arrived at warranting the appointment
of the receiver.'"'

One may apply for the appointment of a receiver and for an injunction at the
same time. In fact, it is advisable to do so, for a case may not be a fit one for the
appointment of a receiver, and yet it may be a fit one for an injunction against the
defendant. Though it is usual to do so, it is not necessary to have any prayer in the
plaint for an injunction or for a receiver. A party may apply for an injunction or for
a receiver at any stage of a suit, and he may support his application by an affidavit
or affidavits.

13.4 Security for Costs [Order XXV]

A defendant may at any stage of a suit apply to the court for an order requiring the
plaintiff to give security for the payment of costs incurred and likely to be incurred
by the defendant in defending the suit. In this case, the court can make the order
applied for. The object of this rule is to provide for the protection of defendants in
cases where, in the event of success, they may have difficulty in realising their costs
from the plaintiff. This provision cannot be used in cases in which the plaintiff is not
liable for rhe costs of the suit, e.g., an administration suit by a legatee.
A defendant desirous of applying for security for the costs must do so promptly.
13.4.1 Discretion of the Court

If it appears necessary, the court may order the plaintiff to ffirnish security. However,
there is one exception. If the plaintiff is residing abroad and he does not possess
sufficient immovable property within India, it is obligatory upon the court to pass an
order requiring the plaintiff to furnish security.'^
No such security can be demanded from a person granted leave to sue as a pauper
and, except in exceptional circumstances, from a minor plaintiff or his next friend
even if both, the minor and his next friend, have no immovable property and reside
out of India.

Where the security is not furnished within the time fixed, the court will dismiss the
suit. Such dismissal can be set aside if there was sufficient cause which prevented the
plaintiff from furnishing security.

13.5 Withdrawal of Suits [Order XXIII, Rules 1-2]

The Code under O XXIII provides for the withdrawal and adjustment of suits and
deals with two kinds of withdrawal and adjustment:
(i) absolute withdrawal, i.e., withdrawal and adjustment without the leave of
the court; and
(11) qualified withdrawal, i.e., withdrawal and adjustment with the leave of the
court.

61. Three Cheers Entertainments Pvt Ltd v CESC Ltd, AIR 2009 SC 735 (740) : (2006) 12 SCC 592.
62. Revlon Inc v Ketnco Chemicals, AIR 1987 Cal 285.
186 Mulla The Key to Indian Practice

A plaintiff may find after the institution of a suit that he has no chance of success.
In such a case he may under O XXIII, rule 1(1), proviso, withdraw the suit, instead
of proceeding with it and incurring further costs. This is an absolute and unqualified
right of the plaintiff and the court has no power to refuse permission to withdraw
the suit or to direct to him to proceed with it.^^ Where the withdrawal of the suit
is unconditional such prayer cannot be rejected,'^ unless there exist extraordinary
circumstances warranting refusal.''^ The withdrawal of suit by unilateral request of
plaintiff merely on the ground that the counsel for the defendant did not raise any
objection for the acceptance of request of the plaintiff for withdrawal, it cannot be
said that withdrawal was, in any way, conditional.''® However, suit where the plaintiff
is a minor or a person of unsound mind, the suit cannot be withdrawn without the
leave of the court.

Where the plaintiff withdraws the suit without seeking permission to file a fresh
one, costs can be imposed on the plaintiff. And after such withdrawal (without seeking
permission to file a fresh suit) the second suit shall be barred.®^ This bar regarding the
second suit is based on public policy and is applicable to writ petitions as well.®^ "The
principle underlying Rule 1 of Order XXIII of the Code is that when a plaintiff once
institutes a suit in a Court and thereby avails of a remedy given to him under law,
he cannot be permitted to institute a fresh suit in respect of the same subject-matter
again after abandoning the earlier suit or by withdrawing it without the permission
of the Court to file fresh suit. Invito beneficium non datur. The law confers upon a
man no rights or benefits which he does not desire."®' However, withdrawal of writ
petition without seeking permission to file a fresh petition on the ground of pursuing
alternative efficacious remedy is permissible.^®
An appellate court cannot set aside the judgment and decree of the trial court and
permit withdrawal of the suit. Permitting withdrawal of the suit at the appellate stage
would not allow the plaintiff to avoid the decree passed against him, but also make
the defendant lose the advantage of the adjudication of the dispute in his favour.^' The
rights which have come to be vested in the parties to the suit under the decree cannot
be taken away by withdrawal of the suit at the appeal stage.^^ There is no express bar
in filing an application for withdrawal of the withdrawal application.^'
Application for withdrawal of appeal against dissolution of marriage will take effect
from the date of filing the application itself and not from the date of the order so
that a marriage contracted by the man with another woman pending appeal and after

63. KS Bhoopathy v Kokila, (2000) 5 SCC 458 : AIR 2000 SC 2132.

64. Mahadkar Agency v Padmakar Archana Shetty, AIR 2003 Bom 136 : 2002 (50) BLJR 2537.
65. Sandesh Ltd v Chandulal Jethalal JaiswaL AIR 2005 Guj 219.
66. Piishpa Devi v Rajeev Kharbanda, AIR 2011 P&H 83 (86) : 2011 (5) RCR (Civil) 468.
67. Surgnja Transport Service v STA Tribunal^ Gwalior, AIR 1987 SC 88 : (1987) 1 SCC 5.
68. Upadhyay & Co v State ofUttar Pradesh^ AIR 1999 SC 509 ; (199) 1 SCC 81.
69. Sarguja Transport Service v STAT, (1987) 1 SCC 5 : AIR 1987 SC 88.
70. Haryana State Co-op Land Development Bank v Neelam^ AIR 2005 SC 1843 : (2005) 5 SCC 91.
71. MangatRam v Chura Dutt, AIR 2003 HP 143 : 2003 (2) Shim LC 122.
72. R Ritthinavel Chettian v Sivaraman, (1999) 4 SCC 89 ; (1999) 2 SCR 313.
73. Rajendra Prasad Cupta v Prakash Chandra Mishra, 2011 (1) Scale 469 : AIR 2011 SC 1137 : (2011)
2 SCC 705.
 Chapter 13—Supplemental and Special Proceedings 187

the application for withdrawal of appeal against dissolution of marriage by the ex-wife
would be treated as valid/^

There is no provision in the Code for recall of an order permitting withdrawal. In the
absence of a specific provision providing for recalling of an order permitting withdrawal
of suit, the provisions of section 151 can be resorted to in the interest of justice."
A plaintiff again, may find that he had a good chance of succeeding on the merits
of the case, but that his suit must fail by reason of some formal defect. In such a case
he may apply to the court for leave to withdraw from the suit with liberty to institute
a fresh suit in respect of the subject-matter, thereof, and such leave may be granted
upon such terms as to costs as the court thinks fit." If the court is satisfied that there
are sufficient grounds for allowing the plaintiff to institute a fresh suit for the same
subject-matter, it may grant leave to withdraw from such suit with liberty reserved in
favour of the plaintiff accordingly. The primary object behind allowing the withdrawal
of suit with liberty to file a fresh one on the same cause of action, is to prevent the
defeat of justice on technical grounds.^^ An application to withdraw a suit with liberty
to file a fresh suit may either be allowed or refused in toto. Where the court does
not grant the leave, it can dismiss only the application for liberty, but not the suit.^®
In cases of qualified withdrawal of suit by the plaintiff, principle of estoppel does not
operate, nor does the bar of res judicata apply. However, the plaintiff is bound by
the law of limitation in the same manner as if the first suit had not been instituted.
The plaintiff cannot claim deduction of the time during which the suit which was
withdrawn was pending, under section 14 of Limitation Act, 1963. The term "formal
defect" must connote such defect which does not pertain to the merits of the case'''
and refers to a defect of form or procedure and not of substance.^' "Sufficient grounds"
must be interpreted independently of the term "formal defect" and cannot be read
ejusdem generis with "formal defect". It gives a wide discretion to the court.®' In a suit
for possession, non-joinder of co-owners as parties in suit is not a formal defect. In
such case the court should not grant permission to withdraw the suit with a liberty to
file a fresh suit on same cause of action.®^ Where a suit is abandoned or withdrawn
by a plaintiff and the defendant applies for transposition as a plaintiff, the court shall
consider such application having due regard to the question whether the applicant has
a substantial-issue to be decided as against any of the other defendants according to
O XXlll, rule lA of the Code.

13.5.1 Application of Order 23 Rules 1 and 2 to other Proceedings

"The provision applies to appeals and writ petitions only and not to execution
proceedings."

74. Anurag Mittal v Shaily Mishra Mittal, (2018) 9 SCC 691 : AIR 2018 SC 3983.
75. Jet Plywood Pvt Ltd v Madhiikar Naulakha, AIR 2006 SC 1260 : (2006) 3 SCC 699.
76. As to compromise, see below.
77. Sheo Kumar v Thakurji Maharaj, AIR 1959 All 463.
78. Mario Shaw v Martin Fernandes, AIR 1996 Bom 116 : 1996 (2) BCR 536.,
79. Khatuna v Ramsewak Kashinath, AIR 1986 Ori I : 59 (1985) CLT 101.
80. Khatuna v Ramsevak, AIR 1986 Ori 1 : 59 (1985) CLT 101.
81. Homeo Dr TK Prabhawati v CP Kunhathabi Unema, AIR 1981 Ker 170 ; ILR 1981 (2) Ker 249.
82. Pranjivandas Virjibahi v PM Modi, AIR 2011 Guj 89 (92).
188 Mulla The Key to Indian Practice

13.6 Payment into Coiirt [Order XXTV]

As it is competent for a plaintiff to withdraw his suit, so it is competent for a
defendant in a suit for debt or damages to deposit in court such sum of money as he
considers a satisfaction in full settlement of the claim. Such deposit may be made at
any stage of the suit. It is usually made at the time of presenting the written statement;
where it is so done, it is desirable to add a paragraph in the written statement in the
following form: "The defendant as to the whole claim (or as to Rs part of the
money claimed) has paid into court Rs and says this sum is enough to satisfy
the plaintiff's claim." Such deposit stops running of interest. Mere willingness to pay
is not sufficient and does not stop the running of interest. The deposit should be
unconditional, as conditional deposit does not stop the running of interest. Notice of
the deposit is then given to the plaintiff, and the plaintiff may then with the leave of
the court withdraw the amount. The procedure that follows may be explained by an
illustration. A sues B to recover Rs 5,000. B deposits Rs 4,000 in court in full satisfaction
of the plaintiff's claim. If A accepts the amount as satisfaction in full of his claim,
the only question that remains is one as to costs. Thus, if no demand was made by A
before suit, the court may not allow him any costs. In making its orders as to costs,
the court should consider which of the parties is most to blame for the litigation. If A
accepts the amount as satisfaction in part only of his claims, he may prosecute his suit
for the balance; and if the court decides that A is not entitled to more than Rs 4,000,
he will have to pay the costs incurred after the deposit. However, in neither case will
interest be allowed to vl on Rs 4,000 after the notice of the deposit is served upon A.
If in the case put above B admits by his written statement that Rs 4,000 are due,
but does not deposit the amount in court, A may at once apply for a judgment for
Rs 4,000. This is called judgment on admission. However, A cannot in that case
prosecute his suit for the balance as has been stated by O XII, rule 6.®^

13.7 Compromise of Suits [Order XXIII, Rule 3]

The Code also deals with the compromise of suits and the effect ofsuch corripromise.
It is open to the parties to a suit to compromise the suit and adjust or settle the
dispute between themselves by agreement and compromise, and apply for a decree in
terms of the compromise. Where the compromise was not the outcome of fraud and was
not away from authority of power of attorney-holder, the consent order passed by the
high court cannot he said to be anything but proper and valid.®'' If the court is satisfied
that the suit has been compromised, and that the compromise is lawful, i.e., not illegal;
it is the duty of the court to pass a decree in accordance with the compromise. The
consent decree would be valid where compromise terms are entered into by power of
attorney holder on behalf of parties.®' Where the purported settlement is not la-wful, the
court's order recording the same would not be enforceable.®^ Further, if the agreement

83. United Telephone Co v Donahue, (1886) 31 Ch D 399 : 55 L J Ch 480.

84. Shanti Budhiya Vesta Patel v Nirmala Jaiprakash Tiwari, AIR 2010 SC 2132 : (2010) 5 SCC 104;
Chitra Constructions Pvt Ltd v S Subramanyam & Co, AIR 2008 (NOC) 2501 (Mad); Santosh v Jagat
Ram, (2010) 3 SCC 251 : (2010) 2 SCR 429.
85. SBVPatel v NJ Tiwari, (2010) 5 SCC 104 : (2010) 6 Mad LJ 616 (SC).
86. Dwarka Prasad Aggarwal v BD Aggarwal, (2003) 6 SCC 230 : AIR 2003 SC 2686, Atjan Singh v
Punit Ahluwalia, AIR 2008 SC 2718 (2720):(2008) 8 SCC 348; Sneha Gupta v Devi Sarup, (2009)
6 SCC 194 : 2009 (2) Scale 765.
 Chapter 13—Supplemental and Special Proceedings 189

or compromise is in violation of a special statute, the court would refuse to record the
same.®^ Where joint compromise petition was filed by the parties before the Supreme
Court and terms and conditions of the compromise was duly signed by the parties,
appeals were disposed of in terms of the compromise.^® "A compromise decree does not
stand on a higher footing than the agreement, which preceded it. A consent decree is
a mere creature of the agreement on which it is founded and is liable to be set aside
on any of the grounds, which will invalidate the agreement."®'
The agreement, compromise or satisfaction may relate to the whole of the suit or
part of the suit or it may also include beyond the subject-matter of the suit.
Such a decree is called a consent-decree. Directions passed by court on the basis of
statements made at the bar, amount to an executable decree by consent." If any party
to the suit is a minor, the suit cannot be compromised without the leave of the court
expressly recorded in the proceedings. Such leave may be refused if the court is of
opinion that the compromise is not for the benefit of the minor as given in O XXXII,
rule 7. Leave of the court is also required for compromise in a representative suit.
When an order is passed on compromise and the terms of compromise are
incorporated in the order, it becomes part of the order of the court and the terms
should be strictly enforced." A decree remains valid unless set aside. Where a consent
decree was never challenged and it was acted upon, the respondents had disposed
of a property pursuant thereto and thus took advantage of a part thereof, it was
impermissible for them to resile therefrom.'^ The compromise must be in writing
and signed by parties. A compromise not signed by parties or counsel offends rule 3,
and as such is not enforceable.'^ It need not be confined to the subject-matter of the
suit, although it must relate to the parties to the suit. Therefore, the court shall pass
a decree in accordance with the compromise even if it travels beyond the scope of
the suit. The lawyer or counsel is competent to sign consent terms on behalf of the
parties. A compromise decree passed on the statement made by the counsel for the
party if authorised to rriake such a statement would be valid.''' A judgment by consent
is intended to stop litigation between the parties. It creates an estoppel by judgment."
No appeal lies from a consent decree passed on the basis of a compromise. "Order
XLIII, rule I-A (2), however, lays down that in an appeal against a decree passed after
recording or refusing to record a compromise, the order recording or refusing to record
a compromise can also be questioned. A party challenging the compromise can file an
appeal under section 96(1) of the code and section 96(3) shall not bar such an appeal."'"

87. Roshan Lai v Madan Ul, AIR 1975 SC 2130 : (1975) 2 SCC 785.
88. Kishore K Sippy v Vaishnav S Puri, (2008) 12 SCC 770 : 2008 (4) AWC 3703.
89. Ruby Sales & Services Pvt Ltd v State ofMaharashtra, (1994) 1 SCC 531.
90. Anil K Stirana v State Bank of Hyderabad, (2007) 10 SCC 257.
91. Salkia Businessmen's Association v Howrah Municipal Corporation, AIR 2001 SC 2790 : (2001) 6
SCC 688.
92. Deepa Bhargava v Mahesh Bhargava, (2009) 2 SCC 294 ; 2009 (1) SC 472.
93. SP Minocha v Lila Ram, AIR 2002 Del 223 ; 2002 (2) RCR (Rent) 328.
94. Rajinder Singh v Pushpa Devi Bhagat, AIR 2004 Del 228 : 2005 (1) RCR (Rent) 314.
95. Byram Pestonji Gariwala v Union Bank ofLndia (1992) 1 SCC 31 : AIR 1991 SC 2234; Prithvi Chand
V Shinde (1993) 3 SCC 271.
96. Banwari Lai v Chando Devi, (1993) 1 SCC 581 : AIR 1993 SC 1139.
190 Mulla The Key to Indian Practice

However, a compromise decree strictly speaking cannot operate as res judkataP^ "A
compromise decree is not a decision of the court. It is acceptance by the court of
something to which the parties had agreed. A compromise decree merely sets the seal of
the court on the agreement of the parties. The court does not decide anything. Nor can
it be said that a decision of court is implicit in it. Hence, a compromise decree cannot
operate as res judicata. In a consent decree, it cannot be said that a suit is heard and
finally decided by the court on merits. Such a decree, however, may create an estoppel
between the parties."'® A compromise decree may be avoided on the grounds like fraud,
undue influence, or coercion, but until it is avoided and displaced, it would be treated
as lawful. An application for review or an application under section 151 would be the
proper remedy for getting the consent decree set aside. However, a civil suit would
be barred." "Under O XXIII, rules, 3 and 3A, a separate suit was not maintainable
and that the only remedy available to the aggrieved party was to approach the Court
which had passed the compromise decree."'"" The exception will be when the challenge
is founded on the ground of fraud committed by the parties in obtaining any judicial
orders, when a suit may lie.'"'
For a period of 15 years after the compromise decree and the execution of the sale
deed plaintiff had not raised any question with regard to the authenticity or genuineness
of what is stated in the will and the compromise decree. In these circumstances, the
compromise decree must pass the test of acceptability.'"^

(B) Special Proceedings

13.8 Special Case [Section 90; Order XXXVI]

There are certain suits which are called "friendly suits". What is done in such cases
is that the parties do not institute a suit by presenting a plaint, but they enter into an
agreement in writing, stating the question of fact or law in the decision whereof they
are interested in the form of a case for the opinion of the court and providing that
upon the finding of the court with respect to such opinion, one of them shall pay a
certain sum of money or deliver certain property to the other or that one or more of
the parties shall do, or refrain from doing, some other particular act specified in the
agreement. The agreement is then filed in court and numbered and registered as a suit
between one party as plaintiff and the other as defendant. Where more than one person
enters into an agreement for seeking opinion of the court, the case of each individual
shall be registered as a separate case.'"^ The case is then set down for hearing as a suit;
it is then heard and a judgment is pronounced in the same way as in an ordinary suit,
and upon the judgment so pronounced a decree follows.
Where the agreement for reference is not drawn in accordance with the provisions
of O XXXVI, the court cannot assume jurisdiction to decide such reference. If the

97. Subba Rao v Jaganadha Rao, AIR 1967 SC 591 : (1964) 2 SCR 310; Byratn Pestonji Gariwala v Union
Bank ofIndia, AIR 1991 SC 2234 : (1992) 1 SCC 31.
98. Byram Pestonji v Union Bank ofIndia, (1992) 1 SCC 31 : AIR 1991 SC 2234.
99. Sri Sri Iswar Gopal Jen v Bhagwandas Shan, AIR 1982 Cal 12.
100. R Rajanna v SR Venkataswamy, AIR 2015 (SC) 706 : (2014) 15 SCC 471.
101. Ved Pal v Prem Devi (2018) 9 SCC 496.
102. Dolfy A Pias @ Adolphys Joseph Pais, (2014) 10 SCC 731.
103. Ramdhan Sinha v Notified Area Authority, AIR 2001 Gau 149.
 chapter 13—Supplemental and Special Proceedings 191

estimated value of the subject-matter is not mentioned, the case cannot be registered
as a suit and a judgment rendered in a case without fulfilment of the requirements of
rule 2 is without jurisdiction.'"''

13.9 Death, Marriage and Insolvency of Parties [Order XXII]

Let us assume for the purpose of this part of the chapter, three suits with the
following parties in each:
(i) KvO,
(ii) A and B f C;
(iii) A V C and D.
The first question we have to consider is what happens to the suit on the death of
any of the parties to the said suit before decree.
Suppose that in the first case, A dies pending the suit. Can his legal representative
prosecute the suit? The answer depends upon whether the right to sue survives. "Right
to sue" means the right to bring a suit or the right to seek relief.'"^ And if the right to
sue survives, A's legal representative, i.e., roughly speaking, his executor or administrator
as stated in section 2, clause 11 may prosecute the suit. If it does not, the suit abates,
and it cannot be proceeded with further. "If the entire suit claim was founded on torts
the suit would undoubtedly abate. If the action was founded partly on torts and partly
on contract then part of the claim as relates to torts would stand abated and the other
part would survive. If the suit claim was founded entirely on contract then the suit was
required to proceed to trial in its entirety and be adjudicated upon."'"^ In what cases,
then, does the right to sue survive? In all cases except where the suit is for damages for
defamation or assault, and cases where, after the death of the parties, the relief sought
could not be enjoyed or granting it would be nugatory.'"'' "Where a suit for defamation
is dismissed and the plaintifif has filed an appeal, what the appellant-plaintiff is seeking
to enforce in the appeal is his right to sue for damages for defamation and as this right
does not survive his death, his legal representative has no right to be brought on the
record of the appeal in his place and stead if the appellant dies during the pendency of
the appeal. The position, however, is different where a suit for defamation has resulted
in a decree in favour of the plaintiff because in such a case the cause of action has
merged in the decree."'"" Thus, if A's suit is for damages for defamation, and A dies
pending the suit, the suit abates, and A's legal representative is not entitled to prosecute
the suit. Similarly, if A sues B for divorce, and B dies pending the suit, the suit abates,
and A is not entitled to prosecute the suit against B's legal representative. However, if A
sues B for damages for breach of a contract, and if A or 5 dies pending the suit, the
suit does not abate, for the right to sue survives.'"" The rule then is that the death of a
plaintiff or a defendant shall not cause the suit to abate, if the right to sue survives in
accordance with O XXII, rule 1. The provisions contained in O XXII were devised to

104. Ihid
105. N Jayaram Reddi v Revenue Divisional Officer and Land Acquisition Officer, Kumool, AIR 1979 SC
1393 : (1979) 3 SCC 578.
106. M Veerappa v Evelyn Sequeira, (1988) 1 SCC 556 : AIR 1988 SC 506.
107. Indian Succession Act, 1925, section 301.
108. Melepurath Sakunni v Thekittil Geopalankutty, (1986) 1 SCC 118 : AIR 1986 SC 411.
109. Indian Contract Act, 1872, section 37.
192 Mulla The Key to Indian Practice

ensure continuation and culmination of suits into an effective adjudication, and not to
retard the further progress of the proceedings and thereby non-suit the others similarly
placed as long as their distinct and independent rights to property or any claim remain
intact and not lost forever due to death of one or the other, in the proceedings.""
However, in either case the application to bring the legal representative of the
deceased on the record must be made within 90 days from the date of the death of
the deceased, otherwise the suit will abate."' If no application is made, the suit abates
automatically without any order of the court."^ Abatement is not dependent upon any
judicial adjudication or declaration of such abatement by a judicial order. It occurs by
operation of law. But nevertheless "abatement" requires judicial cognizance to put an
end to a case as having been abated."^ An application to set aside abatement must be
made within 60 days.""* It is the duty of the legal representative who had knowledge
about the pending proceedings to engage a counsel and if any of them fails, the said
legal representative is responsible for his lapse.'" Different considerations arise in the
matter of condoning the delay in filing an application for setting aside an abatement
upon condonation of delay in a suit and an appeal. It is neither in doubt nor in dispute
that such applications should be considered liberally. The court should take more liberal
attitude in the matter of condonation of delay in filing such an application."" Where
death of appellant took place during pendency of appeal and the widow of deceased was
filing application for substitution after 7 years, even when the widow had knowledge
of pendency of appeal, her plea was that she was told by her husband that counsel
would inform about the hearing of the application. It was held that it could not be a
ground to entertain the application for condonation of delay of more than seven years
for preferring the petition for substitution.""^ The legal representatives having failed to
move application for their substitution, could not be permitted to file an application
under O I, rule 10 for impleadment as one being perceived as contrived to circumvent
the provisions of O XXII.
A suit cannot be revived by substituting legal representatives of the original defendant
who was not alive at the time of institution of the suit."" However, if a suit is filed
against a dead person, without the knowledge of death, the court may, on an application
by the plaintiff, permit legal representatives of the defendant to be brought on record.'^"
On the death of a party, if the dispute is to the status of the person sought to be
impleaded as a legal representative, the court shall determine the question forthwith
and not defer it for consideration along with other issues on merits. This adjudication

110. Amaijit Singh Kalra v Pmmod Guptas AIR 2003 SC 2588 : (2003) 3 SCC 272.
111. Limitation Act, 1963, Article 120.
112. Dhumnder Pmtap Singh v JP University, AIR 2001 SC 2552 : (2001) 6 SCC 534.
113. Perumon B Devasvmm v Bhargavi Ammn, (2008) 8 SCC 321 (326) : 2008 (11) Scale 96.
114. Limitation Act, 1963, Article 121.
115. Azeez Suit v Aman Bai, AIR 2003 SC 4444 : (2003) 12 SCC 419.
116. Katari Suryanarayana v Kappisethi Suhba Rao, (2009) 11 SCC 183 (187) ; AIR 2009 SC 2907.
117. Karam Kaiir v Jalandhar Improvement Tmst, 2015 (1) RCR (Civil) 83 : (2014) 6 SCC 409.
118. Minati Diitta v Siishil Chandharry, AIR 2006 Pat 62 : 2005 (3) BLJR 1763.
119. Ram Ptasad Dagduram v Vijay Kumar Moti Lai Hirakhanwala, AIR 1967 SC 278 : 1967 (69) Bom
LR 20.
120. Karuppa Sivamy v C Ramamurthy, AIR 1993 SC 2324 : (1993) 4 SCC 41.
 Chapter 13—Supplemental and Special Proceedings 193

shall be limited only for the purpose of continuing the proceedings and any decision
theron on the status between persons who contest shall not constitute res judicata.'^'
"When the legal representatives of a deceased plaintiff are already on record in their
individual capacity. Their fresh impleadment not necessary. A mere note under Order
XXII Rule 2 CPC is sufficient."'^^

Let us now consider the second case in which we have two plaintiffs. Suppose that
in the second case A dies pending the suit. What is the procedure to be adopted? This
depends upon whether the right to sue survives to the other plaintiff B alone. If it
does, As name will be struck out, and the suit will proceed with B alone as plaintiff
according to O XXII, rule 2. If it does not, the legal representative of A must apply to
the court to be made a party within the presctibed period from the date of A's death,
otherwise the suit will abate so far as A is concerned. Thus, if the suit is brought by
A and B as trustees, and A dies pending the suit, the right to sue survives to B alone.
On A's death, his name will be struck out, and the suit will proceed with B alone as
plaintiff. However, if the suit is brought hy A and B on a. promissory note passed jointly
to them by C, the right to sue does not survive to B alone. A's legal representative
therefore may apply to be made a party to the suit within the prescribed period from
the date of A's death. If he does not, the suit will abate as far as A is concerned.'-'
The third case stands on much the same footing as case II. In case III we have two
defendants. If C dies pending the suit, and the right to sue survives against D alone
as whete they are trustees, Cs name will be struck out, and A may proceed with the
suit against D alone. However, if the right to sue does not survive against D alone, as
where C is the principal debtor and D his surety, A should apply to bring the legal
representative of C on the record within the prescribed period from the date of C's death,
otherwise the suit will abate so far as C is concerned. No suit shall abate by reason of
the death of either party between the conclusion of the hearing and the pronouncing
of judgment, but judgment may in that case be pronounced, notwithstanding the
death and will have the same force and effect as it had been pronounced before the
death took place. Order XXII, rule 10-A casts a duty on the respondent's counsel
to inform the court about the deceased respondent and when death of the respondent
is reported and recorded in the order/proceedings and the appellant has been notified,
he cannot plead ignorance.'^' In Gangadhar v Raj Kumarj^^ it was observed that
"rule 10-A, O XXII has been introduced in order to ai'oid procedural justice scoring
a march over substantial justice."
Where the plaintiff dies, his legal representatives can make an application to be joined
in his place. The court cannot add a legal representative suo motu. The application can
be made by the defendant also. Ordinarily, it is made by legal representatives of the
plaintiff. Where the defendant dies, the plaintiff has to bring his legal representatives

121. Satyanand v Shyam Lai Chauhan, 2018 (5) Scale 314 ; 2018 (7) SCJ 713; Karedla Pa'-'hasaradhi v
Gangula Ramanamma, AIR 2015 (SC) 891.
122. DR Somayajulu, Secretary DLS v Attili Appala Swamy, 2015 (2) SCC 390 : AIR 2015 SC 569.
123. Indian Contract Act, 1872, section 45.
124. Code of Civil Procedure 1908, O XXII, rule 6; NP Thirugnanam (deed) by ZRs. v R Jagan Mohan
Rao, AIR 1996 SC 116 : (1995) 5 SCC 115.
125. Perumen B Devaswam v Bhargavi Amma,(2008) 8 SCC 321 (331) : 2008 (11) Scale 96.
126. Gangadhar v Raj Kumar, (1984) 1 SCC 121
194 Mulla The Key to Indian Practice

on record. The plaintiff has to ascertain who is the legal representative, and apply for
substitution.

Notice is required to be given to the legal representatives of the defendant sought

to be substituted.

This embodies basic principle of natural justice. The object is to ensure that
opportunity of hearing is given before any liability is fastened upon the legal
representative of the deceased. It is also necessary that where the right to sue survives,
the estate must be represented by someone who can answer the claims of the plaintiff.
Suppose that A sues B for damages for breach of a contract, and that A becomes
insolvent pending the suit. In such a case, if the official assignee wants to proceed
with the suit, he should give security for B's costs. If he fails to do within the time
fixed, the suit will be dismissed. But the court may on good cause shown set aside the
dismissal. If B becomes insolvent, the court may stay a suit.'^® The assignee of rights
during the pendency of suit has right to be impleaded as party by stepping into the
shoes of his assignor.'^'
The above rules apply also to appeals, but they do not apply to execution proceedings.
There can be no abatement of appeal on the death of one of the respondents during the
pendency of appeal, where some of the heirs and legal representatives of the respondents
were already on record.'^" They also do not apply to representative suits,''' and to
arbitration proceedings."^
The marriage of a female plaintiff or defendant does not cause the suit to abate.
Where a suit abates or is dismissed under this order, no fresh suit can be brought
on the same cause of action. But the court may, for sufficient cause, set aside the
abatement or dismissal. The expression "sufficient cause" implies the presence of legal
and adequate reason. The word "sufficient" means adequate enough as much as may
be necessary to answer the purpose intended. The sufficient cause should be such as
it would persuade the court, in exercise of its judicial discretion, to treat the delay as
an excusable one."'

127. N Jayaram Reddi v Revenue Divisional Officer and Land Acquisition Officer, Kiinoor, AIR 1979 SC
1393 : (1979) 3 SCC 578.
128. See the Presidency Towns Insolvency Act, 1909, and the Insolvency Act, 1920.
129. Gtirdev Singh v Amarjit Singh, AIR 2011 P&H 77 (80) ; 2011 (5) RCR (Civil) 643.
130. Mohd Hussain v Gopibai, (2008) 3 SCC 233; see also Mohd Hussain v Occharlal, AIR 2008 SC 1462.
131. Gram Panchayat v Amar Singh, (2000) 10 SCC 644.
132. Rani Ramakant v First Additional Civil Judge, AIR 2006 All 5.
133. Balwant Singh v Jagdish Singh, (2010) 8 SCC 685 (698) : AIR 2010 SC 3043.
 CHAPTER 14

SUITS IN PARTICULAR CASES

SYNOPSIS
14.1 Scope 195 14.17 Suit Involving Question of
14.2 Notice Before Suit 195 Interpretation of Constitution
14.3 Consent before Suit 197 or Validity of Statutory
14.3.1 "Doctrine of Cypres" 198 Instrument 206

14.4 Title of the Suit 198 14.18 Summary Suits 207

14.5 Parties 198 14.19 Bar of Certain Suits 209
14.6 Contents of Plaint 199 14,.19.1 A Suit may he Barred as
14.7 Signing and Verification of Pleading Res Judicata [Section 11] ... 209
199 14.19.1.1 Conditions 211
14.8 Service of Summons, Appearance, 14.19.2 "Res Judicata Between
etc 199 Co-Defendants" 211

14.9 Procedure 200 14 19.3 "Pro Forma Defendants".... 212

14.10 Decrees 200 14.20 "Matter Collaterally in Issue".... 213
14.11 Execution of Decrees 200 14,20.1 Representative Suits 214
14.12 Other Special Provisions 200 14,20.2 Courts of Limited

14.13 Interpleader Suits [Section 88, Jurisdiction 214

Order XXXV] 200 14,.20.3Applicability of Res Judicata
14.14 Suits hy or Against Minor and to other Proceedings 214
Lunatic [Order XXXII] 201 14,20.4 Stay of Suit 215
14.14.1 Order XXXII—A "Suits 14,20.5 Restitution 217
Concerning Family Matters" 202 14.21 Miscellaneous 219
14.15 Suits hy Indigent Persons [Order 14,21.1 Foreign Judgments 219
XXXIII] 202 14,21.2 Caveat 220

14.15.1 Appeal as Indigent Person... 205 14,21.3 Powers of Court 221

14.16 Suits hy or Against Firms [Order 14.21.3.1 Enlargement ofTime
XXX] 205 (Section 148) 221
14.16.1 When Partners May Sue or 14.21.3.2 Inherent Powers 222
he Sued in Firm Name 205 14.21.3.3 Power to Correct
14.16.2 Suit hy a Firm 205 Error 223
14.16.3 Suit Against a Firm 205 14.21.3.4 Tian.sfer of Suit 224

14.1 Scope
For the purpose of procedure, suits may be divided into two clauses, namely,(1) suits
in general; and (2) suits in particular cases. The procedure indicated in the previous
chapters applies to suits in general. In particular cases, however, a different procedure
is prescribed under the Code, and this is what we have to note in this chapter.

14.2 Notice Before Suit

In ordinary cases no notice is required to be given to the defendant before suit.

According to section 80, such a notice, however, is a condition precedent to suits against
195
 196 Mulla The Key to Indian Practice

the government. It is also a condition precedent to suits against a public officer in

respect of an act purporting to be done by him in his official capacity. The object of
the notice under this section is to give the government or the public officer concerned,
an opportunity to reconsider the legal position and to make amends or settle the claim,
if so advised, without litigation.' The section is a measure of public policy. The public
purpose underlying this section is the advancement of justice and securing of public
good by avoidance of unnecessary litigation. The language of the section is express,
explicit and mandatory, and does not admit any implication or exception.^ Even apart
from statutory prohibition under any Revenue Act constituting a special forum for
adjudication excluding the jurisdiction of civil courts, the objection also on the ground
of notice under section 80 CPC will obtain relevance if the order challenged is passed
by the authority constituted under the Act and a suit if filed without notice before the
civil court.^ The notice should be in writing, and it should state the cause of action,
name, description, place of residence of the plaintiff and relief claimed by him. No suit
should be instituted until the expiration of two months next after the notice has been
served. Such notice has to be served upon a secretary in a case of Central Government,
a general manager in case of railway and a secretary or collector of the district in case of
state government. The notice served on the district collector is sufficient and complete
notice to Government Middle School which was represented through the Education
Officer.^ However, the suit can be instituted against the Government without complying
with the requirement of serving notice under section 80(1), only with the leave of
the court as enjoined under section 80(2).' The permission to institute a suit without
notice is to be granted by a speaking and reasoned order.^ The court has the power to
dispense with the requirement of service of such notice if it is satisfied that the suit is
filed to obtain urgent or immediate relief. For this purpose, a separate application is
ordinarily made for leave of the court to sue without service of statutory notice. Such
leave may be granted if it appears to the court that if requirement of service of statutory
notice is insisted upon, it shall defeat the purpose or object of filing the suit. However,
even in such cases, the court has no power to grant any interim relief ex pane without
notice to the government. "A party filing application in court under section 80(2) of
Civil Procedure Code seeking leave of court to file suit against Government without
issuance of notice under section 80(1) of CPC to Government authorities. For the
purpose of determining whether such an application should be granted or not the court
is supposed to give hearing to both the sides and consider the nature of the suit and
urgency of the matter before talcing a final decision. Till arguments are advanced and
till the trial court is satisfied with regard to the urgency or requirement of immediate
relief in the suit, the court normally would not grant an application under section
80(2) of the Civil Procedure Code."''
The notice is a legal requirement and not a mere formality. It is different from a cause
of action for instituting a suit. Unless leave is granted at the time of institution of the

1. State ofPunjab v Geeta Iron and Brass Works, AIR 1978 SC 1608 : (1978) 1 SCC 68.
2. Bihart Chaudhary v State ofBihar, AIR 1984 SC 1043 : (1984) 2 SCC 627.
3. Gopal Singh v Swaran Singh, (2019) 2 SCC 177 (a case considered under Punjab Public Premises and
Land (Eviction and Rent Recovery) Act. 1973.
4. Ram Kumar v State ofRajasthan, (2008) 10 SCC 73 (78) : AIR 2009 SC 4 (8. 9).
5. Bajaj Hindustan Sugar & Industries Ltd v Balrampur Chini Milts Ltd, (2007) 9 SCC 43 (51).
6. Gyanajeet Moharana v Binodini Pattanaik, (2009) 107 Ctit LT 132 (134-135) (DB).
7. Govt ofKerala v Sudhir Kumar Sharma, 2013 (10) SCC 178.
 Chapter 14—Suits in Particular Cases 197

suit, no suit shall be maintainable without such notice. The object is to alert the state
to negotiate a just settlement, and avoid litigation as far as possible.® The notice has
to be read in a broad manner in order to determine whether there is any meaningful
compliance with section 80. Neither notice nor wordings.of section 80 should be
construed in a narrow or pedantic manner completely divorced from common sense.'
If the notice substantially intimates the parties concerned generally of the nature of the
suit intended to be filed, it would be sufficient. The notice must enable^ts recipient
to identify the claimant. There should be identity between the person issuing notice and
the petson instituting the suit." A notice of a suit against the government or a public
officer must be delivered to or left at the office of the appropriate authority. To whom
such notice must be sent has also been mentioned in section 80. Certain directions have
been issued with regard to duty of the government to reply the notice of the Supreme
Court.'^ The notice under this section can be waived by the party for whose benefit it
has been provided.'^ Fresh notice is required to be given for the new cause of action
having arisen between the original plaint and amended plaint.'"* In computing the period
of limitation for institution of a suit, the period of notice has to be excluded." The
plaint must also contain a statement that the statutory notice has been delivered or
left. Omission to make such a statement is fatal and the plaint will be rejected in its
absence.'® The provisions of this section are not applicable automatically to statutory
corporations, government companies, etc. There may be independent provisions in the
statutes incorporating them, for example, Delhi Municipal Corporation Act and Delhi
Development Authority Act.

14.3 Consent before Suit

According to section 91, a suit in respect of a public nuisance may be instituted by
the Advocate-General, or by two or more persons after obtaining the leave of the court.
A suit in respect of public charities may be instituted by the Advocate-General, or by
nvo or more persons having an interest in the trusts for charity after obtaining the leave
of the court in accordance with section 92 of the Code. A suit for determination of
scheme for administration of trust establishing charitable or religious institution may
be contentious or not. In Mrinalini Padhi v UOV the Supreme Court expanded the
rule of standing to any devotee to move the jurisdictional District Judge throughout
India for redressal of any grievance relating to administration of a religious institution,
particularly of any pilgrimage centre of national importance to District Judge who may
either himself/herself or by assigning the issue/matter to any other court under his/her
jurisdiction to examine the relevant issues and send a report to High Court. The latter
will consider the report in public interest and issue such judicial directions as becomes
necessary having regard to individual fact situation.

8. State ofPunjab v Geeta Iron and Brass Works^ AIR 1978 SC 1608 : (1978) 1 SCC 68.
9. Dhian Singh v UOI, AIR 1958 SC 274.
10. Ghanshyam Das v Dominion oflndia^ (1984) 3 SCC 46.
11. Ibid
12. Salem Advocates Bar Association v UOI, AIR 2005 SC 3353 : (2005) 6 SCC 344.
13. Bisham Dayal & Sons v State of Orissa, AIR 2001 SC 544.
14. Ibid
13- Limitation Act, 1963; Mohd Qitaraytuddin v State ofAndhra Pradesh, (1994j 5 SCC 118.
16. Bihari Chaudhary v State of Bihar, AIR 1984 SC 11.
17- Mrinalini Padhi v UOI, (2018) 7 SCC 785.
198 Mulla The Key to Indian Practice

14.3.1 "Doctrine of Cypres"

The court can alter the original purposes of an express or constructive trust- created
for public purposes of a charitable or religious nature and allow its property or income
to be applied cy-pres, if so required in view of circumstances specified in section 92(3)
CPC. Cy-pres means that where a fund, given to the charity, is not fully utilized for
the particular purpose specified by the donor, and the donor had a general charitable
intention the surplus may be applied to similar, allied or supplementary purposes. The
court should be satisfied before applying the doctrine that the original object cannot be
carried out in the manner and form intended by the donor. "The 'doctrine of cypres'
would only apply where a charitable bequest falls or is incapable of being fulfilled in
accordance with the spirit or when directions of the founder cannot be carried out for
the purpose and the spirit for which the trust was created."'^
According to sections 86, 87, 87A and 87B, a person who proposes to sue the
ruler of a foreign state or an ambassador or envoy of a foreign state, should before
instituting the suit obtain the consent of the Central Government, certified by the
signature of a secretary to the Government of India except where he is a tenant of
immovable property which he holds from such ruler, ambassador or envoy, and the
suit is brought by him as such tenant. The consent of the Gentral Government must
be obtained before institution of the suit. The consent obtained after the institution of
the suit is not sufficient." The provisions of section 86(1) are not impliedly superseded
by provisions of Carriage by Air Act.^" The ruler of a foreign state may be sued in the
name of his state.

14.4 Title of the Suit

Suits by or against the government are to be instituted by or against the Union

of India or the state as provided under section 79; O XXVII, rule 3. Section 79
is a procedural section and substantial compliance with the requirements thereof is
sufficient.^'

14.5 Parties
In suits concerning property vested in a trustee, executor or administrator, where
the contention is between the beneficiaries and a third person, the trustee, executor or
administrator shall represent beneficiaries, and it shall not ordinarily be necessary to
make them parties to the suit. The provision under section 79 of the Code provides that
in suits by and against the Government, the authority to be impleaded as the plaintiff
or the defendant would be the Union of India or the Central Government or the State
or the State Government.^^ However, the court may, if it thinks fit, order them or
any of them to be made parties. Beneficiaries should always be made parties when the
executors are wholly uninterested in the case or where they have an interest adverse to
that of the beneficiaries. Where there are several trustees, executors or administrators,
they shall all be made parties to a suit against one or more of them or against a third

18. Thirumuntga Kirupananda Variyar v State of Tamil Nadu, AIR 2002 Mad 42.
19. Mirza Ali Akbar v UAR, AIR 1966 SC 230.
20. Mansoor Mumtaz v Saudi Arabian Airlines Corp, AIR 2002 Del 103.
21. Sri Laxmi Paper Depot v SDM, Bangaun, AIR 1998 Cal 195.
22. Collector v Bagathi Krishna Rao, (2010) 6 SCC 427 (429) : AIR 2010 SC 2617.
 Chapter 14—Suits in Particular Cases 199

person, but executors who have not proved their testators Will, need not be made
parties, nor trustees, executors and administrators outside India in accordance with
O XXXI, tules 1 and 2.
All persons having an interest either in the mortgage-security or in the right of
redemption should be joined as parties to any suit relating to the mortgage. The purpose
is to avoid multiplicity of suits.
The rule is merely procedural and does not create any substantive tight. In a suit
under O XXXTV, the plaintiff must proceed against the mortgaged property.^' However, a
puisne mortgager may sue for foreclosure or for sale without making the prior mortgager
a party to the suit; and a prior mortgagee need not be joined in a suit to redeem a
subsequent mortgage, as has been stated in O XXXIV, rule 1. Though not mandatory,
the puisne mortgage should implead prior mortgagee in order to work out the rights of
the parties for a full and satisfactory adjudication.^'® Suit for the declaration of certain
rights over the land belonging to State cannot be granted without impleading it.^'

14.6 Contents of Plaint

Section 80 of the Code states that whete notice is required to be given to the Union
of India or a state or to a public officet, the plaint should contain a statement that
the notice has been served.

In every suit of interpleadet, the plaint should contain certain statements which you
will find below.^''

14.7 Signing and Verification of Pleading

According to O XVII, rule 1, in any suit by or against the Union of India or a
state, the plaint or written statement should be signed and verified by such persons as
may be appointed by the government, and who is acquainted with the facts of the case.
In suits by or against a corporation, the pleadings may be signed and verified on
behalf of the corporation by the secretary or any director or other principal officer
of the corporation who is able to depose to the facts of the case in accordance with
O XXIX, tule 1. A company may also authorise a person to sign a plaint on its behalf.
The rule confers a limited power to sign and verify. The company can also ratify the
act of signing and verifying of the pleadings by its officer."^

14.8 Service of Summons, Appearance, etc.^®

As to suits against firms, see below "Firms".'®'

23. Union Bank ofIndia v Manku Narayana, (1987) 2 SCC 335 : AIR 1987 SC 1078.
24. Kerela Financial Corp v Syndicate Bank, AIR 1999 Ker 213 (FB).
25. Jagtu V SurajMal, 2010 (3) ARC 877 (SC):(2010) 13 SCC 769 (770) : AIR 2010 SC 3490 (3491).
26. See "Interpleader".
27. As to suits by or against firms, see "Suits by or against Firms".
28. As to rbis see O XXVII, ride 4 (Union of India or State); O XXVIIA (Notice to Attorney General or
Advocate-General); section 81; O XXVII, rule 8 (Public Officers); section 85 (Foreign States and Rulers);
O XXVIII, rules 1-3 (Militaq' Men); O XXDC, rules 2-3 (Corporations).
29. See "Suits by or against Firms."
200 Mulla The Key to Indian Practice

14.9 Procedure
In suits concerning the family, special provisions apply in accordance with
O XXXIIA.

The ordinary judicial procedure is not ideally suited to the sensitive area of personal
relationships. Such matters require a special approach because they have an emotional
angle or dimension which is otherwise absent. The ultimate object to be achieved or
aspired for is to preserve the integrity of the family.
Such matters may be heard in camera if a party so desires. It is the duty of the
court to make efforts for settlement. The court may also take help of welfare experts.
It is also the duty of the court to make inquiry into facts alleged by the plaintiff as
well as the defendant.

Suits or proceedings relating to Wills, intestacy and succession filed by a third party
is governed by the ordinar}^ procedure.

14.10 Decrees

As to decree to be passed in suits on mortgage, O XXXIV may be referred to.

14.11 Execution of Decrees

Section 82 states that where a decree is against the Union of India or a state or
against a public officer in respect of an act done by him in his official capacity, execution
should not be issued, unless it remains unsatisfied for the period of three months.
According to section 86, no ruler, high commissioner, ambassador or envoy of a
foreign state can be arrested under the Code, nor can any decree against him be executed
against his property, without the consent of the Government of India.

14.12 Other Special Provisions

Having noted the difference in procedure in the cases mentioned above, we proceed
to note the special procedure prescribed by the Code in interpleader suits, suits by or
against minors and lunatics, suits by indigent persons, suits by or against firms, suits
involving questions of interpretation of constitution or validity of statutory instrument
and summary suits.

14.13 Interpleader Suits [Section 88, Order XXXV]

An interpleader suit is one in which the real dispute is not between the plaintiff and
the defendant, but between the defendants who interplead against each other. In an
interpleader suit, the plaintiff is not really interested in the subject-matter of the suit.^"
In an interpleader suit, there must be some debt or sum of money or other property
in dispute between the defendants only. The primary object of an interpleader suit is
to have the claims of rival defendants adjudicated. The plaintiff in an interpleader suit
must be in a real position of impartiality.
A plaint in an interpleader suit can be amended by inclusion of new properties and
joinder of new parties.

30. Mtdla the Code of Civil Procedure, 16th Edn, 2002, Vol I.
 Chapter 14—Suits in Particular Cases 201

If I hold property in which I claim no interest, and it is claimed from me by-

two or more persons adversely to one another, I institute a suit against the claimants
for obtaining a decision as to the person to whom the property should be delivered.
However, I cannot bring an interpleader suit, if I hold the property in dispute as an
agent or as a tenant of one of the claimants.
In the plaint, I should state, in addition to the other statements necessary for plaints,
that I claim no interest in the property other than for charges or costs, that there is no
collusion between me and any of the defendants, and I should specify the claims made
by the defendants severally. I should also bring the property, if it is movable, in court.
At the hearing of the suit I should apply to the court for an order that I be discharged
from the suit and that my costs be provided for. If there is no charge of collusion made
against me by any of the defendants in his written statement, the court will grant my
application, and the suit will then be proceeded with as between the defendants. The
suit is called an interpleader suit, because the defendants are compelled in the suit to
interplead with one another. Where any of the defendants in an interpleader suit is
actually suing the plaintiff in respect of the subject-matter of such suit, the court in
which the suit against the plaintiff is pending, on being informed by the court in which
the interpleader suit is pending, shall stay the proceedings in that suit as against him
in accordance with O XXXV, rule 3.

14.14 Suits by or Against Minor and Lunatic [Order XXXII]

The Code, under O XXXII has made provisions for the institution of suit by
or against minors and persons of unsound mind with the object of protecting and
safeguarding the interests of such persons.
For the purpose of the Code, "minor" means a person who has not attained his
majority within the meaning of Indian Majority Act, 1875. Except for the requirement
of furnishing security, the provisions of the Code relating to minors also apply to
persons adjudged to be of unsound mind. A person being major according to personal
law but minor according to Indian Majority Act, 1875 cannot sue without next friend.
Every suit by a minor should be Instituted in his name by a next friend. The next
friend should be a person who is of sound mind, who has attained majority, who is
not a defendant in the suit, and whose interest is not adverse to that of the minor. The
title to the suit in such a case is AB, a minor, by CD, his next friend, v XY.
Where the defeirdant is a minor, the court should appoint a guardian for the suit
(guardian ad litem). However, no person may be appointed as guardian for the suit
without his consent in writing. The guardian ad litem should be person of sound mind,
who has attained majority, who is not a plaintiff in the suit, and whose interest is
not adverse to that of the minor. "A suit filed by a plaintiff who is of unsound mind
through next friend, the court is not required to pass any order of appointment of next
friend of guardian. WEereas in case, defendant is of unsound mind or minor, court is
required to pass an order appointing guardian."^' The title of the suit in such a case
is XY V AB, a minor, by CD, his guardian ad litem.

31. Jarnail Singh v Naranjan Kaur, 2011 (2) RCR (Civil) 215.
202 Mulla The Key to Indian Practice

Where a minor has a guardian appointed or declared by the court, no person other
than such guardian should act as the next friend or be appointed his guardian for the
suit, unless the court considers thar it is for the minor's welfare to do so and that too
only after serving him the notice of such appointment.
The provisions of rules 2 and 3 of O XXXII are mandatory.^^ A decree passed
against a minor in a suit in which he is not represented by a guardian ad litem is a
nullity, and it cannot be enforced against him. It is therefore, in the interest of the
plaintiff to apply to the court for the appointment of a guardian ad litem soon after
the plaint is admitted, and to see that a guardian ad litem is appointed. An order for
the appointment of a guardian ad litem may also be obtained upon application in the
name and on behalf of the minor.

No next friend or guardian for the suit should,' without the leave of the court
expressly recorded in the proceedings, enter into any compromise, on behalf of a
minor with reference to the suit. Any compromise entered into without such leave is
voidable at the option of the minor. This rule is imperative, and it applies even if the
next friend or guardian be the father of the minor, and the manager of a joint Hindu
family of which the minor is a member.'^
A minor plaintiff or defendant at attaining majority must elect whether he will proceed
with the suit and where he elects to proceed, he must apply for an order discharging his
next friend and for leave to proceed in his own name. And thereafter the title of the
suit shall also be corrected. However, before the passing of any such order, notice must
also be issued to the next friend. If he does not move in the matter, he shall be deemed
to have adopted the proceedings and will be bound by the result of the litigation.^^
The above rules apply also to persons of unsound mind.

14.14.1 Order XXXII—A "Suits Concerning Family Matters"

Order XXXII-A, CPC contains special provisions in respect of suits relating to
matters concerning the family. A duty has been caste upon the courts to make efforts
for settlement in suits relating to "matters concerning the family." Rule 3 mandates
that the court shall make an endeavour in the first instance, where it is possible to
do so consistent with the nature and circumstances of the case, to assist the parties in
arriving at a settlement in respect of the subject-matter of the suit. These provisions
apply to all proceedings relaring to family disputes like guardianship, maintenance, will,
succession, adoption, etc. Rule 2 specifically provides that the proceedings under this
provision should be held in camera, so as to protect the personal relationships from
being affected.

14.15 Suits by Indigent Persons [Order XXXIII]

The provisions of the Code relating to such persons are intended to enable persons
who are indigent to institute and prosecute suits without payment of any court fee
other than fees payable for service process. The word "person" mentioned in O XXXIII

32. Ghiilam Rasool v Ghulam Hassan Reshi, AIR 2003 J&K 6.

33. Ganesha Row v Tuljaram, (1913) 40 LA 1; Code of Civil Procedure, 1908, O XXXII.
34. Rajender Kumar v Sanatan Dharam Mahabir Dal, (1999) ILR I P&H 362.
 Chapter 14—Suits in Particular Cases 203

includes not only a natural person but other juridical person also. The petitioners, a
body corporate can maintain an application under O XXXIII, rule 1 and an application
under O XLIV, rule 1 If the indigent succeeds in the suit, the government has a first
charge on the subject-matter of the suit for the amount of the court fee which would
have been paid by him if he had not been permitted to sue as an indigent. If he fails
in the suit or is dispaupered, or if the suit is dismissed,for default (i.e., non-appearance
at the hearing), the court should order such court fee to be paid by him.
A person is "an indigent person":
(i) when he is not possessed of sufficient means to enable him to pay the fee
prescribed by law for the plaint in the suit proposed to be instituted by
him;^'' or
(ii) where rio such fee is prescribed, when he is not entitled to property worth
rupees one thousand, other than property exempt from attachment in
execution of a decree and the subject-matter of the suit.
The mere possession of immovable properties without any proof of derivation of
income from it is not "sufficient means" to pay the court fee. The court has to enter
into a finding regarding the capacity to raise money to pay.^^
The words "is not possessed of" contemplates not possession of property but sufficient
means, i.e., capacity to raise money to pay the requisite court fee.^® For determining
the issue concerning "indigent person", the property which is exempt from attachment
and the subject of the suit is not to be taken into consideration.^'
A person is not entitled to institute a suit as an indigent as of right. He can
sue as indigent only if he has obtained permission of the court to do so. He has,
therefore, to apply for permission to sue as an indigent. The application should
contain the particulars required in regard to plaints in suits; a schedule of property
belonging to the applicant, with estimated value thereof, should be annexed thereto;
and it should be signed and verified as if it was a plaint. The application should
be presented to the court by the applicant in person, unless he is exempted from
appearing in court, in which case it may be presented by an authorised agent who
can answer all material questions relating to the application. The court may fix a
day for receiving evidence of applicants indigency. Rule 7 lays down procedure for
hearing. If after considering the material on record, the court comes to the conclusion
that the plaintiff be permitted to sue as a pauper, the court then must pass an order
to register the plaint and number it and proceed further in the ordinary manner except
payment of court fee (O XXXIII, rule 8). It is the duty of the court to insist upon
report from the government regarding the financial status of the applicant. Where the
clear mandate of rules 6-8 was not followed, it would vitiate the order granting leave
to sue as pauper.^"

35, Bhopnl Wholesale Consumer Co-op Store Ltd v Madan Lai Gandhi, 2009 (2) MP LJ 219 (221-22)(DB);
Union Bank ofIndia v KL Constructions, AIR 2001 SC 2277; Daman Singh v State ofPunjab, AIR
1985 SC 973, relied on.
36. UOI V Khader International Construction, JT 2001 (5) SC 218.
37. Rajamma Joseph v Binti Prasad, 2010 (1) Ker LT 572 (576-77) (DB).
38. Manjulata v Sidhkaran, AIR 2005 Raj 32 (DB).
39. State ofHaryana v Baldev Raj, (2008) 162 PLR 204.
40. D Hemchandra Sagar v D Prithviraj, AIR 2004 Kant 33.
 204 Miilla The Key to Indian Practice

While considering the prayer for leave ro sue as an indigent person, the court
should not keep the question of jurisdiction and cause of action undecided. The court
should first decide the question of jurisdiction and then proceed with the matter of
grant of leave.
It shall reject the application:
(a) where it is not properly framed and presented; or
(b) where the applicant is not an indigent person; or
(c) where he has, within two months next before the presentation of the
application, disposed of any property fraudulently or in order to be able
to apply for permission to sue as an indigent person; or
(d) where his allegations do not show a cause of action; or
(e) where he has entered into any agreement with reference to the subject-
matter of the proposed suit under which any other person has obtained
an interest in such subject-matter.
If neither the application nor the examination of the applicant discloses any ground
for rejecting the application, the court should, before granting the application, give an
opportunity to the opposite party to show that the applicant is not entitled to sue as
an indigent. For this purpose, the court fixes a day for holding an inquiry, and notice
of the day so fixed is given to the opposite party and the government pleader. If the
inquiry discloses any of the five grounds mentioned above for rejecting the application
the court should refuse to allow that applicant to sue as an indigent, otherwise the
court may grant the application.
Where the court refuses the application, the plaintiff must be directed to pay the
court fee and on payment of court fee, the suit is to be registered and the further
proceedings in the matter shall follow in the ordinary manner.
The order of refusal is a bar to any subsequent application of the like nature by
him in respect of the same right to sue, but the applicant may institute a suit in the
ordinary manner, provided he first pays the costs incurred by the opposite party, and
by the government in opposing the application. It is open to the defendant and the
government pleader to apply to the court at any time during the pendency of the suit
for an order that the plaintiff is not an indigent person and the court may order that
the plaintiff is not an indigent person:
(a) if he is guilty of vexatious or improper conduct in the course of the suit;
(b) if it appears that his means are such that he ought not to continue to sue
as indigent person; or
'(c) if he has entered into any agreement with reference to the subject-matter
of the suit, under which any other person has obtained an interest in such
subject-matter.
An application to sue as an indigent person can be filed subsequent to the filing of
the suit.'" An omission to sign and verify the application does not entail rejection of
the application as it can be rectified.

41. Sivarajan K v State ofKerala, AIR 1998 Ker 98.

 Chapter 14—Suits in Particular Cases 205

Where the suit of the plaintiff, in which permission to sue as an "indigent person"
has heen granted, is withdrawn or dismissed or abates by reason of the death of the
plaintiff, the court must order the state government to recover the court fee payable,
from the plaintiff or the estate of the deceased plaintiff

14.15.1 Appeal as Indigent Person

A person entitled to prefer an appeal (first or second), who is unable to pay the fee
for the memorandum of appeal, may present with the memorandum, an application
for leave to appeal as an indigent person and may be allowed to appeal as indigent
person, subject to the provisions relating to suits by such persons.

14.16 Suits by or Against Firms [Order XXX]

The provisions of the Code relating to suits by or against firms are contained in
O XXX of the Code.

14.16.1 When Partners May Sue or be Sued in Firm Name

Any two or more persons claiming or being liable as partners and carrying on
business in India may sue or be sued in the name of the firm of which such persons
were partners at the time of the accruing of the cause of action. In a suit by or against a
firm, the pleadings may be signed and verified by any one ofsuch persons in accordance
with O XXX, rule 1. Order XXX mandates that whenever suits are filed by or against
a firm, it shall be made a party.''^ However, it does not prevent all the members of a
firm from suing jointly in their individual names.
14.16.2 Suit by a Firm
Where a suit is instituted by partners in the name of their firm, the plaintiff firm
should, if so required by the defendant, disclose the names of all persons constituting
the firm. If the names are not disclosed, the suit will be stayed. If they are disclosed,
the suit will be proceeded in the same manner, and the same consequences in all
respects will follow, as if the persons whose names are so disclosed had been named as
plaintiffs in the suit. All proceedings should continue in the firm name, but the name
of the partners disclosed in the manner specified above shall be entered in the decree.
This is in accordance with O XXX, rule 2.

14.16.3 Suit Agaiust a Firm

According to O XXX, rules 3 and 5 where a suit is instituted against a firm, the
summons should be served either upon one or more of the partners or upon the
person who is then the manager of the firm. However, if the firm was dissolved to
the knowledge of the plaintiff before suit, the summons should be served upon every
person within India whom it is sought to make liable as partner. Every person served
as above should be informed by notice in writing in what character he is served, i.e.,
whether he is served as a partner or as manager or in both characters. In default of
such notice, the persons served will be deemed to be served as a partner.

42. Sreevalli v Chinni Seetharamaiah, AIR 2005 AP 521.

 206 Mulla The Key to Indian Practice

If the plaintiff was not aware of the dissolution when he filed the suit, the decree
binds all the partners in the firm irrespective of whether they have been served
individually.
In a suit instituted against a firm in its name, if any of its partner dies, whether
before institution or during the pendency of the suit, it is not necessary to substitute
the legal representatives of the deceased partner (O XXX, rule 4). It wiO be so in
appeals as well.
However, in a suit having been filed in the name of the firm and all the partners
die during the pendency of the suit, the legal representatives of the deceased partners
must apply under O I, rule 10 of the Code to be brought on record as plaintiffs.
As regards appearance, it is to be noted that a firm cannot appear as a firm. The
partners should, therefore, appear individually in their own names, but all subsequent
proceedings will continue in the firm name. A person served as manager need not appear
unless he is a partner in the firm sued. Where a person served as a partner denies that
he is a partner, he may enter appearance under protest. Where an appearance is entered
under protest, its effect is to nullify the service altogether as regards the defendant
firm. In such a case, the plaintiff may have the summons served upon one who is
admittedly a partner or manager under rule 3, and after obtaining a decree against the
firm, apply for leave to execute it against the person denying the partnership under
O XXI, rule 50. However, the plaintiff is not bound to adopt this course. He may
ask the court to hold an inquiry, before proceeding with the hearing of the suit, as to
whether the party who appeared under protest is a partner. Appearance without protest
shall be taken as an admission of partnership and his appearance shall be deemed to
be on behalf of the firm. It shall continue to be an appearance of the firm, unless the
court permits him to withdraw.
The above rules apply to:
(i) suit between a firm on one hand and one or more of its partners on the
other hand;
(ii) suits between firms having one or more partners in common;
(iii) suits against a person who carries on business in a name or style other
than his own, as where AB carries on business in the name of AB & Co,
or XY & Co, where the suit is brought against such person in the firm
name as in rules 9-10.
In cases (i) and (ii) no execution can be issued except by leave of the court under
rule 9 of O XXX.

14.17. Suit Involving Question of Interpretation of Constitution or Validity

of Statutory Instrument
Where a suit involves a substantial question oflaw as to interpretation of Constitution
or as to validity of any statutory instrument, the court shall not decide the question
without issuing notice to the Attorney General or Advocate General or Government
Pleader, as the case may be. The court may also add government ^ a party if there is
an application for that purpose.
 Chapter 14—Suits in Partiailar Cases 207

14.18 Summary Suits

The provisions of O XXXVII of the Code, apply to the following classes of suits:
(i) suits based upon bills of exchange, hundies and promissory notes;
(ii) suits in which the plaintiff seeks to recover a debt or liquidated amount
arising on:
(a) a written contract;
(b) an enactment, where the sum sought to be recovered is a fixed amount
or debt, other than a penalty;
(c) a guarantee.
In certain specific kinds of suits, O XXXVII provides for a summary procedure which
differs materially from ordinary procedure under which the right to defend inheres in
every defendant. The object underlying summary procedure is to prevent unreasonable
obstruction by a defendant who has no defence.
Suits for recovery of amounts due under cash-credit account and bill discounting
purchase account, by a banker;'^' suits based on credit card;'''* suits based on invoices/
bills;'" suits for recovery of inter-corporate loans based on receipt and agreement
acknowledging inter-corporate loan secured by collateral securities;'*^ suits for recovery
of amount based on balance confirmation letters accepted unconditionally,'*^ are
maintainable as summary suits.
In summary procedure laid down under O XXXVII, the plaintiff must serve summons
of the suit to the defendant and the defendant may within 10 days of the service of such
summons, enter his appearance in the court along with address for service of notices
on him and notice of entering into appearance must also be given to the plaintiff.
Where the defendant enters appearance, the plaintiff must serve on the defendant, a
summons for judgment in the prescribed form and the defendant may within 10 days
from the service of such summons for judgment, apply for leave to defend such suit,
as the defendant does not have a right to defend the suit unless he shows, by filing
affidavit or otherwise, that he has a defence to the claim of the plaintiff. At the stage
of deciding this, the court has very wide powers. The question as to whether leave to
defend a suit can be granted or not is within the discretionary powers of the high court
and where such discretion has not been erroneously or with any irregularity exercised, no
interference of the apex court is warranted.'*® It can grant leave to defend unconditionally
or impose conditions before granting leave to defend or pass judgment as prayed for or
otherwise by refusing leave to defend. The leave to defend shall be given unconditionally
if the defendant shows a prima-facie case or raises a triable issue.^' When the defence

43. Punjab dr Sind Bank v Ram Prakash Jagdish Chander, (1990) 40 DLT 497.
44. Central Bank ofIndia, Manipur v Vasant Kimi, AIR 1999 Bom 409.
45. KLG Systel Ltd v Ffujitsu ICIM Ltd, AIR 2001 Del 357 : 92 (2001) DLT 88.
46. Motorola India Ltd v Kiklu I Malani, AIR 2003 Bom 92.
47. Sun n Sand Hotel Ltd v WKumar HUP , AIR 2003 Bom 168.
48. Southern Sales & Services v Sauermilch Design & Handles GMBH, 2009 (1) Kar LJ 276 : AIR 2009
SC 320.
49. Datt Enterprises Ltd v VK Dua, AIR 2006 Del 16.
208 Mulla The Key to Indian Practice

raised appears to be moonshine and show, unconditional leave to defend cannot be

granted. What is required to be examined for grant of leave is whether the defence taken
in the application under rule 3 of O XXXVII of the Code makes out a case, which if
established, would be plausible defence in a regular suit.'" Conditional leave shall be
granted if the court doubts the hona fides of the defendant or thinks that the defence
is pur only to gain time. The court can refuse leave if it is satisfied that facts disclosed
by the defendant do not indicate a substantial defence or that the defence is frivolous
or vexatious. The second proviso to O XXXVII rule 3(5) of the Code makes it very
clear that leave to defend a suit shall not be granted unless the amount as admitted
to be due by the defendant is deposited in court. The question as to whether leave to
defend a suit can be granted or not is within the discretionary powers of the high court
and such discretion has not been exercised erroneously or with any irregularity which
warrants interference by the Supreme Court." The conditions liable to be imposed may
vary in their nature and/or quantum. The court may require the defendant to deposit
money before granting leave. The court may also order expeditious hearing of the suit.
The principles for determining the defendant's application for leave to defend the suit
have been laid down in various judicial pronouncements." An appeal lies against an
order refusing leave to defend. Interlocutory order granting conditional leave to defend
or refusing leave to defend the suit can be challenged by aggrieved party in an appeal
preferred against the final decree.'^ An order granting conditional leave to defend the
suit can be challenged in an appeal against the decree.^^
Where the defendant has not entered appearance having been served with the
summons of the suit, within the prescribed period, or has not applied for leave to
defend within the prescribed period having been served with the summons for judgment
or where his application for leave to defend has been refused, the plaintiff is entitled to
judgment forthwith. However, the court has the power to condone the delay in entering
into appearance or in applying for leave to defend the suit, in special circumstances
cause being shown by the defendant. What would constitute special circumstances
would depend upon the facts of each case. The defendant shall have to show not only
special circumstances which prevented him from appearing or applying for leave to
defend, but also the facts which would entitle him leave to defend.^' "Setting aside of
ex-parte decree under O XXXVII, rule 4 of the Code cannot be allowed in routine and
special circumstances are required to be established. However, the expression "special
circumstances" has to be construed having regard to the individual fact situations. The
court has to balance the equities and while safeguarding the interest of the plaintiff.
Appropriate conditions can be laid down if the defendant makes out a debatable case
which may prime facie show injustice in the ex-parte decree was not set aside."'^

50. VK Entei-prises v Shiva Steels, AIR 2010 SC 2885; see also Malwa Strips Pvt Ltd v Jyoti Ltd, (2009) 2
see 426.
51. Southern Sales & Services v Savermilch Design & Handles GMBH, (2008) 14 SCe 457 (462).
52. Santosh Kumar v Mool Singh, AIR 1958 SC 321; Mechalec Engineers v Basic Equipment Cop, AIR
1988 Se 577; Raj Duggal v Ramesh Kumar, AIR 1990 Se 2218 : 1991 Supp (1) See 191.
53. Ernkay Exports v Madhusudan Shrikrishna, 2008 Bom CR 522.
54. Wada Arun Asbestos Pvt Ltd v Gujrat Water Supply & Sewerage Board, AIR 2009 SC 1027 (1030) :
(2009) 2 see 432.
55. Rajini Kumar v Suresh Kumar Malhotra, AIR 2003 Se 1322 ; (2003) 5 See 315-
56. Mahesh Kumar Joshi v Madan Singh Negi, AIR 2015 (SC) 974.
 chapter 14—Suits in Particular Cases 209

14.19 Bar of Certain Suits

We have by this time reviewed all the sections and rules contained in the Code
which come within the scope of these chapters. Now, we will discuss about suits which
are barred for some reason or another under the Code.

14.19.1 A Suit may be Barred as Res Judicata [Section 11]

Suppose that the suit for specific performance is heard and finally decided, can
one file a fresh suit in respect of the same subject-matter again? The answer is clearly
negative. Section 11 deals with res judicata, and bars the trial of any suit or an issue
in any suit in certain circumstances and if certain conditions are fulfilled. The doctrine
of res judicata in substance means that an issue or a point decided and having attained
finality should not be allowed to be re-opened and re-agitated twice over.'^ In Satyadhyan
Ghosal V Deorjin Dehi,^^ the doctrine of res judicata has been explained in simplest
possible terms in the following words:
The principle of res judicata is based on the need of giving a finality of judicial decisions.
What it says is that once a res is judicata, it shall not be adjudged again. Primarily it
applies as between past litigation and future litigation. When a matter - whether on a
question of fact or an a question of law - has been decided between two parties in one
suit or proceeding and the decision is final, either because no appeal was taken to a higher
court or because the appeal was dismissed, or no appeal lies, neither party will be allowed
in a future suit or proceeding between the same parties to canvass the matter again.
The objectives behind this rule are threefold. It is desirable that no man should
be vexed more than once in respect of the same litigation. It is equally desirable that
there is an end to the litigation and a judicial decision must be accepted as correct.
The first is based on private interest and the remaining two take care of public
policy and larger interest of the society.'' With the aforesaid objectives in view, the
prohibition of res judicata has been enacted. The doctrine of res judicata is founded on
the principles of justice, equity, and good conscience,'"" and is a species of the principle
of estoppel.'"' It creates a different kind of estoppel viz estoppel by accord."^ "Doctrine
of res judicata is not technical doctrine but a fundamental principle which sustains rule
of law in ensuring finality in litigation. The principles of res judicata ate of universal
application as it is based on two age old principles, namely, "interest reipublicae ut sit
finis litium" which means that it is in the interest of the State that there should be
an end to litigation. No one ought to be vexed twice in litigation if it appears to the
Court that it is for one and the same cause. This principle of finality of litigation is
based on high principle of public policy."'"'

57. Escorts Farms Ltd v Commissioner Kumaon Division, Nainital, AIR 2004 SC 2186 :(2004) 4 SCC 281.
58. Satyadhyan Ghosal v Deoiyin Debi, AIR 1960 SC 941.
59. Ashok Kumar v National Insurance Co, AIR 1998 SC 2046; State ofMaharashtra v Prabhakar Bhikaji
Ingle, AIR 1996 SC 3069 : (1996) 3 SCC 463.
60. Rajender Kumar v Kalyan, AIR 2000 SC 3335; Lai Chand v Radha Kishan, AIR 1977 SC 789 :(1977)
2 SCC 88.
61. Ishwar Dutt v Land Acquisiton Collector, AIR 2005 SC 3165 : (2005) 7 SCC 190.
62. Bhanu Kumar Jain v Archana Kumar, AIR 2005 SC 626.
63. M Nagabbushana v State ofKamataka, 2011 (3) SCC 408
210 Mulla The Key to Indian Practice

It operates against both the parties to the suit, and not against one alone. The
doctrine applies to all judicial proceedings and equally applies to a quasi-judicial
proceeding before tribunals.®"* The principle of res judicata applies whether the point
in the earlier decision is one of fact or of law or of mixed law and fact, and must be
interpreted and applied liberally. The principle of res judicata operates on the court as
it prohibits the court from trying the issue.®' Res judicata applies also as between two
stages in the same litigation to the extent that a court, whether trial court or a higher
court, having at an earlier stage decided the matter in one way will not allow the parties
to re-agitate the matter again at a subsequent stage of the same proceedings.®® Between
the parties even a wrong decision can operate as res judicataF Where the previous
application had become infructuous and was not decided on merits, the principle of
res judicata would not operate.®® The principle of res judicata is alien to crimind law.
However, in certain contingencies "issue estoppel would be available".®' The findings
arrived at by a court without jurisdiction cannot operate as res judicata?^
A question whether a petition is barred by res judicata is not a pure question of
law.*'' "In order to decide the question whether a subsequent proceeding is barred by
res judicata it is necessary to examine the question with reference to the (i) forum
or the competence of the Court, (ii) parties and their representatives, (iii) matters in
issue, (iv) matters which ought to have been made ground for defence or attack in
the former suit and (v) the final decision. Res judicata is a mixed question of fact
and law" and cannot be disposed of as a preliminary issue under O XIV, rule 2(2)(b)
of the Code. Res judicata relates to the plaintiff's duty to put forth all the grounds of
attack in support of his claim, whereas O II, rule 2 of the Code requires the plaintiff
to claim all reliefs flowing from the same cause of action as a single suit. The two
pleas are different and one will not include the other." The bar of res judicata is
mandatory, and cannot be avoided by a party except by invoking the provisions of the
Indian Evidence Act, 1872 on the grounds that the judgment was obtained by fraud
or collusion or was without jurisdiction.
The doctrine of res judicata is a rule of procedure, and not substantive law. It does
not affect the jurisdiction of the court, and it is open to the party to waive the plea
of res judicata. Res judicata has to be specifically pleaded and proved, and if the party-
fails to raise such plea it will be deemed to have been waived." The foundation of the
plea of res judicata must be laid in pleadings. If this was not done, no party would be
permitted to raise it for the first time at the stage of appeal. The plea cannot be raised
for the first time in appeal before the Supreme Court."
64. Sulochana Amma v Narayanan Nair, AIR 1994 SC 152 : (1994) 2 SCC 14.
65. Pondichery Village and Khadi Inch Board v P Kulothangan, AIR 2003 SC 4701 : (2004) 1 SCC 68.
66. Uttar Pradesh State Road Transport Carp v State of Uttar Pradesh, AIR 2005 SC 446 : (2005) 1 SCC 444.
67. ARAntiday v RS Nayak, AIR 1988 SC 1531 : (1988) 2 SCC 602.
68. Noharlal Verma v Distt Co-op Central Bank Ltd, Jagalptir, AIR 2009 SC 664 (666).
69. Sardarji M Waghela v UOI, 2009 (2) Guj LR 1399 (DB): 2009 Cr LJ 3238.
70. Municipal Committee v Parshotam Das, (1996) 8 SCC 324.
71. Ramesh Ch Sankla v Vikram Cement, (2008) 14 SCC 58 (76).
72. Jaswant Singh v Custodian, (1985) 3 SCC 648.
73. Madhukar D Shende v Tarabai Aba Shedage, (2002) 2 SCC 85.
74. Alka Gupta v Narendra Kr Gupta, AIR 2011 SC 09 (13) : (2010) 10 SCC 141.
75. Isabella Johnson v MA Susai through LRs, AIR 1991 SC 993 : (1991) 1 SCC 494.
76. Nazim Ali v Anjuman Islamia, (1999) 3 SCC 91; Wall Mohd v Rahmat Bee, (1999) 3 SCC 145.
77. ITC Ltd V Commissioner of Central Excise, New Delhi, AIR 2005 SC 1370.
 Chapter 14—Suits in Particular Cases 211

14.19.1.1 Conditions

The sphere of resjudicata is not exhaustive and it is ever growing/® Certain conditions
are required to be ftilfilled for the application of the doctrine. The conditions are:
(i) there must be two suits between the same parties or their representatives;
(ii) they must be litigating under the same title;
(ill) the matter directly and substantially in issue in both the suits must be
similar. In other words, the matters direcdy and substantially in issue in
the subsequent suit must also be directly and substantially in issue in the
former suit;
(iv) one of such suits must have been heard and finally decided (it is called a
former suit). The principle of resjudicata will not apply when the entire matter
was still in appeal and had not attained finality and was still in dispute;^'
(v) the court which decided the former suit must be competent to grant
relief claimed in the subsequent suit. The principle of res judicata will
not apply where order was passed without jurisdiction.®"
Briefly speaking, some of the conditions stated above are as follows:
(i) Both the suits must be between the same parties or their representatives.
In other words, the parties to the subsequent suit must be deriving their
titles to the subject-matter of the suit from the parties of the former suit.
They must be successors-in-interest of the pardes to the former suit. Unless
an issue directly and substantially raised in the former case is heard and
decided by the competent court, the principle of res judicata will not be
attracted.®' Suppose the suit for specific performance has been decreed
against the defendant and such decree has become final. The defendant
dies thereafter. Such decree will be binding on his heirs also and if any
of them filed a suit in respect of the same subject-matter, the bar of res
judicata will apply because the former suit was between the parties from
whom the title has been derived by the parties in the subsequent suit.
14.19.2 "Res Judicata Between Co-Defendants"
The general rule is that the res judicata applies between the plaintiff and defendant.
"But adjudication between co-defendants will operate as res judicata if there is a conflict
of interest between the defendants concerned, it is necessary to decide the conflict in
order to give the relief which the plaintiff claims, the question between the defendants
has been finally decided, and the co-defendants are necessary or proper parties in the
former suit."®^ Where there is no conflict of interest between co-defendants or when
the conflict between co-defendants is not adjudicated on merits the decision will not
operate as res judicata between them.®'

78. Madhvi Amma Bhawani Amma v Kunjikuntty Pillai Meenakshi Pillai, AIR 2000 SC 2301.
79- Hameeda Bepim v Champa Bai, 2009 (3) MPLJ 472 (492) (DB).
80. Chandrabhai KBhoir v Krishna A Bhoir^ AIR 2009 SC 1647 : (2009) 2 SCC 315.
81. NStiresh Nathan v UOI, (2010) 5 SCC 692 : AIR 2010 SC 2171 (2176).
82. Ijiikhar Ahmed v Syed Meharban Ali, AIR 1974 SC 749.
83. Govindammal (dead) by LRs v Vaidiyanathan, 2019 (132) ALR 232 ; 2019 1 AWC 51SC : 127(2019)
CLT 245 : 2019 GLH (1) 64 : 2019-1-LW 385 : 2018 (II) OLR 1002 : 2018 (14) Scale 198.
212 Mulla The Key to hidian Practice

14.19.3 "Pro Forma Defendants"

Pro forma defendant is a person who has no conflict of interest with the plaintiff
and against whom no relief has been claimed. Whether such a formal party to an
action against whom no relief is claimed is bound by or entitled to the benefit of the
rule of res judicata?.
Section 11 of the Civil Procedure Code makes no distinction between a formal and
an informal patty or between a party against whom a relief is claimed and a party
against whom no relief is claimed.
"A pro forma defendant is joined as a party in a suit because his presence is necessary
in order to enable the Court effectually and completely to adjudicate upon the matters
in controversy between the patties. He does not enjoy any special rights or privileges
which are not available to others and is as much bound by the decision of the Court
as the other parties to the litigation. If therefore any such person had a right to be
heard or to control the proceedings he is bound by the doctrine of res judicata even
though he was joined merely as a formal party"^'^ and "even though no relief was sought
or claimed against him."®'
The full bench of Punjab and Haryana High Court in Gita Ram Kalsi v Prithvi
Singh, held that section 11 of Civil Procedure Code makes no distinction between a
formal or an informal party or between a party against whom a relief is claimed and
a party against whom no relief is claimed. A pro forma defendant is as much bound
by the rule of res judicata as a real defendant.
(ii) They must be litigating under the same title. This condition can be
explained by the following illustration. Suppose a person files a suit
claiming certain properties as heir to the mahant of a math. The suit
fails. He files another suit claiming management and administration of
the same properties in his capacity as a manager of the math. Here, the
subsequent suit will not be barred because the parties were not litigating
under the same title in both the suits. The former suit was filed in the
capacity of an heir, while subsequent suit was filed in the capacity of a
manager of the math. "The crucial test for determining whether the parties
are litigating under the same title as in the previous suit is of the capacity
in which they sued or were sued. The term "same title" has nothing to
do either with the cause of action or with the subject-matter of two suits.
Where the right claimed in both the suits is the same, the subsequent suit
will be barred even though the right in the subsequent suit is sought to
be established on a ground different from one in the former suit."^'
(iii) The matters in issue mean the matters which are alleged by one party
and either denied or admitted by the other party. There can be two ways
in which any matter can be in issue in the suit. It may be actually in
issue or constructively in issue. When any allegation or plea of defence is
specifically raised, it can be said that such matter is actually in issue because

84. Mt. Munni Bibi v Tirloki Nath, AIR.1931 PC 114.

85. Kidar Nath Goenka v Munshi Ram, AIR 1935 PC 139.
86. Gita Ram Kalsi v Prithvi Singh, 1956 PLR 200.
87. UOI V Pramod Gupta, (2005) 12 SCC 1.
 Chapter 14—-Suits in Particular Cases 213

the parties have raised it. However, in certain cases, it may be found that
either party has failed to raise any ground of attack or defence which ought
to have been raised. In such cases the matters which might and ought
to have been made grounds of attack or defence in the former suit shall
be deemed to have been the matters direcdy and substantially in issue in
such suit. Suppose in a suit for specific performance, several defences are
open to A. Out of such defences, the plea regarding delay or laches is not
raised by A and such suit has been decreed in favour of the plaintiff, it is
not permissible for A to raise such a plea in any subsequent suit between
the same parties in order to avoid the liability under the dectee or in an
attempt to set aside such decree. All the grounds of defences which A
could have availed to in resisting the suit for specific performance ought
to have been raised and As failure to do so results in a disability in raising
such plea again. This is called the rule of constructive res judicata. It is
a stautary provision. It is always desirable that the litigation is brought
to an end expeditiously as well as conclusively. It should not be open to
the parties to litigate on the same subject-matter again and again even
by raising pleas which were not taised eatlier. In Workmen v Board of
Trustees, Cochin Port Trust, the Supreme Court explained the principle
of constructive res judicata in the following words:
If by any judgment- or order any matter in issue has been directly and
explicitly decided, the decision operates as res judicata and bars the trial
of an identical issue in a subsequent proceeding between the same parties.
The principle of res judicata also comes into play when by the judgment
and order a decision of a particular issue is implicit in it, that is, it must
be deemed to have been necessarily decided by implication; then also the
principle of res judicata on that issue is directly applicable. When any matter
which might and ought to have been made a ground of defence or attack
in a former proceeding but was not so made, then such a matter in the
eye of law, to avoid multiplicit}' of litigation and to bring about finality in
it is deemed to have been constructively in issue and, therefore, is taken
as decided.

In the same way, if one has prayed for a specific relief in the plaint and if such relief
is not expressly granted by the decree, it is deemed to have been refused.

14.20 "Matter Collaterally in Issue"

It is mandatory for invoking the bar of res judicata that the issue or matter in
dispute in the former suit is directly and substantially in issue in the subsequent suit.
But the decision in the former suit on the issues not alleged by one party and denied
or admitted by the other within the meaning of Explanation III, are incidental and
collateral to the lead issues and such decision will not operate as resjudicata. "Decisions
on an issue operate as res judicata only if that issue was raised and decided. Findings
incidentally recorded do not operate as res judicata."^'

88. Workmen v Board of Trustees, Cochin Port Trust, (1978) 3 SCC 119.
89. Madhvi Amma Bhawani Amma u Kunjikutty Pillai Meenakshi Pillai, AIR 2000 SC 2301.
214 Mulla The Key to Indian Practice

14.20.1 Representative Suits

The principle of res judicata is also applicable to a suit of a representative character
or what is now sometimes described as "public interest litigation". As seen, there is
procedure prescribed under the Code which must be followed before a representative
suit can be properly conducted. However, once such procedure is allowed, all persons
interested in the subject-matter shall be deemed to claim under the persons expressly
on record and consequently the final decision reached in such proceedings will operate
as res judicata.

14.20.2 Courts of Limited Jurisdiction

You must have noticed that in order to attract the bar of res judicata, it is necessary
that the court which tries the former suit must be competent to grant the relief claimed
in the subsequent suit. However, by Explanation 8, this requirement has been relaxed in
cases where an issue has been heard and finally decided by a court oflimited jurisdiction.
In such cases, it is sufficient if such court was competent to decide the issue, and it
is immaterial that such coutt was not competent to try subsequent proceedings in
which such issue was sought to be raised. For example, the tribunals constituted under
various statutes of Parliament are the courts of limited jurisdiction. Their decision on
an issue which they were competent to decide is not open to question or challenge
in the subsequent proceedings before another court, and which the court of limited
jurisdiction has no jurisdiction to decide. In other words, the requirement that the
court which decides the former suit must be competent to grant the relief claimed in
the subsequent suit will not apply when the court of limited jurisdiction has decided
upon an issue properly raised before it. Explanation 8 constitutes an exception to the
aforesaid requirement.

14.20.3 Applicability of Res Judicata to other Proceedings

It applies to the proceedings for execution of a decree in accordance with Explanation 7.
It has been held that the general principles underlying the doctrine of res judicata are
applicable to writ petitions under Articles 32 and 226 of the Constitution.'" They are
also applicable to the adjudications made under Industrial Disputes Act, 1947." The
rule of resjudicata also applies to arbitration proceedings, public interest litigation'^ and
criminal proceedings,'^ but does not apply to taxation proceedings, consent decrees, and
interlocutory orders. It is also held that section 11 is not exhaustive and any suit can
be held to be barred by doctrine of res judicata even if all the conditions mentioned
in section 11 are not fulfilled, if it appears to the court that there is an attempt to
re-agitate an issue once settled and decided.'^
Resjudicata, though, a branch of the law of estoppel, however, differs from estoppel
in certain aspects.

90. Datyao v State of Utiar Pradesh, AIR 1961 SC 1457.

91. Bombay Gas Co v Sbridhar Bhau, AIR 1961 SC 1196 : (1975) 4 SCC 690.
92. Dr Rao VBJ Chelikani v Govt ofAP, 2010 (2) All LT 94 (125) (DB).
93. Fatnia Bibi Ahmed Patel v State of Gujarat, (2008) 6 SCC 789 (796) : AIR 2008 SC 2392.
94. Workmen CP Trust v Board of Trustee, AIR 1978 SC 1283 : (1978) 3 SCC 119.
 Chiipter 14—Suns in Particular Cases 215

SI No. Resjudicata Estoppel

(I) It results from a decision of the It flows from an act of the party.
court.

(2) It ousts the jurisdiction of the It is a rule of evidence preventing

court to try and re-open the matter a party from asserting contrary
already decided. statement.

(3) It prohibits' a man averring the same
thing twice in successive litigations.
(4) It binds both the parties to a
litigation.
It prevents a man from saying
one thing at one time and the
opposite at another.
It binds only that party who made
the previous statement' or showed
the previous conduct.

It is appropriate to discuss a related topic regarding stay ot suit.

14.20.4 Stay of Suit

Suppose A has filed a suit for specific periormance alleging a breach of contract
committed by the other party, and if that other party subsequently files a suit in the
same court or in any other court for a declaration that no concluded contract has taken
place between the parties, what is the remedy available to A in respect of subsequent
suit? Since both the suits pertain to the same subject-matter, it is desirable that the
disputes regarding such subject-matter are resolved or adjudicated by one court only.
It will avoid conflicting decisions or complications arising therefrom.
The remedy is provided by section 10 which provides for the rule of res sub-judice,
i.e., stay of suit. The primary object of the rule of res sub-judtce is to prevent courts of
concurrent jurisdiction from simultaneously entertaining and adjudicating upon parallel
litigation filed for the same cause of action, for the same subject-matter, and for the
same relief" "The object of section 10 of Civil Procedure Code is to prevent the
Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating
upon two p .rallel litigations in respect" of same cause of action, same subject-matter
and the same relief. Provisions of section 10 are mandatory. This provision will not
apply where few of the matters in issue are common and will apply only when the
entire subject-matter in controversy is the same."" fhere are certain conditions which
are required to be fulfilled before the suit can be stayed.
(i) There must be two suits. One previously and the other subsequently
instituted.
(ii) Both must" be pending in courts in India or courts outside India established
under the authority of Central Government.
(hi) The matter in issue in previous suit is directly and substantially in issue
in the subsequent suit.
(iv) The court in which previous suit is instituted, must have jurisdiction to
grant relief claimed in the subsequent suit.

95 Indian Bank v Maharashtra State Co-op Marketing Federation Ltd, AIR 1998 SC, 1952 : (1998) 5
see 69.
96 Aspi ]al V Khiishroo Rustom Dadybwjor, 2013 (4) See 333
216 ■ Mulla The Key to Indian Practice

(v) Both the suits must be between the same parties or their representatives.
(vi) Both the parties must be litigating under the same title.
Since some of the above conditions are also required in connection with the bar of
res judicata, one may refer to that topic for fuller explanation of them.
If these conditions are fulfilled, it is the duty of the court to stay the subsequent
suit. The court is empowered to stay a later suit, and not a previous suit.'^ "Even
where the provisions of section 10 of the Code do not strictly apply, a civil court has
an inherent power under section 151 to stay a suit to achieve the ends of justice."'®
The section is mandatory in nature. It bars the trial of the subsequent suit. It does
not bar institution of the subsequent suit. The fundamental test for applicability of
the rule of res sub-judice is whether the decision in a previously instituted suit would
operate as resjudicata in a subsequent suit." And if it is likely to operate as resjudicata,
the subsequent suit must be stayed and if not, the rule does not apply. Even if the
subsequent suit is stayed, the court is entitled to hear the applications of interlocutory
nature."" "Section 10, however, does not take away the power of the court to examine
the merits of the matter. If the court is satisfied that subsequent suit can be decided
purely on legal point, it is open to the court to decide such suit."'"' Section 10 of the
Code provides for stay of subsequently instituted suit only at trial stage.'"^ The section
will not apply if one of the suits is pending in a foreign court. The section is, however,
not exhaustive and the court can exercise the inherent power to stay the trial of the
suit in appropriate cases. Though the section bars the trial of the suit, the effect of
contravention of the prohibition does not render the decree or order a nullity as the rule
of res sub-judice is merely a rule of procedure and does not take away the jurisdiction
of the court. And if an objection to the trial of a suit under the rule of res sub-judice
is not taken at an appropriate stage, like resjudicata, it is deemed to have been waived.
(1) Section 10 is applicable to suits instituted in a civil court. It cannot apply
to proceedings of other nature instituted under any other statute.'"^
(2) A suit may be barred for want of notice in accordance with section 80.
(3) Where a plaintiff omits to sue in respect of a portion of his claim, he
cannot afterwards sue in respect of the portion of the claim so omitted
according to O II, rule 2.
(4) Where a person entitled to several reliefs in respect of the same cause of
action omits to sue for any one of them without the leave of the court,
he cannot afterwards sue in respect of the relief so omitted as stated in
O II, rule 2.
(5) Order EX, rule 9 states that when a suit is dismissed for default, the plaintiff
is precluded from bringing a fresh suit in respect of the same cause of
action.

97. GC Care Centre & Hospital v OP Care Pvt Ltd, AIR 2004 SC 2339 : (2004) 6 SCC 756.
98. PV Shetty v BS Giridhar, (1982) 3 SCC 403.
99. National Institute ofMH & NS v C Parmeshwara, AIR 2005 SC 242 : (2005) 2 SCC 256.
100. BV Sultmka v Kadarappa, AIR 1974 Mys 63; see also Surendra Sawhney v MurUdhar, 2008 (2) Raj
LW 929 (933-34) (DB).
101. Pukhraj D Jain v G Gopalakrishna, (2004) 7 SCC 251.
102. Ranjii Ram v Nand Lai, AIR 2011 HP 35 (37).
103. National Institute ofMH & NS v C Parameshwara, AIR 2005 SC 242 : (2005) 2 SCC 256.
 Chapter 14—Suits in Particular Cases 217

(6) Were a suit has abated or has been dismissed under O XXII, rule 8, no
fresh suit can be brought in respect of the same cause of action according
to O XXII, rule 9.
(7) Where a suit has been withdrawn without the leave of the court by
O XXIII, rule 1, the plaintiff is precluded from instituting a fresh suit
in respect of the subject-matter of the suit so withdrawn.
(8) Where an application to sue in forma pauperis is refused, it is a bar to a
suit in the ordinary manner in respect of the same right to sue, unless the
applicant pays the cost incurred by the opposite party and of the government
in opposing the application in accordance with O XXXIII, rule 15.
(9) An order determining an application for compensation for an arrest or
attachment before judgment or for an injunction obtained on insufficient
grounds is a bar to a suit for compensation in respect ofthe arrest, attachment
or injunction as per section 95.
(10) A suit by a person against a certified purchaser, on the ground that the
purchase was made benami for the plaintiff, is not maintainable in any
case according to section 66.
In the following two cases the proper remedy is by application and not by suit;
(1) Questions relating to the execution, discharge or satisfaction of a decree,
and arising between the parties to the suit in which the decree was passed
or their representatives, are to be determined by the court executing the
decree on application of parties, and not by separate suit according to
section 47.
(2) No suit can be instituted for obtaining any restitution on reversal of a
decree which could be obtained by application under section 144.
14.20.5 Restitution
Suppose that a decree for specific performance has been passed in the suit which
we have been considering all along and if such decree has been already executed and
deed of conveyance made in favour of the plaintiff. Suppose further, if thereafter
such decree of specific performance is reversed in appeal, revision or any other
proceeding, what shall be the consequence? In such a case, what is the remedy available
to the litigant who has succeeded in obtaining reversal of the decree for specific
performance? The answer is contained in section 144 which provides for restitution.
The term "restitution" has not been defined under the Code. It has been defined to
be "an act of restoring a thing to its proper owner."'"^ The word "restitution" in its
etymological sense means restoring to a party on a modification, variation or reversal
of a decree or order, what has been lost to him in execution of decree or order, or
in direct consequence of a decree or order.'"' The obligation arises automatically on
the reversal or modification of the decree. The doctrine is founded on equity and
is not exhaustive,'"" and therefore even if the case does not fall within the strict
terms of the Code, it is always inherent power/jurisdiction of the court to grant

104. Concise Oxford Dictionary, 1990, p 1027.

105. South Eastern Coalfields Ltd v State ofMadhya Pradesh, AIR 2003 SC 4482 : (2003) 8 SCC 648.
106. Kavita Trehan v Balsara Hygiene Products Ltd, AIR 1995 SC 441 : (1994) 5 SCC 380.
218 MulLt The Key to Indian Practice

relief of restitution so as to do complete justice between the parties.'"'' Further, since

the object of the doctrine is to shorten litigation and to afford speedy relief to the
party adversely affected and merely lays down the procedure, the provision should
be construed liberally.'"® It is based upon a principle that the act of court can do no
wrong to any person. If a person has received any kind of benefits under a decree
or order of the court and if such decree or order has been reversed or set aside, the
person who has received the benefit is under a legal obligation to return the same to
the person from whom it has been received. It can also be stated that the section is
based upon the principle prohibiting unjust enrichment.
One can apply for restitution where a decree is varied or reversed in any appeal,
revision or other proceedings or is set aside or modified in any suit instituted for that
purpose. When such an application is made, the court shall cause such restitution
to be made which will place the parties in the position which they would have
occupied but for such decree. An application for restitution under section 144 is an
application for execution of decree.'"" The words used in section 144 indicate that
it is mandatory for the court to order restitution. In exercise of this jurisdiction,
the court can make any kind of orders. Restitution may take different forms. And
interest is part of normal relief given in restitution, and such interest is not controlled
by the provisions of the Interests Act."" In the case we have been considering, the
court may even order returning the possession of the property and cancellation of
conveyance. The court may also order payment of compensation, damages, mesne
profits, interest or refund of costs. The person who withdraws proceedings without
seeking adjudication of same or even when proceedings are dismissed, the said person
is bound to restitute benefit it has received under an interim order. Also simpliciter
withdrawal of proceedings without restitution of benefit cannot be granted.'" However,
while passing an appropriate order for restitution, it will be duty of the court to see
that they are properly consequential.
However, it will be necessary to fulfill the following conditions before the restitution
can be ordered:

(1) The decree under which the benefit has been received must have been
varied, reversed, set aside or modified.
(2) The application for restitution must be made by a party entitled to the
benefit by way of restitution.
(3) The party against whom restitution is ordered must have received some
benefit under the decree which has been subjected to reversal or variation.
An application for restitution lies to the court which has passed the decree or made
the order. "The court which passed the decree or made the order" does not include
the court to which the decree was transmitted for execution."^ This is in accordance
with explanation to section 144(1), and can be ordered against the party, who has been
benefited under the decree reversed or its representative, assignee or transferee pendente

107. South Eastern Coalfields Ltd v State ofMadhya Pradesh, AIR 2003 SC 4482 : (2003) 8 SCC 648.
108. Chinnammal v Arumugham, AIR 1990 SC 1828 : (1990) 1 SCC 513.
109. Maqbool v Khodaija, AIR 1966 SC 1194.
110. South Eastern Coalfields Ltd v State ofMadhya Pradesh, AIR 2003 SC 4482.
111. DTC V International Avenues, 161 (2009) DLT 16 : AIR 2009 (NOC) 2760 (Del-DB).
112. Neelathupara Kumni v Montharapalia Padipura, AIR 1994 SC 1591 ; 1994 Supp (3) SCC 760.
 chapter 14—Stiits in Particular Cases 219

lite. However, a court to which the decree is transmitted for execution cannot order
restitution."^

The operation of the section is not confined to decrees. It also applies to any other
order. It is obligatory to make an application under section 144 in such cases and a
sepatate suit claiming restitution is barred. The court is prohibited from entertaining
any suit claiming restitution which could have been properly claimed under section 144.
An application for restitution is treated as an application for execution for the purpose
of limitation, and it is governed by Article 136 of Limitation Act, 1963."''
14.21 Miscellaneous

14.21.1 Foreign Judgments

A foreign judgment means the judgment of a foreign court. A foreign court means
a court situated abroad, and not established by Union of India. Such judgment shall
be conclusive between the parties or persons claiming under them as provided under
section 13 of the Code. "It is a well settled proposition in private international law that
unless a foreign court has jurisdiction in the international sense, a judgment delivered by
that court would not be recognized or enforced in India."' The jurisdiction, which is
important in such matters, is only the competence of the court, i.e. territorial competence
over the subject-matter and over the defendant. Its competence or jurisdiction in any
other sense is not regarded as material by courts in this country."" The material date to
decide the jurisdiction of the court is the time when the suit is instituted."'" The rules
laid down in this section are rules of substantive law and not merely of procedure."® The
rule of conclusiveness of foreign judgment applies only to matters directly adjudicated
upon."" However, in following cases, such judgment is not regarded as conclusive:
(i) where it is not given by a court of competent jurisdiction;
(ii) where it is not a decision on merits of the case;
(iii) where it has been obtained by fraud;
(iv) where the judicial proceedings resulting in such a judgment are opposed
to natural justice;
(v) where it refuses to recognise law of India, if applicable;
(vi) where it is based upon an incorrect view ofinternational law;
(vii) where it sustains a claim arising out of a breach of Indian law.
In the above cases, foreign judgments ate not conclusive and their findings do not
opetate as res judicata.^'^'^ "One of the principles on which foreign courts are recognised
to be internationally competent is voluntary submission of the party to the jurisdiction
of such foreign court. The reason behind this principle is that having taken a chance
of judgment in his favour by submitting to the jurisdiction of the court, it is not open

113. Ibid
114. Mahijibhai v Manibhau AIR 1965 SC 1477.
115. Sankaran Govindan v Lakshmi Bhamthi, (1975) 3 SCC 351
116. R Viswanathan v Rukn-td-Midk-Syed Abdid, AIR 1963 SC 1.
117. Andhra Bank Ltd v R Srinivasan., AIR 1962 SC 232.
118. Moloji V Shankar, AIR 1962 SC 1737.
119. UOl V MV Damodavy AIR 2005 Bom 137.
120. Y Narasimha Rao v Y Venkata Lakshni (1991) 3 SCC 451.
220 Mulla The Key to Indian Practice

to the party to turn around when the judgment is against him and to contend that
the court had no jurisdiction."'^' The courts refuse to apply a rule of foreign law or
recognise a foreign judgment or a foreign arbitral award if it is found that the same
is contrary to the public policy of the country in which it is sought to be invoked or
enforced.'2^ It is always open for any party to show that such judgment is not conclusive.
But the burden of proof rests upon the party which assails the judgment. If a certified
copy is produced, the court shall presume that it was given by a court of competent
jurisdiction. However, such presumption is liable to be rebutted in case the court had
no jurisdiction (section 14). "The crucial date to determine whether the judgment is of
a foreign court or not is the date of the judgment and not the date when it is sought
to be enforced or executed."'^'

A foreign judgment which is final and conclusive may be executed in India as if it

had been passed by the district court (section 44A) and in execution proceedings it is
open to a judgment-debtor to raise all objections which he may take in a suit.
iT the violation of any order passed by a civil court is made the ground of issuance
of a^ red corner notice, the court will enquire as to whether the same has undergone
the tests laid down under sections 13 and 44A of the Code.'^''

.14.21.2 Caveat

Sometimes, an unscrupulous party obtains ex parte injunctions or other interim

reliefs by misleading the court. It takes quite long to get such interim reliefs vacated.
It may harm genuine or bona fide interests because of the abuse of the legal process. To
avoid such a situation, there is a provision to prevent passing of ex parte orders without
hearing affected parties. In such cases, a caveat may be lodged as under section 148A. A
caveat is a notice given by one party to the proper officer to the effect that no action
of a certain kind may be taken without first informing the person who gave the notice
(caveator), and until the party has been heard in opposition.'^'
Caveat is a precautionary measure having the underlying object firstly, to safeguard
the interest of a person against an order that may be passed on an application in a
suit or proceeding instituted or about to be instituted, giving him an opportunity of
being heard, and secondly, to avoid multiplicity of proceedings.
A caveat may be filed by any person who is going to be affected by an interim
order likely to be passed on an application which is expected to be made in a suit or
proceedings instituted or about to be instituted.'^® The caveat must state the nature of
the application expected to be made against or affecting the caveator. There is no form
prescribed for lodging a caveat. In absence of such a form, it may be in the form of
an application stating the facts briefly and the nature of the application expected to be
made. It is also not necessary that the caveator is joined as a party in such expected
application. It is sufficient if the caveator claims and establishes prima facie a right to

121. Narasimha Rao v Venkata Lakshmi, (1991) 3 SCC 451.

122. Renit Sugar Power Co Ltd v General Electric Co, AIR 1994 SC 860 : 1994 Supp (1) SCC 644.
123. Raj Rajendra Sardar Moloji Nar Singh v Shankar Saran, AIR 1962 SC 1737.
124. Bhavesh Jayanti Lakhani v State ofMaharashtra, (2009) 9 SCC 551 (588).
125. Shorter Oxford Dictionary, Vol 1, 1990, p 301.
126. Siddalingappa v Veeranna, AIR 1981 Kant 242.
 Chapter 14—Suits in Particular Cases 221

appear before the court.'^^ Requirement of specifying the name of a party likely to
initiate proceedings is only directory and caveat cannot be rejected on this ground.
A copy of the caveat must be sent by registered post acknowledgement due upon
the opponents. If any application is made thereafter, the court shall serve a notice
upon the caveator. A caveator is entitled to receive copies of the application and
documents filed by the opponents. No order would be ordinarily passed without
affording an opportunity of hearing to the caveator. However, the lodging of caveat
does not exclude the jurisdiction of the court to grant ex pane relief, if there are
compelling circumstances, and the order passed without notifying the caveator shall
not be void.'^® The caveator cannot be permitted to steal a march over the opponents
by lodging a caveat. In cases where delay may defeat the purpose of filing the suit
or if the suit is likely to be rendered infructuous, the court may pass ex parte orders
as may be necessary, notwithstanding the caveat. It cannot be allowed to be misused
as an instrument to buy time. It is essentially a matter of judicial discretion. Section
148A does not contemplate the enforcement of a notice, where notice is otherwise
ruled out by other provisions of the Code.'^' The caveat shall remain in force for a
period of 90 days. If caveat is not made afresh, no notice is required to be served if
the application is made after the expiry of the caveat.

14.21.3 Powers of Court

14.21.3.1 Enlargement of Time (Section 148)

Under section 148 of the Code, high court has ample powers to extend the time
to comply with directions of high court.
It is evident from the language employed in the provision that the power given to the
court is discretionary and is intended to be exercised only to meet the ends of justice.'^'
Where the court has granted time to do any act, it has discretion to extend such
time from time to time. The "act to be done" must be the one prescribed under the
Code and the time for doing that act is fixed by the court, and not by the Code. If
for the "act to be done" the time is prescribed by the Code itself, section 148A has
no application and in such cases time can only be extended by the court in exercise
of its inherent powers. "Extension of time" can be done even after the time originally
granted has expired. However, the time so extended shall not exceed 30 days in total'"
from the date of expiry of the period originally fixed or granted. However, extension
beyond maximum of 30 days can be permitted if the act could not be performed
within 30 days for the reason beyond the control of the party, in exercise of its inherent
powers. Such power is given to secure the ends of justice.'^''

127. Nirmal Chandra v Girindra Narayan., AIR 1978 Cal 492.

128. RBI Employees Association v RBI, AIR 1981 AP 246.
129- Chloride India Ltd v Ganesh Das Ram Gopal, AIR 1986 Cal 74 (DB).
130. B Jagadesivar v Govt ofAB, 2008 (2) All LT 515 (520) (DB).
131. DVPaul V Manisha Lalwani, AIR 2010 SC 3356 (3361); see Aso Manobar Singh v DS Sharma,(2010)
1 see 53.
132. Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999w.e.f. 1-7-2002), section 148.
133. Salem Advocate Bar Association v UOI, AIR 2005 SC 3353.
134. Jogdhayan v Babu Ram, AIR 1983 SC 57 : (1983) 1 SCC 26.
222 Mulla The Key to Indian Practice

14.21.3.2 Inherent Powers

The court has inherent powers to make such orders as may be necessary for the
ends of justice or to prevent abuse of the process of the court. In order to do real and
substantial justice between the parties or to prevent abuse of the process of the court,
the court has such powers to pass appropriate orders. The court is always empowered
to satisfy itself as to whether a party before it suffers from mental illness or not. The
primary duty of the court is to see that truth comes out. The court has complete
inherent power in an appropriate case under section 151 of the Code to pass all orders
for doing complete justice to the parties to the suit.'^^ The powers relate to matters of
procedure. "Inherent powers enshrined under section 151 Civil Procedure Code can be
exercised only where no remedy has been provided for in any other provision of the
Civil Procedure Code. In the event of a party obtaining a decree or order by playing
a fraud upon the court, or where an order has been passed by a mistake of the court,
the court may be justified in rectifying such mistake, either by recalling the said order,
or by passing any other appropriate order. However, inherent powers cannot be used
in conflict of any other existing provision, or in case a remedy has been provided for
by any other provision of the Civil Procedure Code.""'^
Section 151 deals with such power. It does not confer any power, but merely
indicates that the court possesses such inherent powers. It cannot be exercised in conflict
with the general scheme and intent of the Code.- It cannot be used either to create or
recognise rights, or to create liabilities and obligations not contemplated by any law.'^^
When the Code is silent regarding a procedural aspect, the inherent power of the court
can come to its rescue and act ex debito justitiae.^^^
An application invoking inherent powers of the court under section 151 is not one
which a party is required to make under any provisions of the Code for setting in
motion the machinery of the court."' It cannot also be exercised when there are specific
provisions in the Code, i.e., the court cannot exercise inherent powers to set aside an
ex pane decree where the case does not satisfy the requirement laid by O IX, rule 13.
If a plaint is rejected and the plaintiff does not pursue the remedy under the Code, the
court cannot set aside the order in exercise of inherent powers. ^JHien there is a specific
remedy available under the Code, it is settled law that an application under section
151 of the Code is not maintainable. The inherent powers do not enable the court
to do which is prohibited by the Code or any statute.''^' While exercising powers under
section 151, the court first has to consider whether exercise of such power is expressly
prohibited by any other provision of the Code, and if there is no such prohibition,
then it will consider whether such power should be exercised, on the basis of facts
mentioned in the application."^ In short, the power does not exist which enables the
court to render the provisions of the Code, nugatory. Its exercise cannot be inconsistent

135. Lalit Kishore v Meeni Sharma, (2009) 9 SCC 433 (434).

136. Ramji Gupta v Gopi Krishan Agrawal, (D) 2013 (9) SCC 438.
137. Gujarat Ihja Vikas Nigam Ltd v Solar Semiconductor Power Co (India) Pvt Ltd (SC). Civil Appeal No.
6399 OF 2016 dated 25-10-2017.
138. Jet Plywood Pvt Ltd VMadhnkar Nawlakha, AIR 2006 SC 1260 ; (2006) 3 SCC 699.
139. G Christhudas v Anbiah, AIR 2003 SC 1590.
140. Rameswar Sarkar v The Collector Nadta, 2009 (1) Cal LJ 303 (305) (DB).
141. Damodarar Pillai v South Indian Bank, AIR 2005 SC 3460 ; (2005) 7 SCC 300.
142. Shipping Corp ofIndia v Machadeo Brothers, AIR 2004 SC 2093 : (i2004) 11 SCC 168.
 chapter 14—Suits in Particular Cases 223

with the provisions of the Code. Object and scope of section 151 of the Code is to
supplement and not to override or evade other express provisions of the Code.''^^
Under section 151, the court can issue direction either suo motu or otherwise.
Inherent power cannot be exercised to re-open the settled matters. Such power has
its roots in necessity and its breath is co-extensive with the necessity.''*® It is trite that
the exercise of inherent power is not invoked for reviewing any order. The court
can grant temporary injunction in cases not covered by O XXXIX.'''® It is necessary
to remember that courts are established to do justice between the parties. Where a
matter has expressly been provided for in the body of the Code, ordinarily inherent
power shall not be resorted to.'^' When the proceedings under Article 226 of the
constitution of India stand terminated by final disposal of writ petition, it is not open
to the court to reopen the proceedings by means of a miscellaneous application.
There are innumerable situations for which no express provision is made by the Code.
In such cases, the court is not helpless, and possesses the power to do complete justice
between the parties.
14.21.3.3 Power to Correct Error

If there are any clerical or arithmetical mistakes in judgments, decrees or orders,

they can be corrected by the court. It can be done suo motu or on the application of
any,party. Similarly, if there are any errors in the judgments, decrees or orders, arising
from accidental slip or omission, such errors can be corrected by the court. Such powers
can be exercised at any point of time according to section 152. Section 152 can be
invoked for the limited purpose of correcting clerical errors, or arithmetical mistakes in
the judgment, and cannot be invoked for claiming a substantive relief which was not
granted under the decree, or as a pretext to get the order which has attained finality,
reviewed.'^' Provision under section 152 should not be construed in pedantic manner.'"
It cannot be invoked to modify, alter or add to the terms of the original order or decree
so as to, in effect, pass an effective judicial order after the judgment."^ The power
under section 152 can be exercised by the court which passed the decree by supplying
the omission.""* Where the author of the judgment himself admitted that there was
a typographical mistake, the high court would not be right in coming to contrary
conclusion. The court has the power to vary its judgment or amend its orders so as
to carry out the intention and express the meaning of the court at the time when the

143. State of UP v Roshan Singh, (2008) 2 SCC 488.

144. Sharda v Dharampal, AIR 2003 SC 3450 ; (2003) 4 SCC 493.
145. State of West Bengal v Karan Singh Binayak, AIR 2002 SC 1543 : (2002) 4 SCC 188.
146. NS Mills V UOl, AIR 1976 SC 1152 : (1976) 1 SCC 120.
147. Inderchand Jain v Motilal, (2009) 14 SCC 663 (669).
148. Manohar Lai v Seth Hiralal, AIR 1962 SC 527; Cotton Carp ofIndia v United Industrial Bank, AIR
1983 SC 1272; Tanusree Basu v Ishani Pd. Basu, AIR 2008 SC 1909 : (2008) 4 SCC 791.
149. Nahar Industrial Enterprises Ltd v Hong Kong & Shenghai Banking Corp, (2009) 8 SCC 646 (703).
150. State ofHaryana v Bahu Singh, AIR 2009 SC 472 (476, 477)..
151. Bijay Kumar v State ofjharkhand, AIR 2005 SC 2435; Century Textiles Industries v Deepak Jain, (2009)
108 Cut LT 226 (231) (SC).
152. Niyamat Ali Molla v Sonargon Housing Co-op Society Ltd, AIR 2008 SC 225 : (2007) 13 SCC 421.
153. State ofPunjab v Darshan Singh, AIR 2003 SC 4179 : (2004) 1 SCC 328.
154. Pratibha Singh v Shanti Devi Prasad, AIR 2003 SC 643 : (2003) 2 SCC 330.
155. Union Bank ofIndia v Naurang, (2009) 16 SCC 352 (353).
224 Mulla The Key to Indian Practice

order was made.'''" If there are any errors or defect in any proceeding in a suit, it can
be corrected at any point of time according to section 153.
14.213.4 Transfer ofSuit
In certain circumstances the suit or other legal proceedings may be required to be
transferred from one court to another. Section 24 deals with the general power of
transfer and withdrawal, of the high court and the district court. A court acting under
section 24 of the Code may or may not in its judicial discretion transfer a particular
case. This section does not prescribe any ground for ordering the transfer of a case.
In certain cases, it may be ordered suo motu and it may be done for administrative
reasons. But, when an application is made for transfer by a party, the court is required
to issue notice to the other side and hear the party before directing transfer."^ The
powers, no doubt, are very wide, however, those powers are being exercised within
certain permissible limitations. Such transfer may be between the coutts of co-ordinate
jurisdiction or otherwise. The power under section 24 can be exercised on an application
for transfer by any of the parties to the suit, appeal or other proceedings or suo-motu
by the court. A suo-motu transfer by the high court or district court does not call for
issuance of notice to the patties before passing the order. However, where the transfer
is on the application of one of the parties, notice to the opposite patty is mandatory.''^
Under section 24, a suit, appeal or other proceedings can be transferred or withdrawn
at any stage even after the commencement of hearing and even in the course of execution
proceedings.
The petition for transfer of the suit, is a proceeding independent of the suit, and
the order passed in the transfer petition cannot be characterized as an order passed in
the pending suit itself. "Transfer of suit from one Court to another for joint trial. It
will not take away the right of parties to invoke O XXIII, rule 3 of CPC and there is
also no prohibition under O XXIII, rule 3 or section 24 of the Civil Procedure Code
to record a compromise in one suit. Suits always retain their independent identity and
even after an order of consolidation, the court is not powerless to dispose of any suit
independently."'^' Ordinarily such powers are not exercised, unless there is likelihood
of miscarriage of justice. If grave allegations are made against the judge and if there is
no confidence that justice may be received at his hands, such power can be exercised.
However, the court must be satisfied that the allegations are not frivolous or that they are
not made with a view to escaping from an inconvenient court. The mere convenience
of the parties may not be enough for the exercise of power but it must also be shown
that trial in the chosen forum will result in denial of justice.'"" If there is likelihood
of undue hardship or inconvenience in adducing evidence at a particular place and if
the entire evidence is available at some other place, the suit, or other proceedings can
be transferred. An order passed on an application under section 24 of the Code has
not been made appealable under section 104 of the Code or under any provision of
the Code.'"'

156. Lakshmi Ram Bhuyan v Hari Prasad Bhuyan, AIR 2003 SC 351.
\57. Jitendra Singh v Bhanti Kiimari, AIR 2008 SC 2987 (2989) : (2009) 1 SCC 130.
158. Vivekananda Nidhi v Ashcema Goswami, (2000) 10 SCC 23.
159. Mahalaxmi Co-op Homing Society Ltd v Ashabhai Atmaram Patel, 2013 (4) SCC 404.
160. DAV Boys Sr Secondary School v DAV College Managing Committee, (2010) 8 SCC 401 (405).
161. Amit Khanna v Suchi Khanna, (2009) II DMC 227 (All—DB).
 Chapter 14—Suits in Particular Cases 225

Such power of transfer also vests in the Supreme Court and has been laid down in
section 25. It confers powers on the Supreme Court to transfer any suit, appeal or other
proceeding from one high court to another high court or from a civil court in one
state to another civil court in any other state. It can be exercised on grounds similar
to those indicated above, and where the transfer is expedient for the ends of justice.
Where the defendant is likely to suffer extreme hardship, face difficulties in travelling
to a distant place on account of advance age, has liability of documentary evidence,
and majority of the witnesses, the power of transfer can be exercised. Where court feels
that the plaintiff or the defendant is not likely to have a "fair trial" in the court from
which he seeks to transfer a case, it is not only the power, but the duty of the court
to transfer-the case."^^ Referring to the propensity of court to accede to request for
transfer of matrimonial proceeding from one State to another where the wife is residing,
the court said that one could not ignore the problem faced by a husband to contest
in another State and therefore suggested that all the high coutts to issue appropriate
administrative instructions to regulate the use of video conferencing."^^

162. Kulwinder Kaur v Kandi Friends Education Trust, (2008) 3 SCC 659 : AIR 2008 SC 1333.
163. Krishna Veni Nagam v Harish Nagam, AIR 2017 SC 1345 : 2017(2) AJR 462 : 2017(3) ALD 151 ;
2017 (122) ALR 905 ; 2017(5) ALT 4 : 2017(3) Bom CR 62 : 2017(2) CDR 202 (SC ): 2017
(2) CLJ (SC) 55, 123 : (2017) CLT 1054 : 2017(2) CTC 457 : II (2017) DMC 173SC : 2017 (2)
GLT 29 : 2017 (2) JKJ 35 [SC] ; 2017 (2) KHC 380 ; 2017 (2) KLJ 549 : 2017 (2) Ker LT 593 :
2017-3-LW 721 ; 2017 (4) MhLj 764 : 2017 (3) MPLJ 344 : 2017 (I) Ori LR 1033 : 2017 (2)
RCR (Civil) 358 : 2017 (3) Scale 471 : (2017) 4 SCC 150 ; 2017 (6) SCJ 392 : (2017) 3 WBLR
(SC) 622 : 2017 (2) WLN 26 (SC).
 CHAPTER 15

ALTERNATIVE DISPUTES REDRESSAL

MECHANISMS (ADR)

The main challenge with which the judiciary in our country has faced is the huge
arrears of cases pending at different levels in the courts, including high courts. The
adversatial legal system, procedutal wrangles and multiplicity of various remedies in
the form of appeals or revisions are some of the factors which leave a litigant a little
bit bitter and frustrated while waiting for justice for years. Keeping in mind the said
challenge, a special provision has been introduced in the form of section 89 by the CPC
(Amendment) Act, 1999, with effect from 1 July, 2002, in order to help the litigants to
settle their disputes outside the court instead of going through the elaborate process in
the court trial, by simpler and quicker methods. These methods are known as Alternate
Dispute Redressal Mechanisms (ADR). However, ADR is not a substitute for judicial
system, but supplementary to the judicial system. Having a hearing after completion
of pleadings to consider recourse to ADR process under section 89 of the Code is
mandatory, but actual reference to ADR process in all cases is not mandatory.'
The parties to the suit or proceeding may request the court to refer their disputes
and if the court is satisfied that there exists an element of settlement which may be
acceptable to the parties, it may refer the parties to any of the forums mentioned in
the section at any stage of the proceedings. The decision rendered by these forums shall
have the same binding effect as if made by a civil court after an elaborate trial, leaving
little scope for appeal or revision particularly when the dispute is resolved through
judicial settlement, Lok Adalat or Mediation.
The mechanisms mentioned in section 89 are:

(i) arbitration;
(ii) conciliation;
(iii) judicial settlement including settlement through Lok Adalat; and
(iv) mediation.
Order XXVII, rule 5B and O XXIII A, rule 3, of the CPC contain special provisions
enjoining a duty upon the court to make efforts and to assist the parties in arriving
at a settlement in certain categories of suits/proceedings relating to matters concerning
family, such as marriage and divorce, guardianship, custody, maintenance, adoption,
succession, etc and in suits/proceedings by or against Government including public
officers. Similar provisions are also found in Hindu Marriage Act, 1955, section 23;
and the Industrial Disputes Act, 1947, section 12.
These provisions have been enacted with the ultimate aim of amicably solving the
dispute between the parties with the aid and assistance of the court with assurance

1. Afcons Infrastructures Ltd v Cherian Varkey Construction Co Pvt Ltd, (2010) 8 SCC 24 (38) ; (2010) 8
SCR 1053.

226
 chapter 15—Alternative Disputes Redressal Mechanisms (ADR) 227

of just, fair and lasting solution of the disputes expeditiously and permanently, and
preventing the litigation from becoming a protracted affair.
When the dispute in the suit is referred to arbitration or conciliation for settlement,
the provisions of the Arbitration and Conciliation Act, 1996 govern the case. Section 89
makes applicable the Arbitration and Conciliation Act, 1996, from the stage after the
exercise of option and making of reference.^ When the Arbitration and Conciliation Act,
which is a special law, provides for a forum of adjudication, section 89 of the Code
cannot be resorted to refer a dispute for arbitration unless there is a mutual consent of
all parties or arbitration agreement.^ The High Court of Himachal Pradesh has evolved
a pre-trial, in trial and post-trial Conciliation Project in the state of Himachal Pradesh.
Lok Adalats were started initially as a voluntary organisarion for informal resolution
of disputes, which has received a statutory recognition in the Legal Services Authorities
Act,.1987. When a matter is referred to Lok Adalat for settlement by a civil court,
the provisions contained in the Legal Services Authorities Act, 1987 shall govern the
parties in the matter of resolving the dispute.
And when the matter is referred to mediation for settlement, the parties shall
follow the procedure as may be prescribed. The Delhi High Court has framed The
Mediation and Conciliation Rules, 2004, to govern the procedure of mediation. Delhi
has developed a full-fledged system of mediation by establishing mediation centers at
district courts and high court, which are manned by independent fully trained judicial
officers' mediators and advocates' mediators. When the mediation succeeds and the
parties agree to the terms of settlement, the mediator will report the same to the
court and the court effects the compromise and passes a decree in accordance with
the terms of settlement accepted by the parties. And if conciliation, mediation or judicial
settlement is not possible despite efforts being made, the case will ultimately go to trial
and in such an eventuality, any additional factual information received from a party is
kept confidential and not disclosed to the other party and even the court. The lawyers
should advise their clients to try for mediation for resolving the disputes, especially
where relationships like family relationships and business relationships are involved,
otherwise the litigation drags on for years and decades often ruining both the parties.^
In Perry Kansagra v Madan Kansagrap the important issue raised was whether the
confidentiality ingrained in mediation process conflicted with power of the Court as
patria parens to access the report of the counsellor appointed to assist the mediator
when the mediator returned failure of mediation in a dispute locked in between parents
for custody of the child. Referring to High Court Mediation Rules to get a home
environment report and section 12 of the Family Courts Act that underscores the welfare
considerations of the child, the court held that the confidentiality principle applicable
to all modes of ADR will not apply.
These forums are not bound by the rules of procedure and the rules of evidence
under the Indian Evidence Act, 1872 and flexible procedures can be adopted so as to
ensure speedy and inexpensive conduct of proceedings.

2. Salem Advocate Bar Association v UOI, AIR 2005 SC 3353 : (2005) 6 SCC 344.
3. Southern Structurals Ltd v KSE Board, 2008 (1) Ker LT 105 (FB).
4. BS Krishna Murthy v BS Nagaraj, AIR 2011 SC 784 : 2011 (1) Scale 431.
5. Civil Appeal No 1694 of 2019 Hecided on 15 February 2019, 2019 SCC OnLine 211 (SC).
228 Mulla The Key to Indian Practice

Where a matter referred to any of the modes of settlement is settled, the entire
court fee paid on the plaint is liable to be refunded and the court which has referred
the matter shall issue a certificate to the plaintiff to receive the full amount of court
fee paid, from the collector,'' as provided under section 16 of the Court Fee Act, 1870.

15.1 Representative actions and ADR

In Babri mosque - Ayodhya Mandir row^, while referring the parties to mediation
before a court chosen body of 3 persons as mediators, the court clarified that there was
no legal impediment about invoking section 89 to representative actions under O I,
rule 8. It still was circumspect in not closing the issue by stating that if the parties
arrived at a settlement/compromise, the said issue could be considered at the appropriate
stage. With general elections-2019 lurking round the corner, there was no doubt that
acerbic campaigns during the election themselves were doused, a vindication that the
ADR tool is as good for intransigent large community tangles as to individual disputes.

6. Vasudevan Id v State ofKerala, AIR 2004 Ker 43.

7. M Siddiq (D) through LRs v Mahant Suresh Das Civil Appeal Nos. 10866-10867/2010 dated 8-3-2019.
 APPENDIX

CITY CIVIL COURTS AND THEIR

JURISDICTION
SYNOPSIS
1. Appeals 229 3. Jurisdiction—Other Limitations 229
2. Juridiction—Pecuniary Limits 229

In connection with courts in presidency towns,' the jurisdiction of city civil courts
was left over. It is proposed to deal with these courts here.
City civil courts have been established in the three presidency towns, and also in the
city of Ahmedabad and Hyderabad. In the presidency towns, these courts exercise the
jurisdiction that would otherwise have been exercised by the respective High Courts.
Elsewhere the city civil court exercises rhe jurisdiction that would otherwise have been
exercisable by the district court. These district courts, it should be noted, exercise only
ordinary original civil jurisdiction. They have no appellate jurisdiction.

1. Appeals
Appeals against their decrees and orders lie (where appeal is allowed by law) to the
respective High Courts. In certain cases—Madras and Hyderabad—there is provision
for internal appeals—that is to say, an appeal lies from the decision of a judge to the
principal judge.

2. Juridiction—Pecuniary Limits
The pecuniary jurisdiction of the city civil courts in the presidency towns is limited.^
That of the city civil courts elsewhere is unlimited^—as would be expected in the case
of a court which takes the place of the district court.'' This applies to the city civil
courts in Ahmedabad and Hyderabad.

3. Jurisdiction—Other Limitations
Besides pecuniary limitations on the jurisdiction of city civil courts where applicable,
there are, on their jurisdiction—
(i) local limitations; and
(ii) limitations as regards subject-matter in certain cases.

1. Chapter 2, under the heading 'Courts in Presidency Towns'.

2. See Chart.
3. The Ahmedabad City Courts Act 1961 (Gujarat Act 19 of 1961), section 3.
4. Ibid.j section 12.

229
230 Mulla The Key to Indian Practice

Chart Showing Pecuniary Limits ofJurisdiction in

City Civil Courts
City Civil Courts Pecuniary Jurisdiction
Ahmedabad^ Upto Rs 50,000
Calcutta" Upto Rs 10 lakhs
Hyderabad" Unlimited

Chennai® Upto Rs 1 crore before Assistant, Additional and Principal City

Civil Judge.

Chart Sharing Pecuniary Limits ofJurisdiction of

Courts in Delhi

Civil Judge Up to Rs 3,00,000

District Judge/Addl District Judge Above Rs 3,00,000 and upto Rs 2 crores
High Court Above Rs 2 crores
The jurisdictional limits of the city civil court at Ahmedabad are co-extensive with
those of the city of Ahmedabad as defined in the relevant Act.' The jurisdiction limits
of the city civil coutts at Hyderabad are similarly defined.
As regards limits on jurisdiction with reference to subject-matter, most of the
Acts, exclude, from the competence of city civil courts, admiralty and vice-admiralty
jurisdiction, testamentary and intestate jurisdiction, and matrimonial and insolvency
jurisdiction. The city civil court at Calcutta, however, stands in special category in
this respect, because, the relevant Act contains elaborate provisions'" which, while
conferring on the city civil court, jurisdiction to grant succession certificates and
jurisdiction under Guardians and Wards Act, excludes from its jurisdiction, numerous
matters listed in the Schedule to the Act. The list is a long one, and it is not proposed
to reproduce it here.

5. The Ahmedabad City Courts Act, 1961 (Gujarat Act 19 of 1961), sections 3 and 12.
6. The (Calcutta) City Civil Coutt Act, 1953 (West Bengal Act 21 of 1953) section 5(2) as amended
by the City Civil Court (Amendment) Act, 1990 (West Bengal Act 28 of 1990).
7. Andhra Pradesh (Telegana Area) Civil Courts Act, 1954, as amended by the Andhra Pradesh Civil
Courts (Amendment) Act, 2000.
8. The Chennai City Civil Court Act, 1892 (Central Act 7 of 1892), sections 3 and 3A, and notification
thereunder as amended by Chennai City Civil Court (Amendment) Act, 2018.
9. The Ahmedabad City Courts Act, 1961 (Gujarat Act 19 of 1961), sections 2(2) and 3.
10. The (Calcutta) City Civil Act, 1953 (West Bengal Act 21 of 1953), sections 5(3) and 5(4), read with
the schedule.
 Subject Index

court of, 149

hearing of, 153
Action memorandum of, 149
cause of, transactions as distinguished appeals, original decrees of, 146
from,55 cross objections of, 152
joinder of defendants and causes of,64 decree of, 157
joinder of plaintiffs execution, stay of, 151
and causes of, 63 hearing appeal, notice of, 152
defendants and causes, 66 parties non-appearance,consequence
misjoinders, procedure of,66 of, 157
parties and cause of, 59 security, costs for, 152
joinder of, 59 ori^nal decrees of,. 146
misjoinder, procedure of,61,63 second or special, 158
non-joinder of,67 second appeal, cases of, 162
plaintiff
defendant, several causes of,63 Appendix,229
joinder of, 59 city civil courts, 229
jurisdiction of city civil courts, 229
Admission other limitations, 229
documents of pecuniary limits, 229
cohclusiveness of, 107
notice to, 105 B
taken as whole of, 106 Bar ofsuit, resjudicata of, 209
Alternative dispute redressal C
mechanisms of, 226
representative actions, 228 Cause of action
Indian company shares, held by foreign
Alternative dispute resolution, without citizens, 38
prior consent of parties, 112 joinder of,62
Appeals lies in foreign coimtry, 38
appellate decrees or second appeals Caveat, 220
appeals, second or special of, 158
next chapter of, 166 Certain suits, bar of, 209
orders, appeals of, 165 Charter, clause 12 of, 47
substantial question oflaw, definition
of, 161 Civil jiuisdiction, extraordinary original, 11
supreme court Condition, bar ofsuits, 2l1
appeals of, 163
appeals to, procedure of, 163 Correct error, power to, 223
appellate decrees or second appeals of, Costs, seciuityfijr, 152, 185
158, 165
court, discretion of, 185
court of, 149
delay in filing, 151 Court
hearing of, 153 ascertaining of, 48
memorandum of, 149 commercial, 13
original decrees . constitution of, 6
appeal
232 Subject Index

Court {Contd.) sale proceeds, disposal of, 142

in other parts of, 11 stay of, 139
appeUate jurisdiction of, 12—13 interest, definition of, 127
original jurisdiction of, 12 mesne profits, 124
small cause of, 13 other than money decree of, 137
payment into, 188 passing of more than one, 126
powers
correct error to, 223
Defendants, pro forma of, 212
inherent of, 222 Delay, in filing appeal, 151
suit, transfer of, 224
powers of, 221 Doctrine of cypres, 198
presidency towns of, 11 Documents
Court and their jiuisdiction admission taken as whole, 106
constitution of courts, 7 affidavit of, 100
lack ofjurisdiction and irregular exercise conclusiveness of admission, 107
ofjurisdiction, 8 discovery and inspection of, 97
three rules of, 13 discovery or inspection, non compliance
with Order, 104
CPC,sections 16, 17, 19 and 20 of, inspection of, 103
8, 15, 35 interrogatories, form of, 100
immovable property, suits for, 15 interrogatories of, 98
suits for compensation, wrong done notice to admit, 105
of, 83 premature discovery of, 102
Cross appeal and cross objections, 152 production of, 109
summoning, witnesses of, 107
D

Decree, 200
Execution
costs, definition of, 128
execution of, 134, 200
meaning of, issuing process, notice of,
135
against judgment debtor of, 136
application for, 135 stay of, 151
Court, determination of question, Execution proceedings, objection under
143 CPC,52
courts to execute, 143
delivery of possession, resistance to, Express bar, 17
142
detention and release, period of, 138
eligibility to apply for, 135 Fonun shopping, 53
garnishee of, 139 G
judgment debtor, execution against
property of, 139 Gain, personally working for, 46
liability to get executed, 135 H
meaning of, 134
mode of, 136 Hearing and disposal
payment out of court, 138 decree, 123
percepts of, 143 kinds of, 125
procedure, 144 issues, first hearing and settlement of,
cross decrees of, 144 110
procedure of, 137 judgment, 121
restrictions and conditions of, 138 alteration in, 122
 Subject Index 233

Hearing and disposal {Contd.) city civil courts

parties, non appearance of, 130 appeals of, 229
witnesses, examination of, 117 other limitations of, 229
trial in open court of, 117 pecuniary limits of, 229
city civil courts of, 229
Hearing appeal, notice of day, 152 irregular exercise of, 8
I lack of, 8
local limits of, 9
Immovable property, suits for, 36 original of, 9
Implied bar pecuniary Emits,9
aggrieved party, 19 subject-matter of,9
Securitisation and Reconstruction of Justice, fiictors offailure, 51
Financial Assets and Enforcement of
Security Interest Act, 2002, 19 L
special remedy, 19 Law,substantial question of, 161
suit, civil nature, 19
Letters patent, 47
Indigent person
appeal as, 205 Letters patent and code, distinction
suits by, 202 between,48

Injunction Limited jurisdiction, courts of, 214

resjiidicata, Y75, 182
temporary, resjiidicata, 182 Long execution process, scuttle by
parliament, 144
Inspection, 103
M
Interest, 127
Matrimonial disputes, special provisions \
Interpleader suits, 200 of, 54
Issue Matter, collateral in issue of, 213
first hearing and settlement of, suit,
decision on a single issue, 113 Miscellaneous court, powers of, 221
matter collaterally Misjoinder of parties, procedure of, 61
limited jurisdiction, courts of, 214
resjiidicata to other proceedings, Modes, substituted services, 82
applicability of, 214 O
restitution of, 217
Over-valuation
suit, stay of, 215
matter collaterally in, suits, representative objections of, 52.
of, 214 under valuation, objections of,
matrimonial disputes, special
J provisions of, 54
Judgment P
arrest and attachment of, 175-177
arrest of, application of, 176 Parliaments intervention, scutde long
foreign, 219 execution process, 144
review of, 171 Parties, 22, 198
Judicial procedure, 200 death, marriage and insolvency of, 191
joinder of
Jurisdiction defendants, 60 '
appellate of, 9
234
Parties {Contd.)
plaintiffs, 59
misjoinder of, procedure of, 219
non-appearance, consequence of, 157
non-joinder of,67
proper, effect of non-joinder,68
Plaint, contents of, 199
Pleading, signing and verification of, 199
Pleading and particulars, amendment of
proceedings, application oforder, 95
scandalous allegations of, 95
Powers, inherent of, 222
R Status of receiver, 183
Receiver, 182
receiver of, status of, 183
Reference, revision and review, 167
judgment, review of, 171
next chapter of, 174
reference of, 167
revision of, 168
Representative actions, alternative dispute
redressal, 228
Residence,43
Resjudicata, between co-defendants of,211
Restitution, 217
Revision
meaning of, 168
revisional jurisdiction, power of, 168
Sale-of attached property, irregularity in,
141
Second appeal, possibility of, 162
Special case, 190
Special proceedings
supplemental
cases, special of, 190
injunction, temporary of, 179
parties, death, marriage and
insolvency of, 191
suits, compromise of, 188
supplemental of, 175
Subject Index
costs security for, court, discretion
of, 7
court, payment into, 188
receiver of, 68, 182
supplemental of, suits, withdrawal of,
185
Special provisions
matrimonial disputes, 54
other,'200
Specific performance, plaint in suit
comment,33
right to cover, 31
substituted performance, 31
Substantial question oflaw
interpretation of dociunent, 161
meaning of, 161
Substituted performance, 32
Substituted service, 32,70, 80-81,83
first mode,81
second mode,82
Suing, place of
business, carries of, 44
cause ofaction, 38
Code of civil procedure, sections of, 32
commission of wrong, 39
court, ascertaining of, 48
letters patent and code, distinction
between, 34
objection of, 49
jmisdiction, waiver ofobjection, 51
justice, fiictors offfilme, 51
over-valuation, objections of, 52
residence, 43
valuations, objection of, 52
Suit
by or gainst, minor and lunatic of, 201
against firm,205
by or against firms, 205
bar of, suit, resjudicata barred, conditions
of, 211
certain bar
pro forma, defendant of, 212
resjudicata, co-defendants of, 211
certain bar of, suit, resjudicata, 209
challenging gift deed, 74
 Subject Index 235

Suit {Contd.) provisions, other special of, 200

civil nature scope of, 195
express bar, 17 suits, firms by or against of, 205
implied bar, 19 summary of, 207
jurisdictional fact, 20 summons, appearance, service
mutts, 15 of, 199
religious denominations, 15 tide of, 198
for compensation, wrong done of, 38 particular cases of, 195
compromise of, 188 representative of, 214
concerning family matters of, 202 stay of, 215
consent before, 197 steps of, 73
doctrine of cypres, 198 defendant, summons to, 76
by firm, 205 institution of, 70
firms by or against pleading and particulars, amendment
firm against of, 205 of, 92
firm of, 205 pleadings, signing and verification
partners, sue or be sued of, 205 of, 91
four essentials of specific performance, written
cause ofaction, 25 statement of, 90
contracts, reliefs in, 29 written statement, non compliance
institution, events of, 28 of, 90
mortgage, reliefs of, 30 written statement of, 83
parties of, 25 summary of, 207 /
plaintiff, reliefs claimed by, 28 transfer of, 224
subject matter of, 28 video conferencing, 225
torts, reliefi of, 30 withdrawal of, other proceedings,
hearing of, 117 application of, 187
immovable property, 37
indigent person by, 202 Sununons, service and appearance
appeal of, 205 of, 199
minor and lunatic by or against, 201 Siunmons to defendant
concerning family matters constitution of, 76-77
of, 202 personal or direct service, 78
notice before of, 195 personal service, mode of, 80
others, 47 service of, 78
particular cases substituted service
certain bar of, 209 first mode, 81
consent before, 197 second mode,82
decrees, execution of, 200
decrees of, 200 Supreme court, appeals to, procedure
interpleader of, 200 of, 164
interpretation or validity of, 206
issue, matter collaterally in, 213
miscellaneous of, 219 Temporary injunction, 179
notice of, 195
Time, enlargement of, 221
parties of, 198
plaint, contents of, 199 U
pleadings, signing and verification of, Under valuation, objections of, forum
199
shopping of, 136
procedure of, 200
236 Subject Index

V with order of, 104

documents, production of, 107
Valuations, objection of examination of
forum, shopping of, 53 judge, evidence recorded
matrimonial disputes, special provisions by, 120
of, 54
trial in camera, 118
W inspection of, 103
interrogatories, form of, 100
Witnesses, 97, 103
interrogatories of, 98
admission conclusiveness of, 107
premature discovery of, 102
admission of documents, notice to, 107
admission taken as whole, 105 Written statement
affidavit of documents, 100 counter claim, 88
discovery and inspection of, 97 set-off, 86
discovery or inspection, non-compliance set-off and counter claim, 86
Widely acclaimed as a classic, Mulla The Key to Indian Practice is a lucid and succinct
exposition of the important provisions of the Code of Civil Procedure. Unraveling the
complexions of the Code, it presents a systematic and precise account of the conduct ofcivil
suits in Indian courts. The present edition preserves the original scheme as conceived and
adopted by Sir Dinshaw Fardunji Mulla, whilst incorporating latest developments in the
subject.

This book in an essential referencefor students, academicians, legal professionals, as well as

general readers.

An invaluable and inimitable reference aid; providing a summary of the provisions of the
Code of Civil Procedure

Breaks down the complexities of the Code to offer a lucid exposition of the important
provisions
Adopts a systematic and readable scheme with critical analysis that stokes students'
interest to deliberate and debate

Covers how the course of an ordinary suit is followed, from the moment the plaintiff
determines to sue till the time he obtains a decree

Elaborates in detail the critical process of execution of a decree and the possible
consequences of an appeal by an affected party
Employs the explanatory method of treatment enabling advocates not only to understand
the provisions of the Code, but also to see how these provisions are applied in practice

• Includes important decisions of the Supreme Court; with critical comments

• Up to date with legislative amendments and recent developments in the subject
• ADR formulations and referral court's duties

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