What is a lawsuit?

Definition and examples

A lawsuit is a dispute or claim that one party or parties bring to a law court for
adjudication. It is a proceeding by one party against another party in a civil court. A
lawsuit is a civil legal action that somebody or some people brought in a court. One
party sues another party for something; usually money.

Some lawsuits also involve an action to enjoin. To enjoin means to order one party to
do, or refrain from doing something. In most cases, the order aims to prevent
permanent loss to the other party.

In this context, a ‘party‘ may refer to a person, business, or government agency. The
term ‘party,’ in this article, refers to both the singular and plural unless otherwise
stated.

We refer to the party that is suing as the ‘plaintiff,’ and the party being sued as the
‘defendant.’

Collins Dictionary has the following definition of the term:

“A lawsuit is a case in a court of law which concerns a dispute between two people
or organizations.”

The term ‘suit in law‘ also exists. It is an archaic term. However, it exists in a small
number of laws that are still in effect today.

Lawsuit – civil action

A lawsuit may be a civil action brought in a court of law. The plaintiff demands a legal
or equitable remedy.

In such cases, the defendant must respond to the plaintiff’s complaint. The court may
award damages to a successful plaintiff, or it may enforce a right. Sometimes the
court may impose a permanent or temporary injunction to compel or prevent an act.

When the court issues a declaratory judgment, it prevents future legal disputes. A
declaratory judgment is a type of legally binding preventive adjudication. It is the
court’s legal determination that resolves legal uncertainty for the litigants.

Class action lawsuit

When the plaintiffs consist of a group of people, we call it a class action lawsuit. One
of the parties is a group of individuals who one person represents collectively. That
representative belongs to the group.
Class action lawsuits, which began in the United States, are still mainly a US
phenomenon.

However, many European countries with civil law have changed their legislation to
allow consumer organizations to bring claims. They bring the claims on behalf of
consumers. Canadian lawmakers have also altered legislation for the same reason.

Lawsuits – different types

There are several types of lawsuits. Below are details on some common types.

 Car accident lawsuit

After a car accident, drivers, passengers, and/or pedestrians may sustain injuries.
These injuries may cause not only pain and discomfort but also enormous financial
burden. The victim may have, for example, expensive medical bills, loss of income,
and temporary or permanent disability.

The injured party may try to sue the other party in the car accident for
compensation. Compensation, in this context, refers to money that makes up for an
injury, loss of income, pain, etc.

 Securities class action lawsuit

A securities class action or securities fraud class action is a lawsuit that investors
bring to a court. They bought or sold, for example, a company’s shares within a
specific period and suffered economic injury. Their economic injury was due to
violations of the securities laws.

The term ‘securities‘ refers to a financial instrument or contract that, when traded, is

given a value. In this article, ‘securities’ refers to ‘shares.’

A recent study found that overconfident CEOs are more likely to face securities class
actions compared to other CEOs. However, after the lawsuit, most of them become
much more cautious.

 Workers’ compensation

If an employee sustains an injury on the job, the employer may be responsible or

liable. It is the employer’s legal responsibility to maintain a safe working
environment.

A worker may slip, fall, breathe in toxic fumes, or get hurt by equipment.

Regarding workers’ compensation, 1-800-THE-LAW2 says the following:

“Although you cannot file a lawsuit against your employer for workers’ compensation
benefits, a lawyer can handle the process for you to help ensure that you get
maximum compensation, medical attention and time off work to recover as required
by law.”
“A workers’ compensation lawyer can also help ensure that you are not illegally
terminated because of your injuries.”

Lawsuits also exist regarding product liability, drug recalls, dog bites, and medical

malpractice.

Who are the parties to a suit?

There are always two parties involved in a case. For a civil case, these two parties
are referred to as the plaintiff, who is responsible for instituting the suit against the
other party, and the defendant who is the other party and has to provide his defense
in the civil court against the allegations made on him

Order 1 of the Civil Procedure Code, 1908[1] addresses the varied issues

concerned with the first and most prominent ingredient of civil suits: parties to a
suit. This encompasses questions of addition, deletion, substitution,
transposition as well as non-joinder and misjoinder of parties to a suit. The
parties in a civil suit are the plaintiff i.e. the person who brings an action for his
rights and the defendant i.e. the person against whom such rights are claimed.
However, there may arise a situation wherein, upon institution of a suit, it may
be realised that in addition to the existing parties in the suit, there may be
persons whose presence may be material to effectively determine the questions
arising from the subject-matter of the suit. Such situations are rectified by
“joinder of parties[2]” either upon application by an existing party to the suit or
suo motu by the court before which the civil suit is in lite.
The concept of “joinder of parties” includes non-joinder and misjoinder of
parties to a suit and means the inclusion or exclusion of particular persons in a
suit. Such joinder of parties is not a matter of initial jurisdiction of the court but a
question of judicial discretion which has to be exercised in view of all the facts
and circumstances of a case.[3]
Considerations to be borne when exercising the powers of joinder of parties
The powers granted to a court regarding joining of parties are very wide and
extensive under Rule 10(2) of Order 1[4] and the following two considerations
must be borne in mind while exercising these powers:
(i) The plaintiff is dominus litis i.e. he is the best judge of his own interest.
Therefore, it is upon the plaintiff to choose his opponent from whom relief is
claimed. Ordinarily, the court should not compel the plaintiff to fight against a
person whom he does not desire to fight and from whom he claims no relief;
and
(ii) If the court is satisfied that 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 and
join a person as a party to the suit.
The line has been drawn on a wider construction of the rule between the direct
interest or the legal interest and commercial interest. It is, therefore, necessary
that the person must be directly or legally interested in the action in the answer
i.e. he can say that the litigation may lead to a result which will affect him legally
that is by curtailing his legal rights.[5] The question to be posed is whether there
is curtailment or extinction of a legal right of the person.
The true test lies not so much in an analysis of what are the constituents of the
applicants’ rights, but rather in what would be the result on the subject-matter of
the action if those rights could be established.[6] The test is “may the order for
which the plaintiff is asking directly affect the intervener in the enjoyment of his
legal rights”.[7]
Based upon these considerations, the court shall exercise its powers of joinder
at any stage of the proceeding either upon an application by a party to the suit
or suo motu on such terms and conditions as the court may deem just.
Doctrine of necessary and proper parties in essence
The doctrine of necessary and proper parties is eminent when determining this
question of joinder or non-joinder of parties. There is a vital distinction between
a necessary and a proper party to a suit. A necessary party is one whose
presence is a sine qua non to the constitution of the suit and without whom, no
effective order can be passed with respect to the questions arising before the
court.[8] In contradistinction to this, a proper party is one in whose absence
although an effective order can be passed, but whose presence is necessary for
a complete and final decision on the questions involved in the proceeding.[9]
Two tests have been laid down for determining the question whether a
particular party is a necessary party to a proceeding[10]:
(i) there must be a right to some relief against such party in respect of the
matter involved in the proceeding in question; and
(ii) it should not be possible to pass an effective decree in absence of such a
party.
In light of impleading necessary parties, regard must be had that joinder of
parties shall not result in alteration of nature and character of the suit. For
instance, in a suit for specific performance of a contract for sale, the necessary
parties would be the parties to the contract or if they are dead, their legal
representatives as also a person who had purchased contracted property from
the vendor.[11] However, a person who claims independently or adversely to the
claim of the vendor would not constitute a necessary party as it would change
the nature of the suit. The proper course of action for such person would be to
institute a separate suit for declaration of title.[12]
The abovementioned considerations were reiterated by the Supreme Court
in Gurmit Singh Bhatia v. Kiran Kant Robinson[13] and it was observed that:
“A third-party or a stranger cannot be added in a suit for specific performance,
merely in order to find out who is in possession of the contracted property or to
avoid multiplicity of the suits. A third-party or a stranger to a contract cannot be
added so as to convert a suit of one character into a suit of different character.”
The very object of the “doctrine of necessary and proper” parties is to include all
such parties as would be necessary grant an effective relief for the issues that
are pendente lite in the matter at hand. Therefore, where the issues before the
Court pertain to a particular subject- matter, no person can be joined as a party
merely on the ground that his claims relate to the subject-matter of the case but
requires framing of additional issues. The mere fact that a fresh litigation could
be avoided is no ground to invoke the power under Rule 10 of Order 1[14] in
such cases.[15]
For instance, in a suit for specific performance of contract for sale between Party
A (i.e. vendor) and Party B (i.e. purchaser) who are the parties to such contract
would be necessary parties. While a person C, who claims a title adverse to the
title of the Vendor (i.e. Party A) would not constitute a necessary party as this
would alter the nature of present suit and result in conversion of a suit for
specific performance of contract for sale into a suit for declaration of title,
thereby enlarging the scope of suit. The effective remedy for Person C in such
case would be to institute a separate suit and file a fresh claim against Party A.
Therefore, it may be concluded that persons, stranger to the contract, would
also be strangers to the proceeding in that suit.
“Who constitutes a necessary party?” in light of judicial precedents
The principle of natural justice “audi alteram partem” forms the quintessential
basis of Order 1 Rule 9[16], elucidating that, “No order can be passed behind the
back of a person adversely affecting him and such an order if passed, is liable to
be ignored being not binding on such a party as the same has been passed in
violation of the principles of natural justice.”[17]
Therefore, it is well-settled principle consistent with natural justice that if some
persons are likely to be affected on account of setting aside a decision enuring
to their benefit, the court should not embark upon the consideration and the
correctness of such decision in the absence of such persons.[18]
Where the plaintiff sued for possession and declaration that the auction
proceedings and the subsequent conveyance by auction purchaser to defendant
were void in law under a certain Act, it was held by the Supreme Court, that the
liquidator was a necessary party and in his absence the suit for declaration must
fail.[19]
In a suit filed against a doctor owing to his medical negligence, the doctor was
held to be a necessary party since relief was claimed from him. However, the
insurance company from whom the insurance had been obtained was held as
neither a necessary nor a proper party, since no relief had been claimed from
the said company.[20]
In a land acquisition proceeding, the local authority is a necessary party in the
proceedings before the Reference Court and is entitled to be impleaded as a
party in those proceedings wherein it can defend the determination of the
amount of compensation by the Collector and oppose enhancement of the said
amount and also adduce evidence in that regard[21].
An unsuccessful candidate challenging the selection as far as the service
jurisprudence is concerned is bound to make the selected candidates parties.
In Prabodh Verma v. State of U.P.[22] and Tridip Kumar Dingal v. State of W.B.[23], it
has been held that “if a person challenges the selection process, successful
candidates or at least some of them are necessary parties”. The aforesaid
decisions do not lay down as a proposition of law that in every case when a
termination is challenged, the affected person has to be made a party. What has
been stated is when one challenges a provision as ultra vires the persons who
are likely to be affected, some of them should be made parties in a
representative capacity.
Furthermore, it must be reiterated that although the provisions of Civil
Procedure Code do not strictly and holistically apply to writ petitions, the
principle underlying Order 1 Rule 9 shall be applicable to writ petitions.
Statutory exceptions to Rule 10 of Order 1
There are certain special statutes which clearly provide as to who are the
persons to be made as parties in the proceeding/suit filed under that special
statute. For example, the provisions under Section 82 of Representation of the
People Act, 1951[24] clarify the persons that are to be made parties in an
election petition. There are other special statutes which also postulate who can
be joined as parties in the proceedings instituted under that special statute,
otherwise the provisions of CPC would be applicable.
Hence, it must be concluded that provisions of Rule 10 of Order 1 of the Civil
Procedure Code, 1908[25] must be construed and interpreted harmoniously in
addition to and not in derogation of any express statutory provision in this
regard. The Civil Procedure Code is only a general law governing the procedure
to be followed in case of civil suits and hence, when an express provision is
made in any other statute about the joinder of additional parties or such other
procedure to be followed, such special procedure shall prevail over the general
law governing civil suits. This is based on well-founded rule of interpretation of
statutes “generalia specialibus non derogant”.
Difference between non-joinder and misjoinder of parties
Where a person, who is a necessary or a proper party to a suit has not been
joined as party to such suit, it is a case of non-joinder. Conversely, if two or more
persons are joined as plaintiff or defendants in a suit in contravention to Rules
1[26] and 3[27] of Order 1 of the Civil Procedure Code, 1908 and they are neither
necessary nor proper parties, it is a case of “misjoinder” of parties.
All objections on the ground of non-joinder or misjoinder of parties shall be
taken at the earliest possible opportunity and always before settlement of
issues, unless the ground of objection has subsequently arisen[28]. Any such
objection not so taken shall be deemed as a waiver.[29]
Although a defect of non-joinder is serious, it is not incurable and the court may
pass appropriate directions to join a person if it believes that such a person is a
necessary party.
A suit cannot be dismissed only on the ground of non-joinder or misjoinder of
parties subject to the exception that non-joinder of a necessary party may
render fatal to the case[30]. Therefore, the court cannot dismiss a suit solely
based upon the ground that a party, be that a proper party, has not been joined
or any unwarranted person has been joined erroneously in the suit unless such
party is a necessary party in whose absence an effective order cannot be passed
in the questions arising in the suit. The principles enshrined in the proviso to
Order 1 Rule 9 of the Civil Procedure Code, 1908 provide that impleadment of a
necessary party is mandatory and in case of non-joinder of necessary party, the
plaintiff may not be entitled for the relief sought by him.
This submission highlights the importance of the doctrine of necessary and
proper parties when instituting a civil suit and holistically elucidates its
consideration in all matters such as service matters, writs, suits for specific
performance, suits for declaration. The doctrine of necessary and proper parties
is a preliminary issue to be dealt with prior to any other question of law or fact
since it shall determine the very sanctity of the trial due to its roots in the
principles of natural justice. Any ignorance of this principle shall vitiate the
effectiveness of the adjudication as it would cause such trial to be conducted in
absentia of persons who were necessary for a fair, effective and complete
adjudication of the questions involved in such suit.
Summons are the instruments that are issued by the Court to a party to appear and answer the
alleged claim and are served in a manner prescribed on the given date of the proceeding.
Chapter V of the Civil Procedure Code, 1908 (“CPC”) deals with the processes to compel the
appearance of the defendants and witnesses in court. Summons under CPC notes three
processes to compel the appearance of the party:
 Summons
 Warrant-Case
 Proclamation and attachment
Objectives of Summons
The main objective of the service of summons under CPC is to provide equal justice to all the
parties involved in a case. It is based on the principle of Audi alteram partem i.e. hearing the
contentions of both sides. The secondary objective to serve the summons under CPC is to
inform the defendant that a case has been issued against him or her.
Essentials of Summons 
 As per Order V Rule 1, the following are the essential conditions for a service of
summons under CPC –
 It should be in writing.
 It should be in duplicate form.
 It should be signed by the presiding officer of the court or such other officer
authorized by the High Court.
 It should mention the time and place of the rule directed.
 It should bear the seal of the court.
  As per the order of the Gujarat High Court, the issuance of a summons is a condition
precedent to the making of an order. The mere making of an order for the issuance of
summons is quite different from the issuance of summons.
Types of Summons

Majorly, there are three types of summons that are issued under the law:

Civil Summons

These summons are issued in a civil case under CPC to the defendant to appear in court. It is
a way of informing the defendant that a case has been issued against him or her in court. It is
mainly served in the cases of breach of contract, damage suit, injunction orders or loss of
goods, etc. 

Criminal Summons

A summon issued to a person to appear in the criminal court under the Criminal Procedure
Code is called a criminal summons. In the criminal summons, the court will mention the
charges and facts based on which the summon has been issued.

Administrative Summons

These are sent by the administrative bodies whenever we fail to abide by the law. Tax
authority or labor court summons is the main administrative summons issued by the law. 

Substituted service of summons

It is an exception to the normal way of giving summons under CPC. To issue a substituted
service of summons the court should be satisfied that there is enough evidence to believe that
the defendant is intentionally keeping himself away from serving the summons, so there
needs to be another way in which summon shall be served. 

Procedure to serve Summons: -

The procedure to serve a summons is as follows:

 A summon has to be prepared considering all the essentials;

 The summons should be served by the persons authorized and if possible, personally;
 A duplicate copy should be provided to the person summoned;
 The person summoned shall sign the receipt on the back of the duplicate copy. 
Summons by Post

A summons can also be served by a registered post, even when the postman is serving the
summons and the witness refuses to accept, the acknowledgment by the postman would be
evidence that the summons is served. 

Summons on Corporate bodies and societies

Corporate persons who are authorized to receive such summons:

 Secretary

Local manager / Principal officer of the corporation

The chief officer of the corporation.

Summon on a government servant 

Where the person summoned is in the active service of the Government, the Court shall send
it in duplicate to the head of the office in which such person is employed and that head will
serve the summon and shall return it to the Court under his signature with the endorsement
required by that section.

The procedure of trial of Summons Cases by Magistrates 

 If the case appears, then the magistrate has the authority to issue a summons.
 No summons can be filed until the list of a prosecution witnesses has been filed.
 If the complaint has been made in a written format, then a copy of that complaint
should be attached with the summons.
 The Magistrate also has the power to dispose of the attendance or enforce it if
required.
 If the proceeding is based on a police report, the magistrate shall provide a copy of
that police report, first information report (FIR), witness statements, confessions and
statements (if any), and any other document or relevant extract that was provided to
the Magistrate with the police report.
FAQs
Who is authorized to serve the summons?

These are the people who can serve the summons:

 Police Officer
 An officer of the court issuing it
 Other Public Servant
What if summons served are failed?

When the person to be summoned cannot be found even by due diligence, then the summons
can be delivered to any adult male member who is residing with that person

How to send a summon to a person residing outside the jurisdiction of the court?

When a Court has to serve the summons at any place outside its local jurisdiction, it shall
send such summons in duplicate to a Magistrate within whose local jurisdiction the person
summoned resides.

Can a warrant be issued in addition to the summon?

A court may issue a warrant on 2 grounds –

 If the court believes, before or after issuing the summons, that the person summoned
will not oblige by the summons.
 The person summoned fails to appear, even when there is proof that the summons was
duly served and that person fails to give a reasonable excuse.
==
Report No. 54

Chapter 2

Frame of The Suit

Introductory

2.1. Order 2 deals with the frame of the suit; and the dominant rule here is that as far
as practicable, every suit shall be so framed as to afford ground for final decision
upon the subjects in dispute and to prevent further litigation concerning them. With
this end in view, the Code provides that every suit shall include the whole of the
claim which the plaintiff is entitled to make in respect of the cause of action, and
similarly, he must claim all the reliefs which he is entitled to, in respect of the same
cause of action.

2.2. As has been observed:1

"Were the rule is otherwise, a man might be sued, repeatedly in respect of the same
matter, and conflicting judgments might be pronounced regarding separate portions
of the same property, included in the same cause of action.

And as the value of the property claimed by the plaint determines the class of judges
by which a suit is cognizable and the remedies of the parties in an appeal, a suit
might be split up, so that each branch of it should be decided by a judge of a lower
class than that by which, with reference to the value of the whole property in
litigation, it ought to be decided, and the right of the parties to appeal would be
unfairly limited".

1. W. Macpherson New Civil Procedure for British India, (1871), p. 54, citing 2 Suth
148.

2.3. The Code also encourages the plaintiff to unite, in the same suit, several causes
of action against the same defendant jointly,-the object here again also being to
avoid numerous proceedings. Of course, where there are several defendants or
plaintiffs, and several causes of action, and one or more of the plaintiffs or
defendants are not interested in one or more of the causes of action, the nice
question of "multifariousness" arises. The Code expressly provides that objections
on the grounds of mis-joinder of causes of action must be taken at the earliest
possible stage.

We do not recommend any changes in this Order. Order 2, rule 2 and Execution
Proceedings

2.4. Since the provisions of Order 2, rule 2 do not apply to execution proceedings, it

has been held1 that an application to enforce one relief will not be a bar to a
subsequent application to enforce the other relief, though both the reliefs were
awarded by one and the same decree.2 We do not think that a specific provision is
necessary in this respect.
 Jurisdiction of Civil Courts Under Code of Civil Procedure

Table of Contents
 Introduction
 Meaning of jurisdiction
 Lack of jurisdiction and irregular exercise of jurisdiction
 The basis to determine jurisdiction
 Courts and Tribunals
 Jurisdiction of foreign courts
 Kinds of jurisdiction
o Territorial or local jurisdiction
o Pecuniary jurisdiction
o Jurisdiction as to the subject matter
o Original and appellate jurisdiction
o Exclusive and concurrent jurisdiction
o General and special jurisdiction
o Legal and equitable jurisdiction
 Expounding and expanding jurisdiction
 Jurisdiction of civil court
o Section 9 of CPC
o Conditions
o i) The suit of civil nature
 Meaning
 Nature and scope
 Explanation of doctrine
 Test
o ii) Cognizance not barred
 Suits expressly barred
 Suits impliedly barred
o Presumption as to jurisdiction
o Burden of proof
 Exclusion of jurisdiction: Limitations
 Principles of exclusion of jurisdiction of civil court
o Dhulabhai v. state of MP
o Premier automobiles v. K.D Wadke
o Rajasthan SRTC v. Krishna Kant
 Conclusion 
 Reference
Introduction
Jurisdiction has not been explained in the Code of Civil Procedure. In
simple words, it can be described as the power of the court to settle the
matter. The Indian Judiciary has invoked the ancient legal maxim ‘Ubi jus
Ibi Remedium’, which means that where there is a right there is a
remedy. The judicial forum must have jurisdiction to deal with the matter.
Hence, the Jurisdiction commonly rests where the crime is committed.

Meaning of jurisdiction
Jurisdiction is defined as the limit of judicial authority or extent to which a
court of law can exercise its authority over suits, cases, appeals etc. A
1921 Calcutta High Court judgement in the case of Hriday Nath Roy Vs
Ram Chandra sought to explain the meaning of the term ‘Jurisdiction’ in
detail. An investigation of the cases in the texts shows several attempts
to explain the word Jurisdiction which has been declared to be the power
to hear and determine the issues of law and the fact or the authority by
which their judicial powers take knowledge of facts and decide causes or
the authority to hear and decide the legal dispute or the power to hear
and determine the subject matter in the dispute among the parties to a
suit and to adjudicate or exercise any judicial power over them or the
ability to hear, determine and declare judgement on issues before the
court or the power or authority which is given to a court by government
to understand and learn causes between parties and to give a judgement
into the effect or the power to enquire into the facts to apply the law to
pronounce the Judgement and put it into execution.

Lack of jurisdiction and irregular exercise of jurisdiction

Whenever the suit is made before the court the initial issue is to decide
whether the court has jurisdiction to deal with the matter. If the court has
all the three territorial, pecuniary or subject matter jurisdiction then
simply the court has the power to deal with any of the cases. If the court
does not have any of the jurisdiction then it will be recognised as lack of
jurisdiction and irregular exercise of jurisdiction. When the court does not
have jurisdiction to decide the case then such decision will be regarded as
void or voidable depending upon the circumstances.   

The basis to determine jurisdiction

Jurisdiction is determined mainly on the grounds of:

1. Fiscal value;
 2. Geographical boundaries of a court;
3. The subject matter of court.
So, the Court, before accepting notice of crime, need to take into
consideration the following characteristics:

 The Fiscal value of the trial.

 The specialities of the case.
 The regional limits of the court.
It is not only suitable that panel should have any right to deal with the
issue or that the court has a pecuniary jurisdiction of the court has a local
jurisdiction, but the court must be able to grant the compensation in such
matter. In the case of Official Trustee Vs Sachin Nath, the court held that
in order to deal with the topic the court must not be the only jurisdiction
to decide a specific matter but also the court has the ability to give the
order for which it is examined.

Courts and Tribunals

Basis for
Tribunal Court
comparison 

Tribunal can be defined as

Courts refer to the part of a legal system which is
minor courts that resolve
Meaning organised to give their judgement on civil and criminal
conflicts arising in special
cases.
cases.

Decision Official payment Acquittal, judgement, Decree, conviction.

Deals with Particular cases  Different types of cases 

Chairperson and other

Headed by Judges or panel of judges or magistrate
judicial members.

Jurisdiction of foreign courts

A foreign court is described as a court outside India and not authorised or
continued by the authority of the Central Government, and a foreign
judgement means a judgement of a foreign court. In other words, a
foreign judgement means an adjudication by a foreign court upon a
matter before it. The following conditions would give power to the foreign
courts to adjudicate a matter presented before it:
 1. When the person is a subject of a foreign country in which the
judgement has been obtained.
2. If he was a resident of a foreign country when the action was
commenced and the summons was served on him.
3. When the person is in the character of plaintiff chooses the
foreign court as the forum for taking action in which forum he
issued later.
4. When the party on summons voluntarily appeared.
5. When through an agreement, a person has agreed to present
himself to the forum in which the judgement is obtained.

Kinds of jurisdiction

Territorial or local jurisdiction

Under this territorial or local jurisdiction, the geographical limits of a

court’s authority are clearly delineated and specified. It cannot exercise
authority beyond that geographical/ territorial limit. For example, if a
certain crime is committed in Madhya Pradesh, only the courts of law
within the borders of Madhya Pradesh can hear and decide the case.
Furthermore, Section 16 of the Code of Civil Procedure explains the
territorial jurisdiction on the grounds of the location of the immovable
property. In the case of Harshad Chiman Lal Modi Vs D.L.F Universal Ltd  ,
the court interpreted Section 16 that the suit pertaining to immovable
property should be brought to the court. The court does not have the
power to decide the rights of property which are not situated. However,
the court can still pass a relief if the opposite party agrees to try the suit
in such a case.

Pecuniary jurisdiction

Pecuniary means ‘related to capital.’ It approaches the question of

whether the court is competent to try the case of the financial value. The
code allows analysing the case unless the suit’s value exceeds the
financial limit of the court. Section 15 of the Code of Civil Procedure
commands the organisation of the suit in the court of the low grade. It
refers to pecuniary jurisdiction of Civil court. It is a course of the method
and it does not affect the jurisdiction of the court. The main objective of
establishing pecuniary jurisdiction is to prevent the court of a higher level
from getting burdened and to provide assistance to the parties. However,
the court shall interfere if it finds the judgment to be wrong. For example,
’A ’wants to accuse ‘B’ due to a violation of the contract to obtain Rs 5000
in Bombay. The Bombay High Court has original jurisdiction and small
causes court with the jurisdiction up to Rs 50000. So, a suit to obtain Rs
5000 should ideally be dealt with small causes court. In the case of Karan
Singh Vs Chaman Paswan the plaintiff filed a suit in the subordinate court
involving an amount of  Rs 2950, but the court rejected the case. Later
his next appeal was allowed by the High Court, but it ordered him to pay
the deficit amount. The appellant contested that the decision of the
district court will be a nullity, but the High Court dismissed the claim.
Later the Supreme Court confirmed the decision of the High Court
declaring that the decision of district court won’t be void.

Jurisdiction as to the subject matter

The subject matter can be defined as the authority vested in a court to

understand and try cases concerning a special type of subject matter. In
other words, it means that some courts are banned from hearing cases of
a certain nature. No question of choices can be decided by the court
which do not have subject matter jurisdiction. Section 21 of the Code of
Civil Procedure is related to the stage challenging the jurisdiction. For
Example, “Ranveer”, a resident of Sonipat bought a food item of ‘AA’
brand that was plagued with pests. He should prosecute ‘ZZ’ company in
Sonipat District forum rather than District Civil Court of Sonipat.

Original and appellate jurisdiction

Appellate jurisdiction refers to the court’s authority to review or rehearsal

the cases that have been already decided in the lower courts. In the
Indian circumstances, both the High Court and Supreme Court have the
appellate jurisdiction to take the subjects that are bought in the form of
appeals.

Original Jurisdiction refers to the court’s authority to take notice of cases

that could be decided in these courts in the first instance itself. Unlike
appellate jurisdiction wherein courts review the previously decided
matter, here the cases are heard afresh.

Exclusive and concurrent jurisdiction

In Civil Procedure, exclusive jurisdiction means where a single court has

the authority to decide a case to the rejection of all the courts. This
jurisdiction is decided on the basis of the subject matter dealt with by a
specific court. For example, the U.S District courts have particular
jurisdiction on insolvency topics.

Concurrent jurisdiction exists where two or more courts from different

systems simultaneously have jurisdiction over a particular case. In this
situation, parties will try to have their civil or criminal case heard in the
court that they perceive will be most favourable to them.

General and special jurisdiction

General jurisdiction means that general courts do not limit themselves to

hearing only one type of cases. This type of jurisdiction means that a
court has the power to hear all types of cases. So the court that has
general jurisdiction can hear criminal, civil, family court case and much
more.

Specific jurisdiction is the ability of the court to hear a lawsuit in a state

other than the defendant’s home state if that defendant has minimum
contacts within the state where the suit will be tried.

Legal and equitable jurisdiction

Equitable jurisdiction belongs to the authorities of the courts to take

specific actions and pass some orders in order to deliver an equitable and
reasonable outcome. These judgments are usually outside the purview of
law, in the sense that support provided by the courts may not be
necessarily confirmed by the statue. In the case of K.K.Velusamy Vs
N.Palanisamy, the Supreme Court of India held that Section 151 does not
give any special jurisdiction to civil courts, but only presents for the
application of discretionary power to achieve the ends of justice. This
suggests that the court cannot give any such order which may be denied
under any law in such an order that may be prohibited under any law in
order to achieve the ends of justice. This would lead to the conclusion
that such equitable jurisdiction is secondary to the authority of the courts
to implement the law.

Expounding and expanding jurisdiction

Expounding jurisdiction means to describe, clarify and explain jurisdiction.
Expanding jurisdiction means to develop, expand or prolong jurisdiction.
It is the duty of the court to clarify its jurisdiction and it is not proper for
the court to extend its jurisdiction.
Jurisdiction of civil court

Section 9 of CPC

Section 9 of the Code of Civil procedure deals with the jurisdiction of civil
courts in India. It declares that the court shall have jurisdiction to try all
lawsuits of civil nature accepting suits of which their cognizance is either
expressly or impliedly barred.

Conditions

A Civil court has jurisdiction to decide a suit if two requirements are

fulfilled:

1. The suit must be of a civil nature.

2. The cognizance of such a suit should not have been expressly or
impliedly barred.

i) The suit of civil nature

Meaning

‘Civil Suit’ has not been explained in any act. Any suit that is not criminal
in nature can be termed as a suit of a civil nature. Any suit that pertains
to determination and implementation of civil rights may be defined as a
civil suit. In the case of Kehar Singh Nihal Singh Vs Custodian General,
the court elaborated the concept of Civil proceeding. It was defined as a
grant of private rights to individuals or corporations of society. The
objective of the action is the reward or recovery of private rights. In other
words, the civil action may be described as the proceeding between two
parties for implementation or redressal of private rights. 

Nature and scope

The expression ‘suit of civil nature’ will cover the private rights and
obligations of the citizens. The political and religious question is not
covered by a suit of a civil nature. A suit in which principal question is
related to caste or religion is not of a suit of a civil nature. But if the main
question in a suit of civil nature involves the decision relating to caste
question or to religious rites and ceremonies it does not terminate to be a
suit of a civil nature. The court has jurisdiction to decide those questions
also, in order to decide the important question which is of civil nature.

Explanation of doctrine

Each phrase and description assigns a duty on the court to apply

jurisdiction for the accomplishment of rights. No court can decline to
examine if it is of the information mentioned in Section 9 of the Code of
Civil Procedure. The word civil according to the dictionary suggests,
associating to a citizen as an individual. The word nature has been called
the primary qualities of a person or thing. The word civil nature is
prevalent than the word civil proceeding. The doctrine described the
theory of the jurisdiction of civil courts under section 9 of the Code of Civil
Procedure in PMA Metropolitan Vs M.M. Marthoma  the Supreme Court
observed that:

 The phrases used in section 9 has a positive and negative intent.

 The original part has a broader sense as it includes all the
problems of civil nature; on the other hand, the latter part has a
wider sense as it refuses the topic which is impliedly or expressly
barred.
 The two reasons mentioned in Section 9 reveals the legislative
purposes.
 It designated duty on the court to perform the jurisdiction for the
implementation of private rights
 No court has the benefit to refuse the matter which introduces
under this section
 It is necessary to take the knowledge of matter because the word
“shall” is used, which means that it is a compulsory section.
In the case of  Shankar Narayanan Potti vs K. Sreedevi, the Supreme
Court held that the ‘Civil Court has primary jurisdiction in all types of civil
matters as per Section 9 of CPC unless the action is expressly or impliedly
barred.” This means that Legislature can defeat the jurisdiction of the civil
court by adding a provision or clause in any Act itself. In the case of Shri
Panch Nagar Park vs Purushottam Das it was held that if there are no
specific terms in any statute the court needs to look into design, plan and
suitable provisions of the Act in order to find implied dismissal of the
jurisdiction of a civil court.
Test

A suit in which the right to property or to an office is struck is a suit of a

civil nature, notwithstanding that such right may depend only on the
choice of a question as to religious rituals or ceremonies.

ii) Cognizance not barred

A claimant having a complaint of a civil nature has the power to begin a

civil suit unless its cognizance is barred, either expressly or impliedly.

Suits expressly barred

A suit is said to expressly barred when it is prohibited by the statute for

the time being in force. It is subject to the competent legislature to bar
the jurisdiction of civil courts with regard to a specific class of suits of civil
nature, provided that, in doing so it retains itself within the scope of
legislation given to it and does not contradict any terms of the
constitution.

Suits impliedly barred

A suit is said to be impliedly barred when it is said to be excluded by

general principles of law. When a specific remedy is given by statute, it,
therefore, denies a person who requires a remedy of any different form
than is given by statute. When an act formed an obligation and made its
performance in a specified manner that performance cannot be
implemented in any other manner.

Presumption as to jurisdiction

In dealing with the subject whether a civil court’s jurisdiction to analyse a

suit is barred or not, it is necessary to bear in mind that every opinion
should be made in support of the jurisdiction of a civil court. The rejection
of the jurisdiction of a civil court to entertain civil causes should not be
easily inferred unless the appropriate law contains express terms to that
effect or points to a significant and inevitable implication of nature.
Burden of proof

It is well proved that it is for the party who tries to dismiss the jurisdiction
of the civil court to establish it. It is uniformly well established that the
statue dismissing the jurisdiction of a civil court must be strictly
explained. In the case of doubt as to jurisdiction, the court should lean
towards the theory of jurisdiction. A civil court has original authority to
determine the issue of its own jurisdiction although as a consequence of
such query it may become that it has no jurisdiction to consider the suit.

Exclusion of jurisdiction: Limitations

The common assumption is that the civil court has the jurisdiction to try
the case. The prosecution has a case of a civil nature has, independent of
any statute, a power to initiate a suit in a civil court unless its notice is
expressly or impliedly barred yet it cannot be said that the jurisdiction is
entirely eliminated. In the case of Secretary of State Vs Mask & Co , the
Privy Council rightly mentioned that it is established law that the
exclusion of jurisdiction of the civil court is not to be readily inferred but
that such prohibition is either impliedly barred or explicitly expressed. It is
also established that civil court has jurisdiction to examine into the cases
which have not complied with fundamental principles of judicial
procedure. In the case of State of A.P. Vs Majeti Laxmi Kanth Rao, the
apex court has analysed to decide the elimination of jurisdiction of the
Civil Courts. Firstly, the legislative intent to remove the suit is to be
decided. It could be either directly or implicitly. The court needs to find
and deduce the causes for the exclusion of the Civil courts and the
explanation for it but the reason is not directed for judicial examination.
After the court is convinced with the grounds, the court must find out
whether the statute that prohibits the jurisdiction grants for an alternative
remedy. In case there is no alternative remedy possible, the civil court’s
jurisdiction cannot be eliminated. But it was ruled in Balawwa v.
Hasanabi, Civil court’s jurisdiction is terminated with regard to a tribunal
established by a statute only to the extent that the support granted by
the tribunal in question. In this aspect, the Allahabad High court in
various judgements has held that the suit is decreased from the
jurisdiction of civil courts of the knowledge of the complete suit is
forbidden. It means that for some suits wherein some parts are not
decided by the civil court because of implied or express prohibition, it
does not mean that the entire suit will be prohibited. As the additional
points of law are exceeding the purview of the tribunal or even if it is
within its scope of the particular tribunal regulated under the act, civil
court’s jurisdiction is not restrained as it could still pass judgement as it
still has the original jurisdiction to consider the suits. The situation
remains obscure whether the appropriate tribunals under the act can give
the order with regard to the part of the trial wherein the jurisdiction of the
civil court is obstructed.

Principles of exclusion of jurisdiction of civil court

Dhulabhai v. state of MP

Hidyatullah summarized the following principles relating to exclusion of

jurisdiction of civil courts:

1. When a statute provides finality to the orders of particular

tribunals, the civil court jurisdiction must be kept to be
prohibited. Such a provision does not eliminate those cases
where the terms of the act have not complied with fundamental
laws of judicial method.
2. When there is an express bar of jurisdiction of the court, an
examination of a scheme of a particular act to find the adequacy
or sufficiency of remedies provided may be important but this is
not crucial for maintaining the jurisdiction of a civil court 
3. It examines the terms of a specific act as ultra vires cannot be
brought before tribunals constituted under the act. Even the High
Court cannot go for revision or reference from the decision of the
tribunal.
4. When the terms are already stated illegal or declared the
constitutionality of any terms is to be challenged, then a suit is
open. A writ of certiorari may introduce a direction to refund but
it is not a necessary remedy to compensate a suit.
5. When the particular Act includes no method for a return of tax
collected in excess of constitutional goals, a suit lies.
6. Prohibition of the jurisdiction of a civil court is not ready to be
inferred unless the conditions above set down apply. 

Premier automobiles v. K.D Wadke

The Supreme Court laid down the following principles as relevant to the
jurisdiction of civil courts in association with industrial disputes:

1. If a conflict is not an industrial conflict, nor does it correlate to

the enforcement of any other right under the industrial dispute
act, the remedy lies only in civil court.
 2. If a conflict is an industrial conflict emerging out of a right or
liability under the general or public law, the jurisdiction of the
court is an alternative left to the person involved to decide his
remedy for the support which is sufficient to be given in a
particular remedy.
3. If an industrial dispute relates to the implementation of the right
or a duty organised under the act, then the only remedy available
is to get adjudication under the act.

Rajasthan SRTC v. Krishna Kant

The Supreme court summarized the following principles applicable to

industrial disputes:

1. When the conflict originates from the common law of contract, a

suit registered in civil court is not maintainable even though such
conflict establish industrial dispute within the definition of Section
2(k) of Industrial Disputes Act, 1947.
2. When a dispute involves the recognition or enforcement of rights
created by an enactment which is called sister enactments and
do not provide a forum for the resolution of such dispute, the
only remedy is to approach the forum created, provided they
constitute industrial dispute within Section 2(k) of Industrial
Disputes Act, 1947.
3. It is not right to say that the assistance provided by Industrial
dispute act are not equally useful for the ground that entrance to
forum depends upon a recommendation being made by the
relevant government.
4. The power given is the power to suggest and not the power to
decide, though it may be that the government is allowed to
examine.
5. It is consistent with the policy of law aforesaid i.e command to
parliament and state legislature to declare a provision allowing a
workman to address the labour court- i.e., without the need of a
recommendation by the government in case of industrial dispute
included by Section 2-A of the Industrial Disputes Act.

Conclusion 
Civil court has jurisdiction to investigate whether tribunal and quasi-
judicial bodies or legal executive acted within their jurisdiction. It can be
presumed that section 9 essentially deals with the issue of the civil court’s
jurisdiction to consider a matter. Civil court has jurisdiction to consider a
suit of civil nature except when it’s notification is expressly barred or
bared by significant suggestion. Civil court has jurisdiction to resolve the
problem of its jurisdiction.

Civil Law in India is governed by the Code of Civil Procedure. The pleadings are
the statement of facts � in the written form submitted to the Court, and it
ordinarily means plaint, written statement, replication, or rejoinder.

The person who approaches the court through filing plaint is called the plaintiff
and the one who defends the trial is called the defendant. The defendant has an
opportunity to file a cross case in the same trial with a distinct claim other than
the one which is sought by the Plaintiff.

The procedural law is intended to aid the administration of substantive justice,

and not to block it. The provisions governing pleading in civil cases are intended
to provide each party with notice of the other's case in order to meet it, to
enable courts to ascertain what is truly at stake between parties and to prohibit
departures from the course that litigation on certain causes of action must take.

What Are Aims And Objectives Of The Pleadings?

The provisions related to pleadings in a Civil Suit are enumerated in Order VI, VII
& VIII, Code of Civil Procedure, 1908. The aims and objectives are:

1. The pleadings aim to establish the precise issues of contention between

the parties in a lawsuit;
2. The pleadings provide an adequate notice/intimation of the case to the
opposing party, allowing one to reply to the contentions, and present the
evidence relevant to the disclosed subject;
3. The pleadings allow courts to ascertain the true nature of the dispute
between parties and to avert departures from the path that litigation on
specific causes of action must pursue;
4. A structure in a trial is formulated through the pleadings and it becomes
the foundation of the Civil Suit.

When Can Plaint Be Filed And Its Ingredients?

The citizens have legal rights or obligations, i.e. the rights or obligations
conferred by law on citizens. These rights could be legal or individual rights and
are enforceable through the medium of the Court under Civil Law by instituting
a suit. All of these rights are enforced on behalf of the citizen, individual, or
group. A suit is filed by charging that the legal rights of the plaintiff have been
violated and all of these allegations, when given in the appropriate form, are
referred to be a plaint in a civil suit.

The party must provide a legal statement in the prescribed format. Institution of
the Suit through filing the plaint sets in motion for a Civil Trial. The Civil Suit has
to be filed on a valid cause of action. The term 'cause of action' refers to the
reason for the legal action, the set of facts that led to the legal action, the
circumstances that led to the legal action, or the event that led to the legal
action.

The key features of a plant to be kept in mind while drafting a plaint:

 The purpose of a Plaint is to state material facts, not to produce evidence.

The material facts must be related to a valid cause of Action. However, the
important documents can be attached to the Plaint in a prescribed
manner;
 The plaint is governed by Order VI (Pleadings in general) & Order VII
(Plaint), Code of Civil Procedure, 1908;
 Law is not to be stated in the plaint, ordinarily;
 Each point, whenever necessary, shall be divided into paragraphs and
consecutively numbered, with each allegation presented in a distinct
paragraph;
 In all cases where the party relies on any misrepresentation, fraud, breach
of trust, wilful default, or undue influence, shall be stated in the Plaint
 The circumstances giving rise to the cause of action and the date on which
they occurred have to be mentioned;
 Facts establishing the Court's jurisdiction;
 The plaint shall have remedies sought by the plaintiff;
 In the case of set-off or relinquishment of a portion of the plaintiff's claim,
the amount of the set-off or relinquishment;
 Statement of the Suit's value for the purposes of jurisdiction and court
fees, to the extent that the case permits;
 If a party who has obtained an order for leave to amend does not amend
accordingly within the time-limited prescribed, he shall not be permitted
to amend after the expiration of such limited time, unless the time is
extended by the Court; 
 Trial Court under Order VI Rule 17 may at any stage of the proceedings
allow either party to alter or amend his pleadings for the purpose of
determining the real questions in controversy between the parties;
  The plaint shall have a statement to the effect that the plaintiff or
defendant is a minor or a person of unsound mind;
 Any condition precedent, the performance or occurrence of which is
intended to be contested, shall be distinctly specified in his pleading by
the plaintiff;
 No pleading shall, except by way of amendment, raise any new ground of
claim or contain any allegation of fact inconsistent with the previous
pleadings;
 Every pleading shall be signed and verified at the foot by the party and/or
its pleader (if any).

Who Can File A Written Statement And Its Description?

A written statement is a response to the plaintiff's claim in the plaint and the
defendant files it under the legal obligation. Non-appearance to the Court's
notice or not filing a written statement at all can result in ex-parte order against
the defendant.

 Written Statement is governed by Order VI (Pleadings in general) & Order

VIII (Written Statement), Code of Civil Procedure, 1908;
 
 It is the defendant's specific admission of the plaintiff's claim or specific
denial of the plaintiff's claims or averments in his plaint;
 
 The important documents can be attached to the Written Statement in a
prescribed manner;
 
 The defendant must raise in his pleading all issues that demonstrate the
suit is not maintainable or that the transaction is void or voidable in law,
as well as all grounds of defense that, if not raised, are likely to surprise
the opposing party or raise issues of fact unrelated to the plaint, such as
fraud, limitation, release, payment, performance, or facts establishing
illegality;
 
 It is not sufficient for a defendant to deny generally the grounds
mentioned by the plaintiff in his written statement; the defendant must
address each factual accusation to which he does not concede the truth,
except for damages;

When a defendant denies a factual accusation in the plaint, he must do it

directly, not evasively. Thus, if it is alleged that he received a certain sum of
money, denying that he received that total or any portion thereof is not
sufficient; he must also set forth how much he received. And if an allegation is
made based on a variety of circumstances, denying it only on the basis of those
facts is insufficient.

 Except in the case of a person with a disability, every factual allegation in

the plaint shall be presumed to be admitted unless expressly or impliedly
disputed or indicated to be not admitted in the defendant's pleading;
 
 Specific detail of the set-off must be included in a written statement.
Where the defendant relies on several distinct grounds of defense or set-
off or counter-claim, based on separate and distinct facts, they shall be
presented separately and distinctly, to the extent possible;
 
 Any defense that has arisen subsequent to the institution of the suit or
the production of a written statement claiming set-off or counter-claim
may be raised in the written statement by the defendant;
 
 No pleading subsequent to a defendant's written statement shall be
presented except with the Court's permission and on such terms as the
Court deems appropriate; however, the Court sets a time limit of not
more than thirty days for presenting the same;
 
 Pursuant to Order VIII, Rule 1, or Rule 9 within the time permitted or fixed
by the Court, as the case may be, the Court shall pronounce judgment
against him or make such order in relation to the suit as it deems fit, and
upon the pronouncement of such judgment, a decree shall be drawn up; 
 
 Written Statement shall have a statement to the effect that if the
defendant is a minor or a person of unsound mind appropriate
representation of the Defendant with the Court's permission;
 
 Written Statement shall be signed and verified at the foot by the party
and/or its pleader (if any);
 
 Any challenge to the cause of action, Court's jurisdiction, deficiency in the
court fees should be mentioned in the Written Statement;
 
 General standards of pleadings are to be followed in the Written
Statement.
 
Where To Add Preliminary Submissions In A Written Statement And Its Contents?
The preliminary submissions are limited to the accurate and proper facts
pertaining to the matter at hand that have been withheld or omitted by the
opposing party in the pleadings. The preliminary submissions/objections to the
Plaint in a Suit shall be mentioned in the beginning of the Written Statement
under the category 'preliminary submissions/objections'. While making such a
plea, it is critical to ensure that the legal provisions and/or their interpretation
are crystal clear and directly applicable to the issues of the Civil Suit. Under the
heading preliminary submissions and objections, the following points may be
considered:

 The claim is barred by Res Judicata;

 Any jurisdictional error;
 Any inaccurate fact contained in the plaint;
 The plant fails to disclose the valid cause of action
 Absolute bar of Limitation;
 Estoppel;
 Subjudice;
 Lis Pendens;
 

Other legal submissions.

The other defences that a defendant may raise in response to the Plaint:

 When a defendant categorically denies all of the claims included in the

plaint;
 Where the defendant concedes the allegations but strives to neutralize
them by affirmatively stating certain facts of his own;
 These objections are not meritorious and are limited to a legal matter.
These may be dilatory or conclusive pleas/pleas in bar;
 Pleas that delay a trial on its merits is the dilatory pleas.

How Can A Competent Civil Lawyer Help You?

The parties involved in the civil litigations are under a lot of stress due to long-
standing unresolved legal issues. At times, the parties are unable to take correct
decisions, especially, looking at the nuances involved in the complex code of civil
procedure and its interplay with the statutory laws like Hindu Laws, Indian
Contract Act, the Registration Act, the Indian Trusts Act, the Sale of Goods Act,
the Indian Partnership Act, and other relevant statutory laws.

The correct approach to alleviating this stress is to hire a competent civil lawyer
who can take a charge of the situation and make your case, a winning case with
the best of the probabilities. The best civil lawyers in Chandigarh can provide
you with expert guidance in the complex civil disputes along with the correct
remedi
Pleadings In Civil Disputes
By Thelawcodes | Views 8003
  1    0    0   Blogger0   pocket0   Digg0
Civil Law in India is governed by the Code of Civil Procedure. The pleadings are
the statement of facts � in the written form submitted to the Court, and it
ordinarily means plaint, written statement, replication, or rejoinder.

The person who approaches the court through filing plaint is called the plaintiff
and the one who defends the trial is called the defendant. The defendant has an
opportunity to file a cross case in the same trial with a distinct claim other than
the one which is sought by the Plaintiff.

The procedural law is intended to aid the administration of substantive justice,

and not to block it. The provisions governing pleading in civil cases are intended
to provide each party with notice of the other's case in order to meet it, to
enable courts to ascertain what is truly at stake between parties and to prohibit
departures from the course that litigation on certain causes of action must take.

What Are Aims And Objectives Of The Pleadings?

The provisions related to pleadings in a Civil Suit are enumerated in Order VI, VII
& VIII, Code of Civil Procedure, 1908. The aims and objectives are:

1. The pleadings aim to establish the precise issues of contention between

the parties in a lawsuit;
2. The pleadings provide an adequate notice/intimation of the case to the
opposing party, allowing one to reply to the contentions, and present the
evidence relevant to the disclosed subject;
3. The pleadings allow courts to ascertain the true nature of the dispute
between parties and to avert departures from the path that litigation on
specific causes of action must pursue;
4. A structure in a trial is formulated through the pleadings and it becomes
the foundation of the Civil Suit.

When Can Plaint Be Filed And Its Ingredients?

The citizens have legal rights or obligations, i.e. the rights or obligations
conferred by law on citizens. These rights could be legal or individual rights and
are enforceable through the medium of the Court under Civil Law by instituting
a suit. All of these rights are enforced on behalf of the citizen, individual, or
group. A suit is filed by charging that the legal rights of the plaintiff have been
violated and all of these allegations, when given in the appropriate form, are
referred to be a plaint in a civil suit.

The party must provide a legal statement in the prescribed format. Institution of
the Suit through filing the plaint sets in motion for a Civil Trial. The Civil Suit has
to be filed on a valid cause of action. The term 'cause of action' refers to the
reason for the legal action, the set of facts that led to the legal action, the
circumstances that led to the legal action, or the event that led to the legal
action.

The key features of a plant to be kept in mind while drafting a plaint:

 The purpose of a Plaint is to state material facts, not to produce evidence.

The material facts must be related to a valid cause of Action. However, the
important documents can be attached to the Plaint in a prescribed
manner;
 The plaint is governed by Order VI (Pleadings in general) & Order VII
(Plaint), Code of Civil Procedure, 1908;
 Law is not to be stated in the plaint, ordinarily;
 Each point, whenever necessary, shall be divided into paragraphs and
consecutively numbered, with each allegation presented in a distinct
paragraph;
 In all cases where the party relies on any misrepresentation, fraud, breach
of trust, wilful default, or undue influence, shall be stated in the Plaint
 The circumstances giving rise to the cause of action and the date on which
they occurred have to be mentioned;
 Facts establishing the Court's jurisdiction;
 The plaint shall have remedies sought by the plaintiff;
 In the case of set-off or relinquishment of a portion of the plaintiff's claim,
the amount of the set-off or relinquishment;
 Statement of the Suit's value for the purposes of jurisdiction and court
fees, to the extent that the case permits;
 If a party who has obtained an order for leave to amend does not amend
accordingly within the time-limited prescribed, he shall not be permitted
to amend after the expiration of such limited time, unless the time is
extended by the Court; 
 Trial Court under Order VI Rule 17 may at any stage of the proceedings
allow either party to alter or amend his pleadings for the purpose of
determining the real questions in controversy between the parties;
  The plaint shall have a statement to the effect that the plaintiff or
defendant is a minor or a person of unsound mind;
 Any condition precedent, the performance or occurrence of which is
intended to be contested, shall be distinctly specified in his pleading by
the plaintiff;
 No pleading shall, except by way of amendment, raise any new ground of
claim or contain any allegation of fact inconsistent with the previous
pleadings;
 Every pleading shall be signed and verified at the foot by the party and/or
its pleader (if any).

Who Can File A Written Statement And Its Description?

A written statement is a response to the plaintiff's claim in the plaint and the
defendant files it under the legal obligation. Non-appearance to the Court's
notice or not filing a written statement at all can result in ex-parte order against
the defendant.

 Written Statement is governed by Order VI (Pleadings in general) & Order

VIII (Written Statement), Code of Civil Procedure, 1908;
 
 It is the defendant's specific admission of the plaintiff's claim or specific
denial of the plaintiff's claims or averments in his plaint;
 
 The important documents can be attached to the Written Statement in a
prescribed manner;
 
 The defendant must raise in his pleading all issues that demonstrate the
suit is not maintainable or that the transaction is void or voidable in law,
as well as all grounds of defense that, if not raised, are likely to surprise
the opposing party or raise issues of fact unrelated to the plaint, such as
fraud, limitation, release, payment, performance, or facts establishing
illegality;
 
 It is not sufficient for a defendant to deny generally the grounds
mentioned by the plaintiff in his written statement; the defendant must
address each factual accusation to which he does not concede the truth,
except for damages;

When a defendant denies a factual accusation in the plaint, he must do it

directly, not evasively. Thus, if it is alleged that he received a certain sum of
money, denying that he received that total or any portion thereof is not
sufficient; he must also set forth how much he received. And if an allegation is
made based on a variety of circumstances, denying it only on the basis of those
facts is insufficient.

 Except in the case of a person with a disability, every factual allegation in

the plaint shall be presumed to be admitted unless expressly or impliedly
disputed or indicated to be not admitted in the defendant's pleading;
 
 Specific detail of the set-off must be included in a written statement.
Where the defendant relies on several distinct grounds of defense or set-
off or counter-claim, based on separate and distinct facts, they shall be
presented separately and distinctly, to the extent possible;
 
 Any defense that has arisen subsequent to the institution of the suit or
the production of a written statement claiming set-off or counter-claim
may be raised in the written statement by the defendant;
 
 No pleading subsequent to a defendant's written statement shall be
presented except with the Court's permission and on such terms as the
Court deems appropriate; however, the Court sets a time limit of not
more than thirty days for presenting the same;
 
 Pursuant to Order VIII, Rule 1, or Rule 9 within the time permitted or fixed
by the Court, as the case may be, the Court shall pronounce judgment
against him or make such order in relation to the suit as it deems fit, and
upon the pronouncement of such judgment, a decree shall be drawn up; 
 
 Written Statement shall have a statement to the effect that if the
defendant is a minor or a person of unsound mind appropriate
representation of the Defendant with the Court's permission;
 
 Written Statement shall be signed and verified at the foot by the party
and/or its pleader (if any);
 
 Any challenge to the cause of action, Court's jurisdiction, deficiency in the
court fees should be mentioned in the Written Statement;
 
 General standards of pleadings are to be followed in the Written
Statement.
 
Where To Add Preliminary Submissions In A Written Statement And Its Contents?
The preliminary submissions are limited to the accurate and proper facts
pertaining to the matter at hand that have been withheld or omitted by the
opposing party in the pleadings. The preliminary submissions/objections to the
Plaint in a Suit shall be mentioned in the beginning of the Written Statement
under the category 'preliminary submissions/objections'. While making such a
plea, it is critical to ensure that the legal provisions and/or their interpretation
are crystal clear and directly applicable to the issues of the Civil Suit. Under the
heading preliminary submissions and objections, the following points may be
considered:

 The claim is barred by Res Judicata;

 Any jurisdictional error;
 Any inaccurate fact contained in the plaint;
 The plant fails to disclose the valid cause of action
 Absolute bar of Limitation;
 Estoppel;
 Subjudice;
 Lis Pendens;
 

Other legal submissions.

The other defences that a defendant may raise in response to the Plaint:

 When a defendant categorically denies all of the claims included in the

plaint;
 Where the defendant concedes the allegations but strives to neutralize
them by affirmatively stating certain facts of his own;
 These objections are not meritorious and are limited to a legal matter.
These may be dilatory or conclusive pleas/pleas in bar;
 Pleas that delay a trial on its merits is the dilatory pleas

34. Interest (1) Where and in so far as a decree is for the payment of money,  the
Court may, in the decree order interest to be paid on the principal sum
adjudged, from the date of the suit to the date of decree at a rate not exceeding
twelve percent.
34. Interest (1) Where and in so far as a decree is for the payment of money,  the
Court may, in the decree order interest to be paid on the principal sum
adjudged, from the date of the suit to the date of decree at a rate not exceeding
twelve percent.
What Are The Circumstances Where The Plaint Is Rejected And Returned?
November 23, 2020 by Law Corner
Table of Contents  hide 
1) WHAT IS PLAINT?
2) WHAT ARE THE RULES OF FILING A PLAINT?
2.1) Basic rules of pleadings:
2.1.1) 1. Pleadings should state facts and not law
2.1.2) 2. Facts should be material facts
2.1.3) 3. The pleading should not state the evidence
2.1.4) 4. The facts should be stated in brief.
3) THE PROVISIONS IN CIVIL PROCEDURE CODE THAT STATES THE ABOVE MENTIONED:
4) PARTICULARS TO BE CONTAINED IN A PLAINT:
5) GROUNDS FOR REJECTION OF PLAINT?
6) MODE OF REJECTION OF PLAINT:
7) ON WHAT GROUNDS A PLAINT CAN BE RETURENED?
8) REMEDIES ON RETURN OF PLAINT:
9) WHAT ARE THE DIFFERENCES BETWEEN RETURN AND REJACTION OF PLAINT?
WHAT IS PLAINT?

Order 6 rule 1 of Civil Procedure code, 1908 defines pleading to be a plaint or a written
statement. Pleadings form the basis of proceedings before the court of law.

Section 26 of the Civil Procedure Code states, that every suit that shall be instituted should
present the plaint first or any other documents as may be prescribed.

The Civil Procedure Code does not define plaint rather it has laid down certain rules in detail
about plaint in order 7 containing 18 rules. A short brief definition of plaint can be given as:

1. Plaint is a legal document.

2. It contains the written statement of the plaintiff’s claim.
3. It is also termed as a statement of claim.
4. It is the first and the primary step towards the institution of a suit.
5. Plaint has to be a complete document of all the facts of the case, the claim and the
relief that the plaintiff wants from the court.
WHAT ARE THE RULES OF FILING A PLAINT?

We can know about the basic rules of filing a plaint by knowing the rules on how to file a
pleading and a plaint:

Basic rules of pleadings:

1. Pleadings should state facts and not law.

2. Facts should be material facts.
3. The pleading should not state the evidence.
4. The facts should be stated in brief.
1. Pleadings should state facts and not law

“Plead facts not law.”

 i. The pleading should only contain facts and not law.
ii. The facts are to be mentioned on which the claim of the pleaders depend.
iii. Question of fact and intention shall be pleaded.
iv. Waiver and negligence shall be pleaded.
v. A point of law which is required to be helping the facts should be pleaded.

2. Facts should be material facts

“All the primary facts which must be proved at the trial by a party to establish the existence
of a cause of an action or his defense are material facts.”

i. Pleading should only contain material facts.

ii. Material facts are all the primary facts of the plaintiff’s cause of action or the
defendant’s defense.

3. The pleading should not state the evidence

“It is an elementary rule in the pleading that, when a state of facts is relied on, it is enough to
allege it simply, without setting out the subordinate facts which are the means of producing it,
or the evidence sustaining the allegation.”

i. The pleading should contain all the facts and not the evidence proving them.
ii. Pleadings should only contain “facta probanda” meaning, facts that required to be
proved and not “facta probantia” meaning, facts by means of which they are to be
proved.
iii. Fact in issue is to be mentioned in the pleadings.
1.
4. The facts should be stated in brief.

“If Care is taken in syntactic process, pleadings can be saved from tautology”

i. Material facts should b stated “precisely”, “succinctly “and “Coherently”

ii. Pleading should be brief but not vague as it gives the defendant a great
disadvantage.
iii. One should not exclude necessary facts while drafting pleadings.
iv. Every pleading should be divided in paragraphs and sub paragraphs.
v. Each allegation shall be contained in a separate paragraph.
vi. Dates and numbers should be mentioned in figures as well as words.
vii. Facts must be stated with certainty.
viii. All the material facts should be stated as a summary.
ix. Immaterial and unnecessary details shall be omitted.

THE PROVISIONS IN CIVIL PROCEDURE CODE THAT STATES THE ABOVE
MENTIONED:

Order 6 Rule 2 of Civil Procedure Code states that the pleading must only state material facts
and not evidence supporting the facts:

1. All the material facts that are present in the case shall be mentioned in the pleading
for the claim or defense of the party but the evidence proving the material facts
should not be mentioned.
2. Every pleadingas per the necessity and clarity be divided into paragraphs, numbered
consecutively, all the allegations for the convenience an understanding be divided in
to separate paragraphs.
3. The dates, sums and numbers shall be expressed in a pleading in figures as well as in
words.
4.
1.
Order 6 rule 4 states that, the particulars other than in Rule 2, should be mentioned in the
pleading wherever it is necessary.  Like in cases where the pleading relies upon the party’s
misrepresentation, fraud, breach of start trust, willful default or undue influence, it should be
mentioned in the pleading.

Order 6 rule 14 States that the pleading should be signed by the party or pleader who in the
absence of the party unable of signing the pleading, shall sign the same or sue or defend on
his behalf.

PARTICULARS TO BE CONTAINED IN A PLAINT:

Order 7 (rule 1 to 8) of the civil procedure code lays down certain particulars that should be
added or omitted for the constitution of a valid plaint:

RULE 1:

1. The name of the court where the suit is brought should be stated.
2. The name, description and place of residence of the plaintiff should be mentioned.
3. The name, description and place of residence of the defendant should be
mentioned.
4. If the plaintiff is a minor or a person of unsound mind, the same should be
mentioned.
5. The time and the cause of action should be mentioned.
6. The jurisdiction of the court shall be mentioned.
7. The relief that the plaintiff is claiming should be mentioned.
8. If the plaintiff has relinquished a portion of his claim, the same should be mentioned.
 9. The value of subject matter for the purpose of jurisdiction and court fees should be
mentioned.
10.
Rule 2:

1. In case of suit for recovery of money, the claimed amount should be mentioned.
2.  In case the case is about movable property or the debts of the defendant and the
amount could not be determined, then an approximate amount should be
mentioned.
Rule 3:

In case of suit for immovable property, a description of the property sufficient to identify it
should be mentioned.

Rule 5:

The interest and liability of the defendant in the subject matter of the suit should be
mentioned.

Rule 6:

If the suit is time-barred, the ground on the exemption of the law of limitation is claimed
should be mentioned.

GROUNDS FOR REJECTION OF PLAINT?

Grounds for rejection of plaint are:

1. If a plaint does not disclose the cause of action:

i. If the plaint filled by the plaintiff, doesn’t specify any cause of action, the court will
reject such a plaint, by only looking at the plaint.
ii. The court can reject plaint on this basis only if it reaches to the conclusion that after
all the allegation are set out, the plaintiff is not entitled to any relief.
iii. A plaint shall be rejected wholly if the case of action is not defined, it cannot be
rejected partly.
2. LOCUS STANDI:

i. The basis of filing a suit is locus standi.

 ii. The term means that one needs to show that some legitimate right of the individual
has been damaged, and such infringement has brought some damages to the
individual.
iii. If there is no locus standi then no suit can be brought, as it provides the grounds
which were abused which lead to the institution of suit.
3. Relief claim is undervalued:

When the relief claimed is undervalued and the valuation of the claim is not corrected or
extended by the court, the plaint will be rejected.

4. Insufficiently stamped:

i. Sometimes the relief claimed by the plaintiff is written on paper insufficiently

stamped and the plaintiff on failing to pay the court fees within the time fixed or
extended by the court, the plaint can be rejected.
i. If the plaintiff cannot pay the court fees, he may apply to continue the suit as an
indigent person.
5. Suit barred by law:

i. If the statements in the plaint show that the suit is barred by any law, the court will
reject the plaint.
i. If plaint itself shows that the claim is barred by limitation, the plaint can be rejected.
6. Plaint not in duplicate:

According to order 4 rule 1, every suit shall be instituted by presenting a plaint in duplicate.
If such a requirement is not fulfilled then the plaint can be rejected.

7. Non compliance with statutory provisions:

If the plaintiff fails to go according to the provision, the plaint shall be rejected.

8. Other grounds of rejection:

i. If a plaint is signed by a person not authorized by the plaintiff and it is not corrected
within the stipulated time, such a plaint can be rejected.
ii. Not showing the clear right to sue, a vague plaint can also be rejected.
MODE OF REJECTION OF PLAINT:

The plaint can be rejected by two methods:

1. The plaintiff can file an application at any stage of the suit for rejection of the plaint.
 2. The judge can at any stage of the suit reject the plaint if it doesn’t fulfill the
requirements and comes under nay rule of Order 7 of Code of Civil Procedure.
ON WHAT GROUNDS A PLAINT CAN BE RETURENED?

A plaint can be returned by the following provisions:

Order 7 rule 10(1): RETURN OF PLAINT

This order states that, a plaint can be returned by any court if the suit that is presented cannot
be tried in the filed court, due to lack of jurisdiction. Thus the court may return the plaint for
it to be presented in the proper court.

*Jurisdiction is of three types; Territorial jurisdiction, pecuniary jurisdiction and subject-

matter jurisdiction.*

Order 7 rule 10(2): PROCEDURE TO RETURN PLAINT

While returning the plaint, the court shall mention the following particulars in the plaint:

1. Date of return of Plaint.

2. Date of Presentation of Plaint.
3. Name of the party representing the Plaint.
4. Statement stating the reason for return of the Plaint.
Order 7 rule 10(A): POWER OF THE COURT TO FIX THE DATE OF APPEARANCE IN
THE REQUIRED COURT:

If the defendant has appeared in the court and the court is returning the plaint, the court shall
intimate its opinion to the plaintiff. When such an intimation is given to plaintiff, the plaintiff
shall with an application ask the court to:

1. Mention the court in which the suit shall be presented after the return.
2. Praying the court to fix a date for the appearance of parties in the said court
3. Requesting the notice of the date to be given to the defendant also.
After receiving the application the court shall:

1. Fix a date for the appearance of the parties in the court where the plaint is supposed
to be presented.
2. Give the plaintiff and the defendant notice to appear in the court.
When the notice of the date is given:
 1. It is not necessary for the court in which the plaint is returned to issue summon to
the defendant.
2. The notice given by the previous court mention date and appearance shall be taken
as summon.
3. After the application is given by the plaintiff on return of suit, the plaintiff cannot
then appeal against the court on returning the plaint.
4.
1.
REMEDIES ON RETURN OF PLAINT:

1. Plaintiff may file a new suit.

2. Plaintiff may amend the plaint.
3. Plaintiff may file an appeal. (Only first appeal can be filled against the order of
return.)
WHAT ARE THE DIFFERENCES BETWEEN RETURN AND REJACTION OF PLAINT?

Rejection of plaint Return of plaint

1. In this the rules of drafting

1. In this the jurisdiction of trying the suit is absent for the court.
and the construction of
The drafting of the plaint may be right.
plaint is mistaken.

1. Rejection of plaint can be

through application or Suo 2.  Return of plaint is always Suo Moto.
Moto.

1. In case of rejection of
2. In return of plaint second appeal is not allowed.
plaint second appeal can
be filled.

1. Order rejecting plaint

4. Order returning plaint is not a decree.
amounts to decree.

1. Revision on rejection of
5. In returning plaint revision can be filled.
plaint cannot be filled.

1. It is not exhausted in
6. It is exhausted in nature.
nature.

Appearance and Non-appearance of Parties in the Civil Suit

Table of Contents
 Introduction
 The appearance of parties to the suit
 Non-appearance of both parties to the suit
 The appearance of the plaintiff
 Appearance of defendant
o Do the same provision applies to the non-appearance of the plaintiff
due to death?
o Application to set aside the dismissal
 Sufficient cause
o When summon is not served
o Ex-parte Decree
 Remedies against an ex-parte decree
 Setting aside an ex-parte decree
 The grounds on which an ex-parte decree can be set aside are:
 Sufficient Cause
 Conclusion
 Reference

Introduction
Every proceeding as far as possible must be carried on in the presence of
parties as a general principle of law. Order IX of the Code of Civil
Procedure lays the laws regarding the appearance of parties and what
are the consequences of the non-appearance of parties.

The appearance of parties to the suit

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

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

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

Non-appearance of both parties to the suit

When neither the plaintiff nor the defendant appears before the court
when the suit is called for hearing, then the court is empowered to
dismiss the suit under Rule 3 of Order IX. The dismissal of the suit
under this rule does not put a bar on filing a fresh suit on the same cause
of action as per Rule 4.
The plaintiff can also apply for setting aside the dismissal if he is able to
satisfy the court that there was sufficient behind his non-appearance. If
the court is satisfied with the cause of non-appearance then it may set
aside the order of dismissal and schedule a day for the hearing of the suit.

The appearance of the plaintiff

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

If service of the summons is proved then only the court can proceed for
an ex-parte against the defendant and the court may pass a decree in
favour of the plaintiff. This provision applies only for the first hearing and
not for the subsequent hearings of the matter and the same has been
held in the case of Sangram Singh v. Election Tribunal.

Even while passing an ex-parte order it is the duty of the court to secure

the end of justice even in the absence of the defendant. In the case
of Maya Devi v. Lalta Prasad, it has been held by the Supreme Court
that -It is the duty of the court to ensure that statements in the plaint
stand proven and the prayers asked before the court are worthy of being
granted. This provision of passing ex parte order cannot be passed when
there are more than one defendants in the case and any of them appears.

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

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

Dismissal of the suit of the plaintiff without hearing him is a serious

matter and it should not be adopted unless the court gets satisfied that in
the interest of justice such dismissal is required, as cited by Beaumont,
C.J. in the case of Shamdasani v. Central Bank of India.

Do the same provision applies to the non-appearance of the plaintiff due to

death?

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

Application to set aside the dismissal

When the suit has been dismissed on the ground of non-appearance of

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

Sufficient cause

For considering the sufficient cause of non-appearance of the plaintiff the

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

In the case of Chhotalal v. Ambala Hargovan, the Bombay High Court

observed that if the party arrives late and find its suit dismissed due to
his non-appearance then he is entitled to have his suit or application
restored with the payment of costs.

When summon is not served

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

When there is no service of summons or it does not give him sufficient

time for effective presentation of the case then a decree cannot be passed
against him as held in the case of Begum Para v. Luiza Matilda
Fernandes.

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

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

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

Ex-parte Decree

When the defendant is absent on the day of the hearing as fixed in the
summon an ex-parte decree can be passed. The ex-parte order is passed
when the plaintiff appears before the court on the day of the hearing but
the defendant does not even after the summon has been duly served. The
court can hear the suit ex-parte and give ex-parte decree against the
defendant.

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

Remedies against an ex-parte decree

When an ex-parte decree has been passed against a defendant, the

following remedies are available to him.

1. He can apply to the court under rule 13 of Order IX for setting

aside the ex-parte decree passed by the court.
2. He can appeal against that decree under section 96(2) of the
Code or, prefer revision under section 115 of the code when no
appeal lies.
3. He can apply for a review under Order 47 Rule 1.
4. A suit on the ground of fraud can be filed.

Setting aside an ex-parte decree

For setting aside an ex-parte decree an application may be made by the

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

The limitation period for making an application for setting aside

an ex-parte decree is of 30 days.

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

1. When the summons has not been duly served.

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

Sufficient Cause

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

The burden of proof that there was a sufficient cause of non-appearance

is upon the defendant 

Conclusion
The appearance and non-appearance of parties have an effect on the case and whether it will
be carried on for the next hearing, dismissed or an ex-parte decree will be given. When none
of the parties appears then the suit can be dismissed by the court. The suit is carried on for the
next hearing only when both parties appear before the court.
If the plaintiff appears before the court but no defendant appears on the
day of hearing then the court may pass an ex-parte decree against the
defendant. The situations when there is non-appearance on the behalf of
the plaintiff then the suit can be dismissed if the defendant denies the
claim of the plaintiff and if he admits to any claim the court can pass an
order against him on the ground of his admission.

When any suit is dismissed or an ex-parte order is passed then it can also

be set aside if there is sufficient reason behind the absence of a party. If
the court is satisfied with the reason of absence then it may set aside the
order of dismissal or an ex-parte order. During all these procedures the
court must keep in mind that nowhere any miscarriage of justice is done
during the dismissal or while passing an ex-parte orderThe appearance and
non-appearance of parties have an effect on the case and whether it will be
carried on for the next hearing, dismissed or an ex-parte decree will be given.
When none of the parties appears then the suit can be dismissed by the court.

What is the three types of summons?There can be different types of summons that
came be served in criminal cases like, a notice to appear in the court, traffic
summons, to present the document in the court, etc. The police officer also has the
power to give criminal summons in minor cases.

Judgement and Decree under Code of Civil Procedure, 1908

Table of Contents
 What is Judgement and Decree?
 Difference between Judgement and Decree
o Judgement 
o Decree
 Judgement 
o Pronouncement of a judgement
 o Copy of the judgement
o Contents of the judgement 
o Alteration of a judgement
 Decree 
o Deemed Decree 
o Kinds of Decrees 
 Preliminary Decree
 Final Decree 
 Partly preliminary and partly final Decree
o The necessity of a Decree 
o Contents of a Decree 
o Drawing up of a Decree 
o Decrees in Special cases
 Interest
o Award of Interest 
o Division of Interest
 Pre-lite
 Pendente-lite
 Post-lite
o Rate of Interest 
o Recording of Reasons 
 Costs
o Kinds of Costs
 General costs 
 Miscellaneous costs 
 Compensatory costs
 Costs for causing delay
 Conclusion
 References

What is Judgement and Decree?

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

Judgement  Decree

 A judgement is based upon

 A decree is based upon judgement.
facts. 
 Judgment is made prior to
 Decree always follows a judgement.
decree.
 A judgement contains facts of
 A decree contains the outcome of the suit and
the case, the issues involved, the
conclusively determines the rights of the
evidence brought by the parties,
parties with regard to the issues in dispute in
finding on issues(based on
the suit.
evidence and arguments). 
 The definition of the word
judgement given in section 2(9)  The definition of the word decree given in
of the Code of Civil Procedure, section 2(2) of Code of Civil Procedure, 1908
1908 does not include the word includes the word ‘formal’.
‘formal’. 
 Section 2(9) of the Code of Civil
 Section 2(2) of the Code of Civil Procedure,
Procedure, 1908 describes the
1908 describes the term decree.
term judgement.
 Judgement has no types.   A decree is divided into three types.
 Judgement may result in a
preliminary decree or a final  The decree may be a preliminary or final or
decree or an order by itself, the partly preliminary and partly final.
judgement is always final. 
 Judgement leads to the final  After passing the decree, the suit stands
disposal of the suit after the disposed of since the rights of the parties are
decree is drawn up. finally determined by the court.

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

The word pronouncement means to make an official public

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

If a judgement is not pronounced immediately then it must be

pronounced within 30 days from the date of the conclusion of hearing.
However, sometimes it so happens that due to exceptional and some
extraordinary reasons like a bank holiday, strike or some other situation it
may be delivered within 60 days from the conclusion of the hearing. It is
not mandatory for a judge to read out the whole judgement and it would
be enough if only the final order is pronounced. The judge shall put the
date on which the judgement was pronounced along with his
signature. Rule 2 Order XX of Code of Civil Procedure, 1908  provides a
judge with the right to pronounce the judgement which is already written
but is not pronounced by his predecessor.

After the Amendment Act of 1976, the time limit was provided between
the hearing of the arguments and the pronouncement of the judgement.
Prior to this amendment no time limit was provided as such. Such a time
limit was provided because there was indefinitely continuous imposition
from all over India.

Copy of the judgement

Once the judgement is pronounced the copies of that particular

judgement should be immediately made available to the parties on
payment of costs as specified, by the party applying for such copy, of
such charges as may be specified in the rules and orders made by the
High Court (H.C.) Such a rule is specified in Order XX Rule 6-B of the
Code of Civil Procedure, 1908.

Contents of the judgement 

According to Rule 4 Order XX of Code of Civil Procedure, 1908:

 Judgements of a Court of Small Causes are satisfactory if they

contain the points for determination and the decision thereon.
  Judgments of other Courts shall contain:

1. Summary of the pleadings which is a concise statement of the

case;
2. Issues which are the points for determination;
3. Findings on each issue and the decision thereon;
4. Ratio decidendi (reasons for such a decision); and
5. The remedy, which is the relief granted.

Alteration of a judgement

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

 There are arithmetical or clerical errors. (clerical errors refer to

the errors made by clerks and arithmetical errors refer to errors
made in numbers such as addition, subtraction, multiplication
and division).
 There are errors due to accidental slips or omissions (these errors
take place when some essential element is left unnoticed)
(Section 152) on review (Section 114).

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

Deemed Decree 

A decree shall be deemed to include the rejection of a plaint and any

question within Section 144 of Code of Civil Procedure,1908 but shall not
include:
  any such sentence(adjudication) from which it appears that an
appeal lies as an appeal from an order, or
 any such order of discharge(dismissal) of default.    

Kinds of Decrees 

According to Section 2(2) of the Code of Civil Procedure,1908 decrees are

divided into three categories:

Preliminary Decree

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

Final Decree 

In general sense, the word ‘final’ means last, ultimate, conclusive or

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

Partly preliminary and partly final Decree

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

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

Contents of a Decree 

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

 The suit’s number – Every suit has a particular number and it

should be mentioned in the decree. 
 The names, description and registered addresses of the parties –
Every decree shall have the names of all the parties of that
particular suit, the proper description of the parties of the suit,
and the registered addresses of all the parties of the suit.
 The particulars of the parties claims or defence – Every decree
shall contain the details of the claims and the defences the
parties are claiming as an outcome of the said suit.
 The relief or the remedy granted to the aggrieved party – The
decree should in particular mention about the relief granted to
the particular party as a remedy and not a reward.
 The total amount of cost incurred in the suit-

1. by whom; or
2. out of what property; and
3. in what portions are they paid or are to be paid.

 The judgement’s date of pronouncement or delivery date of the

judgement – The decree should mention the date on which the
judgement was delivered followed by the decree.
 The judge’s signature on the decree – The judge’s signature is an
essential and indispensable element of any decree. The signature
of the judge delivering the judgement is an essential requisite.
Drawing up of a Decree 

Rule 6A Order XX of Code of Civil Procedure,1908 states that a decree

shall be drawn within 15 days of the judgement. An appeal can be
favoured or preferred without filing a copy of a decree if it is not drawn
within 15 days of the judgement.

Decrees in Special cases

 In a lawsuit for the recovery or process of regaining or

repossession of an immovable property(real estate), the decree
shall include a description of such property so that it is sufficient
to recognise or identify it.
 In a decree for movable property(personality), it must mention
with the exact amount of money to be paid as an alternative in
case the delivery is not made due to any reason either it be
reasonable or appropriate.
 In a decree for payment of money, the Court may order that the
payment of decretal amount i.e., the  amount mentioned in the
decree shall be:

1. postponed which is delayed to a future date; or

2. made by installments with or without interests.

 In a suit for the recovery or process of regaining or repossession

of immovable property, the Court may pass a decree-

1. for possession or gaining of property.

2. for past rents or mesne profits. (mesne profits are the profits of
an estate received by a tenant in wrongful possession and
recoverable by the landlord)
3. that is a final decree in respect of rent or mesne profits in
accordance with results of such enquiry as mentioned.

 Rule 12A of the Code of Civil Procedure,1908  states that a decree

for specific performance of a contract for sale or lease of an
immovable property which can also be termed as real estate shall
specify the exact period within which the amount of money or
other sum is to be paid by the purchaser or lessee.
 Rule 13 of the Code of Civil Procedure,1908   states that the final
decree shall be passed or delivered in accordance with the result
of preliminary enquiry i.e., in a lawsuit for an account of any
 property either movable or immovable and for its due
administration under the decree of Court, before passing a final
decree, the court should pass a preliminary decree ordering
accounts to be taken and enquiries to be made. 
 Rule 14 of the Code of Civil Procedure,1908  states a decree in a
pre-emption suit, it is a suit where the displacement of a lower
jurisdiction’s laws when they conflict with those of a higher
jurisdiction, where the purchase money has not been paid into
Court, shall specify a particular day on or before which the
purchase money has to be paid and direct that on payment to
Court, the defendant shall deliver property to the plaintiff, but if
the payment is not made on a specific day, the lawsuit shall be
dismissed with costs. In cases the Court has settled upon rival
claims to pre-emption, the decree shall direct:

1. The claim or defence of each pre-emptor shall take effect

proportionately if the claims decreed are equal in degree.
2. The claim or defence of the inferior pre-emptor will not take place
till the superior pre-emptor fails to make the payment if the
claims decreed are different in degree.

 In a lawsuit for dissolving of partnership or taking of partnership

accounts, the Court can pass a preliminary decree before passing
a final decree declaring the exact shares of all the parties, fixing
of a particular day on which the partnership shall become
dissolved and directing the accounts to be taken and other
necessary actions to be done.
 In a lawsuit for accounts between a principal person and agent,
the Court can pass a preliminary decree before passing a final
decree directing the accounts that has to be taken and it can also
provide special directions in regards to the mode of taking
accounts as well.
 In a decree passed in a lawsuit for partition of property either
movable or immovable or for separate possession of share in the
property,

1. the decree shall declare the rights of several parties interested in

that property but shall direct partition or separation to be made
by collector and in other cases of immovable property in case the
estate is assessed to the payment of revenue to the government.
2. the Court shall pass a preliminary decree declaring all the rights
of the parties in estate and giving necessary directions and then
the final decree is passed, if separation or partition cannot
conveniently be made without further inquiry.
  A decree where the defendant has been allowed leave or start
with a  counterclaim against the initial claim of the plaintiff shall
state with what amount is due to the plaintiff and what amount is
due to the defendant thereafter.

Interest
In the general aspect, interest refers to the price paid for obtaining or any
price received for providing, money or goods in a credit transaction which
is calculated as a fraction of the amount or value of what was borrowed
initially. Interest is the fraction of amount of money which the Court asks
the losing party to pay to the aggrieved party as the initial principal sum
was not paid on time or the expenses incurred by the winning party in
filing the documents and making necessary contracts and legal notices. In
a legal sense, the term interest is defined in Section 34 of the Code of
Civil Procedure, 1908.

Award of Interest 

The Court in the decree orders interest at a rate as the Court finds
reasonable and appropriate to be paid on the principal sum declared from
the date of filing of the lawsuit to the date of passing of the decree. The
Court even allows further interest at a rate not exceeding six percent per
annum on the principal sum for any period prior to the institution of the
suit from the date of passing of the decree to the date of the payment or
any such earlier date as the Court finds appropriate and reasonable.

Division of Interest

According to the Code of Civil Procedure, 1908, the division of interest is

divided into three types:

Pre-lite

It is the amount of interest which is accrued or received prior to the

institution of the suit on the principal sum. The rate of interest is on the
discretion of the Court but if the parties have decided a rate of interest
the Court shall consider it.

Pendente-lite

This interest is in addition to the pre-lite interest. This means it is the

additional interest on the principal sum declared by the court from the
date of filing of the suit to the date of passing the decree. The word
means the pendency of a lawsuit in the Court of law.

Post-lite

This is the interest in addition to the pre-lite interest on principal sum and
pendente-lite interest on the principal sum. It should be added on the
discretion of the Court and should not exceed more than six percent per
annum.

Rate of Interest 

The rate of interest awarded by the Court from the date of the lawsuit to
date of the decree is 12% and is just, appropriate and reasonable and
there is nothing to interfere. However, in post-lite interest that is from the
date of decree till realisation of the amount, rate of interest can be
charged upto 6% p.a. In pendente-lite, the rate of interest is fixed
between 9%-12%

Recording of Reasons 

It is on the discretion of the judge to provide the rate of interest. If the

judge does not provide for the rate of interest or reduces or increases the
rate then he has to state the reason behind doing so in writing. The
stating of the reasons by the judge for not providing interest is essential
so that no judge can make any arbitrary decisions. The providing of
reasons also depicts that the judge is fair with his decisions and is not
biased towards any party. 

Costs
In the general sense, the term cost means to incur a charge or to require
payment of a specified price. It simply means to calculate or estimate a
price. The term cost is defined in Section 35 of the Code of Civil
Procedure, 1908. The primary objective of ordering costs is to provide the
litigant with the expenses incurred by him during the litigation. The
provision of providing costs is on the discretion of the court that it may
grant order for payment of costs to the winning party by the losing party
subjected to pay for the expenses incurred during the litigation period or
while drafting legal notices and contracts. This is a kind of remedy and it
shall not be treated as a reward for the winning party and punishment for
the losing party. 
Granting of costs is at the discretion of the Court and if the court refuses
to grant cost then it should give reasons for doing so in writing. The
discretion is based upon facts and circumstances of the case and not by
chance.

Kinds of Costs

The Code of Civil Procedure provides for the following kinds of costs:

General costs 

The term general costs are defined in Section 35 of Code of Civil
Procedure,1908. General costs are the cost which is incurred by the
litigants and depends upon the Court’s discretion. The general rule is that
the losing party pays the winning party costs granted by the court. It is
the amount which is not treated as a reward for the winning party and a
punishment for the losing party but as a remedy. The judge can even
refuse to grant costs but for that, a reason has to be stated in writing.

Miscellaneous costs 

The term miscellaneous in the literal sense is used as something which is

diverse in its characteristics and cannot be placed in any specific
category. Miscellaneous costs are defined in Order XX A of the Code of
Civil Procedure,1908. These costs are also known as Specific Costs. They
are granted under special circumstances as mentioned in Rule1 of the
Code of Civil Procedure,1908:

 Expenditure on notices required to be issued under the law by

parties.
 Expenditure on notices not required to be issued under the law
by parties.
 Expenditure incurred on typing, writing, printing, etc. on the
pleadings.
 Charges paid by parties for inspection of documents.
 Expenditures on witnesses even though not summoned to the
court.
 In case of appeals, expenses incurred by parties for obtaining
any copies of the pleadings, judgement, decree, etc.
Compensatory costs

The term compensatory can be generally defined as to make up for

something, or to do something to correct a previous act. It means
providing compensation to the aggrieved party by the way of damages or
rewards or as the Court deems fit. Compensatory costs are defined
in Section 35A of the Code of Civil Procedure,1908. Compensatory costs
are granted in the cases where the claims of the other party are false or
vexatious. Such costs are granted under two conditions, namely, firstly,
the claim must be false or vexatious. Secondly, objections must be made
by the other party that the party making the claim or defence had
knowledge of the fact that such claim was false or vexatious.

Costs for causing delay

These are the costs which the parties are liable to pay in case of default
made on their part such as appearing late in the Court, not submitting the
required documents on the specified time, not paying the costs on time
for which further fine has been imposed. These are the costs which are
paid due to carelessness on the part of the parties. Costs for causing
delay are defined in Section 35B of the Code of Civil Procedure,1908. This
section was introduced by the Amendment Act,1976. These are costs
which are imposed for causing the delay. It states that where a party did
not take a step which it should have under the code or obtained an
adjournment as regards the same, he will have to pay such costs to the
other party so as to reimburse him for attending Court on the designated
date. Unless such costs are paid, the plaintiff shall not be allowed to
proceed further in his suit, if she should have paid the costs and
defendant shall not be allowed to proceed with the defence if he was
liable to pay such costs. If however, the party is unable to pay the costs
due to circumstances beyond his control, the court may extend the time. 

Conclusion
Hence, it could be said that judgement is a set of which decree is the
subset. Interests and costs are the amount to be paid to the winning
party as a remedy and not a reward. It is not a punishment for the losing
party but just a remedy for winning party so that it could incur the
expenses caused due to drafting of legal notices, contracts and all
expenses during the litigation period for the purpose of litigation.

Who is a Commissioner under Civil Procedure Code?

June 13, 2019
23882
 
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Image source- Law Zing

This article is written by Aakash M Nair, a 4th year Student of Delhi
Metropolitan Education law School affiliated to GGSIP University. In this
article he discusses the role and functions of a commissioner under Civil
Procedure Code.

Under CPC, a commissioner is appointed to fulfill certain functions which

are essential for the Court, in order to dispense full and complete justice.
Section 75 and order 26 of the code provides the key provisions which
relates to the commissioner. In this article, we will try to answer the most
basic questions which comes to our mind when we begin to understand
the concept of issue of commission and appointment of commissioner.
What is meant by issue of commission by the Court?
Commission is instruction or role given by the Court to a person to act on
behalf of the Court and to do everything that the Court requires to deliver
full and complete justice. Such person who carries out the commission is
known as a Court commissioner.

For example, whenever the Court has to do a local investigation, a

commissioner is appointed who conducts the local investigation. Similarly,
to record the evidence of a witness who cannot come to the Court for
evidence, the Court can issue a commission for recording of such
evidence.

Who can appoint a commissioner?

Under CPC, the Court which issues the commission can appoint the
commissioner. Section 75, provides that “the Court” can issue commission
provided the limitations and restrictions applicable. Therefore, the Court
who has to decide the suit can appoint the commissioner. Commissioner
is appointed to carry out the functions for which the commission is issued.
Court has the discretionary power to appoint the commissioner and such
power can be exercised on the application of any of the parties or the
Court can issue the commission suo moto.

We will understand the procedure followed by the Courts to appoint the

commissioner later in this article.
Who can be appointed as a commissioner?
Generally, there is a panel of commissioners which is formed by the High
Court in which advocates are selected who are competent to carry out the
commission issued by the Court.

The person appointed as commissioner should be independent, impartial,

disinterested in the suit and the parties involved in it. Such a person
should have the requisite skills to carry out the commission.

It will be a complete waste of time and resources of the Court and the
parties if a person who cannot read and understand the accounts and
documents is appointed as commissioner to adjust accounts. Similarly, a
person who does not have the qualifications to conduct scientific
investigation should not be appointed as a commissioner for such task. 

The District judge supervises the subordinate Courts who have to take
special care while appointing a commissioner(1). The same person should
not be appointed by the Court in all commissions and a person who hangs
about the Court should not be appointed.  

What is the procedure for appointment of commissioner?

Every High Court has the power (Article 227) to make rules and
regulations which is to be followed by the subordinate Courts. Procedure
for appointment of a commissioner is provided in High Court rules each
state.

For instance, in Delhi, Chapter 10 of Delhi High Court rules, 1967,

provides procedure for appointment of Commissioner. The following
procedure is followed by the Delhi High Court(2):

 A panel of not more than 4 commissioners is to be formed which

consists of young persons including a lady lawyer, appointed by
the Court for recording of evidence.
 The District Court notifies the bar about the number of vacancies
of commissioners and the bar forward the applications received
for the same to the Court who then forwards it to the High Court
with their recommendation.
 The term of such appointment is generally 3 years which can be
extended by an order of the High Court but no commissioner can
be appointed after 6 years of such appointment.    
When can a commissioner be appointed by the Court?
A commissioner can be appointed by the Court when a commission is
issued by the Court. According to Section 75 of CPC, the Court has the
power to issue a commission to carry out the following functions:

               Click Above

To examine witnesses: Order 26 Rule 1-8

The general rule of evidence is to bring the evidence before the Court and
must be recorded in open Court. But in extraordinary circumstances, the
appearance of witness is dispensed and the witness is allowed to depose
evidence without appearing in Court.

Appearance is exempted if:

1. A witness is bedridden or is unable to attend the Court due to

sickness or infirmity, in such circumstances the Court can exempt
the appearance of witness and allow the witness to depose
 evidence to a commissioner appointed for the same.  Such a
witness will have to submit a certificate signed by a registered
medical practitioner as evidence of sickness or infirmity. (Order
XXVI Rule 1, C.P.C.) In such situations the Court will exercise its
powers provided under order 18 rule 4 and appoint a
commissioner for examination on interrogatories(3).
2. A witness apprehends danger to his life and informs the Court
about such danger and if the Court thinks that recording evidence
of the witness is necessary, the Court may issue commission to
record evidence of such witness. Where a party accused of fraud
seeks himself to be examined with commission, the Court must
not issue commission and avoid person of such demeanor to
abuse the procedure.
3. The witness is a pardanashin lady whose attendance is exempted
under Section 132 of the code.
4. The witness is a Civil or Military Officer of the Government,
cannot attend without detriment to the Public Service. (Order
XXVI Rule 4)
5. If the Court thinks that it is in the interest of justice or
expeditious disposal of the case or for any other reason, the
Court can issue a commission notwithstanding any of the rules
provided in the order. (order 26 rule 4A)
6. A person who cannot be ordered to attend the Court in person
under Order 16 rule 19 can be examined by the Court by issuing
a commission. (order 26 rule 4 proviso)
7. A commission can be issued for examination of a person detained
in prison. (order 16A rule 7)
The Court will issue an order of commission for examination of a witness
on following grounds  if such person: (order 26 rule 4)

 Resides beyond the jurisdiction of the Court. [order 26 rule 3(a)]

 About to leave from the jurisdiction of the Court. [order 26 rule
3(b)]
 A government servant and cannot attend without affecting the
public service [order 26 rule 4(c)].
 Resides outside India and the Court decides that his evidence is
necessary.
 The commission will be issued to any other Court within whose
local limits such person is residing and if the person resides
within the local limits of the Court issuing it, a commissioner can
be appointed to carry out such commission.
The provisions of the Court relating to summoning, attendance
examination of witnesses, penalties imposed on the witness will apply on
the person who has to give evidence or produce documents before the
commissioner. The commissioner who is executing the order of the Court,
within whose local limit such person resides or by the Court beyond
whose jurisdiction such person resides, will be deemed to be a civil Court.

If the commissioner is not a judge of the civil Court, the commissioner

cannot impose penalties but can make an application to the Court which
has issued commission to impose penalties on the person. (order 26 rule
17)

To make local investigations: Order 26 Rule 9-10

The Court can appoint commission for local investigation if the Court is of
the opinion that a local investigation is necessary:

1. For proper clarity of any matter in dispute, or

2. In ascertaining the market value of any property, or
3. To know the amount of mens rea or annual net profits.
While appointing a commissioner for, the Court has to examine (4).

1. The pleadings of both the parties,

2. Relief claimed,
3. The real controversy between the parties.
It is important to note that the object of a commission is not to collect
evidence which can be brought to the Court by the parties but to acquire
evidence from a fixed spot. It is also used to enable the Court to have
more clarity regarding the facts of the case.

Commissioner should not be appointed to provide pre-trial decree against

the defendant, that is, the Court should not appoint a commissioner to
provide the relief claimed, directly or indirectly, by the plaintiff before the
final decree is passed. It is important because such commission will
prejudice the rights of the defendant to a fair trial.   

To adjust accounts: Order 26 Rule 11-12

In a suit, if the Court thinks that it is necessary to verify the accounts

involved in the suit, the Court may issue a commission to make the
examination of such accounts and may appoint a commissioner. (rule 11)
The Court takes special care while making such an appointment. The
Court appoints only such a person who is competent to examine such
records. The reports submitted by the commissioner is considered
evidence by the Court. (rule 12)

To make partition: Order 26 Rule 13-14

The Court can issue commission for partition of a suit property. Suppose,
the Court has passed a preliminary decree for partition of the suit
property, in such a situation, the Court can appoint a commissioner to
carry out the decree. (rule 13) The commissioner has to divide the
property in shares and distribute it among the parties according to the
suit decree. Commissioner has to submit a report after such partition is
completed. (rule 14)

To hold investigation: Order 26 Rule 10-A

When the Court has to conduct a scientific investigation, the Court can
appoint a commissioner who will then be responsible for such
investigation. For example, to identify the substance used as a raw
material in the subject matter, the Court may issue commission to hold
scientific investigation. (rule 10-A)

After conducting such investigation the commissioner has to submit the

report within the time prescribed by the Court.

To sell the property: Order 26 Rule 10-C

Suppose the subject matter of a suit is a movable property which cannot

be preserved by the commissioner and if it is not sold, its value cannot be
recovered. Therefore, the Court appoints a commissioner who is given the
responsibility to sell the property and submit a report along with the
proceeds received from the sale of such property.

To do ministerial work: Order 26 Rule 10-B

Ministerial work means the administrative work which the Court has to do,
but are not of judicial nature like accounting, calculation, etc. Such work
takes a lot of valuable time of the Court which can be used in other
important judicial functions.
Therefore, the Court appoints a commissioner to do such works on behalf
of the Court. It is important to note that commissioners cannot do judicial
functions. (5)

Procedure for carrying out the commission:

 The commissioner will conduct the local investigation,

examination of witnesses, adjust accounts and other functions as
ordered in the commission.
 After completion of the function, the commissioner will reduce
the findings in writing and will make a report.
 The commissioner will submit the report signed by him along with
the evidence recorded in the Court.
 The report of commissioner will form a part of the record.
 While examining the report, the Court or the concerned parties,
after prior permission, can examine the commissioner personally
in open Court.
 If the Court is dissatisfied with the proceedings of the
commissioner the Court can order a further inquiry on the
commission or can issue a fresh commission and appoint a new
commissioner.   
To summarize, the commission can be issued in the following
circumstances:

1. To make a local investigation.

2. To adjust accounts.
3. To make partition.
4. To hold investigation.
5. To conduct sales.
6. To perform ministerial work.

Powers of the commissioner: Order 26 Rule 16-18

Under order 26 rule 16, powers of a commissioner are as follows:

1. Commissioner has the authority to examine the parties and the

witnesses and any other person who the commissioner thinks can
give evidence in the matter referred to him.
2. Commissioner can direct the parties to produce any documents
which is required to be examined.
 3. Commissioner also has the power to enter and search any land or
building with the permission of the Court.
4. If the party fails to appear before the commissioner after the
order of the Court, the commissioner can proceed ex parte.

Whether the commissioner will be entitled to a Remuneration?

There is no provision in the CPC which expressly provides for
remuneration to the commissioner but Rule 15 of order 26 provide for the
expenses which might be incurred by the commissioner. While issuing
commission, the Court directs the applicant to deposit a sum of amount
which can be used by the commissioner to account for the expenses
which might be incurred by him while carrying out the commission. The
Court has the discretionary power to make directions make any other
direction regarding the remuneration.  

What are the limitations on the commissioner?

Commissioner has to assist the Court in carrying out the judicial functions
but he cannot do the judicial functions on behalf of the Court. For
example, a commissioner cannot value the suit property because it is a
judicial function and only the Court has the power to do so. A
commissioner can assist the Court by producing the documents such as
plans of the suit property by which the Court can ascertain the value.  

It is not the objective of issuing a commission to procure evidence for the

parties. Therefore, if a party has the apprehension that the opposite party
will tamper with a document which is relevant to the case, the Court
should not appoint a commissioner to seize such documents.

What is the evidentiary value of the report submitted by the commissioner?

According to order 26 rule 10 (2) of the CPC, the report and the evidence
submitted by commissioners forms a part of the record but if the evidence
is submitted without the report of the commissioner, such evidence does
not form part of the record. (6)

The report forms an important part of the case and can only be
challenged on sufficient grounds. The Court has the final say on how
much reliance should be placed on the report submitted by the Court.
What are the key takeaways?
The commission is issued by the Court to provide full and complete
justice. The Court has the power to issue commission in certain
circumstances. Commissioner is appointed by the Court to carry out the
commission issued by the Court. He assists the Court by taking evidence,
conducting local investigations, doing ministerial work and submits a
report after carrying out the commission.

A commissioner is, generally, an advocate who is in a panel formed by the

High Court and from such a panel the Court appoints a commissioner. The
procedures for the appointment are formulated by the High Court.

The commissioner can exercise certain powers granted by the Court to

carry out the commission. He cannot perform the judicial function of the
Court. He can only assist the Court in performing such functions. The
evidence with the report submitted by him in the Court forms part of the
record.