CPC

Judgement, decree and order

Plaint and written statement
Plaint is a legal document that contains the plaintiff's claim presented before a civil
court of competent jurisdiction. It is a pleading of the plaintiff and the first step taken
for the institution of a suit.

The contents and essentials of the civil suit are laid out in a plaint, including the
plaintiff’s claim. It showcases the grievances of the plaintiff & the causes of action
that can arise out of the suit. It hasn't been defined in the CPC but it has been laid
down under Order VII of the CPC.

Particulars of A Plaint

 Name of the court where the suit is initiated.

 Name, place, & description of the plaintiff's residence.

 Name, place, & description of the defendant's residence.

 A statement of unsoundness of mind or minority in case the plaintiff or the

defendant belongs to either of the categories.

 Facts which led to the cause of action and when it arose.

 Facts which point out the jurisdiction of the court.

 The plaintiff's claim for relief.

 The amount allowed or relinquished by the plaintiff just in case.

 A statement containing the value of the subject matter of the suit as admitted
by the case.

Written statement
A written Statement is nothing but a reply from the defendant to the plaint led by the
plaintiff. it is the pleading of the defendant where he deals with the material fact
alleged by the plaintiff in his plaint and also elucidates any new fact favouring him or
taking legal objections against the plaintiff's claims in the plaint.

In a written statement defendant can deny the allegations made in the plaint against
him. Apart from this, he can also claim to set off any sums of money payable by the
plaintiff to him as a counter-defence (Order 8 Rule 6).

Who may file a written statement?

A written statement may be filed by the defendant or by his duly authorized agent. In
the case of more than one defendant, the common written statement led by them
must be signed by all of them. However, it will suffice if it is verified by one of them
who is aware of the facts of the case. 

Time limit for written statement

A written statement must be filed within thirty days from the service of the summons
on him. The said period can be extended up to ninety days. 

Difference between Plaint and Written Statement

S.
Plaint Written Statement
No.
A legal document stating the A defence statement
cause of action and other comprising all material facts
1.
mandatory particulars supports and other details against the
the plaintiff's claim. plaint is a “written statement”.
It is filed by the plaintiff stating its
It is filed by the defendant as a
2. facts and relief to be claimed by
reply to the plaintiff's claims.
the plaintiff.
It contains name of the court,
it contains all materials and
name, place, and description of
other objections that the
the plaintiff's & defendant’s
  defendant might place before
residence, a statement of
the court to admit or deny the
unsoundness of mind, cause of
plaintiff's claim.
action, relief claimed etc. 
A written statement must be
filed within 30 days from the
Plaint is the first stage in a civil
3. date of receipt of the copy of
suit for institution of suit.
the plaint. (extended to 90
days)
A general denial of grounds
Generally it is divided in parts like- alleged in the plaint is not
a heading, the cause title, the sufficient and denial has to be
4.
body, the prayer, signature & specific and must be
verification of the plaintiff. substantiated with
documentary evidence.
Every allegation of fact in the
Plaint must contain name,
plaint if not denied specifically
5. description and residence of
shall be deemed to be
defendant.
admitted.
Order VII of CPC deals with Order VIII of CPC deals with
6.
plaint. written statement.
Legal Representative: -

A Legal representative is a person in law who represents the estate of the deceased and
includes any person who intermeddles with the estate of the deceased and where a party
sues or sued in a representative character, the person on whom the estate devolves on the
death of the party so suing or sued. [S. 2(11) of CPC].

In another sense, a person who stands in the place of, and represents the interests of another
is called a legal representative. A person who supervises the legal affairs of another like
executor or administrator of an estate and a court-appointed guardian of a minor or
incompetent person.

I n the case of Andhra Bank Ltd vs. R. Srinivasan and others,1962, the supreme court held
that the legal representative is a "Person representing the estate of the deceased" in law, that
the estate does not mean the entire estate, and that even a legatee who obtains only part of
the estate of the deceased under a will can be said to represent the estate of the deceased
and is, therefore, a legal representative under S. 2 (11) CPC.

Res judicata and Res sub-judice

Res Judicata

An issue that has been determined cannot be brought up again, either in the same court or in
a different court, under the doctrine of Res Judicata. Because it prevents or forbids any
additional claims after the final decision, it is also known as "claim preclusion." It's a
common-law practice that prevents matters from being re-litigated in court between the same
parties. 

The goal of Res Judicata is to prevent:

∙ Injustice to the parties in a dispute that was meant to be resolved by a decision that provided
finality and barred any future claims. 

∙ Court resources are being used unnecessarily. 

∙ Multiplying judgments as additional claims would result in multiple different decisions on

the same issue, causing confusion. 

∙ Obtaining damages twice from the defendant for the same harm. 

. The court decided in the matter of Y.B. Patil v. Y.L. Patil that once an order is made during
the course of the proceedings, it becomes final and is therefore binding on the parties at any
later stage of the same proceedings. 
Res Sub-judice

The principle of res sub-judice discourages a court from proceeding with the trial of any suit
in which the concern in matter is directly or substantially the same as a previously instituted
suit between the same parties, and the court in which the issue was previously instituted has
the power to grant the relief sought.

This regulation only applies to the suit's trial, not to the institution. It has no bearing on the
court's ability to issue interim orders such as injunctions or stays. It does, however, apply to
revision and appeals. 

The aim of this regulation is to keep courts from being overburdened with cases. It is also
hoped that the plaintiff would not receive two distinct rulings in his favour from different
courts or two conflicting judgments. It also guarantees that the plaintiff is not subjected to
undue harassment. 

The objective of the law is to limit the plaintiff to a single statute, avoiding the possibility of
two conflicting rulings by the same court in the same case. 

The purpose of Section 10 is to prevent two courts from making conflicting rulings in the
same case. To get around this, the courts might compel the two lawsuits to be consolidated. It
was argued in the case of Anurag and Co. and Anr. vs. Additional District Judge and
Others that consolidation of actions is ordered under Section 151 for the sake of fulfilling the
objectives of justice since it saves the party from several lawsuits, delays, and expenditures.
The parties are also spared from having to produce the same evidence again. 
Appearance and non - Appearance of parties Order 9
Order IX of the Code provides the law with regard to the appearance of the parties to the
suits and the consequences of their non-appearance. Where a party (Plaintiff or Plaintiff and
Defendant, both) does not appear when the suit is called on for hearing, the suit may be
dismissed and where a party (Defendant) does not appear even when the summons is duly
served on him, the Court may Order for the ex-parte hearing of the suit.

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.

Therefore, Order IX can be discussed under the following heads:

a. Dismissal of Suit: The plaintiff's suit may be dismissed under rules 2, 3, 5(1) and 8 of
Order IX of the Code, while the Court may order ex-parte hearing of the suit under
rule 6(1) of Order IX.
Rule 2:A suit may be dismissed under rule 2 if the summons has not been served upon
the defendant due to the failure of the plaintiff to pay Court-fee or Postal charges, if any
chargeable for such service or failure to present copies of the plaint as required by rule 9
of Order VII.
Rule 3: The Court may dismiss the suit under rule 3 where, both the parties are absent
when the suit is called on for hearing.

Remedies against Dismissal:

Where the suit has been dismissed under rule 2 or 3, the plaintiff has remedies either to file
a fresh suit (subject to the law of limitation) under rule 4 or to make an application under
rule 4 for restoration of the suit. When the suit has been dismissed under rule 5(1), the
plaintiff may bring a fresh suit (subject to the law of limitation) under rule 5(2).
When a suit is dismissed under rule 8, the plaintiff shall be precluded to bring a fresh suit on
the same cause of action but he may apply to set the dismissal aside under rule 9 of Order IX
and the Court shall, after 20 issuing a notice of application on the opposite party set aside
the order of dismissal, on being satisfied that there was sufficient cause for plaintiffs non-
appearance when the suit is called on for hearing.
2) Ex- Parte Hearing: Where only the plaintiff appears and the defendant does not appear
when the suit is called on for hearing, and the Court observed that the summons was duly
served on 21 defendant then the Court may pass an order that the suit be heard ex-parte.

SUMMONS
Meaning: The word summons has not been defined in the Code, but according to the
dictionary meaning; "A summons is a document issued from the office of a court of justice,
calling upon the person to whom it is directed to attend before a judge or office of the court
for a certain purpose."
Essentials of summons: Every summons shall be signed by the judge or such officer
appointed by him and shall be sealed with the seal of the court [Rule1 (3)] and every
summons shall be accompanied by a plaint or if so permitted, by a concise statement
thereof.[Rule 2]
Contents of Valid Summons:
a. The summons must contain a direction whether the date fixed is for settlement of issues
only or for final disposal of the suit (Rule 5).
b. In cases of summons for final disposal of the suit, the defendant shall be directed to
produce his witnesses (Rule 8).
c. The Court must give sufficient time to the defendant to enable him to appear and answer
the claim of the Plaintiff on the day fixed (Rule 6).
d. The summons shall contain an order to the defendant to produce all documents in his
possession or power upon which he intends to rely on in support of his case (Rule 7)

Ends of Justice and Prevent Abuse of Power – Section 151 CPC

Section 151 of the Civil Procedure Code preserves the court’s inherent powers to secure the
end of justice and prevent the abuse of the process of the court. Under this section, the
court can:
 recall its own orders,
 correct mistakes,
  can set aside ex-parte order passed against the party,
 can issue a temporary injunction in cases not covered in the provisions of Order 39
of the Civil Procedure Code,
 can restore the suit and rehear it on merits,
 review its orders, etc.
In Naresh Shridhar Mirajkar vs State of Maharashtra (1966), the court concluded that what
would meet the ends of justice would always depend upon the facts and circumstances of
each case and the requirement of justice.
The power granted by section 151 of the Civil Procedure Code can be used to prevent abuse
of the court’s process, which can be committed by either the court or a party.
There is an abuse of process by the court itself when a court follows a procedure that may
result in the miscarriage of justice. A party may be guilty of abuse of process if it obtains the
benefits by practising fraud on the court or by instituting vexatious tactics.

INCIDENTALPROCEEDINGS
Commission (Sections - 75 to 78 and Order 26)
Meaning: 'Commission' is a process through which the witnesses, who are sick or infirm and
are unable to attend the Court, are examined by issuing a commission by the Court. Sections
75 to 78 and Order XXVI of the Code deal with the various provisions relating to the issue of
Commission to examine witnesses who are unable to attend the Court for one or the other
reasons.
Power of Court to issue Commissions:As a general rule, the evidence of a witness in an
action, whether he is a party to the suit or not, should be taken in open' Court and tested by
cross-examination. The court has a discretion to relax the rule of attendance in Court, under
some circumstances and may justify issue of a commission. Section 75 of the Code -specifies
the powers of a Court to issue Commission.

Persons for whose examinations commission may be issued: Rule 4(1):

Any Court may in any suit issue a commission for the examination on interrogatories or
otherwise of any person,
a. If he resides beyond the local limits of the jurisdiction of the court or [(Order XXVI, Rule
4(1)(a)]
b. if he is about to leave the jurisdiction of the Court, or [(Order XXVI, Rule4(1)(b)]
c. if he is a Govt. servant and cannot, in the opinion of the court, attend without detriment
to the public service, or [(Order XXVI, Rule4(1)(c)]
d. if he is residing out of India and the Court is satisfied that evidence is necessary. Rule 5

Order for Issue of Commission: (Rule-2)

The Court may issue such a commission –
a. either sue motu (of its own motion) or
b. on the application of any party to the suit, or
c. "ii) of the witness to be examined

TEMPORARY INJECTION
A temporary injunction or interim injunction, restrains a party temporarily from doing the
specified act and can be granted only until the disposal of the suit or until the _ further
orders of the Courts. It is regulated by Order 39 rule 1 to 5 of the C.P.C. and may be granted
at any stage of the suit.
Principles: The power to grant a temporary injunction is in the discretion of the Court, but
this discretion, should be exercised reasonably, judiciously and on sound legal principles.
Generally, before granting the injunction, the Court must be satisfied about the following
conditions:
i) Prima facie case;
ii) Irreparable Injury; and
iii) Balance of convenience
i) Prima facie case: The applicant must make out a prima facie case in support of
the right claimed by him. The Court must be satisfied that there is a bona fide
dispute raised by the applicant and on the facts before the Court there is a
probability of the applicant being entitled to the relief claimed by him.
ii) Irreparable Injury: The applicant must further satisfy the Court that he will suffer
irreparable injury if the injunction as prayed is not granted, and there is no other
remedy open to him by which he can protect himself from the consequences of
apprehended injury. The expression "irreparable injury" means that the injury
must be material one, Le. which cannot be adequately compensated by
damages.
iii) Balance of Convenience: The balance of convenience must be in favour of the
applicant. In other words the Court must be satisfied that the compensation,
mischief or inconvenience which is likely to be caused to the applicant by
 withholding the injunction will be greater than that which is likely to be caused to
the opposite party by granting it.
Discretionary Remedy: Since grant of injunction is discretionary and an equitable relief,
even if all the conditions are satisfied, the Court may refuse to grant it for some other
reasons e.g., on the ground of delay, latches or acquiescence or where the applicant has
not come with clean hands or has suppressed material facts, or where monetary
compensation is adequate relief.
PARTIES TO SUIT (ORDER-I)
Order I of the code provides the provisions with respect to the parties to suits and
joinder, misjoinder and non-joinder of parties.
Joinder of Parties :
A. Joinder of Plaintiff (Rule 1)
B. Joinder of Defendant (Rule 3)
The question of joinder of parties arises only when' an act is done by two or more
persons Joinder of defendants) or it affects two or more persons Joinder of plaintiffs)
1. Joinder of Plaintiffs: (Rule 1) :All persons may be joined in one suit as plaintiffs where
a) any right to relief in respect of, or arising out of, the same act or transaction or series
of acts or transactions is alleged to exist in such persons, whether jointly, severally or in
the alternative;
b) if such persons brought separate suits, any common question of law or fact would
arise.
2. Joinder of Defendants: Rule (3) :All persons maybe joined in one suit as defendants
where1) any right to relief in respect of, or arising out of, the same act or transaction or
series of acts or transactions is alleged to exist against such persons, whether jointly,
severally or in the alternative;
2) if separate suits were brought against such persons, any common question of law or
fact would arise.
Example: An Altercation takes place between P on the one hand and Q and R on the
other.
I. P assaults Q and R simultaneously. Q and R may join as plaintiffs in one suit for
damages against P for
that tortorious act.
II. Q and R simultaneously assault P. P may join Q and R as defendants in one suit for
damages for that tortorious act.
Necessary and Proper Parties: A necessary party is one whose presence is indispensable to
the constitution of the suit, against whom the relief is sought and without whom no
effective order can be made. In the absence of a necessary party no decree can be passed,
while a proper party is one in hose absence an effective order can be made, but whose
presence is required for a complete and al decision on the question involved in the
proceeding. In the absence of a proper party a decree can passed so far as it relates to the
parties to the suit
Example: In a petition for compensation in a road accident case, the claimant(s) may join
three parties i.e. owner(s) of the vehicle(s) involved in the accident, the insurer(s) of the
vehicle(s) and the driver(s) of the vehicle as respondents. The owner(s) and insurer(s), if any,
are the necessary parties along with the claimant(s), while the driver(s) of the vehicle(s)
involved is/are the formal/proper party whose presence enables the Court to adjudicate
more "effectually and completely' but even in his absence the Court can ass a decree
Further; the CPC deals with misjoinder and non-joinder in the Order I. As aforesaid there
won’t be any problem in regard to the non-necessary parties; however the necessary parties
should be there in a suit and the concept of misjoinder and non-joinder always rest upon
the necessary parties. In simple words we can say that, Joinder means adding a party to the
suit irrespective of necessary or non- necessary parties.

Misjoinder Non- Joinder

When mistakenly a party was added to the suit is

misjoinder. That means when a party was added When a party is necessary to the suit and he was n
but he doesn’t have to do anything with the suit, then it is a non-joinder.
present issue then it considered to be misjoinder.

In case of misjoinder the court should not dismiss
the suit rather; may order in such kind as the order
not bind on the misjoined party and the relief
should be sought only upon the respective
necessary party.
When the court found about the non-Joinder of th
necessity to the suit, and adjudicating on such ma
is a matter of waste, then the court can dismiss th
order the plaintiff to add the necessary parties or
on their own.

There is no possibility of dismissal, since it won’t There is a possibility. Of dismissing the suit, in resp
much affect the interest of the party at large. effectiveness of the decree/order.

SUIT BY OR AGAINST GOVERNTMENT

Procedure in Suit against Public Officer: The defendant (public officer) on receiving the
summons may apply to the Court to grant the extension of time fixed in the summons, to
enable to him to make reference to the Government, and to receive orders thereon through
the proper channeF6 and the Court shall, on such 77 application extend the time for so long
as it appears to it to be necessary.
The Government shall be joined as a party to the suit, where the suit is instituted against the
public officer for damages or for any other relief in respect of any act alleged to have been
done by him in his official 78 capacity.
Where the government undertakes the defence of a suit against a public officer, the
government pleader, upon being furnished with authority to appear and answer the plaint,
shall apply to the Court, and upon such 79 application the Court shall cause a note of his
authority to be entered in the register of civil suits. Where no application under sub-rule (1)
is made by the government pleader on or before the day fixed in the 80 notice for the
defendant to appear and answer, the case shall proceed as in a suit between private parties.
No need of security from government or a public officer in certain cases: No such security
as is mentioned in rules 5 and 6 of order XLI shall be required from the government or,
where the government has undertaken the defence of the suit, from any public officer sued
in respect of an act alleged to be done by him in his official capacity.

Appeals (Section 96 to 112, Order 41-45)

Introduction: The provisions relating to appeals are contained in Sections 96 to 112 and
Orders XLI to XLV of the Code of Civil Procedure and can be summarized as under:
a. First Appeal, Sections 96 to 99-A, 107 and Order XLI
b. Second Appeal, Sections 100 to 103, 108 and Order XUI
c. Appeals from Orders Sections 104, 108 and Order XLIII
d. Appeals by Indigent persons Order XLIV
e. Appeals to Supreme Court Section 109 and Order 45

Meaning: The appeal means " the Judicial examination of the decisions by a higher Court of
the. decisions of an inferior Court”

Who may Appeal:

The following persons are entitled to prefer an appeal :
1. A party to the suit who is adversely affected by the decree {Section 96(1)}, or his legal
representative. (Section 146)
2. Aperson claiming under a title party to the suit or a transferee of interests of such party,
who, so far as interest is concerned, is bound by the decree, provided his name is entered
on the record of the suit. (Section 146)
3. A guardian ad litem appointed by the Court in a suit by or against a minor. (Section 147,
Order 32, Rule 5)
4. Any other person, with the leave of the Court, if he is adversely affected by the decree

Conditions before filing an appeal: An appeal can be filed against every decree passed by
any Court in exercise of original jurisdiction upon the satisfaction of the following two
conditions:
i) The subject matter of the appeal must be a "decree", and
ii) The party appealing must. have been adversely affected by such determination.

REFERENCE (Section - 113 and Order XIII)

Section 113 provides provisions relating to reference and empowers any Court (subordinate
Court) to state a case and refer the same for the opinion of the High Court. Such an opinion
can be sought when the Court itself feels some doubt about a question of law. The
provisions are subject to such conditions and limitations as may be prescribed.
Object: The object for reference is to enable the subordinate Courts to obtain in non-
appealable cases the opinion of the High Court, on a question of law and thereby avoid the
commission of an error which could not 30 be remedied later on.
Conditions for Applications: (Order 46 Rule 1)
The following conditions must be fulfilled, before High Court entertains a reference from a
sub-ordinate Court, i.e
. 1. Pendency: There must be pendency of a suit or appeal in which the decree is not the
subject to appeal or a pending proceeding in execution of such decree.
2. Question of law :A question of law or usage having the force of law must arise in the
course of such suit, appeal or proceeding ; and
3. Doubt in mind of Court: The Court trying the suit, appeal or executing the decree must
entertain a reasonable doubt on such question.
Review (Section 114 and Order XLVII)
Meaning: Review means re-examination or reconsideration of the case by the same judge. It
is a judicial re-examination of the case by the same Court and by the same Judge. In it,
Judge, who has disposed of the matter, reviews his earlier order in certain circumstances.
Who may apply to Review:
Any person aggrieved by a decree or order may apply for a review of Judgment where no
appeal is allowed or where an appeal is allowed but no appeal has been filed against such
decree 35 or order or by a decision from a small cause.

Grounds of Review: Order XLVII, Rule (1) provides the following grounds:
i. Discovery of new and important matter or evidence, which after the exercise of due
diligence, was not within his (aggrieved person's) knowledge or could not be produced by
him (aggrieved person) at the time when the decree was passed or order made; or
ii. on account of some mistake or error appear on the face of the record; or
iii. for any other sufficient reason

Revision
The High court has the power to call for a re-examination of any case which has been
decided by the subordinate court without appropriate jurisdiction. This power of the High
court is called Revisional Jurisdiction of only High court which is mentioned under Section
115 of the Code. The revisional jurisdiction is not a substantive right but is merely a privilege
given to the applicant. An application for revision can be made by the parties to the suit
under the following circumstances where the subordinate court has:
 not exercised jurisdiction as conferred by law (wrongful assumption of the court
regarding the jurisdiction)
 failed to exercise jurisdiction that is vested in it (non-exercise of jurisdiction by the
court)
 illegally exercised its jurisdiction (irregular exercise of jurisdiction by the court)
The High court cannot reverse a judgement where:
 the whole suit has been disposed of by the parties
 the reversal of such judgement shall cause irreparable injury/loss against whom it
was made
Since the High court only possess the Revisional jurisdiction, the order made from the
exercise of such power is not appealable.