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Civil Procedure Code, 1908: Definitions (Sec. 2)
Civil Procedure Code, 1908: Definitions (Sec. 2)
Table of Contents
• Definitions (Sec. 2)
o Judgement
▪ Pronouncement of a judgement
▪ Copy of the judgement
▪ Contents of the judgement
▪ Alteration of a judgement
o Foreign Court, Foreign Judgement (Sec. 13)
▪ Nature and Scope of Foreign Judgments
▪ Object of Recognizing Foreign Judgments
▪ Jurisdiction of Foreign Courts
▪ Presumption as to foreign judgments
▪ Conclusiveness of Foreign Judgments
▪ Foreign Judgment not by a competent court
▪ Foreign Judgments not on Merits
▪ Foreign Judgments against International or Indian Law
▪ Foreign Judgments opposed to the principle of Natural Justice
▪ Foreign judgment obtained by fraud
▪ Foreign Judgments founded on breach of Indian Law
▪ Enforcement of Foreign Judgments
o Foreign Award
▪ Effect of Foreign Judgment
▪ Limitation period for Enforcement of Foreign Judgments
o Other definitions: Affidavit, Suit, Plaint, Written Statement
▪ Affidavits – Order 19
▪ Evidence on affidavit
▪ False affidavit
▪ Meaning of suit
▪ Plaint
▪ Necessary Contents of A Plaint
• Important Concepts
o Res Sub-Judice and Res Judicata (Sec. 10,11)
▪ Nature, Scope and Objective
▪ Conditions
▪ Where the matter in issue is same
▪ Test
▪ Suit pending in foreign court
▪ Inherent power to stay
▪ Consolidation of suits
▪ Effect of contravention
▪ Interim orders
o Res Judicata meaning
▪ Principle of Res Judicata
▪ Prerequisites for Res Judicata
▪ Nature and Scope of Res Judicata
▪ Rationale
▪ Failure to Apply
▪ Doctrine of Res Judicata
▪ Constructive Res Judicata
▪ Res Judicata and Estoppel
▪ Res judicata and Res Subjudice
▪ Res judicata and Issue Estoppel
▪ Res Judicata and Stare Decisis
▪ What is Res Judicata and Collateral Estoppel?
▪ Res Judicata landmark cases
▪ Res Judicata landmark cases in India
▪ Exceptions to res judicata
▪ Can Res Judicata be waived?
▪ How to defeat Res Judicata?
▪ Criticism to Res Judicata
o Restitution (Sec. 144)
▪ Doctrine of restitution
▪ Conditions
▪ Who may apply?
▪ Who may grant restitution?
▪ What remedies can the court can grant?
▪ Nature of proceeding
▪ Extent of restitution
▪ Inherent power to grant restitution
▪ Bar of Suit
o Caveat (Sec. 148A)
▪ Meaning of Caveat
▪ When to lodge a Caveat?
▪ Who may lodge a caveat?
▪ Where can a caveat be lodged?
▪ How to file a caveat?
▪ What does a caveat contain?
▪ Right and duties
▪ Rights and duties of the caveator
▪ Rights and duties of court
▪ Rights and duties of the applicant
▪ Limitation of time
▪ Common mistakes made while filing a caveat
o Inherent power of Courts (sec – 148-153B)
▪ Enlargement of time
▪ Payment of court fees
▪ Transfer of business
▪ Section 151 of CPC
▪ Ends of justice
▪ Abuse of process of the court
▪ Limitation
• Execution of Judgement and Decree (Order 21)
o Meaning, Nature and Scope
▪ Execution proceedings under CPC
▪ Courts which can execute decrees
▪ Transfer of decree for execution
▪ Execution of foreign decrees in India
▪ What is a foreign judgment and a foreign decree?
▪ Foreign judgment or decree needs to be conclusive
▪ Mode of enforcement of a foreign judgment or decree
▪ Execution of foreign decree of a reciprocating territory in India
▪ Execution in case of decrees from non-reciprocating territories
▪ Execution of Indian decrees in a foreign territory
▪ Execution of decree at more than one place
▪ Procedure in execution
▪ Section 51
▪ Mode of executing decree
▪ Execution by appointing a receiver
▪ Section 52
▪ Section 53
▪ Section 54
▪ Powers of the transferor court
▪ Powers of the transferee court
▪ Powers of executing court
▪ Mode of executing a decree
▪ Execution by appointing a receiver.
• Jurisdiction and Place of Suing (Sec. 15 to 20)
o
▪ Meaning of jurisdiction
▪ Jurisdiction of Civil Court (Section 9)
▪ Pecuniary jurisdiction ( Section 15)
▪ Territorial Jurisdiction (Section 16 to 20)
• Institution of Suit (Sec. 26)
• Pleadings: (Order 6)
o
▪ What are the Pleadings?
▪ What rules to be followed while drafting of pleadings?
▪ In which stage of civil suit pleading can be amended?
▪ Why do courts allow amendment of Pleadings?
▪ What can be amended in pleading?
▪ Can the pleadings be amended if the suit is debarred by the
Limitation Act
▪ Why is Order 6 Rule 17 criticized?
▪ What happens when an applicant fails to amend in a prescribed
time?
• Plaint and Written Statement (Order 7,8)
o
▪ Necessary Contents of A Plaint
▪ Rejection of plaint
▪ Provisions on the Rejection of Plaint under C.P.C.
▪ Landmark Cases on Rejection of Plaint
• Appearance and Non-Appearance of Parties (Order 9)
o
▪ Appearance of defendant
▪ Does the same provision apply to the non-appearance of the
plaintiff due to death?
▪ Application to set aside the dismissal
▪ When summon is not served
▪ Ex parte appearance
▪ Remedies against an ex-parte decree
▪ Setting aside an ex-parte decree
▪ Sufficient Cause
• Commissions (Sec. 75 to 78 Order 26)
o
▪ Who can be appointed as a commissioner?
▪ What is the procedure for appointment of commissioner?
▪ When can a commissioner be appointed by the Court?
▪ Powers of the commissioner: Order 26 Rule 16-18
▪ Whether the commissioner will be entitled to a Remuneration?
▪ What are the limitations on the commissioner?
• Receiver (Order 40)
o
▪ What is the purpose of the appointment of a receiver?
▪ What is the role of a receiver?
▪ Who can appoint a receiver?
▪ How does the court decide whether to appoint a receiver or not?
▪ Who can apply for the appointment of the receiver?
▪ Who can be appointed as a receiver?
▪ When can a receiver be appointed?
▪ What is the process of appointment of a receiver?
▪ What are the powers of the receiver?
▪ What are the duties of the receiver?
▪ What are the liabilities of a receiver?
▪ Will a receiver be entitled to remuneration?
• Temporary Injunctions (Order 39)
• Summary Procedure (Order 37)
o
▪ What is a bill of exchange?
▪ Promissory notes
▪ Institution of summary suits
▪ Contents of plaint for summary procedure
▪ Detailed procedures
▪ Can a summary suit be tried after the institution of an ordinary suit
on the same cause of action?
▪ Setting aside decree in summary suits
• Appeals from Original Decree ( Section 96 to 99A; Order 41)
o
▪ Essentials of appealing cases
▪ Right to appeal
▪ One right to appeal
▪ No right to appeal
o First appeal
▪ Who may appeal?
▪ Appeal by one plaintiff against another plaintiff
▪ Appeal by one defendant against another defendant
▪ Who cannot appeal?
▪ The appeal against ex parte decree
▪ No appeal against consent decree
▪ No appeal in petty cases
▪ The appeal against Preliminary Decree
▪ The appeal against a dead person
▪ Forms of appeal
▪ Forum of appeal
• Appeals from Appellate Decrees (Section 100; Order 42)
o Nature and Scope
▪ Nature of the second appeal
▪ Scope of the Second Appeal
▪ Cases Laws
▪ The substantial question of law
▪ No letters patent appeal
▪ Forum of the second appeal
▪ Appeal from order
▪ Appeal from Appellate decree
▪ Appeal to the Supreme Court
▪ Grounds of Appeal
▪ Power of High Court to decide the issue of fact
▪ Procedure at hearing
▪ After hearing the appeal the appellate court may-
▪ Document to be submitted with the appeal
▪ Pending appeals
▪ Cases
• General Provisions relating to Appeals (Section 107,108)
o Reference to High Court (Section 113; Order 46)
▪ Nature and scope
▪ Conditions
▪ Who may apply?
▪ Power and duty of referring court
▪ Power and duty of the High Court
▪ Article 228 and Section 113
▪ Procedure at hearing
▪ Costs
• Review (Section 114; Order 47)
o ORDER XLVII
▪ CONDITIONS FOR APPLICABILITY
▪ WHO CAN FILE A “REVIEW”
▪ GROUNDS FOR REVIEW:
• Revision (Section 115)
o Meaning
▪ Nature, Scope and Object
▪ Who may file?
▪ Conditions for Revision
▪ Precedents
▪ No appeal lies
▪ Jurisdictional error
▪ Subordinate court
▪ Alternative remedy
▪ Limitations on revisional jurisdiction
▪ Suo moto exercise of power
▪ Interlocutory Orders
▪ Death of Applicant
▪ Doctrine of Merger
▪ Procedure of Revision
▪ Recording of Reasons
▪ Letters Patent Appeal
▪ Conversion of Revision into Appeal
▪ Law commission’s view on Revision
• Case laws
o Brijlal Ramjidas v. Govindram Gordhandas Seksaria(Judgement)
o Neeta vs. Shiv Dayal Kapoor & Others(Res sub-judice)
o Lowe v. Haggerty(Res judicata)
o Official Trustee vs Sachindra Nath(Jurisdiction and place of suing)
o Annapoorani Ammal vs G.Thangapolam(Appeals from Appellate Decree)
o A Sreenivasa Rao and Ors v. Govt of Andra Pradesh(Reference to High
Court)
Definitions (Sec. 2)
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:
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 of. 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.
Contents of a Decree
A decree always follows the judgement, coincide with it and contains:
1. The suit’s number – Every suit has a particular number and it should be
mentioned in the decree.
2. 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.
3. 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.
4. The relief or the remedy granted to the aggrieved party – The decree
should in particular mention the relief granted to the particular party as
a remedy and not a reward.
5. 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.
6. 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.
7. 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.
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.
The claim or defence of each pre-emptor shall take effect proportionately if the
claims decreed are equal in degree.
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.
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.
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.
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.
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).
Section 2(5) “foreign Court” means a Court situated outside India and not
established or continued by the authority of the Central Government.
“We are not provincial as to say that every solution of the problem is wrong
because we deal with it otherwise at home”.Therefore, we shall not brush aside
foreign judicial processes unless doing so, “would violate some fundamental
principle of justice & deep-rooted traditions of common weal”.
(b) Where it has not been given on the merits of the case;
(d) Where the proceedings in which the judgment was obtained are opposed
to natural justice;
(f) Were it sustains a claim founded on a breach of any law in force in India.
PROPOSITION
The Actual test for deciding whether the judgment has been given on merits
or not is to see whether it was merely passed as a matter of course, or by way
of penalty of any conduct of the defendant, or is based upon a consideration
of the truth or falsity of the plaintiff”s claim.
In the case of Gurdas Mann v. Mohinder Singh Brar,he Punjab & Haryana High
Court held that an ex parte judgment and decree which did not show that the
plaintiff had led evidence to prove his claim before the Court, was not
executable under Section 13(b) of the CPC since it was not passed on the
merits of the claim.
PROPOSITION
In the case of I & G Investment Trust v. Raja of Khalikote, a suit was filed
under the English Jurisdiction to avoid the consequences of the Orissa Money
Lenders Act. The Court held that the judgment was passed on an incorrect
view of the international law. The Court further observed that, although the
judgment was based on the averment in the plaint that the Indian law did not
apply, however, there was no “refusal” to recognise the local laws by the Court.
PROPOSITION
In the case of Lalji Raja & Sons v. Firm Hansraj Nathuram, the Supreme Court
held that just because the suit was decreed ex-parte, although the defendants
were served with the summons, does not mean that the judgment was
opposed to natural justice.
PROPOSITION
Under Section 13(d) of CPC, the following proposition may be laid The foreign
court must follow the principle of natural justice while delivering the judgment.
Judgement must be impartial, given fairly, moreover, the parties to the dispute
should be given appropriate notice of the initiation of legal proceedings. Equal
opportunity of presenting their case, in order to avoid any allegation of not
fulfilling the principles of natural justice in case the judgment or decree comes
to the Indian court for enforcement. Unless this is done the judgment or decree
passed by a foreign Court may violate the Principles of Natural Justice.
It has been said “Fraud and Justice never Dwell together” (fraus et jus
nunquam cohabitant); or “ Fraud and deceit ought to benefit none” (fraus et
dolus nemini patrocinari debent).
In the case of Satya v. Teja SingH, the Supreme Court held that since the
plaintiff had misled the foreign court as to its having jurisdiction over the
matter, although it could not have had the jurisdiction, the judgment and
decree was obtained by fraud and hence inconclusive.
Under Section 13(e) of CPC, the following proposition may be laid -Where the
plaintiff misleads the Foreign court and the judgment or decree is obtained on
that basis, the said Judgment may not be enforceable, however, if there is
some error in the judgment then the Indian courts will not sit as a Court of
appeal to rectify the mistake or error.
The respondent Indian company did not file defence and therefore the English
Court passed an ex-parte order awarding a certain amount in favor of the
petitioner foreign company on consideration of evidence and on the merits of
the claim filed by the foreign company. By a notice issued under sections 433
and 434 of the Companies Act, 1956, the petitioner foreign company called
upon the respondent Indian company to pay the amount due under the order
of the English Court.
After the respondent Indian company failed to honour the amount, the
petitioner Foreign Company filed a petition for winding up of the Indian
company. In the above circumstances since the records of the case manifestly
revealed that the respondent Indian company was unable to pay its debts, the
petition for winding up was admitted vide order dated 4.4.2007 under sections
433 and 434 of the Companies Act, 1956.
PROPOSITION
Under Section 13(f) of CPC, the following proposition may be laid -A judgment
passed by a foreign court, which breaches any law in force in India may not
be enforceable, except where it is based on a contract having a different
“proper law of the contract”.
(2) Together with the certified copy of the decree shall be filed a certificate
from such superior court stating the extent, if any, to which the decree has
been satisfied or adjusted and such certificate shall, for the purposes of
proceedings under this section, be conclusive proof of the extent of such
satisfaction or adjustment.
(3) The provisions of section 47 shall as from the filing of the certified copy of
the decree apply to the proceedings of a District Court executing a decree
under this section, and the District Court shall refuse execution of any such
decree, if it is shown to the satisfaction of the Court that the decree falls within
any of the exceptions specified in clauses (a) to (f) of section 13.
Explanation II: “Decree” with reference to a superior Court means any decree
or judgment of such court under which a sum of money is payable, not being
a sum payable in respect of taxes or other charges of a like nature or in respect
of a fine or other penalties, but shall in no case include an arbitration award,
even if such an award is enforceable as a decree or judgment.
Moloji Nar Singh Rao vs Shankar Saran, Supreme Court held that a foreign
judgment which does not arise from the order of a superior court of a
reciprocating territory cannot be executed in India. It ruled that a fresh suit
will have to be filed in India on the basis of the foreign judgment.”
Therefore Under Section 44A of the CPC, a decree or judgment of any of the
Superior Courts of any reciprocating territory are executable as a decree or
judgment passed by the domestic Court. The judgment, once declared, will be
executed in accordance with section 51 of the Code. Thereafter, the court may
order measures such as attachment and sale of property or attachment without
sale, and in some cases arrest (if needed) in enforcement of a decree. This is
done by the methods discussed below.
In Marine Geotechnics LLC v/s Coastal Marine Construction & Engineering Ltd,
the Bombay High Court observed that in case of a decree from a non-
reciprocating foreign territory, the decree-holder should file, in a domestic
Indian court of competent jurisdiction, a suit on that foreign decree or on the
original, underlying cause of action, or both.
However, in both the cases, the decree has to pass the test of Section 13 CPC
which specifies certain exceptions under which the foreign judgment becomes
inconclusive and is therefore not executable or enforceable in India.
Foreign Award
An award passed by foreign arbitrator is enforceable in a country where it was
made and can also be enforced in India. Courts may refer to CPC or any other
statute while considering the procedure to be followed for enforcement of
foreign awards under Foreign Awards (Recognition and Enforcement) Act (45
of 1961)
• Three years, commencing from the date of the decree or where a date
is fixed for performance; in case of a decree granting a mandatory
injunction; and
• Twelve years for execution of any other decree commencing from the
date when the decree becomes enforceable or where the decree directs
any payment of money or the delivery of any property to be made at a
certain date, when default in making the payment or delivery in respect
of which execution is sought, takes place.
A judgment obtained from a non-reciprocating territory can be enforced by
filing a new suit in an Indian court for which a limitation period of 3 years has
been specified under the Limitation Act, 1963 commencing from the date of
the said judgment passed by foreign court.
Affidavits – Order 19
Affidavits are dealt under Order 19 of the Code. It is a sworn statement made
by the person who is aware of the facts and circumstances which have taken
place. The person who makes and signs is known as ‘Deponent’. The deponent
makes sure that the contents are correct and true as per his knowledge and
he thereby concealed no material therefrom. After signing the document, the
affidavit must be duly attested by the Oath Commissioner or Notary appointed
by the court of law.
The person who gives attestation to the affidavit shall make sure that the sign
of the deponent is not forged. The affidavit shall be drafted as per the
provisions of the code. It must be paragraphed and numbered properly.
Even though the “affidavit” has not been defined in the code, it basically means
“a sworn statement in writing made specifically under oath or affirmation
before an authorized officer or Magistrate.”
Essentials
There are some basic essentials which are required to be fulfilled while
submitting the affidavit in the court:
As per Rule 3, an affidavit shall contain only those facts to which the deponent
is aware of as true to his personal knowledge. However, interlocutory
applications can be filed wherein he can admit his belief.
Evidence on affidavit
As per section 3 of the Evidence Act, affidavits are not considered as evidence.
When there is a need to prove the facts, oral evidence is normally taken into
consideration by the court. However, Rule 1 Order 19 is invoked by the Court
when it finds that it is necessary to make an order for any particular fact which
may be proved by affidavit. If a person provides evidence under the affidavit
then the opposing counsel has the right to cross-examine or reply-in-affidavit.
Further, the person who is making an affidavit shall put on those facts only to
which he has true personal knowledge. If he gives a statement, not to his
personal knowledge then in such case he shall mention the true source. The
counsel shall advise the deponent to make sure that he puts facts which he
knows rather than what he believes.
The court can reject the affidavit if it is not properly verified and not in
conformity with the rules of the code. At the same time the court can also give
an opportunity to the party to file the affidavit properly.
Meaning of suit
The word suit has not been defined anywhere in the Code, but it is a proceeding
which is commenced by presentation of a plaint. In Hansraj Gupta and Ors.
vs. Official Liquidators of the DehraDun-Mussoorie Electric Tramway
Co.Ltd., the Privy Council has defined the expression “suit” as a civil
proceeding instituted by presentation of a suit.
Plaint
A Plaint is a legal document that contains the content of any civil suit which
shows the Plaintiff’s claim after filing suit. The plaintiff is the first step of the
Plaintiff in the form of a legal document for the commencement of suit and it
shows what a Plaintiff wants from that suit. The concept of a plaintiff is
mentioned in the Civil Procedure Code. Through the help of the plaintiff, the
plaintiff narrates or describes the cause of action and related information which
is considered as essential from the viewpoint of the suit.
In the case of the plaintiff, the cause of action consists of two divisions, first is
the legal theory (the factual situation based on which the plaintiff claims to
have suffered) and second is the legal remedy that the plaintiff seeks from the
court. A plaint is considered an important concept because it is the foremost
and initial stage to initiate any lawsuit and helps to find a civil court of
appropriate jurisdiction.
Order VII of the Code of Civil Procedure deals, particularly with plaint. In Order
VII of CPC, there are many different rules which deal with different constituents
of plaint. Rules 1 to 8 deal with the particulars of the plaint. Rule 9 of CPC
deals with how the plaint will be admitted and after that Rule 10 to 10-B talks
about the return of the plaint and the appearance of parties. And the main
Rules i.e 11 to 13 deal with the rejection of the plaint and in which
circumstances the plaint can be rejected.
Section 26 of the Code of Civil Procedure states “Every suit shall be instituted
by the presentation of a plaint or in such other manner as may be prescribed.”
This section clearly shows that plaint is very much necessary for the
establishment of a suit before the civil or commercial court.
• Plaint should contain the name of the commercial or civil court where a
suit will be initiated.
• Plaint should contain details of the plaintiff such as the name, address,
and description.
• Plaint should contain the name, residence, and description of the
defendant.
• When a plaintiff has some defects or problems in health or any type of
disability, the Plaint should contain a statement of these effects.
• Plaint should contain the facts due to which cause of action arises and
where the cause of action arises it should also be mentioned.
• Plaint should not only mention facts due to which cause of action arises
but also those facts which help in recognizing the jurisdiction.
• Plaint should also contain about that relief which the plaintiff seeks from
the court.
• When the plaintiff is ready to set off a portion of his claim, the Plaint
should contain that amount which has been so allowed.
• Plaint should contain a statement of the value of the subject-matter of
suit not only for the purpose of jurisdiction but also for the purpose of
court-fees.At last, the content that should be on plaint is the plaintiff
verification on oath.
This shows that the plaint is a necessary component for the successful initiation
of suits in commercial or civil courts and plays a very important role throughout
the suit. Some additional particulars which were not mentioned above include
the following: Plaintiff shall state the exact amount of money to be obtained
from the defendant as given under Rule 2 of order VII whereas Rule 3 of order
VII of CPC states that when the plaint contains subject matter of immovable
property, then the property must be duly described.
Important Concepts
This rule is applicable to the trial of the suit and not the institution. It does not
restrict the court from passing interim orders like injunction or stay. However,
it applies to revisions and appeals.
Conditions
Section 10 of the Civil Procedural Code, 1908 deals with the conditions required
to apply the principle of res sub judice. The conditions in the process of
application of res sub-judice are:
According to Indian Evidence Act, 1872 “matter in issue” are of two kinds:
• In a competent court
Section 10 also specifies that the former suit must be pending before a court
which is competent to carry out the trial. If the former suit is pending before
an incompetent court, no legal effects can flow from it.
Illustrations:
‘X’ and ‘Y’ decide to enter into a contract for the sale of machines. ‘X’ is the
seller and ‘Y’ is the purchaser. Y defaulted in paying the amount of the sale to
X. X first filed a suit for recovery of the entire amount in Bangalore.
Subsequent to this, X filed another suit at Bombay High Court demanding Rs.
20,000 as outstanding balance. In X’s suit Y took the defence that X’s suit
should be stayed since both the suits are on similar issue. However, the
Bombay court held that since X’s first suit and the second suit have similar
issues similar to the first suit, the subsequent suit is liable to be stayed.
‘P’ was an agent in Patna who agreed to sell goods in Odisha to ‘M’. ‘P’ the
agent then filed a suit for balance of accounts in Patna. ‘M’ sues the agent ‘P’
for accounts and his negligence in Odisha; while the case was pending in Patna.
In this case, Patna court is precluded from conducting trial and can petition
Odisha Court to direct a stay of proceedings in Patna Court.
The moment the above conditions are satisfied, a court cannot proceed with
the subsequently instituted suit since the provisions contained in Section 10
are mandatory and the court cannot exercise its discretion. The order of stay
can be made at any stage of the proceedings.
However, Section 10 takes away the power of the court to examine the merits
of the case thoroughly. If the court is satisfied with the fact that the
subsequent suit can be decided purely on legal point, it is open for the court
to decide in such a suit.
Test
The test of applicability for Section 10 is whether the decision in a former given
suit would operate as res judicata(decided case) in the subsequent suit. It this
happens, then the latter suit must be stayed. This can also be inferred from
S.P.A Annamalay Chetty vs. B.A Thornbill.
Even where the provisions of Section 10 do not strictly apply, a civil court has
inherent power under Section 151 to stay a suit to achieve justice. Additionally
courts can also consolidate different suits between the same parties in which
the matter of issue is substantially the same. In Bokaro and Ramgarh Ltd. vs.
State of Bihar and Another(1962) the matter in issue was regarding the
ownership of a property. The court in this case used its power and consolidated
different issues having the same matter.
Consolidation of suits
The objective behind Section 10 is to avoid two contradictory decisions in the
same matter by different courts. To overcome this the courts can pass an order
of consolidation of both the suits. In the case of Anurag and Co. and Anr. vs.
Additional District Judge and Others, it was explained that consolidation of
suits is ordered under Section 151 for meeting the ends of justice as it saves
the party from a multiplicity of cases, delays and expenses. The parties are
also relieved from producing the same evidence at two different places.
Effect of contravention
Any decree passed in contravention of Section 10 is not null and therefore
cannot be disregarded completely. It is to be clearly understood here that it is
only the trial and not the institution of the subsequent suit which is barred
under this section. But this right which is given in favour of parties can be
waived by them. Hence, if the parties in a suit decides to waive their rights
and ask the court to proceed with the subsequent suit, they cannot afterwards
challenge the validity of the subsequent proceedings.
Interim orders
Interim orders are the temporary orders which are passed for a limited
duration just before the final order. An order of stay under Section 10 does not
take away the power of the court to pass interim orders. Therefore, the courts
can pass such interim orders as it thinks fit like attachment of property,
injunction etc.
In simpler words, the thing has been judged by the court, the issue before a
court has already been decided by another court and between the same
parties. Hence, the court will dismiss the case as it has been decided by
another court. Res judicata applies to both civil and criminal legal systems. No
suit which has been directly or indirectly tried in a former suit can be tried
again.
In a case, ‘A’ new lawsuit was filed in which the defendants requested that the
Court dismiss the lawsuit with a plea of res judicata. She was barred from
bringing a claim of res judicata because her previous claim was dismissed for
fraud. The Court said that the defence of res judicata must be proved by
evidence.
The scope has been decided in the case of Gulam Abbas v. State of Uttar
Pradesh. In this case the court incorporated the rules as evidence as a plea of
an issue already tried in an earlier case. Judgment of this case was difficult as
the judges should apply res judicata. It was decided that res judicata is not
exhaustive and even if the matter is not directly covered under the provisions
of the section it will be considered as a case of res judicata on general
principles.
Rationale
The principle of res judicata is founded upon the principles of justice, equity,
and good conscience and it applies to various civil suits and criminal
proceedings. The purpose of this principle was to inculcate finality into
litigation.
Failure to Apply
When a court fails to apply Res Judicata and renders a divergent verdict on
the same claim or issue and if the third court faces the same issue, it will apply
a “last in time” rule. It gives effect to the later judgment and it does not matter
about the result that came differently the second time. This situation is
typically the responsibility of the parties to the suit to bring the earlier case to
the judge’s attention, and the judge must decide how to apply it, whether to
recognize it in the first place.
Section 11 of the Civil Procedure Court incorporates the doctrine of res judicata
also known as “ rule of conclusiveness of judgment”. The doctrine of res
judicata has been explained in the case of Satyadhyan Ghosal v. Deorjin Debi.
The judgment of the court was delivered by Das Gupta, J. An appeal was made
by landlords who attained a decree for ejectment against the tenants who were
Deorajin Debi and her minor son. However, they have not been yet able to get
possession in execution soon after the decree was made. An application was
made by the tenant under Section 28 of the Calcutta Thika Tenancy Act and
alleged that they were the Thika tenants. This application was resisted by the
landlords saying they were not Thika Tenants within the meaning of the Act.
The tenants moved to the High Court of Calcutta under the Civil Procedure
Code. The court applied the principle of res judicata to achieve the finality in
litigation. The result came that the original court, as well as the higher court,
can proceed for any future litigation on the basis that the previous decision
was correct.
The doctrine of res judicata says –
• Estoppel flows from the act of parties whereas res judicata is the result
of the decision of the court.
• Estoppel proceeds upon the doctrine of equity, a person who has induced
another to alter his position to his disadvantage can not turn around and
take advantage of such alteration. In other words, res judicata bars
multiplicity of suits and estoppel precludes multiplicity of representation
of cases.
• Estoppel is a rule of evidence and is enough for the party whereas res
judicata expels the jurisdiction of a court to try a case and prevents an
enquiry at the threshold (in limine).
• Res judicata forbids a person averring the same thing twice in the
litigations and estoppel prevents the person from saying two opposite
things at a time.
• According to the principle of res judicata, it presumes the truth of
decision in the former suit while the rule of estoppel precludes the party
ton deny what he or she has once called truth.
• Res sub judice applies to a matter that is pending trial whereas res
judicata applies to a matter adjudicated or arbitrated.
• Res subjudice prohibits the trial of a suit that is pending decision in a
previous suit whereas res judicata prohibits the trial of a suit that has
been decided in a former suit.
The issue in the first and second case is the same; The party against whom
the doctrine is invoked had the full opportunity to litigate the issue; That party
actually litigated the issue; The issue litigated must have been necessary to
the final judgment.
The doctrine of res judicata bars the re-litigation of a claim that has already
been litigated. There are four factors that must be satisfied for res judicata to
apply:
• A previous case in which the same claim was raised or could have been
raised;
• The judgment in the prior case involved the same parties or their privies;
• The previous case was resolved by a final judgment on the merits;
• The parties should have a fair opportunity to be heard.
For example, Abela sued John who is a supervisor for sexually harassing her
and due to that, she had to quit her job. Abela provided the evidence by
producing emails written by him. But John argued that the emails were not
real but the judge said that the emails were real and could be submitted as
evidence. After a few months after the trial, Abela filed a lawsuit against her
employer as he did not take any action about the complaint. If the emails that
were submitted by Abela, were not genuine the issue would fall under collateral
estoppel. The issue of authenticity of the emails was already decided in the
previous case and hence the court cannot redecide the issue.
In the case of Brobston v. Darby Borough, Brobston was the plaintiff who was
injured while driving a vehicle on a public highway in the Borough of Darby.
Due to a transit company that was occupying the street, the steering wheel of
the machine was pulled by the driver’s hand. This resulted in injury to the
complainant.
A suit was filed against the street railway in the Court of Philadelphia to recover
damages. It was proved that negligence was there on the part of both the
parties also known as contributory negligence. The judgment was passed in
favour of the defendant. Later action was again brought against the same
defendant based on the same cause of action and against the same transit
company. The judgment in the first proceeding was brought to the attention
of the court. The plaintiff admitted that Brobston was the same person who
was the plaintiff in the action brought earlier in Philadelphia.
The action was brought for injuries occurring at the same place and the verdict
of the court was in favour of the defendant. The facts and cause of action were
the same but the only difference was the name of the defendant. The legal
question involved was what are the rights of the plaintiff in this case. The court
refused the facts which were proven by the counsel. Hence a nonsuit was
entered because of the earlier judgment. The plaintiff should have been
permitted to call the witness but no merit was seen.
These conditions were entered in the record to enable the Court to pass the
legal question involved. The plaintiff had the right to recover under the
circumstances. The counsel made an offer to prove the facts which the court
had refused to do. A complaint was made that the plaintiff must have been
permitted to call the witness to establish the matters. The facts were essential
for the legal determination of liability before the court and consent of both the
parties were needed.
Henderson v. Henderson
Henderson v Henderson was a case in which the English Court confirmed that
a party can not raise a claim in litigation which was raised in the previous suit.
In 1808, two brothers Bethel and Jordan Henderson became business partners
and they operated in both Bristol and Newfoundland. In 1817, their father died
on a date that was not recorded. The wife of Jordan Henderson was appointed
as the administrator and she brought legal proceedings in the Court. She also
brought separate proceedings and claimed that he had failed to provide an
account as executor of the will. The Court of Appeal held that there was no
estoppel by convention and that the proceedings were an abuse under the rule
in Henderson v Henderson. The Court of Appeal held that just one of Mr
Johnson’s claims should be struck out for a reflective loss.
Johnson v Gore Wood and Company is a leading UK case in which the House
of Lords decided the case relating to litigating issues that had already been
determined in the previous litigation. Mr Johnson was a director and majority
shareholder in a lot of companies, including Westway Homes Limited and Gore
Wood & Co were a firm of lawyers who acted for the companies and also
occasionally worked for Mr Johnson in his personal capacity.
In 1998, Gore Wood was acting for the company and served notice to acquire
land from a third party upon the lawyers for that third party. The third-party
alleged that this was not service, and refused to convey the land. Legal
proceedings followed and ultimately the company succeeded. However,
because the third party was penurious and was funded by legal aid, the wood
company was unable to regain the full amount of its losses and legal costs.
Accordingly, the wood company issued proceedings against Gore Wood for
negligence and alleged that their losses would have been entirely prevented if
Gore Wood had properly served the original notice on the third party instead
of the third party’s lawyers.
Gore Wood ultimately settled those claims, and the settlement agreement
included two provisions that were later proved that they were important.
Firstly, it included a clause stating that any amount which Mr Johnson wished
to subsequently claim against Gore Wood in his personal capacity would be
limited to an amount, excluding interest and costs. The confidentiality clause
contained an exception which permitted the settlement agreement to be
referred which Mr Johnson brought against Gore Wood.
Mr Johnson then issued proceedings against Gore Wood in his personal name,
and Gore Wood made applications to dismiss some or all of the claims on the
basis that it was an abuse of process to seek to litigate again the issues which
had already been compromised in the agreement.
In the historic case of Daryao v. State of Uttar Pradesh, the doctrine of res
judicata is of universal application. The Supreme Court of India placed the
doctrine of res judicata on a still broader foundation. In this case, petitioners
filed a writ petition in the High Court of Allahabad under Article 226 of the
Constitution. But the suit was dismissed. Then they filed independent petitions
in the Supreme Court under the writ jurisdiction of Article 32 of the
Constitution. The defendants raised an objection regarding the petition by
asserting that the prior decision of the High Court would be operated as res
judicata to a petition under Article 32. The Supreme Court dismissed and
disagreed with the petitions.
The court held that the rule of res judicata applies to a petition under Article
32 of the Constitution. If a petition is filed by the petitioner in the High Court
under Article 226 of the Constitution and it is dismissed on the basis of merits,
it would be operated as res judicata to bar a similar petition in the Supreme
Court under Article 32 of the Constitution.
In the leading case of Devilal Modi vs. STO, B challenged the validity of an
order of assessment under Article 226. The petition was dismissed on the basis
of merits. The Supreme Court also dismissed the appeal that was made against
the order on the basis of merits. B again filed another writ petition in the same
High Court against the same order of assessment. This time the petition was
dismissed by the High Court. The Supreme Court held that the petition was
barred by the principle of res judicata.
A peculiar problem arose in the case of Avtar Singh v. Jagjit Singh. A filed a
civil suit, a contention regarding the arbitration of the Court was taken by B.
The objection was sustained and the plaint was returned to the plaintiff for the
presentation. The Revenue Court did not have any jurisdiction when A
approached the Revenue Court so he returned the petition. Once again A filed
a suit in the Civil Court. B contended that the suit was barred by the doctrine
of res judicata.
In the case of Mathura Prasad v. Dossibai N.B. Jeejeebhoy, it was held that
res judicata constitutes between the parties to the previous case and cannot
move again in collateral proceedings. Generally, a decision by a competent
court operates as res judicata even on point of law. However, a question of
law which is not related to facts that gives rise to the right, will not operate as
res judicata. When the cause of action is different or the law is different, the
decision has been already altered by an authority. The decision made will be
declared as valid and res judicata will not operate in the subsequent
proceeding.
The principle of res judicata does not apply in the Writ of Habeas Corpus as far
as High Courts are concerned. Article 32 gives power to the Supreme Court to
issue writs and some power is given to High Courts under Article 226. The
Courts need to give proper reasoning while applying the doctrine of res
judicata. There are some exceptions to res judicata which allow the party to
challenge the validity of the original judgment even outside the appeals. These
exceptions are usually known as collateral attacks and are based on
jurisdictional issues. It is not based on the wisdom of the earlier decision of
the court but the authority to issue it. Res judicata may not be applicable when
cases appear that they need relitigation.
In the case of P. Bandhopadhya and others v. Union of India and others, The
appeal was made in the Bombay High Court and the appellants asserted that
they will be entitled to receive an amount as damages. The Supreme Court
bench held that the appellants were not entitled to receive damages which
were pensionary benefits under the Pension Rules 1972. They were entitled to
receive benefits as the case was barred by the principle of res judicata.
In the case of Public Interest Litigation, the doctrine of res judicata does not
apply. As the primary object of res judicata is to bring an end to litigation so
there is no reason to extend the principle of public interest litigation.
Dismissal of special leave petition in limine does not operate as res judicata
between the parties. A fresh petition will not be filed either under Article 32 or
under Article 226 of the Constitution.
In the case of Beliram and Brothers v. Chaudhari Mohammed Afzal, it was held
that a minors suit cannot be brought by the guardian of the minors. However,
it was brought in collaboration with the defendants and the decree obtained
was by fraud within the Indian Evidence Act, 1872 and it will not operate res
judicata.
In the case of Jallur Venkata Seshayya vs. Thadviconda Koteswara Rao, a suit
was filed in the Court so that certain temples are called public temples. A
similar suit was dismissed by the Court two years ago and the plaintiff
contended that it was negligence on the part of the plaintiffs (of the previous
suit) and therefore the doctrine of res judicata can not be applied. However,
the privy council said that the documents were suppressed which means that
the plaintiff in the earlier suit had bona fide intention( something that is
genuine and there is no intention to deceive).
The title to real estate and the right to collect rent depended upon one and the
same construction of a will. In an interpleader over the rents, A got the decree.
B appealed, without supersedeas, and secured a reversal, but, before his
appeal was decided, A had sued him in ejectment, invoking the decree, and
recovered a judgment for the real estate. B did not appeal from this judgment,
but, after the reversal of the decree, he sued A in ejectment for the land,
relying upon the reversal.
Doctrine of restitution
The doctrine of restitution implies to brings the aggrieved party to the original
position where the benefit of the erroneous judgment of the court is received
by the other party who was not entitled to such benefit. Restitution is not a
new concept and Section 144 merely gives statutory recognition to this
principle. Section 144 of CPC deals with the application for restitution.
The Court that passed the decree/order will grant restitution on receiving an
application of the party entitled to the benefit
The Supreme Court in the case of Lal Bhagwant Singh vs Rai Sahib Lala Sri
Kishen Das held that the party who received the benefit of the erroneous
judgment is by law under an obligation to make restitution to the other party
for his loss.
The same view was reiterated by the court in the case of Binayak Swain vs
Ramesh Chandra Panigrahi, the doctrine of restitution means that, on reversal
of a decree or order, an obligation is imposed by law on the party who has
received the benefit of the erroneous decree to make restitution to the other
party for his loss. This obligation automatically arises when the decree or order
is reversed or modified by the Court. It necessarily carries with it the right of
restitution for all the things that have been done under the erroneous decree.
The Court while making restitution is under a duty to restore the parties, as
far as possible, at the time when the erroneous action of the Court displaced
them.
The Apex Court in the case of Union Carbide Corporation v. Union of India held
that restitution is a principle of equity and is subject to the Court’s discretion.
Section 144 of CPC doesn’t grant any new substantive right to the party not
already obtained under the general law. The Court is obliged to ensure that no
one goes back with a feeling that he was impaired by an act which he did on
the faith of the Court’s order.
Conditions
In applying for restitution, the following conditions must be fulfilled:
The decree/order must have been varied or reversed in any appeal, revision
or is set aside or modified. The party in respect of the reversed or modified
decree/order must be entitled to benefit by way of restitution or otherwise.
The relief claimed by the party must be properly consequential of the variation,
reversal, setting aside or modification of the decree/order.
The Orissa High Court in Banchhanidhi Das vs Bhanu Sahuani laid down certain
principles to be followed for the application of restitution:
There should be an erroneous judgment passed by the court. The party to the
record must have received the benefit of the erroneous judgment. The party
applying for restitution must show that as a consequence of the erroneous
judgment or decree, a party received the benefit.
Was a party to the order or decree being varied, reversed, set aside, or
modified. Is entitled to any benefit by way of restitution or otherwise in respect
of the order or decree being varied, reversed, set aside, or modified.
The court may grant restitution against the party who has wrongly received
the benefit under the erroneous decree or order of the court. The party
receiving the benefit is under an obligation to make restitution to the party for
what he has lost.
Nature of proceeding
The nature of proceeding under Section 144 is execution proceedings. The
process to get an order or decree into effect is called execution proceedings.
Extent of restitution
Section 144 is not exhaustive but inclusive. Even if a matter does not fall within
the scope of Section 144, the court has the power to grant restitution on its
discretion.
It was held in K.N. Krishnappa vs T.R. Gopalkrishna Setty that under Section
151 C.P.C, the inherent powers of the Court can be invoked for restoring the
parties to the position in which they were, prior to the execution.
Bar of Suit
Section 144(2) bars a separate suit instituted for obtaining any remedy if
restitution or other relief could be obtained by making an application under
Section 144(1).
During an ongoing suit or litigation and in that the application is already been
made or is expected to be made; The suit is about to be instituted and in that
suit, an application is expected to be made.
While filing a petition of caveat in Delhi High Court, follow the below-mentioned
steps:
Support the caveat petition with an affidavit. Both petition and the affidavit
should be signed by the caveator; Apart from this, a vakalatnama, impugned
order (if any), and proof of service of notice of caveat is also to be submitted
to the Court.
The Reserve Bank of India Employees association & anr. V. The Reserve Bank
of India & Ors, a caveat petition was filed by the appellants apprehending an
injunction order by the respondent. For the caveat filed, the plaintiffs were
served with a notice and all other relevant papers or documents. They were
also informed that the application will be moved on 28-10-1980. However, the
application was not heard on the said date, rather heard later on 30-10-1980.
The petitioners argued that as the court failed to provide the plaintiff with the
notice of the order, the judgment would be void and null, in accordance with
clause (3) of Section 148A. The court disagreed with the appellants and held
that caveat gives the right to be informed about hearing of the case and not
takes away the right of a court to deliver a judgment or order on the merits of
the case. Mere lodging of caveat does not deprive the court of its power to
deliver orders or judgments.
However, the precedent set in the above case was overruled in C.G.C
Slddalingappa v. G.C Veeranna, wherein the applicant on filing a caveat was
served with a notice. However, the case was decided on a later date without
giving notice to the appellant about the same. The court held that the provision
regarding notice under Section 148A(3) is mandatory and non-compliance of
the same defeats the very object of 148A, thus the order passed is void and
null.
Limitation of time
As provided by the section in clause 5, the caveat stays in force for a period of
90 days. If within these 90 days an application is filed, then the court, as well
as the applicant, has to give notice to the caveator. However, if no caveat is
filed within these 90 days, then no one has the duty to inform the caveator,
i.e. if the application is filed after the expiration of such period the caveat
stands null and void. If the caveator still wants to be informed then a fresh
caveat needs to be lodged for the next 90 days.
• Section 148 and Section 149 deals with grant or enlargement of time;
• Section 150 deals with the transfer of business;
• Section 151 protects the inherent powers of the courts; and
• Section 152, 153 and Section 153A deals with amendments in
judgments, decrees or orders or in separate proceedings.
Enlargement of time
Section 148 of the CPC states that where any term is fixed or awarded by the
Court for the doing of any act provided by CPC, it is the discretionary power of
the Court that the Court may enlarge such period from time to time, even
though the term originally fixed or awarded may have departed.
In simple words, when a term is fixed by provision for the doing of any act,
the Court has the power to extend such period up to 30 days. This power is
exercisable in the deficiency of any specific provision to the contrary which
reduces or rejects or withholds the period. The power is limited to the
extension of the time fixed by it and is of a discretionary nature.
Payment of court fees
According to Section 149 of CPC, “Where the entire or a portion of any fee
commanded for any certificate by the law for the time being in force relating
to court-fees has not been met, the Court may, in its discretion, at any step,
permit the person by whom such fee is payable, to pay the whole or part as
the case may be, of such court-fee; and upon such payment, the document,
in regard of which such fee is payable, shall have the same force and result as
if such fee had been paid in the initial situation.”
It permits the court to allow a party to make up for the lack of court fees due
on a complaint or notice of appeal etc., even after the expiry of the limitation
period for filing of the lawsuit or appeal, etc. Payment of the expected court
fee is compulsory for any document imputable with court-fee to be presented
in the court. If the necessary court fee is paid within the time set by the court,
it cannot be negotiated as time-barred. Such payment made within the time
fixed by the court retrospectively validates a faulty document. The power of
the court is discretionary and must be exercised only in the importance of
justice.
Transfer of business
According to Section 150 of CPC, “Save as otherwise granted, where the
business of any Court is assigned to any other Court, the Court to which the
business is so assigned shall have the same authority and shall make the same
duties as those sequentially presented and forced by or under this Code upon
the Court from which the business was so assigned.”
For example- When the business of a court A is transferred to any other court
B, the court B will exercise the same power or perform the same duties given
or commanded by CPC upon the transfer court.
Ends of justice
In the case of Debendranath v Satya Bala Dass, the meaning of “ends of
justice” was explained. It was held that “ends of justice” are solemn words,
also there’s words that are not merely a polite expression as per juristic
methodology. These words also indicate that Justice is the pursuit and end of
all law. However, this expression is not vague and indeterminate notion of
justice according to laws of the land and statutes.
The Court is allowed to exercise these inherent powers in cases like- to recheck
its own order and correct its error, to pass injunction in case not included by
Order 39, and an ex parte order against the party, etc.
The word ‘abuse’ is said to occur when a Court uses a method in doing
something that it is never expected to do is the perpetrator of the said abuse
and there is a failure of justice. The injustice done to the party must be given
relief on the basis of the doctrine of actus curiae neminem gravabit (an act of
the court shall prejudice no one). A party to a case will become the perpetrator
of the abuse in cases when the said party does acts like obtaining benefits by
functioning fraud on the Court or a party to the proceedings, prompting the
multiplicity of proceedings, etc.
Section 152 of CPC deals with the “Amendment of judgements, decrees, and
order.” According to Section 152 of CPC, the Court has the power to change
(either by own actions or on the application of any of the parties) written or
arithmetical mistakes in judgments, decrees or orders or faults arising from an
unexpected lapse or imperfection.
Section 153 deals with the “General authority to amend.” This Section
empowers the court to amend any fault and error in any proceedings in suits
and all required improvements shall be made for the purpose of arranging
raised issues or depending on such proceeding.
Section 152 and 153 of the CPC makes it clear that the court may set correct
any blunders in their experiences at any time.
Limitation
The exercise of inherent powers carries with it certain barriers such as:
They can be applied only in the deficiency of particular provisions in the Code;
They cannot be applied in dispute with what has been expressly given in the
code;
They can be applied in rare or exceptional cases; While operating the powers,
the court has to follow the method shown by the legislature; Courts can neither
exercise jurisdiction nor entrust in them by law; To abide by the principle of
Res Judicata i.e., not to open the issues which have already been decided
finally; To pick a mediator to make an award afresh; Substantive rights of the
parties shall not be taken away; To limit a party from taking proceedings in a
court of law; and To set apart an order which was valid at the moment of its
issuance.
Illustration:
X files a suit against Y for Rs 20,000 and obtains a decree against him. Here X
would be called the decree-holder, Y is the judgment-debtor, and the amount
of Rs 20,000 is the judgment- debt. Y is bound to pay Rs 20,000 to X, as the
decree is passed against him. Suppose Y refuses to pay the decretal amount
to X, X can recover the said amount by execution through the judicial process.
The principles governing the execution of a decree or order are given in Section
36 to Section 74 (substantive law) and Order 21 of the code which provides
for procedural law.
The Court further observed that numerous provisions of Order 21 take care of
various situations providing effective remedies to judgment-debtors, decree-
holders and claimant objectors. In the cases, where provisions are not capable
of giving relief inadequate measures and appropriate time, to an aggrieved
party, then filing a regular suit in the civil court is the solution. The Court
further explained that the judicial quality of the remedy under Civil Procedure
Code is considered to be superior as compared to other statutes therefore, the
judges are expected to do better as they are entrusted with the administration
of justice
Section 37 of the Code further establishes the scope of the expression “court
which passed a decree” with the object of enabling a decree-holder to recover
the fruits of the decree. The courts which fall within the said expression are as
follows:
The court which has jurisdiction to try the suit at the time of execution, if the
court of first instance ceased to exist; The court which at the time of execution
had jurisdiction to try the suit, if the court of first instance has ceased to have
jurisdiction to execute the decree.
Explanation to the section clarifies that the court of first instance shall have
jurisdiction to execute a decree even in the case of any area being transferred
from the jurisdiction of the court of first instance to the jurisdiction of any other
court. In such cases, the court to the jurisdiction of which such area has been
transferred will also have jurisdiction to execute the decree, provided that the
said court had jurisdiction to try the said suit when the application for
execution was made.
Section 39(2) states that the Court of the first instance may suo motu send it
for execution to any subordinate Court of competent jurisdiction.
The Section further states that if the execution of the decree is against a person
or property outside the territorial jurisdiction of the court passing the decree,
then such Court has no power to execute the decree.
In Mahadeo Prasad Singh v. Ram Lochan, the Supreme court held that the
provisions of Section 39 are not mandatory because the court will have
discretion in the matter which can be exercised by it, judicially. The decree-
holder would not have any vested or substantive right to get the decree
transferred to another court.
Execution of foreign decrees in India
The Code lays down the procedure for execution of foreign judgments and
decrees in India. While enforcing a foreign judgment or decree in India it
should be ensured that the judgment or decree is a conclusive one, given on
the merits of the case and by a court having competent jurisdiction.
While filing the execution application the original certified copy of the decree
shall be filed along with a certificate from the superior court stating the extent
to which the decree has been satisfied or adjusted.
The Bombay High Court, in Marine Geotechnics LLC vs. Coastal Marine
Construction & Engineering Ltd., observed that when a decree has been
pronounced by a court of a non-reciprocating foreign territory, it can not be
executed unless a fresh suit has been filed by the decree-holder on that foreign
decree or on the original cause of action, or both. The suit must be filed within
a period of three years from the date of the judgment or decree. The person
seeking execution shall show that the foreign decree passes the tests of
Section 13.
The court further observed that Section 13 of the Code provides substantive
law and Section 44A of the Code is an enabling provision and it enables a
decree-holder to put a decree obtained from a court of a reciprocating territory
into execution. Section 13 clearly expresses the principles of private
international law, that a court will not enforce a foreign judgment of a
competent court.
The decree which has to be executed should be of an Indian Court and it should
be for execution in a foreign territory.
The Central Government should have established the transferee court in such
foreign territory. The State Government should have declared by notification
in the Official Gazette that this section will apply to the said foreign Court.
In Prem Lata Agarwal vs Lakshman Prasad Gupta & Ors, Supreme Court
observed that “simultaneous execution proceeding in more than one place is
possible but the power shall be used in a restricted manner, in exceptional
cases by imposing proper terms so that the judgment debtors do not face any
hardship because of several executions are being allowed to be proceeded with
at the same time.” Therefore, simultaneous execution proceedings are not
without jurisdiction or illegal.
Moreover, as per Section 39 of the Code, simultaneous execution of a decree
is permissive in nature as it provides for execution of a decree either by the
Court of first instance or by the Court to which it is sent for execution.
Procedure in execution
Section 51 to 54 of the Code talks about the procedure in execution.
Section 51
The section states the jurisdiction and power of the court in executing a decree.
An application for execution of the decree can either be oral or written. The
court may execute decree as per the mode of implementation prayed by the
decree-holder or as the court deems fit.
Section 52
This section deals with the cases where the decree is passed against the legal
representative of the judgment-debtor (deceased). So long as the property of
the deceased remains in the hands of a legal representative, a decree can be
executed against the property, if it is for the payment of money out of the
property of the deceased and if the decree has been passed against the party
as the legal representative of the deceased person.
Section 54
When a decree has been passed for partition or for the separate possession of
a share of an undivided estate for the payment of revenue to the government,
this section comes into play. The partition of the estate or share needs to be
made by the collector, but if the collector denies making the partition of the
revenue paying property, then the civil court can do so. To attract the
provisions of this section, the plaintiff asking for the division of government
revenue is not deemed as an essential condition.
Section 42 provides for the powers of the transferee court and states that the
Court to which a decree has been sent for execution shall have the same
powers in execution of such decree as if it had been passed by itself.
The Court has the power to punish the persons who cause obstructions in the
execution of the decree and the power shall be exercised by the court as if the
decree has been passed by it. The main object of giving such powers to the
transferee court is to ensure that the judgment-debtor pays the money or
gives such other thing to the decree-holder as would be directed by the decree.
• To send the decree for execution to another Court under section 39.
• To enforce execution of a decree against the legal representative of the
deceased judgment-debtor under section 50.
• To order attachment of a decree.
However, the court to which a decree is sent for execution will not have the
power to order execution at the instance of the transferee of the decree and
the power to grant leave to execute a decree passed against a firm against
any person, other than a person referred to in Rule 50 of Order XXI.
By sale of the property with or without the attachment of the property. If the
property is situated within the jurisdiction of the court then it has the power
to attach the property.
By arrest and detention. However, this mode should not be exercised without
giving a reasonable opportunity to the judgment-debtor, in the form of a show-
cause notice as to why he should not be imprisoned.
The jurisdiction was defined in the case of Hirday Nath vs Ram Chandra. The
High Court of Calcutta stated that jurisdiction may be defined as judicial power
of Court to hear and determine the cause and adjudicate upon it.
• Pecuniary value
• Local limits of Court
• The subject matter of Court
So the Court before taking the cognizance of offence, the following points
needs to be taken into consideration:-
The civil court shall have jurisdiction to try all the suits except the suit which
is impliedly or expressly barred.
A suit which is related to the right to property or suit in which office is contested
is of civil nature suit, notwithstanding that such right may depend entirely on
the decisions of questions as to religious ceremonies or rites. It is immaterial
whether the fees to the office are attached or not, or whether such an office is
attached to a particular place or not.
The suit which is expressly barred means the suit which is barred by any
statute or any other law for the time being in force. The legislature has an
option to bar the jurisdiction of the civil court with respect to a particular class
of suit keeping itself with the ambit of the power conferred on the Constitution
of India. The establishment of the tribunal has taken away the jurisdiction of
the civil court with regard to the subject matter that is allotted to the tribunal
on the first instance, however, if any questions related to law raised, or any
provision of the act so created the tribunal can be looked into by the civil
court. The civil court has no jurisdiction over the matter in which court under
the Code of Criminal Procedure, Revenue Court has exclusive jurisdiction, or
matter is dealt with special tribunal dealt under special statutes. example
Motor Accidents Claims Tribunal, Cooperative Tribunal.
The Supreme Court held that the ‘Civil Court has inherent jurisdiction in all
types of civil matter as per Section 9 of CPC unless the suit is expressly or
impliedly barred.”
This means that Legislature can exclude the jurisdiction of the civil court by
inserting a provision or clause in any Act itself.
In the case of State of A.P VS Manjeti Laxmikanth Rao, the court held that for
the purpose of constructing the test to determine the exclusion of civil court it
is necessary to look into the intent of the legislature to exclude the jurisdiction.
It means that the test is done to determine whether there is any reason for
the exclusion of jurisdiction and if there is any reason, to further find out
whether the just reason is justified or not. Although justification is not
subjected to judicial review. Once the court satisfies itself of the reason, then
it needs to determine whether the Act which excludes the jurisdiction provides
an alternative remedy for the same or not. An alternative remedy must be in
regard to such function which civil court must exercise in absence of such
exclusion and would be empowered to pass any order which the civil court in
similar circumstances would have passed.
In the case of Bar Council of West Bengal vs A. Austin. The High Court of
Calcutta states that when the statute which bars the jurisdiction does not
provide an alternative remedy then the jurisdiction of the civil court cannot be
excluded.
If a part of the suit is excluded from the jurisdiction of civil court then it is not
necessary that the entire suit cannot be instituted in the civil court.
In the case of Shri Panch Nagar Parak vs Purushottam Das. If there are no
express provisions in any statute the court needs to look into the purpose,
scheme and relevant provisions of the Act in order to determine implied
exclusion of the jurisdiction of a civil court. Section 15 to 20 deals with the
place of suing.
• Territorial jurisdictions
• Pecuniary jurisdictions
• Subject matter jurisdiction
Whenever the suit is brought before the court the first question is to determine
whether the court has jurisdiction to deal with the matter. If the court has all
these (territorial, pecuniary, or subject matter jurisdiction then only the court
has the power to deal with the case. In the case, if the court does not have
any of the above-mentioned factors then it will be considered as lack of
jurisdiction or the irregular exercise of jurisdiction. when the court who does
not have jurisdiction decide the case and give a decision then such decision
will be considered as void or voidable depending upon the different
circumstances.
The issue arises:- who will determine the value of the suit?
Ordinarily, the plaintiff makes the valuation of the suit for the purpose of
determining the pecuniary jurisdiction of the court unless it prima facie appears
to the court that the valuation was not done correctly. When the court finds
that the valuation was either done overvalued or undervalued, then the
valuation will be done by the Court and the court will direct the party to
approach the appropriate forum.
The jurisdiction of the court is decided by the plaintiff valuation but not the
amount for which decree is passed.
When the court finds that valuation is done improperly for the purpose of
avoiding the jurisdiction of the appropriate court, the court may require the
plaintiff to prove that valuation was done in a proper manner.
When the suit is filed for obtaining the compensation or relief for the wrong
caused to immovable property situated within the jurisdiction of two or more
courts, the suit may be filed in any court within whose local jurisdiction a
portion of the property is situated. But in respect for the value of subject
matter of the suit, the entire claim is cognizable by such court.
When there is uncertainty with regards to the local limits of the jurisdiction of
courts, and any of the courts has satisfied that there is a ground for
uncertainty, record the statement and may proceed with the case to entertain
and dispose of the case. The decree passed by such court will have the same
effect as if the property was situated within the local limits of its jurisdiction.
In a case where the court taking the cognizance of case does not record the
statement and objection is brought before Appellate or Revisional Court, the
Appellate or Revisional court shall not allow the objections unless it is satisfied
that at the time of institution of suit there was no reasonable ground for
uncertainty as regards to jurisdiction of Court and there has been a failure of
justice.
Section 19– Suits with regard to movable property when Applicable where the
suit is for the wrong caused to the person or property.
Conditions
If the wrong was done within the local limits of the jurisdiction of one courtand
the defendant voluntarily resides or carries on his business or works for
personal gain within the local limits of the jurisdiction of another court then
the plaintiff has an option to file at either court.
Conditions
If the breach of contract was done or cause of action arises within the local
limits of the jurisdiction of one court and defendant voluntarily resides, carries
on his business or works for personal gains within the local limits of the
jurisdiction of another court the plaintiff has an option to file at either court
Example
• pecuniary limits
• competence of the executing court with regards to local limits of its
jurisdiction
is not brought in the Court at the first instance, before settlement or in a case
where the issues are settled, then no objection will be allowed by the Revisional
or Appellate Court unless there is a failure of justice.
Non- Applicability
• Territorial jurisdiction
• Pecuniary jurisdiction
In the case of Karan Singh vs Chaman Paswan
When the court commits an error in entertaining the suit with regard to
pecuniary or territorial jurisdiction then the decision given by such court will
not be void but will be considered as the illegal exercise of jurisdiction.
Parties should not give the evidence in the pleadings from which facts are
proved.
Pleadings should contain the material facts in the brief form. Parties should
avoid using irrelevant or immaterial statements while drafting the Plaint.
Provided that no application for amendment shall be allowed after the trial has
commenced, unless the court comes to the conclusion that in spite of due
diligence, the party could not have raised the matter before the
commencement of trial.”
The Proviso of Order 6 Rule 17 states that court will not allow application of
amendment after the trial has been commenced unless court comes to the
conclusion that party did not raise the relevant facts before the
commencement of the trial. This proviso gives discretionary power to the court
to decide on the application of pleadings after the commencement of the Trial.
An institution of the suit is necessary for applying for amendment of pleadings.
This provision was deleted by the Civil Procedure (Amendment) Code, 1999.
This omission was made to ensure consistency in new changes in the civil code.
But later, it was restored by the Civil Procedure (Amendment) Code, 2000.
This amendment has given power to the court to allow application of the
pleadings with some limitation.
In the case of Gurdial Singh v. Raj Kumar Aneja, the court stated that any
person who is applying for the amendment of pleadings should state that what
is to be altered, amended or modified in the original pleadings.
In the case of the Rajesh Kumar Aggarwal & Ors v. K.K. Modi & Ors5, the
court stated that Amendment of pleadings consists of two parts :
In the first part, the word ‘may’ gives discretionary power to the court to allow
or disallow application of pleadings.
In the second part, the word ‘shall’ gives obligatory direction to the civil court
to allow the application of pleadings if this amendment is necessary for the
purpose of determining the real questions in controversy between the parties.
When the court allows the application of the Amendment of Pleadings then it
relates back to the date of suit. But in the case of Sampath Kumar v.
Ayyakannu6, the court stated that in some special cases, the court can direct
that amendment of pleadings will not relate back to the date of suit.
In the case of Kishan Das Vithoba Bachelor, the court stated that there are
two necessary conditions to be satisfied before granting leave for amendment
of pleadings:
• This grant of leave should not leads to the injustice to other party.
• This Amendment of pleadings is necessary for determining the real
question of controversy between parties.
In the case of Rajkumar Gurawara (Dead) Thr. L.Rs. vs S.K. Sarawagi And
Co. Pvt. Ltd. And Anr, the honorable Supreme Court stated certain conditions
when amendments of Pleadings can be allowed they are:
Step 1 – Firstly the Plaintiff or Defendant who wants to amend its pleadings
can write an application for the amendment of pleadings to the concerned civil
court
Step 3 – He has to pay a required court fee under court fees Act, 1870.
Step 4- Applicant needs to tell the purpose of the alteration in his application.
Step 5 – Judge will read the application and if he thinks fit that this alteration
or amendment is necessary for the purpose of determining the real questions
in controversy between the parties Than he will grant permission for
amendment for pleading.
Step 6 – After getting the order from the court, the applicant needs to file new
pleadings within the prescribed time and if no time has been prescribed by the
court then he needs to file it in 14 days from the date of order.
Step 7 – He also needs to give a copy of altered pleadings to the opposite party
In the case of South Konkan Distilleries & Anr v. Prabhakar Gajanan Naik &
Ors9, the court stated that it is settled principle that court can disallow the
application of amendment if on the date of the filing of Application it is barred
by the limitation. But this not mean that court cannot order grant for
Application. For securing the interest of justice, the court has discretionary
power to allow application of amendment of pleading.
In the case of Pankaja & Anr v. Yellappa (D) by LRs & Ors, the court held that
there is no settled principle that which states that court can reject the
application of amendment if on the date of filing the application it is barred by
limitation. The court stated the discretion to allow or not to allow application
depends on the factual background of the case. If facts & circumstance of the
case clearly establishes that this amendment is necessary to determine the
cause of action and to avoid further litigation then the court should allow this
application.
In the case of Ragu Thilak D. John v. S. Rayappan, the court stated that it is
disputed fact that application of amendment will be allowed or not when it is
barred by the Limitation. But in many cases, the issue of limitation is made an
issue in the suit, In those cases, application of amendment is allowed for
disposing of the case.
Order VI rule 18 states that when a party had application for amendment and
it is allowed by the court through an order. But the party does not amend it
within the time prescribed in the order or if no time is prescribed, within the
fourteen days from issuance of order then the party will be not permitted to
amend.
A Plaint is a legal document that contains the content of any civil suit which
shows the Plaintiff’s claim after filing suit. The plaint is the first step of the
Plaintiff in the form of a legal document for the commencement of suit and it
shows what a Plaintiff wants from that suit. The concept of a plaint is
mentioned in the Civil Procedure Code. Through the help of plaint, the plaintiff
narrates or describes the cause of action and related information which is
considered as essential from the viewpoint of the suit.
In the case of plaint, the cause of action consists of two divisions, first is the
legal theory (the factual situation based on which the plaintiff claims to have
suffered) and second is the legal remedy that the plaintiff seeks from the court.
A plaint is considered an important concept because it is the foremost and
initial stage to initiate any lawsuit and helps to find a civil court of appropriate
jurisdiction.
Order VII of the Code of Civil Procedure deals, particularly with plaint. In Order
VII of CPC, there are many different rules which deal with different constituents
of plaint. Rules 1 to 8 deal with the particulars of the plaint. Rule 9 of CPC
deals with how the plaint will be admitted and after that Rule 10 to 10-B talks
about the return of the plaint and the appearance of parties. And the main
Rules i.e 11 to 13 deal with the rejection of the plaint and in which
circumstances the plaint can be rejected.
Section 26 of the Code of Civil Procedure states “Every suit shall be instituted
by the presentation of a plaint or in such other manner as may be prescribed.”
This section clearly shows that plaint is very much necessary for the
establishment of a suit before the civil or commercial court.
Necessary Contents of A Plaint
A plaint is a legal document that contains a lot of necessary contents in the
absence of which, it cannot be considered as a plaint. The contents necessary
for a plaint are mentioned in Rules 1 to 8 of Order VII of CPC. These are
mentioned below:
• Plaint should contain the name of the commercial or civil court where a
suit will be initiated.
• Plaint should contain details of the plaintiff such as the name, address,
and description.
• Plaint should contain the name, residence, and description of the
defendant.
• When a plaintiff has some defects or problems in health or any type of
disability, the Plaint should contain a statement of these effects.
• Plaint should contain the facts due to which cause of action arises and
where the cause of action arises it should also be mentioned.
• Plaint should not only mention facts due to which cause of action arises
but also those facts which help in recognizing the jurisdiction.
• Plaint should also contain about that relief which the plaintiff seeks from
the court.
• When the plaintiff is ready to set off a portion of his claim, the Plaint
should contain that amount which has been so allowed.
• Plaint should contain a statement of the value of the subject-matter of
suit not only for the purpose of jurisdiction but also for the purpose of
court-fees.
• At last, the content that should be on plaint is the plaintiff verification on
oath.
This shows that the plaint is a necessary component for the successful initiation
of suits in commercial or civil courts and plays a very important role throughout
the suit. Some additional particulars which were not mentioned above include
the following: Plaintiff shall state the exact amount of money to be obtained
from the defendant as given under Rule 2 of order VII whereas Rule 3 of order
VII of CPC states that when the plaint contains subject matter of immovable
property, then the property must be duly described.
Rejection of plaint
The Plaint shall be rejected in certain situations when requirements are not
fulfilled. Some of the situations in which the plaint is rejected are as follows:
• The plaint is rejected in a case where the cause of action is not disclosed.
If the cause of action is not disclosed then it is not possible to prove the
damage caused to the plaintiff. To seek relief against the defendant, the
facts need to be mentioned clearly. In the case of Snp Shipping Service
Pvt. Ltd. v. World Tanker Carrier Corporation, the plaint was rejected
and the suit dismissed under Order 7, Rule 1(a) of the C.P.C.,1908.
• The plaint is also rejected in a case where the plaintiff relief is
undervalued and the plaintiff is requested by the court to correct the
valuation within the given time frame but the plaintiff fails to do so.
• The plaint is rejected in a case where all the documents are not properly
stamped and the plaintiff on being required by the court to supply the
required stamp paper within a time to be fixed by court fails to do so.
• The plaint is mostly rejected due to the statement mentioned in the plaint
secured by any law or statute that doesn’t give any right to the plaintiff
to file the suit.
• When a duplicate copy of the plaint is not submitted whereas it is
mentioned that it is mandatory to submit the duplicate copy then in that
condition plaint is liable to be dismissed.
• The plaint is rejected when the plaintiff fails to comply with the provisions
of Rule 9 of Order VII of C.P.C.
• Order VII Rule 12 of C.P.C states the procedure on rejecting the plaint
so that it can be used as a precedent for future cases.
• Order VII Rule 13 of C.P.C states that rejection of the plaint does not
stop the presentation or filling of the fresh plaint.
Two modes which are mentioned to show the manner in which the plaint can
be rejected:
Kalepur Pala Subrahmanyam v Tiguti Venkata: In this case, it was said that a
plaint cannot be rejected in part and retained part under this rule. It must be
rejected as a whole and not with the rejection of one part and acceptance of
another. This judgment is considered as a landmark judgment on the rejection
of the plaint.
Sopan Sukhdeo Sable v. Asstt. Charity Commr.: In this case, it was held that
where the suit was at the stage of recording of evidence and an application
under Order 7 Rule 11 of the code was filed to delay the proceedings of the
suit, the application under Order 7 rule 11 of the code was rejected.
Bibhas Mohan Mukherjee v. Hari Charan Banerjee: In this case, it was held
that an Order rejecting a plaint is a decree and hence it is applicable and
binding in other cases which involves the rejection of the plaint.
1. ROJA vs. U.S. RAYU: Court, in this case, held that any application for the
rejection of the plaint under Order 7 Rule 11 of the code of civil procedure
can be filed at any stage and the court has to dispose of the same before
proceeding with the trial.
Kuldeep Singh Pathania vs. Bikram Singh Jarya: In this, the court held that for
an application under Order VII Rule 11(a) of Code of Civil Procedure, only the
pleadings of the plaintiff can be looked into and neither the written statement
nor averments can be considered for inquiry.
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.
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.
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:
• The defendant does not admit the claim of the plaintiff, either wholly or
any part of it.
• 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.
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 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 appearance
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.
• He can apply to the court under rule 13 of Order IX for setting aside the
ex-parte decree passed by the court.
• 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.
• He can apply for a review under Order 47 Rule 1.
• A suit on the ground of fraud can be filed.
The limitation period for making an application for setting aside an ex-parte
decree is of 30 days.
When the summons has not been duly served. 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.
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.
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):
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.
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:
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)
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)
After conducting such investigation the commissioner has to submit the report
within the time prescribed by the Court.
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.
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.
Under the code itself, the receiver can be appointed to prevent the ends of
justice being defeated. [section 94(d)]. Similarly, for the execution of a decree,
the court has the power to appoint a receiver. [section 51(d)].
There are provisions in special acts which provides for the appointment of a
receiver by the court. For example, section 84 of the Companies Act, 2013
provides for the appointment of a receiver. Similarly, section 69A of the
Transfer of Property Act, 1882 also provides for the appointment.
For instance,
In chapter XIX of the Delhi High Court (Original Side) rules, 1967, the following
process is provided:
The court has the discretionary power to not confer all the rights on the
receiver. Even if the court has given all the powers to him, he should take the
advice of the court in all important decisions related to the property to protect
himself.
• Furnish security to account for what he will receive from the property as
income.
• Submit accounts (half yearly) for such period or form as directed by the
court. The account basically includes the income received and expenses
incurred for the protection and preservation of the property.
• Pay the amount due to the court.
• Take responsibility for any reduction in the value of the property because
of the receiver’s willful negligence.
• Discharge the duties personally and should not delegate or assign any of
the rights entrusted to him by the court.
The receiver has to fulfil all the duties and responsibilities entrusted to him by
the court. Otherwise, the court can take action against him and make him
personally liable for any loss which might occur due to his negligence or wilful
failure to protect and preserve the property.
The court, after recovering all the losses from the proceeds received after
selling receiver’s property, will pay the balance (if any) to the receiver.
The receiver is bound in keeping down the expenses and taking care of the
property in his possession as a prudent man would observe in connection with
his own property under similar circumstances.
Under order 40 rule (2), the court can fix the remuneration to be paid to the
receiver for the services provided by him. The court can pass a general or
specific order regarding the same.
For example, The Delhi high court has provided in Delhi High Court (original
side) rules,1967, the for remuneration of the receiver as follows:
Under the Specific Relief Act, 1963, Section 37 deals with a temporary
injunction. Temporary injunctions continue for a specified period of time or
until the further order of the court. They may be allowed at any stage in a suit
and are managed by the Code of Civil Procedure (1908).
The essential purpose for granting this injunction is to secure the interests of
an individual or the property of the suit until the final judgment is passed. The
factors looked into while providing such an injunction are:
Some examples of cases stated in the CPC where temporary injunction can be
granted are:
(a) deliver to or send to the other party by registered post, immediately after
the order of granting the injunction,
(i) a copy of the request for the injunction together with a copy of the affidavit
filed in support of the request;
(b) to file, on the day on which such injunction is granted or on the day
immediately following that day, an affidavit stating that the copies aforesaid
have been so delivered or sent.
However, the court must dispose of such suits within a period of thirty days
from the date of granting an injunction and in instances where it is not able to
do so, it must specify the reasons for its inability.
Order for injunction may be discharged, varied or set aside– The CPC also
states that, at the request of any party who is dissatisfied with the order, any
order for injunction may be discharged or varied or set aside by the Court;
subject to the knowledge that if a party made a false or misleading statement
in a request for a temporary injunction or in any affidavit support, for such a
request.
Furthermore, where an injunction has been issued after giving a party the
opportunity to be heard, the order shall not be discharged, varied or set aside
on the request of that party unless such discharge, variation or set-aside is
necessitated by a change of circumstances or unless the Court is satisfied that
the order has caused that party difficulty and hardship.
The interlocutory orders passed with regard to injunctions as stated in the CPC
are as follows:
Power to order interim sale– Upon application by any party to a lawsuit, the
Court may order the sale by any person named in that order, and on such
terms as it considers fit, of any movable property that is the subject of such a
lawsuit or that is attached before a judgment in such a lawsuit, which is subject
to rapid and natural decline or which it may, for any other just and sufficient
reason may be desirable to be sold off.
(1) the Court may, at the request of any party to the proceedings and under
such conditions as it considers fit:
(a) make an order for the detention, preservation or inspection of any property
that is the subject of the proceedings or as to which any question may arise
therein;
(b) for all or any of the aforementioned purposes authorize any such person
for any such purpose;
(2) The provisions governing the execution of the proceedings shall, mutatis
mutandis (making necessary alterations while not affecting the main point at
issue), apply to a person authorized to enter under this rule.
Application for such orders to be made after notice:
(1) The plaintiff may request an order under Rule 6 at any time after the suit
has been instituted.
(2) An application by the defendant for a similar order may be made at any
time after its appearance.
When a party may be put in immediate possession of land which is the subject-
matter of a suit: Where land paying revenue to Government, or a tenure liable
to sale, is the subject-matter of a lawsuit, if the party in possession of such
land or tenure fails to pay the Government revenue, or the rent due of the
tenure to the proprietor, as the case may be, and such land or tenure is
consequently ordered to be sold, any other party to the lawsuit claiming to
have an interest in such land or tenure may, upon payment of the revenue or
rent due previously to the sale (and with or without security at the discretion
of the Court), be placed in immediate possession of the land or tenure; and
the Court in its decree, may award to the defaulting party the amount so paid,
with interest thereon at the rate that the Court considers fit, or may charge
the amount so paid, with interest thereon at the rate ordered by the Court, in
any adjustment of the accounts may be directed by the decree passed in the
suit.
A summary suit can be instituted in High Courts, City Civil Courts, Courts of
Small Causes and any other court notified by the High Court. High Courts can
restrict, enlarge or vary the categories of suits to be brought under this order.
[2]
Hundies
Promissory notes
A promissory note contains an unconditional promise to pay a certain sum to
the order of a specifically named person or to bearer—that is, to any individual
presenting the note. A promissory note can be either payable on demand or at
a specific time. [6]
Liquidated demand is a demand for a fixed sum e.g. a debt of Rs. 50. It is
distinguished from a claim of unliquidated damages, which is a subject of the
discretionary assessment by the court. [7]
• On a written contract, or
• On an enactment (the recoverable sum should be fixed in money or it
should be in the nature of a debt other than a penalty), Or
• On a guarantee (here the claim should be in respect of a debt or
liquidated demand only)
A summary suit is instituted by presenting a plaint in an appropriate civil court.
Under summary procedures, the defendant has to get the leave to defend from
the court. A burden is placed upon the defendant to disclose the facts sufficient
to entitle him to defend in the application for leave to defend.
Detailed procedures
• After institution of a summary suit, the defendant is required to be
served with a copy of the plaint and summons in the prescribed form.
• Within 10 days of service of summons, the defendant has to enter an
appearance.
• If the defendant enters an appearance, the plaintiff shall serve on the
defendant a summons for judgment.
• Within 10 days of service of such summons, the defendant has to apply
for leave to defend the suit.
• Leave to defend may be granted to him unconditionally or upon such
terms as may appear to the Court or Judge to be just.
• If the defendant has not applied for leave to defend, or if such an
application has been made and refused, the plaintiff becomes entitled to
the judgment forthwith.
• If the conditions on which leave was granted are not complied with by
the defendant then also the plaintiff becomes entitled to judgment
forthwith.
• Sub-rule (7) of Order 37 provides that save as provided by that order
the procedure in summary suits shall be the same as the procedure in
suits instituted in an ordinary manner. [9]
However, the word trial, in this case, has not been used in its widest sense.
The concept of res sub-judice is not applicable to subsequently instituted
summary suits.
The Court or the Judge dealing with the summary suit can proceed up to the
stage of hearing the summons for judgment. Judgment can also be passed in
favor of the plaintiff if:-
(a) The defendant has not applied for leave to defend or if such application has
been made and refused, or,
(b) The defendant who is permitted to defend fails to comply with the
conditions on which leave to defend is granted. [11]
The following principles are applicable in the matter of grant or refusal of leave
to defend in summary suits:
(a) If the defendant satisfies the court that he has a substantial defence, the
defendant is entitled to an unconditional leave of appeal.
(b) If the defendant raises triable issues indicating that he has a fair or
reasonable defence, although not a positively good defence, the defendant is
ordinarily entitled to unconditional leave to defend.
(c) Even if the defendant raises triable issues, if a doubt is left with trial judge
about the defendant’s good faith, conditional leave to defend is granted.
(d) If the defendant raises a defence which is plausible but improbable, the
trial judge may grant conditional leave to defend with conditions as to time or
mode of trial, as well as payment into court, or furnishing security.
(e) If the defendant has no substantial defence and raises no genuine triable
issue, then no leave to defend is granted.
(f) Where part of the amount claimed by the plaintiff is admitted by the
defendant to be due from him, leave to defend shall not be granted unless the
amount so admitted to be due is deposited by the defendant in Court.[12]
The plaintiff is entitled to a decree of a sum not exceeding the sum mentioned
in plaint, together with interest and cost in following conditions:-
Rule 7 of Order 37 says that except as provided in the order, the procedure in
suits under Order 37 shall be the same as the procedure in suits instituted in
an ordinary manner. Rule 4 of Order 37 specifically provides for setting aside
the decree, therefore, provisions of Rule 13 of Order 9 will not apply to a suit
filed under Order 37.
Under rule 4 of order XXXVII, the court has the power to set aside the ex parte
decree passed in summary suit. The court is empowered to stay the execution
of such a decree. Under this rule, an application is made either because the
defendant did not appear in response to summons and limitation expired, or
having appeared, did not apply for leave to defend the suit in the prescribed
period. To set aside ex parte decree, the defendant has not only to show
special circumstances which prevented him from appearing but also facts
which would entitle him to leave to defend.[14]
The term ‘appeal’ nowhere has been defined under the CPC. The Black’s Law
Dictionary, while construing the concept of ‘appeal’ in its most original and
natural sense, explains it as “the complaint to a superior court for an injustice
done or error committed by an inferior one, whose judgment or decision the
Court above is called upon to correct or reverse. It is the removal of a cause
from a Court of inferior jurisdiction to one of superior jurisdiction, for the
purpose of obtaining a review and retrial”.
Right to appeal
The right to appeal is a statutory & substantive one. The statutory nature of
an appeal implies that it has to be specifically conferred by a statute along with
the operative appellate machinery as opposed to the right to institute a suit,
which is an inherent right. It is substantive in the sense that it has to be taken
prospectively unless provided otherwise by any statute. This right could be
waived off via an agreement, and if a party accepts the benefits under a
decree, it can be estopped from challenging its legality. However, an appeal
accrues to the law as found on the date of the institution of the original suit.
No right to appeal
No person has a right to appeal against a decision unless he is a party to the
suit, except on special leave of the Court. An essential element to be taken
into account while considering one’s right to appeal is whether such person is
adversely affected by the decision/suit, which is a question of fact to be
determined in each case.
In the instant case, it was held that the pre-existing right to appeal to the
Federal Court continued to exist and the old law which created such a right
also continued to exist. It construed to the preservation of this right while
recognizing the change in its judicial machinery from the Federal Court to the
Supreme Court. However, the continuance of the old law is subject to the
provisions of the Constitution.
First appeal
Section 96 of the CPC provides that an appeal shall lie from a decree passed
by any Court exercising original jurisdiction to the authorized appellate Courts,
except where expressly prohibited. A combined reading of Sections 2(2), 2(9),
& 96 of the CPC indicates that a regular First appeal may/may not be
maintainable against certain adjudications.
The language of Section 98(2) is imperative & mandatory in terms. The object
appears to be that on a question of fact, in the event of a difference of opinion,
views expressed by the lower court needs to be given primacy & confirmed.
The appellate court cannot examine the correctness of the finding of facts and
decide upon the correctness of either view.
Forms of appeal
Appeals may be broadly classified into two kinds:
Forum of appeal
It is the amount/value of the subject-matter of the suit which determines the
forum in which the suit is to be filed, and the forum of appeal. The first appeal
lies to the District Court if the value of the subject matter of the suit is below
Rs. 2,00,000; and to the High Court in all other cases.
• An appeal shall lie to the High Court for the decision made by the District
Court.
• An appeal lies if the decree is passed ex-parte.
• If High Court is satisfied that substantial question of law is involved it
shall formulate the decisions.
It is to be noted that the second appeal is on the grounds of a substantial
question of law not on finding errors of facts.
Question of fact wrongly determined should not be the criteria for the second
appeal
Cases Laws
In the case of Dudh Nath Pandey vs Suresh Chandra Bhattasaali, it was held
thatThe High Court can not set aside the finding of facts by the First Appellate
Court.
In the case of Dnyanoba Bhaurao vs. Maruti Bhaurao Marnor, it was held that
finding of fact is against the weight of evidence and there is no question of law
in this.
The substantial question of law
The term substantial question of law has not been defined anywhere under
CPC but it was first time interpreted by Supreme Court in the case of Sir Chunni
Lal Mehta &Sons Ltd vs Century Spg & Mfg co.Ltd.
The proper test in case of determining the substantial question of law differs
from our opinion and opinion of the court, in our opinion, it is of general public
importance or if it affects the rights of parties and also when decisions are not
finally settled by the court or federal body and in cases wherein the court
perceives that there involves a principle then that principle to be applied when
there is a substantial question of law.
In the case of Mahindra and Mahindra Ltd. vs. Union of India, it was held that
case should involve questions of law not merely question of law.
The court should record the reason for the substantial question of law.
In the case of M.S. V Raja vs. Seeni Thevar, it was held by the Supreme Court
that formulation of a substantial question of law may be inferred from the kinds
of questions actually considered and decided by the court in the second appeal,
even though the substantial question of law is not specifically and separately
formulated.
The second appeal can only be filed when there involves a question of law and
question of law should be substantial. If it is of general public importance or if
it affects the rights of parties substantially. Section 100 Of CPC also deals with
the importance of the question of law;
Clause (3) states The memorandum of appeal shall state that a substantial
question of law is involved.
Clause (4) states the High Court is satisfied that it involves a substantial
question of law in any case and it shall formulate the question.No second
appeal in certain cases. This is defined under Section 102 of CPC:
In this, the petitioner has the option to move the case to another bench where
there is more than one judge.
Article 226 and Article 227 of the Indian Constitution has provision and
judgement passed in Article 226 states that it can be issued to any person or
authority in any cases and Article 227. It empowers The High Court to have
superintendence over subordinate courts and tribunals. The judgement of
Article 227 does not fall in this category.
The intra-court appeal in case of High Court is for 30 days and it is for 90 days
in case of Supreme Court.
• The high court of Bombay held that LPA is not maintainable under Section
8 of arbitration.
• Only section 37 of the arbitration act would apply.
• Restoration application along with the application of condonation is not
maintainable.
• LPA shall not lie from the decree, judgement of the single bench under
section 100.
• Order of suit, not a judgement from one court to another is not
maintainable.
Grounds of Appeal
• Appellant has to mention grounds of appeal in the memorandum of
appeal.
• Appellant has to mention the ground of objection and present it before
the Appellate Court.
• The new ground can be raised by additional application later on, and the
High Court has the power to reject or accept the application.
If it has not been decided by lower Appellate Court or both by the Court at the
first instance and to the lower Appellate Court or if it has been wrongly decided
by Court and there involves a substantial question of the law which is defined
under section 100 of CPC.
Procedure at hearing
• Every appeal shall be in the form of a memorandum signed by the
appellant and to be presented before the court.
• Where memorandum is not made as per prescribed by law then the court
has the power to either reject or return the application to the appellant
and can give the party prescribed time to submit an application again.
• When an appeal is not made on time then a statement of reason along
with some proof should be submitted to court and court must satisfy
from the application that there is reasonable cause for the application
not made on time.
• No order of stay of execution of a decree shall be made unless the court
decides to hear the appeals.
• Registry of Memorandum of appeal is necessary.
• The Appellate Court, after calling the respondent to present before the
court and ask to give an answer and also ask him to give application
after application court may call the Appellant to pay the Security Cost.
• The appellant Court after hearing to the appellant may dismiss the
application without sending the notice to the lower court and also without
sending a notice to the respondent.
• The appellate court should fix a day for hearing and give notice to the
respondent if the respondent does not appear on a given day then case
will be ex- parte.
The respondent may do any cross objection.
Pending appeals
An appeal itself does not operate as a stay of proceedings until the decree/
judgement appealed and execution of decree not stayed. An appeal is filed to
appellate court however the appellate court can order a stay of execution if
the court thinks it necessary.
If the application is made for seeking stay before the expiration of time and if
the court thinks it necessary can grant the execution of stay.
The probability of loss or party suffering loss and the party has filed an
application to grant a stay and that too without delay then the court can grant
a stay.
Cases
In the case of Atma Ram Properties (p) Ltd. v. M/s. Federal Motors Pvt.Ltd
Stay order can be made conditional too. But the condition attached to stay
order must be reasonable.
In an appellate court stay of proceedings can not be in operation for more than
six months it has been held by the Supreme Court, in Asian Resurfacing of
Road Agency Pvt. Ltd.& Anr. V. Central Bureau of Investigation.
Conditions
Where any matter involving a substantial question of law is referred by the
subordinate court to the High Court for its opinion upon that matter it is known
as a reference. According to Section 113, any court can refer the case to the
High Court for its opinion and the High Court may then make an order as it
deems fit subject to certain conditions and limitations.
Rule 1 Order XLVI for the purpose of reference provides certain conditions and
limitations that are needed to be satisfied for the High Court to entertain the
reference from the subordinate court. These conditions are given below :
• There should be a pending suit or appeal where the decree is not subject
to appeal.
• There must be a question of law or usage having the force of law.
• The Court that is trying the suit or appeal or executing the decree must
entertain reasonable doubt on that question of law.
As per proviso to Section 113, the question of law involves questions relating
to the validity/provisions of any Act, Ordinance, or Regulation or other
questions.
In Manager Metro Railway vs M/S. B.C.L. Secure Premises it was ruled that
Section 113 is not a provision that enables the High Court to take reference
suo moto or to order a reference. It is a provision that enables the subordinate
court to refer the case to the High Court.
It was held in Rama Sundari Devi v. Indu Bhusan Bose that under Section 113
the court, subject to certain conditions, may state and refer the case to the
High Court for its opinion and the proviso to this section specifically mentions
the case relating to the validity of an Act. Whereas under Article 228, if the
High Court is satisfied that a case is pending in a subordinate court that
involves the determination of the substantial question of law for the
interpretation of the Constitution. The High Court shall withdraw the case and
either dispose of the case itself or determine the question of law and return
the case to the court from which the case has been withdrawn.
Procedure at hearing
The following procedure has to be followed at the time of hearing:
• As per Rule 1, the court trying the suit or appeal or executing the decree
either on its own or on an application of the parties will draw up the
statement of facts and point of doubt of the case and pass a decree or
order contingent upon the high court on the points referred.
• After hearing the parties the High Court will decide the points so referred.
A copy of the judgment along with the signature of the registrar will be
transmitted to the referring court as per Rule 3.
• The referring court on receiving the copy will proceed in confirmation
with the High Court’s decision to dispose of the case.
• The High Court has been vested with the power under Rule 5 to make
such orders and to amend, alter, cancel, set aside any decree or order
the referring court has passed or made.
As per Rule 7, In case the question arises as to the jurisdiction of small causes
court, a record with the statements of the reasons for doubt will be submitted
to the High Court.
Costs
Rule 4 of Order XLVI talks about the costs of reference to the High Court. It
says that if any cost is consequent upon a reference for the decision of the
High Court, it shall be deemed to be the costs in the case.
“Same Court” – Rule 1 of the Order specifically provide that application for
Review of the decree or order has to be made to the very same court which
passed such decree or made such order.
“Court” – The term has not been defined in the CPC, but impliedly interpreted
as “Any Court having the jurisdiction to try the suits of a civil nature”[i], now
such civil jurisdiction may be such as conferred upon the courts by the CPC
itself, or upon the Tribunals by the special statues, or upon the Supreme Court
and High Courts under their civil appellate jurisdiction[ii], by the Constitution
of India.
Review Jurisdiction for the Supreme Court – The Apex Court, therefore also
falls within the meaning of the term “Court” while hearing any suit of a civil
nature. It however has been separately empowered with the review jurisdiction
under Article 137 of the Constitution, but for the cases other than that of civil
and criminal, since for such cases, it is being governed by the CPC and Criminal
Procedure Code only[iii].
Review Jurisdiction for the High Courts – Apart from the power conferred upon
it as a “Civil Court” under the CPC, it has been held by the Apex Court in the
case of Shivdeo Singh v. State of Punjab[iv] :
“It is sufficient to say that there is nothing in Article 226 of the Constitution to
preclude a High Court from exercising the power of review which inheres in
every Court of plenary jurisdiction to prevent miscarriage of justice or to
correct grave and palpable errors committed by it.”
ORDER XLVII
“A decree or order which has been passed or made, by any civil court, And
from such decree or order, an appeal is allowed, But no appeal has been filed
yet, at the time of filing of the Review application”,
However once, the review application is filed thereafter, there is no legal bar
on filing of an appeal from such decree or order. If appeal is so preferred and
decided by the speaking order i.e. on merits, before the Review application,
then the Review application cannot be continued with[vi]. And vice versa i.e.
where review application is heard and decided before the appeal then appeal
becomes liable to be dismissed. So, where both are pending, whichever is
decided first, will be said to have superseded the original decree or order,
operationally therefore, such original decree or order no longer stands and
hence the other pending proceeding will be estopped.
Or, “a decree or order has been passed or made, by any civil court And, from
such decree or order, no appeal is allowed”,
Where, reference has been made by a court of a small cause, to the High Court
under Order XLVI, the decision of the High Court, on such reference is binding,
but person aggrieved by such decision may apply for review of such decision.
“Discovery of New and Important matter or evidence, which, after the exercise
of due diligence was not within the knowledge of the person seeking review or
could not be produced by him at any time when the decree was passed or
order made”,
The mistake or error should be such, which is very obvious and visible itself
on the face of it, and therefore any error found out from the judgment after a
long reasoning and law based analysis, cannot be said to be one apparent on
the face of record, as a ground for review. However, such mistake or error can
be of fact and as well as of law.
Before 1922, the application of the term “Sufficient reason” was unrestricted
and unregulated, finally in that year a principle came to be laid down by the
Privy Council in the case of Chhajju Ram V. Neki[xviii], which can be
summarized as that “the third ground mentioned, is no doubt giving wide scope
to the grounds for review, but at the same time that “sufficient reason” has to
be at least analogous (ejusdem generis) to either of the other two grounds
and the mere reason that decree was passed or order made on erroneous
ground that court failed to appreciate the important matter or evidence, would
not make any good ground for review, and therefore in such cases, the appeal
and not review, is the remedy to get such erroneous decree or order
corrected”[xix].
RESTRICTIONS
The order under its Rule 9 excludes two following kinds of application, from
the consideration –
“An order made on the application for a review”e. grant or rejection of the
application, either case cannot be reviewed.
Meaning
Revision means to go through something carefully, thoroughly and diligently.
Cases can be revised by the High Court as it possesses revisional jurisdiction
as defined under Section 115 of the Code of Civil Procedure. The High Court
has the right to revise cases decided by subordinate courts to ensure delivery
of justice and maintenance of fairness.
Nature, Scope and Object
The primary objective of a revisional authority of the High Court empowered
by Section 115 is to ensure that no subordinate court acts arbitrarily, illegally,
capriciously, irregularly or exceeds its jurisdiction; and allows the High Court
to guarantee the delivery of justice while ensuring that the proceedings are
conducted in accordance with the rule of law and furtherance of fairness. It
must be noted that the judges of subordinate courts have the absolute
authority to decide on cases. They do not commit any “jurisdictional error”
even when they wrongfully or extra-judicially decide a case. The High Court
has the power to revise these jurisdictional errors committed by subordinate
courts. This provides an opportunity to any aggrieved party to rectify a non-
appealable order by a subordinate court.
The High Court can revise any case by a subordinate court in which no appeal
lies when:
In the case of Baldevdas Shivlal V. Filmistan Distributors (India) (P) Ltd., 1969,
the Supreme Court held that a case may be said to have been decided if the
court adjudicates for the purpose of the suit some right or obligation of the
parties in controversy. Every order in the suit cannot be recorded as a case
decided.
No appeal lies
There must not be any appeal lying against the case decided by the
subordinate court. The High Court cannot revise a case if there is a pre-existing
appeal against the case as the revision interferes with the appeal and vice-
versa. The revision can only be filed once the appeal is dismissed. The word
“appeal” includes both the first appeal and second appeal. Therefore, the
revision can only lie when the appeal is dismissed or does not lie.
Jurisdictional error
The revisional jurisdiction can be applied by the High Court when the
subordinate court appears to have:
Subordinate court
The High Court cannot exercise revisional jurisdiction unless a case is decided
by a court which is subordinate to the High Court. Only a court of civil
judicature is considered and this does not include any person acting in an
administrative capacity. As a general rule, where it is provided that a matter
should be decided by a particular court, the presiding officer of such court will
act as a court. But where it is provided that a particular judge should decide a
matter, the provisions of the statute will have to be considered for determining
whether the judicial officer acts as a court or as a persona designata. The
revision by the High Court is mainly done to rectify the jurisdictional or
procedural errors caused by subordinate courts in the course of proceedings in
any case when an application is filed by an aggrieved party.
Alternative remedy
The power of revisional jurisdiction and its application lies under the discretion
of the High Court and cannot be claimed as a right by any aggrieved party.
Several factors are considered before the authority of revisional jurisdiction is
exercised. If there is the presence of an efficacious or alternate remedy
available to the aggrieved party, the court may not exercise its revisional
jurisdiction and instead suggest the alternate remedy and relief to the
aggrieved party. This is done to prevent the misuse of revisional jurisdiction
and make it applicable only in cases where necessary.
In the case of Salekh Chand V. Deepak Sharma 2015, During the pendency of
the revision petition, an application was filed under Section 5 of the Limitation
Act by the revisionist. But it was declared by the Court that Article 131 of the
Schedule of Limitation Act stated that the limitation period to file for revision
is 90 days. Thus, the revision petition was not barred by limitation and allowed
to proceed.
In the case of Samudrala Nagabhushanam V. Venkana Raghavayy, 1966, the
Court decided that the petition for revision in this particular case was governed
under Section 22 of the Andhra Pradesh Buildings Control Act, 1960 and not
Role 41-A(2) of the Appellate Side Rules of the High Court of Andhra Pradesh.
Thus, the revision is not barred by limitation.
Interlocutory Orders
The Interlocutory order which is often called interim order is a decision of the
court given during the proceedings and before the finality of a case to ensure
that the interest of either party is not harmed due to or during the process of
justice. It settles subordinate issues related to the main subject due to the
time-sensitive nature of those issues. Section 94 of Part VI of the Code of Civil
Procedure lists the ‘Supplemental Proceedings’ which mentions how the court
can issue interlocutory orders to prevent the ends of justice from being
defeated. The court can:
Death of Applicant
The death of an applicant does not abate the proceedings of the application of
revision as revision is not governed under Order 22 of the Code of Civil
Procedure. Once the application for revision is filed, the proceedings shall
continue despite the death of the applicant and the order shall be given to the
legal representative of the applicant.
Doctrine of Merger
The doctrine of merger is neither a doctrine of constitutional law nor a doctrine
statutorily recognised. It is a common law doctrine founded on principles of
propriety in the hierarchy of justice delivery system. It can be observed when
litigants agree to a settlement and seek to have their settlement incorporated
in a court order. The doctrine of merger cannot be applied universally. It will
depend on the nature of jurisdiction exercised by the superior authority and
the subject-matter in challenge laid shall determine the applicability of merger.
The superior jurisdiction should be capable of reversing, modifying or affirming
the order put in issue before it. The High Court possesses the authority to
reverse or modify the judgment of a subordinate court in case of a violation of
jurisdiction or failure to comply with the jurisdictional rules. The doctrine of
merger is based on the principle of union of two conflicting interests which
cannot be held by one person at the same time. As observed in Section 111(h)
of the Transfer of Property Act, 1882 leasehold rights in favour of the
appellants are extinguished under the doctrine of merger.
Procedure of Revision
Revisional jurisdiction of the High Court can be exercised suo moto to ensure
the delivery of justice. The authority to revise a case of jurisdictional error of
subordinate courts lies with the High Court and cannot be demanded as a right
by any aggrieved party. This brings us to the second method which involves
an application filed by the aggrieved party for revision. This merely brings the
jurisdictional error of the subordinate court to the attention of the High Court
which may then decide to revise the case. The application may also be denied
if the High Court feels that substantial justice has been done.
Once the High Court initiates the proceedings, the case is revised to ensure
jurisdiction is not exceeded by the subordinate court. But no changes can be
made with regards to any decision of the subordinate court even if unlawful,
as long as the decision lies within its jurisdiction. After a decision has been
made and if there is extra-jurisdictional action by the subordinate court, it is
rectified and the reasons are recorded.
Recording of Reasons
The reasons for the dismissal of a case or changes to be applied in case of
extra-jurisdictional activity by a subordinate court are to be filed for record.
The recording of reasons is done to ensure the court can show cause or prove
the basis of its decision for changes made or refusal to make any change with
regards to the jurisdiction of the subordinate courts.
The rules regarding the application of the Letter Patent Appeal is as follows:
• Letter patent appeal can be filed in the High Court and only in such High
Courts that have been established by the letter patent.
• Division bench can file a letter patent appeal to the Supreme Court. It
means it will also include a full bench of 5 judges, 7 judges and also the
Supreme Court.
• Letter patent appeal is the only court established by a letter patent under
the constitution and it is called the second appeal.
• The ruling of the Court is absolute unless the party to whom it applies
can show cause why it should not apply. This is Rule Nisi and should not
be issued except under careful and strict scrutiny.
• The record of the subordinate court should not be called for where no
stay in granted. And where it is necessarily required copies are to be
produced.
• All efforts should be made to dispose of the revision within two to three
months where a stay is granted.
Case laws