E-Notes: Class & Section: B.A./Bba LL.B V Semester

Chanderprabhu Jain College of Higher Studies
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School of Law
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E-Notes
CLASS & SECTION : B.A./BBA LL.B V Semester

SUBJECT NAME : Code of Civil Procedure
SUBJECT CODE : LLB 307
Unit-3
A.COMMISSIONS
Under CPC, a commissioner is appointed to fulfill certain functions which are essential
for the Court, in order to dispense full and complete justice. Section 75 and order 26 of
the code provides the key provisions which relates to the commissioner. In this article, we
will try to answer the most basic questions which comes to our mind when we begin to
understand the concept of issue of commission and appointment of commissioner.
What is meant by issue of commission by the Court?
Commission is instruction or role given by the Court to a person to act on behalf of the
Court and to do everything that the Court requires to deliver full and complete justice.
Such person who carries out the commission is known as a Court commissioner.
For example, whenever the Court has to do a local investigation, a commissioner is
appointed who conducts the local investigation. Similarly, to record the evidence of a
witness who cannot come to the Court for evidence, the Court can issue a commission for
recording of such evidence.
Who can appoint a commissioner?

Under CPC, the Court which issues the commission can appoint the commissioner.
Section 75, provides that “the Court” can issue commission provided the limitations and
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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.
Who can be appointed as a commissioner?

Generally, there is a panel of commissioners which is formed by the High Court in which
advocates are selected who are competent to carry out the commission issued by the
Court.
The person appointed as commissioner should be independent, impartial, disinterested in
the suit and the parties involved in it. Such a person should have the requisite skills to
carry out the commission.
It will be a complete waste of time and resources of the Court and the parties if a person
who cannot read and understand the accounts and documents is appointed as
commissioner to adjust accounts. Similarly, a person who does not have the qualifications
to conduct scientific investigation should not be appointed as a commissioner for such
task.
The District judge supervises the subordinate Courts who have to take special care while
appointing a commissioner. 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:
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• A panel of not more than 4 commissioners is to be formed which consists of
young persons including a lady lawyer, appointed by the Court for recording of evidence.
• The District Court notifies the bar about the number of vacancies of
commissioners and the bar forward the applications received for the same to the Court
who then forwards it to the High Court with their recommendation.
• The term of such appointment is generally 3 years which can be extended by an
order of the High Court but no commissioner can be appointed after 6 years of such
appointment.
When can a commissioner be appointed by the Court?

A commissioner can be appointed by the Court when a commission is issued by the
Court. According to Section 75 of CPC, the Court has the power to issue a commission to
carry out the following functions:
To examine witnesses: Order 26 Rule 1-8
The general rule of evidence is to bring the evidence before the Court and must be
recorded in open Court. But in extraordinary circumstances, the appearance of witness is
dispensed and the witness is allowed to depose evidence without appearing in Court.
Appearance is exempted if:
1. A witness is bedridden or is unable to attend the Court due to sickness or
infirmity, in such circumstances the Court can exempt the appearance of witness and
allow the witness to depose evidence to a commissioner appointed for the same. Such a
witness will have to submit a certificate signed by a registered medical practitioner as
evidence of sickness or infirmity. (Order XXVI Rule 1, C.P.C.) In such situations the
Court will exercise its powers provided under order 18 rule 4 and appoint a commissioner
for examination on interrogatories
2. A witness apprehends danger to his life and informs the Court about such danger
and if the Court thinks that recording evidence of the witness is necessary, the Court may
issue commission to record evidence of such witness. Where a party accused of fraud
seeks himself to be examined with commission, the Court must not issue commission and
avoid person of such demeanor to abuse the procedure.
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3. The witness is a pardanashin lady whose attendance is exempted under Section
132 of the code.
4. The witness is a Civil or Military Officer of the Government, cannot attend
without detriment to the Public Service. (Order XXVI Rule 4)
5. If the Court thinks that it is in the interest of justice or expeditious disposal of the
case or for any other reason, the Court can issue a commission notwithstanding any of the
rules provided in the order. (order 26 rule 4A)
6. A person who cannot be ordered to attend the Court in person under Order 16 rule
19 can be examined by the Court by issuing a commission. (order 26 rule 4 proviso)
7. A commission can be issued for examination of a person detained in prison.
(order 16A rule 7)
The Court will issue an order of commission for examination of a witness on
following grounds if such person: (order 26 rule 4)
• Resides beyond the jurisdiction of the Court. [order 26 rule 3(a)]
• About to leave from the jurisdiction of the Court. [order 26 rule 3(b)]
• A government servant and cannot attend without affecting the public service
[order 26 rule 4(c)].
• Resides outside India and the Court decides that his evidence is necessary.
• The commission will be issued to any other Court within whose local limits such
person is residing and if the person resides within the local limits of the Court issuing it, a
commissioner can be appointed to carry out such commission.
The provisions of the Court relating to summoning, attendance examination of witnesses,
penalties imposed on the witness will apply on the person who has to give evidence or
produce documents before the commissioner. The commissioner who is executing the
order of the Court, within whose local limit such person resides or by the Court beyond
whose jurisdiction such person resides, will be deemed to be a civil Court.
If the commissioner is not a judge of the civil Court, the commissioner cannot impose
penalties but can make an application to the Court which has issued commission to
impose penalties on the person. (order 26 rule 17)
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To make local investigations: Order 26 Rule 9-10
The Court can appoint commission for local investigation if the Court is of the opinion
that a local investigation is necessary:
1. For proper clarity of any matter in dispute, or
2. In ascertaining the market value of any property, or
3. To know the amount of mens rea or annual net profits.
While appointing a commissioner for, the Court has to examine.

1. The pleadings of both the parties,
2. Relief claimed,
3. The real controversy between the parties.
It is important to note that the object of a commission is not to collect evidence which can
be brought to the Court by the parties but to acquire evidence from a fixed spot. It is also
used to enable the Court to have more clarity regarding the facts of the case.
Commissioner should not be appointed to provide pre-trial decree against the defendant,
that is, the Court should not appoint a commissioner to provide the relief claimed,
directly or indirectly, by the plaintiff before the final decree is passed. It is important
because such commission will prejudice the rights of the defendant to a fair trial.
To adjust accounts: Order 26 Rule 11-12

In a suit, if the Court thinks that it is necessary to verify the accounts involved in the suit,
the Court may issue a commission to make the examination of such accounts and may
appoint a commissioner. (rule 11) The Court takes special care while making such an
appointment. The Court appoints only such a person who is competent to examine such
records. The reports submitted by the commissioner is considered evidence by the Court.
(rule 12)
To make partition: Order 26 Rule 13-14

The Court can issue commission for partition of a suit property. Suppose, the Court has
passed a preliminary decree for partition of the suit property, in such a situation, the
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Court can appoint a commissioner to carry out the decree. (rule 13) The commissioner
has to divide the property in shares and distribute it among the parties according to the
suit decree. Commissioner has to submit a report after such partition is completed. (rule
14)
To hold investigation: Order 26 Rule 10-A

When the Court has to conduct a scientific investigation, the Court can appoint a
commissioner who will then be responsible for such investigation. For example, to
identify the substance used as a raw material in the subject matter, the Court may issue
commission to hold scientific investigation. (rule 10-A)
After conducting such investigation the commissioner has to submit the report within the
time prescribed by the Court.
To sell the property: Order 26 Rule 10-C

Suppose the subject matter of a suit is a movable property which cannot be preserved by
the commissioner and if it is not sold, its value cannot be recovered. Therefore, the Court
appoints a commissioner who is given the responsibility to sell the property and submit a
report along with the proceeds received from the sale of such property.
To do ministerial work: Order 26 Rule 10-B

Ministerial work means the administrative work which the Court has to do, but are not of
judicial nature like accounting, calculation, etc. Such work takes a lot of valuable time of
the Court which can be used in other important judicial functions.
Therefore, the Court appoints a commissioner to do such works on behalf of the Court. It
is important to note that commissioners cannot do judicial functions.
Procedure for carrying out the commission:
• The commissioner will conduct the local investigation, examination of witnesses,
adjust accounts and other functions as ordered in the commission.
• After completion of the function, the commissioner will reduce the findings in
writing and will make a report.
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• The commissioner will submit the report signed by him along with the evidence
recorded in the Court.
• The report of commissioner will form a part of the record.
• While examining the report, the Court or the concerned parties, after prior
permission, can examine the commissioner personally in open Court.
• If the Court is dissatisfied with the proceedings of the commissioner the Court can
order a further inquiry on the commission or can issue a fresh commission and appoint a
new commissioner.
To summarize, the commission can be issued in the following circumstances:
1. To make a local investigation.
2. To adjust accounts.
3. To make partition.
4. To hold investigation.
5. To conduct sales.
6. To perform ministerial work.
Powers of the commissioner: Order 26 Rule 16-18

Under order 26 rule 16, powers of a commissioner are as follows:
1. Commissioner has the authority to examine the parties and the witnesses and any
other person who the commissioner thinks can give evidence in the matter referred to
him.
2. Commissioner can direct the parties to produce any documents which is required
to be examined.
3. Commissioner also has the power to enter and search any land or building with
the permission of the Court.
4. If the party fails to appear before the commissioner after the order of the Court,
the commissioner can proceed ex parte.
Whether the commissioner will be entitled to a Remuneration?
There is no provision in the CPC which expressly provides for remuneration to the
commissioner but Rule 15 of order 26 provide for the expenses which might be incurred
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by the commissioner. While issuing commission, the Court directs the applicant to
deposit a sum of amount which can be used by the commissioner to account for the
expenses which might be incurred by him while carrying out the commission. The Court
has the discretionary power to make directions make any other direction regarding the
remuneration.
What are the limitations on the commissioner?

Commissioner has to assist the Court in carrying out the judicial functions but he cannot
do the judicial functions on behalf of the Court. For example, a commissioner cannot
value the suit property because it is a judicial function and only the Court has the power
to do so. A commissioner can assist the Court by producing the documents such as plans
of the suit property by which the Court can ascertain the value.
It is not the objective of issuing a commission to procure evidence for the parties.
Therefore, if a party has the apprehension that the opposite party will tamper with a
document which is relevant to the case, the Court should not appoint a commissioner to
seize such documents.
What is the evidentiary value of the report submitted by the commissioner?
According to order 26 rule 10 (2) of the CPC, the report and the evidence submitted by
commissioners forms a part of the record but if the evidence is submitted without the
report of the commissioner, such evidence does not form part of the record.
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.
B.Receiver
In civil litigation, a receiver plays an important role in assisting the court. The Receiver is
considered to be an officer of the court who helps the court to protect and preserve the
subject matter of suit till the time the court decides the matter. Sometimes, the court
thinks, it is in the best interest of both the parties to appoint a receiver who will be
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responsible for the management of the subject matter. The subject matter is generally a
movable or immovable property.
The Receiver is liable to take care of the property just as a prudent man will take care of
his own personal property. He should follow the directions of the court or else his
property can be attached by the court to recover the amount which is due to him.
Who is a receiver under the civil procedure code?

Under order 40 of CPC, The Receiver is an independent and impartial person who is
appointed by the court to administer/manage, that is, to protect and preserve a disputed
property involved in a suit.
For example, in a dispute between A and B for an immovable property, if the court thinks
that it is in the best interest of both the parties that possession should be taken from B and
given to an independent person, the court may appoint a receiver who can manage the
property till the time the suit is being decided. Such a receiver appointed by the court
would be responsible for the maintenance of the property. He can collect the income
accruing like rent or any other profits and utilize it to maintain the property. After
deducting the expenses incurred in maintenance from the income received from the
property, the receiver will have to submit the remaining income, if any, in the court.
He is not representative of either of the parties in the action, is uniformly regarded as an
officer of the court working in the interest of neither plaintiff nor defendant but for the
common benefit of all the parties.
What is the purpose of the appointment of a receiver?

When a party in possession of the disputed property exhausts the property or causes
irreparable damages to it, the whole object of the suit gets defeated because the subject
matter ceases to exist or its value gets affected. Therefore, when the court is of the
opinion that the property in dispute must not go to either of the parties, pendente lite, the
court appoints a receiver who is entrusted with the protection and preservation of such
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property. It is a form of interim protection which the court provides to the parties who
makes the application till the time the court adjudicates the matter.
What is the role of a receiver?

The Receiver is regarded as an officer of the court and is the extended arm and hand of
the court. He is entrusted with the responsibility to receive disputed property or money
given by the court and manage such property or money till the time a decree is passed or
the parties have compromised or any other period as the court deems fit. The property or
fund entrusted to the receiver is considered to be custodia legis i.e. in the custody of the
law. The Receiver has no power other than those entrusted to him by the court while
appointing him.
Who can appoint a receiver?

According to the civil procedure code, the court before which the proceedings are
pending can appoint a receiver if it appears just and convenient to the court to appoint
such receiver [section 51(d)]. It is within the discretionary power of the court to appoint
the receiver. For example, in a suit, the trial court can appoint a receiver. Whereas, in
appeal, the appellate court can appoint a receiver.
However, the discretion is not absolute, arbitrary or unregulated. The expression “just
and convenient” does not mean the appointment is based on the whims and wishes of the
judge on any grounds which stand against equity.
How does the court decide whether to appoint a receiver or not?

Court has to keep the following principles in mind before appointing a receiver:
1. Appointment of a receiver is a discretionary power.
2. It is a protective relief to the plaintiff. The object is to protect and preserve the
disputed property till the time the suit is pending in the court.
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3. A receiver should not be appointed unless the plaintiff shows prima facie that he
has a strong case against the defendant and it is more than likely that he will succeed in
the suit.
4. Appointment of a receiver is one of the hardest remedies as it deprives the
defendant of his right to possession before the final decree. Therefore, the
5. court should not resort to it merely on the ground that it will do no harm. There
should be strong apprehension that there is a danger to the property or the plaintiff will be
in worse of a situation if the appointment of a receiver is delayed.
6. The court should appoint a receiver only when there is a possibility of wrong or
injury. Also, if it is shown that the subject matter is not in the possession of any of the
parties and it is in the common interest of both the parties to appoint a receiver for the
protection and preservation of the property.
7. The court should look at the conduct of the party who makes the application for
appointment of a receiver. The party should come to the court with clean hands and their
conduct should be such that they are not disentitled to this equitable relief.
The above principles were introduced by the Madras Court in the case of T.
Krishnaswamy Chetty vs C. Thangavelu Chetty And Ors., AIR 1955 Mad 430. These
principles are now well established in the Indian jurisprudence.
Who can apply for the appointment of the receiver?

Generally, a plaintiff files the application for appointment of a receiver but defendants
can also file such application. A third party is not allowed to file the application but if he
is interested in the protection and preservation of the property, he can also make an
application after taking permission from the court.
Who can be appointed as a receiver?

A person who is independent, impartial and totally disinterested should be appointed as a
receiver. Such a person should not have any stake in the disputed property. Generally,
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parties to the suit are not appointed as receiver by the court. But in extraordinary
circumstances, a party to suit can be appointed as receiver.
When can a receiver be appointed?

The court can appoint receiver whenever the court is of the opinion that either party
should not hold the property in dispute. The court can appoint a receiver before or after a
decree and can remove any person from the possession or custody of the property and
commit the same property in the custody or management of the receiver.
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.
What is the process of appointment of a receiver?

The process of appointment of a receiver is provided by the courts in their respective
court rules. The high court has the power to make rules for the superintendence and
control of the subordinate courts.
For instance,
In chapter XIX of the Delhi High Court (Original Side) rules, 1967, the following process
is provided:
1. Application for appointment shall be made in writing and shall be supported by
affidavit.
2. Receiver other than the official receiver has to give security.
3. The security is to be given to the satisfaction of the registrar.
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4. He has to provide personal bonds with the number of surety required by the
registrar. The personal bond will be double the amount of annual rental value of the
property or the total value of the property which the receiver is going to administer.
5. Within a week of appointment, the receiver will have to submit a report providing
the details regarding the property such as inventory of property or books of account etc.
6. The registrar will give directions on where to invest the money received by the
receiver from the property. Generally, such money is submitted in scheduled banks or
government bonds.
What are the powers of the receiver?

Under order 40 rule 1(d) powers of the receiver are provided as following:
1. Collection of rents and profits arising out of the property.
2. Application and disposal of such rents and profits.
3. Execution of documents as the owner himself.
4. To institute and defend the suit.
5. Such powers as the court may deem fit.
Also, there are indirect powers which a receiver enjoys being the hand of the court. For
example, If a person obstructs or interferes with the receiver’s right to possession, it will
amount to obstruction in a court proceeding and such a person can be made liable for
contempt of court. Similarly, property in the hands of the receiver cannot be attached
without the leave of the court.
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.
Without the permission of the court, the receiver cannot:
• Grant lease on the property.
• Bring suits except for suit for rent. A suit will be dismissed if not permitted by the
court.
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What are the duties of the receiver?
Under order 40 rule (3), duties of a receiver are provided as follows:
1. Furnish security to account for what he will receive from the property as income.
2. 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.
3. Pay the amount due to the court.
4. Take responsibility for any reduction in the value of the property because of the
receiver’s willful negligence.
5. 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.
What are the liabilities of a receiver?

According to Order 40 rule (4), When a receiver fails:
1. To submit the reports as specified by the court or,
2. To pay the amount due from him as directed by the court or,
3. Causes loss to the property due to gross negligence.
4. Any other duty which court directed him to do,
The court may order the attachment of property of the receiver to recover the loss caused
due to his willful default or negligence.
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.
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Will a receiver be entitled to remuneration?
Receivers are entitled to remuneration as fixed by the court for the services rendered by
them. Also, a receiver has to be provided for the loss or expenses incurred by him for
maintaining the property.
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.
Can a collector be appointed as a receiver?

Yes, according to (Order 40 rule 5), a collector can be appointed as a receiver if the
revenue generated from the property is received by the government, the court can appoint
a collector as a receiver with his consent if the court thinks that management of such
property by collector will promote the interests of those who are concerned.
C.Temporary Injunction
What is the meaning of temporary injunction?

Temporary Injunction refers to the Judicial Intervention of maintaining a ‘status quo’ i.e
‘existing condition’ of a thing applied by either of the parties as an interim relief during
the pendency of proceedings of a case. It is an order of the court that restrains
(Prohibitory injunction) or requires a person to do a particular act (Mandatory
Injunction).
It is in the nature of protective relief granted keeping in mind the rights of both the parties
to prevent a future irreparable injury.
Temporary injunction meaning in Indian law has been defined under Section 37(1) of the
Specific Relief Act, 1963 as, “Temporary injunctions are such as are to continue until a
specific time, or until the further order of the court, and they may be granted at any stage
of a suit, and are regulated by the Code of Civil Procedure, 1908 (5 of 1908).”
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In what cases can temporary injunction be issued?
Order 39 of the Code of civil procedure,1908 lays down the provisions regarding
temporary injunction that applies to cases of civil nature. However, the general principles
of Order 39 CPC apply to laws such as Electricity, Matrimonial, Tenancy, Writs and
PILs. This list is indicative and not exhaustive.
Difference between stay and injunction?
A stay is an order restricting or prohibiting or suspension of judicial proceedings or a

court from doing something. Whereas an order of temporary injunction restricts or
prohibits or requires a person to do something. An order of stay is issued to a court but an
order of injunction is issued to a party. Injunction thus acts in personam and not in rem.
One major difference between an Order of Stay and an Injunction is that an order of stay
becomes effective only when it is communicated to the court to which it is issued but an
order of injunction becomes effective as soon as it is issued.This was held in the case of
Mulraj V. Murti Rahjunathji Maharaj, AIR 1987 SC 1386
Can Injunction be issued against a court?
An injunction is an act in personam and not an act in rem and it cannot be issued against
a court. This is the view of Halsbury law of England and this view was also seen to be
supported in the case of Food Corporation of India v. Sukh Deo Prasad 2009 SCC 665.
To be specific, a temporary injunction is granted under CPC cannot be issued against a
court. A temporary injunction may be granted against a party to the suit and in some
circumstances against any person for whom a right of action exists.
What are the Grounds for Injunction?
Order 39 Rule 1 enumerated several grounds for which an order of injunction may be
issued. However, the use of ‘Maybe granted’ indicated that the list is not exhaustive and
exclusive.
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A temporary injunction under CPC may be granted on the following conditions:
1. Where a property in dispute exists and there lies a risk that it will be damaged,
wasted or alienated by any party to the suit or be sold in execution of a decree.
2. Where a defendant intends to or threatens to dispose off or sell the property to
defraud its creditors.
3. Where a defendant is about to commit a breach of contract.
4. Where a defendant threatens to dispose the property or cause injury to the plaintiff
in relation to any property in dispute in the suit.
5. Where the court is of the opinion that a just and equitable ground exists.
Triple Test for injunction

The Power to grant an injunction is not limited to the text of the law, but it is guided by
the discretionary powers of the court. However, discretion must be exercised with due
regard to justice, equity and good conscience. In other words, discretion must be founded
on the basis of reasonableness, and sound legal principles. The Indian law follows the
triple tests when it comes to deciding a matter of injunction however, this test is not
absolute but merely illustrative. Even if all the three tests are satisfied the court may
refuse prayer for an injunction on the circumstances of the case,
Generally, before granting the injunction the court must be satisfied-
If the plaintiff has a prima facie case?

Without examining the merits of the case closely but on considering matters on the face
of it like Whether there’s a bona fide cause and if there’s an arguable case the court must
decide. The burden is on the plaintiff to convince the court that there’s a Prima Facie case
by furnishing sufficient evidence or otherwise in his favour.
It was held in Kashi Nath Samstan V. Shrimad Sudhindra Thirtha Swamy (2010) I SCC
689, 692 that prima facie case must precede an order of injunction. Only if there’s a
prima facie case then the court will move ahead to examine other factors. If the prima
facie case is not made out, the applicant is not entitled to a temporary injunction.
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If there’s an irreparable harm foreseen?
The applicant must further satisfy the court that there’s a possibility of irreparable harm
to him and that if an order of temporary injunction is not issued will injury him.
Irreparable harm may refer to damages that may not be possible to be compensated in
pecuniary terms.
In American Cyanamid Co. v. Ethicon Ltd 1975 the court has rightly pronounced the
principle of irreparable harm as follows:
If damaged in the measure recoverable at common law would be an adequate remedy and
the defendant would be in a financial position to pay them, no interlocutory injunction
should normally be granted, however strong the plaintiff’s claim appeared to be at that
stage. If on the other hand, damages would not provide an adequate remedy for the
plaintiff in the event of his succeeding at the trial, the court should then consider it as
irreparable harm.
It must be noted that the expression Irreparable injury does not mean that there should be
no possibility of repairing the injury. It only means that there exists no specific or fixed
pecuniary standard for measuring damages.
If there’s a balance of inconvenience?

The balance of inconvenience must be in favour of the applicant. Before granting an
order of Injunction the court must be satisfied that the mischief, hardship or
inconvenience which is likely to be caused on refusal to the plaintiff is greater than that
which is likely to be caused to the opposite party by granting it.
The court using sound judicial determination must weigh both sides before granting any
relief in a form of interlocutory orders such as an injunction under CPC.
It should also be noted that the court grants such relief as ex debito justitiae i.e to meet
the ends of justice.
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How long does temporary injunction last?
The validity of a temporary injunction depends on the type of injunction granted. For
example, If the injunction granted is pendente lite it will be valid till the proceedings of
the case are disposed off and until the case is finally decided. If the suit is dismissed the
injunction is also vacated. If the suit is for permanent injunction, a temporary injunction
made by the court is made perceptual or permanent as a part of a decree passed by the
court.
E. Suits by Indigent Person

Taking into consideration the poverty rate of India, it is quite challenging for the deprived
section of society to institute a case in court and bear all the litigation expenses. But
simply saying that these vulnerable people don’t stand a chance in court, is not the
solution. One such solution is enshrined under Article 39A of the Indian Constitution that
protects the interests of vulnerable segments of society. It provides free legal aid to the
poor and weaker sections of society and ensures justice for all. Besides Article 39A,
Articles 14 and 22 (1) of the Indian Constitution provide that it is obligatory on the part
of the State to ensure equality before the law and provide a legal system that aims at
promoting justice.
The dictionary meaning of the word ‘indigent person’ refers to a person who is suffering
from extreme poverty, impoverishment, or one who lacks the basic resources required in
normal life. In legal parlance, an indigent person does not possess the financial capacity
to pay the court fee. With the motive of providing justice to such individuals, provisions
under Order 33 of the Code of Civil Procedure, 1908 were introduced. Any person who
wants to represent as an indigent person is required to file an application before the
competent court wherein he declares himself to be an indigent person. If the court is
satisfied with such an application and agrees to the fact that such person has no means to
pay the court fee, then the court will declare such person as an indigent person. Primarily,
before the introduction of the expression “indigent person”, the term “pauper” was used
to denote the underprivileged section of society. However, the latter got substituted by
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the term “indigent person.” Rule 1- 18 of Order XXXIII of the Code of Civil Procedure
deals with the suits filed by indigent persons.
Who is an indigent person?

As soon as a civil suit is filed in the court, the plaintiff(s), at the time of filing their plaint,
are required to submit the requisite court fees as directed by the Court Fees Act, 1870.
However, Order XXXIII of the Code of Civil Procedure saves indigent persons by way of
discharging them from the liability to pay the required court fees. It then allows such
individuals to institute the suit in forma pauperis which is subject to some conditions as
postulated under the Rule 1 of Order XXXIII of CPC.
Discussing the definition of an indigent person in the light of Union Bank of India v.
Khader International Construction
The Hon’ble Supreme Court in Union Bank of India v. Khader International Construction
discussed the definition of an indigent person. It was observed by the court that an
indigent person is one who is not possessed of sufficient amount (other than property
exempt from attachment in execution of a decree and the subject-matter of the suit) to
enable him to pay the fee prescribed by law for the plaintiff in such a suit. In case no such
fee is prescribed if such person is not entitled to property worth one thousand rupees
other than the property exempt from attachment in execution of a decree and the subject
matter of the suit he would be an indigent person.
In A.A. Haja Muniuddin v. Indian Railways, the court held that “Access to justice
cannot be denied to an individual merely because he does not have the means to pay the
prescribed fee.”
• Rule1 gives us the definition of an indigent person. Any person who does not
possess sufficient means to pay the requisite fee as prescribed by the Court Fee Act.
However, Rule 1 also states that while considering sufficient means, the valuation of the
property possessed by an indigent person will be exempted from attachment in execution
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of a decree and the subject matter of the suit. Such exempted property is the basic need of
living for the individuals. Thus, as per law, it is not permitted to be attached.
• In cases where no such fee is prescribed by the Court Fee Act and if the applicant
does not possess property worth one thousand rupees or where the cost of the property is
less than one thousand rupees, then in such case, the person will be considered as an
indigent person. However, this rule has the same exception as mentioned above. It states
that while calculating the valuation of the property, Section 60 of the Code of Civil
Procedure has to be kept in mind.
Following properties are exempted and must not be attached while calculating the
valuation of the property possessed by the indigent person:
(a) The necessary wearing apparel, cooking vessels, beds;
(b) tools of artisans, agriculturist;
(c) houses and buildings belonging to an agriculturist, labourer or a domestic servant;
(d) books of account;
(e) a mere right to sue for damages;
(f) any right of personal service;
(g) stipends and gratuities allowed to pensioners;
(h) the wages of labourers and domestic servants;
(i) salary to the extent of the first four hundred rupees and two-third of the remainder in
the execution of any decree other than a decree for maintenance:
(ia) one-third of the salary in the execution of any decree for maintenance;
(j) the pay and allowances of persons to whom the Air Force Act, 1950 or the Army Act,;
1950 or the Navy Act (62 of 1957), applies;
(k) compulsory deposits and sums to which Provident Funds Act, 1925;
(ka) deposits and sums to which the Public Provident Fund Act applies;
(kb) all money payable under a judgment debtor’s policy of insurance;
(kc) the interest of a lessee of a residential building;
(l) any allowance forming part of the emoluments of any government servant;
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(m) an expectancy of succession by survivorship or other merely contingent or possible
right or interest;
(n) a right to future maintenance;
(o) any allowance declared by any Indian law to be exempt from liability to attachment or
sale in execution of a decree; and
(p) where the judgment-debtor is a person liable for the payment of land revenue; any
movable property which, under any law for the time being applicable to him, is exempt
from sale for the recovery of arrears of such revenue.
While deciding whether a person is indigent or not, any property which is

acquired/purchased/sold by the indigent person after presenting his application in the
competent court for seeking permission to sue as an indigent person, and if such
exchange of property is done before the court makes a decision on the application, then in
such case, the properties so acquired/purchased/sold are mandatorily required to be taken
into account while deciding the question of whether or not an applicant is an indigent
person.
Legal representative as an indigent

In Lakshmi v Vijaya Bank, R.V. Revanna filed a petition under Order 33 Rule 1 and Rule
7 wherein he represented himself to be an indigent person. The respondent contended the
petitioner to be an indigent person and questioned his indigency. Before the cross-
examination of the petitioner took place, he died leaving behind his wife and children.
Thereafter an application was filed by the petitioner’s wife to permit them to file the suit
as a legal representative. The trial court observed that in case of the death of the
applicant, the legal representatives won’t be permitted to substitute the indigent person as
the right to sue as an indigent person is a personal right. However, the high court
admitted the application filed by the legal representative and allowed them to file the
petition as indigent persons.
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Inquiry into the means of an indigent person
Rule 1A of Order 33 states that the Chief Ministerial Officer of the court has the authority
to do an inquiry. The inquiry is conducted in the first instance to know if an applicant is
an indigent person or not. It is upon the discretion of the court whether to accept the
report submitted by such an officer or make an inquiry.
Procedure to file a suit as an indigent person

Before filing a suit as an indigent person begins, it is important to add all the relevant
contents in the application seeking permission to be an indigent person [Rule 2]. As per
Rule 2 of Order XXXIII, the application must include the particulars similar to what is
mentioned in the plaint and all movable or immovable properties of the indigent
person/applicant along with its estimated value.
The indigent person/applicant shall himself in person present the application before the
court. In case, such a person is exempted from appearing in the court, an authorized agent
may present the application on his behalf. In certain circumstances where there are two or
more plaintiffs, the application can be presented by any of them. [Rule 3]. The suit begins
as soon as the application to sue as an indigent person is duly presented before the court.
Subsequently, the indigent person/applicant is examined by the court. However, if the
applicant is being represented by his agent, then in such a case, the court may examine
the applicant by the commission [Rule 4].
Rejection of application
As per Rule 5 of Order XXXIII of CPC, the court will prima facie reject an application
seeking permission to sue as an indigent person in the following cases:
1. In case when the application is not framed and presented in the prescribed
manner. Here, the term ‘prescribed manner’ implies that the application must abide by
Rule 2 and Rule 3 of Order XXXIII. Rule 2 and Rule 3 deal with the contents of the
application and its presentation respectively.
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2. The application can be rejected by the court in case the applicant is not an
indigent person.
3. The application can be rejected by the court when the applicant has fraudulently
disposed of any property within two months before the presentation of the application. It
can also be rejected when the applicant dishonestly applies only with the motive of just
seeking permission from the court to sue as an indigent person.
4. The court possesses the power to reject the application filed by an indigent person
in an instance where there is no cause of action.
5. In case, where the applicant has entered into an agreement with any third party
and such agreement pertains to the subject matter of the suit wherein the other party
(other than the applicant) obtains interest, then, it is one of the reasons for rejection of the
application. It shows the applicant’s intention to defraud the court.
6. Rejection of application is done when the allegations indicate that the suit is
barred by any law.
7. Rejection of application is done in cases where any other individual enters into an
agreement with the applicant to help him financially in the litigation.
The Hon’ble Supreme Court in ML Sethi v. RP Kapoor observed that the provisions of
Order 11 Rule 12 involving the discovery of documents would apply to proceedings
under Order XXXIII of the Code of Civil Procedure.
In Dhanalakshmi v. Saraswathy case, the plaint was found to be undervalued. So, it was
returned for presentation in the court along with proper valuation and court fee. A time of
one month was granted for doing so and the plaintiff filed the plaint within the stipulated
period. Subsequently, the plaint was presented in the Sub-Court along with a petition
seeking leave to sue as indigent persons to which the court observed that though the
petition was filed under Order XXXIII Rule 1, one cannot say that the application filed
under Rule 2 seeking permission to file the suit as indigent persons might not be rejected
as provided in Rule 5 of Order XXXIII CPC. A similarity was drawn between Order
XXXIII Rule 5 CPC and Order VII Rule 11 CPC. While Order VII Rule 11 is used in the
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rejection of plaint, Order XXXIII Rule 5 deals with the rejection of an application filed
for permission to sue as indigent persons.
• Order 33 Rule 6 provides that the court is required to issue a notice to both the
opposite party and the Government pleader. Following which a day is fixed on which
evidence is received. On such a day, the applicant presents in the form of proof about his
indigency. The opposite party or the Government Pleader can present their evidence
opposing the applicant’s indigency.
• Order 33 Rule 7 provides for the procedure to be followed at hearing of the
application. The court shall examine the witnesses (if any), produced by both the parties
and hear arguments on the application or evidence (if any) admitted by the court.
Subsequently, the court will either allow the application or reject it.
• Order 33 Rule 8 explains the procedure to be followed after the admission of the
application. The application after being admitted has to be numbered as well as
registered. Such an application will be considered as a plaint in a suit. Subsequently, such
a suit shall proceed in the same manner as an ordinary suit does.
• Order 33 Rule 9 states that the court has an option to revoke the permission
granted to the plaintiff to sue as an indigent person. The court can utilise this
discretionary power on receiving the application by the defendant or by the government
pleader, in the following circumstances:
1. Where the applicant is guilty of vexatious or improper conduct in the course of
the suit; or
2. Where the applicant’s means are such that he will not continue to sue as an
indigent person; or
3. Where the applicant has entered into an agreement under which another person
has obtained an interest in the subject matter of the suit.
• The Kerala High Court in R. Jayaraja Menon v. Dr. Rajakrishnan And Anr., while
deciding upon an application concerning the withdrawal of permission to sue as an
indigent person observed that Rule 9 of Order 33 provides for a situation where the
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plaintiff, who was initially permitted to sue as an indigent person, ceases to be an
indigent person after the suit is filed. In case a plaintiff ceases to be an indigent person,
the court shall compel him to pay the court fee that he would have paid if he had not been
allowed to sue as an indigent person. It is so plainly a part of an order under Rule 9 of
Code directing the plaintiff to pay the court fee that he would have paid if he had not
been allowed to file as an indigent person from the outset.
• Rule 9A of the Code provides that the court will assist the indigent person by
assigning him a pleader. A pleader is a person who is entitled to appear and plead on
behalf of other persons in the court.
Costs associated with the suit

Order XXXII Rule 16 of CPC states that the costs in the suit will include the costs of an
application to sue as an indigent person as well as the cost of inquiry into indigency.
1. When an indigent person succeeds: According to Rule 10 of Order XXXIII,
where the plaintiff (indigent person) succeeds in the suit, the court shall calculate the
amount of court fees and costs and recover the same from the plaintiff in the manner as if
he had not been permitted to sue as an indigent person. In case the plaintiff (indigent
person) fails to pay the amount, then in such case, the amount shall be recoverable by any
such party that was ordered by the decree.
2. Where an indigent person fails: According to Rule 11 and Rule 11-A Order
XXXIII where the plaintiff (indigent person) fails or the permission granted to the
indigent person is withdrawn under Rule 9A, or where the suit is withdrawn or dismissed,
the court shall in such case either order him (plaintiff) or a co-plaintiff to pay court fees
and costs in the manner as if he had not been permitted to sue as an indigent person.
Where the suit abates on account of the death of a plaintiff, such court fees would be
recovered from the estate of the deceased plaintiff.
3. The Hon’ble Supreme Court in Union Bank of India v. Khader International
Construction, held that Order 33 CPC is an enabling provision that allows the indigent
person to file a suit without paying the court fee at the initial stage. In case the plaintiff
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succeeds in the suit, the court calculates the amount of court fee which would have been
paid by the plaintiff if he had not been permitted to sue as an indigent person and that
amount would be recoverable by the State from any party ordered by the decree to pay
the same. However, if the suit is dismissed, then also the State would take steps to
recover the court fee payable by the plaintiff and this court fee shall be a first charge on
the subject- matter of the suit.
4. So there is only a provision for the deferred payment of the court fees and this
benevolent provision is intended to help the poor litigants who are unable to pay the
requisite court fee to file a suit because of their poverty.
5. According to Rule 12 of Order XXXIII, the state government possesses the right
to apply to the court to pass an order concerning payment of court fee to be paid under
Rule 10.
6. Rule 13 deals with cases where the state government shall be deemed to be a
party to suit.
7. Rule 14 provides that the court shall recover the court fee by forwarding the order
or decree to the collector who shall then collect the fee in the manner as if it were an
arrear of land revenue.
8. In case if the application to sue as an indigent person is refused, he shall still
possess the right to file a suit in an ordinary manner. However, such a person shall be
denied to file an application of similar nature in respect of the same matter [Rule 15].
9. Rule 17 provides that any defendant (indigent person) who wishes to file a set-off
or counterclaim shall be permitted to do so.
10. Rule 18 states that apart from Order XXXIII of the Code, the state or the Central
Government may make additional provisions for free legal services in respect of indigent
persons.
F.Inter-pleader Suit
Order XXXV and Section 88 of the CPC 1908 deal with the provisions of inter-pleader
suit. Generally, ordinary suits that are filed before the Hon’ble court are between two
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parties, the plaintiff and the defendant. But the interpleader suit is unlike the ordinary
suits between the two defendants who fight for a claim over a particular good, debt, or
chattel. The plaintiff in such suits usually do not have any real interest in the subject
matter of the suit and institute the suit to only make sure that the property in dispute is put
in the custody of the actual owner.
Meaning of Interpleader suit:-

As per the Halsbury’s laws of England it has been stated;
“Where a person is under liability in respect of a debt or in respect of any money, goods
or chattels and he is or expects to be sued for or in respect of the debt or money or those
goods or chattels, by two or more persons making adverse claims thereto, he may apply
to the court for relief by way of interpleader”.
Object of Interpleader suit:-

The main object to filing an interpleader suit is to get claims of rival defendants
adjudicated. It is a process wherein the plaintiff calls upon the rival claimants to appear
before the court and get their respective claims decided.
Conditions: section 88:-

For filing an interpleader suit there must be satisfying the following conditions:-
1. There must be some debt, sum f money or other property movable or immovable in
dispute;
2. Two or more persons must be claiming it adversely to one another;
3. The plaintiff does not claim any interest in it except the charges, or cost and is ready
to pay or deliver it to the right claimant;
4. There must not be pending suit in which the right of the rival claimants can be
properly adjudicated.
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Procedure laid down by order 35 of CPC:-
Order 35 laid down following condition which shall be satisfied by the plaintiff who
seeks to file an interpleader suit;
1. The plaintiff shall state that he has no interest in the subject matter in dispute other
than the charges or costs;
2. The claim made by the defendants severally; and
3. There is no collusion between the plaintiff and any of the defendants.
In the case of Mangal Bhikaji Nagpase v. State of Maharashtra in1997 the BombayHigh
Court held that it is mandatory for the plaintiff to affirm that he has no interest in the
subject matter of the dispute other than costs and charges.
In the case of Asaan Ali v. Sarada Charan Kastagir AIR 1922 Cal 138 the Calcutta High
Court held that for a suit to be an interpleader suit, the applicant should be willing to hand
over the property to the claimant and should not have any interest in it but if the applicant
has an interest in the suit then such suit shall be dismissed on the discovery of the fact
that the plaintiff has an interest in the subject matter of the suit.
During the pendency of the interpleader suit, if any of the defendants filed a suit against
the Plaintiff, then that suit shall be stayed under sec. 10 of CPC Res Sub-judice.
Liability of the plaintiff:-

At the first hearing of the interpleader suit the court may declare that the plaintiff is
discharged from all liability, and award him his costs and dismiss him from the suit,
unless the justice or convenience so requires his presence.
Examples:- A is in possession of the property claimed by B and C adversely. A does not

claim any interest in the property and is ready to deliver it to the rightful owner he can
file an interpleader suit.
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Chanderprabhu Jain College of Higher Studies

CLASS & SECTION : B.A./BBA LL.B V Semester

Who can appoint a commissioner?

Who can be appointed as a commissioner?

What is the procedure for appointment of commissioner?

When can a commissioner be appointed by the Court?

While appointing a commissioner for, the Court has to examine.

To adjust accounts: Order 26 Rule 11-12

To make partition: Order 26 Rule 13-14

To hold investigation: Order 26 Rule 10-A

To sell the property: Order 26 Rule 10-C

To do ministerial work: Order 26 Rule 10-B

Powers of the commissioner: Order 26 Rule 16-18

What are the limitations on the commissioner?

Who is a receiver under the civil procedure code?

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 liabilities of a receiver?

Can a collector be appointed as a receiver?

What is the meaning of temporary injunction?

Difference between stay and injunction?

A stay is an order restricting or prohibiting or suspension of judicial proceedings or a

Can Injunction be issued against a court?

Triple Test for injunction

If the plaintiff has a prima facie case?

If there’s a balance of inconvenience?

E. Suits by Indigent Person

Who is an indigent person?

While deciding whether a person is indigent or not, any property which is

Legal representative as an indigent

Procedure to file a suit as an indigent person

Costs associated with the suit

Meaning of Interpleader suit:-

Object of Interpleader suit:-

Conditions: section 88:-

Liability of the plaintiff:-

Examples:- A is in possession of the property claimed by B and C adversely. A does not

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