CPC

INTRODUCTION

Preliminary Words

 The Indian Judicial System - oldest legal systems

 Indian courtrooms - battlefields or playing fields.
 Adversary theory - each side to develop and present its own proofs and arguments –
surest way - enable the judge or jury - resolve the conflict.
 An inquisitorial system - the court or a part of the court - actively involved - facts of
the case.
 In 1215 - article 38 of the Magna Carat- "No bailiff for the future shall, upon his own
unsupported complaint, put anyone to his law, without credible witnesses brought for
this purposes”.
 French - Juge d'instruction - investigating magistrate
 Epistolary Jurisdiction- First time – M P Thakker – Guj HC
 Followed - Justice Krishna Iyer in Kamgar Union v. Union of Indian

Characteristics of Adversarial Procedure:

 Fair Trial
 Impartiality and Neutrality
 Certainty of Decision
 Decision is in the Hands of Court
 Merits of the Case
 Enforcement of Decisions

Disadvantages of Adversarial Process

 Not Flexible
 Expenses
 No Appreciation of their Respective Case
 Lawyer
 Increase of Work Load
 Choice of Specialists as Neutrals
 Confrontation, Conflict and Acrimony
  Affect Business Reputation, Goodwill and Ongoing Relations
 Rigidity
 Delay: In 1798, William Godwin declared that justice suffered from three defects-
delay, cost and glorious uncertainty in the final outcome of any litigation.
 Winning or Losing
 Compulsion
 No Confidentiality
 Interim Injunctive Relief
 Public Trust and Confidence
 Adjournments
 Inefficient Court Administration \ Excessive Judicial Control
 Scheduling and Notification of Appearances
 Taking of Evidence
 Reluctance to Enforce Pre-Existing Authority
 Case Assignments
 No Contentious Matters
 Classification of Claims
 Use of Forms
 Tashi Delek Gaming Solutions v. State of Karnataka, - Access to justice is a human
right.

Kinds of Law

 Substantive Law –
 creating rights and obligations on persons E.g.: IPC, ICA and TPA

 Procedural Law/Adjective Law –

 laying the procedure for enforcing such rights and obligations E.g.: CPC, Cr.P.C and
partly IEA.
 include Rules framed under various enactments.
 Procedural laws give life to substantial laws by providing the remedy and by
implementing
 the maxim ubi jus ibi remedium
 According to Salmond (Fitzgerald, 2006) the law of procedure is the law of actions.
The word 'actions' is used in the sense to include all legal proceedings.
  In Saiyad Mohd. v Abdul habib (1988, p.1624) the Supreme Court stated that

"A procedural law is always in aid of justice, not in contradiction or to defeat the very
object which is sought to be achieved by substantive law. Procedural law is always
subservient to the substantive law.”

 Procedural law cannot give what is not sought to be given by a substantive law, nor
can it take away what is given by the substantive law.

Civil Procedure

 The key to the understanding of this subject lies in the very name "Civil Procedure. “
 In the legal context, the word "civil" is used in contradistinction to such words as
"military," 'criminal" and "revenue".
 In a wide sense, the term "civil law" would denote the whole law of the state
governing the relations among its citizens inter se or between the state and the citizens
as distinguished from international law which operates among states inter se.
 excluding the jurisdiction of the civil courts
 substantive law consists of rules relating to rights and obligations of the state and
individuals while the law of procedure provides the manner in which these rights and
obligations are enforced.
 What then is the place of a procedure in law?
 Procedure has to be invoked only when the law has to be enforced.
 Prior to its enforcement, the law may remain only a formulation of rules of conduct.
 But when these rules have to be actually applied and enforced, then this can be done
only according to the procedure established by law.
 The law of procedure may be defined as that branch of law which governs the process
of litigation. It is the law of actions
 -jus quod ad actiones pertinet
 Substantive law is concerned with the ends which the administration of justice seeks;
procedural law deals with the means and instruments by which those ends are to be
attained.
 Civil Procedure Law - a codification of the principles of natural justice - Garden of
Eden - Dr. Bentely’s case, i.e., R V. University of Cambridge, (1723) 1 STR 757.
- Introduction of adversarial system.
Court Room Humour

 Is this some kind of a joke, says SC on trial through WhatsApp - Yogendra Sao and
his wife Nirmala Devi – Mr. Tankha Appearing
 Police Arrested A Parrot – Hariyal Case
 Ranveer Singh Yadav Versus Delhi Transport Corporation – 40 years – 5 paisa
 Lal Bihari Identity Case (1975-1994)
 who claimed the original 'Tunday'!


THE CODE OF CIVIL PROCEDURE (ACT V OF 1908)

 Received the assent of the Governor-General - 21st March 1908

 An Act to consolidate and amend the laws relating to the Procedure of the Courts of
Civil Judicature.
 It shall come into force on the first day of January 1909
 It extends to the whole of India, except –
- Clause (a) omitted by Act 34 of 2019, s. 95 and the Fifth Schedule (w.e.f. 31-10-
2019).
- Tribal Area

SCHEME OF THE CODE

 Divided into two parts;

- The first part consists of 158 sections and
- The second part consists of the First Schedule wherein there are 51 Orders and
every order contains rules
 The first part i.e., the sections lay down the provisions of a substantive nature and the
principles regarding the jurisdiction of the courts.
 The second part i.e., the First Schedule deals with the procedure and the mode and
the method of which is to be followed by the courts while exercising
jurisdiction bestowed by the code.
 The sections create jurisdiction while the rules indicate the manner in which
the jurisdiction is to be exercised, the inherent power of the court to do justice
is in additions to and complementary to the powers conferred under the Code
 Vareed Jacob v Sosamma Geevarghese, AIR 2004 SC 3992 .
 The sections under the code can be amended only by the legislature.
 But the orders and rules provided in the First Schedule of the code can be amended by
the High Court. Under section 122, the High Courts have powers to amend, by rules,
the procedure laid down in the orders.
 The sections and the rules, therefore, must be read together and harmoniously
construed.
 However, if the rules are inconsistent with the sections, the sections will prevail.

CONSOLIDATE AND AMEND

 To consolidate a law means to collect the statutory law relating to a particular subject
and to bring it down to date in order that it may form a useful Code applicable to the
circumstances existing at the time when the consolidation Act is enacted.
 If the language is plain and unambiguous, resort need not be had to the earlier law;
but if it is capable of more than one meaning, it is permissible to refer to the previous
state of law to fix the meaning of the provision under construction.
 Pari Materia
 where it plainly amends, resort cannot be had to the earlier law
 Ex Vis Ceribus Actus -every part of the statute must be construed within the four
corners of the Act.

INTERPRETATION OF THE ACT

 A statute is an edict of the Legislature

 RMD Chamarbaugwala v. Union of India- the Supreme Court observed that a statute
is to be construed according to the intention of them that make it.
 The duty of the judicature is to act upon the true intention of the Legislature the mens
or sententia legis- the essence of the law lies in the spirit, and not in its letter, the
letters are just the way to express the intentions of the law makers.
 The courts are therefore, held as finishers, refiners, and polishers of legislatures which
give them in a state requiring varying degrees of further processing.
 Harmonious Construction - The Code of Civil Procedure 1908 is one continuous
whole, the sections being enacted simultaneously; and therefore, in order to ascertain
the true legislative intent, the words and phrases are to be taken, not in an isolated and
detached manner dissociated from the context, but are to be read together and
construed in the light of the purpose and object of the Act itself.
 Liberal Construction of Procedure Codes - Procedure is mere machinery and its
object is to facilitate and not to obstruct the administration of justice.
 The Code of Civil Procedure should therefore, be considered liberally and, as far as
possible, technical objections should not be allowed to defeat substantial justice
 The Code of Civil Procedure is a body of general law, designed to facilitate justice. It
should not be treated as an enactment providing for punishment and penalties. The
law of justice should be so constructed as to render justice where reasonably possible.

Code Exhaustive –

 The essence of a Code is to be exhaustive of the matters in respect of which it

declares the law and it is not the province of the judge to disregard or go outside the
letter of the enactment according to its true construction.
 Where there is no specific provision in the Code, the court has the power and it would
seem it is its duty to act according to justice, equity and good conscience.

RETROSPECTIVE OPERATION

 Every statute which takes away or impairs vested rights acquired under the existing
law must be presumed to be intended not to have retrospective operation
 but this presumption does not apply to enactments affecting procedure or practice,
such as the Code of Civil Procedure
 The reason is that no person has a vested right in any course of procedure. The
general principle indeed seems to be that alterations in the procedure are always
retrospective unless there be some good reasons against it.
 The Code of Civil Procedure is thus not retrospective so as to affect vested rights
except where the amendment has been expressly or by necessary implication been
made retrospective
  Hitendra Vishnu Thakur v. State of Maharashtra – five guidelines – retrospectivity
of amending act
 The Halsburys Law of England states the law on retrospective operation of statutes
thus:

The general rule is that all statutes, other than those which are merely declaratory, or
which relate only to matters of procedure or of evidence, are prima facie prospective, and
retrospective effect is not to be given to them unless, by express words or necessary
implication, it appears that this was the intention of the legislature. Similarly, the courts
will construe a provision as conferring power to act retrospectively only when clear
words are used

 Punjab Co-operative Bank v Lala Bikram Lal, AIR 1959 Punj 71

 procedure is a handmaid and not mistress of law and rules of procedure should
only sub-serve and not govern.
 Procedure is only channel to administer law and thus it should not be instrumental
in impleading or obstructing justice

Retrospective and Retroactive nature of any statute

- Every statute which takes away or impairs vested rights acquired under the
existing law must be presumed to be intended not to have retrospective operation,
but this presumption does not apply to enactments affecting procedure or practice,
such as the CPC.
- The reason is that no person has a vested right in any course of procedure. CPC,
like other procedural laws, is retrospective in operation and its provisions apply
even to proceedings already initiated at the time of its enactment, unless there are
good reasons to the contrary. Thus, all procedural laws are retrospective unless the
legislature expressly states to the contrary.
- Thus, the question whether an enactment is meant to operate prospectively or
retrospectively has to be decided in accordance with the following well settled
principles:
1. A statute which affects substantive rights is presumed to be prospective in
operation unless made retrospective, either expressly or by necessary intendment,
 whereas a statute which merely affects procedure, unless such a construction is
textually impossible, is presumed to be retrospective in its application, must not be
given an extended meaning and must be strictly confined to its clearly defined
limit.
2. Law relating to forum and limitation is procedural in nature, whereas law relating
to right of action and right of appeal even though remedial, is substantive in
nature.
3. Every litigant has a vested right in substantive law but no such right exists in
procedural law.
4. A procedural statute must not, generally speaking, be applied retrospectively
where the result would be to create new disabilities or obligations or to impose
new duties in respect of transactions already accomplished.
5. A statute which not only changes the procedure but also creates new rights and
liabilities will be construed to be prospective in operation unless otherwise
provided, either expressly or by necessary implication.

Case: Securities and Exchange Board of India Versus Rajkumar Nagpal and Others-
https://mail.google.com/mail/u/0/#label/CPC/FMfcgzGtwMZzNlLctknsGdJrgTxrqvCW?
projector=1&messagePartId=0.1.

DEFINITION CLAUSES

Decree-Holder: Section 2(3)

  Decree-holder means any person in whose favour a decree has been passed or an
order capable of execution has been made.
 A transferee is not a decree-holder unless he has been recognised by the court.

Foreign Court: Section 2(5)

 Foreign Court means a Court situate outside India and not established or continued by
the authority of the Central Government.

Foreign Judgment: Section 2(6)

 Foreign judgment means the judgment of a foreign court

Judge: Section 2(8)

 Judge means the presiding officer of a Civil Court

 No judge can act in any matter in which he has any pecuniary interest, nor where he
has any interest, though not a pecuniary one, sufficient to create a real bias.
 An arbitrator is neither a judge nor a court.
 The word court is generic term and embraces a judge but the vice versa is not true.
 While the word court and judge are frequently used interchangeably, they are not
stricto sensu synonyms for the simple reason that a judge by himself does not
constitute a court, being only an essential part of the court.

Judgment-Debtor: Section 2(10)

 Judgment-debtor means any person against whom a decree has been passed or an
order capable of execution has been made.
 A surety of a judgment-debtor is not himself a judgment-debtor
 The word judgment-debtor as used in this rule has been held not to include the legal
representative of a deceased judgment-debtor.

Legal Representative: Section 2(11)

 Legal representative means a person who in law represents the estate of a deceased
person, and includes any person who intermeddles with the estate of the deceased and
 where a party sues or is sued in a representative character the person on whom the
estate devolves on the death of the party so suing or sued.
 It is not confined to legal heirs only.
 It stipulates a person who may, or may not be an heir if he is competent to inherit the
property of the deceased, but he should represent the estate of the deceased person.
 The decision as to who is the legal representative for the purpose of proceedings is
necessarily limited for the purpose of carrying on the proceedings and cannot have the
effect of conferring of any right of heirship to the estate of the deceased.
 It is true that all legal heirs are ordinarily also legal representatives but the converse is
not true.
 All legal representatives are not necessarily legal heirs at will.
 A mere trespasser, however, cannot be said to be the legal representative of the
deceased as he holds adversely to him and does not intermeddle with the intention of
representing the estate.

Mesne Profits: Section 2(12)

 Mesne profits of property means those profits which the person in wrongful
possession of such property actually received or might with ordinary diligence have
received therefrom, together with interest on such profits, but shall not include profits
due to improvements made by the person in wrongful possession.
 The main object of awarding mesne profits is to compensate the person entitled to be
in possession of the property.
 The very foundation of a cause of action for mesne profits is the wrongful possession
of the Defendant
 For entitling him to grant of mesne profits, the plaintiff must lead evidence to prove
what would be the compensation the defendant might have received with due
diligence for his wrongful possession.
 The Apex Court in the case of Fateh Chand v. Balkrishna Dass, AIR 1963 SC 1405
observed that the normal measure of mesne profits is the value of the user of the land
to the person in wrongful possession.
 The possession of a co-sharer can never be wrongful within the meaning of s 2 (12) as
he has a right and interest in every inch of the undivided property. Therefore, one co-
 sharer cannot claim mesne profits against the other, on the ground that the latter was
in wrongful possession.

Public Officer: Section 2 (17)

 The definition very nearly corresponds to that of a public servant in the Indian Penal
Code 1860, but a person may be a public servant and not a public officer, e.g., a
municipal commissioner and engineer.
 To serve means to perform function; do what is required for.

Affidavit

 An affidavit is a sworn statement of facts by a person

 Section 139 and Order XIX of Code of Civil Procedure, 1908 along with Order XI of
Supreme Court Rules.
 An affidavit is treated as “evidence” within the meaning of Section 3 of The Evidence
Act, 1872
 Khandesh Spg & Wvg Mills CO Ltd. Vs Rashtriya Girni Kamgar Sangh, 1960
SCR(2) 841 - an affidavit cannot ordinarily be used as evidence in the absence of a
specific order of the Court
 Affidavits strictly conform to the requirements of Order XIX Rule 3.
 Padmabati Dasi v. Rasik Lal Dhar [(1910) Indian Law Reporter 37 Calcutta 259] -
Chief Justice Lawrence H. Jenkins and Woodroffe, J
 State of Bombay v. Purushottam Jog Naik, AIR 1952 SC 317. Vivian Bose, J
 Filing of false affidavit is an offence of perjury under the provisions of the Indian
Penal Code.
 It is a criminal offence under Section 191, 193, 195, 199 of Indian Penal Code, 1860
 Contempt of Court
 an application under section 340 Read with section 195 of Code of Criminal
Procedure, 1973 before the criminal or civil court for giving false evidence.

Appeal
  An appeal is a remedial concept determined as an individual’s right to seek justice
against an unjust decree/order via referring it to a Superior Court
 Sections 96 to 99A; 107 to 108 & Order 41 of the Code of Civil Procedure, 1908 deal
with appeals from original decrees known as First appeals.
 The Black’s Law Dictionary

“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.”

 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.
 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.
 An appeal accrues to the law as found on the date of the institution of the original suit.

Caveat

 The caveat in Latin means “let a person be aware” and in law, it may be understood as
a notice given asking not to act in a certain manner without informing the person who
gave such a notice.
 Under the Civil Procedure Court, the provision of caveat is dealt with in Section
148A.
 In Nirmal Chand v. Girindra Narayan AIR 1978 Cal 492, the court defined a caveat
as a warning given by an individual to the court that no order or judgment shall be
passed without giving notice or without hearing the caveator.
 The person who files a caveat is called the Caveator and the person who has instituted
a suit or is likely to do so is called Caveatee.
 As the purpose of the caveat was to save the cost and convenience of the court, in
Kattil Vayalil Parkkum Koiloth v. Mannil Paadikayil Kadeesa Umma AIR 1991 Ker
411, the court held that no caveat can be lodged by a total stranger to the suit
  Deepak Khosla v. Union of India & Ors WP(C) No. 12787/2009, Delhi HC, the
court held that Section 148A of the code applies to civil proceedings only and caveat
cannot be made against petitions made under the Criminal Procedure Code or petition
made under Article 226 of the Constitution of India

CAUSE OF ACTION

 "a fact or facts that enable a person to bring an action against another.”
 Cause of action may be defined as ‘a bundle of essential facts, which is necessary for
the plaintiff to prove before he can succeed.’
 A cause of action is the foundation of a suit. It must be antecedent to the institution of
a suit and on the basis of it, the suit must have been filed.
 Every fact constituting the cause of action should be set out in clear terms.
 A cause of action must include some act done by the defendant since in the absence of
such an act no cause of action can possibly accrue.
 If a plaint does not disclose a cause of action, the Court will reject that plaint.
 Raghwendra Sharan Singh Vs. Ram Prasanna Singh (Dead) by LRs, CIVIL
APPEAL NO. 2960 OF 2019, SC If clever drafting has created the illusion of a cause
of action, as observed by this Court in a catena of decisions, the Court must nip it in
the bud at the first hearing by examining the party searchingly under Order 10 of the
CPC.
 The cause of action is a bundle of facts which taken with the law applicable to them
gives the Plaintiff the right to relief against the Defendant.
 Church of Christ Charitable Trust and Educational Charitable Society Vs.
Ponniamman Educational Trust (2012) 8 SCC 706

SUIT, PLAINT, APPLICATION, PETITION

SUIT

 The term suit has not been defined in the Code.

  Hansraj Gupta v. Official Liquidators of Dehradun- Mussorie Electric Tramways
Co. Ltd., AIR 1933 PC 6
 Pandurang Ramchandra v. Shantibai Ramchandra, AIR 1989 SC 2240
 “suit” means a civil proceeding instituted by the presentation of a plaint.”
 According to Section 2(1) of the Limitation Act, 1963 ‘Suit’ does not include an
appeal or an application.

ESSENTIALS OF A SUIT

Krishnappa v. Shivappa, ILR (1907) 31 Bom 393, - there are four essentials of a suit:

1. Opposing parties

2. Subject matter

3. Cause of action

4. Relief

INSTITUTION OF SUITS

 Section 26 - every suit shall be instituted by the presentation of a plaint in duplicate or

in any other manner prescribed by the Code of Civil Procedure, to the court or such
officer appointed in this behalf and the facts stated therein must be supported by an
affidavit.
 This section must be read with Order IV, VI & VII of the first schedule.
 Rule 1 of Order IV must be read with Section 26 of CPC in the extension of the law
as provided in the section.
 This rule provides that every suit is taken to be duly instituted only when it is
presented by a plaint, in duplicate, and presented to either the court directly or to a
proper officer appointed in this behalf. And also that such plaint must comply with the
rules contained in Order VI & VII.

SUIT PROCEEDINGS

 SHAB KARAN BESDHA VS. SITA SHARAN BESDHA (2009) 9 SCC P689 -
 There is artificial division of the suit proceedings as preliminary decree proceedings, final
decree proceedings, and execution proceedings. Trial judges of the view that the judicial
function is only to conduct the trial proceedings till the passing of the preliminary decree
and that final decree proceedings or eviction proceedings is only ministerial act or
administrative act, and that the troubles of a litigant actually would start from the time he
obtains decree, since he has to seek execution of the decree to realize the fruits of the
decree.

PLAINT

 The expression “plaint” has not been defined in the code. It is a pleading of the
plaintiff
 Order VII of the Code, Section 26
 Pleading of the Plaintiff

PETITION

 A petition is fundamentally a solicitation to court.

 A formal court request
 Smt. Baby Deb vs Ajit Deb on 12 October, 2007, Gauhati High Court
- Order VII, Rule 1 prescribes what a plaint should contain, but no section or order
or Rule of CPG prescribes as to what a petition should contain. On the other hand,
CPC does not say that the ingredients required for plaint are the ingredients for
petition. Therefore, a petition is completely different from the plaint.
- The legislature has deliberately used the word "petition" in Hindu Marriage Act
and in Special Marriage Act, instead of the word 'Plaint'
- A pro forma of matrimonial petition as prescribed in the Act must contain some
mandatory statements, such as, there is no collusion or connivance between the
parties with respect to the subject-matter of the petition etc.
- but the CPC does not provide for any such statutory requirement while presenting
a plaint for a suit and this is the basic different between a petition in a matrimonial
proceeding and a plaint in a suit of CPC.
- Therefore, a petition for a divorce, in no way, is a plaint in nature as the learned
trial Court has decided.
  Bharat Singh & Ors vs State Of Haryana & Ors on 13 September, 1988 (1988 SCR
Supl. (2)1050)
- Pleadings under Civil Procedure Code and a writ petition or counter affidavit are
different
- In plaint or written statement facts are to be pleaded but in writ petition facts and
evidence in proof thereof is also to be pleaded. Point of law should be
substantiated by facts.
- The facts must be pleaded and proved by evidence which must appear from writ
petition or counter affidavit.
- If not so done Court will not entertain that point.
- There is a distinction between a pleading under the Code of Civil Procedure and a
writ petition or a counter-affidavit.
- While in a pleading, that is, a plaint or a written statement, the facts and not
evidence are required to be pleaded, in a writ petition or in the counter-affidavit
not only the facts but also the evidence in proof of such facts have to be pleaded
and annexed to it.

Application

 Shakti Bhog Food Industries Ltd. Vs. The Central Bank of India & Anr. CIVIL
APPEAL NO. 2 515 OF 2020
 averments in the plaint or otherwise

ORDER, JUDGMENT AND DECREE

 Decision given by Court of law, are either decrees or orders.

 A decree always follows the Judgment, which is pronounced by the Court, after
hearing the case and can either be declaratory or executory.
 Both decree and order are analogous to each other.

RELEVANT PROVISIONS
  Following are the relevant provisions of C.P.C regarding the topic of decree and
order.
a. Sec 2(2) for decree
b. Sec 2(14) for order
c. Sec 2(9) for Judgment
d. Order 20 Rule 1 to 6 for Decree and Judgment

DEFINITION OF DECREE: U/S 2(2) of C.P.C

 A decree may be defined as under.

"Decree means the formal expression of adjudication which, so far as Court expressing it,
conclusively determine the rights of the parties, with regard to all or any of the matter in
controversy in the suit, and may be either preliminary or final."

 case pertaining to the meaning of the term ' decree'. Many a time the 'decree' is very
difficult to be executed as a decree. See para 18.

Rajinder Kumar v. Kuldeep Singh & Ors. 2014(2) SCALE 135

IMPORTANCE OF DECREE

 It is considered as fruit of a litigation.

 Any relief claimed by plaintiff is provided to him through 'decree'.
 When a suit is allowed by court, it is said that “suit is decreed.”
 It is final order of a court; generally at the end of litigation.
 For execution and appeal copy of decree is essential.

ESSENTIALS OF DECREE

 Every decree is an 'order' but every order is not a 'decree. The essentials for a 'decree'
are.
1. There must be adjudication,
2. The adjudication must have been given in a suit before the Court,
 3. The adjudication must have determined the rights of parties with regard to all or any
of the matters in controversy in the suit,
4. Such adjudication must be conclusive, and
5. There must be formal expression of adjudication.

(i) Adjudication

 The word adjudication refers to judicial determination of matter in controversy, and

includes an ex-parte determination. For an adjudication to come into the scope of
decree, it must be made by a court.
 Definition of ‘decree’ states that, it is formal expression of ‘adjudication’.
 Adjudication is formal giving or pronouncing of a judgment.
 There must be judicial determination of the matter in dispute between the parties to
litigation.

(ii) Given in Suit

 The word suit is not defined by the code. So it may be defined in a general sense.

“Any proceedings, which is instituted by the presentation of a plaint, or which is created as a

suit by any law, than such proceedings will be deemed to be a suit."

 There is no decree unless there is a ‘suit’.

 A suit is concluded by judgment and decree.
 ‘Suit’ is not defined in the Code but it includes a civil or revenue proceeding which is
instituted by presentation of a plaint

(iii) Determination of Rights of Parties

 The adjudication must determine the rights of the parties. Parties refers to persons,
who are on the record as plaintiff and defendant, and right has reference to substantive
right.

(iv) Regarding all or any of the Matter in Controversy

  The adjudication determining the right of parties must be with regard to all, or any of
the matter in controversy. It’s reference to the subject matter of the suit in dispute, and
the decision of the Court may be with regard to even one matter in controversy.

(v) Conclusive

 The decision should be conclusive, so far as the Court expressing it is concerned, and
it may be conclusive even if the suit is still not disposed of i.e., preliminary decree.

(vi) Formally Expressed

 There must be formal expression of the adjudication. It should be precise and specify
the relief granted or other determination of the suit and names and description of the
parties.

KINDS OF DECREE

 Decree may be classified into two kinds

(i). Declaratory decree which is not capable of execution.

(ii) Executory decree which can be executed and enforced by the court.

CLASSES OF DECREE

Following are the different classes of decrees as contemplated by Sec. 2(2) of C.P.C

(i) Preliminary Decree

 A preliminary decree declares rights and obligations of the parties leaving further
matters to be determined in subsequent proceedings and it is conclusive in nature.
 Where adjudication decides the rights of parties with regard to all matters in
controversy in suit but does not dispose suit completely, will be ‘preliminary decree’.
[ Venkat Reddy v. Petho Reddy, AIR 1963 S.C. 992.]
  A Court may pass preliminary decree as to rights of parties but wait to pass final
decree until it reach to such position.
 In preliminary decree rights and liabilities of parties are declared while other matters
to be worked out with final decree.
 For example,- in suit for possession of immovable property with mesne profit, the
Court decree for possession of the property and directs an enquiry into the mesne
profit.
 Here for possession it is final decree and for mesne profit it is preliminary decree.
 in suit for dissolution for partnership and settlement of account; court may pass
preliminary decree for dissolution and may continue trial for settlement of account.

(iii) Partly Preliminary and Partly Final Decree

 A decree, may be of such a kind which is final in part and partly preliminary.
 Example: In a suit, for recovery of possession of immoveable property and rent, the
part of the decree, which directs delivery of possession of property is final but the part
directing an inquiry as to rent or profit is preliminary

(iv) Order Rejecting a Plaint

 sec 2(2) declares that order rejecting a plaint is a decree, though there is no
adjudication of the rights of the parties but by fiction of law, it is classed as decree.

(v) Determination of Questions under Certain Provisions of C.P.C

 By virtue of Sec 2(2), all orders made u/s 144 and under Rules 60, 98,99, 101 and 103
of order 21 are decrees

DECREE NOT INCLUDE THE FOLLOWING

By virtue of sec 2(2), decree shall not include the following:

(i) Appellate Orders

 An Adjudication, from which an appeal lies, as an appeal from an order, is not a

decree.
  Example: Questions to be determined by the executing courts, u/s 47, are orders.

(ii) Dismissal in Default

 Orders of dismissal of suit, in default of appearance or non-prosecution, are not

decrees i.e. orders passed under order 9 or 17 of C.P.C.

DEFINITION OF ORDER: u/s 2 (14) of C.P.C

 "Order means the formal expression of any decision of a Civil Courts which is not a
decree.”

ESSENTIALS OF ORDER

(i) Decision

 The expression decision refers to judicial decision.

(ii) By Civil Court

 Decision must be one of Civil Court, and not of the administrative tribunals.

(iii) Formal Expression

 Decision given by Court, must be formally expressed i-e. It must be in writing,

precise and the language must be deliberate, so that the execution would be possible.

(iv) Not a Decree

 The definition of order, specifically excludes the decree from its ambit, and as such
any adjudication of court which is decree, cannot be an order at the same time.

CLASSES OF ORDER

Following are the two kinds of order

 a. Final Order
b. Interlocutory order

JUDGMENT U/S 2 (9)

 Judgment means the statement given by the judge of the grounds of a decree or order.

INGREDIENTS OF JUDGMENT

(i) Statement given by Judge

 A judgment means the judicial decision of court or judge.

(ii) Need to be in writing

 It is only after the judge has reduced his decision into writing that a judgment comes
into existence. An oral pronouncement is not a judgment.

(iii) Grounds of decree or order

 Every statement of grounds will not be a judgment but will be so only if such
decisions can result in a decree or an order. Findings recorded by Trial Court without
referring to any evidence of the parties and without discussing its legal effect after
conscious application of mind would not withstand test of the word judgment as
defined in section 2 (9) of CPC.

PRONOUNCEMENT OF JUDGMENT U/ORD. 2

 On completion of evidence, the Court shall fix a date, not exceeding 15 days, for
hearing of arguments of the parties.

JUDGMENT AND DECREE U/SEC 33

 The Court after the case has been heard shall pronounce judgment and on such
judgment a decree shall follow.
DIFFERENCE BETWEEN DECREE AND ORDER

Following are the differences between decree and order

(i) As to Nature

 Every decree is an order, but every order is not a decree.

(ii) Appeal

 Ordinarily appeal lies from every decree, but orders are appealable only, if provided
by Sec. 104 read with order 43

(iii) As To Second Appeal

 A second appeal may lie against decree, but a second appeal shall not lie against an
order passed in appeal.

(iv) Determination of Rights

 Decree conclusively determines the rights of the parties, but order does not
necessarily conclusively determine the rights of the parties.

(v) Classes

 Decree is of five classes as provided u/s 2(2), while order may be of final or
interlocutory.

(vi) Emergence

 Decree cannot be emerged into an order, but every order in a case merge into a
decree.

DIFFERENCE BETWEEN DECREE ORDER AND JUDGMENT

I. As to execution

 It is the decree or order which is capable of execution and not the Judgment.

II. Form

 Decree and order always follow the Judgment while the judgment contains the
grounds of both decree and order.

III. Superiority

 Judgment is superior in form and if decree or order are not in accordance with it, they
may be altered.

V. Appeal

 It is the decree or order which is appealable and not the judgment.

V. Kinds

 Decree and order have different kinds but that is not a case with the judgment.

RES SUB-JUDICE

 Section 10 contains doctrine of res subjudice.

 ‘Res’ means a subject matter against which legal proceeding has been instituted and
‘subjudice’ means a case under trial or under judgment.
 Section states that, the Court shall not proceed with the trial of suit in which:
i. The matter in issue in a previously instituted suit between the same parties;
ii. Where such suit is pending in the same or any other Court in India.
Object of res subjudice

 To prevent Courts of concurrent jurisdiction for simultaneous entertaining and

adjudicating two parallel litigations for same cause, same subject matter or for same
relief.
 To prevent possibility of two conflicting/contradicting judgments.

Effect of res subjudice

 Section does not prohibit institution of more than one suit but it simply stays
subsequent suit(s) after institution.
 If husband filed a suit for divorce at one place and wife also filed divorce suit before
same or different court, then the subsequently instituted suit shall be stayed and first
suit shall continue.

Conditions for Res-subjudice

1. There must be two suits:

Doctrine of res-subjudice will be applicable for subsequent suit. Obviously, there are two
suits and subsequent suit will be stayed.

2. The suits must be between same parties:

Both suits, must be between same parties. Parties may be actually same or their
successor/representative litigating under the same title.

3. The matter in issue in later suit must be directly and substantially the same in the
previous suit:

Subject matter in both suits must be directly and substantially same.

4. Both the suits must be pending in a Court of law:

Both suits i.e. earlier and subsequent suit must be pending in the Court of law. Both suits may
be pending in any Courts in India or even in the same Court. Court includes Supreme Court
or a Court established outside India, established or continued by Central Government but
does not include a foreign Court.

5. The parties must be litigating under the same title:

In both suits, parties must be litigating under the same title i.e. in the same capacity. When
these conditions are fulfilled, the Court shall not proceed in the suit and has to stay the

proceeding.

 This Doctrine cannot be applied when the point at issues are distinct and different
(Alimallah v. Sheikh, 43 DL RLL 3), or even where there are some issues in common
and others are different issues (Abdur v. Asrafun, 37 DLR 271).
 It is also not applicable between the suits where although the parties are same, the
issues are not the same (Manzar v. Rema, 33 DRL 49).
 The court may use its inherent power to secure the ends of justice when section 10 is
not applicable, even to prevent abuse of process of the court, the court may stay
‘former suit’ too, by applying its inherent power (Ram v. Devidayal, AIR 1954 Bom.
176).
 There is no bar on the power of an Indian Court to try a subsequently instituted suit if
the previously instituted suit is pending in the foreign court (Explanation to s. 10).
 With Respect to Interlocutory/interim orders, these can be considered as an exception
to the doctrine of res sub judice.
 Certain orders can be passed without a trial, such as attachment. Hence, such orders
are not affected by res sub judice.
 So, the rule of res Subjudice only bars the trial and does not bar the courts from
adjudicating upon interlocutory orders such as the appointment of receiver,
 injunction or attachment (Sennaji Kapuechand v. Pannaji Devachand, AIR 1922
Bom 276).
 Examples

Escorts Const. Equipments Ltd V Action Const Equipments Ltd, 1998, Delhi High Court

RES JUDICATA

 Section 11 contains the rule of conclusiveness of the judgment.

 the maxim of Roman jurisprudence:

“interest reipublicae ut sit finis litium” (it concerns the State that there be an end to law suits)

 the maxim:

“nemo debet bis vexari pro una et eadem causa” (no man should be vexed twice over for the
same cause).

 The section does not affect the jurisdiction of the court but operates as a bar to the
trial of the suit or issue, if the matter in the suit was directly and substantially in issue
(and finally decided) in the previous suit between the same parties litigating under the
same title in a court, competent to try the subsequent suit in which such issue has been
raised.

 “Res judicata pro veritate accipitur” (a thing adjudged must be taken as truth) is the
full maxim which has, over the years, shrunk to mere “res judicata”.

(Vide: Kunjan Nair Sivaraman Nair v. Narayanan Nair (2004) 3 SCC 277).

 No Court shall try any suit or issue in which the matter directly and substantially in
issue has been directly and substantially in issue in a former suit between the same
parties, or between parties under whom they or any of them claim, litigating under the
same title, in a Court competent to try such subsequent suit or the suit in which such
 issue has been subsequently raised, and has been heard and finally decided by such
Court. (sec. 11)

Object of res-judicata

i. Give finality to the judgment of the Court,

ii. Protect a person from endless proceedings and

iii. Avoid re-determination of same issues which have already been adjudicated upon.

Doctrine of res-judicata is based on the following maxims

i. “Ex captio res judicata”. Meaning: one suit and one decision is enough for any single
dispute;

ii. “Nemo debet bis vexari pro una et endem cuasa”. Meaning: no one ought to be vexed
twice for one and the same cause;

iii. “Interest republicae ut sit finis litum”. Meaning: in the interest of State there should be an
end to litigation;

iv. “Res judicata pro veitee acciptur” . Meaning: a matter already adjudicated upon must be
accepted as truth.

Condition for res-judicata

1. Same parties: In both suits i.e. the suit which is pending before the Court and the suit
which has been decided (former suit) should be same.

2. Matter in issue: Subject matter in later suit (which is pending) must be directly and
substantially same in the earlier suit (which was decided). Subject matter need not to be
identical but substantially same.

3. Same title: The party must be litigating in the subsequent suit must have litigated under
the same title i.e. the same capacity in the earlier or former suit.
4. Concurrence of jurisdiction: The Court who decided the former suit must have been
competent to try the subsequent suit in which the issue has been subsequently raised.

5. Final decision: The matter in subsequent suit must have been ‘heard and decide’ by the
former suit. ‘Heard and decided’ means fully heard and finally decided on merit.

Types of res judicata

1. Res judicata as to claim: Res judicata is applicable to entire suit i.e. applicable to all
issues in subsequent suit and thereby the suit is barred.
2. Res judicata as to issue: Res judicata is applicable to some or particular issue out of
many issues in the subsequent suit. Section 11 state that, “No Court shall try any suit
or issue”.
3. Constructive res judicata: Any matter which might and ought to have been made
ground of defence or attack in such former suit shall be deemed to have been a matter
directly and substantially in issue in such suit.

Exceptions as to Res-Judicata

- There are certain Exceptions when the principle cannot be applied:

1. If the decree has been obtained by practicing misrepresentation or fraud on the court,
or where the proceedings had been taken all together under a special statute.
2. Not every finding in the earlier judgment would operate as a res judicata. Only an
issue, which is ‘directly’ and ‘substantially’ decided in the earlier suit, would operate
as res judicata.
3. Where the decision has not been given on merit, it would not operate, in case, the
appeal of the judgement and decree of the court below is pending in the appellate
court, as then the judgement of the court below cannot be held to be final, and the
findings recorded therein would not operate as res judicata.
4. When the judgment is non-speaking. (Union of India v. Pramod Gupta (Dead) by LRs
& Ors., (2005) 12 SCC 1).
5. Where the matter has not been decided on merit earlier, the doctrine of res judicata is
not applicable (State of Uttar Pradesh & Anr. v. Jagdish Sharan Agrawal & Ors.,
(2009) 1 SCC 689).
6. It does not apply to criminal cases, where the entire proceedings have been initiated
illegally and without jurisdiction. Fatima Bibi Ahmed Patel v. State of Gujarat (2008)
6 SCC 789.
7. When a matter involves a pure question of law (Raju Ramsing Vasave v. Mahesh
Deorao Bhivapurkar, (2008) 9 SCC 54).
8. In cases of Dismissal in limine or dismissal on default, the principle of res judicata
does not apply.
In following cases the matter is deemed to be finally decided on merits even if the former suit
is disposed of in the following manner:

1. By ex parte
2. By dismissal
3. By decree on an award
4. By oath tender under section 8 on Indian Oath Act,1873
5. By dismissal owing to plaintiff failed to produce evidence at the hearing.

The doctrine of Res Judicata will not apply to a writ of “Habeas Corpus”.

As a matter may be res judicata between a plaintiff and a defendant, similarly, it may be res
judicata between co-defendants and co-plaintiffs also. An adjudication will operate as res
judicata between co-defendants if the following conditions are satisfied:

 There must be a conflict of interest between co-defendants;

 It must be necessary to decide that conflict in order to give relief to the plaintiff;

 The question between co-defendants must have been finally decided;

 The co-defendants were necessary or proper parties in the former suit.

Proceedings where res judicata is not applicable are:

 Taxation matters

 Res Judicata is not applicable to cases of habeas corpus petitions.

 Dismissal of suit in default

 Dismissal in limine

 Dismissal of Special Leave Petition in limine by a non speaking order

 Compromise decree, though party is precluded from challenging it by rule of

estoppel
  Fraudulent decree

 Withdrawal of suit

 In case of change in circumstances

 Change in law subsequent to a decision rendered by the Court.

BAR TO FURTHER SUIT

According to Section 12 of the Code of Civil Procedure, where a plaintiff is precluded

by rules from instituting a further suit in respect of any particular cause of action, he shall not
be entitled to institute a suit in respect of such cause of action in any Court to which this
Code applies.

The main object of this section is to prevent endless litigations and to prevent abuse of Legal
procedure…

The Code of Civil Procedure 1908 precludes a plaintiff from instituting a suit in the
following cases –

1. Where is suit is barred by Res-judicata (Section 11 of CPC)

2. Section 21(1) No objection as to the place of suing shall be allowed by any appellate or
Revisional Court unless such objection was taken in the Court of first instance at the earliest
possible opportunity and in all cases where issues or settled at or before such settlement, and
unless there has been a consequent failure of justice.
3. Section 47(1) All questions arising between the parties to the suit in which the decree
was passed, or their representatives, and relating to the execution, discharge or satisfaction of
the decree, shall be determined by the Court executing the decree and not by a separate suit.

4. Section 95(2) An order determining any such application shall bar any suit for
compensation in respect of such arrest, attachment or injunction.

5. Section 144(2) No suit shall be instituted for the purpose of obtaining any restitution or
other relief which could be obtained by application under sub-section (1).

6. Where a suit is dismissed for non-compliance with an order of Discovery. [Order 11,
Rule 21(2)]

7. Where a suit is abated [Order 22 Rule (9)]

8. Where a suit or part of a claim has been abandoned by the plaintiff [Order 23 Rule
1(1)]

9. Where a suit or part of a claim has been withdrawn by a plaintiff without the leave of the
court [Order 23 rule 1(3)]

10. Where a compromise decree is sought to be challenged on the ground that the
compromise was not lawful [Order 23 rule 3(a)]

PLACE OF SUING- JURISDICTION OF COURTS

Sections 15 to 20 deal with place of suing.

 Section 15 provides that every suit shall be instituted in the Court of lowest grade
competent to try it.
 Section 16 provides for institution of the suit where subject matters are situated.
 Section 17 provides that suit shall be instituted for immovable property situate within
the jurisdiction of different Courts.
 Section 18 deals with the place of institution of a suit where local limits of
jurisdictions of Courts are uncertain.
 Section 19 provides for institution of suits for compensation for wrongs to person or
movable property.
 Section 20 provides for institution of the suits not covered by earlier provisions where
defendants reside or cause of action arises.

 Jurisdiction of a Court means the power or the extent of the authority of a Court to
hear and determine a cause, to adjudicate and exercise any judicial power in relation
to it.
 The Jurisdiction of a Court means the extent of the authority of a Court to administer
justice prescribed with reference to the subject matter, pecuniary value or local limits.
 The expression ‘jurisdiction’ does not mean the power to do or order the act
impugned, but generally it would import the authority of the judicial officer to act in
the matter as held in case of Anwar Hussain V/s.Ajay Kumar AIR 1965, SC 1651.
 The court shall be competent to entertain the proceedings.
 The competency is legally termed as jurisdiction.
 The jurisdiction is of three kinds, namely, statutory, pecuniary and territorial.
 Conferment of jurisdiction is a legislative function and it can neither be conferred
with the consent of the parties nor by a superior court and if a court having no
jurisdiction passes a decree over the matter, it would amount to a nullity, as the matter
by-passes the correct route of jurisdiction.
 Such an issue can be raised even at a belated stage in execution.
 The finding of a court or Tribunal becomes irrelevant and unenforceable/inexecutable
once the forum is found to have no jurisdiction.
 Acquiescence of parties cannot confer jurisdiction upon a court and an erroneous
interpretation equally should not be permitted to perpetuate or perpetrate, defeating
the legislative intention.
 The Court cannot derive jurisdiction apart from the Statute.
  No amount of waiver or consent can confer jurisdiction on the Court if it inherently
lacks it or if none exists.
 If the Court has no inherent jurisdiction, neither acquiescence nor waiver nor
estoppels can create its But if two or more Courts have jurisdiction to try the suit, the
parties may agree among them that the suit should be brought in one of those Courts
and not in other, since there is no inherent lack of jurisdiction in the Court.
 Kiran Sing V Chaman Paswan AIR 1954 SC

“A defect of jurisdiction strikes at the very authority of the Court to pass any decree, and such
a defect cannot be cured even by consent of parties.

 Smt. Nai Bahu v. Lala Ramnarayan & Ors., AIR 1978 SC 22

 A.R. Antuley v. R.S. Nayak, AIR 1988 SC 1531
 Vithal (P) Ltd. v. Union of India & Ors., AIR 2005 SC 1891

Lack of and illegal exercise of jurisdiction

"A Court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged
party can only take the course prescribed by law for setting matters right; and if that course is
not taken, the decision, however wrong, cannot be disturbed.” Lord Hobhouse

A decree passed in the inherent lack of jurisdiction, is a nullity, and that nullity can be set up
in any collateral proceeding.

Decision as to jurisdiction

Bhatia Coop. Housing Society V D.C. Patel, AIR 1953 SC

Whenever the jurisdiction of the Court is challenged, the Court has inherent jurisdiction to
decide the said question.

Abdulla Vs Golappa, AIR 1985 S.C.

The allegations made in plaint decide the forum and jurisdiction does not depend upon the
defence taken by the defendants in the Written Statement.

Kinds of jurisdiction

i. Territorial jurisdiction or Local jurisdiction: Each Court has vested power to exercise
jurisdiction within its own territorial or local limits beyond which it cannot go.

ii. Pecuniary jurisdiction: The term 'Pecuniary jurisdiction' connotes the value of the subject
matter of the suit.

The High Courts and District Courts have no pecuniary limitation but the other Courts have
no such unlimited pecuniary jurisdiction. The Court of Civil Judge (Jr. Div.) in the State of
Uttar Pradesh can entertain the suits where the value of the subject matter does not exceed
Rs. 25,000/-.

iii. Jurisdiction as to subject matter of dispute: The different Courts have power to decide
different kinds of suit, like the Family Courts have jurisdiction to decide the suits/disputes
relating to the matrimonial matters.

iv. Original and appellate jurisdiction: In its original jurisdiction, a Court entertains and
adjudicates suits while in its appellate jurisdiction a Court decides appeals.

Jurisdiction & Suit of Civil Nature

 Abdul Wahid Khan Vs Bhawani, AIR 1966 S.C.

A litigant having a grievance of a civil nature has a right to institute a civil suit in a civil
Court competent to hear and decide the matter unless its cognizance is either expressly or
impliedly barred by any statute.
  It is a fundamental principle of English law that whenever there is a right, there is a
remedy. - Ubi jus ibi remidium.
 According to S.9 - a Civil Court has jurisdiction to try a suit, when the following two
conditions are satisfied:

i. the suit is of a Civil nature, and

ii. the cognizance of such a suit is neither expressly nor impliedly barred.

 The word "civil" has not been defined in the Code.

 The expression "Civil Nature" is wider than the expression "Civil Proceedings".
 Thus, a suit is of a civil nature if the private question therein relates to the
determination of a civil right and enforcement thereof.
 It is not the status of parties to the “suit, but the subject matter of it which determines
whether or not the suit is one of a civil nature.
 The expression is "suit of a civil nature will cover private rights and obligations of a
citizen.
 Political and religious questions are not covered by that expression."
 Explanation- 1 of S. 9 says that a suit in which the right to property or to an office is
contested is a suit of a Civil Nature, notwithstanding that such right may depend
entirely on the decision of questions as to religious rites or ceremonies.

Jurisdiction & Suit

 'The Courts shall (subject to the provisions herein contained) have jurisdiction to try
all suits of a civil nature excepting suits of which their cognizance is either expressly
or impliedly barred.“
 The cognizance of a suit may be barred either expressly or impliedly.
Suits expressly barred

 A suit is said to be "expressly barred" when it is barred by any enactment for the time
being in force by a competent Legislature, while keeping itself within the field of
legislation and without contravening any provision of the constitution. - Umrao
Singh V Bhagwan Singh, AIR 1956 SC
 Every presumption should be made in favour of the jurisdiction of the Civil Court and
the provisions of the exclusion of the jurisdiction of a Court must be strictly
construed.-Abdul V Bhawani AIR 1966 SC.
 It is well settled that a civil court has inherent power to decide its own jurisdiction-
Bhatia Coop. Housing Society V D. C. Patel, AIR 1953 SC

Suits impliedly barred

 A suit is said to be "impliedly barred" when it is barred by general principle of law.

 Where an Act creates an obligation and enforces the performance in a specified
manner, that performance cannot be enforced in any other manner, e.g., certain suits
of a civil nature are barred from the cognizance of a Civil Court on the grounds of
public policy.- Premier Automobiles V K. S. Wadke, AIR 1975 SC
 Thus, no suit shall lie for recovery of costs incurred in Criminal prosecution or for
enforcement of a right upon a contract hit by Section 23 of Indian Contract Act, 1872
or against any Judge for acts done in the course of his duties.
 A Civil court has no jurisdiction to adjudicate upon disputes of political nature.

From various decisions of the Supreme Court, the following general principles relating
to jurisdiction of a civil court emerge:
(1) A civil court has jurisdiction to try all suits of a civil nature unless their cognizance is
barred either expressly or impliedly.

(2) Consent can neither confer nor take away jurisdiction of a court.

3) A decree passed by a court without jurisdiction is a nullity and the validity thereof can be
challenged at any stage of the proceedings, in execution proceedings or evem in collateral
proceedings.

4) There is a distinction between want of jurisdiction and irregular exercise thereof.

5) Every court has inherent power to decide the question of its own jurisdiction.

(6) Jurisdiction of a court depends upon the averments made in a plaint and not upon the
defence in a written statement.

(7) For deciding jurisdiction of a court, the substance of a matter and not its form is
important.

(8) Every presumption should be made in favour of jurisdiction of a civil Court.

(9) A statute ousting jurisdiction of a court must be strictly construed.

(10) Burden of proof of exclusion of jurisdiction of a court is on the party who asserts it.

(11) Even where jurisdiction of a civil court is barred, it can still decide whether the
provisions of an Act have been complied with or whether an order was passed dehors the
provisions of law.

PLACE OF SUING

- Section 15 requires the plaintiff to file a suit in the court of the lowest grade
competent to try it. Sections 16 to 18 deal with suits relating to immovable
property. Section 19 applies to suits for compensation for wrong to person or to
movable property. Section 20 is a residuary section and covers all cases not dealt
with by Sections 15 to 19.
Nature and scope

- Section 15 of the Code refers to the pecuniary jurisdiction of the court. The rule
laid down in the section is a rule of procedure and does not affect the jurisdiction
of the court. Hence, a decree passed by a court of a higher grade cannot be said to
be without jurisdiction.

Object

- The object underlying this provision is two fold,

a. to see that the courts of higher grades shall not be overburdened with
suits;
b. to afford convenience to the parties and witnesses who may be
examined in such suits.

Mode of valuation

- Prima facie, it is the plaintiff's valuation in the plaint that determines the jurisdiction of the
court and not the amount for which ultimately the decree may be passed by the court.

- Usually, a court will accept a valuation of the plaintiff in the plaint and proceed to decide
the suit on merits on that basis. That does not, however, mean that the plaintiff in all cases is
at liberty to assign any arbitrary value to the suit, and to choose the court in which he wants
to file a suit. If the plaintiff deliberately undervalues or overvalues the claim for the purpose
of choosing the forum, the plaint cannot be said to be correctly valued and it is the duty of the
court to return it to be filed in the proper court.

 Where the court has jurisdiction, neither consent, nor waiver, nor estoppel, nor
acquiescence can oust it. An agreement to oust absolutely the jurisdiction of a
competent court is void, being against public policy Ex dolo malo non oritur actio).
 But when two or more courts have jurisdiction to entertain a suit, an agreement by the
parties to submit to the jurisdiction of one of such courts to the exclusion of the rest is
valid, binding and enforceable.
  Where a court has no jurisdiction over the subject-matter of a suit, there is inherent
lack of jurisdiction and a decree passed, judgment rendered or order made is a nullity.

Morgan Stanley Mutual Fund v. Kartick Das

Supreme Court stated, "There is an increasing tendency on the part of litigants to indulge in
speculative and vexatious litigation and adventurism which the fora curbed" seem readily to
oblige. We think such a tendency should be Curved”
ONGC v. Utpal Kumar Basu

Facts: though no cause of action had arisen in Calcutta, the High Court entertained a writ
petition and granted interim relief to the petitioner.

SC: Observing that it was a "a great pity" that one of the premier High Courts had developed
a tendency to assume jurisdiction on unsustainable grounds, the Supreme Court said: "We are
greatly pained to say so but if we do not strongly deprecate the growing tendency we will, we
are afraid, be failing in our duty to the institution and the system of administration of justice.
We do hope that we will not have another occasion to deal with such a situation."

OBJECTION AS To JURISDICTION: SECTION 21

- it is a fundamental rule that a decree of a court without jurisdiction is a nullity.

- Halsbury rightly states: "Where by reason of any limitation imposed by statute,
charter or commission, a court is without jurisdiction to entertain any particular
action or matter, neither the acquiescence nor the express consent of the parties
can confer jurisdiction upon the court nor can consent give a court jurisdiction if a
condition which goes to the root of the jurisdiction has not been performed or
fulfilled .. . Where a court takes upon itself to exercise a jurisdiction it does not
possess, its decision amounts to nothing.
- This does not, however, apply to territorial or pecuniary jurisdiction, inasmuch as
objections to such jurisdiction are regarded by the Code as merely technical and,
unless raised at the earliest possible opportunity, they will not be entertained in
appeal or revision for the first time.
Object

- The object underlying Section 21 is to protect honest litigants and to avoid

harassment to plaintiffs who have bona fide and in good faith initiated
proceedings in a court which is later on found to be wanting in jurisdiction.
Dishonest litigants cannot take advantage of this provision.

Under Section 21(1), no objection as to the place of suing will be allowed by an appellate or
revisional court unless the following three conditions are satisfied:

a. The objection was taken in the court of first instance;

b. It was taken at the earliest possible opportunity and in cases where
issues are settled at or before settlement of issues; and
c. has been a consequent failure of justice.

There All these three conditions must coexist.

Sec 21- Object is to prevent the other party from harassment with regard to jurisdiction
ONGC v. Utpal Kumar Basu, 1994
1st Institution Rule
Any objection under sec 21 as to jurisdiction is to be taken- Territorial or Pecuniary
1. At the time of institution
2. At earliest opportunity available
3. Before the settlement of issue

These categories of objection relates to irregular exercise of jurisdiction whereas sec 9

provides 3 grounds
1. Court does not have jurisdiction/competent
2. The issues involved are not of civil nature
3. There is express or implied bar

These grounds relate to inherent lack of jurisdiction can be raised at any point
Objections under sec 21 are general- sec 9 supersedes everything
Sec 9- make a suit-non est
Sec 21- irregularity in jurisdiction
Principal of bias-
1. Subject matter bias- judge has interest in subject matter
2. Personal bias- most difficult to prove
3. Pecuniary bias- most dangerous

Sec 21A- is an implication of rule of judicata but not exactly judicata.

TRANSFER OF SUITS

Sections 22 to 25 enact the law as regards transfer and withdrawal of suits and appeals from
one court to another court. Section 22 read with Section 23 enables the defendant to apply for
transfer of a suit while Section 24 empowers High Court and District Court and Section 25
empowers Supreme Court to transfer any suit or appeal either upon application made by the
party or Suo motu.

Section 22: Power to transfer suits which may be instituted in more than one court.

 Section 22 allows whom to make an application for transfer of a suit? Defendant.

 Section 22 provides that the defendant may apply to the court for transfer of suit to
another court in case a suit may be instituted in any one of two or more courts.
 Before transfer is ordered under Section 22, following conditions must be satisfied:

1) Notice is given to the other party.

2) The application must be made at earliest possible opportunity either at before or

settlement of issues.

Hearing of Objections:- After Notice is served to the other party, the court must decide
that application of transfer after hearing of objections of the opposite party.

Suo-Motu Transfer:- Over and above an application by a party to the suit, High Court &
District Court has power to transfer the suit or appeal even suo-motu under Section 24.
However, Section 25 does not provide for suo-motu transfer of the suit or appeal by the
Supreme Court.

The court after considering such objection raised by the other party, shall determine in which
court the case shall be transferred.

Section 23: To What Court Application lies

This Section indicates in which court application can be made:

1. Subordinate to same Appellate Court- Where the several courts having jurisdiction are
subordinate to the same Appellate Court, application shall be made to the Appellate Court.

2. Subordinate to different Appellate Court- Where such courts are subordinate to

different Appellate Court, but to the same High Court, the application shall be made to the
said High Court.

3. Subordinate to different High Courts- Where such courts are subordinate to different
High Courts, the application shall be made to the High Court within the local limits of whose
jurisdiction the court in which the proceedings first commenced is situated. This is called
First Commencement Rule.

Governing factor as to rule to transfer of an application under Sections 22 & 23.

1. Balance of convenience is a factor to be look into.

2. Prior notice to the parties i.e. served notice to the parties and it is based on principle of
natural justice.

GENERAL POWER OF TRANSFER AND WITHDRAWAL [SECTION 24]

 Section 24 contemplates general power of High Court and District Court for transfer
and withdrawal of civil suits.
 A suit can be transferred or withdrawn at any stage either on the application of either
party after notice to the parties and after hearing as desired to be heard or suo motu,
without such notice.
  The court will order for such transfer or withdrawal after notice and hearing of both
the parties.
 The court can transfer any suit, appeal or proceedings pending before it for trial or
disposal to subordinate court.
 The court can withdraw pending suit, appeal or proceedings in any subordinate court
and try or dispose of the same, or transfer the same for trial or disposal to any
subordinate court or can re-transfer the same to the court from where it was transfer or
withdrawn.
 Q. What will be done if there is a transfer or withdrawal?

Ans. Sub-Sec (2) of Section 24 says in case of transfer or withdrawal, the court may
either re-tried or proceed from the point at it was transfer or withdrawn.

 De Novo trial: Fresh trial or start from where it is left i.e. transfer or withdrawn.
 The proceeding under Section 24 even includes execution proceedings.
 Here, transfer may include transfer from a court which has no jurisdiction.

Difference between Sections 22, 23 and 24.

 Under Section 22 & 23 both court have jurisdiction i.e. transferor court as well as
transferee court. Alternative Court also have jurisdiction.
 But in Section 24 it may be different as well as same thing. There may be transfer in
competent as well as incompetent court. Transfer may be made from a court which
has no jurisdiction to try it [Section 24 (5)]
 Section 24 is a Two Way Process. Subordinate Court to Higher Court and Higher
Court to Subordinate Court.
 In Durgesh Sharma v. Jayshree1, the Supreme Court held that the power under
Section 24 does not authorize a High Court to transfer any suit, appeal, etc. from a
court subordinate to that High Court to a court not subordinate to that High Court
under Section 23(4) or Section 24.
 Section 24 merely confers a discretionary power on the court. The section does not
prescribe any ground on which the case can be transferred. Transfer can be made for
administrative reason as well. The court is required to issue notice to the other party
before ordering transfer of case.
 In M.V. Ganesh Prasad v. M.L. Vasudevamurthy2, the Court observed that the
apprehension of bias in the mind of the petitioner seeking for transfer of a case
 should be reasonable and bona fide otherwise the transfer application would be
rejected. It is very necessary for the court to examine the argument in support of an
application seeking for transfer made under Section 24 of CPC objectively,
impassionate and in the totality of the circumstances.
 In Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking
Corporation, the Apex Court held that “Only Civil suits are subject matter of Inter-
State transfer from one civil court to another civil court. Sub-Section (5) of Section
24 of CPC provides that a suit or proceeding may be transferred from a court which
has no jurisdiction to try it. The power to transfer one case from one court to another
or from one tribunal to another is to be exercised only if an exceptional situation
arises and not otherwise. Rules of procedures are intended to provide justice and not
to defeat it

Section 25: Power of Supreme Court to transfer Suits, etc-

 The Supreme Court on the application of a party supported by an affidavit, after

notice, and after hearing such of them as desire to be heard may at any stage of the
suit, transfer any suit, appeal or other proceedings from one Civil Court or High Court
of one state to another Civil Court or High Court of another state if it is expedient for
the ends of justice.
 The Supreme Court may also dismiss a frivolous or vexatious application and impose
penalty of a sum upto Rs. 2000. The transferee court may either retry it or proceed
from the stage of transfer of such suit, appeal or proceeding and shall apply the same
law which would have been applied by the original court.
 The Supreme Court’s power to transfer suits is not curtailed or excluded by Sections
21 and 21 A of the Hindu Marriage Act, 1955. It can transfer suit for judicial
separation by the wife and that by the husband for restitution of conjugal rights filed
in two different states to have joint or consolidated hearing or trial of both the
petitions by one and the same court in order to avoid conflicting decisions being
rendered by two different courts.

Grounds for transferring the case

  The power of transfer must be exercised with extreme caution and circumspection and
in the interest of justice.
 The court while deciding the question must bear in mind two conflicting interests:
(ii) as a dominus litis the right of the plaintiff to choose his own forum,
(iii) the power and duty of the court to assure fair trial and dispensation of
justice.

In Indian Overseas Bank v. Chemical Construction6, it was held that balance of

convenience is prima facie consideration for transfer of a suit. Balance of convenience is
neither convenience of plaintiff alone nor of the defendant alone, but of both. Convenience of
witness required for proper trial of the suit, and the convenience of the particular place of trial
having regard to the nature of the evidence on main points involved in the suit and doctrine of
forum convenience are relevant factors.