E-Notes

CLASS & SECTION : BA/BBALLB 5th Semester

SUBJECT NAME : Code of Civil Procedure
SUBJECT CODE : LLB 307
FACULTY : Ms. Neha Maggo

Unit-2

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A. Jurisdiction & Place of Suing

“Ubi Jus Ibi Remedium” which means that where there is right there is a remedy, a
basic principle of English right which is accepted by the Indian law. When a person right
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is curtailed or being infringed then he has to approach to the appropriate forum or the
appropriate judicial forum for the award of compensation. Such judicial form must have
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an authority to adjudicate on the matter. the judicial forum must have jurisdiction to deal
with the matter. Each Court has a different jurisdiction.
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In general meaning, Jurisdiction is the power of the Court to take the cognizance of an
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offence and to determine the cause of action.

According to Black’s Law dictionary Jurisdiction means “A court’s power to decide on a

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case or issue a decree.”

The jurisdiction was defined in the case of Hirday Nath vs Ram Chandra, The High
Court of Calcutta stated that jurisdiction may be defined as judicial power of Court to
hear and determine the cause and adjudicate upon it.

Jurisdiction is decided mainly on the basis of:-

• Pecuniary value

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 • Local limits of Court
• The subject matter of Court

So the Court before taking the cognizance of offence, the following points needs to be
taken into consideration:-

• The pecuniary value of the suit

• The nature of the case

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• The territorial limits of the court

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It is not only sufficient that forum must have an authority to deal with the matter or that
the court has a pecuniary jurisdiction or the court has a local jurisdiction but the court
must be competent enough to grant the relief in such matter.

In the case of Official Trustee vs Sachindra Nath

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The court held that in order to deal with the matter the court must not be enough to decide
a particular matter but also the court has the power to pass the order sought for.
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Jurisdiction of Civil Court (Section 9)

The word civil is not defined in section 9 itself. According to Dictionary “civil rights is
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private rights and remedies that are different from the criminal and political”. The word
“nature” indicates the identity or essential character of a person or thing. So, we can
draw the definition of suits of civil nature means that the suit in a dispute relating to
private rights and the suit must not be related to a political or criminal matter.

The civil court shall have jurisdiction to try all the suits except the suit which is impliedly
or expressly barred.

A suit which is related to the right to property or suit in which office is contested is of
civil nature suit, notwithstanding that such right may depend entirely on the decisions of

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questions as to religious ceremonies or rites. It is immaterial whether the fees to the office
are attached or not, or whether such an office is attached to a particular place or not.

The suit which is expressly barred means the suit which is barred by any statute or any
other law for the time being in force. The legislature has an option to bar the jurisdiction
of the civil court with respect to a particular class of suit keeping itself with the ambit of
the power conferred on Constitution of India. The establishment of the tribunal has taken
away the jurisdiction of the civil court with regard to the subject matter that is allotted to

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the tribunal on the first instance, however, if any questions related to law raised, or any

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provision of the act so created the tribunal can be looked into by the civil court. The civil
court has no jurisdiction over the matter in which court under the Code of Criminal
Procedure, Revenue Court has exclusive jurisdiction, or matter is dealt with special
tribunal dealt under special statutes. example Motor Accidents Claims Tribunal,
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Cooperative Tribunal.

A suit is impliedly barred when it is barred by either the general principle of law or
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general conduct of law. The basic purpose of barred impliedly is that the court should not
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deal with the matter which causes injurious to the public or which is against the public
will.
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In the case of P.M.A Metropolitan vs Moran Mar Marthoma,

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The Supreme Court observed that:-

• The phrases used in section 9 has a positive and negative meaning

• The earlier part has a wider sense as it covers all the matter of civil nature; on
the other hand, the latter part has a wider sense as it excludes the matter which
is impliedly or expressly barred.
• The two explanations mentioned in Section 9 expresses the legislative
intentions.

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 • It cast an obligation on the court to exercise the jurisdiction for the
enforcement of private rights
• No court is at discretion to refuse the matter which falls under this section
• It is mandatory to take the cognizance of matter because the word “shall” is
used which means that it is a mandatory section.

In the case of Shankar Narayanan Potti vs K. Sreedevi

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The Supreme Court held that the ‘Civil Court has inherent jurisdiction in all types of civil
matter as per Section 9 of CPC unless the suit is expressly or impliedly barred.”

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This means that Legislature can exclude the jurisdiction of the civil court by inserting a
provision or clause in any Act itself. &
In the case of State of A.P VS Manjeti Laxmikanth Rao
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The court held that for the purpose of constructing the test to determine the exclusion of
civil court it is necessary to look into the intent of the legislature to exclude the
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jurisdiction. It means that the test is done to determine whether there is any reason for the
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exclusion of jurisdiction and if there is any reason, to further find out whether the just
reason is justified or not. Although justification is not subjected to judicial review. Once
the court satisfies itself of the reason, then it needs to determine whether the Act which
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excludes the jurisdiction provides an alternative remedy for the same or not. An
alternative remedy must be in regard to such function which civil court must exercise in
absence of such exclusion and would be empowered to pass any order which the civil
court in similar circumstances would have passed.

In the case of Bar Council of West Bengal vs A. Austin

The High Court of Calcutta states that when the statute which bars the jurisdiction does
not provide an alternative remedy then the jurisdiction of the civil court cannot be
excluded.

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In the case of Balawwa vs Hasanabi

If a part of the suit is excluded from the jurisdiction of civil court then it is not necessary
that the entire suit cannot be instituted in the civil court.

In the case of Shri Panch Nagar Parak vs Purushottam Das

If there are no express provisions in any statute the court needs to look into purpose,

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scheme and relevant provisions of the Act in order to determine implied exclusion of the

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jurisdiction of a civil court.

Place of suing &

Section 15 to 20 deals with the place of suing
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There are three kinds of jurisdiction to determine the place of suing:-
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• Territorial jurisdictions
• Pecuniary jurisdictions
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• Subject matter jurisdiction

Whenever the suit is brought before the court the first question is to determine is whether
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the court has a jurisdiction to deal with the matter. If the court has all these (territorial,
pecuniary, or subject matter jurisdiction then only the court has the power to deal with the
case. In the case, if the court does not have any of the above-mentioned factors then it
will be considered as lack of jurisdiction or the irregular exercise of jurisdiction. when
the court who does not have jurisdiction decide the case and give decision then such
decision will be considered as void or voidable depending upon the different
circumstances.

Pecuniary jurisdiction ( Section 15)

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Every suit shall be instituted in the court of lowest grade competent to try it. The word
competent denotes that the court must have the power to hear the case with regards to
pecuniary jurisdiction. The court of lowest grade who has a jurisdiction with regards to
pecuniary value shall deal with the case at first instance.

The issue arises:- who will determine the value of the suit?

Ordinarily, the plaintiff makes the valuation of the suit for the purpose of determining the

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pecuniary jurisdiction of the court unless it prima facie appears to the court that the

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valuation was not done correctly. When the court finds that the valuation was either done
overvalued or undervalued, then the valuation will be done by the Court and the court
will direct the party to approach the appropriate forum.
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The jurisdiction of the court is decided by the plaintiff valuation but not the amount for
which decree is passed.
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Lets us understand from an example, if the court has a pecuniary jurisdiction of Rs 15000
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and the suit for recovery of accounts is filed on the valuation of suit done by the plaintiff.
The valuation was of Rs 15000. Later the courts find that Rs 20000 is due, in this case,
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the court is not deprived of its jurisdiction to pass a decree for that amount.

It is the valuation done by the plaintiff to determine the jurisdiction of the court. But this
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does not mean that the plaintiff is set free to file for any arbitrary value and to choose the
court in which he wants to file a suit.

When the court finds that valuation is done improperly for the purpose of avoiding the
jurisdiction of the appropriate court, the court may require the plaintiff to prove that
valuation was done in a proper manner.

Territorial Jurisdiction (Section 16 to 20)

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It is divided into:-

• Suits related to immovable property ( Section 16 to 18)

• Suits related to Movable property ( Section 19)
• Other suits( Section 20)

Section 16 states that the suit related to immovable property shall be instituted where
such immovable property is situated.

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It talks about the institution of the suit with respect to:-

• Recovery of immovable property with or without profit or rent

• Partition of immovable property &
• Foreclosure, sale or redemption in case of charge or mortgage upon
immovable property
• Compensation for a wrong caused to immovable property
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• Determination of any interest or rights related to immovable property
• Recovery of movable property under attachment or distraint, for all the above-
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mentioned purpose.
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When the suit is filed for the relief or compensation for wrong caused to immovable
property held by a defendant or any other person on the behalf of a defendant where the
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relief can be obtained through his personal attendance then suits may be instituted in a
court within whose local jurisdiction:-

• the property is situated, or

• the defendant voluntarily and actually resides or carries on business or
personally for gains.

Section 17:-Cases in which the immovable property is situated within the local limits of
the jurisdiction of different courts.

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When the suit is filed for obtaining the compensation or relief for the wrong caused to
immovable property situated within the jurisdiction of two or more courts, the suit may
be filed in any court within whose local jurisdiction a portion of the property is situated.
But in respect for the value of subject matter of the suit, the entire claim is cognizable by
such court.

Section 18– A place of an institution when the jurisdiction of courts is uncertain

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When there is uncertainty with regards to the local limits of the jurisdiction of courts, and

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any of the courts has satisfied that there is a ground for uncertainty, record the statement
and may proceed with the case to entertain and dispose of the case. The decree passed by
such court will have the same effect as if the property was situated within the local limits
of its jurisdiction. &
In a case where the court taking the cognizance of case does not record the statement and
objection is brought before Appellate or Revisional Court, the Appellate or Revisional
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court shall not allow the objections unless it is satisfied that at the time of institution of
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suit there was no reasonable ground for uncertainty as regards to jurisdiction of Court and
there has been a failure of justice.
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Section 19– Suits with regard to movable property

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When Applicable

Where the suit is for the wrong caused to the person or property.

Conditions

• If the wrong was done within the local limits of the jurisdiction of one court

and

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 • The defendant voluntarily resides or carries on his business or works for
personal gain within the local limits of the jurisdiction of another court then
the plaintiff has an option to file at either court.

Lets us understand through an example

A, residing in Delhi, beats B in Bangalore. B may institute the suit either in Delhi or
Bangalore.

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A residing in Bangalore, publishes a defamatory statement of B in Delhi. B may sue A in
Bangalore or Delhi.

Other suits to be instituted where defendants reside or cause of action arises (Section 20)
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When Applicable
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When there is a breach of contract or commercial transactions
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Conditions
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• If the breach of contract was done or cause of action arises within the local
limits of the jurisdiction of one court
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And

• Defendant voluntarily resides, carries on his business or works for personal

gains within the local limits of the jurisdiction of another court the plaintiff
has an option to file at either court

Example

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C is a tradesman in Bangalore, D carries on business in Hyderabad. D, by his agent in
Bangalore, buys goods from C and requests C to deliver them to Amarchand Company. C
delivers the goods in Bangalore accordingly. C may sue for the price of goods either in
Bangalore where the cause of action arises or in Hyderabad where D carries on his
business.

Objections to jurisdiction( Section 21)

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If objection related to the place of suing:-

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• pecuniary limits
• competence of the executing court with regards to local limits of its
jurisdiction &
is not brought in the Court at the first instance, before settlement or in a case where the
issues are settled, then no objection will be allowed by the Revisional or Appellate Court
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unless there is a failure of justice.
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Non- Applicability
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• Territorial jurisdiction
• Pecuniary jurisdiction
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In the case of Karan Singh vs Chaman Paswan

When the court commits an error in entertaining the suit with regard to pecuniary or
territorial jurisdiction then the decision given by such court will not be void but will be
considered as the illegal exercise of jurisdiction.

Bars on a suit to set aside a decree on objection as to the place of suing (Section 21A)

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No suit shall be brought up challenging the validity of decree passed in a former suit
between the same parties or between the parties litigating under the same title on any
ground based on an objection as to a place of suing.

B. Institution of Suit

The term suit has not been defined in the Code. In Hansraj Gupta v. Official

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Liquidators of Dehradun- Mussorie Electric Tramways Co. Ltd., AIR 1933 PC 6, the

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Privy Council and in Pandurang Ramchandra v. Shantibai Ramchandra, AIR 1989 SC
2240, the Supreme Court held that “suit” means a civil proceedings instituted by the
presentation of a plaint. According to Section 2(1) of Limitation Act, 1963 ‘Suit’ does
not include an appeal or an application. &
Essentials of Suit: In Krishnappa v. Shivappa, ILR (1907) 31 Bom 393, the court has
held that there are four essentials of a suit:
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1. Opposing parties
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2. Subject matter
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3. Cause of action
4. Relief

Section 26 and Order IV provides for institution of suits. Section 26 lays down that
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every suit shall be instituted by the presentation of a plaint induplicate 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 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

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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.

Q. How the suit is instituted?

Every suit is instituted by presenting a plaint to the proper court or officer. [Order IV
R. 1 r/w Section 26 of CPC]

Q. Who will present the suit and how he will present the suit?

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Plaint may be presented personally or by authorised pleader. It must be presented in

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duplicate. Here we are required to comply with the general rules of pleading i.e. pleads
material facts and not evidentiary value [Order VI], Must be presented on a working
day at office hours. When the plaint is presented before the office it is the date of the
institution of suits. Every pleading must be signed by the parties [Order VI Rule 14]
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and Plaint must be supported by affidavit [Order VI Rule 15]. If the rules contained in
Order VI & VII are not complied with then it will not deemed to be duly instituted,
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such that Order VI & VII must be complied with.
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Pleading defined by P.C.MOGHA: Pleading are statements in writing drawn up and

filed by each party to communicate that what will be there contentions during trial and
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to give all such details which opponent need to know in order to prepare his case. It is
basically means to narrow down the dispute to definite issue and to diminish the
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expenses and delay especially with respect to testimony on both sides.

The Supreme Court also says basic purpose of pleading as follows

i. To give exact intimation of case to other.

ii. To enable the court for determination of what is the real issue between the
parties.
iii. It is to prevent deviation from the real cause of litigation.

Rules of Pleadings:

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 • Every pleading must state the facts and not the laws.

• It must state material facts only and not evidence. In other words it should have
facta probanda and not facta probantia.

• It must state facts in concise form [Order VI Rule 2]

• Pleading shall not raised any claim or fact inconsistent with previous pleadings

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[Order VI Rule 7].

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Q. In this regard what is the duty of plaintiff especially with relates to document?

As per Order VII Rule 14 and Order VIII Rule 1A : Documents have to be filed
alongwith Plaint and Written Statement. Otherwise the court will not accept plaint and
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written statement because it does not ensure fair trial.

Q. After admission of a Plaint what are the further duties of a Plaintiffs?

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Other duties discussed in upcoming contents.
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Q. What are the contents of Plaint?

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Contents of Plaint:

a) Name of the court in which the suit is brought.

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b) Name, description and place of residence of plaintiff.

c) Name, description and place of residence of defendant.
d) Plaintiff or defendant is a minor or unsound mind, statement to that effect.
e) Facts constituting the cause of action and when it arose.
f) Facts showing that the court has jurisdiction.
g) Relief which the plaintiff’s claims.
h) Where the plaintiff has allowed a set-off or relinquished a portion of his claim,
the amount so relinquished or allowed.
i) Statement of value of subject-matter of the suit for the purpose of jurisdiction

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 and of the court fee as the case admits.

Q. What are the grounds for rejection of a Plaint?

Various grounds in which plaints can be rejected:

1. Non-disclosure of cause of action- on this point, Mulla says, before rejecting

the plaint on this ground court has to examine the plaint and for this purpose the
court will also examine the plaintiff and there is provision for examination

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under Order X Rule 2 and if after examination of oral and documentary

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evidence it comes to the conclusion that there is non-disclosure of cause of
action then the court will reject it.
2. Where relief is undervalued and the court gives times for correction of
valuation but plaintiff does not do it. Order VII Rule 11 proviso says for this
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purpose there can be enlargement of time but only in exceptional cases and for
avoiding great or engrave injustice. In case of undervaluation if it is not
rectified in point of time then plaint can still be rejected.
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3. Where relief is properly valued but plaint is written on insufficient stamp paper
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and plaintiff fails to correction within the time given by the court. It is another
ground for rejection.
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4. Where it appears from the plaint that suit is barred from some law like non-
compliance of Section 80, CPC.
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5. Where Plaint is not filed in duplicate as stipulated in Order IV Rule 1.

6. When plaintiff fails to comply with Order VII Rule 9 i.e. submitting number of
copies of Plaint Number of defendant within seven days from the date of such
order along with requisite fee for service of summons on the defendant.
7. Whenever Order VII Rule 3 is violated and particulars are absent in a plaint
then Plaint shall be rejected.

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Q. Whether the grounds of rejection in Order VII Rule 11 is exhaustive?

No these grounds are not exhaustive and rejection can be done even within inherent
power of the court [Section 151 CPC] For instance, it can be done in the cases where
filing of plaint or suit is abused of process of court.

Q. Can a Plaint be rejected in Part?

No, only there can be striking out of pleading [Order VI Rule16]. Plaint cannot be

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rejected in part. However, plaint can be rejected against one defendant and not the

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other.

Q. At which stage plaint can be rejected?

Rejection of plaint does not require application of party. Court can reject even suo
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motu. In Ram Prakash v. Rajeev Kumar Gupta, the court said that Plaint can be
rejected at any stage of the suit i.e. before the judgement is given.
At any stage of the suit:
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1) Before registering the plaint.
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2) After issuing summons to the defendants.

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3) At any time before conclusion of trial.

Q. What is the remedy available on rejection of plaint?

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Following are the remedies:-

1) As a rejection of a Plaint is a decree so it can be appealed against under Order
XLI.
2) File another Plaint under Order VII Rule 13 as such the rejection of plaint does
not preclude the presentation of new plaint.

Nature of Order VII Rule 11

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 It is mandatory provision and not discretionary and before rejecting the plaint the court
should give the opportunity to plaintiff to remove the grounds of objection.

According to Order VII Rule 10 Sub-Rule 1 Plaint can be returned at any stage of the
suit. Where at any stage the court finds that there is no jurisdiction then the court is
bound to return the plaint to be presented to the proper court where it is ought to have

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been instituted. This plaint can be returned provided absence of jurisdiction is disclosed
in the plaint but if the court comes to the conclusion after examination of plaint, parties

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and evidence then in that case suit will be dismissed. Not rejection of plaint because
examination of parties is done, evidence is submitted, etc. so in that case what is the
use of rejection of plaint. It can be done at the initial stage, otherwise plaint is nowhere.
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➢ This power can be exercised by Appellate or Revisional Court.
➢ After the Return of Plaint- Order XLIII Rule 1(a) r/w Section 104(1) of CPC.
➢ If there is an application which has been allowed under Order VII Rule 10 A
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Sub- Rule 2 then not go for appeal.
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Judge’s duty in returning of Plaint

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1. Endorsement.
2. Mentioned the name of Plaintiff.
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3. Brief statement for reasons of the return.

4. Decisions.

C.Pleadings

Pleadings form the foundation for any case in the court of law. It is a statement in writing
filed by the counsel of plaintiff stating his contentions on the case, on the basis of which
the defendant shall file the written statement defending himself and explaining why the

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plaintiff’s contentions should not prevail. Sometimes the plaintiff, having filed his plaint,
may, with the leave of the court, file a statement or the court may require him to file a
written statement. In such cases, the written statement forms part of the plaintiff’s
pleadings. Similarly, there are cases in which the defendant having filed his written
statement may, with the leave of the court, file an additional written statement or the
Court may require him to do so. In such cases the additional written statement also forms
part of the defendant’s pleadings. This is the first stage of a suit. Code of Civil Procedure
(CPC) in order 6, Rule 1 defines pleadings as a written statement or a plaint. The

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plaintiff’s written statement and the defendant’s additional written statement are termed

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supplemental pleadings.

Objective of pleading &

The whole objective behind pleading is to narrow down on the issues and provide a clear
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picture of the case thereby enhancing and expediting the court proceedings. The
pleadings help both the parties know their point of dispute and where both parties differ
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so as to bring forth the relevant arguments and evidence in the court of law.
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The Supreme Court on 25th March, 1972 while disposing a case praying for certain
amendments in an election petition, observed that rules of pleadings are intended towards
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giving justice and to act as aids for fair trial.

Rules of Pleadings

The four words which can crisply summarise the rule of pleading is ‘Plead facts not law’.
The counsel of both the parties should only project the facts in their respective case rather
than suggesting on the laws applicable in the particular case.

To gain a crystal clear understanding of the same, the rules can be studied in two parts
that is:

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1) Basic or Fundamental Rules

2) Particulars or other rules

Basic or Fundamental Rules

Basic or Fundamental Rules are discussed in the sub-rule (1) of Rule 2 of Order VI of

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the Code of Civil Procedure, 1908. Summarising the provision, the basic rules of
pleadings are the following:

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Facts should be pleaded upon and not the law

This was first held in the case Kedar Lal v. Hari Lal where it was held that the parties are
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under the duty to state the facts on which they are claiming their compensation. The court
shall apply the law as per the stated facts to render the judgement. One should not assert
or apply any laws for claiming right on the stated facts.
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Material facts should be pleaded

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The second basic rule is to present facts which are material only. Immaterial facts shall
not be considered. The question arose in the court of law that what is the actual scope of
‘material facts’. It was decided by the judge in the case Union of India v. Sita Ram that
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material facts will be inclusive of all those facts upon which the plaintiff’s counsel will
claim damages or rights as the case may be or the defendant will put forth his defence. In
nutshell, facts which will form the basis for claiming a right or compensation by the
plaintiff or prove the defendant’s defence in the written statement will fall under the
ambit of being ‘material’.

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Evidence should not be included while pleading

It says that pleadings should contain a statement of material facts on which the party
relies but not the evidence by which those facts are to be proved.

There are two types of facts :

• Facts probanda : the facts which need to be proved, i.e material facts

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• Facts probantia: facts by which a case is to be proved, i.e evidence

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Only facts probanda should form the part of pleadings and not facts probantia. The
material facts on which the plaintiff relies for his claim or the defendant relies for his
defence are called facta probanda, and they must be stated in the plaint or in the written
statement, as the case may be.
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Facts in concise manner should be presented
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This is the last and final basic rule of pleadings. Compressed and crisp presentation must
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be adhered while presenting the pleadings. At the same time it must be kept in mind that
in order to maintain brevity of facts one should not miss out on important facts in the
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pleadings. Pleadings can be saved from superfluity if one takes care in syntax.
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Particulars or other rules

1. Particulars with dates and items should be stated wherever fraud,

misrepresentation, breach of trust, undue influence or wilful default are
pleaded in the pleadings.
2. Generally departure from pleading is not permissible, and except by way of
amendment, no party can raise any ground of claim or contain any allegation
of fact inconsistent with his previous pleadings.

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3. Non-performance of a condition precedent should be specifically mentioned in
the pleadings. Performance of the same shall not form a part of the pleadings
since it is already implied.
4. If the opposite party denies a contract, it will be held as denial of the facts of
the contract and not its validity, enforceability and legality.
5. Wherever malice, fraudulent intention, knowledge or other condition of the
mind of a person is material, it may be alleged in the pleading only as a fact
without setting out the circumstances from which it is to be inferred.

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6. Unless the facts are material, there is no need for the facts to be stated in

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verbatim.
7. Pleadings should only state the giving of a notice, when it is required to give a
notice or condition precedent, without disclosing the form or manner of such
notice or giving details of any circumstances from which the form of notice
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can be determined, unless the same is material.
8. Implied relations between persons or contracts can be alleged as facts and the
series of conversations, letters and the circumstances from which they are to be
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inferred should be pleaded generally.
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9. The facts which deals with onus of proof or which favours a party shall not be
pleaded.
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10. Every pleading should be signed by the party or one of the parties or by his
pleader.
11. A party to the suit shall provide with his and the opposite party’s address.
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12. Each and every pleading need to be approved by making an affidavit by the
party or a person who is acquainted by the facts stated in the pleading.
13. A pleading may be ordered to be strike out by a court of law, if it feels the
same is scandalous, frivolous, unnecessary or intended towards embarrassing,
prejudicing or delaying a fair trial in the court.
14. Amendment of pleadings shall be allowed by the court
15. The pleadings shall be divided in proper paragraphs whenever required,
consecutively numbered and structured properly. Every argument or
allegations must be in separate paragraphs. Dates, sums and any totals shall be

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 expressed in figures as well as in words so as to maintain clarity for the judge
as well as the parties concerned in the trial.
16. Forms in Appendix A of the Code should be used wherever they are
applicable. Where they are not applicable, forms of like nature should be used.

Amendment of Pleadings

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Rules 17 and 18 of Order VI of Code of Civil Procedure, 1908 deal with amendment of
pleading. These provisions aim towards achieving justice in the society. Rule 17 of the

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Code of Civil Procedure, 1908 provides either parties may be ordered to amend or alter
his pleading at any stage of the proceeding in such manner which shall be fair and just
and allow amendment when necessary so as to determine the exact controversial question
between the parties.
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On the other hand Rule 18 deals with the issue of failure of amending the pleading. It
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deals with the law that if court orders a party to make necessary and if he fails to do the
same within the given time limit given by the order or if no time is limited then within 14
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days from the date of the order, he shall not be permitted to amend after the expiration of
such limited time as aforesaid or of such 14 days, as the case may be, unless the time is
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extended by the Court.

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D.Plaint & Written Statement

PLAINT

Plaint is defined in order 7 of CPC. Rules 1to8 of order relate to particulars in a plaint.
Rule 9 lays down procedure on plaint being admitted. Whereas rules 10 to 10-B provide
for the return of plaint, and appearance of parties, rules 11 to 13 deal with rejection of
plaint. Rules 14 to 17 contain provisions for the production of documents. Order 7should
be read with section 26 of the code.

Introduction :
A plaint is a legal document which contains the written statement of the plaintiff’s claim.
A plaint is the first step towards the initiation of a suit. It can be said to be a statement of

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claim, a document, by the presentation of which the suit is instituted. However, the
expression “plaint” has not been defined in the code. It is a pleading of the plaintiff.
In plaint, the plaintiff should alleged facts about his cause of action. A
plaint which is presented to a civil court of appropriate jurisdiction contains everything,
including facts to relief that the plaintiff expects to obtain.
Particulars of the plaint

• The name of the particular court where the suit is brought; [R.1(a)];
• The name, place, and description of the plaintiff’s residence; [R.1(b)];
• The name, place, and description of the defendant’s residence; [R.1(c)];
• A statement of unsoundness of mind or minority in case the plaintiff or the

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defendant belongs to either of the categories; [R.1(d)];
• The facts that led to the cause of action and when it arose; [R.1(e)];

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• That fact that point out to the jurisdiction of the court ; [R.1(f)];
• A statement of the value of the subject-matter of the suit for the purpose of
jurisdiction and court fees; [R.1(i)];
• The relief claimed by the plaintiff, simply or on the alternative; [R.1(g)];
• Where the plaintiff files a suit in a representative capacity the facts showing that
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the plaintiff has an actual existing interest in the subject matter and he has taken
steps that may be necessary to enable him to file such a suit; [R. 4];
• Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the
amount so allowed or relinquished; [R.1(h)];
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• Where the suit is for recovery of money, the precise amount claimed; [R 2]
• Where the suit is for accounts or mesne profits or for movables in the possession
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of the defendant or for debts which cannot be determined, the approximate

amount or value thereof; [R. 2]
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Where the subject-matter of the suit is immovable property description of the

property sufficient to identify it, e.g. boundaries, survey numbers, etc; [R.3]
• The interest and liability of the defendant in the subject-matter of the suit; [R.
5]
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• Where the suit is time-barred, the ground upon which the exemption from the law
of limitation is claimed; [R. 6 ]

Admission of plaint:
Rule 9 lays down the procedure when the plaint is admitted by the court. It provides for
the filling of copies of the plaint by the plaintiff and also requires him to pay requisite
fees for the service of summons on the defendants within seven days.

FROM OF THE PLAINT:

As per the above-stated material we can say that the plaint should be drafted in a
particular form. So that a plaint can be divided into three important parts such as heading
and title, the body of the plaint, and relief claimed.
These all are discussed in detail below:

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Heading and Title:
1. Name of the court :
The name of the court should be written on the plaint as the heading. It is not necessary to
mention the name of the presiding officer of the court. The name of the is sufficient, for
example:- In the Court of the District Judge, Sirsa.

2. Parties to the suit:

There must be two parties in every suit, namely, the plaintiff and the defendant. However,
there may be more than one plaintiff, and defendant. All particulars of the parties such as
name, residence, father’s name, age, etc. which are necessary to identify the parties, must
be stated in the plaint. In the case of more than one party, all of their names have to be

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mentioned in the plaint according to their pleadings. In the case of minors, a minor
cannot sue nor be sued. If one of the parties is a minor or of unsound mind, it will have to

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be mentioned in the cause title.

3. Title of the suit :

The title of the suit contains the reasons for approaching the court and the jurisdiction
before which the plaint is initiated. &
Body of the plaint:
It is the body of the plaint wherein the plaintiff describes hisher concerns in an
elaborative manner. That should be divided into short paragraphs, which each contains
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one fact. The body of the plaint is divided into two further parts which are as follows:
1. Formal part:
The formal part contains the following essentials:-
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• A statement regarding the date of cause of action. It is necessary for every plaint
to contain the date when the cause of action arose. The primary objective behind
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this is to determine the period of limitation.

• The plaint must state all the facts showing how the court has pecuniary and
territorial jurisdiction over the subject-matter of the suit.
• The value of the subject matter of the suit must be stated properly for the purpose
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of the pecuniary jurisdiction of the court and court fees.

• Statement regarding minority.
• The representative character of the plaintiff.
• The reasons why the plaintiff wants to claim exemptions under the law if the suit
is initiated after the period of limitation.

2. Substantial portion:
In this portion, plaint must contain all the necessary and vital facts, which constitute the
suit. If the plaintiff wishes to pursue a course of action on any other grounds must be duly
mentioned.

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 • It should be shown in the plaint that the defendant is interested in the subject
matter and therefore must be called upon by the court.
• Where the defendants are more than one and if the liability is not joint, then the
individual liability of each and every defendant must be shown separately.
• In the same way, if there is more than one plaintiff and their cause of action is not
joint, then too, the same has to be mentioned separately

Relief:
Every plaint must state specifically the relief claimed by the plaintiff either simply or in
the alternative. It is the last part of the plaint. It must be claimed properly and accurately.

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Every plaint must state specifically the kind of relief asked for, be it in the form of
damages, specific performance or injunction or damages of any other kind. This must be

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done with utmost carefulness because the claims in the plaint cannot be backed by oral
pleadings.

Signature and verification:

The signature of the plaintiff put at the end of the plaint. In case the plaintiff is not
present due to any legitimate reason, then the signature of an authorized representative
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would suffice. The plaint should also be duly verified by the plaintiff. Where the plaintiff
is unable to do so, his her representative may do the same after informing the court.
The plaintiff has to specify against the paragraphs in the pleadings, what all he/she has
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verified by his her own awareness of the facts, and what has been verified as per
information received, and subsequently believed to be true. The signature of the
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plaintiff/verifier, along with the date and the place, at the end of the plaint is essential.

E.Appearance & Non-Appearance of Parties

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Appearance and non-appearance of the parties in a civil suit is the important factor upon
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which the fate of any case depends. A mere non-appearance of a party in front of the
court on a determined day may result in an adverse decision with respect to the non-
appearing party. The general provisions contained in the Civil Procedure Code of 1908 is
based on the principle that no proceedings which are detrimental to the interest of any of
the parties to the suit shall be conducted in the court of law. It is the duty of the parties to
the suit to show up before the court of law on a due date which has been fixed by the
court. In case of non-appearance of any of the parties to the suit, the judgement of the
court may turn in favour of the party appearing in front of the court. However, in
situations where a suit is determined irrespective of the fact that any of the parties to the

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suit are absent on the due date. Then, the non-appearing party in order to safeguard its
interest can revive the suit by following the provisions of Civil Procedure Code, 1908.

The provisions with respect to the consequences in case of non-appearance of parties and
other related provisions are contained in the Order IX of Civil Procedure Code, 1908. The
rules regarding the consequences of appearance and non-appearance of parties to the suit
under the Order IX of CPC are as follows:

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• Rule 2– the consequences of non-deposition of fees by the plaintiff.

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• Rule 3 and Rule 4– the consequences of non-appearance of both the parties to
the suit.
• Rule 8, Rule 9 and Rule 9(A)– consequences of non-appearance of the plaintiff
to the court of law. &
• Rule 6, Rule 13 and Rule 13(A)– provisions with respect to non-appearance of
the defendant to the court of law.
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Appearance of parties

The word “appearance” under civil cases has a well-known meaning. It means the
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appearance of the party to the suit before a court of law. The appearance can be by the
party in person or through his advocate or through any person along with the advocate of
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the party.

The mere presence of the party before the court of law is not what the word
“Appearance” under the Order IX of the CPC,1908 means. But the word “appearance”
under CPC means the appearance made by the pleader who is able to answer all the
material questions which are relevant to the judicial proceedings in question before the
court of law in a duly prescribed and recognized manner and on the date allotted by the
court to each party unless the court has adjourned the proceedings of the case to some
other day.

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Rule 1 of Order IX is related to the appearance of the parties on the date of first hearing
of the case. It declares the mandatory presence of the parties before the court of law on
the day fixed by the court under the summon issued on the defendant.

According to Rule 2 of the Order IX, the failure on the part of the plaintiff to submit any
processing fee determined by the court of law on any stipulated date. Then such a failure
would result in the dismissal of the suit by the court. However, no such dismissal to the
case can be made where the defendant in person or through his agent attend the

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proceedings of the court and answers all the material questions possessed by the court.

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Where neither party appears
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Rule 3 and Rule 4 of Order IX of Civil Procedure Code, 1908 deals with the cases where
neither of the parties in a case appears before the court of law on the date fixed by the
court of law. According to Rule 3 of the Order IX of CPC. In such a case, the suit shall be
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dismissed by the court and according to Rule 4, the plaintiff can file a new suit in the
court of law if he is able to satisfy the court that there was a sufficient cause for his non-
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appearance in court.
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In Damu Diga v. Vakrya Nathu, the plaintiff sued the defendants, D1 and D2. on the date
fixed by the court for appearance of the parties to the suit only D2 appeared in the court.
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The subordinate court erred while passing the order of dismissal of the case. However in
an appeal against the decision of the court. It was held that the present case comes under
the purview of Rule 4 of Order IX of CPC and court should take into consideration the
fact that not only the plaintiff in the case was absent from the proceedings. But, defendant
number 1 was also absent and the according to Rule 4, the court must allow the plaintiff
to apply for an order setting aside the dismissal of the case by the court.

Where only the defendant appears

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Rule 8 of the Order IX of the CPC talks about the legal consequences of the non-
appearance of the plaintiff and the appearance of the defendant in the court of law.
According to the rule, in a case where the defendant makes an appearance in the court of
law on the due date and the plaintiff remains absent from the proceedings. The court shall
make an order of dismissal of the case unless the defendant admits a claim or parts
thereof as in such a case the court can pass a decree against the defendant upon such
admission or where only the part of the claim is admitted. If the case of the plaintiff has
been dismissed by the court under Order IX of the CPC then the plaintiff has two options

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to revive his case in the court of law. Which are as follows:

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• The plaintiff can file a fresh suit in the court of law if the same has not been
barred by any law in force; or
• The plaintiff can file a petition under Rule 4 of Order IX of Civil Procedure
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Code, 1908. According to Rule 4 of the Order where a case has been dismissed
in pursuance of Rule 2 or Rule 3 of the Order IX then the plaintiff can apply
for an order for the dismissal of the case by the court.
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In the case of The Secretary, Department of Horticulture, Chandigarh and Anr. Vs.
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Raghu Raj, the court held that the plaintiff should not suffer because of the non-
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appearance of the counsel appointed by him with good faith that he will make an
appearance without any reasonable cause in the court of law whenever the plaintiff is
called for in the court. As such non-appearance by the counsel representing the plaintiff
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without any reasonable cause is not only unprofessional and unfair to the plaintiff but is
also unfair and discourteous towards the court of law. And so the plaintiff should not
suffer because of the fault of the counsel he has hired in good faith.

Where a summons is not served

Rule 6 of Order IX, when the plaintiff is present but the defendant is absent on the date of
peremptory hearing on a prescribed date. According to Rule 6 of Order IX, when the
plaintiff is present but the defendant is absent on the date of peremptory hearing on a

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prescribed date of hearing then the court takes the decision about the consequence of such
non-appearance with respect to the status of summon which is served to the parties in the
case by the court of law. Following are the consequences of non-appearance of the
defendant and the appearance of the plaintiff with respect to varying statuses of the
summon which is served:

• In the case where the summon is duly served the court can declare that the suit
shall be heard ex-parte;

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• In the case where the summon is not duly served then, the court can order the

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issue of a second summon and that the same to be served to the defendant;
• When the summon is served to the defendant but the sufficient time was not
given to him to make an appearance in the court of law and answer the
material questions in the case on the day fixed by the court. The court shall
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postpone and fix the hearing of the case to some other day which shall be
notified to the defendant;
• When in a case the delay in issuance to the defendant is caused due to the fault
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of the plaintiff, the court may order the plaintiff to pay the costs occasioned by
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the delay in the proceedings.

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Ex parte decree
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Rule 6(1)(a) of Order IX of the Civil Procedure Code empowers the court to pass any
judgement ex parte in case the defendant party in a case absents himself from the
proceedings on the due date fixed by the court of law which has been informed to him by
the summon duly served on him of the case. An Ex parte decree is neither void nor
inoperative but it is voidable at the option of one party which may seek the order of
annulment of the decree.

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Remedies

The Code provides the following remedies to the defendant against whom an ex parte
decree by the court has been passed:

• An application under Order IX, Rule 13 of the Code;

• Annulment of the decree under Section 12 of the Code by proving that the

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decree has been obtained on the ground of any of the vitiating factors like a
fraud;

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• Filing of a review petition under Section 114 of the Code;
• Filing the application for rehearing of the case on the grounds of violation of
the principles of natural justice;
• Filing of an appeal under Section 96 of the Code.
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Setting aside ex parte decree
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Rule 13 of order 9 of the Civil Procedure Code contains provisions related to Setting
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aside of the Ex parte decree passed by the court. The Rule specifies that the defendant
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against whom the ex parte decree has been issued can apply for setting it aside. In case
there are more than two defendants any one or more than one defendant can apply for
setting it aside.
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The court in the case of Santosh Chopra V. Teja Singh held that the meaning of the
expression “defendant” under the Rule is wide enough to include a person who is
adversely affected by the ex parte decree and therefore, even a purchaser of mortgaged
property can make an appeal of setting aside an ex parte decree.

An application for setting aside the ex parte decree can be filed in front of the court
which has passed such an order. However, in a case where the ex parte decree has been
affirmed by any superior court then the appeal for setting aside the decree can be made in

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that superior court. The following are the grounds for applying for the order of setting
aside decree against the ex parte judgment of the court:

• The defendant has to prove in front of the court of law that the summon
was not duly served on him: Rule 6 of order 9 mandates that an ex parte
order against the defendant can be passed by the court if the plaintiff is able to
prove in the court of law that the defendant has absented himself from the
proceedings of the court even when the summon was duly served on him.

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• The defendant has to prove in front of the court that there was a sufficient

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cause which prevented him from appearing in the proceedings on the due
date: The term “sufficient cause” is nowhere defined under the code and
therefore, the meaning of the term ‘sufficient cause’ has to be determined by
the courts liberally keeping in view the facts and circumstances of the case. No
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party should be condemned unheard unless there has been something
equivalent to misconduct or gross negligence on his part.
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Appeal
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Section 96 to 112 of Part VII of the Civil Procedure Code, 1908 deals with an appeal.
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Appeal means the removal of a cause from a subordinate court to a superior court in order
to test the soundness of the decisions passed by the inferior court. It is the continuation of
original proceedings before the superior court which is approached. The superior court
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need not always be high court as it can even be a subordinate district court. Following
people can file an appeal against any order in the court of law:

• Party to the suit who has been adversely affected by the orders of the case;
• An auction purchaser in the exercise of a decree in order to annul the purchase
on the grounds that he was defrauded or so on;
• Any person who is bound by any decree which operates res judicata against
him and the person has been allowed by the appellate court to file an appeal.

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The right of appeal empowers the superior court to rehear the whole dispute unless it has
been expressly prohibited under any of the statutes. The superior court is not bound by
the ratio decidendi of the subordinate court based on which the judgment was passed by
the court. According to Section 96 of the Civil Procedure Code, an appeal can lie against
all the decrees passed in exercise of civil jurisdiction exercised by the court. However,
this Section is not applicable to the following decrees:

• Consent decree,

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• The decree passed by the court under Section 9 of the Specific Relief Act,

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• A final decree passed by the court, the preliminary decree of which was not
challenged.

Revision
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The dictionary meaning of the word revise is to examine something again in order to
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improve its present state. Revision is the act of revising anything. Section 115 confers the
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revisional jurisdiction to the High courts in the country. Under the revisional jurisdiction,
the High Courts can entertain any revisional petition filed by any party which is
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aggrieved by any judgment, order or decree passed by any subordinate court in the
country. The limitation period for filing any revisional petition against any order, decree
or judgment is 90 days from the passage of such an order, decree or judgment. The main
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objective behind the incorporation of the provision of revision petition against the order
of the subordinate court is to prevent them from acting arbitrarily, capriciously, and
unlawfully by ensuring the check on their actions by the High courts. The following
conditions are required to be satisfied before the exercise of the revision jurisdiction of
the courts can be made by the High Courts:

1. The judgment of the case must be passed by a court of competent jurisdiction;

2. The court which has decided the case must be subordinate to the High Court;

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 3. The order which is passed by the court must be the one against which an
appeal can be made;
4. The court passing the judgment must have exceeded the jurisdiction vested
upon him, or has failed to exercise the jurisdiction vested on it.

Review

The literal meaning of the review is to study or examine something again. In the legal

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sense, the meaning of review is to examine the facts and judgment of any case again. The

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power of review of facts and judgments are vested only on the courts. The provisions
with respect to review are contained in Section 115 of the Civil Procedure Code. There
are no specific conditions or limitations specifically provided for review. Under Section
115 of the Civil Procedure Code. However, order 47 of the Civil Procedure Code
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provides for the limitations and conditions with respect to the review of the cases.
The Supreme Court Rules, 1966, provides that the limitation period for filing a review
petition against any decision passed by the court is 30 days from the date of passage of
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such an order.
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The grounds for review of judgment are as follows:

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• When the applicant discovers a new evidence material to the determination of

judgment of the case which due to negligence or any other reason was not able
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to present the evidence in front of the court of law when it passed the decree;
• The order of review is passed only in such cases where the error is in the face
of records and not with respect to the facts of the case. What constitutes the
face of records has to be determined by the courts on a case to case basis
keeping in view the facts and circumstances of the case;
• Any misconception on the part of the court may be regarded as a sufficient
cause to review the judgment.

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Suit

The word review has not been defined under the provisions of the Civil Procedure Code
but by the various judgments passed by a court of law, the meaning of the term suit
ordinarily means the civil proceedings initiated by the means of the institution of plaint.
The decree is the outcome of a suit as without suit there cannot be any decree issued.
There are four essentials of a suit. Which are as follows:

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• Name of parties: In any suit, there have to be two parties contending different

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claims. One is the defendant and the other is the plaintiff party. There is no
limitation on the number of people representing either of the parties.
• Cause of action: Cause of action is the set of facts and circumstances which a
plaintiff has to prove. Any person becomes a party to the suit when the cause
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of actions are proved against him. Cause of action is basically the set of those
events, acts and circumstances which results in the institution of civil
proceedings in the court of law. Every plaint must essentially disclose the
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cause of action and if a plaint fails to disclose the same then the court shall
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reject such a plaint.

• The subject matter of the case: There must be an express declaration of the
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subject matter of the case which basically is the reason for the filing of the
plaint and thus, bringing the matter in front of the case. Section 9 of the Civil
Procedure Code empowers the court to try all the cases unless they are
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expressly or impliedly barred from being tried by the statutes.

• Relief: Relief is the compensation or damages which are paid to the plaintiff
by the defendant on the express orders of the court to do so. The courts are not
obliged to provide relief to the plaintiff unless he has expressly asked for it.
Reliefs are of two types which are alternative relief and specific relief.

Sd/-
Ms. Neha Maggo

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