UNIT 1 - INTRODUCTION

Substantive law and Procedural law:

● Most laws are a combination of both types

○ “Predominantly substantive and partly procedural” - Category A - Companies Act
○ “Predominantly procedural and partly substantive” - Category B - Registration
Act
● SL - Determines / affects / creates / Strikes down vested rights || PL - Enforce vested
rights
○ Eg: IT Act - restricts right to property
■ Taxes to be paid, capital gains, obligation to pay
○ Eg: ToPA - Creates, Regulates and at times strikes down rights
● Majorly Substantive law - when it regulates the rights/restrictions
○ Creates, takes away, strike down, restrict, enhance
● Procedural law -
○ When the predominant provision exercise a vested right created by another right
○ But many create vested rights as well - create and restrict
■ Rt to bail - CrPC
■ Rt to Fair Trial - CrPC
■ Rt to Appeal - CPC
■ Rt to Property - CPC
● Equally substantive and procedural laws - IT Act, GST Act,
● SL is interpreted strictly and PL are interpreted harmoniously with SL
● SL is not retrospective but PL can be retrospectively applicable to pending proceedings
○ Eg. Del HC - changing territorial jurisdiction and gave power to try the same case
from the start. - Del HC gave it retrospective effect
● Substantive law determines rights and liabilities of parties ---- Adjective/Procedural law
prescribes the practice, procedure and machinery for the enforcement of those lights and
liabilities.
 ● Halsbury -
○ The function of substantive law is to define, create or confer substantive legal
rights or legal status or to impose and define the nature and extent of legal duties.
○ The function of procedural law is to provide the machinery or the manner in
which the legal rights or status and legal duties may be enforced or recognised by
a court of law or other recognised or properly constituted tribunal.
● Efficacy of substantive law is dependent on the quality of procedural law.
○ Procedural law is an adjunct or an accessory to substantive law
○ It is procedural law which puts life into substantive law by providing a remedy
and implements ubi jus ibi remedium
● CPC is an adjective or procedural law. -- it neither creates nor takes away any right. It is
intended to regulate the procedure to be followed by civil courts.
● Difference between Substantive Laws and Procedural Laws:
○ Substantive laws determines/affects vested rights or obligations of person.
Procedural laws provide machinery for enforcement of those vested
rights/obligations.
○ Substantive laws create/take away vested rights/obligations. Procedural laws do
not create/take away any vested rights/obligations.
○ Substantive laws are to be interpreted strictly; Procedural laws are interpreted
liberally and harmoniously with substantive laws.
○ Substantive laws cannot be retrospective unless expressly provided as they affect
vested rights/obligations; Procedural laws may be retrospective and apply to
proceedings already commenced.
○ Substantive Laws: Constitution, Contract Act, Transfer of Property Act, Indian
Penal Code; Procedural Laws: Code of Civil Procedure, Code of Criminal
Procedure, Indian Evidence Act, Limitation Act.

History and Object of CPC:

● History of Code of Civil Procedure, 1908:

○ Prior to 1859, different procedure followed by different civil courts. First Code of
Civil Procedure enacted in 1859. The bulk of Code of Civil Procedure as in force
 today was enacted in 1908. Subsequently the Code of Civil Procedure has been
amended in 1976, 1999 and 2002 which made significant changes to the Code of
Civil Procedure, 1908.
● Object of Code of Civil Procedure, 1908:
○ The object of Code of Civil Procedure – Preamble: to consolidate and amend laws
relating to procedure of courts of civil judicature.
○ Consolidation Acts presumed to not intend change in the previous laws.
● Interpretation of Code of Civil Procedure, 1908:
○ The Code being a law of procedure ought to be interpreted liberally and
harmoniously with the substantive laws. The interpretation should not be too
technical or too strict. Purpose of procedural laws is to enforce the substantive
laws, interpretation of procedural laws ought to be so as to effectively enforce
substantive laws and not to defeat the substantive laws. The Code of Civil
Procedure contains 158 Sections (amendable by Legislature only) and 51 Orders
(amendable by High Courts under Section 125 CPC). The Sections and Rules
under the Orders are to be interpreted harmoniously. If Rules are found to be
inconsistent with the provisions of Section, the latter prevails.
● Sec. 1 - Extent and Applicability
○ Whole of India except the State of Nagaland and Tribal Areas.
○ Excluded areas have to be guided by the spirit of the code and would not be
bound by the letter of the CPC
○ Applicability of Code of Civil Procedure, 1908:
■ The Code expressly saves local or special laws by not limiting their
applicability in its Sections 4, 5, 7.
● Sec. 3 - Subordination of Courts.
○ For the purposes of this Code, the District Court is subordinate to the High Court,
and every Civil Court of a grade inferior to that of a District Court and every
Court of Small Causes is subordinate to the High Court and District Court.
○ Court of Small causes → District Court → HC
● Sec. 4 - Savings
○ Code is not exhaustive and is not limiting in nature
 ● Sec. 5 - Application of the Code to Revenue Courts
○ Where any Revenue Courts are governed by the provisions of this Code in those
matters of procedure upon which any special enactment applicable to them is
silent, the State Government may, by notification in the Official Gazette, declare
that any portions of those provisions which are not expressly made applicable by
this Code shall not apply to those Courts, or shall only apply to them with such
modifications as the State Government may prescribe.
○ Revenue court -- a Court having jurisdiction under any local law to entertain
suits or other proceedings relating to the rent, revenue or profits of land used for
agricultural purposes
● Sec. 7 - Provincial Small Cause Courts
● Sec. 8 - Presidency Small Cause Courts.

Hierarchy of Civil Courts:

● Key reasons for importance - for appeal and pecuniary jurisdiction

● Kar HC -
○ SC → HC → District Court → Court of Senior Civil Judge (Sr.) → Court of Civil
Judge (Jr.) → Munsif Court
○ BLR City Civil Court Act is separate form Kar City Civil
● Usually courts of appeal would not be based on pecuniary or other general jurisdiction
○ Court of appeal is statute related
● Eg: Munsif → Sr. Civil (and not Jr. Civil) -- for kar cc
● Small Causes Courts
○ Karnataka Small Causes Courts Act 1964
○ Depends on the Act -- SC → HC → DC → SCC (Kar) || SC → HC → Sm.Caus.C
(Bom)
○ Not the lowest court
○ For speedy trial of petty cases
■ Despite summary cases, SCC was needed to fasten the process (Law
Comm Report)
■ Procedural compliance shortened
 ○ Tries to relate DC with sessions court
● Supreme Court → High Court → District Court → Court of Senior civil judge (Court of
civil judge (sr. div) → Court of civil judge (Court of civil judge (Jr. div) / Munsif court
→ Small Causes court (Karnataka Small Causes Courts Act 1964) – separate hierarchy

Definition Clause:

S. 2(11) - Legal representative:

● Person in law representing estate of deceased – legal heir, coparcener etc • Any person
who intermeddles with estate of deceased and intends to sue or be sued in representative
character.
● Even a stranger can be considered as LR. Example, liquidator of bankrupt company,
receiver appointed by court, executor/administrator etc.
● Person in law representing the estate of deceased in law
○ Can be PoA, Notary, Legal Heir, Coparcener, Trustee, Agent…)
● Need not be a Legal Heir (LH)
● Any person who intermeddles with the property of the deceased and intends to sue or to
be sued in representative character.
● LR = person who represents the estate of deceased + party suing or being sued in a
representative character + person on whom the estate devolves + intermeddlers
○ Hence it includes: executors, administrators, revisioners, Hindu coparceners,
residuary legatees etc
○ Trespasser would not be a LR as he does not intermeddle with the intention of
representing the estate of the deceased;
○ even executor de son tort, succeeding trustee, official assignee or receiver is not a
LR
● Case: Satya Ranjan Roy v . Sarat Chandra Biswas
○ Facts: Initial suit was bought by the deceased (Lalit Mohan). The plaintiffs
included the wife and the appellants (def2 and def3) as the LRs of deceased based
on the fact that a judge of a subordinate court held that def2 and def3
“appropriated some bricks of the kiln” under the orders of the District Board of
 Nadia. So basically the SJ held the wife and def2 and def3 to be the LRs of
deceased
○ Issue: Def2 and Def3 claim that they are not to be made parties and LR should
be the wife only as she represented the estate of the Deceased. Hence --
Executor de son tort, whether can be impleaded as party in presence of legal
representative????
○ Arguments:
■ Def2 and Def3-- when a person may be intermeddling with the estate of
the decreased, he may become an executor de son tort but the case did
not show def2 and def3 to be executors de son tort.
■ OG plaintiff (who is the respon.) -- adding of all 3 parties as LR is
justified as per s.2(11) as they appropriated the bricks. But the counsel
here failed to produce any authority to establish that taking away of bricks
could make him an intermeddler/executor-de-son-tort even when there
exists another LR.
○ Holding of the Court:
■ Deceased had left his wife to represent the estate after death in the case
brought against him and his widow would be the proper representative
of the deceased.
■ The court accepted the view of the SJ where the def2 and def3 were said
to be the executor-de-son-tort but there was no ground on which they
could be held as the LRs of the deceased where they represent his estate
by intermeddling with it. (There was a lack of intention of intermeddling
with the property)
○ Hence def2 and def 3 as executor de son tort were not held to be LRs.
● Case: SBI v. Indian Apparels Industries [AIR 1989 Del 297]
○ Overruled the Satya Ranjan Roy case
■ A bare reading of the definition of the word "legal representative" or the
provisions of Order 22, rule 4, Code of Civil Procedure, do not place any
restriction on the impleading of any legal representative.
 ■ Did not agree to the fact that only the widow would be the proper
representative of the deceased.
■ Hence the judge before overruling held that - If there are more than
one legal representatives, one in the capacity of legal heir and other an
intermeddler, in my opinion, there is nothing in law to warrant the
proposition that only the former category of legal representatives should
be impleaded and not the latter category.
○ SBI sued IAI - money suit - defendants were minor daughter as LH along with 3
others - no executor in law for estate on date of filing suit
○ Defendant (Deceased) had taken loans -- co-defendants:
■ Defendant No. 2(a) = the daughter of Deceased (minor being sued through
her grandfather Def.3), Defendant No. 2(b) = his mother; Defendant No.3
is his father ; Defendant No. 4 is his brother.
■ Defendants Nos. 2(a) and (b) have been impleaded as surviving class I
legal heirs of the deceased
■ Defendants Nos. 3 and 4 have been impleaded by the plaintiff alleging that
the said defendants are intermeddling with the estate and are
functioning as de facto administrators of the estate.
■ Def 2(b), 3, 4 all sought dismissal of the suit or striking out their names
from the suit.
○ Defs were sued as LRs of deceased and not in their individual capacity.
○ did not deal with the aspect of ‘intention’
■ But -- submission of appellants for impleading D3 and D4 as
intermeddlers it was necessary, in law, for the plaintiff to further allege
that the said defendants had retained the possession of the properties
belonging to the estate of major Chadha with the intention of representing
the estate.
■ Nagendra Nath Roy v. Haran Chandra 1933 - essential test for
distinguishing LRs and intermeddlers is the intention of possessing the
property and representing the estate.
○ CH: because LH are added, it doesn't mean that intermeddlers can be added
 ■ If there are more than one legal representatives, one in capacity as legal
heir and other as in intermeddler, in my opinion, there is nothing in law
to warrant the proposition that only the former category of legal
representative should be impleaded and not that of the later category.
■ One can choose to make LH or Intermeddler as LR

S. 2(12) - Mesne Profit:

● Definition:
○ 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;
● Profit from property by
○ person in wrongful possession of property
○ actually received or might have received with ordinary diligence
○ with interest
○ oes not include profit from improvements made by person in wrongful possession
● There is no fixed principle and various factors are considered depending on the
circumstances of each case to determine mesne profit from a property.
● Profit from property by
○ Person in wrongful possession of property (trespasser)
○ Actually received or might have received with ordinary diligence
■ Eg: if case has been filed for recovery of possession of immovable
property by the alleged actual owner against a person who does not have a
legal title to such property -- trespasser has taken possession of the
property -- owner wants recovery and profits made from the property
(mesne profit) -- if court agrees to the ownership and recognises the
trespasser, the court will consider that irrespective of the ownership
nature, if a reasonable person of ordinary prudence would have made
profit from such property -- claim can be liquidated or unliquidated
damages with an approximate estimate should be given to the court; court
 can decide -- if liquidated damages then the court has to grant the actual
amount asked by the plaintiff -- if court finds that plaintiff is not entitled to
any compensation as there is no violation of any legal right
■ Mesne profit is an unliquidated damage
○ With interest
■ Follows High Court rules for rate of interest based on various situations --
never higher than the fixed rates of RBI
■ profit + interest = Mesne Profit
○ Does not include profit from improvements made by person in wrongful
possession
■ Eg: factory premises -- trespasser makes a godown that gives additional
income/profit -- 5L + 1L -- mesne profit will be 5L + interest.
● Then what about the godown??? -- the godown is the “profit”?? --
hence when the court orders for recovery, the owner would have to
pay the trespasser for the costs for the improvements made
● Improvements costs should not include the present market value --
seen as an punishment for making such improvements
● Mesne profit is a compensation for the wrongful trespass that led to losses faced due to
no control over the property -- its not “profit”
● Objective is to compensate and not to make profit from such property
● Objective → when one is deprived of their right to property, he is not only entitled to
restoration of possession of his property but also damages for wrongful possession.
● Claimed against → a person in wrongful possession and enjoyment of immovable
property is liable for mesne profits
○ So can be passed against a trespasser, mortgagor or mortgagee, against a person
against whom a decree for possession is passed
○ Can be joint and several liability
● Assessment of mesne profit → as its damages, no invariable rule governing their award
and assessment can be laid down.
○ Usually the court will take into account what the defendant has gained or
reasonably might have gained by his wrongful possession of the property.
 ● Interest → integral part of mesne profits, it has to be allowed in the computation of
mesne profits itself.
○ Rate of interest is at the discretion of the court subjected to the limitation that the
sai said shall not exceed 6% per annum.
● Deductions → land revenue, rent, cesses, cost of cultivation and reaping, the charges
incurred for collection of rent.
● Mesne profits = net profits
● Case: BSNL v. Radhika Chettri 2018
○ Radhika leased property to BSNL in 1993 and expired in 1998 -- terms mentioned
that after the expiry, lessee to pay extra rent or vacate -- BSNL stayed and paid
same rent -- BSNL gave notice in 2013 -- property was damaged -- BSNL did not
vacate completely even after notice for 7 years -- court held tenancy at sufferance
(tenancy against the wish of the owner) and BSNL deprived the owner of the
property from possession of the property due to non vacation, thus mesne profits
given.
○ Nature of loss was even due to breach of contract and mesne profit -- court
decided mesne profit as contract had been terminated and party did not comply
with the termination
Discussion Prompt: If Y’s property had only a ground floor & X constructed 1st floor apartment
- gets rent - is it a mesne profit?
NO as its an improvement to the property.

UNIT 2: JURISDICTION

MEANING OF JURISDICTION

● Power of court to hear and try a case

● Boundaries of a courts power to take cognizance of a legal dispute - within which the
court should operate
 ● Who tells the court that it lacks the jurisdiction -- Statutes and the court themselves based
on what says only (and SC or HC precedents)

PECUNIARY JURISDICTION - SECTIONS 6 and 15

● S. 6 and 15 are not exhaustive -- there are other laws to explain the same. (eg. kar civil
courts act)
● Competent court of lowest grade
● Value of subject matter of suit/execution proceedings (value of relief claimed)
● Sec 15: Suit shall be instituted at the court of the lowest grade competent to try it.
● Sec 6: Courts have jurisdiction over suits wherein value of subject-matter of the suit does
not exceed the pecuniary jurisdiction of the court.
● Section 6
○ Prohibitory section based on the pecunariy limit of the court imposed by the state.
● Section 15
○ Court in which suits to be instituted.—Every suit shall be instituted in the Court of
the lowest grade competent to try it.
○ Hierarchy and pecuniary jurisdiction
○ Eg: if case is of 5L and Civil Jud Jr Div has 8L and Sr. div has 10L, then the case
is under Jr. div based on hierarchy.

Suit Valuation Act 1885

● Value of subject-matter of suit is value of the relief claimed in the plaint
● Court-fees calculated based on value of suit
● S.3 Power for State Government to make rules determining value of land for
jurisdictional purposes.
● S.9 Determination of value of certain suits by High Court.

Case: Ramesh Goyal v. Dwinderpal Singh 2008 Cal HC

The pecuniary jurisdiction of the suit depends on the valuation stated in the plaint unless it is
determined by the Court that the reliefs claimed in the suit have been under-valued.
Jurisdiction of the Court to entertain a suit depends upon the valuation of the suit property as
on the date of institution of the suit and the subsequent increase in the valuation of the suit
property may take away the jurisdiction of the Court to try a suit due to an enhancement in
the value of the property during the pendency of the suit.
Since the Plaintiff did not dispute the market valuation of the suit property as alleged by
Defendant No.3, the High Court held that the Trial Judge lacked pecuniary jurisdiction to try
the suit from the date of amendment of the plaint. The order of the Trial Court was set aside.

Case: ICICI Bank Ltd. v. Limtex India Ltd 2011 Cal HC

○ Credit arrangement -- Pet/App looking to declare it null and void and looking for
injunction -- sum is 18L -- if Kol HC has jurisdiction wrt City Civil Court (CCC)
of Kol (10L juris) -- initially under trial judge who rejected it -- Pet says its not
maintainable in the Kol CCC as the arrangement is based on an master agreement
made in Mumbai so the jurisdiction should be in Mumbai as no cause of action in
Kol so Kol CCC has no jurisdiction -- Def said its not a recovery suit and is
merely an injunction case as managers were in Kol -- suit valued at Rs. 200 as per
def and is thus under the pecuniary jurisdiction of Kol courts -- if trial judge
justified??? -- Agreement says that parties are agreeing to submit to the HC of
Mumbai -- Kol HC said the suit is valued is at Rs.18L and not Rs.200 so Kol
CCC has no jurisdiction -- reason 1 suit was wrongly valued and was a claim suit
disguised as an injunction and reason 2 RDDBFI bars the Bom HC and should be
dealt in the DRT Mumbai.
○ Subject matter jurisdiction and Pecuniary Jurisdiction.
○ Value of suit claimed to be Rs. 200 -- Declaration suit
● Value of subject matter of suit will be determined based on the relief/prayer clause
● Effect of court’s order exceeding pecuniary jurisdiction
○ Inherent lack of jurisdiction ← → Irregular exercise of jurisdiction
○ In case bona fide mistake and case is decided based on merits -- should there be a
hearing from the start?
○ A writ can be filed -- but case is fully decided on merits
 ○ Cases have held that the case is irregular proceeding when it comes to pecuniary
jurisdiction issues (only)
○ Two requirement:
■ Opposite party did not raise objection at the correct time
■ Lack of jurisdiction has not significantly/adversely defeated the process of
justice
○ Cannot be invalidated for pecuniary jurisdiction issues only.
○ Order is valid as long as it meets the 2 requirements.
● Determining element of value of suit is based on the nature of remedy/relief.

SUBJECT MATTER JURISDICTION - SECTION 9

● 2 conditions:
○ Suit must be of civil nature
○ Cognizance of such suit must not be expressly or impliedly barred (eg. special
tribunals and courts, rent control act, family courts act for divorce cases)
● Suit of a civil nature - covers private rights and obligations of a citizen.
○ Political and religious questions are not covered

Suits must be of civil nature:

● Explanation I -- principle question should be of civil nature, incidental questions relating
to case or religious ceremonies
○ Incase of such religious properties -- to resolve the dispute, the court may end up
enforcing the terms of the trust deed which specifies the scripture and other terms
involved or mentioned in the trust deed to dwell into aspects of religious
scriptures. -- hence for civil disputes the court will address religious issues
○ If the principle question in a suit is of a civil nature (right to property or to an
office) and the adjudication incidentally involves the determination relating to a
caste or religious question or to religious rights and ceremonies, it does not cease
to be a suit of a civil nature and the jurisdiction of a civil court is not barred.
(Explanation II)
 ○ The main dispute would be a property dispute itself and the religious aspect is
only incidental
● Examples of suits of civil nature:
○ rights to property; rights of worship; damages for civil wrongs; specific
performance of contract or damages for breach of contract; restitution of conjugal
rights; suit for rent
● Examples of suits not of civil nature:
○ suits involving principally caste questions; purely religious rites or ceremonies;
upholding mere dignity or honour; suits against expulsions from caste.

Cognizance of such suit must not be expressly or impliedly barred

● Specialised courts and Tribunals have been set up - MACT, Arbitration bodies ets
● Expressly barred -- Land reforms Act, Cooperative societies Act, Telegraph Act,
Electricity Act, State Municipalities Act, MV Act(s.94)
○ Barred by any enactment for the time being in force
○ Every presumption should be made in favour of the jurisdiction of a civil court
and the provision of exclusion of jurisdiction of a court must be strictly construed.
○ If there is any doubt about the ousting of jurisdiction of a civil court, the court
will lean to an interpretation which would maintain the jurisdiction
● Implidely barred -- Arbitration and Conciliation Act, ID Act (s.11)
○ Barred by general principles of law
○ Where a specific remedy is given by a statute, it thereby deprives the person who
insists upon a remedy of any other form than that given by the statute.
○ May even be barred due to public policy -- eg: Sec.23 ICA (or) recovery of costs
incurred in a criminal prosecution
● Irrespective of bar(express/implied) -- civil court has jurisdiction, when:
○ Created by precedents and not statutory
○ Special statute provisions not complied with
○ Fundamental principles of judicial procedure not followers
○ Alternate remedy not adequate
○ Special statute provisions challenged
● Case: Dhulabhai v. State of MP - AIR 1969 SC 78
 ○ Even if civil courts jurisdiction barred by special statute
○ Sales Tax case -- assesses (manufacturers) filed civil case for wrongful imposition
of tax and the provision is not lawful -- claimed for refund of tax -- filed regular
civil case -- objection raised by tax dept that there is a special provision in the
Sales tax act which expressly barred the jurisdiction for disputes arising from the
statute (maintainability of the case) -- while the case was on, another party went
to the HC and filed a WP -- HC held the tax to be unconstitutional with
retrospective effect.
○ SC: (general rule/provision/principles)
■ If Special statute providing alternate remedy, is not complied
with/followed -- civil court has jurisdiction
■ If special statute expressly bars civil court’s jurisdiction, inadequacy of
alternative remedy is relevant, not decisive. If special statute impliedly
bars civil court’s jurisdiction, inadequacy of alternate remedy per se is
decisive to confer jurisdiction to civil court
■ If special statute provision challenged as ultra vires -- civil court has
jurisdiction
■ If special statute provision declared unconstitutional -- civil court has
jurisdiction
■ If tax statute has no provision for refund of excess tax collected -- civil
court has jurisdiction
■ Challenge to assessment under tax statute in tax tribunal only unless
constitutionality of assessing provision in tax statute challenged -- civil
court has jurisdiction.
■ Exclusion of civil court’s jurisdiction not to be readily inferred (exception)
● Case: Premier Automobiles v. Kamlekar
○ SC laid principles -- jurisdiction of civil court in Industrial Disputes:
■ If dispute is not ID nor relate to any enforcement of any other right under
the IDA -- remedy lies with Civil Court
 ■ If a dispute is an ID arising out of a right or liability under the general or
common law and not under the IDA -- jurisdiction of a civil court is
alternative leaving it to the election of the plaintiff
■ If an Industrial dispute relates to the enforcement of a right or an
obligation created under the Act, then the only remedy available to a suitor
is to get an adjudication under the IDA.
■ If the right which is sought to be enforced is a right created under the IDA
such as Chpt-VA, then the remedy for its enforcement is either s.33C or
the raising of an industrial dispute.
● Case: Mafatlal Case - Civil Court bar on tax Refund case
○ A hierarchy of tribunals has been privded for relief to the assessees under the IT
Act.
○ Elaborate alternate remedies provided by the Act, taken along with the specific
bar of the jurisdiction of courts provided in Rule 11 and Section 11(b) of the Act
and in particular specifying the conditions and procedure for entertaining claims
for refund, period of limitation within which the claim should be preferred stc will
oust/bar the jurisdiction of ordinary courts in this regard.
○ Even so in cases where the levy is unconstitutional or illegal or unjustified, the
jurisdiction of the Civil Courts is not barred to annul the levy and/or order refund.
● Case: Rajasthan SRTC vs. Krishna Kant
○ Where a dispute between the employer and the employee does not involve the
recognition or enforcement of a right or obligation created by the Industrial
Disputes Act and where such dispute also amounts to an industrial dispute within
the meaning of Industrial Disputes Act, whether the Civil Court's jurisdiction to
entertain a suit with respect to such dispute is barred?
○ Court held:
■ Based on Dhulabhai case: By and large, industrial disputes are bound to
be covered by Principle No.3. (Principle No.3 says that where the dispute
relates to the enforcement of a right or obligation created by the Act, the
only remedy available is to get an adjudication under the Act.)
 ■ Thus a dispute involving the enforcement of the rights and liabilities
created by the certified Standing Orders has necessarily got to be
adjudicated only in the forums created by the Industrial Disputes Act
provided, of course, that such a dispute amounts to an industrial dispute
within the meaning of Sections 2(k) and 2-A of Industrial Disputes Act
■ The Civil Courts have no jurisdiction to entertain such suits.
● Case: Saraswati v. Lachanna:
○ The suit in question was filed for redemption of the suit property by the
plaintiffs/respondents.
■ It was alleged in the plaint that the property mentioned in the schedule of
the plaint had been mortgaged through a registered deed, in favour of the
father of the original defendant and possession had been also delivered to
him.
○ a plea was taken on behalf of the defendants that the Civil Court had no
jurisdiction to try the suit in question. The Trial Court came to the finding that the
plaintiffs had right to redeem the mortgage, and the Civil Court had jurisdiction to
entertain the suit.
○ S.99 Tenancy Act -- it is apparent that a Civil Court shall have no jurisdiction to
settle, decide or deal with any question "which is by or under this Act required to
be settled, decided or dealt with by the Tahsildar...". In other words, the
jurisdiction of the Civil Court has been ousted only in respect of such questions
which are required to be decided or dealt with under the provisions of the
Tenancy and Agricultural Lands Act.
● Case: State of Kerala v. Ramaswamy Aiyer
○ It is true that even if the jurisdiction of the civil court is excluded, where the
provisions of the statute have not been complied with or the statutory tribunal has
not acted in conformity with the fundamental principles of judicial procedure, the
civil courts have jurisdiction to examine those cases :
● S.9 also creates jurisdiction -- covers cases that are not mentioned nor are barred.
● suits expressly barred
○ specific express statutory provision
 ○ Example: Land Reforms Act, Cooperative Societies Act, Telegraph Act,
Electricity Act, State Municipalities Act, Motor Vehicles Act.
● suits impliedly barred
○ Statute gives specific, adequate alternative remedy – civil court jurisdiction
impliedly barred. Example: Arbitration and Conciliation Act, Industrial Disputes
Act. State of Kerala v. Ramaswami Iyer AIR 1966 SC 1738
● Express or implied bar – civil court has jurisdiction – special statute provisions not
followed/infringed – fundamental principles of judicial procedure not followed –
alternative remedy not adequate – challenge to the special statute itself.

TERRITORIAL JURISDICTION - SECTION 16 TO 20

● Suits relating to immovable property: Sections 16 to 18

○ Suits to be filed in court within whose local jurisdiction the property is situated
for suits for:
■ recovery of immovable property with or without rent or mesne profits -
partition of immovable property - foreclosure, sale or redemption in case
of mortgage or charge on immovable property - determination of any
other right or interest in immovable property - torts to immovable
property.
○ Inox AIR Products v Rathi Ispat AIR 2007 Del 53
● Property within jurisdiction of multiple courts: Section 17 - suit filed in any one of
such courts.
○ Raja Rao v Rajaiah (1963) 2 AndhWR 974
● Suits relating to movable property: Section 16(f) and 19.
○ State of Maharashtra v Sarvodaya Industries AIR 1975 Bom 197
● Suit for compensation for wrong to person: Section 19
○ Gokuldas Melaram v Baldevdas Chabria AIR 1961 Mys 188

● Sec.16 -- Suits to be instituted where subject-matter situate.

○ Local limits for (Im.Pro):
■ (a) recovery of immovable property with or without rent or profits,
 ■ (b) partition of immovable property,
■ (c) foreclosure, sale or redemption in the case of a mortgage of or charge
upon immovable property,
■ (d) the determination of any other right to or interest in immovable
property,
■ (e) compensation for wrong to immovable property,
■ (f) recovery of movable property actually under distraint or attachment,
● clause (f) is linked/associated to Im.Prop viz all the allied
properties attached to the immovable property (can be seen in the
ED or IT recovery suits)
● Attached or confiscated by authority
● Partition cannot be enforced by clause f
○ Reason: convenience of judiciary -- courts requires evidence such as land records
and also easy to conduct investigations.
○ Cause of action doesn't matter. Jurisdiction depends of the locality of the property
solely u/s.16
○ Proviso:
■ Can be filed where the defendant is present or local limit of where the
property is located
■ For: obtaining relief respecting, or compensation for wrong to, immovable
property held by or on behalf of the defendant may,
■ where the relief sought can be entirely obtained through his personal
obedience,
■ Defendant’s presence → voluntarily resides, or carries on business, or
personally works for gain.
○ Concurrent jurisdiction -- law has provided a choice for multiple fora.
● Sec.17 -- Suits for immovable property situate within jurisdiction of different
Courts.
○ Factory in BLR, Oil refinery in Mangalore, Coffee estate and farm house in
coorg and tea estate in Ooty.
■ All can be clubbed together -- hence can be filed in BLR itself.
 ■ Claim is as a single estate/ single Im.Prop.
● Im.Property can include estate.
○ Provided that the pecuniary jurisdiction has to be followed.
○ ‘May be instituted’ -- so there is a choice
● Sec.19 -- Suits for compensation for wrongs to person or movables.
○ Torts against persons = wrongs to person
○ Trespass to goods = wrong to movables
○ Choice of jurisdiction given to the plaintiff
○ Defendant’s presence is what matters, and not that of the Plaintiff.
● Sec.20 -- Other suits to be instituted where defendants reside or cause of action
arises
○ Residuary clause -- General law.
○ Where the defendant(s), at the time of commencement of the suit
■ Actually and voluntarily resides, or carries on business, or personally
works for gain
■ (above) provided that in such case either the leave of the Court is given, or
the defendants who do not reside, or carry on business, or personally
works for gain, as aforesaid, acquiesce in such institution;
○ Or based on cause of action
■ Cause of action is a set of events that gives rise to the claim.
■ Either wholly or partly
■ Eg: Loan’s cause of action would be -- formation of contract + breach of
contract + extension (if any)

Case Studies
Inox Air Products Ltd. vs Rathi Ispat Ltd.
● X and Y are residents of Delhi - X leased cryogenic plant and machinery, situated in
Gaziabad to Y - on dispute, X sued for permanent injunction restraining Y from using the
machinery or running the plant in Delhi civil Court –

Raja Rao v Rajaiah 1963

  K filed suit in Chennai for partition of property consisting of immovable property
located in parts of West Godavari district and movable property located in Chennai -
○ Sec.20 cant be used
○ S.19 is to be eliminated as there is a partition suit and not mov property solely
○ Sec.17 --- K will have a choice
■ Either two partition suits in west-godavari (wg+c property partition suits)
■ Or im.prop partition wg + im.prop partition in chennai -- both cant be filed
in chennai.
○ The case expanded the scope of s.17 -- its only related to immovable property --
hence s.16(b) used
○ partition suit has to be filed in west-godavari court including the property in
chennai -- cant be filed in chennai as we cant extend s.17 to the chennai courts
State of Maharashtra v Sarvodaya Industries 1975
○ P has manufacturing unit in Akola Maharashtra and imports raw materials under
license - goods wrongfully stopped by customs at Bhandara Maharashtra - P
suffers loss at his factory - P sues State in Akola Civil Court -
○ S.19 applicable -- wrong is against mov.property
○ Theres a choice:
■ Customs works all over Maharashtra -- Def is State Dept so case should be
filed in principle place of business -- State depts usually mention the court
where it can be sued by means of notifications/rules; so where the main
dept is located (capital) so mumbai
■ Choice is between Bhandara (where wrong has taken place) or Mumbai
(based on location of the principle office of customs dept)
■ Note: choice can be opted only by what’s been provided by law
○ But here the Plaintiff has filed in Akola -- Court allowed Akola civil court to
have jurisdiction u/s.19
■ Chain of causation wrt place where wrong was done or where def is
carrying on business = akola+bhandara -- s.19
■ Based on the interpretation of “wrong done”
Gokuldas Melaram v Baldevdas Chabria 1961
○ D filed criminal case against P, resident of Blr in Bom Crim Court - summons
served on P in BLR - P acquitted by Bom Crim Court 0 P filed suit for malicious
prosecution against D in BLR Civil Court -
○ S.19 -- due to wrong to persons
○ Civil case can be filed in Bom. Civil Court
○ Wrong was done in Bom (filed) and BLR (summons was served in BLR --
affects reputation -- principle of remoteness of damages and chain of causation)
○ Bom has jurisdiction as
■ Def lives in bom
■ Wrong done in Bom
○ BLR has jurisdiction
■ Wrong done wrt serving summons is in BLR.

Ousting of Jurisdiction based on contractual clauses

● Parties can agree to oust, exclude or limit jurisdiction to only one court (Sec.
16,17,19,20) when multiple courts have jurisdiction
● Hakam Singh v Gammon Pvt Ltd 1971
○ Based on the agreement, jurisdiction was mentioned as Bombay courts. Appellant
filed case in Varanasi
○ Since jurisdiction to Bombay City Civil Court is given by a agreement and
respondents had Head office in Bombay, the Bombay court alone has the
jurisdiction as the agreement terms are binding on the parties
● Patel Roadways v Prasad Trading 1992
○ Principle office of Patel in Bombay and Subordinate office in other places. Prasad
gave Patel a consignment to office in TN to be delivered in Delhi. Consignment
gets destroyed in godown in delhi. Prasad filed case in Periakulum TN
○ Sec19 r/w Explanation of s.20
 ○ Explanation provides alternative locus for corporations place of business not an
additional one
○ Thus Madras and Delhi have Jurisdiction. Bombay does not have jurisdiction and
jurisdiction cannot be conferred by parties
● Harshad Chiman Lal Modi v DLF Universal 2005
○ H from Del purchased a building in Gurgaon from DLF. DLF Head-office is in
delhi and the contract also stipulated that there would be an agreement to file in
delhi. DLF defaulted and case was filed in Del
○ Held: S.16(b) to be applicable.
○ Jurisdiction cannot be created in Del Court since no jurisdiction has been
previously created by law
○ “Cannot take away the right to challenge the jurisdiction of the court nor can it
(contract) confer jurisdiction on Del Court which it did not possess
○ Since suit was for specific performance, del has no jurisdiction
● If there is a subordinate office and the cause of action arises there, then HO won’t have
jurisdiction
● Objections relating to territorial and pecuniary jurisdiction: Section 21
○ objection be raised at the trial court level itself
○ objection raised at the earliest possible opportunity in the trial court
○ there has been consequent failure of justice.

RES SUB JUDICE - SECTION 10

● Stay of suit. It provides that no Court shall proceed with the trial of any suit in which the
matter in issue is also directly and substantially in issue in a previously instituted suit
between the same parties and that the Court in which the previous suit is pending is
competent to grant the relief claimed.
● If the suit is pending in the foreign court does affect the proceedings of a suit in India based on
the same cause of action.
● Object: To prevent Courts of concurrent jurisdiction from simultaeously entertaining and
adjudicating upon two parallel cases for the same cause of action, same subject matter and
 same relief. It is also to avoid contradicting judgements in the same case. It is to avoid
multiplicity of proceedings. It also gives effect to res judicata.
● In ManoharLal vs. Seth Hiralal it was held that sec.10 is a mandatory provision, no
discretion of the Court
● Even if Sec 10 not applicable, the suit could be barred by invoking inherent powers of the
Court (Sec 151).
● The effect of this provision is that it bars only the trial and not the institution of the subsequent
suit.

● Conditions:
○ Two Suits must be filed. (previous and subsequent suit)
○ Matter in issue in the subsequent suit must be directly and substantially in issue in the
other pending suit also
○ Same parties or representatives
○ Same title of the parties
○ Previously instituted suit must be pending
○ Court where former suit pending competent to try subsequent suit
(Provision not applicable if previous suit is pending in foreign court)

Case: NIMHANS v. C. Parameshwara AIR 2005 SC 242 (Sushmita)

○ X, senior pharmacist in NIMHANS hospital removed from service for misappropriation of

drugs - hospital filed suit in civil court for reimbursement of loss from misappropriation
of drugs - pendente lite X filed complaint againt hospital in ID tribunal for setting aside
termination order and reinstatement - whether trial of case in ID tribunal barred by
s.10?
● Case will be kept on hold -- till the other court dispenses it or passes a judgement. -- after this
the court (2nd court) will decide the case based on the application of s.11 to dispose the other
case.
RES JUDICATA - SECTION 11

Once a matter is finally decided by a competent court, no party can be permitted to reopen it
in a subsequent litigation.
Conditions:
○ Matter directly and substantially in issue is same actually or constructively
○ Former suit or issue
○ Same parties or representatives
○ Litigating under same title
○ Court has decided former suit -- competent to try subsequent suit also
○ Matter subsequently and directly in issue heard finally decided by court
■ S.10 -legal issues are still pending
■ S.11 - legal issues and legal questions are not pending in the 1st court --
the case has been heard and decided on merits.
● Appeals do not fall under s.11
● Expl. 1- date of decision is relevant (s.10 date of filing the case is relevant)

Matter directly and substantially in issue in subsequent same as in former suit actually
(Expl. III - actual res judicata) or constructively (Expl. IV - constructive res
judicata).
● Expl.3 and Expl.4 have to be read together
● provides that if a plea could have been taken by a party in a proceeding between him and
his opponent, he should not be permitted to take that plea against the same party in a
subsequent proceeding with reference to the same subject-matter..

Case: State of UP v. Nawab Hussain - AIR 1977 SC 1680

○ WP by SI against dismissal order by DIG of Police on grounds of audi alteram
partem - WP dismissed on merits - SI filed suit to set aside dismissal order on
grounds if DIG’s lack of authority for such dismissal order
 ○ Expln.IV -- 1st WP SI didn't raise ground of lack of authority, hence 2nd WP is
barred by constructive res judicata.
○ SI should've raised lack of authority in the 1st WP along with audi alteram
partem. Hence barred by constructive res judicata as any ground not raised in 1st
case cannot be raised in the 2nd case/appeal.

Former suit or issue (Expl. I)

● Case: Mathura Prasad v. Dossibai N.B. Jeejeebhoy AIR 1971 SC 2355
○ D obtained purposive lease over land for construction in Bombay - after
construction, D applied to the court for rent-determination under BRRCA -
application rejected on the ground that Act not applicable to open grounds - D
applied for rent determination again
● Pure questions of law are not barred by res judicata.
● Same Parties or representatives
○ Only if 2nd case has been filed between the same parties to the 1st suit
○ Also applicable to co-plaintiffs and co-defendants -- res judicata and minor -- res
judicata and representative suit (Expl. VI).
■ Eg: R3 files against P1 wrt to point no.4 of the case -- res judicata
applicable
■ Eg: P2 and P3 -- res judicata would apply if the issues were raised in the
1st case. If new issue then res judicata not applicable as the issue in 2nd
case could not have been raised in the 1st case at all.
○ Res judicata and minor -- if in the 1st case one of the party is a minor and the
legal guardian is also a party, what will happen when the minor becomes an adult:
○ Mahboob Sahab v Syed Ismail 1995 -
■ X gifter property to minor songs Y,Z - X and his wife sold property to D -
D sued X and wife and Y and Z for mandatory injunction to execute sale
deed - suit decreed on merits and sale deed executed - after attaining
majority, Y&Z sued D and X for declaration the sale as not valid
■ SC: case is not barred by res judicata as one of the grounds is that the legal
guardian had defrauded the minor (which is an additional issue) and the
1st case is defeated
Court that decided former suit competent to try subsequent suit also (expl II and VIII)

● Sulochana Amma v Narayan Nair

○ A vested life estate to K and R as reversioner - after A’s death, K sold property to
N and executed sale deed - R sued K and obtained decree of declaration and
injunction from district munsif court - X purchased property from N pendente lite
- R sued X in Subordinate court’s jurisdiction for res judicata
○ 1st case filed in Munsif and 2nd case filed in subordinate court -- pecuniary
jurisdiction different due to mense profit -- both cases decided on merits -- both
cases passed -- argument regarding non maintainability was raised as 2nd case
was barred by res judicata as 1st case was decided by munsif court that does not
have the jurisdiction -- Based on explanation 8 of s.11 issues relating to
declaration of title res judicata would be applied, but for mense profit would not
be barred as it wasnt raised in the munsif court
○ Res judicata can be applicable to parts of a case as well (unlike s.10).

Matter substantially and directly in issue heard and finally decided by the court on
merits (Expl. V)
● If not on merits (eg. on grounds of jurisdiction) then res judicata would not be applicable.

State of Maharashtra v M/s National Construction Co. 1996

○ Tender contract with Bank’s performance guarantee - state sued Bank for
enforcing performance guarantee in 1972 in Bom HC - suit dismissed for
technical grounds of non-joinder of necessary party (NC) in 1983 - State filed suit
in CJ (Sr Div) against NC and Bank for compensation for breach of contract - Is
2nd suit barred by res judicata?
○ 2 separate cause of action -- performance guarantee and bank guarantee -- 1st case
was of (cause of action is) performance guarantee and was dismissed on technical
ground -- 2nd case was filed for breach of contract against principle debtor and
bank as surety, argument of bank was that 2nd case was not maintainable as its
barred by res judicata -- bank has a separate liability -- issues also became
different (construction contract and performance guarantee contract) -- res
 judicata not applicable -- Case 1: Issues in performance guarantee case are
different from issues in breach of construction contract case -- 2nd case on breach
of construction contract is not barred by res judicata
○ How would the answer change if state files another suit against bank on
performance guarantee with principal-debtor as defendant no.2? -- Will not be
barred as the first case was decided merely on technical grounds and not on
merits.

Difference between Res judicata and Res Subjudice

● Matter adjudicated upon || matter pending trial
● Trial of suit/issue decided in former suit || pending suits only, not issues
● Trial of suit/issue decided in former suit barred || proceeding with trial of suit
subsequently barred
● Court where 1st suit is pending has jurisdiction to decide 2nd suit as well || Court which
decided on 1st suit/issue need not be competent to decide 2nd suit
● S. 10 is not dismissed and is only suspended -- s. 11 cases are dismissed
● S.11 courts should be concurrent -- s.10 court doesn't matter

RES JUDICATA AND WRITS

● CPC is not applicable to writ petitions.(procedure wise)

● (Very Imp) Daryao v State of UP 1961
○ 6 WPs were filed in HC for rt to property disputes - different facts, common
issues of law - HC dismissed all WPs on merits - WP filed in Sc - D claimed res
judicata not applicable to FR(vimp)
○ Q: Whether WP to SC u/Art.32 is barred by res judicata on ground that same
dispute already decided in WP to HC u/Art.226?
○ Usually res judicata does not apply in cases of appeal --
○ SC told that jurisdiction of the WP (art.226 and art.32) as both are at par with
each other. (even though art.226 is wider, but both are same)
 ○ res judicata would bar the WP as it involves the same question of law which is
essential and WPs usually have the same jurisdictional effect (concurrent
jurisdiction).
○ If writ appeal then no bar
○ Ratio: HC u/Art.226 has concurrent jurisdiction as SC u/Art.32. And res
judicata would be applicable. But writ appeal can be filed.
● Res Judicata Applicable to WP except habeas corpus
○ Ghulam Sarwar v. UoI AIR 1967 SC 1335
■ Pakistani national in India on journalism relate visa was arrested without
charges -- filed writ of habeas corpus in the HC -- released and arrested
him again and filed the 2nd habeas corpus WP -- state argued that 2nd
case is barred by res judicata as SC made res judicata applicable to writ
petitions -- cause of action changes wrt habeas corpus as each day of
imprisonment is a new cause of action. HENCE HABEAS CORPUS IS
NOT BOUND BY RES JUDICATA BUT OTHER WRITS ARE.

FOREIGN JUDGEMENT

● S.2(6) -- judgement passed by a foreign court.

● Ss. 13, 14, 44A.
● Section 13 declares foreign judgment to be conclusive on the matter directly adjudicated
upon between the same parties or parties under whom they claim under the same title.
● If CPC recognises foreig judgment and res judicata
● One of the parties is an Indian (minimum criteria) and wants to file a second case on the
same issue in the Indian courts.

Exceptions when foreign judgment not enforceable between the parties in India:
● Foreign judgement as res judicata -- sec.13 unless…(grounds on which res judicata wont
be applicable)
a. Pronounced by court not of competent jurisdiction
■ Jurisdiction of foreign court would be conferred when:
■ Person is subject to foreign country
● Eg: civil transactions between two indian tourists in NY wont be
applicable before the NY Courts -- case can be directly dealt with in India
itself.
■ One of the person should be a subject of the foreign country (resident, domicile,
citizen, etc) -- foreign court will get jurisdiction -- even applicable when person
was temporarily present and was served summons in that country
■ Person is resident of foreign country when action commenced
■ Person is temporarily present in foreign country when summons served
■ Person sued as plaintiff in earlier case in foreign country
■ Party voluntarily appears on summons or submits to jurisdiction.
b. Not on merit (part has been recorded on the phone)
○ Case: International Woollen Mills v. Standard Wool (U.K) Ltd. AIR
2000 P&H 182 - Every ex-parte decree does not necessarily mean that it
was not given on merits of the case.
c. Proceedings are founded on incorrect view of international law or refusal to
recognise law in India
■ Case: Anubha vs. Vikas Aggarwal AIR 2003 Del 175.
● Grounds of divorce based on irretrievable breakdown of marriage (IBM) --
case filed in foreign country which had grounds of irretrievable
breakdown of marriage for divorce -- wife filed RCR case in Del Fam
Court -- husband argued that divorce order already obtained in foreign
court -- del fam court refused to accept the foreign judgement as IBM was
not recognised in India -- parties were indian, dispute was based on HMA
so foreign court had to apply HMA -- hence not recognised
d. Proceedings opposed to natural justice
e. Proceedings where judgement obtained by fraud
f. Judgement sustains claim based on breach on any Indian law.
■ Eg: Insider trading, prostitution, sale of weed is prohibited in Indian law -- certain
countries do not prohibit such acts -- when there is any transaction with one of the
 party being Indian, and there is a civil dispute and foreign courts applies their law,
such foreign judgements are not recognised in India.
○ Sec: 14 -- Presumption of judgement to be by foreign court of competent
jurisdiction - burden of proof on party alleging exception under s.13
○ Courts usually consider the law to be applicable
○ Its up to the party to raise the objection against the enforcement of the foreign
judgement.
● Execution of foreign judgement:
● Section 44A
○ execution proceedings under Section 44-A of CPC
● Suit of foreign judgment
● Case: Badat & Co. vs. East India trading Co AIR 1964 SC

OBJECTION TO JURISDICTION - SECTION 21, 21A

● Generally Def challenges jurisdiction of trial court

● When to object jurisdiction:
○ At the earliest possible opportunities
○ Before issues are settled in OS
■ Basically when WS is filed by Def
○ Consequent failure of justice due to jurisdiction error
○ If above not complied - objection on jurisdiction not allowed in appellate stages
■ Can file under SLP under Art.136
○ Applicable to subject-matter, pecuniar, territorial jurisdiction grounds
● Where to raise objection
○ In the trial court itself
○ In appellate court - when objection is raised in trial court and dismissed by trial
court
● Sec 21A -
○ Res judicata
○ Suit challenging decree in earlier suit on territorial jurisdiction grounds - barred
TRANSFER OF SUITS - SECTION 22 TO 25
● Multiple courts with concurrent jurisdiction - defendant apply for transfer
○ Territorial jurisdiction (Ss. 16-20 CPC)
● Procedure - S.22
○ File application for transfer by def at earliest possible opportunity
○ Notice to all parties
○ Court must give reasonable opportunity to raise objection by all parties
○ Transfer of court of competent jurisdiction only
○ not an IA but rather as a Misc Appl
● S.23 - Where to file
○ If there are multiple courts under same appellate jurisdiction - application to that
appellate court
■ Example: Suit filed in Danapur CJ (JD) Patna city for property dispute -
part of property in Paliganj CJ (JD) Patna - appellant court is common
which is Patna District Court - D wants to transfer suit to Paliganj CJ (JD)
- D to file Misc Appl in Patna District court
○ Multiple courts under different appellate court but under same HC - application to
the HC
■ Example: suit filed in Bangalore and part of cause of action arose in
Mysore - under Kar HC - transfer application filed under Kar HC
○ Multiple courts under different HC - application to the HC under which the court
where the suit is pending is situated
■ Example: suit filed in Mysore for property dispute - part of property in
Wayanad Kerala - Def wants to transfer to Wayanad - application to be
file in Kar HC as suit is pending in Mysore Civil Court which is
subordinate to Kar HC
● Sec.24 - Power of HC and DC to transfer suit
○ On application of Def or suo motu
○ Transfer own case to subordinate court
 ○ Withdraw from subordinate court for trial by itself or transfer to another
subordinate court
○ Retransfer
○ On transfer, can direct the point (stage) from where the case is to be continued
(start or from any stage of transfer)
○ Transfer of suit/case by HC or DC to court without jurisdiction also
● Grounds:
○ Reasonable apprehension of denial of justice has to be proven by Def
■ No fixed grounds, can depend on situation
○ Not mere suspicion or convenience of parties
■ Matrimonial cases - usually based on conv of wife
○ No objection from other parties
● Sec.25 - Power of Sc to transfer cases
○ Not suo motu but rather on application of party only with affidavit
○ Notice to parties
○ Direction to transfer any suit/case from civil court from one state to another -
expedient for ends of justice
○ Directions on point from where the case to be continued (from start or from stage
of transfer) - as per law of court where case/suit first filed to be applied to
suit/case
○ Compensation to opposite party (max ₹2000) against frivolous or vexatious
transfer applications
○ Nisikant Sukerkar v Govt of India 2003
○ GC Care Centre & Hospital v O.R Case pvt ltd 2004
○ Chitivasala Jute Mills v M/s Jaypee Rewa Cement 2004
There are four essentials of a suit:

(1) Opposing parties: (2) Subject-matter in dispute; (3) Cause of action; and (4) Relief

ORDER I

● Order 1 deals with the parties to a suit, the first essential of a suit.
● The primary object of joinder of parties is that all suits must be decided finally and
conclusively in the presence of all concerned parties on merits.

2 reqrirements for being parties are

● A party may be added as plaintiff or defendant if the right to relief arises out of the same
act/transaction and
● there is common question of law/fact (Rules 1, 3)

If 2 of them are not satisfied then it is misjoinder

● If joinder of parties embarrasses or delays trial, court may order separate trials for the
parties (Rules 2, 3A)
● It is the duty of the court to ensure justice and for that end, the court may add / delete /
substitute / transpose a party, suo motu or on application of a party, at any stage of the
suit, without consent of the plaintiff (Rule 10(1), 10(2))
○ Razia Begum v. Sahebzadi Anwar Begum (AIR 1958 SC 886)
● The court cannot add / delete / substitute / transpose a party if it alters the cause of action
or results in new cause of action.
● Objection regarding misjoinder or non-joinder of parties must be taken at earliest possible
opportunity. If not so taken, it is considered to be waived (Rule 13)
● Suit cannot be dismissed for misjoinder or non-joinder of parties, the plaint may be
returned for amendment (Rule 9).
● Suit may be dismissed for non-joinder of necessary party (Rule 9)
 Necessary and Proper Parties:

● Necessary party is a party without whom effective decree cannot be passed in the suit.
● There must be a relif against such party and it won’t be able to pass any the decree
without them. Then there is necessary party.
● A Proper party is a party whose presence helps the court to adjudicate on the suit more
effectively but without whom effective decree can be passed.

● Ramesh Hirachand v Municpal Corpn Greater Mumbai 1992 -

○ Govt leased petrol station to HP - HP hired R as a dealer - MC issued notice to R
for demolition of construction by R on the property encroaching on public path -
R sued MC for injunction - HP filed an IA to be added as necessary party as R
was also violating dealer contract terms by such construction -- if HP is
indispensable to the case -- HP cant be the necessary party as the claim is against
R. HP can be the proper party as the claim is solely against R.

 The Supreme Court held that the Hindustan Petroleum Corporation

was neither necessary nor proper party to the proceedings. The
person to be joined must be one whose presence is necessary as a
party. The test is not whether his presence is necessary for the
correct solution of the dispute before the cour. The mere fact that a
fresh litigation can be avoided is no ground to invoke the power
under the rule in such cases.

REPRESENTATIVE SUIT

● Order I Rule 8 read with sec.11 expl. VI.

● To bring a case within the provisions of Order 1 Rule 8 of the Code all the members of a
class should have a common interest in a subject matter and a common grievance and the
relief sought should, in its nature, be beneficial to all.
● Conditions:
○ Numerous parties
 ■ no limit on number of parties but should be capable of ascertainment, such
inhabitants of a village.
○ Same interest in suit
■ Same interest need not necessarily amount to same cause of action
Case: TN Housing Board v Ganapathy 1990
● Houses allotted to LIC by board - applicants paid settled prince - board demanded
additional amount through individual notices - allotted filed representative suit - Board
claimed individual notices means different cause of action and interest. as interest is same
event though right violated is of different persons and is different -- SC O1R8 doesn't
mandate the same cause of action, it only mandates the same legal interest.

○ Permission granted by court

■ has to be sought at the earliest possible opportunity to allow the suit to be
tried as representative suit.
○ Notice to all parties represented by court
■ Such notice is mandatory. If notice is not given to all interested persons,
decree not binding on non-parties.

● Permission should be granted by the court.

● If suit not properly conducted, any person on whose behalf representative suit filed, can
apply to court to be added as party to suit- (Rule 8(3)
● If party not proceeding with case with due diligence, court may substitute original party
with another having same interest – (Rule 8(5)
● No abandonment or withdrawal of suit or claim in suit by plaintiff under Order 23 or
compromise with defendant is allowed without notice to all interested persons and leave
of court.
● Representative suit is not abated on death of party conducting the suit, other interested
person is added as party to suit which continues.
● The court may allow persons or group of persons to present their opinion and participate
in the suit if the group of persons is interested in a question of law directly and
substantially in issue in the suit and is necessary in public interest – (Rule 8A)
ORDER II

● Conditions to be fulfilled for suit to be barred under Order II Rule 2:

○ The subsequent suit must be based on same cause of action as the former decided
suit.
○ The plaintiff entitled to more than one relief for the same cause of action.
○ The plaintiff omitted to sue for one or more the relief in the former suit, for which
the subsequent suit is filed.
● State of Maharashtra v. National Construction Co. (AIR 1996 SC 2367), Kewal Singh
v Lajwanti (AIR 1980 SC 161)

SPLITTING OF CLAIMS AND REMEDIES - ORDER II RULE 2

● Splitting of claims prohibited:
○ When single cause of action gives rise to multiple claims
○ When whole claim relating to single cause of action in suit
○ If any claim related to a single cause of action is not included then its deemed to
be relinquished by plaintiff
○ Plaintiff will not be allowed to file 2nd suit for that particular claim again
○ Example: Doctor’s negligence - P injured - P sues claiming compensation under
tort of negligence - case decided on merits and disposed off - P files another suit
under Med Neg Act that covers same cause of action - the suit under MNA will be
barred under Order II
○ Similar to constructive res judicata - Sec 11 Expln 4 or 6
● Splitting of remedies prohibited:
○ When single cause of action gives rise to multiple remedies because of different
set of laws acting on that cause of action - then all those remedies should be
prayed for together by the Plaintiff
■ If not included the law considers it to be relinquished
○ If any remedy related to single cause of action not prayed for then deemed to be
relinquished
 ○ Example: P sued for recovery of principal-debt and obtained a decree - forgets to
pray for interest - case decided in favour of P - P files another suit for interest -
not allowed to file another suit to recover interest
● Rationale: Defendant not to be vexed twice over same cause of action
○ Related closely to constructive res judicata

ORDER II RULE 2 - BAR ON SECOND SUIT

● When
○ 2nd suit for same cause of action between same parties as 1st suit
○ P entitled to more than one claim or relief for same cause of action
○ Plaintiff omitted to on more than one claim or relief in 1st suit and files 2nd suit
for the same

ORDER II RULE 3 - SEVERAL CAUSES OF ACTION MAY BE JOINED IN A

SINGLE SUIT
One plaintiff, One defendant, Several causes of action
■ Plaintiff can join several causes of action in single suit against single
defendant IF plaintiff is entitled to relief and defendant is liable for all the
causes of action. If above condition not fulfilled, suit is bad for misjoinder
of causes of action. Suit is not to be dismissed but returned for
amendment.
■ Jay Industries v. Nakson Industries (AIR 1992 Delhi 338),
■ Ajoy K Saha v. Ashok Leyland Finance Ltd 2005(1) CHN 572 (Cal)

Several Plaintiffs, One Defendant, Several Causes of action

■ Several plaintiffs can join several causes of action in single suit against
single defendant IF all the plaintiffs are jointly entitled to relief and the
defendant is liable on all the causes of action. Order I Rule 1 to be
complied with to add several persons as plaintiffs. If the above conditions
not fulfilled, suit is bad for misjoinder of plaintiffs and causes of action.
Suit cannot be dismissed on this ground but returned for amendment
One Plaintiff, Several Defendants, Several Causes of action
■ The plaintiff can join several causes of action in single suit against several
defendants IF all the defendants are jointly liable on all the causes of
action. Order I Rule 3 to be complied with to add several persons as
defendants. If above conditions not fulfilled, suit is bad for misjoinder of
defendants and causes of action and suit may be dismissed on this ground.

Several Plaintiffs, Several Defendants, Several Causes of action

■ Several plaintiffs can join several causes of action in single suit against
several defendants IF all the plaintiffs are jointly entitled to relief and all
the defendants are jointly liable on all the causes of action. Order I Rule 3
to be complied with to add several persons as defendants. If above
conditions not fulfilled, suit is bad for misjoinder of defendants and
causes of action and suit may be dismissed on this ground.
●
● Misjoinder of defendants and misjoinder of causes of action together results in
Multifariousness and suit is liable to be dismissed on the ground of multifariousness.

Multifariousness:
○ Technical grounds for dismissal - not barred by res judicata
○ When there is misjoinder of defs and misjoinder of cause of action
○ When Order I R3 and Order II R3 are violated
○ Court can strike our causes of action in misjoinder of cause of action (not
multifarious -- will be multifarious if misjoinder of defs + cause of action
misjoinder)
○ Brajabala Barua v Guhati Bank Ltd & Ors 1962 - case dismissed on grounds of
multifariousness
 UNIT 3: PLEADINGS

PLAINT - ORDER VII r/w ORDER VI

ESSENTIAL ELEMENTS OF PLAINT: Rules 1-8

● Name of the court; name and place of residence of plaintiff and defendant; fact of
plaintiff/defendant being a minor or of unsound mind; jurisdiction of court; reliefs
claimed; value of subject-matter of suit; portion of claim relinquished by plaintiff (Rule
1); interest and liability of defendant in suit (Rule 5)
● Cause of action – facts constituting cause of action and date of cause of action
● Where plaintiff claims relief for several causes of action based on distinct grounds, the
causes of action to be stated separately and distinctly. (Rule 8)
● Reliefs claimed by plaintiff
● The documents to support cause of action or suit in original with plaint. If documents are
not produced, plaintiff is not allowed to use such documents or their effect as evidence
without leave of court. (Rule 14)
● If suit is time-barred, the grounds for exemption from law of limitation (Rule 6)
● In suit for recovery of money, the exact amount claimed. In claim of accounts or mesne
profits, the approximate amount (Rule 2)
● In suit relating to immovable property, description of property with survey numbers,
boundaries (Rule 3)
● In representative suit, fact of plaintiff’s actual interest in subject matter along with the
requirements for representative suit as per Order I Rule 8 (Rule 4)

RETURN OF PLAINT: (Rule 10, 10-A, 10-B)

● Court order return of plaint at any stage of the suit
● on the ground of want of jurisdiction.
● court to endorse the date of presentation of the plaint, name of plaintiff and reasons for
returning the plaint.
● Returned plaint filed in proper court – to be freshly heard and not continued.
● order of return of plaint - appeal allowed under Order XLIII Rule 1.
● Allahabad Bank v Shank (Steel Fab Pvt Ltd) AIR 2008 Cal 96;
● Amar Chand v Union of India AIR 1973 SC 313

REJECTION OF PLAINT: (Rule 11, 12, 13)

● Rule 11 - Grounds at any stage of the suit:
○ non-disclosure of cause of action
■ ITC Ltd v Debt Recovery Appellate Tribunal AIR 1998 SC 634;
● Letter of credit given by bank to sellers for payment of goods by
buyer - seller demanded payment under Bank guarantee - bank
refused and sued buyer and seller for prohibitory injunction and
damages against seller, claiming fraud on sellers part as no
movement of goods - issues framed - seller claimed rejection of
plaint under order 7 Rule 11 - whether allegation of fraud on
ground of non-movement of goods discloses cause of action of
fraud and whether plaint to be rejected after issues framed?
○ Held that allegation of fraud is not creating a cause of
action in favour of bank - so bank has no locus standi and
no cause of action
■ Shakti Sugars Ltd v Union of India AIR 1981 Del 212;
● P alleged State Trading Corp to be agent of UoI and sued - STC
not agent of UoI - cause of action was not clearly disclosed - plaint
rejected against STC only
■ SNP Shipping Services Pvt Ltd v. World Tanker Carrier Corporation
AIR 2000 Bom 34
○ Suit/relief undervalued and not corrected valuation within time given by court
(court fees)
○ Plaint insufficiently stamped and not corrected within time given by court
○ Plaint is not filed in duplicate
○ Suit is barred by law – res judicata/limitation/any other law.
○ Plaintiff has not complied with Rule 9, i.e., not paid the fees for service of
summons with time given by court.
○ Any other grounds – example vexatious/frivolous etc
● Effects:
 ○ Court has to record reasons for rejection of plaint in writing (Rule 12)
○ no res judicata on order rejecting plaint - fresh suit can be filed after correction
made in the rejected plaint (Rule 13)
○ Order rejecting plaint - deemed decree - appeal allowed.

PLEADINGS - ORDER VI

FUNDAMENTAL / BASIC RULES OF PLEADINGS (Rules 2 – 15)

● Object: to ascertain real dispute between parties and to prevent surprise to the other party
at hearing.
● Pleadings means plaint or written statement (Rule 1)
○ Statement in writing drawn up
○ Filed by each party
○ Stating contentions at trial, giving details that opponent needs to know to prepare
his/her answer
● Pleadings to state:
○ facts not law
■ if mixed question of law and fact, party to plead it.
○ All and only material facts
■ failure to include all material facts may lead to dismissal of suit or striking
out of defence.
■ Primary basic facts on which plaintiff’s cause of action/defendant’s
defence rests
■ No evidence allied if material fact not pleaded
○ Only facts, not evidence
○ facts in concise form (Rule 2)
○ Virendra Nath v Satpal SIngh 2007 SC
■ Election petition alleged double voting and voting of dead persons -
number and name of voters expressly stated - whether details of
impersonators to be expressly pleaded - details of impersonators would
be evidence and not facts
● Pleading of misrepresentation, fraud, breach of trust, undue influence, willful default etc
(Rule 4)
○ Particulars with dates to be stated, mere stating it is not sufficient
● Pleading of performance or non-performance of condition precedent (Rule 6)
○ Implied non performance of condition precedent to be expressly pleaded
○ Performance of condition precedent not to be pleaded
○ Example: Contract for construction between X and Y -- X to pay on condition of
Y’s architect signing bill -- X fails to pay and Y sued -- condition precedent of
Y’s architect signing bill need not be pleaded by Y -- X to plead that condition
precedent not fulfilled (Y’s architect did not sign)
● Departure from previous pleadings (Rule 7)
○ Departure from pleadings not permitted except by amendment
○ Inconsistent pleadings prohibited
○ but alternate pleadings allowed (by specific statutes)
■ Example: specific performance or damages for breach, RCR or divorce,
eviction for personal requirement or non payment of rent
○ Party allowed to include alternative pleadings even if inconsistent, though the
court would look upon such pleadings with suspicion. Once the court has given a
decision on a definite stand taken by a party on one of the alternative pleadings,
the party is not allowed to change such pleadings.
■ Prem Raj v. D.L.F Housing & Construction Co. AIR 1968 SC 1355
● Sued that contract was void due to undue influence and sought
specific performance -- CH: specific performance sought first and
if it fails then contractual remedy, and as plaintiff sought
cancellation or rescission first. If alternate pleadings allowed it is
to be allowed based on strict process
● Bare denial of fact of contract and not its validity or legality (Rule 8)
○ Denial of fact of contract, not denial of validity or legality of contract
○ If denial missing - its proven in court that there was a contract def wont be able to
challenge it later
● Pleading effect of documents (Rule 9)
 ○ Effect of documents to be pleaded (including notice to party as material fact)
○ Precise words, contents of documents not required as its usually annexed to the
WS
● Pleading of malice, fraudulent intention, knowledge (Rule 10)
○ Evidence or circumstances leading to these not to be stated
● Pleading notice to opposite party (Rule 11)
● Pleading implied contract or relation through series of letters or conversations (Rule 12)
○ Implied contracts or relations to be stated as fact
○ Circumstances leading to these need not be stated
● Pleading of facts which law presumes in favour or places burden of proof on other party
(Rule 13)
○ Need not be pleaded
○ Eg: validity of registered documents
● Pleadings to be signed by the party (Rule 14)
● Pleadings to contain address of party and opposite party. False or fictitious address by
plaintiff or defendant (Rule 14-A)
● Verification and affidavit by party (Rule 15)
● Striking out pleadings (Rule 16) by the court at any stage of the suit on any of the
following grounds:
○ The pleading is unnecessary, scandalous, frivolous or vexatious;
○ The pleading tends to prejudice or delay fair trial of the suit;
○ The pleading is an abuse of the process of court.

AMENDMENT OF PLEADINGS
● Amendment allowed before trial commences if:
○ Amendment necessary to determine real dispute between the parties; and
○ Amendment can be allowed without injustice to opposite party which cannot be
compensated with costs.
● Example: party wrongly described, some properties omitted from plaint inadvertently;
mistake in stating cause of action in plaint; suit brought under wrong Act; bona fide
omission in making necessary averment in plaint.
○ Jai Jai Ram Manohar Lal v National Building Material Supply 1969 SC
 ● Amendment allowed after trial commences if (i), (ii) above and:
○ Party could not have raised the plea before in spite of due diligence due to
subsequent events after institution of suit
○ For instance, during trial of suit for declaration of title, if the plaintiff is forcefully
dispossessed of immovable property by the defendant, amendment can be allowed
to include relief of recovery of possession of property and permanent injunction.
● When Amendment not allowed:
○ If amendment is not necessary to determine real dispute between the parties or
without substance
■ For instance, where plaintiff’s property was damaged by A and B, plaintiff
obtained judgment against A in separate suit, B sought to amend his
written statement to include the judgment against A as bar to suit against
B. Amendment not allowed as it is not necessary to determine the real
dispute between the plaintiff and B.
○ If amendment introduces a totally different, new, inconsistent case or changes the
fundamental character of the plaint/defence.
■ K.C. Taneja v. Pramod Kumar Taneja 1997 AIHC 1508 (Delhi),
■ Modi Spinning & Weaving Mills Co v. Ladha Ram & Co. 1977 SC
○ If the effect of the amendment is to take away legal right accrued in favour of the
opposite party.
■ Steward v North Metropolitan Tramways Co. (1886) 16 QB 178 (CA),
○ If amendment application is not made bona fide
● Amendment to be done within time specified by the court in the order or within 14 days
(Rule 18)

SUMMONS - ORDER V

● Object: audi alteram partem

● Importance: Rules 1, 2 - If summons not duly served, decree not binding on defendant.
● Sent by the court only.
● Contents
○ Place of residence of defendants
 ○ Time required to serve summons
○ Date of appearance of defendant
○ Whether summons for settlement of issues or is it for final disposal
■ If final disposal the defendant has to produce evidence
○ Siganture of judge and seal of court
○ Annexure - copy of plaint

Modes of Service of Summons

● Personal service Rules 9 – 15
○ Acknowledgment of summons by person receiving it (Rule 16)
○ Bhabia Devi v Parmanand Prasad AIR 1997 SC 1919
○ Endorsement of summons by serving officer (Rule 18)
○ Handed over by the court officer -- goes to the address of the defendant
■ Address is provided by the plaintiff.
○ Defendant within court jurisdiction (R.9)
■ Court officer to defendant in person or agent, as far as practicable (Rule
10, 12).
■ RPAD/Speed Post/ Approved courier/ Fax/ Email (HC Rules)
● RPAD is a good evidence of notice -- very authoritative.
● Email reaching inbox -- constructive notice -- sufficient
● Paid by the plaintiff -- later, if the plaintiff wins then it comes as a
cost of litigation.
○ Defendant outside court jurisdiction (sec.28)
■ Court can delegate court officers to physically travel. (Rarely used)
■ Speed Post/ approved couriers/ fax/ email
○ More than one defendant? -- individual summons to each defendant (R.11)
○ Suit relates to business within court jurisdiction (Rule 13)
■ Service of summons on defendants manager/agent for the business within
court jurisdiction - deemed due service
○ Suit relates to Immovable property (Rule 14)
■ Service of summons to defendant’s agent in charge of immovable property
- deemed due service
 ○ Defendant absent from residence (Rule 15)
■ Service of summons to adult member of defendant’s family only
● Substituted service
○ Refusal to accept summons by defendant – defendant not found after reasonable
diligence – defendant avoiding – deemed duly served.
○ State of Punjab v GS Gill AIR 1997 SC 2324
○ Modes: Affixture on defendant’s residence/workplace/courthouse – Newspaper
advertisement
○ Def refuses to accept/ def not found after due reasonable diligence/ DEf avoiding
service
○ Is not mandatory -- optional (Plaintiff)
■ Affixture on Def residence/work (R.17 r/w R.18, R.19): summons copy on
conspicuous part by service officer
● Details such as place, time date to be mentioned
■ Affixture on court (r.20): summons copy on conspicuous part of
courthouse and def residence/work
■ Newspaper advertisement (R.20(1-A)): daily newspaper circulating in
locality of def last known address.
○ Defendant would have deemed duly served -- valid service
○ No acknowledgement -- Mandatory endorsement (serving officer or newspaper
page).
● Service by plaintiff: Rule 9A

Summons in special cases:

● Defendant residing outside territorial jurisdiction of court issuing summons but within
India – Rules 21, 23, 22, Section 28
● Defendant residing outside India – Rules 25, 26, 26-A, Section 29
● Defendant in jail – Rule 24
● Defendant is a civil public officer / servant of railway or local authority – Rule 27
● Defendant is soldier / sailor / airman – Rule 28
● Defendant is of a rank entitling him to letter in place of summons – Rule 30 Duty of
person who receives summons on behalf of defendant – Rule 29
WRITTEN STATEMENT - ORDER VIII

● Order VIII Rule 1

○ Filed within 30 days from date of receiving summons (can be extended for
additional 30+30 days, but not more than 90 days from date of service of
summons)
○ Extension based on IA (Interlocutory Application) - recorded reasons by court
(2002 onwards)
● Extension of additional 30 days u/s.148
○ Tailored for extending time for every stage in a civil suit
○ Again IA is to be filed
○ After the extension -- file extension under s.151 -- used for last resort (residuary
for meeting ends of justice)
● So, Days → 30 + 90 + 30(s.148) + 30 or more (s.151)
● Contents of WS - Rules 2-5, R7-10
○ Denials - specific, not evasive, separate denial for separate grounds (each para
each denial)
○ If denial para missed - evidence law states that it's accepted by the defendant
(deemed admission)
○ If not expressly denied -- deemed to be admitted. Once the court agrees then no
evidence can be used to rebutted the deemed acceptance.
○ New ground of denial -- filing of additional written statement
■ Request the court
■ In case new facts have arisen which could not have been included in the
original WS with due diligence, or law has changed retrospectively.
■ Basically for full opportunity of defence (Audi alteram partem)
○ Documents relied for defence to be annexed
■ Original documents to be attached with the WS
Set Off - Rule 6
● Conditions
○ Money Suit filed by Plaintiff
■ Claimed by Defendant.
○ Defendant's claim for ascertained amount against plaintiff
■ Incase P asks for unliquidated damages - P has to justify the estimate -
Defendant can't argue that P has committed any other act against Def and
needs unliquidated damages.
■ Unliquidated damages not allowed (equitable set-off or counter claim)
■ Amount to be equal or lower than plaintiff’s claim (excess-counterclaim)
■ Amount has to be ascertained by the court
○ Defendant can make a claim of set off (fixed amount) against the Plaintiff who is
seeking unliquidated damages.
○ If Def claim is more than Pl claim -- should be legally recoverable -- not under
Rule 6
○ Defs claim legally receivable : not time barred (equitable set off)
○ Defs claim within pecuniary jurisdiction of court: Def to pay court fees on own
claim.
○ Plaintiff and Defendant should be in the same capacity for both debts. (Like Def
can't claim breach of trust against Plaintiff as a trustee)
● Difference between legal and equitable set-off:
○ ascertained sum only; unascertained sum
○ right of defendant; discretion of court
○ time barred debt not allowed; time barred may be set-off
○ Govt of United States of Travancore & Cochin v Bank of Cochin Ltd 1954
● Examples:
○ X sued Y for compensation for ₹1L - Y alleged X to be liable to pay ₹90K - there
is set off
○ X sued Y for compensation of ₹1L in 2020 - Y alleged X to be liable to pay ₹90K
for breach in 2015 - Y cant include set-off as it exceeds limitation
 ○ X sued Y for compensation of ₹1L in 2019 - Y alleged X to be liable to give
accounts in 2018 - Whether Y can include set-off? → give accounts -- to check if
this amount is ascertained -- no claim of set-off. (Important case)
■ Laxmidas v Nanabhai 1964

COUNTERCLAIM: Rules 6A-6G (1976 Amendment Act)

● Claim made by the defendant against the plaintiff in the plaintiff’s suit. Conditions for
counterclaim:
○ not time-barred
○ not to exceed pecuniary jurisdiction
○ Gurbachan Singh v Bhag Singh AIR 1996 SC 1087
● Counter claim treated as plaint under Order VII and plaintiff reply treated as written
statement under Order VIII. (Rules 6A, 6G)
● Defendant can set up counter claims against plaintiff and co-defendant but not against
co-defendant only.
● Counterclaim heard and decided on merits even if suit was withdrawn or dismissed. (Rule
6D, 6F)
○ Laxmidas v Nanabhai AIR 1964 SC 11
● If plaintiff fails to file reply to counter claim within time given, court may pass judgment
against plaintiff or as it deems fit (Rule 6-E)

Difference between set-off and counter-claim:

● set-off is cross-claim; counter-claim is cross-suit
● set-off in money suits and ascertained sum only; counter-claim in any suit even for
unascertained sum
● set-off ground of defence; counterclaim ground of offense
● Cofex Exports Ltd v Canara Bank AIR 1997 Del 355 (DB)
 UNIT 4
APPEARANCE, EXAMINATION & TRIAL

Parties to suit to appear in court in person or by pleaders on day fixed by court in summons
(Rule 1)

Where only plaintiff appears and defendant does not appear:

i. Where defendant not appear due to failure of plaintiff to pay fees within time for service of
summons, suit dismissed (Rule 2)

● Suit will not be dismissed if plaintiff failed to serve summons to some of the defendants.
● Where both plaintiff and defendant do not appear: Suit is dismissed (Rule 3)
● Order for dismissing the suit for default in appearance u/r.3 can be setaside without
serving notice to the defendant.
● Applicability of res judicata and Setting aside decree dismissing suit on basis of r. 2 & 3[
prove sufficient cause] (Rule 4)
● Plaintiff may file a fresh suit/ may apply to set aside the dismissal
● The reason stated and the totality of the situation including its own procedural defect has
to be taken into consideration

ii. Where defendant not appeared due to failure of plaintiff to apply for fresh summons/ when
summons returns unserved, suit dismissed (Rule 5)

➔ Plaintiff has to apply within 7days for fresh summons -dismiss the suit -
➔ Failed after using best endeavour to discover the residence of defendant
➔ Defendant is avoiding service of summons
➔ There is any other cause for extending the summons - Before 1976- 3months
➔ After 1976- 1 month - 1999-from 2002- 7days

Procedure when plaintiff only appears[R.6]

i. summons duly heard ex parte-if plaintiffs case is prima facie proved ,court may decree for
the plaintiff.
ii. Where summons not duly served, court issue fresh summons (Rule 6(b).
● If plaintiff’s fault for summons not duly served, plaintiff to pay costs.
iv. Where summons duly served but not sufficient time for defendant to appear, court
postpone hearing of suit (Rule 6(c).
● If plaintiff’s fault for insufficient time, plaintiff to pay costs.
v. Where summons duly served with sufficient time, defendant not appear, court may pass
ex-parte decree against defendant or as it deems fit.
vi. If more than one defendant, some do not appear, court may pronounce judgment , and
make orders against those who do not appear as it thinks fit.

Procedure when defendant appears on the day of adjourned hearing and assigns good
cause for previous non appearance[R.7]
On such terms and conditions Court will direct him to pay cost and be heard

Where only defendant appears and plaintiff does not appear:

i. Suit dismissed but if defendant admits part of plaintiff’s claim, court pronounce judgment
against defendant on his admission and dismiss suit for rest of claim (Rule 8)
● The remedy available for plaint dismissed under r.8 is review[O.47,r.1] [period of
limitation for applying for review is 10,20 & 90 days]
● & apply for set aside order for dismissal.

Remedies available to plaintiff against decree dismissing suit for non-appearance:

a) Appeal against decree dismissing suit under Section 96
b) Application for review of ex-parte decree under Order XLVII Rule 1
c) Application for setting aside decree dismissing suit under Order IX Rule 9
ii. Applicability of res judicata and Setting aside decree dismissing suit for plaintiff’s non-
appearance under Rule 8. (Rule 9)

● Fresh suit is barred & he may file to set-aside the dismissal order-plaintiff will be ask to
pay fine
● No order shall be made - unless notice of application has been served on the opposite
party
● Grounds for setting aside decree dismissing suit for plaintiff’s non-appearance: Sufficient
cause for non-appearance

Sufficient cause

Manilal V. Gulam Hussain,(1889) ILR 13 Bom 12

Plaintiff left the Court house before his case was called on the belief that ,it will take some
time. Not a sufficient cause

Setting aside ex-parte decree: [R.13]

Exparte decree- decree passed against a defendant in absentia[decree so passed is legal, valid
& enforceable like a bi-parte decree]
Remedies available to defendant who does not appear and ex-parte decree is passed against
him in suit:

i. Appeal against ex-parte decree under Section 96

ii. Application for review of ex-parte decree under Order XLVII Rule 1
iii. Suit on ground of fraud by plaintiff as reason for non-appearance
iv. Application to set aside ex-parte decree under Order IX Rule 13
Within 30 days from the date of the decree
Grounds for setting aside ex-parte decree:

a) Summons not duly served; or

b) Non-appearance due to sufficient cause.

Issues (Order 10,14 15)

ORDER X
● First hearing not defined in CPC, held by the Supreme Court to be the day on
which issues are framed.
● At first hearing, court ascertains from the parties to the suit, their admissions or
denials of allegations made by the opposite party (Rule 1)
● Oral examination of parties to ascertain elucidate matters in controversy in suit by
court, recorded in writing (Rule 3)
● Mandatory provision to direct parties for alternate dispute resolution as per
Section 89 of CPC. If no settlement is reached, parties referred back to court
(Rules 1-A, 1-B, 1-C)

Discovery & Inspection Order 11

Discovery means trying to obtain information related to the case by one party from the
opposite party.
A. Discovery of facts: Rule 1 to 11 - Interrogatories :
➔ Interrogatories is a series of specific questions put up by one party to the opposite party in
order to obtain information related to the case.
➔ As per Rule 1 and 4 of Order 11 only one set of interrogatories can be sent
Procedure;
If one party wants to discover facts through interrogatories then
➔ Opposite party has to file an interlocutory application to the court - for permission to
deliver the interrogatories to the opposite party for reply.
➔ Court may reject the IA for interrogatories and also impose cost on the party filing the IA
- If the court finds that the interrogatories are intended malafide.
➔ The court may allow the IA and also allow the interrogatories to be served by one party
to the opposite party - then the opposite party have to answer in affidavit in 10 days - If
so then opposite party will get an opportunity to object to the questions in the
interrogatories / apply to court to set aside (Rule 6,7)
➔ Ground for objection (Rule 6,7 ): irrelevant, scandalous, unreasonable/vexatious,
malafide, prolix, oppressive, not material, privileged information (S. 122, 129 of
Evidence Act)
➔ If the opposite party fails to respond in any manner to the interrogatory served on them -
then depending on whether the opposite party is the plaintiff the suit will be dismissed
then they will not be allowed to file 2nd case on same cause of action against the same
defendant - If they are the defendant then the written statement will stuck of the record
of the suit.
It was held in Kerala H C judgement in P.Balan Vs Central Bank of India

B. Discovery of Documents ( Rule 12 - 14)

➔ If one party wants to discover some documents which are relevant to the case -
which is in possession of the opposite party then the party can apply an IA in
court asking the opposite party to disclose all the documents related to the case
that are in possession.
➔ The court can allow the AI - if the opposite party will have to specify the list of
documents that they have in the form of an affidavit/ the opposite party can object
to submitting this list of documents.
➔ Grounds for objection to discovery of documents (Rule 12) ;
On the ground that these documents are unnecessary to decide dispute / fall under the
scope of privileged information under Indian Evidence Act. It was a ground of
defence and objection taken by the defendant in J.B Patnaik Vs B.C & Co Ltd
➔ If the opposite party fails to respond in any manner - if they are the defendant then their
written statement will be struck off the record of the suit - if they are the plaintiff their
suit will be dismissed and will not be allowed to file a second suit also.
➔ Premature discovery (Rule 20) : If the party had filed an application in court asking the
opposite party to disclose a set of documents relating to the case but those documents
depend on the specific issues framed by the court - until the court frames those issues it
will be difficult to find the documents are relevant or not - In those case the court can
reserve the IA for discovery of documents until the court decide - after deciding the issue
if the documents are relevant to the case then the court would take up the hearing of IA
and order the other party to specify the list of documents.
Bagyalakshmi Ammal Vs Srinivasa Raddiar

C. Inspection of Documents (Rule 15 - 19)

➔ Document mentioned in plaint/ written statement (Rule 15)
The plaintiff or the defendant must produce all the supporting documents in original at the
time of filing the plaint. It is possible that the plaintiff/defe. May not produce all the
documents along with the plaint/WS - In those instances if the opposite party wishes to
inspect such documents then they can do so under Rule 15.
If the document is mentioned as a supporting document in the plain - but not been produced
along with the plain/WS then the party can give a notice directly to the opposite party
in the prescribed form asking the opposite party to produce such documents for
inspection of the applicant.
Opposite party is required to reply to notice within 10 days of receiving it - In this reply the
opposite party must fix a date, time and place where the applicant can appear and inspect
the documents within 3 days of the reply.
If the opposite party fails to reply to the notic or does not allow the applicant to inspect such
document - the opposite party will not be allowed to use such document as evidence at a
later point of time.

➔ Document not mentioned in Plaint/ written statement (Rule 18)

Party must file an interlocutory application to the court - to order the opposite party to allow
inspection of such documents.
The opposite party can object to the inspect on the ground that the document is unnecessary
for deciding the dispute/ unnecessary for saving cost
If the court allows the IA it will order the opposite party to allow the applicant to inspect the
document.
If the opposite party fails to comply with such an order of the court depending on whether the
opposite party is the plaintiff the suit will be dismissed and if the opposite party is the
defendant the WS will be struck off the record of the suit. It was done in State of Orissa
Vs Binod Mohaptra

Admission Order 12
Rule: If the fact had been admitted by the opposite party then they need not be proved
by any evidence - Section 58 of Evidence Act
Modes of Admission:
➔ It can be made in pleadings by making allegations/ statements in the plaint/ in written
statements.(Ord 7,8)
➔ It can also be made on oath i while giving answers to interrogatories (Ord 18,11)
➔ It can also made by agreement (Ord 23)
➔ Admission can made in reply to notice (Ord 12)
Admission by Notice : 2 kinds
1. When notice is given to the opposite party to admit the certain facts - R4, 5(b)
2. Notice to opposite party to admit to certain documents - R2, 2A, 3, 3A
A. Notice to admit facts - R4, 5(b)
➔ Any party either the plaintiff/ defendant can send the notice in writing to the opposite
party - format is given in Rule 5
➔ Notice contains a list of statements asking the opposite parties to admit these statements.
➔ Opposite party must reply to notice within 6 days after receiving it - In reply the
opposite party can admit to all facts mentioned/ deny/ choose to admit some of them/
deny some of them
➔ If the opposite party fails to respond or send any kind of reply to the notice then they will
be held liable to pay expenses that the party sending the notice would incur; those same
statements in the notice are later proved by that party through alternate evidence.
B. Notice to admit documents: R2, 2A,3,3A
➔ Any party can send a notice in writing in the prescribed format according to Rule
3 to the opposite party.
➔ This notice will list a certain number of documents - asking the opposite party to
admit to the validity of those documents as well as the truth.
➔ Opposite party must reply within 7 days
➔ Fails to reply - then the party who sends the notice is able to bring evidence and
prove the truth/ validity of the document - whatever expenses incurred by this
party - those expenses will have to be paid by the opposite party.
➔ If the opposite party replies to the notice but denies some part and silent about the
rest of them that means the rest of the document is not expressly denied then that
part of the document which the opposite party was sclient is also deemed to be
admitted under Rule 2 A.
➔ Under Rule 3 A the court has the suo motu power to call on any party to admit
any document.
Judgement on Admission(Fact/ Documents) Rule 6
If the court has sufficient admitted fact - undeR 6 the court can pass the decree without
further evidence.
➔ On application of a part / suo motu the court has power to pass the judgement based on
the admission/facts made by the parties at its discretion at any stage of the suit even
without determining other issues.
Uttam Singh Duggal Vs Union Bank of India
Bank was able to produce a statement containing admission of several facts by the petitioner
company- Court gave reasonable time to explain/deny those admissions the company
 gave an unsatisfactory explanation - so the court considered those admissions as true and
pronounced the judgement.
The Company filed an appeal challenging the decision as invalid - the SC held that under Ord
12 R 6 courts have the power to pronounce judgement only on the basis of admissions if
it is sufficient to dispose of the suit.
Power of court:

● court can suo motu ask any party to suit to admit to any document at any stage of the suit
and record whether the party admits or refuses to admit to such documents (Rule 3-A)
● court can require document deemed to be admitted under Rule 2-A to be proved in trial
● court can pronounce judgment suo motu or on application of party, based on the
admissions made by the parties, at any stage of the suit without waiting for determination
of other questions between parties. This is a discretionary power of the court and not
right of the parties - Rule 6
● Uttam Singh Duggal v Union Bank of India AIR 2000 SC 2740;
● Karam Kapahi v. Lal Chand Public Charitable Trust AIR 2010 SC 2077

Production, Impounding, Return of documents - Order 13

General rule
➔ Plaintiff/Defendant must produce all the original documents on which they are relying on
their claim - beginning of the case they file the written statement.
➔ Additional time will be given by the court to file the original documentary evidence - all
of them must be done before the settlement of the issues - on the date of framing of the
issues the parties must produce all the relevant supporting documentary evidence in
original in court (Rule 1)
Object
➔ To ensure that the party submit the documentary evidence at the beginning of the suit.
➔ To ensure fair trial
➔ Prevent forged evidence at later stage
Exceptions
Court may allow the deposit of documentary evidence at a later point even after the issues
have been filed.
➔ If the court is convinced that the document is genuine and it is necessary to decide the
dispute then the court may at its discretion allow the document to be produced by the
party even after the issues have been filed.
It was held in Billa Jagan Mohan V Billa Sanjeeva
➔ If any documents are required for cross examination/ refresh the memory of the witness
then such documents need not be produced at the beginning of the trial - but at the
relevant stage of evidence - with the prior permission of the court.
Privileged document - confidencial doc - cannot be submitted directly to court

English law recognises "Crown Privilege". It is based on the well known doctrine that
"public welfare is the highest law" (salus populi est suprema lex). Public interest, no
doubt, requires justice to be done. But it also requires withholding of documents in
certain circumstances.

It may, however, be noted that in case of claim of privilege, it is open to the court to
inspect the document for deciding the sustainability of the claim. Mere assertion by the
opposite party is not final.

Return , Impounding of Documents - Order 13, Rule 17 - 11

Return of documents:
When the trial of the suit has concluded and the judgement has been passed.
➔ Return of documents: If the document is not admitted in evidence it will be rejected and
returned to the party.
➔ If the suit has been disposed of on merits and no appeal filed against the judgement then
also the original documents should be returned to the party.
➔ If the suit was disposed of and appeal is allowed but not being filed by the aggrieved
party then the documents will be returned to the party.
➔ While the suit is pending it is possible for the party to apply for return of the document
particularly if the document related to day to day transactional entries - then the parties
 can deliver certified copies of the document as the substitute of original and also give a
written undertaking to produce the original in court whenever required by the court - In
that case if the court is convinced with the immediate requirement of the document for
the party the court can return the document to the party.
Impounding of documents:
➔ The court has power to order the seazier and take custody of documents in possession of
parties on sufficient cause being established by the opposite parties.
➔ The reason for court ordering impoundings - if there is apprehension of
forgery/destruction of documents in possession of parties/ alteration of documents.
➔ suo motu power of the court which the court can send for records of any other suit from
its records or other courts records for inspection which may be direcuine and it is
materiatly or indirectly material to decide the current suit. Further the party which is
relying on a document which is not in it’s own possession can produce a copy of the
document and apply to the court to order the opposite party to produce the original
document.

Admission, Rejection of Documents - Order 13 Rule 3 -7

Admission of documents
➔ Endorsement on admitted documents : If the judges are convinced the document is genl
to decide the dispute in the case the judge will admit these documents by endorsing them.
The endorsement of the document contains:
 signature of the judge,
 the case no.,
 name of the person producing,
 date of production,
 statement of document being admitted as evidence.
➔ If the document has been admitted, marked and endorsed as evidence then the
marking of the document becomes the part of the suit - it's important because at
the end of the trial the decree passed and will be challenged by filing a regular 1st
appeal.
 The appellate court will call upon the trail court to send the record of the suit for re-
examination. Then the documents which are marked and endorsed as evidence are
part of the suit and are forwarded to the appellate court by trial court.
Rejection of documents:
➔ If the court is not satisfied with the authenticity/relevance of the document then the court
can reject the document and not record it as evidence - reason for rejection must be
recorded by the court in the order sheet.
➔ Endowment is made on the rejected document with the case No. + name of party
producing document +date of production + statement of document being rejected +
reason for rejection being added.
➔ If the document is rejected by the court and not accepted as evidence then it will not form
part of record of suit and return to the party who produced the document.

ORDER XIV
Framing of issues order 14
Meaning of issue Rule 1
● Material proportion of fact or alleged by one party and denied by opposite party
● Material preposition: treatments alleged by plaintiff for cause of action or locus
standi and statements alleged by defendants for defence
● Which material preposition alleged and denied to form a separate distinct issues
Kinds of issues
Issue of fact
P claimed goods delivered on 15th Jan, D denied delivery of goods whether goods delivered
on 5th Jan
issue of law
P claim to jurisdiction of Civil Court 4 tax matter on Grounds of ultra virus - D claimed
section not ultra virus - whether relevant tax section ultra virus
mixed issue of fact and law
P claim territorial jurisdiction of court - D claimed no territorial jurisdiction as contract
not breach in territory
Power of court in framing issue Rule 1 (5) 2, 4 , 5
● Ascertain material proposition alleged and denied
● examine witness aur document
● frame and record issues
● decide the issue of law (jurisdiction/ bar to suit) first and postpone settlement of other
issues until the preliminary issue is decided. Ex subject matter juri issues
Shyam Dutt Vs Ashok Kumar

Materials for framing issues Rule 3

➔ Allegations of parties on oath
➔ allegation of parties in pleading, answer to interrogatories
➔ contents of documents produced by parties
Power of court on issues:
• Court has power to amend, add, strike out any issue at any stage of the suit (Rule 5, 6)
• Court can frame and decide issues, on application of parties, if parties can agree on question
of fact / law and state in the form of issue (Rule 6, 7)
• Court can name an issue as preliminary and decide it first but it has to decide all the other
issues while disposing of the suit (Rule 2).
Exception: if preliminary issue relates to the following, court can dispose of suit after
deciding
These issues without deciding the other issues:
i. Jurisdiction of the court
ii. Bar to the suit under any law
Manager, Bettiah Estate v. Sri Bhagwati Saran

ORDER XV
DISPOSAL OF SUIT IN FIRST HEARING

Court may dispose of suit at first hearing itself in following circumstances:

i. Parties are not at issue on any question of law or fact (Rule 1)
 ii. Where there are more than one defendants and any of the defendants admits to the
plaintiff’s claim, court can pronounce judgment and dispose of the suit against such
defendant and proceed with the suit against the other defendants (Rule 2)
iii. Where summons was issued for final disposal of the suit under Order V Rule 5 and
plaintiff
or defendant failed to produce evidence, without sufficient cause for such failure, court
may pronounce judgment at first hearing (Rule 4)
iv. Where summons issued for settlement of issues, after framing the issues, the court may
pronounce judgment if following conditions are fulfilled: (Rule 3)
a. court is satisfied that no further evidence or arguments is required to decide an issue
which is sufficient to decide the suit,
b. no injustice will result due to proceeding with the suit, and
c. parties or their pleaders are present and have no objection to such proceeding and
disposal of the suit.

ORDER XVI AND XVIII - SUMMONING AND EXAMINATION OF

WITNESSES

Summoning of Witness – Order 16

● Parties to submit list of witnesses to court within 15 days of framing of issues
● Vidhyadhar v Manikrao AIR 1999 SC 1441
● Procedure:
○ - Application of party to summon witness / suo motu by court (sec 30)
○ - Summons served on witness as per Order 5
○ - Witness fails to comply with summons – warrant for arrest or attachment of
witness property

Examination of Witness – Order 18

● Section 153-B: oral examination, open court, public access to ensure transparency in
judiciary Exceptions: trial in camera; issue of Commission for recording witness
 statement (Order 26) Plaintiff has right to begin to prove his claim, the opposite party to
state his case and produce evidence next (Rule 1, 2)
● Recording of Evidence:
○ Examination-in-chief of witness to be on affidavit – copy to opposite party. (Rule
4)
○ Evidence taken under personal superintendence of judge in writing or from
dictation or recorded manually in his presence (Rule 5)
○ Evidence can be taken by Commissioner appointed by court (Rule 4)
● Language:
○ Evidence taken in language of court or English if parties and pleaders do not
object (Rule 9) Evidence taken in language different from language of the
witness, the evidence in writing (deposition) to be interpreted to him (Rule 6)
● Power of Court:
○ Court can take down any particular question and answer or objection to it (Rule
10)
○ record remarks on conduct and behavior of witness (Rule 12)
○ recall any witness already examined at any stage and examine again (Rule 17)
○ take evidence of witness immediately before trial if sufficient cause (Rule 16)

Adjournment - Order 17
➔ It is the postponement of hearing of the case at any stage of the proceedings by the court
for sufficient cause
➔ It can only be only in judicial context and can given by judicial authority
➔ General rule: once the trial begins it should not be adjourned - then the evidence of the
court has to be heard on a day to day basis.
➔ Exception : Reasons beyond control of the parties then can apply to the court to postpone
the hearing of the case even during the evidence stage.
➔ Discretion of the court in a reasonable and judicial manner in adjournment of case.
➔ Delay in litigation due to unlimited power of court in adjournment - Order 17 Rule 1 was
amended to make sure not more than 3 adjournments can be taken by any one party
during the hearing of the case. 1999 Amendment
➔ Salem Advocate Bar Association Vs UOI
Advocates challenged the validity of this amendment - SC dilute the effect of 1999
Amendment by stating that:
The general rule is adjournments can be taken max of 3 times by any one party however if
there are any extreme or exceptional situations the court will have the discretionary
power to grant more than 3 adjournments.
Power and duty of court in granting adjournment :
➔ Whether the grounds for seeking adjournment factually correct /true
➔ Whether the grounds sufficient to adjourn the matter
➔ Record the reason for adjournment
➔ Imose cost for adjournment on party to be paid to opposite party on the same date of
hearing
➔ Proceed ex parte if once the adjournment is granted but next date of hearing the party not
appearing then court can proceed ex parte without the that party.
Adjournment granted
➔ If the advocate/paty/witness suffering from sickness
➔ Summons not been served on to defendant
➔ If advocate require reasonable time to prepare the case
➔ If advocate is withdrawn in last minute the party should given an opportunity to hire
another advocate
➔ If the party unable to hire another advocate then the court have to give more time to the
party

Adjournment refused
➔ Advocate is engaged in another court
➔ Unreasonable conduct of party/advocate
➔ Sickness of advocate but part had sufficient time to engage another advocate
➔ If the higher court has given an order to lower court to dispose of the case as quickly

Affidavit - Order 19
● Meaning not given in CPC
 ● It is a sworn statement of facts, in writing which are made under an oath or affirmed
before an authorised officer.(notary)
Essentials
➔ Declaration by person (deponent)
➔ Related to facts
➔ In writing
➔ In first person
➔ Sworn/ affirmed before authorised officer
Evidence on affidavit (Rule 1 to 3)
● General rule : Evidence should to taken in an open court in an oral form (depositions is
oral form into transcribe)
● Exception;
If the court orders the evidence to be taken by affidavit - in a written format - without oral
testimony.
When the witness not able to appear in court because they are public officers/ aged/ sickness
● After an affidavit is submitted in court the opposite party has the right to deponent
(person who sworn in affidavit) brought in for cross examination.
● Deponents must be able to prove that they had personal knowledge of the facts that stated
in the affidavit - and able to disclose the source.
● Submitting false affidavit knowingly - is perjury - punishable under IPC

ORDER XXII - ABATEMENT OF SUIT

● Abatement: creation, assignment, devolution of interest pendente lite

● Suits gets disposed off not on merits, but due to certain other factor/events
● Case cannot be continued
● Suit is not going to be heard

Death of Party (Rule 1 to 6, 10A).

● General rule: suit/appeal will not abate if right to sue survives after death of party (Rule
1)
● Exceptions:
○ personal actions dies with the deceased such as damages for assault,
○ malicious prosecution,
○ defamation,
○ dissolution of marriage,
○ specific performance of contract involving special skills.
● If right to sue not to survive on death of party - suit abates
○ Pre-emption suit abates on plaintiff’s death
○ Injunction suit abates on defendant’s death
○ Melapurath Sankunnu vs. Gopalakutty Nair AIR 1986
● If right to sue survives on death - suit continues against LR of deceased party (P/D) - R1
○ Girijanandini vs. Bijendra Narain AIR 1967
○ Defendant dies:
■ P’s job to identify the LR, file IA
■ If sole defendant dies - right against def continues - LR of deceased def to
be added as party by plaintiff within 90 days from death - if no application
by plaintiff in time, suit abates (R1).
■ If several defendants - one dies, right against def continues - LR of
deceased def to be added by P in 90 days - if not application in time, suit
against that LR abates, continues against other defs (R2).
○ Plaintiff dies:
■ Sole P dies - right to sue continues - suit continued by LR by application
to court within 90 days from death - if no application in time by LR, suit
abates.
■ Several Ps, one dies - rt. To sue continues - suit continued by other Ps and
LR, if LR applies in 90 days - id no application in time by LR then suit
abates
● If no LRs:
○ No LR of Party dead - on application of opposite party, court appoints reciever to
appoint receiver to represent estate of deceased
● Dispute about LR- court to decide
● Duty of pleader/advocate (R.10A) - inform court about death of rep party
● Effect of abatement (R9) - abated by failure of P (application to bring LR on record in
time) - fresh suit barred - appln to set aside abatement
○ S.11 not applicable here, but its barred under O.22_R.9
● Death of plaintiff:
● a. Sole plaintiff dies:
○ If right to sue not survive, suit/appeal abates.
○ If right to survives, suit/appeal continues with LR of deceased
plaintiff. (Rule 3(1) LR of plaintiff to apply to court within 90 days
from death. If not, suit/appeal abates.
● b. Several plaintiffs, one of them dies:
○ If right to sue does not survive at all, suit/appeal abates.
○ If right to sue survives only to LR of deceased plaintiff and not to other
plaintiffs, suit/appeal continues with LR on his application within 90
days. If not, suit/appeal abates. Court award costs to defendant from
deceased plaintiff’s estate. (Rule 3(2) If right to sue survives to other
plaintiffs, suit/appeal continues without any application. (Rule 2)
○ Gajanand v Sadarmal AIR 1961 Raj 223
● Death of Defendant:
○ a. Sole defendant dies:
■ Right to sue does not survive – suit/appeal abates.
■ Right to sue survives – suit/appeal continued against LR of
defendant. (Rule 4(1) Plaintiff to apply to court within 90 days
from death. If not, suit abates.
○ b. Several defendants, one of them dies:
■ Right to sue does not survive at all – suit abates.
■ Right to sue survives only to LR of deceased defendant and not to other
defendants, suit continues against LR on plaintiff’s application within 90
days. If not, suit abates. Right to sue survives to other defendants – suit
continues without application. (Rule 2) Determination of LR: Question of
fact – decided by court (Rule 5)
● No LR:
● Court appoint officer of court to represent estate of deceased party on application
of other party.
● Representative of estate to be willing and not have any adverse interest in the
estate. (Rule 4-A)
● Duty of Pleader:
○ Death of party – duty of pleader – inform court of death of party representing –
deemed contract between pleader and his party (Rule 10-A)
○ Setting aside of abatement:
○ Plaintiff ignorant of defendant’s death – not applied to bring LR on record within
90 days – suit abated – apply for condoning delay and setting aside abatement –
sufficient cause – construed liberally. (Rule 4(5)
○ State of Haryana v. Chandra Mani AIR 1996 SC 1623.
○ Order refusing to set aside abatement – appealable

Insolvency of Party (Rule 8):

● Insolvency of P - suit not abated - Receiver(or Liquidator) continues suit or decline to
continue suit - def application - court dismisses suit - costs to def from P’s estate.
● Insolvency of D - court stay suit till receiver appointed and continue as LR of Def.
● If P wins then P is Creditor
● Insolvency of plaintiff:
○ Receiver agrees to continue suit – no abatement.
○ Receiver declines – defendant apply for dismissal of suit – court dismiss suit,
award costs to defendant from plaintiff’s estate (Rule 8)
● Insolvency of defendant:
○ No abatement – stay on suit/appeal - suit continues against Receiver / Assignee
(Rule 10)

Effect of Abatement
● No fresh suit/appeal on the same cause of action allowed.
● Remedy – application to set aside abatement
 Assignment of interest (RULE 10)
● Assignment of interest pendente lite - by will or operation of law - leave of court - suit
continued against persons claiming such interest

ORDER XXIII - WITHDRAWAL AND COMPROMISE OF SUIT

WITHDRAWAL OF SUIT
● Kinds of withdrawal:
○ a. absolute (without leave of court) – fresh suit not allowed thereafter (rule 1(1)
○ b. qualified (with leave of court) – fresh suit can be instituted (rule 2)
● Absolute withdrawal not allowed:
○ • Suit by minor / unsound mind plaintiff represented through next friend/guardian
○ • Representative suit
○ • One of several plaintiffs
● Qualified withdrawal – court allow withdrawal on certain grounds:
○ a. Formal defect – any defect which does nto affect the merits of the case. mis
joinder of parties or cause of action; material document not registered
○ b. Sufficient grounds – premature suit
○ c. effect of leave
● Bhoopathy v Kokila AIR 2000 SC 2132
○ It is the right of the parties to withdraw the suit and the court cannot compel them
to proceed with it and wide interpretation must be given to courts.
○ Order allowing or refusing permission for qualified withdrawal – non-appealable,
but revision allowed.

COMPROMISE OF SUIT
● After the institution of the suit, it is open to the parties to compromise, adjust or settle it
by an agreement or compromise.44 The general principle is that all matters which can be
decided in a suit can also be settled by means of a compromise.
● Court can record agreement / compromise and pass compromise decree if: (Rule 3)
○ i. Agreement / compromise
 ○ ii. In writing signed by parties
○ iii. Lawful
○ iv. Recorded by court
○ v. Compromise decree passed by court
● Banwari Lal v Chando Devi AIR 1993 SC 1139
○ If the compromise is not lawful, an order recording compromise can be recalled
by the court.
○ Where it is alleged by one party that a compromise has not been entered into or is
not lawful, it is the duty of the court to decide that question.
● Compromise not allowed without leave of court:
○ • Suit by/against minor through next friend/guardian (Order 32, rule 6)
○ • Representative suit (Order 23 Rule 3B)
● Compromise decree – non-appealable; fresh suit not allowed (estoppel)
● Difference between Withdrawal and Compromise:
○ i. By plaintiff only – By both parties
○ ii. With or without leave of court – With leave of court to be recorded as decree
iii. Fresh suit allowed if qualified – No fresh suit allowed

Interlocutory Application on Commission Section 75 - 78 & Order. 26

Order 26, Rule 2 - Commission is an officer of the court appointed by the court either on
application of any of the parties to the suit of suo moto.
Purpose/ functions of appoint Commission - Sec 75
1. Examine witness ec 76 Order 26 , Rule 1, 3- 5, 7-10
General rule; witnesses must examine in open Court.
➔ If the witnesses is residing outside the jurisdiction of the court
➔ If the witness has to leave the jurisdiction of the court before the date of
examination.
 ➔ If the witness as a government servant and cannot attend without
detriment to public service
➔ if the witness is residing outside India and the evidence of the witness is
absolutely necessary
➔ After witness is suffering from sickness or infirmity of old age
➔ other reasons; pardanashi women, religious vows, danger to life etc.
➔ If there are any other reasons which are interpreted as interest of justice
and expeditious to dispose of cases.
Court can appoint a commissioner to go to the place of the witness and examine - So
Commissioner has to ensure the witness examination by advocates takes place in a duly
manner - deposition of the Witness signed by the witness then submitted to the court -
also submit a report containing commissioner's opinion on the nature of questions asked
by the advocates.
2. To make local investigation - order 26, rule 9, 10
➔ If there are clarification on matter in dispute - like ascertain market value of the
property/ amount of mesne profit/the annual profit/ damages
➔ For this function, the Court appoints a court officer as a Commissioner - after
completing the local investigation, submitting a report to the court - and it is considered
as evidence.
3. To adjust accounts - order 26, rule 11, 12
➔ Mostly in cases filed between principal and agent or between partners - Court appoint a
Commissioner - submit the report to the court.
4. To make partition - order 26, rule 13, 14
➔ Generally in partition suits there will be two Decisions of the court - preliminary decree
and final decree
➔ The preliminary decree is passed by the court - the court will appoint the Commissioner -
this commissioner will make the partition of a property as per the court decision.
➔ The actual division of the property into shares and allotment for parties by metes and
bounds is done by the Commissioner and the Commissioner report - this report will be
submitted to the court -
➔ if there any objection by the parties - then they can file objection and must be heard by
the court - Then Court make the final degree based on Commission report
4. To hold significant/ technical/ expert investigation - order 26, rule 10A
➔ If matters in the suit involve scientific investigation which cannot be conveniently
conducted in court then code can point to a Commissioner - Commissioner could be any
person who is an expert in that particular area - and submit a report to the court.
5. To conduct seal of property - order 26, rule 10 C
➔ It includes movable property which is perishable and nature - so it is necessary to sell the
movable property - to preserve the value of the property - So the court appointed a
commissioner to sell the property - Then the money will be deposited to the court - after
the case is finally decide the money will be given to the party
6. To perform ministerial act - order 26, rule 10 B
➔ Ministerial act refers to minor accounting calculations required for the suit - Which is
necessarily going to take up the time of the court so this work is done by the
Commissioner and will submit a report to the court.

Power of the commission - order 26, rule 16, 17, 18

● The Commissioner can summon parties and witness for examination
● For any of the local or expert investigations the Commissioner can call for and examine
Document.
● The Commissioner can Enter into property at any reasonable time.

★ All the expenses and charges incurred by the Commissioner and the remuneration are
included as cost of litigation.
★ If a commissioner has been appointed on the application of any one of the parties then the
expenses and remuneration must be paid by the applicant.
★ If the court has suo moto appointed the Commissioner then the expense and
remuneration are considered as cost of litigation - then whichever party loses the suit has
to pay the expenses.

IA on Arrest before Judgment

 ● party arrested after decree passed, failed to execute /his property will be attached
● special circumstances, creditor apply for arrest of debtor before decree and
judgment
Grounds of application for arrest before judgment (Rule 1):

i. Defendant absconded or left court jurisdiction, with intent to delay court proceedings or
obstruct/delay execution of decree
ii. Defendant about to abscond or leave court jurisdiction, with intent to delay court
proceedings or obstruct/delay execution of decree
iii. Defendant disposed / removed his property from court jurisdiction, with intent to delay
court proceedings or obstruct/delay execution of decree
iv. Defendant about to leave India under circumstances to obstruct/delay plaintiff in
execution of decree

Procedure:

➔ Plaintiff apply for arrest of defendant, establish that suit bona fide; and possibility
of real damage if the defendant removes self / property from court jurisdiction.
➔ Court issue warrant to arrest defendant and bring him before the Court to show
why he should not be asked to furnish security for his appearance.
➔ Defendant may not be arrested if he pays to the officer entrusted with execution
any sum specified in the warrant to satisfy plaintiff’s claim.
➔ If court not satisfied by defendant, court order defendant to furnish security.
➔ Power to arrest must be exercised after due care, adequate reason has to be
submitted.
➔ Security for appearance (Rule 2): Court has the discretion to determine the
manner in which security has to be produced- deposit in Court money or property/
furnish security
➔ Every surety shall bind himself for non appearence of parties.
 ➔ R.3 surety discharged from the liability- apply for discharge- summon/ warrant
the defendant – direct surety to be discharged- furnish fresh security for not
arresting.

● On failure to furnish security/ fresh security, defendant arrested and detained in

civil prison till decree executed / suit disposed (Rule 4)
● Not more than six months- six weeks [ < Rs.50]
● Plaintiff to deposit subsistence allowance for detention of defendant in prison
(section 57)

No arrest in following cases:

➔ woman in suit for payment of money (section 56)
➔ member of legislature bodies/committee during continuance of meeting
Exemption from arrest -section 135
➔ judicial officer on the way to, from or while presiding in court
➔ Matter is pending before tribunal- parties, pleaders ,witnesses.

Release from detention:

➔ when suit disposed
➔ if security furnished or warrant amount paid
➔ An order passed U/R.2,3 or 6 is appealable
➔ Order U/R.1 is a case decided under sec.115[Revision] and is revisable

Arrest on insufficient grounds[sec.95]

Plaintiff will be asked to pay compensation, not exceeding Rs.50,000/.

IA- on Attachment before Judgment

Grounds for application for attachment before judgment (Rule 5):
i. defendant about to dispose property or
ii. defendant about to remove property from Court jurisdiction,
 ● with intent to obstruct/delay execution of decree which may be passed against
him.

Procedure:
● Plaintiff apply for attachment, specifying the property to be attached.
● If court satisfied, show cause notice issued to defendant to show why he should
not be asked to furnish security.
● If defendant fails to show cause or furnish security, order for attachment of
property (Rule 6)
Modes of attachment (Rule 7):
● same modes as in attachment in execution of decree – seizure, appointing
custodian, prohibition order, garnishee order
● R.9 removal of attachment- when security furnished + security for cost of
attachment/ when suit is dismissed.
● R.10 attachment will not affect the right of strangers/ decree- holders claim
existing prior to attachment.

Property exemption from attachment (Rule 12, section 60):

➔ Agricultural produce in possession of agriculturist
➔ Necessary wearing apparel, cooking vessels, beds of family members
➔ Personal ornaments of religious usage of women
➔ Artisan’s tools, implements of husbandry
➔ Cattle, seed grain of agriculturist
➔ Stipends, gratuities of pensioners of government service,
➔ Wages of labourers, domestic servants
➔ One-third of salary.
➔ Pay and allowances of armed forces personnel
Re-attachment (Rule 11):

Property attached before judgment, decree passed in favour of plaintiff – : not necessary to
apply for fresh attachment of property in execution proceedings
Withdrawal/removal of attachment (Rule 9):
a. When suit disposed
b. If defendant furnishes security
c. On request of plaintiff
d. If decree satisfied
e. If the decree set aside or reversed on appeal.

● Order of attachment before judgment – appeal and revision allowed

● Section 95: compensation for wrongful arrest/ injunction or attachment on
insufficient
● grounds/ suit of plaintiff fails
● 1976-compensation for injury to reputation
● 1999- from Rs.1000 increased to Rs.50,000/-

Raman Tech and Process Engineering [D/A] Co v. Solanki Traders[p/R] (2008) 2 SCC 302

● Suit for recovery of money by the respondents in lower Court

● O.38 application submitted by p for furnishing security and if failed to do so attach
property
● Trail Court dismissed application- [as the cheque particulars are not clear]
● Challenged in revision- Copy of writ filed by defendant was the proof to restrain
defendants from shifting the business- HC allowed the revision- directed ‘d’ to furnish
security-SLP-
● SC- the amount mentioned in notice and cheque is different- no prima facie case is
proved- thus trial Court dismissed the I.A
● HC relied only on shifting of machinery – appeal allowed- set aside HC order.
- IA on Temporary Injunction
● Meaning: judicial process wherein party required to do or refrain from doing particular
act.
● Difference between injunction and stay:
○ Stay: suspension of judicial proceedings
○ Injunction: restraining or directing a person from/to perform an action.
Kinds:
● Mandatory and prohibitory
○ Mandatory - order of judicial authority to do a particular act
○ Prohibitory - order not to do a particular act
● Perpetual (specific relief act) & temporary/interim (CPC Order 39)
○ Perpetual mandatory example - maintenance
○ Perpetual prohibitory example -
○ Temporary mandatory - pay interim amount as maintenance till di
● Ad interim injunction: granted till application for temporary injunction heard and decided
○ Till IA is heard and decided
○ The day IA is decided, the ad interim injunction will come to an end

Grounds
● Property being wasted/damaged/alienated by any party
● Defendant threatens, removes property with a view to defraud creditors
● Defendant causes injury to the plaintiff in relation to any property
● Court may order temporary injunction
● Injunctions –temporary and perpetual injunction
● Temporary injunctions are regulated by rr.1 & 2 of O.39
● Perpetual injunction is granted by specific relief Act,1963[sec.38].
● Perpetual injunction is granted by a final decree.
● Temporary injunction is granted on an interlocutory application, it has a validity only till
the further orders of the Court
● In issuing temporary injunction the test to be applied is ( Triple test ) :

1. whether the plaintiff has a prim facie case?

2.whether balance of convenience is in favour of the plaintiff?
3.whether plaintiff will suffer an irreparable injury if his application is not
allowed?
Dalpad kumar [A/d] V. prahlad Singh [R/p],(1992)1SCC719

● Suit for injunction and dispossession by P/R.

● Sale deed by d and third party
● Trial Court- dismissed/ HC allowed and granted injunction as it is a joint family
property
● SC- set-aside HC order and trial court order is confirmed
1.Injunction orders are for maintaining the status-quo
2.Court’s interference is for protecting parties
3.There is a serious question to be tried in Court

Court has the power to grant ex parte order.

The factors which should be weighed for grant of ex parte injunction are:
1. whether irreparable mischief will ensue to the plaintiff
2.the time at which p olaintiff first had noticef the act
3.whether application is made in utmost good faith
4.ex-parte order even if granted will be for a limited period of time
5. General principles like prima facie case , balance of convenience and irreparable loss
would also be considered by the Court.

● Plaintiff and the defendant can apply for injunction.

● The discretion vested in the Court has to be exercised reasonably , judiciously and on
sound legal principles.
● Applicant should make out prima facie case in support of the right claimed by him
● Applicant must further satisfy that he will suffer irreparable injury if the injunction
prayed for is not granted.[Injury cannot be adequately compensated through damages].
● The balance of convenience should be in favour of the applicant.
● Court has the power to restore the status Quo ,if it has done injustice.
● R.3 before granting injunction give notice to the opposite party, except if it appears that
object of granting injunction would be defeated by delay.
● Court has the power to grant ex parte injunction without issuing notice.
● An order granting or refusing to grant injunction is appealable[O.43,r.1(r)] & revision
under sec.115 lies against an order.
● Injunction on insufficient grounds-plaintiff to pay compensation[sec,95]

IA on Appointment of Receiver - Order 40

Meaning of receiver
Receiver is the person to receive money of another gives to a third person
a person who is independent or impartial - appointed by a judicial authority - who has to
preserve property during the proceedings.
Procedures
➔ The parties have to submit a written interlocutory application
➔ The object is to preserve the disputed property in the hands of the opposite party
and safeguard interest of the parties
➔ If any expenses incurred by the receiver and the remuneration of the receiver must
be paid by the applicant who is seeking the appointment of receiver.
This amount is considered as the cost of litigation and if the applicant wins the case
then the losing party will have to pay the cost of litigation.
Factors to be considered for appointing receiver
● It is the discretionary power of the court - to exercise to prevent harm
● A protective relief - exercised as an exception
When the court satisfied that the disputed property was wrongfully used by the opposite party
- then pointer receiver
● The applicant who seeking appointment of receiver how to prove they are with clean
hands/ any ulterior motive of causing harm to the opposite party
● If the court appoints receiver- then the opposite party aggrieved by the Order - then the
opposite party can file an appeal against the order to the appeal and court.

Duties of receiver Rule 1, 3

● If there are any cases relating to the property which has already been filed and must be
defended then the receiver now in charge of this property must file a suit for that property
with the permission of a court.
● Manage and preserve the property
● power to collect rent from the property - also have the power to to store the rent collected
from the property
● execute document relating to the property
● recover any debts incurred for properties from party as decided by the court
Duties and liabilities of the receiver - rule 3, 4
● Exercising the same standard of care as a prudent person for their own property.
● if the court has any doubts related to the capacity of the receiver - Court may order to
furnish the security - the receiver failed to do so then the court can remove the receiver
● Submit all the accounts related to property to the court
● the receiver must discharge all these duties personally and cannot delegate any of the
duties to a third person
● if property is damaged while in custody of the receiver - due to the negligence - then the
receiver is liable to pay compensation fixed by the court

Maharaj Jagat Singh Vs Lt Col Sawai Bhawani Singh

SB Industries Vs United Bank of India

Interest and Cost

Interest Sec 34
Compensation paid by law to person prevented from using entitled amount
Three stages where interest accrues
1. Before the suit filed by the plaintiff
2. from the date of suit till date of decree
3. from the date of decree till date of actual payment
● Interest rate before suit instituted - That rate is decided between the contracting parties -
if the contract is silent then it is decided as per the bank rate fixed by RBI
● interest rate pendente lite - It is decided by the court and it is a reasonable rate
● interest rate from the date of the degree till payment - court discretion
Superintendent engineer Vs Subba Reddy
The rate of interest from the date of decree till the date of actual payment challenged because
it was related to Commercial transaction
SC held - the contract or decree is silent about the rate of interest then the court should be
guided by the rate of interest fixed by the Reserve Bank of India based on nationalised
bank loans rates for similar transactions.
Cost - Section 35, 35A, 35B, Order 20A, Order 25
Kinds
1. General cost - section 35
Object - It is to secure expenses incurred in litigation - it is not to punish the judgement
debtor or create profit for the plaintiff.
The amount of general cost is fixed by the discretion of the court - based on sound judicial
principles and Fact and circumstances of the case.

2. Compensatory cost - Section 35 A

Object; this an exception to general rule - The cost is not with the object of penalizing the
party- the compensatory cost is imposed on the plaintiff - to punish the plaintiff for
filing vexatious, frivolous litigation.
Maximum amount - 3000 Rs
if the plaintiff is agreed by the decision on compensatory cost of the court - can appeal
3. Cost for causing delay - section 35 B
Object; to prevent delaying tactics of litigating party
It can be imposed on the plaintiff and defendant.
It is possible that if the degree is in favour of the plaintiff but the court has found the plaintiff
guilty of unnecessary delaying - then the court orders the plaintiff's to pay the
defendant. It was held in Ashok Kumar vs Ram Kumar
4. Miscellaneous cost - Order 20 A
Cost for certain expenses - giving notice, typing charges, inspection of records, obtaining
copies etc
These are fixed amount and small amounts

Security for cost - order 25

court orders the plaintiff to deposit certain amount as security for payment of cost which
may be incurred during the litigation by the defendant if;
● Plaintiff resides outside India
● Plaintiff has insufficient immovable property in India
●

- Judgment, Decree, Order

JUDGEMENT

● Meaning: Statement of the grounds/reasons for decree or order (section 2(9)

● Importance: Section 33
● Order 20 Rule 1-5: Content, place, time, mode of judgment
● Judgment to contain:
○ signature of judge;
○ date of pronouncement;
○ brief statement of facts and issues;
○ findings/decision of court on each issue
● Judgment to be pronounced in open court – maximum 60 days from conclusion of
hearing
● If judgment in written form – only points of judgment to be read in open court
DECREE

● Meaning: section 2(2):

○ • formal expression & written
○ • adjudication
○ • determination of rights of parties
○ • matters in controversy in suit
○ • conclusive and final
● Content of decree Order 20 rules 6-20:
 ○ • number of suit; names description of parties
○ • specific relief granted
○ • costs to be paid
○ • date of decree and pronouncement of judgment
○ • signature of judge
● Kinds of Decrees:
○ i. Preliminary decree – Order 20 rule 13, 15, 16, 18
■ Phoolchand v Gopal Lal AIR 1967 SC 1470;
■ Renu Devi v Mahendra Singh AIR 2003 SC 1608
○ ii. Final decree
○ iii. Compromise decree – Order 23 rule 3
○ iv. Deemed decree – rejection of plaint; restitution under Section 144

ORDER

● Section 2(14) - Formal expression of any decision of civil court which is not a decree.
● Difference between Decree and Order:
○ i. section 2(2) - section 2(14)
○ ii. conclusive determination of substantive rights of parties – temporary
determination of rights of parties
○ iii. preliminary or final - final only
○ iv. appealable unless prohibited – non-appealable unless permitted
○ v. Second appeal in certain cases - No second appeal

UNIT - 6 : SPECIAL SUITS

 (Mortgage Suits as well)

Party is special or nature of suit is special (not right in personam ideally) -- something
additional in the procedure in the suit (90% procedure will be identical to normal civil
suits and the 10% will be different/additional)

Suit Against Govt. -- Section 79-82 r/w Ord.XXVII

● BBMP, RBI, HAL, BHEL, State Govt, SIB, SBI, etc

● Cause Title -- Plaint filed under s.26 r/w s.79 and Order 27 and Order 7 Rule (1)
● Against Govt itself or public officer (w.r.t act done in official capacity)
● Procedure:
○ Title of Suit - Sec.79: Central Govt - UoI; State Govt - State of ________; Public
Officer + Govt (Department of the Public Officer)
■ Ex: ABC vs. (Name of Chairman of SAIL) and SAIL
○ Notice to Govt - Sec.80:
■ Mandatory 2 months notice to govt before filing suit
■ Object - Sufficient time, opportunity to Govt to resolve dispute with P
before litigation.
State of Punjab vs. M/s Geeta Iron and Brass Works Ltd 1978 (only
relevant for theory || no problem based question)
■ Importance:
Suit without notice (or even prior to 2 months) - rejection of plaint
u/O7R11 (barred by any law - sec.80 CPC)
Rejected on technical grounds - decision of the court would not
amount to res judicata -- P can always go back and file a fresh case
○ Bihari Choudhary vs State of Bihar 1984
[ declaration of title & possession]- send notice – filed suit
before limitation.Officer will get an opportunity to
scrutinize the claims, to take immediate action and avoid
unnecessary litigation & for advancement of justice. Trial
Court to SC- dismissed ,as the suit is premature
○ Exception:
■ Urgent relief with leave of court -- have to tell the court as to what might
happen if 2 month wait is applicable
Harish Chandra Pvt Ltd vs Corp Bank

■ Waiver by government, if there was no proper objection raised by the

government expressly or impliedly, on terms regarding the mandatory
notice, then it will be allowed without the mandatory notice, no rejection
os plaint.
○ Contents of Notice: No specific form is prescribed in the code.
 ■ Names, description, address of parties
■ Cause of action
■ Relief Claimed
■ Defecet (mistakes) in content of notice -- not a ground for dismissal

The suit will be maintainable,a mere defect in the content of the notice won't amount to
dismissal; all these objections won't be upheld.

Suit Against Public Officer:

The court stated, it doesn't matter whether the officer is a temporary or permanent employee,
all that matters is the cause of the action, the notice should be sent.

Limitation:

● (not barred - 2 months to be added) s.80CPC r/w s.12 Limitation Act

● Period of Mandatory notice (2 months) to be excluded from the limitation period.

Sec.81 – Suit against public officer exemption from arrest –

● Arrest and attachment in EP[ can be initiated]

● personal appearance can be exempted, if the public service will be affected if the
authority is absent from the service.
● EP should be filed after 3 months from the date of decree.

Suit by or against Foreign State, Ruler, Ambassador: Sec 84 - 87 A (IMP)

● Sec 87 A - definition of foreign state, Ruler; state/head of state outside India, recognised
by Central Gov.

1. Suit by foreign State, Ruler - sec 84

➔ It is clearly mentioned under S. 84 that a foreign state or a foreign ruler can file a civil
case in Indian civil court against an Indian to enforce private rights which are vested in
the foreign ruler in official capacity.
➔ Foreign state/ruler cannot file a civil case with respect to political or territorial right - it
can only be decide by H.C/ S.C/ specially established tribunals
➔ The India Gov. must cooperate with the foreign ruler/state to ensure relation between
India and foreign states.
➔ Sec 85 states if the foreign state/ruler requests the Central Gov. - then the Gov. can
nominate an advocate to prosecute/defend on behalf of the foreign state/ruler.

2. Suit against Foreign, State, Ruler - Sec 86

If an Indian (natural/juristic) wants to file a regular civil suit against the foreignt state/ruler.
➔ The additional procedure that has to be followed is distinct from a regular civil case -
such a suit against the foreign ruler can be filed only after the plaintiff has obtained the
prior consent of the Central Gov.
➔ The Gov. will grant the permission to file a regular civil case against foreign rulers if
any one of these conditions are taken place:
(a) Foreign state has sued applicant in court earlier
(b) Foreign state trades within court jurisdiction
 (c) Foreign state has possession of property in Indian court jurisdiction & is to be
sued related thereto
(d) Foreign states have graciously waived the privilege of protection from litigation
in India either expressly or impliedly.
➔ If the plaintiff directly filed the suit against the foreign ruler without prior permission
from the Central Govt. Then the plaintiff will be rejected under the Order 7 Rule 11 and
the plaintiff will also not be able to file a fresh suit without the permission of the Gov. -
Rejection of plaint does not act as re judicata so fresh suit can be filed only after taking
permission form the Central Gov.
VDS Rostok Dep of Germany Democratic Republic Vs NC Jute Mills Co. Ltd AIR 1994
NC Jute Mill Co. a company registered and operating in India and entered into a commercial
transaction with VDS Rostok. VDS, a company governed by Germen Gov., entered into a
commercial transaction and there arose a legal dispute relating to breach of this
commercial contract for which the Indian Comp. wanted to file a suit against VDS
Rostok.
They directly filed the suit without the prior consent of the Central Gov. Therefore the plaint
was rejected. After obtaining the consent of the Central Govt. a fresh suit was filed.
VDS Rostok was considered as a Foreign state because it was owned and controlled by
foreign Gov.
➔ The Central Gov may reject or refuse consent to sue - The reason for the refusal
must be notified to the applicant - Vague reason of diplomatic relation is not
sufficient.
Shanti Prasad Agarwal Vs Union of India
USSR consulate leased property from the appellant - failed to evict the property and
violated the terms of the lease agreement. Shanti Prasad Agarwal applied to the
Central Gov. for their permission of suit for eviction and damages against the
USSR consulate - The Central Gov. refused to give permission simply citing a
reason of political grounds.
He filed an appeal for the refusal to grant permission - whether it’s on valid grounds
or not?
S.C held political grounds are not sufficient reason for refusing to grant permission
★ No arrest - sec 86
If the Central Gov. does give permission and suit is filed - arrest cannot be sort
➔ Ruler, Ambassador, High Commissioner of Commonwealth Nation, Staff members of
these
➔ No arrest before judgement or during execution proceedings
★ Execution - Sec 86
➔ After the final decree has been passed against the Foreingn state - if the decree holder
wants to file an execution against the foeign state - then they should apply for prior
permission of the Central Gov.

Suit by / against Minor/Lunatics – Order 32

Enacted to protect the interest of minors and persons of unsound mind

To ensure that they are represented by persons who are qualified to act as such
Suit by minor/person of unsound mind – rule 1, 2, 2A through guardian/next friend – if not,
plaint removed from court record by defendant/ pleader
guardian to furnish security to discourage vexatious litigation- on the basis of cost to be
incurred by the defendant.

Suit against minor/person of unsound mind - rule 3, 4

Guardian to be appointed by Court [ suit against minor]
R.4 any person who attained majority/is of sound mind may act as a guardian/next friend
provided his interest is not adverse to that of minor.

Powers and duties of guardian (Rule 5,6,7)

● cannot receive amount/movable property on behalf of minors under decree or order.

● Continue till appeal/decree/ execution/ revision
● Application should be accompanied by an affidavit of the next
● friend or guardian
● without leave of court:-
1. cannot enter into compromise/agreement on behalf of minors.
● compromise/agreement by guardian without leave of court – voidable at the instance of
minor.
● Court grant leave –for the benefit of minor – order furnishing security to protect property
from waste
● Court to ensure proper application by guardian
● Court may remove next friend:
1. his interest is adverse to that of minor
2. he is so connected with opposite party
3.he does not discharge his duty
4.he ceases to stay in India during pendency of the suit

Keshav Das Tulshan [petiitoner/d] v Jagadish Prasad Tulshan [Plaintiff/R]AIR 1973 Cal.
83

Suit instituted against insurance company and Keshar Das tulshan Mother was appointed as
next friend - After attaining majority submitted application for discharge of next friend
Decree in favour of minor EP –filed-objection-
Whether a decree passed in absence of a minor being represented by a guardian is valid or
not ?
Court rejected
● Suit by minor without guardian / next friend – decree for / against minor - not null
● Court has discretion , depending on facts and circumstances of the case.
● Stay in case of retirement/ death of a guardian- till a new person is appointed. After
attaining majority- can ask for dismissal of suit- paying cost incurred to the opposite
party. - Next friend can be discharged after attaining majority.
 Attainment of majority (Rule 12-14)
➔ continue suit – apply for discharge of guardian – proceed in own name
➔ abandon suit – apply for dismissal – costs to defendant/guardian
➔ apply for dismissal – ground – unreasonable/improper – no costs
➔ if co-plaintiff, apply to strike out name – court dismiss if not necessary party – court
make minor defendant if necessary party

Suit by / against Partnership Firm – Order 30

● Suing of partners in name of the firm

Rule 1 provides the basic idea of nature which the provisions of Order 30 seek to establish. It
states that two or more persons who are liable to be partners can sue or can be sued in the
name of the firm in which they were a part when the cause of action occurred.

● Disclosure of Partners’ name

Rule 2 of Order 30 provides that, when the partners sue in the name of the firm, the
defendant may in writing demand for the disclosure of the names of the partners of the
firm with their places of residence. The rule states that the suit shall proceed in the name
 of the firm but the decree passed by the court shall constitute the names of all the
partners.

● Service

Rule 3 of the Order deals with the way of service of summons on the partners of the firm, and
provides that the service shall be made either;

i. upon any one or more of the partners, or

ii. at the principal place where the partnership firm is conducted upon the person who at
that time is in charge of the management of such place as directed by the court
irrespective of the fact whether or not at that time any of the partners are in India.

However, if the Partnership of the firm has been dissolved and the plaintiff was aware of it,
service of summons shall be made on the persons who are available in India at that time
and who are sought to be made liable.

● Rights of suit on death of partner

Rule 4 provides for the consequences upon the death of a partner. It states that before the
institution of the suit or during the pendency of the suit if the partner dies it shall not be
necessary to include the legal representative in the suit. However, this shall not limit or
affect any rights of the legal representatives of the deceased which may have;

i. application to be made a party to the suit,

ii. enforcement of any claim against the survivor or the survivors.
Suits & Appeals by Indigent Persons – Order 33, 44

Intended to enable indigent persons to institute and prosecute suits without payment of
court fees

● Indigent person: (Rule 1)

● no sufficient means to pay fees prescribed by law for plaint or
● no fees prescribed by law but not entitled to property worth more than Rs. 1000/-
● Allows him to continue his suit if forma pauperis.
● Property exempt from attachment and the subject matter of the suit should be excluded.

Procedure:

➔ indigent person to apply for leave of court – rule 2

➔ Application should contain
➔ Particulars of the suit, schedule of the movable/immovable property
➔ Signature and verification
➔ order inquiry/investigation – rule 1A[by chief ministerial officer of the Court]
➔ The suit commences from the date of filing application for forma puparis
➔ Can be submitted by applicant/ agent[R.3]
➔ R.4 – application in proper form and duly presented- examine the applicant/ agent- merits
of claim and the property of applicant/ commissioner in case of agent

Rejection of application[R.5]

➔ Application not framed properly

➔ not an indigent person,
➔ if applicant has within two months disposed of any property fraudulently
➔ No cause of action
➔ if applicant has entered into an agreement with reference to subject matter of the suit for
interest
➔ suit appears to be barred by law

● court issue notice to opposite party & government pleader – rule 6,

● R.7- examine parties and witness- allow/ refuse if allowed – plaint admitted, pleader
assigned - rule 8,
● R. 9 [ withdrawal of permission to sue as an indigent person –for vexatious claims
,improper conduct, he has sufficient means,/If he entered into an agreement with another
person and obtained interest In subject matter of suit.
● R.9 A assign pleader to an unrepresented indigent person- Court/ HC & state Govt. Fix
rules
● court fees to be paid before admission of plaint.R.15-15A

Revocation of permission: (Rule 9)

i. vexatious/improper conduct during trial; or

ii. sufficient means and ought not to continue as indigent; or
iii. agreement with third party transferring interest in subject-matter of suit

Qualified withdrawal of suit by indigent plaintiff – leave to sue as indigent not granted for
subsequent suit.

Recovery of court-fees (Rules 10, 11, 11-A, 14)

➔ If indigent person succeeds – State recover court fees, costs as first charge on subject
matter of suit from judgement-debtor.
➔ If indigent person fails / permission to sue as indigent person is withdrawn/ dismissed–
State recover Court fees, costs from judgement-debtor[indigent person]/ if plaintiff / co-
plaintiff
➔ If suit abates – State recover court fee from estate of deceased plaintiff. [R.11.A]

➔ R. 12: state Govt. may apply for payment of Court fees

➔ R.13 state Govt. to be deemed as a party under sec.47[ question to be determined by the
Court executing decree.
➔ R.14 recovery of the amount of Court fee- decree forwarded to collector- will recover as
land revenue.
➔ r.15 refusal to sue as indigent person- bar subsequent application of like nature
➔ R.17 defendant allowed to sue as indigent person in counter claim and set-off
➔ R.18 power of govt. to provide free legal service to indigent person.

Appeals by indigent person: (Order 44)

Apply to appeal as indigent person – same procedure as Order 33
If a person filed suit as an indigent person – appeal as indigent person – affidavit to continue
as indigent person – no fresh inquiry required.

Union Bank of India [D/A] v Khader International Construction[p/R] AIR 2001 SC 2277

R filed suit and sought permission to sue as indigent person A- objection as p is a company ,
not a natural person , hence can’t claim exemption under O.33,r.1- Allowed to sue
indigent person- A filed revision – dismissed
SLP- refers to person who is capable of filing suit, hence appeal rejected.

Interpleader Suit – Section 88 Order 35

Meaning/ Conditions for Interpleader Suit Section 88

➔ Some property in dispute - property could be movable /immovable
➔ 2/more person claiming right over property adverse to other
➔ Property is in possession of plaintiff
➔ plaintiff not disputing own liability to pay/deliver property & willing to pay / deliver :
Plaintiff themself are not claiming any adverse right over the property
➔ No suit pending between rival claimants relating to disputed property:
The parties who are making adverse claim over the property do not have any pending suit
already with respect to that property.

National Insurance Co. Ltd Vs Dhirendra Nath

Calcutta H.C judgement
D borrowed/taken a loan from National Insurance Company - security of this loan was the
title deed of immovable property - this title deed was deposited with the insurance Com.
as the security for the loan. - D repay the debt - before the Insurance Com. could
discharge the debtor and return the title deed of the property if a 3rd party approaches the
insurance company. And claim that they are the rightful owner of the Immovable
property and the title deed should be handed over to them.
● The insurance Com. filed an interpleader suit against the defendant No. 1 as the D and
3rd party as defendant No.2. - suit submit to the civil court stating that they are in
possession of title deed of this property and they are not claiming any right of ownership/
possession over this property - they are ready and willing to handover the title deed to the
rightful owner but they are not sure of who is the rightful owner who can take possession
of this title deeds.
● NIC filed interpleader suit +Deposit the disputed title deeds in the court then = court will
discharge the insurance Com. of their liability.
● Suit will then continue as against defended No.1 and No.2
● Why insurance Com. filed an interpleader suit? They can be legally and validly
discharged by a court of law with respect to their liability over that property. In future
defended No.1 and No.2 will not raise any claim against the Insurance Com.

Interpleader suit not allowed in :

● Dispute by tenant against landlord
If a 3rd party approaches the tenant claiming that they are the rightful owner of the rented
property and the tenant should pay the 3rd party - then the tenant could not file an
interpleader suit in a civil court against the landlord and 3rd party. - so the tenant should
continue paying the rent to the landlord whom they enter into a rent agreement with.
● Dispute by agent against principal
P delivers jewele to K , P’s agent - X claim right over jewels - K cannot file interpleader suit
against P & X - K liable to P as P’s agent
Duraiswami Chettiar Vs Dindigul Urban Co-op Bank

Procedure (Ord 35)

1. Plaint to state:
The interpleader suit file - the palint should contain certain additional
➔ Plaintiff has no legal interest/claim in the disputed property
➔ No collusion between plaintiff and defendants
➔ Plaintiff to be ready and willing to deliver property to court
➔ On the delivery by Plaintiff in court - plaintiff discharged from all liability.
➔ Suit continue between co-defendants

Summary Suit - Order 37

Object: It is expeditious disposal of money suits

Summary procedure for suits relating to:
➔ Bills of exchange, hundis, pronotes
➔ Recovery of debt/liquidated amount based on written contract or statute
Procedure (Rule 2, 3) :
➔ Application by plaintiff to sue as summary suit
Plaintiff filing summary suit along with the plaint must file an interlocutory application
seeking the permission of the court to file the suit as a summary suit.
Plaint filed under sec 26 r/w Order 7 Rule 1 and order 37 rule 1 of CPC
➔ If conditions fulfilled, court allow & issue summons to defendant for appearance without
right to defendant (not entitled to file WS)
The court will check based on the application whether the suit relates to recovery of money
of a fixed amount based on a written contract or based on a written statute. Only if
the court is convinced with these 2 conditions then will the court allow the suit to proceed
as a summary suit. - Then issue the summons - but its different than the regular suit - the
summons to the defendant is 2 fold -
(a) It order the defendant to appear in court
(b) It informs that a summary suit has been filed against you which means the defendant does
not have an inherent right to defend. (defendant cannot file a written statement as a matter
of right in a summary suit)
➔ Defendant to apply for leave to defendant (file WS)
If the defendant wants to write a written statement then on the 1st date of appearance itself
the defendant must apply to the court - the court will allow the defendant to file a written
statement .
➔ If defendant files to apply or application rejected by court - plaintiff entitled to decree &
judgment
The court will allow the defendant to file the written statement only if the court is convinced
by the defendant that there are substantial issues which must be framed and decided by
the court to be able to effectively decide and dispose of the suit.
➔ Court allows defendant to file WS if : plausible triable issues raised by defendant
If the court is not convinced with the argument of the defendant and the court thinks that this
suit can be decide without framing any further issues of law, the court will refuse
permission - based on the plaint file by the plaintiff and the oral argument produced by
the defendant then the court will decide the final decide the summary suit.

VK Enterprises Vs Shiva Steels

The court allowed the defendant to file the written statement in a summary suit only after
been satisfied that there are substantial triable issues of law to be decide before the suit
can be effectively dispute
 UNIT 7 : Appeals, Revisions, Reference and Review

INTRODUCTION

● Appeal is a judicial examination of the decision of a lower court by a higher court -

Nagendra Nath Dey v. Suresh Chandra Dey 1932 PC

Appeal
3 essentials
1. Must be a decision by judicial/administrative authority
2. Must be aggrieved person - not necessary that he must be a party to the original
proceeding
3. Must be a reviewing body, ready and willing to entertain such appeal
● Right to appeal not an inherent power but R. to file suit is
● It is a substantive right

● Substantive right and not merely a procedural right

The right to appeal is a vested right. The right to appeal is a substantive right and an appeal is
a creature of statute and there is no right of appeal unless it is given clearly in express
terms by a statute.It accrues to the litigant and exists as on and from the date the lis
commences and although it may be actually exercised when the adverse judgment is
pronounced. (s. 96) The right of appeal is to be governed by the law prevailing at the date
of the institution of the suit or proceeding and not by the law that prevails at the date of
its decision or at the date of the filing of the appeal. This vested right can be taken away
only by a subsequent enactment if it so provides expressly or by necessary implication,
and not otherwise.

● Types

○ First Appeal → from court of first Instance to first appellate Court

 ○ Second appeal → from first appellate court to high court

○ Appeal to Supreme Court from High Court

○ Special Leave Petition to the Supreme Court

FIRST APPEAL (Section 96 – 99A, Order 41)

● Who can appeal:

- Aggrieved party to suit;

- LR of aggrieved party to suit;
- Person claiming under party to suit (transferee/assignee);
- Court-appointed guardian of minor;
- Any other adversely affected by decree with leave of court

● When can 1st Appeal be filed:

- After passing of a judgement and decree -- can be filed after prelim decree and before
final decree
- Within limitation period under limitation act
- In 1st appeal parties have a right to be heard on both question of law and facts and
decided by giving reasons for the findings
- Jurisdiction of the Court to decide the matters is given by the legislatures
- Duty of the lowest appellate court to decide the entire evidence afresh, take notes of the
grounds and give reasons
- No litigant possesses any natural or inherent right to appeal
- An appeal does not arise on the findings of the case, the findings have to be changed to a
decree/order - before one can proceed for appeal.

● Where can 1st Appeal be filed:

➔ An appeal shall be filed before the court authorized to hear appeals from the decisions of
a court exercising original jurisdiction
➔ s.96 CPC r/w Civil Courts Act

● Grounds to 1st Appeal

➔ Decree of trial court

➔ Judgement of trial court on any issues of fact or law
➔ New grounds for claim/defence not allowed to be raised in appeal

Shreevastava v Veena 1967 SC (SC did not allow new ground to be raised at appellate stage
when it has not been argued in the HC or lower court)

Chittoori Subanna v Kudappa Subbana 1965v SC

Appellate court not confined to grounds of objection in the memorandum of appeals only

● Appeal not allowed against: (s.96)

- Compromise decree;
- Decree in suit of value less than Rs. 10,000;
- Final decree if preliminary decree not appealed (Sec. 97 - Where any party aggrieved by
a preliminary decree does not appeal from such decree, he shall be precluded from
disputing its correctness in any appeal which may be preferred from the final decree. )

● Procedure of First Appeal (Order 41)

Memorandum of appeal filed by appellant in prescribed form

■ Memorandum to contain:
- grounds of objections under distinct heads;
- copy of judgment and decree
- memorandum not to contain new grounds not raised in suit
- signature of party & pleader.

Shreevastava v Veena AIR 1967 SC 1193

○ Limitation:
 ■ to High Court 90 days from date of decree;
■ to any other court 30 days from date of decree
○ If memorandum not in prescribed form
■ return or rejection of memorandum (rule 3)
○ Application for condonation of delay [R.3A]
■ Appeal after the expiry of period of limitation - must file:
Memorandum of appeal + application for condonation of delay + affidavit. Then
Notice served to the respondent. Finally decided on the basis of evidence.

○ If no prima facie substance in decree or if appellant fails to appear

■ summary dismissal of appeal with reasons (rule 11, 11A)
■ Reasons recorded
Ajit Kumar Singh v Chiranjibi Lal AIR 2002 SC 1447 - the appellants were defendants
in an eviction suit. The suit was decreed and the first appeal was dismissed. When the
second appeal filed came up for hearing, none was present on behalf of the appellant.
The second appeal was dismissed on merit.

○ If prima facie grounds for appeal

■ appeal admitted (rule 12), hearing date confirmed and notice to
respondent informing about date, through service of summons (rule 14)
■ Notice to trial court whose decree is challenged in appeal
○ Non-appearance of appellant
■ appeal dismissed for default (rule 17);
○ non-appearance of respondent
■ appeal proceed ex-parte (rule 21)
○ Respondent file objections and cross-objections (rule 22) - 30 days
○ Cross-objections (rule 22)
■ Objection to memorandum of appeal and Objection to original decree
also on different grounds
■ Example: X filed money suit against Y for Rs.10L - trial court decreed
suity to X, ordering Y to pay Rs.6L - X files appeal against decree on
 ground that Rs.10L ought to be awarded - Objection by Y against X’s
Appeal (Rs.10L) and Cross-objection against decree (Rs.6L)
○ Pannala v State of Bombay AIR 1963 SC - The wide wording of O. 41, r. 33
empowers the appellate court to make whatever order it thinks fit, not only
as between the appellant and the respondent but also as between a respondent
and a respondent. It could not be said that if a party who could
have filed a cross-objection under O. 41, r. 22 did not do so, the appeal court could
under no circumstances give him relief under the provision of O. 41, r. 33.

○ Oriental Insurance Co. Ltd. v. Usha Gopalkrishnan AIR 2005 NOC 144

● Powers of Appellate Court: (Section 107, Order 41 Rules 23-33)

(1) Power to remand

- Power to remand [re-admit the suits under its original number and proceed to
determine the suit] (rule 23, 23A, 26A [order of remand has to mention date of next
hearing)
- Exceptional power - appellate court remands case to trial court for retrial
- Same O.S.No

■ Conditions for remand:

● Decree of trial court set aside/reversed as erroneous decree

● Original suit disposed on preliminary points on retrial necessary

in opinion of appellate court

Ashwin Kumar Patel v Upendra Patel 1999 SC

Ayyapalli Mohd Haji v Abdul Salam AIR 2001 SC 797

(2) Power to frame issues and refer for trial to lower court

■ s.107(1)(c) r/w R.25,26

 ■ Trial court omitted to frame/try issues essential for deciding dispute

■ Appellate court frames issues and refers to lower court for their trial

■ Rallis India Ltd. v. Lakshmi Kanthan AIR 1976 SC 2330

(3) Power to take additional evidence

■ s.107(1)(d) r/w R.27-29

■ General rule - parties cannot produce additional evidence in appeal

■ Exception:

● If lower court refused to admit evidence in trial that ought to

have been admitted

● If party proves evidence not to be within knowledge despite due

diligence during trial

● If appellate court requires evidence to pronounce judgement or

any other sufficient cause

■ Modes of taking additional evidence in appeal Rule 28

● By appellate court itself ot direct trial court to take evidence and

report to appellate court

■ Narayan Reddy v Duggireddy AIR 2001 SC 3685

It was held:

- Amendment of pleadings should be liberally allowed, unless it is established that the

result would cause such injustice and prejudice against the opposite side as could not be
compensated by costs or as would deprive him of a right accrued due to lapse of time.
- If a right accrues in favour of a party, as the order impugned has not been challenged in
time, the said right cannot be taken away by seeking amendment in pleadings.
(4) Power to decide case on different grounds

■ s.107(1)(a) r/w R.24

■ Decide case after resettling issues - distinct from grounds relied on by

trial court. If evidence on record is sufficient appellate Court may
determine case finally;

(5) Power to pass any order/decree (rule 33);

■ Power to modify decree - Rule 33

■ Pass any order or decree

■ Modify decree of trial / set aside or overrule decree of trial court

■ On issues not challenged by parties in appeal

■ On cross-decrees, even if other decree not challenged in appeal

(6) Power to stay proceedings of lower court (rule 5, 6)

■ Filing appeal not automatically stays execution proceedings

■ Appellate court to expressly order stay

(7) Power of summary dismissal of appeal (rule 11, 11A)

■ Rule 11 and 17

■ Appeal not in prescribed form

■ No substance prima facie

■ Appellant fails to appear on date of hearing

(8) Other powers of court of original jurisdiction - Appreciate the evidence, add/substitute
parties, permit withdrawal of parties, amendment in pleading
 Duties of appellate court

1. to decide appeal finally

2. not to interfere with decree for technical errors

3. duty to appreciate evidence

4. duty to record reasons

Jagadish Singh V.madhuri devi,(2008)10SCC497 [divorce on cruelty]

The appellate Court has to consider the reasons recorded and conclusions arrived at by the
trial Court. The appellate court can come into its own conclusion if the reasons which
weighed with the trial Court or conclusions arrived were not in consonance with law.

SECOND APPEAL (Section 100-103, 107, 108, Order 42)

● Sec.100 - appeal from decree passed in appeal by court lower than HC

● First appellate court lower than HC - appeal against order of 1st appellate court to HC
as 2nd appeal

● Limitation - 90 days from date of 1st appellate court’s decree/order

● If HC satisfied - case involves substantial question of law - 2nd appeal is admitted

● Substantial question of law:

Substantial Question of Law means a substantial question of law as between the parties in the
case involved. A question of law is a substantial as between the parties if the decision
turns one way or the other on the particular view of law. If it does not affect the decision,
it cannot be said to be a substantial question of law.
 ○ Conflicting judicial decisions

○ Non-consideration of relevant evidence

○ Consideration of irrelevant evidence

○ Misconstruction of evidence

○ Misrepresentation of material facts

○ Hero Vinoth v Sheshamal

It was laid down that a question of law having a material bearing on the decision of the case
(that is, a question, answer to which affects the rights of parties to the suit) will be a
substantial question of law, if it is not covered by any specific provisions of law or settled
legal principle emerging from binding precedents, and, involves a debatable legal issue.
A substantial question of law will also arise in a contrary situation, where the legal
position is not clear, either on account of express provisions of law or binding precedents.

○ Major singh v rattan singh 1997 SC

● Non- substantial question of law

○ Concurrent findings of trial court and 1st appellate court

○ Questions settled by SC

○ Improper reasoning of trial court

○ Kanti Devi v Poshi Ram 2001 SC

○ Chunnilal v Century Spinning and Manufacturing co 1962 SC

Test laid down to determine whether a substantial question of law is involved are:

- Whether directly or indirectly it affects the substantial rights of the parties;

- Whether the question is of general public importance;
- Whether it is an open question in the sense that the issue has not been settled by
pronouncement of the highest court in the land;
- The issue is not free from difficulty; or
- It calls for a discussion for alternative view.

If the question is settled by the highest court or the general principles to be applied in
determining the question are well settled and there is a mere question of applying those
principles or that the plea raised is palpably absurd, the question would not be a
substantial question of law

● Essentials: (Section 100)

○ to High Court only

○ from decree in appeal by subordinate court

○ substantial question of law

○ Hero Vinoth v Seshamal AIR 2006 SC 2234

● Sec.100-case involve substantial question of law

● Appeal may lie from an appellate decree passed exparte
● The HC shall formulate the question
● Appeal will be heard only on that question
● Before the 1976 Act, the scope of 2nd appeal was very wide
● Law commission in 54th report reviewed the position and recommended that right of 2nd
appeal is confined to cases where:
1.a question of law was involved
2. question of law involved was substantial[question must arise in case and is necessary to
decide it]
● Whether it is for public importance and whether it affects the rights of the parties and
whether it is an open question[not finally decided by SC/HC]
● No 2nd appeal if the decree amount is less than Rs.25000/-
● Appeal will be heard only on substantial question of law
● Second appeal not allowed: (Section 101, 102)

○ no substantial question of law involved

Kamti Devi v Poshi Ram AIR 2001 SC 2226

○ original suit for recovery of money less than Rs. 25,000

○ Letters patent appeal – Section 100-A [no appeal against the decision on first
appeal by single judge] [appeal from decision of a single bench to another bench
of same court] [Letters patent,1865]

2002 Amendment Act- no further appeal from decree/order passed by Single HC Judge in 1st
or 2nd appeal

○ Cases where first appeal to be filed in HC

● Procedure:

○ Memorandum of appeal stating substantial question of law

○ Summary dismissal of appeal - no substantial question of law involved

○ If appeal admitted - notice to respondent to lower courts

○ High Court can frame additional substantial question of law and decide appeal -
reasons to be recorded

○ filed within 90 days from date of decree in first appeal

○ If no substantial question of law

■ summary dismissal of second appeal
○ If appeal admitted, High court itself formulate substantial question of law
■ Notice to respondent

Hero Vinoth[A/p] v Seshamal AIR 2006 SC 2234

Suit for permanent injunction for construction of compound wall - Ownership not disputed
Easmentary right claimed - Decreed in favour of plaintiff - RFA by d-dismissed - RSA by
p –HC allowed, dismissed plaint
Whether the lower is finding that the right to path way extinguished ?
SC – dismissed appeal - D has right to path way.

● 2nd appeal and revision lies to the HC

● 2nd appeal-substantial question of law
● Revision-jurisdictional error
● Revision power can be invoked only in cases where no appeal lies

● Power of 2nd Appellate Court (s.107-108)

○ Power to remand
○ Power to frame additional issues
○ Power to take additional evidence
○ Power to decide case on different grounds
○ Power to pass any decree/order

GCR Discussion:
Q: If Section 100-A of CPC prohibits letters patent appeal (appeal against, decision of Single
judge of HC in OS or RFA), how do some State High Courts allow appeal against orders
of Single Judge of HC to Division bench of same HC?
A: It would be distinct from an aggrieved party filing a second appeal from Single bench's
order to Division bench. Reference by the court itself to Division bench or higher court is
not Letters Patent appeal

Difference between 1st and 2nd Appeal

- Against decree of court of OG Jurisdiction || Against decree/order of appellate court
- In higher court above trial court || in HC only
- On question of law and fact || on substantial question of law only
APPEAL FROM ORDERS (Section 104-108, Order 43)

● General rule – no appeal against orders unless expressly provided.

○ Exceptions – orders under Section 104 and Order 43 appealable. - exhaustive -

no second appeal against appealable orders also

● Any order (appealable or not) can be challenged in appeal against the final decree –if
defect/irregularity and it affects the decision. No second appeal against appealable
orders also

● Limitation: to High Court 90 days; to other courts 30 days from date of order.

Appeal from order lies to the Court where appeal from decree lies

● Examples under Order 43:

- Order returning plaint, rejecting application for setting aside suit/setting aside exparte
decree
- Order awarding compensatory cost in vexatious ground
- Order refusing leave to institute suit against public nuisance, breach of trust, directing
arrest /detention of a person.
- Order of defendant’s arrest before judgement
- Order refusing permission to sue for public nuisance
- Order of attachment of defendant’s property before judgement
- Order of temporary injunction
- Order granting /refusing to grant interim orders
- Setting aside/ refusing to set aside sale
- Order refusing to set aside abatement of suit by delay in adding LR on record

APPEAL TO SUPREME COURT (Section 109, Order 45- Article 133,

134A Constitution)

● Art 133, 134A -- Appeal to lie if

 ○ Case involves substantial question of law of public importance

○ HC should be of the opinion that the question of law is to be adjudicated by the

SC

● Standard of appeal into S.C has narrower scope compared to the 2nd appeal. In the 2nd
appeal the eligibility for filing an appeal in H.C the case should involve a substantial
question of law. But in an appeal to S.C there are further conditions like substantial
questions of law + public importance.

● Conditions for appeal to Supreme Court (Section 109)

○ Filed against the Final Decree / order by High Court

○ Must involve substantial question of law of general public importance

○ Opinion of the High Court that the question ought to be decided by the
Supreme Court. (this should be given as a “certificate of fitness” by the HC)

● Procedure: Order 45 Rules 2-12

➔ After the H.C has decided - the aggrieved party must petition the H.C which passes the
said decree for a fitness certificate to enable the aggrieved party to file the appeal to the
S.C.
➔ H.C before issuing such a fitness certificate must issue a showcause notice to the party
which has won the case in the H.C - asking the respondent why the H.C should not issue
a fitness certificate for appeal to the supreme court.
➔ The respondent is given reasonable opportunity to appear and argue against the fitness
certificate which allows the aggrieved party to appeal to S.C. The H.C must hear both the
parties then decide whether the fitness certificate should be issued or not. This entire
procedure should be decided by the court with in 60 days from the date of filing the
petition to the H.C for the fitness certificate
➔ If the H.C decided to issue the fitness certificate it can require the appellant who is the
aggrieved party to furnish security for cause to the respondent and all expenses for
 translation and transcription of the record of the suit which will be forwarder to S.C for
appeal

Admission of appeal - R.8 securities submitted-appeal admitted

Right of appeal to SC will not affect the right of Decree holder to execute the decree unless
the SC stays the proceedings.

REVISION (Section 115)

'Revision' means "the action of revising, especially critical or careful examination or perusal
with 44 a view to correcting or improving". Revision is "the act of examining action in
order to remove any defect or grant relief against the irregular or improper exercise or
non- exercise of jurisdiction by a lower Court".
The object of Section 115 is to prevent the subordinate Courts from acting arbitrarily,
capricious and illegally or irregularly in the exercise of jurisdiction. It enables the Court
to to correct, when necessary, errors of jurisdiction 'committed by the subordinate Courts
and provides the means to G aggrieved party to obtain rectification of a non- appealable
order. The powers U/s 115 are intended to meet the ends of justice and where substantial
justice has been rendered by the order of the lower Court the High Court will not
interfere.

● Conditions:

○ to High court only

○ case must be decided by lower court

■ Includes interim order of lower court also - Considered as decided in

matter of a particular IA

■ Baldevdas Shivlal v Filmistan Distributors Ltd AIR 1970 SC 406

○ against non-appealable decision of subordinate court

 ■ If decree/order appellable - no revision is allowed and instead an appeal
is to be filed

■ Order of temporary injunction - appellable - no revision against

temporary injunction order

○ on jurisdictional errors by subordinate court which has–

■ exercised jurisdiction not vested by law; or

● Ordering appearance of pardanashin woman

● execution of preliminary decree before final decree passed

● Order evicting persons protected under special rent control

statute

● Jamadhar v Amirbi AIR 1985 Kar 91

■ failed to exercise jurisdiction vested by law; or

● Order staying suity under s.10 through matter pendente lite in

earlier suit is not the same

● Order refusing temporary injunction though applicant proves 3

pillar test

● Order refusing to summon witness for cross-examination in IA

for temporary injunction

● State of Tamil Nadu v Ayya Nadar 1978 (2) MLJ 276

● Srinivas Rao v Manohar Rao AIR 1981 AP 406

■ exercised jurisdiction vested by law in illegal or materially irregular

manner.
● Matter defects in procedure
 ● Non consideration of relevat evidence
● Decision without recording reasons
● DLF Housing Co. Ltd. v. Sarup Singh AIR 1971 SC 2324
○ Suit for specific performance for sale of land - part of
land acquired under Land Acquisition Act - compensation
disputed - correction by HC in revision - whether HC
revisional jurisdiction covers correction of decision
○ Material irregularity/ illegality of vested jurisdiction
does not refer to decision being right or wrong - merely the
manner of reaching such decision being right or wrong

● Aman Finance Corporation v Nitesh Kumar Sinha AIR 1999

Pat

P approached d for buying truck on hire purchase - Request accepted- p failed to pay the
amount- d- took possession of truck - p-suit for declaring seize as illegal/ ready to
perform the part
D- filed sec.34[A& C Act,1940] for stay and referring matter for arbitration- rejected
Revision- allowed.

● Limitation - 90 days from order

REVIEW (Section 114, Order 47)

● Judicial re-examination of case by same court and same judge

Review means re-examination or reconsideration of the case by the same judge. It is a
judicial re-examination of the case by the same Court and by the same Judge. In it, a
Judge, who has disposed of the matter, reviews his earlier order in certain circumstances.
Section 114 and Order XLVII: The provisions relating to review are provided in S. 114
(substantive right) and Order XLVII (procedure). The general rule is that once the
 judgment is signed and pronounced or an order is made by the Court, it has no
jurisdiction to alter it. Review is an exception to this general rule

● Who can file:

○ Aggrieved party to the case

○ Any person bound by the decree/order (eg. rep application)
○ Suo motu by court - RS Nayak v AR Antulay 1984

● Once judgment is pronounced, it is absolute and the court has no jurisdiction to alter.

● Conditions:

○ decree/order non-appealable; or
■ That is when there is no option to file an appeal against an order or
decree
○ appealable decree/order but appeal not filed; or
■ Appeal lies against decree of court but not being filed
○ on reference from Small Causes court

● Grounds:

○ discovery of new, important matter/evidence – not available or known after due

diligence
■ Party filing must convince the court that the evidence was
● not within the knowledge
● not in a position to be produced despite due diligence
● subsequent change of events which has led to the discovery of
the evidence
■ Northern India Caterers Ltd v. Lt. Governor of Delhi AIR 1980 SC
674
■ BCCI v NC CLub AIR 2005 SC
○ error apparent on the face of the record
■ Error made by the judge
 ■ Error can be seen by glancing through the case and the judge need not
have to go in detail
Error apparent examples
➔ If the applicable law was amended with retrospective effect but the judge failed to apply
such a law then it is error apparent on the face of record and review application allowed.
➔ If the judge has not tried a particular material issued and then it is an apparent error and
review application allowed.
➔ If the parties had not been notified before pronouncement of judgement then it is a
procedural defect but still it is an apparent error and review application allowed.
➔ If the court does not have jurisdiction and it is clear prima facie then a review application
is allowed.
➔ If the judge has not considered a precedent of the S.C which is opposite to the decision of
the judge then it is also an error apparent to the face of the record.
Error not apparent example
➔ If the review application was that the court has passed an erroneous decision on merits of
the case then the appropriate platform is to file an appeal to the 1st appellate court than
the review application to the same court.
➔ There is a different ruling by the H.C/ different ruling by different sets of H.C - there the
position of laws are not clear in that case also the appropriate forum is to file an appeal
rather than a review application.
➔ If the judgement is based of some of the issue but not on all of the issue then appropriate
remedy is to file an appeal/ revision rather than a review application

■ Thungabadra Industries v Gov of AP 1964

■ Labh Singh v Bant Singh AIR 1999 P&H 189
○ Other sufficient reasons

● Procedure:

○ Ex parte application is filed by aggrieved party

○ aggrieved party apply for review after decree/order within 30 days from
decree/order
 ○ If no sufficient ground - court rejects application
○ If sufficient ground - show cause notice issued by court to the opposite party
○ court reject application if no sufficient ground or call opposite party through
show cause notice
○ Hearing of application for review – same judge, same court
○ If application granted – rehear case on review – original decree recalled
○ Case reheard on merits - decree/order confirm or varied

● Order allowing / rejecting review application - appealable by opposite party

● Review by HC - Art. 226

● Review by Supreme Court: Article 137 of Constitution

REFERENCE (Section 113, Order 46)

● Subordinate court state case and refer to High Court for opinion when under doubt on a
question of law

● Conditions:

- suit/appeal pending in subordinate court

- question of law involved on validity of any statute/law
- question of law material to case
- subordinate court has reasonable doubt on validity of statute/law
- statute/law not been declared invalid by High court or Supreme court - position not clear

Raja Ganga Pratap Singh v Allahabad Bank Ltd AIR 1958 SC 293
Municipal Corporation of City v Shivshankar Gaurishankar AIR 1999 SC 874

● Procedure:
➔ subordinate court to formulate question of law with brief statement of facts and its own
opinion on validity of statute/law and refer to High Court – suo motu or on application
➔ subordinate court may stay its proceedings or continue subject to decision of High court
➔ High court may decide question of law and transmit decision to subordinate court
➔ High court may withdraw entire case from subordinate court and hear itself
➔ High court may set aside or alter decision of referring court in the case
➔ Art 228 Consti - HC satisfied - case pending in lower court involves substantial question
of law - interpretation of constitution - necessary to dispose the case - HC withdraw case
from lower court and decide itself - or decide substantial question and return case to
lower court to be decided in conformity with HC’s judgement on the substantial question
➔ S.113 CPC wider than Art.228 Consti -- art.228 gives power only if question involves
interpretation of consti only || 113 for any law

DIFFERENCES:

Appeal Revision

● High court or other court ● High Court only

● Objection on fact or law ● Objection on jurisdiction only

● Appealable decrees/orders ● Non-appealable decrees/orders

● Application of party only ● High Court suo motu also

Substantive law Discretion of HC

Question of fact & Law Jurisdictional error

 Appeal Review

● Superior court (diff judge) ● Reconsideration of same subject

matter by same court
● Wider grounds of objection
● Limited grounds of objection
● Second appeal
● No second review

Limited grounds of appeal

Wider grounds of appeal

Revision Review

● High court only ● Same court

● Allowed against non-appealable ● Allowed against appealable

decisions only decisions also, if no appeal been filed

● High court suo motu also ● On application of party only

● Grounds of jurisdiction only ● Grounds of objection – discovery of

new matter, apparent error and others
 UNIT 8 - RESTITUTION, CAVEAT, INHERENT POWERS OF
COURT

TRANSFER OF CASES

Section 22 – allows defendant to make an application for transfer of a suit. Application must be
made at the earliest and notice must be given to the other side. Notice is mandatory and must be
given prior to making the application. But if a Court acts suomotu, notice is not necessary.

Section 23- indicates the Court to which such an application can be made.
Section 24 – general power of transfer of suit, appeal or any other proceeding at any stage either
on an application of any party or by a Court of its own motion. Suomotu transfer can be made by
HC or District Courts.

Section 25 – confers very wide, plenary and discretionary powers on the SC to transfer any suit,
appeal or other proceeding from on HC to another or from one Civil Court in one State to
another Civil Court in another State. Exercise of discretionary power depends on the facts and
circumstances of cases. The power must be exercised with extreme caution.

 A plaintiff is the dominuslittis who has the right to choose his own forum which cannot be
interfered with by opposite party or by the Court.
 While deciding the issue of transfer of cases, the Court decides between two conflicting
interests of (i) right of plaintiff to choose his own forum, (ii) power and duty of Court to
assure fair trial and justice.
 A transfer of case is done on the grounds of balance of convenience. Balance of convenience
is based on the convenience of both the parties. The convenience of the witness, place and
evidence is also taken into consideration. Further, the paramount consideration is if it is
‘expedient in the interest of justice’ to do so.
 Application of transfer can be made at any stage.
 Grounds for refusal of application for transfer is if it is made with malafide intention. In case
of dismissal on such grounds of being frivolous and vexatious, costs will be imposed on the
opposite party and compensation not exceeding Rs.2000.
 In case of application for transfer based on allegations of bias, prejudice or partiality against
Presiding Officer of a Court, the remarks of the concerned Judge must be called for before
making an order of transfer. However, no remarks nor Presiding Officer could be called for
to justify the correctness of the order passed by him.
 An order of transfer is not appealable since it is not a ‘judgement’. But is open to revision
since it is considered as a ‘case decided’.
 Maneka Gandhi vs Ram Jethmalani– Assurance of a fair trial is the first imperative of the
dispensation of justice and the criterion for the Court to consider when a motion for transfer
is made.

RESTITUTION:

● Section 144
● Object:
○ no person to suffer from act of court;
○ any injury caused by act of court ought to be undone
● Meaning
○ on reversal of court decision, restoring to a party what was lost in execution of
decision or directly from such execution; parties to be placed in the position
which they would have occupied but for the decree or order reversed, modified or
set aside.
● Conditions for restitution:
○ restitution for decision reversed or set aside
○ applicant entitled to benefit after reversal
○ claim directly due to reversal
● Who can apply:
○ Any party entitled to benefit – need not be appellant only, transferee of decree,
LR.
● Procedure:
○ Judgment-debtor to apply to court of first instance for restitution
○ court issues notice to all concerned parties
○ duty of court to pass any orders required for such restitution – not discretionary
● Case laws:
○ Jai Behram vs. KedarNath
It is the duty of the Court under Sec 144 to place the parties in the position which
they would have occupied, but for such decree or such part thereof as has been
varies or reversed. Nor indeed does this duty or jurisdiction arise merely under
 the said section. It is inherent under the general jurisdiction of the Court to act
rightly and fairly according to the circumstances towards all parties involved.

CAVEAT:Section 148-A

● Meaning: (not defined in CPC) caution/warning by party to court

It is to warn the Court to not take action / grant relief to applicant without information/notice
to party lodging caveat.

○ Nirmal Chandra v. Girinder Narayan AIR 1978 Cal 492

● Object:
The object is to protect yourself from any ex parte relief or prevent any ex parte relief being
granted against us.

● Parties:
Caveatoris the person who files/lodges the caveat and the respondent is the person who is
likely to file a plaint/interlocutory application against the caveator in future.

Respondent is the one who is likely to file a plaint or IA against the caveator.

● Duty of Court:
- After the caveat has been filed, if any complaint is filed by plaintiff seeking ex parte relief
against the caveatorit must not be granted. For this, a notice must be issued to caveator to
inform about such application being filed, so that caveator can appear and defend themselves.

- Notice issued by the court is at the expense of the caveator.

● Procedure:
 ○ Caveator to lodge caveat in court, notify persons expected to sue caveator, deposit
process fee in court

● Rights and duties of caveator:

○ To give notice of lodging of caveat to persons who may make application for
relief
○ To deposit process fee in court for the court to issue notice to caveator before
granting interim order against caveator
○ To deposit process fee for opposite party to furnish copy of application to
caveator
● Rights and duties of applicant:
○ To furnish copy of application and documents to caveator at caveator’s expense

● Rights and duties of court:

○ To issue notice of application for interim relief to caveator in order to enable
caveator to appear, object to application

● Effect of failure to serve notice to caveator:

○ Interim order passed by court against caveator without notice to caveator will not
be void. It operates until set aside on appearance of caveator.
○ RBI Employees Association v. RBI AIR 1981 AP 246
■ The caveator filed a caveat but the Civil Court passed an ex-parte in a
bonafide manner. The Court held that such an ex parte order will not be
void. It will be operative until the caveator brings it to the notice of the
court and applies to set aside the order.

● Duration of caveat: valid for 90 days from date of lodging. The caveat can be renewed
by filing a fresh caveat or by seeking permission of the Court. Extension can be for
another 90 days.
INHERENT POWERS OF THE CIVIL COURT

● Sec.148 - Enlargement of time by court over specified fixed time for any act under CPC
These powers are distinct from other powers of Civil court which are mentioned in specific
provisions like Order 7, 1, 39, 37

● S.149 - permission by court to consider court fees payment in full or partly

Plaintiffs are required to pay the court fee calculated as per the relevant suit valuation laws
when they file the plaint. Failure of court fee will lead to rejection of plaintiff. But the civil
court has the discretionary inherent power to consider whatever amount of court fee has been
paid to be a payment in full.

● Sec.150 - same extent of power of courts to which business of another court is

transferred
The civil court has the power to proceed with the cases which have been transferred to this
civil court from another civil court. It is also possible that the High court under its advisory
jurisdiction can transfer the business and the cases of one civil court to another for
administrative purposes. In such instances the court to which the cases and the business has
been transferred will have the same power and proceed in a similar way.

● Sec.151 - power of court to pass any orders necessary for ends of justice or to
prevent abuse of process of court
○ Wide discretionary power conferred on civil courts
○ To pass any types of orders to meet ends of justice or prevent abuse of court
process
○ Invoked in case any relief is not given under CPC
○ Should only be used as Residuary provision of last resort.
● Sec.152 - power of court to correct clerical, arithmetical mistakes in its judgements,
decrees and orders
To Correct any clerical, arithmetic or petty mistake. It can be done without waiting for a party
to apply for such correction. It is a suomotu power of the civil court

● Sec.153 - power of court to amend any errors in any proceedings

It is to Amend any error in any proceedings. It can be done without waiting for a party to

approach the court to amend the pleadings. The court has the suomotu power to correct the

error under Sec 153. Pleadings are included.

● Sec. 153A - power of trial court to make any changes to decree against which appeal
filed
If the trial court already passes the final judgement and the aggrieved party has filed an
appeal. In such a case, while the appeal is pending, the trial court has the power to make
changes to such a decree. After making changes/correction, a notice of correction must be
given to the appellate court so that the court will be up to date with the decree which is under
challenged

UNIT 9: LIMITATION ACT

INTRODUCTION:

● Scheme of Act: 32 Sections, 137 Articles in Schedule of 3 parts – suits (1st Schedule),
appeals (2nd Schedule), applications (3rd Schedule).
● Bars the remedy but not the right accrued
● The law of limitation bars an action and not a defence
○ It is open to the defendant in a suit filed by the plaintiff to set up a plea in
defence which he may not be able to enforce by filing a suit.
● Rationale of the Act can be seen through the incorporation of two maxims:
○ States responsibility to end to Litigation - Interest reipublicae ut sit finis
litium
○ Law assists the vigilant and not those who sleep over their rights -
Vigilantibus non dormientibus jura subveniunt
● Interpretation:
 ○ It is a procedural or adjective law. The function of adjective law is to facilitate
justice and further its ends. The rules of procedure are intended to be a
handmaid to the administration of justice. They must, therefore, be construed
in such a manner as to render enforcement of substantive rights effective. A
statute of limitation deprives an aggrieved person to have recourse to legal
remedy. Hence, whether its language is vague, unclear or ambiguous that
construction should be prefered which preserves such remedy to one which
bars or defeats it.
● Strict Interpretation must be followed.
○ Exhaustive - except a few specific situations
○ Not retrospective: limitation law not provide longer period and revive dead
remedy or extinguish vested right of action by shorter period.
○ Interpretation favouring remedy rather than barring remedy to be chosen
● Applicability of Act:
○ Judicial proceedings - suits, appeals, applications.
○ Not applicable: quasi-judicial proceedings, criminal proceedings, writ
petitions
■ Not Applicable to writ petitions - Motichand v Munshi AIR 1970 SC
○ Art.113 - 90 days to file special leave to appeal before the SC
● Difference between limitation and laches:
○ Rule of law || principle of equity
○ Limited discretionary power of court to condone delay || wide discretion of
court to condone delay
○ Fixed period || reasonable period
○ Ignorance of plaintiff immaterial || ignorance of plaintiff considered for
condonation
● Difference between limitation and estoppel:
○ Procedural rule || rule of evidence
○ Restrains person claiming right to sue after period || person not allowed to
deny truth of statement made before by him
○ Not apply to defence || applies to both parties
 ○ Passivity of party || intentional act/omission of party.
● Difference between Limitation and Prescription:
○ Certain time after which litigation cannot be instituted || Certain time after
which substantive right is extinguished /acquired
○ Affects remedy and not right || Affects underlying right
○ Procedural || Substantive
GENERAL PRINCIPLES AND RULES OF LIMITATION (Section 3)

● It would be the duty of the court to dismiss the suit, appeal, application that has
been filed after the period of limitation
● Duty is on the plaintiff/applicant/appellant to prove as to why the
suit/application/appeal should be entertained/accepted by the court and not get
rejected when filed after limitation
○ Defendant/respondents grounds raised challenging limitation as a defence is
not relevant.
● Immaterial whether suit a plea to dismiss the case filed beyond limitation has been
set up in defence by the opposite party
● Defence of limitation cannot be waived by agreement between the parties
● Suit, appeal, application to be filed within the period prescribed
● Limitation only bars remedy, does not affect underlying right (Important Topic)
○ Spears v Hartley (1800) 170 E.R 545
○ PNB v Surendra Sinha AIR 1992 SC 1815
■ Debt barred by limitation - adjustment of securities deposited by
surely allowed to the creditor
● Exception:
○ Section 5 - Condonation of delay
○ Section 25 – acquisition of easement
○ Section 27 – extinguishment of right / adverse possession
Exception: Condonation of Delay (Section 5)

● Condonation of delay is an exception to the general rule of limitation of sec.3

● Applicable to appeals and applications
● Not applicable to suits and execution applications
● General Principles:
○ Dealy of each day beyond limitation has to be explained (not an hourly
update)
○ Sufficient cause has to be proven and is decided based on the facts and
circumstances of the case.
○ Condoning delay is the discretion of the court and the court is to apply a
liberal approach for condonation of delay
○ Dealy has to be usually condoned as refusal can result in throwing out
(dismissing) a potential meritorious case and this would “defeat the ends of
justice”.
○ If the delay is not deliberate nor is it intentional, then the substantive justice
is to be followed to override technical procedures
● Condonation of delay in filing appeal and application allowed – sufficient cause – no
Condonation of delay for filing suits.
● Sufficient cause: not defined – liberal interpretation to advance justice.
○ Collector (Land Acquisition) v. Katiji AIR 1987 SC 1353
● Any suit instituted after the prescribed period of limitation has to be dismissed in as
much as there are no provisions for condonation of delay in filing a suit.
● In respect to appeals and applications, however the Act provides for an extension
of time and condonation of delta in filing appeals and applications.
● Factors/Conditions that court will look into:
○ Court will determine the case for condonation on merits and not dismiss it
merely on technical grounds.
○ The Court must also consider an important aspect that non-filing of appeal or
application has created a valuable right in favour of the opposite party which
cannot be defeated or interfered with lightly.
● Understanding sufficient cause;
○ Delay in filing of appeal or application can be condoned if there is “sufficient
cause” that has been proven by the party.
○ Not defined in the act
 ○ Wide, comprehensive, elastic
○ Interpreted liberally by courts to ensure the achievement of justice - Collector
v. Katiji
○ Not meant to destroy accrued rights
○ Sufficient cause cannot be liberally interpreted if negligence, inaction or want
of bona fides is attributable to the party in delay.
● Examples of sufficient cause for condonation:
○ Balakrishnan v Krishnamurthy 1998 SC - Case was filed in the wrong court
under a bonafide mistake. This was a result of wrong advice given by the
advocate. There was a grave illness that was faced by the party and the court
held that there was a bonafide mistake of the advocate and thus condoned the
delay.
Collector (Land Acquisition) v Katiji 1987 SC (Case is an important precedent)
Facts - An appeal by the State. against a decision enhancing, compensation in
respect of acquisition of lands for a public purpose, raising important questions as
regards principles of valuation, was dismissed by the High Court as time barred,
being four days beyond time, by rejecting an application for condonation of delay.
The order of the High Court dismissing the appeal as time-barred was set aside and
the matter was remitted back to the High Court to dispose of the appeal on merit
after affording a reasonable opportunity of hearing to both sides.

○ Principles laid down in the case:

■ Litigant does not stand to benefit by lodging an appeal late
■ Refusing to condone delay can result in a meritorious matter being
thrown out at the very threshold and cause of justice being defeated
■ “Every days delay must be explained” does not mean that a pedantic
approach should be made
■ Substantial justice is always preferred over technical considerations
■ There is no presumption that delay is occasioned deliberately, or on
account of culpable negligence or on account of mala fide.

Legal disability: (Section 6, 7, 8, 9)

● When the litigant is under any legal disability such as minority or insanity, then the
limitation period is postponed and it commences from the day the disability ends
(section 6)
● Conditions of Sec 6:
○ Person entitled to sue - under disability
○ Legal disability - minority (includes child in womb), insanity,
idiocy
○ Disability existing at the time when limitation starts
○ When right to sue accrues - Start of limitation period postponed till end of
disability for suit, execution (not for appeals)
○ Limitation starts - when disability ceases, not from cause of
action
○ To suits & execution application – not to appeal/revision/review etc., not to
suit enforcing pre-emption rights – sec 8
○ Disability existing at the time of cause of action – not arising after
limitation starts
■ Shah Hiralal v Shah Fulchand AIR 1956

■ Nathuram v Manphool (1996) 4 SCC 462

● Several disabilities – limitation starts when all disabilities have ceased - sec 6(2)
● Disability lasts till death – limitation for Legal Representative starts from date of
death - sec 6(3), (4), (5)
○ Death before disability ceases – LR can sue within limitation period starting
from death – sec 6(3)
○ Death before disability ceases – Legal Representative also under disability at
time of death – LR can sue within limitation period starting when LR’s
disability ceases – sec 6(4)
○ Death after disability ceases but within extended period – LR can sue within
the extended period, as available to deceased – sec 6(5)
 ○ Period of extension of limitation under section 6 – not exceed 3 years from
cessation of disability/death, or the original limitation period, whichever is
lesser
● Sec 8 - Darshan Singh v Gurdev Singh AIR 1995 SC 75;
○ Madhukar Vishwanath v Madhao (1999) 9 SCC 446
○ Once time starts running, subsequent disability not affect limitation – sec 9
○ State of Punjab v Surjit Kaur AIR 2002 P&H 68
● Continuous running of time - Section 9:
○ Once time has begun to run, subsequent legal disability does not stop time
○ If legal disability occurs after limitation period has commenced (cause of
action), there would be no postponement of limitation under section 6.
○ Example: Y Commits a breach of contract against X, a minor in 2010. X
turns 18 in 2015 and is declared legally insane in 2016. X recovers from
insanity in 2019. When did the limitation start and when will it end?
Answer: Starts in 2015 and would not end with the onset of subsequent legal
disability.

Exclusion of time: (Sections 12-15)

● In computing limitation period the following shall be excluded (these days are to
added to the limitation period)
● Periods excluded:
○ Day when limitation starts; last day of cause of action is excluded (so if its
ends on 3rd, the limitation period starts from 4th)
○ Day when decree/order pronounced; (for appeals)
○ Time for obtaining certified copy of decree/order/sentence;
○ Time for hearing application to sue as indigent person; (if limitation period is
1 year from the last day of cause of action and were filing the case as an
indigent person - investigation and mini trial is excluded)
○ Time in proceedings initiated bonafide in court without jurisdiction; (return
of plaint)
○ Period of stay on proceedings by court;
 ○ Time for giving notice/obtaining consent from the government as required by
law; (special suit, suit against foreign ruler etc..)
○ Period during which receiver/liquidator appointed and functioning;
○ Time in proceedings to set aside sale of property pending in suit for
possession;
○ Period when the defendant is outside India.

POSTPONEMENT OF DATE WHEN LIMITATION STARTS (Sections 16-23)

● Start of limitation period is postponed to a later date

● Section 16 - person entitled to sue dies before right to sue accrues - limitation starts
afresh when LR of deceased comes to exist -
○ Not applicable to appeals, suit of possession of Im.P, suits of hereditary
office
● Date when period of limitation starts will be postponed till:
○ Person who can sue/be sued comes to exist
■ on death of person, limitation starts when legal representative found
to exist
○ in case of fraud/mistake, when fraud/mistake discovered or could have been
discovered with reasonable diligence
○ date of acknowledgement in writing of right/liability
○ date of payment, in part/whole, of debt
○in case of new plaintiff/defendant added in pending suit, date when added as
plaintiff/defendant
○ in case of continuing breach of contract/tort, every day the breach/tort continues
○ date when injury results in case of suit for compensation for special damage.

● Effect of Fraud or Mistake – section 17

- Does not start from the date from when the fraud was committed but rather from the date
when the litigant has or could have discovered the fraud/mistake with reasonable
diligence.
- Does not affects the validity of transactions of transfer of property to bona fide purchaser
for value
- If the property under contract has been further transferred in bonafide transc. then the
property cannot be returned to the original owner in order to ensure the bonafide
subsequent purchases
○ Limitation starts from discovery of fraud or mistake if:
- suit/application is for relief due to fraud by defendant or due to mistake
- knowledge of plaintiff’s right / title underlying the suit/application – fraudulently
concealed by defendant
- document necessary to establish plaintiff’s right – fraudulently concealed by defendant
Inder Singh v Corporation of Calcutta AIR 1969 Cal 418
-
● Acknowledgement: (Section 18)

Section 18 of the Limitation Act enacts that where a person liable to pay debt makes an
acknowledgement in writing of his liability before the expiry of limitation, a fresh period
of limitation shall be computed from the time the acknowledgement is made. - Tilak
Tilak Ram V. Nathu.
When acknowledgement of liability is made, a fresh period of limitation begins.
Conditions for valid acknowledgement:
(i) before limitation period for debt expired – acknowledgement of subsisting debt allowed –
- exception: acknowledgement of time-barred debt allowed if express promise to pay
(sec.25(3))
(ii) in writing and dated
(iii) signed by debtor, if written by another
(iv) dated – if undated, oral evidence allowed to prove date
(v) by debtor / person deriving title from debtor
(vi) acknowledgement of liability is required but it need not be for promise to pay. Even
refusal to pay amounts to acknowledgement. Denial of debt is not acknowledgement.
(vii) made to creditor/plaintiff and any other person – not stranger
(viii)Acknowledgement to be express admission of liability - even without the promise to
discharge liability - even with refusal to discharge liability
- Exception: statement denying existence of liability is not an acknowledgement

● Part-payment of debt: (Section 19,20)

Fresh limitation starts from the date of part payment. Period of limitation starts afresh from
date of payment towards any debt/legacy. Conditions:
(i) paid before period of limitation expires (1st emi)
(ii)paid by person liable or his duly authorised agent(s.20) - not stranger to transaction
(iii)acknowledgement of payment in writing and signed by debtor
(iv)payment to a person entitled to payment – not to a stranger
○ Mode of payment: - No prescribed mode. It could be through money/goods. A
dishonoured cheque not payment.
○ Manimala Devi v Indu Bala Debya AIR 1964 SC 1295
○ Sant Lal Mahton v Kamla Prasad 1952 SCR 117
○ Jiwan Lal v Rameshwar Lal AIR 1967 SC 1118

● Where new plaintiff/defendant added by court pendente lite - limitation starts from
date of adding for such party (SECTION 21)
● Where continuing breach of contract or continuing tort - limitation starts at every
day of breach of contract or tort being committed - SECTION 22
G throws garbage on H’s kand in 2018 and leaves it there. The limitation period for H to sue
G for tort is 1 year from date when right to sue accrues to H. Right to sue accrues to H on
each day when garbage remains on H’s property.

● Where cause of actions is special damage from act - limitation starts from date when
special damages took place, not from date when act committed - section 23.
K is employed in R’s asbestos factory from 2009 to 2012 without being given proper safety
equipment. Due to which K was diagnosed with asbestos poisoning in 2015. The
limitation period for K to sue for negligence starts from 2015 and not 2009 or 2012.
EASEMENT BY PRESCRIPTION (Section 25, 26)

● Limitation for Reversioner to sue against easement over servient property - Sec.26
Access to use of light/air/water under s.25 - over property in possession of life-estate holder
- subsequently coming into possession of reversioner (entitled to property after death of
life-estate holder) - reversioner can sue against easement by prescription under s.25 after
25 years also - period of life-estate holder’s possession of property excluded from 20
years.

● Right to access and use of light, air to any building becomes absolute, on certain conditions
(Section 25)
○ access and use enjoyed as easement
○ openly & peacefully enjoyed
○ as easement –right claimed on another’s property, not own property
○ as a right
○ without interruption
○ for 20 years (30 years for government property)
● When easement rights being enjoyed for 20 years disturbed –suit to enforce easement rights
to be instituted within 2 years from such disturbance –if not, right not absolute
Venkanareddy v Kotireddy AIR 1967 AP 81
● Reversioner right (Section26)
○ Period of exercise of easement during lease / life-estate over servient tenement
is excluded from 20-year period under section 25
○ Lessor / Reversioner gets 3 years from end of lease/life-estate to resist the
exercise of easement

Extinguishment of right / Adverse Possession – Section 27

Sec 27 of the Limitation act speaks of extinguishment of right to property. We have seen that
the general principle of law is that limitation bars remedy and does not destroy the right.
The right remains subsisting though without remedy. Sec 27 is an exception to this rule
and enacts that the bar of remedy will also extinguish and destroy the right itself. Where a
person does not file a suit for possession, his right to such property stands extinguished.
Adverse possession of the land is the process by which title to another’s land is acquired
without his permission. Adverse Possession is a possession which is opposed to once
interest of the real owner of the property. It is possession in denial of the title of the true
owner.

A person who is claiming to be in adverse possession of the land, he needs to prove in the
court of law certain essentials.

- There must be immovable or movable property.

- The nature of possession must be visible, hostile, and in continuity without any intrusion
for the period specified under the Limitation Act.
- Adverse possession cannot be claimed for a short period of time under Article 65 of the
Limitation Act.
- The intention of possession of the land must be accompanied by the intention of owning
the right of the ownership by such possession.
- In Bhimrao Dnyanoba Patil Vs State of Maharashtra, the court held that, unless
enjoyment of the property is accompanied by adverse animus, mere possession for a long
period even over a statutory period, would not be sufficient to mature the title to the
property by adverse possession.
- When a person comes and captures a land for a specific period of time, he is taking away
the ownership from the rightful owner. Thus, there should be dispossession of ownership
by adverse possession.

Conditions for adverse possession:

○ defendant in actual possession
○ possession continuous without interruption
○ possession publicly held adversely to rightful owner
○ plaintiff – notice/knowledge of such adverse possession
○ possession for at least 12 years (30 years for government
property) Anjanappa v Somalingappa (2006) 7 SCC 570

VOID ORDERS:
● At one time it was held that if an action taken or order made by the authority is illegal,
ultra vires or void, the law of limitation does not apply to it, and a suit for declaration or
for setting aside such order can be filed at anytime.

In Union Carbide Corpn v UoI (1991) it was held that even if the act is void or ultra vires,
the aggrieved party must approach the court within the period of limitation.
●In such cases where no limitation period is provided for, the provisions of Art.113
(residuary procision) shall be applicable (3yrs limitation period). A suit must be filed
within 3 years from the time when the right to sue accrues, i.e from the date such
order is passed or action is taken.