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CIVIL PROCEDURE CODE

STUDY MATERIAL

PART-1

Collected by:
Y. SREENIVASULU, B.Com.,LL.B.,
Advocate,
TADIPATRI-515411
Ananthapuramu Dist.
Mobile: 9949174741
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CIVIL PROCEDURE CODE

PART-1

Introduction
The Civil Procedure Code was passed in 1908 and came into force from 1st January 1909. The Civil
Procedure Code neither creates nor takes away any right. It is intended to regulate the procedures
followed by the civil court.

Laws can be divided into two groups –

1. Substantive law
2. Adjective or Procedural Law
The substantive law determines the rights and liabilities of parties and adjective or procedural law
prescribes the practice, for the enforcement of those rights and liabilities. The efficiency of substantive
laws depends upon the quality of procedural laws. Thus, procedural laws are an accessory to
substantial laws. These two are complementary to each other and they are interdependent.

Procedural laws give life to substantial laws by providing the remedy and by implementing the
maxim ubi jus ibi remedium. Some examples of the procedural law are the Civil Procedure Code,
Code of Criminal Procedure, and Indian Evidence Act. Indian Penal Code, Indian Contract Act, the
Transfer of Property Act are examples of substantive law.

History of the Code

Before 1859, there was no uniform civil procedure applicable for the entire country. Sir Charles Wood
was responsible, then President of the Board for the affairs of India instructed the Second Law
Commission to prepare a simple code for applicability in all Indian courts. Although it was not applicable
in Presidency Supreme Courts and Presidency Small Cause Courts. This code had several issues and
was amended and reacted in 1877. Another amendment was made in 1892. There existed a conflict of
judicial opinion and interpretation of certain procedures of the Code.

In 1908, with the assent of the Governor-General, The Code of Civil Procedure of 1908 was
implemented. The Civil Procedure Code has been amended several times to meet the needs and
requirements which are dynamic and changing from time to time. Between 1909 to 1976, the Code has
been amended for more than 30 times.
Two important amendments were made in 1951 and 1956. Despite there being some defects in it, the
Code was enforced satisfactorily. The Law Commission submitted several reports with the requirement
of what changes should be made while keeping in mind the following necessities –

1. The procedure must not be complex and must allow a fair deal to economically weaker
sections of the society.
2. A litigant must get a fair trial in accordance with the accepted principles of natural justice.
In 2002, several considerable changes were made to the CPC of which some of the changes are listed
below –

1. Number of adjournments to be restricted

2. Provision for outside of court settlement to be introduced
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3. Provision for recording evidence by Court commissioner has been made

4. A provision is made for the filing of an appeal in the court where the decree has been passed.

Consolidation and Codification

The Preamble of the code that it was enacted to consolidate and amend the laws relating to the
procedure to be followed in the civil courts having civil jurisdiction in India. The main reason why some
parts of the law are codified is that the law should be ascertained from the language used in the
enactment and not from the preceding act.

In Prem Lal Nahata v. Chandi Prasad Sikaria, the court consolidates and amends laws relating to
Courts of Civil Judicature. It Also deals with substantive rights but mainly aims to consolidate the law
relating to civil courts and procedures.

Extent and Applicability

The Civil Procedure Code was passed in 1908 and came into force from 1st January 1909. The Code is
applicable to the whole country.

OBJECT AND SCOPE

The main object of this civil procedure code is to consolidate and amend the laws relating to the
procedures of the Court of Civil Judicature. It collects all the laws that should be adopted by the civil
courts. The main aim of the CPC is to facilitate justice and seek an end to the litigation rather than
provide any form of punishments and penalties.

The procedural law is always subservient to and is in aid to justice. Nothing can be given by a
procedural law what is not sought to be given by a substantive law and nothing can be taken away be
the procedural law what is given by the substantive law, was stated in Saiyad Mohammad Bakar v.
Abdul Habib Hasan Arab [(1998) 4 SCC 43]
The Code is exhaustive on the matters directly dealt by it but does not expand much upon the points
that it does not specifically deal with. The writers of the code could not foresee the possible
circumstances which may arise in the future litigations and could not as a result, provide the procedure
for such scenarios. Hence, inherent powers were awarded to the court to meet such circumstances
according to the principles of natural justice, equity and good conscience.

Retrospective Operation
The principle of interpretation of statutes that procedural laws are well-settled is always retrospective in
operation unless there are good reasons to the contrary. Their provisions will already apply to the
proceedings commenced at the time of enactment. This is so because no can have a vested right in
forms of procedure. The CPC is not retrospective in operation

Code at a Glance
The Body of the Code has 12 parts containing 158 sections. Sections 1-8 are preliminary as Section 1
deals with the extent of applicability and Section 2 deals with definitions. Sections 3-8 talk about the
constitution of different courts and their jurisdictions.

Part I which includes Sections 9 to 35-B and Orders 1 to 20 of the (First) Schedule deal with suits.
Section 9 enacts that a civil court has jurisdiction to try all suits of civil nature unless they are barred
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expressly or impliedly. Whereas Section 10 provides for stay of suit. Section 11 deals with the well-
known doctrine of res judicata. Sections 13 and 14 relate to foreign judgments. Sections 15 to 21-A
regulate the place of suing. They lay down rules as to jurisdiction of courts and objections as to
jurisdiction. Sections 22 to 25 make provisions for transfer and withdrawal of suits, appeals and other
proceedings from one court to another.

Orders 1 to 4 deal with institution and frame of suits, parties to suit and recognised agents and
pleaders. Order 5 contains provisions as to issue and service of summons. Order 6 deals with
pleadings. Orders 7 and 8 relate to plaints, written statements, set-offs and counter-claims. Order 9
requires parties to the suit to appear before the court and enumerates consequences of non-
appearance.
It also provides the remedy for setting aside an order of dismissal of the suit of a plaintiff and of setting
aside an ex parte decree against a defendant. Order 10 enjoins the court to examine parties with a view
to ascertaining matters in controversy in the suit. Orders 11 to 13 deal with discovery, inspection and
production of documents and also admissions by parties.

Order 14 requires the court to frame issues and Order 15 enables the court to pronounce judgment at
the “first hearing” in certain cases. Orders 16 to 18 contain provisions for summoning, attendance and
examination of witnesses, and adjournments. Order 19 empowers the court to make an order or to
prove facts on the basis of an affidavit of a party.

Sections 75 to 78 (Part III) and Order 26 make provisions as to issue of Commissions. Sections 94
and 95 (Part VI) and Order 38 provides for arrest of a defendant and attachment before judgment.
Order 39 lays down the procedure for issuing temporary injunction and pass-ing interlocutory orders.
Order 40 deals with appointment of receivers.

Order 25 provides for security for costs. Order 23 deals with withdrawal and compromise of suits. Order
22 declares effect of death, marriage or insolvency of a party to the suit. Section 33 and Order 20 deal
with judgments and decrees. Section 34 makes provisions for interest. Sections 35, 35-A, 35-B and
Order 20-A deal with costs.

Parts IV and V (Sections 79-93) and Orders 27 to 37 lay down the procedure for suits in special
cases, such as, suits by or against Government or public officers (Section 79 to 82 and Order 27); suits
by or against aliens, foreign rulers, ambassadors and envoys (Sections 83 to 87-4 suits by or against
soldiers, sailors and airmen (Order 28); suits by or against corporations (Order 29); suits by or against
partnership firms (Order 30); suits by or against trustees, executors and administrators (Order 31); suits
by or against minors, lunatics and persons of unsound mind (Order 32); suits relating to family matters
(Order 32-A); suits by indigent persons (paupers) (Order. 33); suits relating to mortgages (Order 34);
interpleader suits (Section 88 and Order 35); friendly suits (Section 90 and Order 36); summary suits
(Order 37); suits relating to public nuisances (Section 91) and suits relating to public trusts (Section 92).
Section 89 as inserted from 1 July 2002 provides for settlement of disputes outside the court through
arbitration, conciliation, mediation and Lok Adalats.

Parts VII and VIII (Sections 96 to 115) and Orders 41 to 47 contain detailed provisions for Appeals,
Reference, Review and Revision. Sections 96 to 99-A and Order 41 deal with First Appeals. Sections
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100 to 103 and Order 42 discuss law relating to Second Appeals. Sections 104 to 108 and Order 43
contain provisions as to Appeals from Orders. Sections 109, 112 and Order 45 provide for Appeals to
the Supreme Court. Order 44 enacts special law concerning Appeals by indigent persons (paupers).
Section 113 and Order 46 pertain to References to be made to a High Court by a subordinate court
when a question of the constitutional validity of an Act arises. Section 114 and Order 47 permit review
of judgments in certain circumstances. Section 115 confers revisional jurisdiction on High Courts over
subordinate courts.

Part II (Sections 36 to 74) and Order 21 cover execution proceedings. The principles governing the
execution of decrees and orders are dealt with in Sections 36 to 74 (substantive law) and Order 21
(procedural law). Order 21 is the longest Order covering 106 Rules.

Part X (Sections 121 to 131) enables High Courts to frame rules regulating their own procedure and
the procedure of civil courts subject to their superintendence.

Part XI (Sections 132 to 158) relates to miscellaneous proceedings. Explanation to Section 141 as
added by the Amendment Act of 1976 clarifies that the expression “Proceedings” would not include
proceedings under Article 226 of the Constitution. Section 144 embodies the doctrine of restitution and
deals with the power of the court to grant relief of restitution in case a decree is set aside or modified by
a superior court.

Section 148-A as inserted by the Code of Civil Procedure (Amendment) Act, 1976 is an important
provision which permits a person to lodge a caveat in a suit or proceeding instituted or about to be
instituted against him. It is the duty of the court to issue notice and afford an opportunity of hearing to a
caveator to appear and oppose interim relief sought by an applicant.

Sections 148 to 153-A confer inherent powers in every civil court. Section 148 enables a court to
enlarge time fixed or granted by it for doing any act. Section 149 authorises a court to permit a party to
make up the deficiency of court fees on plaint, memorandum of appeal, etc. Section 151 is a salutary
provision. it saves inherent powers in every court to secure the ends of justice and also to prevent the
abuse of process of the court. Sections 152 to 153-A empower a court to amend judgments, decrees,
orders and other records arising from accidental slip or omission.

Section 153-B was added by the Amendment Act of 1976 and it expressly declares that the place of
trial shall be open to the public. The proviso, however, empowers the Presiding Judge, if he thinks fit, to
order that the general public or any particular person shall not have access to the court.

History of the Code of Civil Procedure | Overview

 Introduction
 Highlights of Amendment Act, 1976
 Amendment Act of 1999 and 2002
 Codification of CPC
 Object
 Retrospective Operation
Introduction
The Uniform Code of Civil Procedure in the Republic of India first came into effect in 1859. Before that,
there have been numerous kind of civil law procedure followed in different areas of the nation. The code
of 1859 could not extend its applicability to the Supreme Courts under the Presidency towns and to the
Presidency Small Cause Courts.
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After that, a few amendments were made in this and subsequently, the code was applied to the whole
of British Republic of India, whereas there have been a few deformities in it, thus, another code was
enacted in 1877. Later, another code was enacted in 1882, that was conjointly changed every now and
then.

In 1908, this Code of Civil Procedure was ratified. Which was again amended twice through
Amendments Acts of 1951 and 1956. On the whole, this code worked agreeably, despite the fact that
there have been a few imperfections in it.
The Law Commission in its various reports made a few suggestions, and once thoroughly thinking
about them, the govt. set to table the Bill for the amendment in the Code of Civil Procedure, 1908,
keeping in sight, the consequent concerns.[1]

 A party ought to get a fair trial in accordance with the accepted principles of natural justice;
 Every effort ought to be created to expedite the disposal of civil suits and proceedings, in order
that justice might not be delayed

The procedure shall not be troublesome, and should, to the most extreme degree conceivable,
guarantee a decent arrangement to the less fortunate segments of the network who don‟t have the way
to connect with a legal advisor to defend their cases.

Highlights of Amendment Act, 1976

Some of the vital changes made by the Amendments Act, 1976 are as following:

 The doctrine of res judicata is being made more practical.

 Power to transfer proceedings from one high court to a different is conferred upon Supreme
Court.
 Freedom from the attachment of a portion of regular payment to any or all salaried employees
was granted.
 Provision of giving notice under Section 80 before the institution of a suit against the govt. or a
public officer is made less rigorous.
 Restrictions are obligatory on the right of appeal and revision.
 Provisions were created to make sure that written statements and documents were filed without
delay.
 New order 32-A has been inserted to provide a special procedure in a judicial proceeding
regarding the affairs of a family.
 The practice to pass a preliminary and final decree in certain suits is abolished.
 Scope of summary Trials is considerably widened.
 Important changes have been created to provide relief to poorer sections of the community.”
So as to dispose of cases efficiently the amendments of 1976 weren‟t found adequate. For
which, Justice Malimath Committee was appointed by the govt. With the recommendations of the
Committee, the Code of Civil Procedure was amended by the Amendment Acts of 1999[2] and 2002[3].
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Amendment Act of 1999 and 2002

Significant revisions made by the Acts of 1999 and 2002 are abridged along these lines:

 In many matters, like provision of issuing summons, filing of a written statement, amendment of
pleadings, production of documents, the examination of witnesses, the pronouncement of judgments,
preparation of decree, etc., a time-limit is prescribed;
 Number of adjournments are “restricted;
 A provision for the recording of evidence by the Court Commissioner has been made;
 Endless arguments are sought-after to be shortened by (a) empowering the court to repair a
time-limit for oral arguments, and (b) by permitting written arguments to be placed on record by the
parties;
 A provision is created for filing of an appeal within the court which passed the decree;
 Instituting of appeal against the judgement is allowed wherever the decree isn‟t drawn up;
 A new provision for settlement of disputes outside the court has been introduced;
 Scope of First Appeal, Second Appeal, Letters Patent Appeal and Revision has been curtailed.”


Codification of CPC
The Preamble of the Code expresses that the object of the Code is to consolidate and amend the laws
about the system of Courts of Civil Judicature. To combine implies that to assemble every one of the
laws about a given subject and to bring it directly down to date all together that it should frame a
valuable Code pertinent to the conditions existing at the time once the solidifying Act is sanctioned.[4]

The very object of classifying a specific part of the law is that on any point explicitly addressed, the law
should from there on be seen from the language utilized in that enactment and not from the previous
Act.[5]

The code of Civil procedure may be a consolidated Code on the procedure to be followed by civil
courts. As determined in Prem Lala Nahata v. Chandi Prasad Sikaria[6], the code consolidates and
amends the laws concerning the procedure of the courts of Civil Judicature. no doubt it additionally
deals with certain substantive rights. However, its essential object is to consolidate the law about civil
procedure.

Object
The Code of Civil procedure aims to unite and alter the laws with reference to the procedure of Courts
of Civil Judicature. it‟s a solidified code assembling all the laws about the strategy to be adopted by civil
courts. it is intended to facilitate justice and further its closures and is certainly not a penal enactment
for punishments and penalties, not a thing intended to entangle people. Too specialized a development
of segments that leaves no area for sensible flexibility of elucidation should, thus, be made preparations
for, on condition that equity is done to both side.[7]

The provision of the code has evolved as a matter of long years of expertise emanating out of the
common law of European Country.[8]
As the Supreme Court expressed, A procedural law is usually in aid of justice, not in contradiction or to
defeat the terrible object that is wanted to be achieved. Procedural law is usually subservient to the
substantive law. Nothing is often given by a procedural law what‟s not sought to be given by substantive
law and nothing will be removed by the procedural law what‟s given by the substantive law.[9]
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Retrospective Operation
It is a well-settled principle of interpretation of statutes that procedural laws are perpetually
retrospective in operation unless there are good reasons to the contrary.[10] Their provisions can apply
to proceedings already commenced at the tie of their enactment. The explanation is that nobody will
have an unconditional right in kinds of procedure.[11] The Code of Civil procedure isn‟t retrospective in
operation.[12]

[1] Statement of Object and Reasons of Amendment Act 104 of 1976.

[2] Act 46 of 1999.

[3] Act 22 of 2002.

[4] Administrator general of Bengal v. Prem lal Mullick, ILR (1859) 22 Cal 788 (PC).

[5] Narendra Nath Sircar v. Kamalbasini Dasi, ILR (1896) 23 Cal 563 (PC).

[6] (2007) 2 SCC 551

[7] Chinnammal v. o. Arumugham, AIR 1990 SC 1828

[8] Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470

[9] Saiyad Mohd. Bakar v. Abdulhabib Hasan, (1998) 4 SCC 343

[10] Nani Gopal Mitra v. State of Bihar, AIR 1970 SC 1636

[11] Anant Gopal v. State of Bombay, AIR 1958 SC 915

[12] Mohanlal Jain v. Sawai Man Singhji, AIR 1962 SC 73

Important Definitions under CPC

1. Decree
Section 2(2) of the Code defines Decree as –

„Decree‟ means the formal expression of an adjudication which, so far as regards the Court expressing
it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy
in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint
and the determination of any question within section 144, but shall not include-

a. any adjudication from which an appeal lies as an appeal from an order, or

b. Any order of dismissal for default.
Explanation

A decree is preliminary when further proceedings have to be taken before the suit can be completely
disposed of. It is final when such adjudication completely disposes of the suit. It may be partly
preliminary and partly final.

General Explanation of Decree

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In simple words, decree is the speaking part of the judgment. Generally, Judgment consists of Decree,
orders etc which are basically adjudicatory in nature.

Decree is of two types: Preliminary and Final. Courts have the power to grant both Preliminary as well
as Final decree, depending upon the stage of the adjudication. Preliminary decrees are granted when
there is a scope for further investigation on that point but it is also important to decide the issue at hand.
On the other hand as the name suggests, final decrees are the conclusive part of the adjudication. Both
Preliminary and final decree can be appealed before higher courts.

Essentials of a decree

a. There must be formal expression of an adjudication;

b. The adjudication must have been given in a suit before the court;
c. The adjudication must have determined the rights of the parties with regard to all or any of the
matters in controversy in the suit;
d. Such adjudication must be conclusive.
2. Decree Holder
Section 2 (3) of the code defines Decree Holder as follows:

„Decree Holder‟, means any person in whose favour a decree has been passed or an order capable of
execution has been made.

General Explanation of Decree holder

From the definition, it is clearly observed that a decree-holder need not be the plaintiff. A person who is
not a party to the suit but an order capable of execution has been passed in his favour is also a decree-
holder. Thus where a decree for specific performance is passed such a decree is capable of execution
by the plaintiff as well as the defendant and therefore either of them can be decree-holder.

Satyawati v. Rajinder Singh and Anr. [(2013) 9 SCC 491]

A three-Judge Bench of the Supreme Court of India has observed that Decree Holders must enjoy the
fruits of the decree obtained by them in an expeditious manner.

3. Judge
Section 2 (8) of the Code defines Judge as follows:

„Judge‟ means the presiding officer of a Civil Court.

General Explanation of Judge

According to the definition, it has defined the meaning of judge but it has not defined the term „court‟,
court means an assembly or judges or other persons acting as a tribunal in civil and criminal cases. It is
a place where justice is judicially administered. When a statute provides that a particular matter will be
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determined by a court the presiding officer over the said court will be deemed to exercise jurisdiction as
a court and not as a personal designate.

4. Judgment
Section 2 (9) of the Code defines the term Judgment as follows:

„Judgment‟ means the statement given by the Judge on the ground of a decree or order.

General Explanation of Judgment

A Judgment is a statement of the Judge based on the grounds of decree or order. An analysis of the
whole grounds of the decree, when turned in a statement by a judge, is termed as Judgment. A
judgment provides some rights and liabilities to the petitioner and the defendant. Every Judgment other
than the court of small causes should contain the following:

 A concise statement of the case.

 The points for determination.
 The decision thereon.
 The reason for such decision.
5. Judgment Debtor
Section 2 (10) of the Code defines the term Judgment Debtor as follows:

„Judgment Debtor‟ means any person against whom a decree has been passed or an order capable of
execution has been made.

General Explanation of Judgment Debtor

A party against which an unsatisfied court decision is awarded; a person who is obligated to satisfy the
court decision. The term judgment debtor describes a party against which a court has made a monetary
award. If a court renders a judgment involving money damages, the losing party must satisfy the
amount of the award, which is called the Judgment debt. The losing party is called the Judgment
Debtor. In other words, the losing defendant in a lawsuit who owes the amount of the judgment to the
winning party is Judgment Debtor.

6. Order
Section 2 (14) of the Code defines the term Order as follows:

„Order‟ means the formal expression of any decision of a Civil Court which is not a decree.

General Explanation of Order

The adjudication of a court which is not a decree is an order. As a general rule, an order of the court of
law is founded on objective considerations and as such the judicial order must contain a discussion of
the question at issue and the reason which prevailed with the court which led to the passing of the
order. An order should be a formal expression of any decision. The decision should be pronounced by
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the civil court. An order generally originated from any suit, it generally arises from a proceeding
commenced on an application. An order may or may not finally determine the rights of the parties. An
order is passed from a single suit.

Orders are of two kinds, appealable orders and non-appealable orders.

7. Foreign Court
Section 2 (5) of the code which is substituted by Act 2 of 1951 defines the term Foreign Court as
follows:

„Foreign Court‟ means a Court situated outside India and not established or continued by the authority
of the Central Government.

General Explanation of Foreign Court

The court which is not regulated by the Indian Government and Indian government or court does not
exercise its jurisdiction over there are Foreign Courts.

Lalji Raja vs. Firm Hansraj Nathuram [AIR 1971 SC 974 (976)]

The Bankura Court cannot be considered as a „foreign court‟ within the meaning of that expression in
the Code.

Essentials of a Foreign Court

 It must be situated outside India.

 It must not have been established or continued by the Central Government.
Thus courts in England, Scotland, Burma, Pakistan and those of the Privy Council are foreign courts.

8. Foreign Judgment
Section 2 (6) of the Code defines the term Foreign Judgment as follows:

„Foreign Judgment‟ means the judgment of a foreign Court.

General Explanation of Foreign Judgment

When a suit is filed in a foreign court and if the foreign court has jurisdiction to try the suit, in that case,
the judgment rendered by foreign court is termed as Foreign Judgment. The judgment by a foreign
court is binding on the parties. They cannot deny it. Read More

9. Legal Representative
Section 2 (11) of the Code defines the term Legal Representative as follows:
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„Legal Representative‟ means a person who in law represents the estate of a deceased person, and
includes any person who intermeddles with the estate of the deceased and where a party sues or is
sued in a representative character the person on whom the estate devolves on the death of the party so
suing or sued.

General Explanation of Legal Representative

When a person against whom a legal proceeding is going on dies in the middle of the proceeding. In
that case, his legal representative represent him in the court but only to that extent for which he is
accountable or that portion of the property which has come in his hand.

United India Insurance Co Ltd vs. Shyam Rao Metre and others [M.A.C.M.A. No. 2420 of 2012]

As the definition under section 2(11) of the code reads, it is nowhere described that a legal
representative can only be that person who is dependent on the deceased. Any person related to the
deceased can be a legal representative.

10. Mesne Profits

Section 2 (12) of the Code defines the term mesne profits as follows:

„Mesne Profits‟ of property means those profits which the person in wrongful possession of such
property actually received or might with ordinary diligence have received therefrom, together with
interest on such profits, but shall not include profits due to improvements made by the person in
wrongful possession.

General Explanation of Mesne Profits

The term „mesne profits‟ relates to the damages or compensation recoverable from a person who has
been in wrongful possession of a property owned by someone else. The mesne profits are nothing but
a compensation that a person in unlawful possession of others property has to pay for such possession
to the owner of the property.

According to the definition, mesne profit is the profit which the person who is in wrongful possession of
a property has earned from that property.

Phiraya Lal alias Piara lal vs. Jia Rani [AIR 1973 DEL 186]

The Hon‟ble Delhi high court while defining the term mesne profits observed that, “when damages are
claimed in respect of wrongful possession of the immovable property on the basis of the loss caused by
the wrongful possession of the trespasser to the person entitled to the possession of the immovable
property; these damages are called as mesne profits”

11. Public Officer

Section 2 (17) of the Code define the term Public Officer as follows:
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„Public Officer‟ means a person falling under any of the following descriptions, namely:-

a. Every judge;
b. Every member of an All India Services;
c. Every commissioned or gazetted officer in the military, naval or air forces of the Union while
serving under the Government;
d. Every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on
any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose
of any property, or to execute any judicial process, or to administer an oath, or to interpret, or to
preserve order, in the Court and every person specially authorized by a Court of Justice to perform any
of such duties;
e. Every person who holds any office by virtue of which he is empowered to place or keep any
person in confinement;
f. Every officer of the government whose duty it is, as such officer, to prevent offences, to give
information of offences, to bring offenders to justice, or to protect the public health, safety or
convenience;
g. Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on
behalf of the Government, or to make any survey, assessment or contract on behalf of the government,
or to execute any revenue process, or to investigate, or to report on, any matter affecting the pecuniary
interests of the Government, or to make, authenticate or keep any document relating to the pecuniary
interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary
interests of the Government; and
h. Every officer in the service or pay of the Government or remunerated by fees or commission for
the performance of any public duty.

I. Decree
As per Section 2(2), of the Civil Procedure Code defines the term. A decree is the formal expression of
an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of
the parties with regard to all or any of the matters in controversy in the suit. It can be final or
preliminary.

It shall be deemed to include the rejection of a plaint and the determination of any question within
section 144, but shall not include –

1. any adjudication from which an appeal lies as an appeal from an order, or

2. any order of dismissal for default.
The word “deemed” usually implies a fiction whereby a thing is assumed to be something. According to
the definition, the term decree shall be deemed to include the rejection of a plaint and the determination
of any question within section 144.

For example, rejection of a plaint and the determination of questions under S. 144 (Restitution) are
deemed decrees.
A decree is preliminary when further proceedings have to be taken before the suit can be completely
disposed of. It is final when such adjudication completely disposes of the suit. It may be partly
preliminary and partly final.

The essential elements of a decree are as follows:-

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1. There must be an adjudication, i.e., a judicial determination of the matter in dispute. The
administrate decision on any matter is not a decree.
2. The adjudication must have been given in a suit. Suit means a civil proceeding instituted by the
presentation of a plaint.
3. It must have determined the rights of the parties with regard to all or any of the matters in
controversy in the suit.
4. Such a determination must be a conclusive determination. There should be a conclusive
decision and not merely an interlocutory order.
5. There must be a formal expression of the adjudication.
Examples of decisions which are Decrees – Dismissal of appeal as time-barred, Dismissal or a suit or
appeal for want of evidence or proof, Order holding appeal to be not maintainable.

Examples of decisions which are not Decrees – Dismissal of appeal for default, order of remand, order
granting interim relief.

Kinds of Decree
1. Preliminary
2. Final
3. Party preliminary and partly final
4. Deemed Decree

II. Order
The term Order has been defined under section 2 (14), of the Civil Procedure Code as the formal
expression of any decision of a Civil Court which is not a decree.

Orders are of two kinds, appealable orders and non-appealable orders.

The essential ingredients of an order are as follows

1. It should be as the formal expression of any decision.
2. The decision should be pronounced by the Civil Court.
3. The formal expression should not be a decree.
III. Distinction Between Decree and Order
The essence of the distinction between decree and order lies in the nature of the decision rather than
the manner of its expression. The main distinctions between the two are as follows:-

1. A decree can only originate from a suit commenced by presenting a plaint. But an order may
originate from any suit, it generally arises from a proceeding commenced on an application.
2. A decree is an adjudication which conclusively determines the rights of the parties with regard
to any or all matters in controversy. On the other hand, an order may or may not finally determine the
rights of the parties.
3. A decree may be preliminary or final but there is no such distinction in order.
4. Except in certain suits where two decrees, one preliminary and the other final, are passed, in
every suit, there is only one decree. On the other hand, many orders can be passed in a single suit.
5. A first appeal always lies from a decree, unless otherwise expressly provided by section 96 of
C.P.C. Appealability is the rule and Non – Appealability is the exception in the case of a decree.
 15

However, no appeal lies from an order, unless it is one of the appealable orders according to section
104 or Order 43 of C.P.C.
6. In case of a decree, an aggrieved party has the right to second appeal on the grounds
mentioned in section 100 of C.P.C. But in case of an appealable order, an aggrieved party does not
have the right to the second appeal.

JURISDICTION
Introduction
The word jurisdiction is not defined under the Code of Civil Procedure. It has been derived from Latin
terms “Juris” and “dicto” which denote “I speak by the law”. Jurisdiction means the authority to
decide.[1] It also denotes the authority vested with a court to administer justice not only in respect to the
subject-matter of the suit but also to the local and pecuniary limits of its jurisdiction. When it is said that
a court has jurisdiction to try a suit it means that it is competent to try it.[2]

Jurisdiction implies two things:[3]

i. jurisdiction over the subject-matter of the suit, and

ii. a power to make an order.
As per the proviso of section 9 of the code, the court shall have jurisdiction to try all suits of civil nature
excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore,
expressly or by necessary implication can bar the jurisdiction of civil courts in respect of a particular
matter.[4]

Scope
Supreme Court in the landmark judgement of Official Trustee v. Sachindra Nath,[5] has made the
following observation:

“When a court is held to have jurisdiction to decide a particular matter it must not only have jurisdiction
to try the suit brought but must also have the authority to pass the orders sought for. It is not sufficient
that it has some jurisdiction in relation to the subject-matter of the suit. Its jurisdiction must include the
power to hear and decide the question at issue, the authority to hear and decide the particular
controversy that has arisen between the parties.”
It is well-settled that parties cannot consent to confer jurisdiction of a court. In the leading case of A.R.
Antulay v. R.S. Nayak[6], Justice Mukharji stated, “This Court, by its directions, could not confer
jurisdiction on the High Court of Bombay to try any case for which it did not possess.”

It was further stated:

16

The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right
of appeal or to take away the right of appeal or to take away the right of appeal. Parliament alone can
do it by law and no court, whether superior or inferior or both combined, can enlarge the jurisdiction of a
court or divest a person of his rights of revision and appeal.
Similarly, the consent of parties cannot bar a competent court‟s jurisdiction to try the matter. The
agreement between parties to absolutely oust the jurisdiction of the competent court would be unlawful
and void, being against public policy (ex dolo malo non oritur actio). But if two or more courts have
jurisdiction to try the suit, it is open to the parties to select a particular forum and exclude the other
forums.

And, therefore, the parties may agree among themselves that the suit should be brought in one of those
courts and not in the other since there‟s no inherent lack of jurisdiction within the court. Such an
agreement would be legal, valid and enforceable.[7]

Lack of Jurisdiction and Irregular Exercise of Jurisdiction

There is constantly a differentiation between the need for jurisdiction and irregular exercise of it. When
it is held that a court has jurisdiction to try and adjudicate a matter, the authority of the decision given
cannot be said to be without jurisdiction inasmuch as the power to decide necessarily carries with it the
power to decide wrongly as well as rightly.[8]

The matter of grave concern is: How the absence of jurisdiction cab be segregated from irregular or
erroneous exercise of jurisdiction.

In the matter of Anisminic Ltd. V. Foreign Compensation Commission[9], The House of Lords held
that the that any mistake of law made by an adjudicating authority in the decision will be null and void
and that a statutory prohibition provision doesn‟t bar the court‟s jurisdiction from judicial review except it
is explicitly expressed.

Supreme Court in the matter of M.L. Sethi v. R.P. Kapur[10], defined the difference between
jurisdictional error and error of law within the jurisdiction which is as follows:

The distinction between jurisdictional and non-jurisdictional error is ultimately based upon a foundation
of sand. Much of the superstructure has already crumbled. What remains is likely quickly to fall away as
the courts rightly insist that all administrative actions should be simply lawful whether or not
jurisdictionally lawful.
Determination of Jurisdiction
A court has to determine whether it has the jurisdiction to decide a suit with reference to initial
assumptions made. The question depends not on the truth or falsehood of the facts into which it needs
to enquire, or upon the accuracy of its findings on these facts, yet upon their temperament, and it is
definable “at the commencement, not at the conclusion of the inquiry.”[11]
The court has inherent jurisdiction to decide the question whenever it‟s jurisdiction is challenged. All the
court or tribunal are not only entitled but bound to determine whether they can exercise their jurisdiction
in the matter filed before them or not.[12]

Thus, when a tribunal is conferred with the jurisdiction through a statute that governs it and imposes
conditions under which it can work, it‟s implied that before the tribunal accept jurisdiction in an issue, it
must be fulfilled that those conditions exist as per the law prevailing.
 17

The jurisdiction of a tribunal or any other authority stands on a different footing. Where Parliament has
invested such tribunal with the power to decide and determine finally the preliminary facts on which its
jurisdiction depends, it can decide such facts and the finding recorded by the tribunal cannot be
challenged by certiorari. But where a statute creating or establishing a tribunal does not confer that
power on a tribunal, an inferior tribunal cannot, on a wrong decision on preliminary or collateral fact,
assume and confer on itself jurisdiction which it does not possess. Such an order can be challenged
by certiorari.[13]

Kinds of Jurisdiction
 Civil and criminal jurisdiction
Civil Jurisdiction means the jurisdiction which is concerned with disputes of a “civil nature”. While,
Criminal jurisdiction, relates to crimes and punishment to offenders.

 Territorial jurisdiction
All the courts and tribunals have fixed local or territorial limits, where they can‟t exercise their
jurisdiction beyond that. These limits are fixed by the Government. Like, the High Court has jurisdiction
over the territory within the State it is situated.

 Pecuniary jurisdiction
The Code provides that a court will have jurisdiction only over those suits the amount or value of the
subject-matter of which does not exceed the pecuniary limits of its jurisdiction. High Courts and District
Courts have no pecuniary limits for jurisdiction, as they have unlimited pecuniary jurisdiction.

 Jurisdiction as to subject-matter
Different courts have been empowered to decide different types of suits. Certain courts are precluded
from entertaining certain suits. As District Judge or Civil Judge (Senior Division) only has jurisdiction in
respect of testamentary matters, divorce cases, probate proceedings, insolvency proceedings, etc.

 Original and appellate jurisdiction

Original jurisdiction is jurisdiction inherent in, or conferred upon, to a court of the first instance. In
exercise of which, the court of first instants decides suits, petitions or applications. Appellate jurisdiction
is the power or authority conferred upon a superior court to re-adjudicate by way of appeal, revision,
etc. for causes which have been adjudicated by courts of original jurisdiction.

 Exclusive and concurrent jurisdiction

Exclusive jurisdiction is what confers sole power on one court or tribunal to try, deal with and decided a
case. No other court or authority can render a judgment or pass an order for such kind of matters.

Concurrent jurisdiction is a jurisdiction which may be exercised by different courts or authorities

between the same parties, at the same time and over the same subject-matter. It is, therefore, open to
a litigant to invoke jurisdiction of any such court or authority.

 Foreign Jurisdiction
Foreign jurisdiction means jurisdiction exercised by a court outside India in a foreign country. A
judgement rendered or decision given by a foreign court is a “foreign judgement”.
 18

Jurisdiction of Civil Courts

Under Section 9 of the Code of Civil Procedure, “a civil court has jurisdiction to try all suits of civil nature
unless they are barred.” Section 9 of the Code reads as under:

The Court shall (subject to the provision herein contained) have jurisdiction to try all suits of a civil
nature excepting suits of which their cognizance is either expressly or impliedly barred.

 Explanation I – A suit in which the right to property or to an office is contested is a suit of civil
nature, notwithstanding that such right may depend entirely on the decision of the question as to
religious rites or ceremonies.
 Explanation II- For the purpose of this section, it is immaterial whether or not any fees are
attached to the office referred to in Explanation I or whether or not such office is attached to a
particular place.
Conditions
“A civil court has jurisdiction to try a suit if the following conditions are satisfied:

 The suit must be of civil nature; and

 The cognizance of such a suit should not have been expressly or impliedly barred.
Each word and expression casts an obligation on the court to exercise jurisdiction for enforcement of
the right. The word „civil‟ according to the dictionary means, “relating to the citizen as an individual; civil
rights”. As per Black‟s Law Dictionary, it is defined as, “relating to providing rights and remedies sought
by civil actions as contrasted with criminal proceedings”.

Suit expressly barred

A suit can be said to be “expressly barred” when it is barred by any enactment till the time being in
force. The legislators have the authority to bar the jurisdiction of civil courts with respect to a particular
class of suits of a civil nature, provided that, in doing so, it keeps itself within the field of legislation
conferred on it and does not contravene any provision of the Constitution.”[14]

Suit impliedly barred

“A suit is said to be impliedly barred when it is 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. Where an Act creates an obligation and enforces its performance in
a specified manner, that performance cannot be enforced in any other” manner.[15]

Similarly, certain suits, though of a civil nature, are barred from the cognizance of a civil court on the
ground of public policy. “The principle underlying is that a court ought not to countenance matters which
are injurious to and against the public welfare.”

Burden of proof
It is well-settled that it is for the party who seeks to oust the jurisdiction of a civil court to establish it. It is
equally well-settled that a statute outsings the jurisdiction of a civil court must be strictly construed.
Where such a contention is raised, it has to be determined in the light of the words used in the statute,
relevant provisions and the object and purpose of the” enactment.[16]
 19

Exclusion of jurisdiction of civil court

Form the above discussion, it is clear that the jurisdiction of a civil court is ambiguous except to the
extent it is excluded by law or arising from such law.

In a landmark judgement of Dhulabhai v. State of M.P. [17], Chief Justice Hidayatullah summarised
the following principles relating to the exclusion of jurisdiction of civil courts:

 When a tribunal is constituted through a special enactment, the jurisdiction of civil court‟s must
be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a
suit. Such a provision, however, does not exclude those cases where the provisions of a particular Act
have not been complied with or the statutory tribunal has not acted in conformity with fundamental
principles of judicial procedure.
 Where there is an express bar of jurisdiction of a court, an examination of the provisions of a
specific Act to find the adequacy or sufficiency of the remedies provided might be relevant however
this isn‟t decisive for supporting the jurisdiction of a civil court.
 Challenge to the provisions of a specific Act as ultra vires can‟t be brought before tribunals
constituted under that Act. Indeed, even the High Court can‟t go into that question on a revision or
reference from decisions of tribunals.
 When a provision is already declared unconstitutional or the constitutionality of any provision is
to be challenged, a suit can be filed. A writ of certiorari may incorporate a course for a refund if the
case is within the time recommended by the Limitation Act however it‟s compulsory but a necessary
solution for supplanting a suit.
 Where the specific Act contains no machinery for a refund of tax collected in excess of
constitutional limits or is illegally collected, a suit lies.
 Questions of the accuracy of an assessment, apart from its constitutionality, are for the
decision of the authorities and civil suit doesn‟t lie if the orders of the authorities are pronounced to be
conclusive or there is an express prohibition in a specific Act. In either case, the provisions of a
specific Act must be examined for relevant enquiry.
 The exclusion of the jurisdiction of a civil court isn‟t ready to be derived unless the conditions
above set down apply.
 If a dispute is not an industrial dispute, nor does it relate to enforcement of any other right
under the Act, the remedy lies only in a civil court.[18]
 If a dispute is an industrial dispute emerging out of a right or liability under the general or
common law and not under the Act, the jurisdiction of a civil court is alternative, leaving it to the
election of a suitor or person concerned to choose his remedy for the relief which is competent to be
granted in a particular remedy.
 20

 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 Act.
 If the right which is sought to be enforced is a right created under the Act such as Chapter V-A
then the remedy for its enforcement is either Section 33-C or the raising of an industrial dispute, as the
case may be.
Objection to jurisdiction
As per section 21 objection as to jurisdiction would not be entertained by the Appellate or Revisional
Court unless the same was raised in the trial court.[19] Even if, such objection is taken at the earliest
opportunity the decree of the trial court will not be set aside or the execution case will not be struck off
unless there has been a failure of justice. With the enactment of sub-sec. (2) to section 21, it is now
provided that even lack of pecuniary jurisdiction is regarded as technical and can be waived by the
party by not raising objection at the earliest opportunity.[20]

Jurisdiction as Preliminary Issue

The issue regarding jurisdiction can be raised before the filing of a written statement by filing a petition
and the court has to raise a preliminary issue regarding jurisdiction to decide the issue. However,
Gujarat High Court has held that in view of the amendment of Order 14 Rule 2 of the code, stated it is
not proper to hear the issue regarding jurisdiction as a preliminary issue and the said issue has to be
decided along with other issues during evidence stage.[21]

Lack of Pecuniary or Territorial Jurisdiction

If the court finds that it has no pecuniary or territorial jurisdiction to try the suit, the proper order is not a
dismissal of the suit but returning the plaint for presentation in a proper court.[22]

[1] Ujjan Bai v. State of UP, AIR 1962 SC 1621

[2] Addl Collector of Customs v. Best and Co, AIR 1966 SSC 1713

[3] Kalyan Biswas v. Bahadur Khan, AIR 1925 Cal 1258

[4] Radhakishan v. Ludhiana Municipality, AIR 1963 SC 1547

[5] AIR 1969 SC 823

[6] AIR 1988 SC 1531

[7] Hakam Singh v. Gammon (India) Ltd., (1971) 1 SCC 286

[8] Ujjan Bai v. State of U.P., AIR 1962 SC 1621

[9] (1969) 2 AC 147

[10] AIR 1972 SC 2379

[11] R v. Boltan, (1841) 1 QB 66

[12] LIC v. Indian Automobiles & Co., (1990) 4 SCC 286 at pp. 293-294

[13] Ujjan Bai v. State of U.P., AIR 1962 SC 1621

 21

[14] Umrao Singh v. Bhagwati Singh, AIR 1965 SC 15

[15] Premier Automobiles v. Kamlekar Shantaram, (1976) 1 SCC 496

[16] Abdul Waheed Khan v. Bhawani, AIR 1966 SC 1718

[17] AIR 1969 SC 78

[18] Premier Automobiles v. Kamlekar Shantaram, (1976) 1 SCC 496

[19] Kiran Singh v. Chaman Pashwan, AIR 1954 SC 340

[20] Baba Dai v. Muneswar, AIR 1985 Pat 67

[21] Kaushiklal v. Mafatlal Industries, AIR 1995 Guj 115

[22] R.S.D.V Finance Co. v. Vallabh Glass Works, AIR 1993 SC 2094

Hierarchy Of Civil Courts In India | Overview

 Introduction
 Judicial System during British Era
 Current Judicial System in India
 The Hierarchy and the nomenclature of these civil courts vary in different states
 Conclusion
Introduction
The judiciary‟, 3rd pillar of the democracy, must be suitable to the needs of the country if peace is to
exist in the country. The structure of the courts for that purpose, must be made while taking into
account the conditions and circumstances of the country in question, because the structure is not fit for
dispensing justice, and are inefficient and act arbitrarily, then any country can go into a situation of
chaos anytime. Hence, a concrete „structure of courts‟ and their hierarchy, and proper division of
powers is important to maintain peace and dispense justice in the country.

In India, the current system of judicial system is a modified version of that model, which was evolved
during the British era.

Judicial System during British Era

The British laid the foundation of a new system of dispensing justice through a hierarchy of civil and
criminal courts. Though the process was initiated by Warren Hastings, the system was concretized by
the structure evolved by Lord Cornwallis in 1793.

In each district, a Diwani Adalat, or civil court, presided over by the District Judge, who belonged to the
civil service of the British. Cornwallis thus separated the posts of the Civil Judge and the collector, and
initiated the process of separating the judiciary from the executive, and transformed the mere principle
of „independence of judiciary‟ into reality. Appeal from the orders of the district court was to go to the
Provincial Councils of Appeal, and then, finally, to the Sadar Diwani Adalat.
Below, the District Court, a subordinate mechanism was created to decide the cases with less amount
in dispute. The court, just below the District Court, was Registrars Courts, who used to be European
Officer. A number of Indian Judges were given the offices of Munsifs and Amins, who decided cases of
22

very less amount, and were posted remotely and locally so that justice is easily available and people
are not forced to travel long distances to get the justice.

To deal with criminal cases, Cornwallis divided the presidency of Bengal into four divisions, in each of
which a Court of Circuit was established, which was presided over by the civil servants of the Company.
The structure evolved by the British was new to Indians, and even the procedures evolved by the British
were analogous to their system in Europe, but alien to the locals, i.e., Indians; But, the law which was
being applied to Indians before the British judicial system had come into existence, continued to apply,
even after the British Judicial system came into existence. In civil law, Indians were governed by their
customary laws which arose from the long tradition and practice.

In 1831, William Bentinck abolished the Provincial Courts of Appeal and Courts of Circuit. Their work
was assigned first to Commissions and later to District Judges and Collectors. As these Commissions
decided cases by holding some sessions, their court was subsequently called „session courts‟, which
remains the name even today.

Bentinck also raised the status and powers of Indians in the judicial service and appointed them as
Deputy Magistrates, Subordinate Judges, and Principal Sadar Ameens. This step made the judicial
system more open to the Indians and integrated them into the system, which was earlier made
exclusive to the Europeans only. The reliance of the British on the Indian Judges was now increased
and this gave more power to the Indians too, and representation within the judicial system.

In 1865, High Courts were established at Calcutta, Madras, and Bombay to replace the Sadar Courts of
District and Nizamat. Till this point in time, the basic structure of the hierarchy of the courts was
completely established, now only some minute modifications were done to adapt to the new conditions
and circumstances.

Though these courts earlier applied the Indian Laws, the British introduced regulations, codified the
existing laws, and often systematized and modernized them through judicial interpretation. In 1833, the
Government appointed a Law Commission headed by Lord Macaulay to codify Indian Laws. Macaulay‟s
work eventually resulted in the Indian Penal Code, The Code of Civil and Criminal Procedure and other
codes of laws. These codes are followed eve nowadays, with the majority of the part remaining
unamended. This shows the superiority and fineness of the work done by the Law Commission.

This judicial architecture continued for long till the enactment of Government of India Act, 1935. It
changed the structure of Indian Government from “unitary” to that of “federal.
The distribution of powers between the Centre and the provinces required the balance to avoid
disputes, which would have arisen between the constituent units and the Federation.

Since the enactment categorized different legislative subjects into 3 lists, but these subjects
overlapped, and the number of disputes between the state and the center with regard to infringement of
each others power became a consistent case. So, to resolve these disputes, the Act provided for the
establishment of a Federal Court, which was set up in 1937 with appellate and advisory jurisdiction. Its
appellate jurisdiction was extended to civil and criminal cases.
23

Current Judicial System in India

The Current Judicial System in India is broadly divided into 3 levels. The Supreme Court, i.e., the Apex
court of the country covers its peak. At the middle level, come the High courts. And at its tip, lies the
subordinate courts.
The Supreme Court, being the highest judicial body in the country holds the last say in any case filed in
any lower court, or directly into the supreme court, the only exception is the power of pardon, which lies
with the president in criminal cases, who can suspend the sentence awarded even by the supreme
court. But, in all other matters, the power of the Supreme Court is unassailable. The Supreme Court of
India was formed in Delhi and came into force on 26 January 1950. It is the highest court of land as
established by Part IV, Chapter IV of the Constitution of India.

Supreme Court comprises of Chief Justice, and 33 judges (including the Chief Justice of India) and
maximum possible strength is 34, currently Hon‟ble Mr. Justice N.V. Ramana holds the office of Chief
Justice of India. The judges of the Supreme Court are appointed by the President of India, on the
recommendation of Chief Justice of the Supreme Court and other senior-most judges of the Supreme
court through the body of “collegium”.
Supreme Court is a court of record and has the power to punish for its contempt (under Article 129,
Constitution of India). Original Jurisdiction (Art. 131) of the Supreme Court comes into play in the
matters of dispute between either 2 states, or between center or state, or between the center and more
than 2 states, contesting the suit. Supreme Court is given powers to decide such cases in the first
instance only, i.e, they can directly be filed there. Supreme Court is the Highest Court of Appeal in the
country, both for civil and criminal matters (Art. 132, 133, 134 & 136).

The most important role of the supreme court is the protection of fundamental rights, the responsibility
of it is given to the court under art. 32 by the constitution. This article confers a fundamental right on the
common man of the country to directly approach the supreme court, where there any of the
fundamental rights are infringed. This right is also called the „heart and soul of the constitution„.

This right cannot be suspended even during an emergency. The Supreme court also advises the
president when its advice is sought on any „question of law‟, but it is not binding on the court to tender
the advice. Ultimately, the law declared by the Supreme court is binding on all courts in India (art. 141,).
Hence, it is correctly said that legislature „makes‟ the law, but the supreme court „declares‟ the law, and
is revered as „guardian of the constitution in India.

Second inline comes, the High Courts. High Courts are also constitutional courts established under Part
VI, Chapter V, of the Indian Constitution. High Court stands at the head of State‟s Judicial
administration.
There are 25 High Courts in India, six having control over more than one State/UT. Among the Union
Territories, Delhi alone has a High Court of its own.

The other six Union Territories come under the jurisdiction of different State High Courts. A High court
may also have some subordinate benches other than its principal bench to accommodate the immense
population of any state like Madhya Pradesh High Court has its other benches at Indore and Gwalior.
The Calcutta High Court is the oldest High Court in the country, established on 2 July 1862, whereas
the Allahabad High Court is the largest, having a sanctioned strength of judges at 160.

Each High Court comprises a Chief Justice and such other Judges as the President may, from time to
time appoint. The Chief Justice of a High Court is appointed by the President in consultation with the
Chief Justice of India and the Governor of the state.
24

The procedure for appointing of the High Court judges is the same except that the recommendation for
the appointment of Judges in the High Court is initiated by the Chief Justice of the High Court
concerned. Each High Court has the power to issue any person or authority and Government within its
jurisdiction, direction, orders or writs, including writs which are in the nature of habeas corpus,
mandamus, prohibition, quo warranto, and certiorari, for enforcement of Fundamental Rights and for
any other purpose, hence, the High courts are also called Writ Courts.

High Courts are also courts of Record and have the power to punish for contempt. With regard to
original jurisdiction, powers of the High court is very narrow and limited, only some cases like Election
Petitions directly come into the high court, otherwise, primarily High Court is an appellate court. High
Courts also have revisional jurisdiction conferred under the Civil and Criminal Procedure Code.

Administratively, Each High Court has powers of superintendence over all courts within its jurisdiction. It
can call for returns, from such courts, make and issue general rules and prescribed formats to regulate
their practices and proceedings and determine the manner and form in which book entries and
accounts shall be kept.

Last in line, comes the Subordinate Courts. Chapter VI of Part VI of the Indian Constitution has
made provisions for subordinate courts related to the judicial system. The structure and Functions of
Subordinate Courts are more or less uniform throughout the country.
The structure and functions of subordinate courts are more or less uniform throughout the country.
Designations of courts connote their functions. These courts deal with all disputes of civil or criminal
nature as per the powers conferred on them. These courts have been derived principally from two
important codes prescribing procedures, i.e., the Code of Civil Procedure, 1908 and the Code of
Criminal Procedure, 1973 and further strengthened by local statutes.

As per the direction of Supreme Court in WP (Civil) 1022/1989 in the All India Judges Association
case, a uniform designation has been brought about in the subordinate judiciary‟s judicial officers all
over the country viz., District or Additional District Judge, Civil Judge (Senior Division) and Civil Judge
(Junior Division) on the civil side and on the criminal side, Sessions Judge, Additional Sessions Judge,
Chief Judicial Magistrate and Judicial Magistrate, etc., as laid down in the Cr.P.C.

Appropriate adjustment, if any, has been made in existing posts by indicating their equivalent with any
of these categories by all State Governments/UT Administrations.

Under Article 235 of the Constitution of India, the administrative control over the members of
subordinate judicial service vests with the concerned High Court.

Further, in the exercise of powers conferred under the provision to Article 309 read with Article 233 and
234 of the Constitution, the State Government shall frame rules and regulations in consultation with the
High Court exercising jurisdiction in relation to such State. The members of the State Judicial Services
are governed by these rules and regulations.

The jurisdiction of a civil court is assigned by assigning a particular territory or town under that court,
and also assigning a particular pecuniary limit, i.e, monetary jurisdiction. The value of pecuniary
jurisdiction assigned to a particular court varies from state to state.
 25

The Hierarchy and the nomenclature of these civil courts vary in different states.
In Delhi, for instance, there are very broadly following levels of civil courts.

1. District Judge & his collateral additional District Judges

2. Senior Civil Judge
3. Civil Judge
4. Small Cause Courts.
Civil cases up to the monetary value of three Lakhs are filed before the Civil Judges. The Civil cases
having a monetary value between three Lakhs and twenty Lakhs are filed before the District Judge or
additional district Judge. The Civil cases having a monetary value above twenty Lakhs are filed directly
in the High Court.

The Small Cause Courts are established to adjudicate upon small cause matters such as guardianship
and custody matters which can be adjudicated in a summary trial that is, without a protracted and
extensive civil trial.

The court of Civil Judge, Senior Civil Judge, and Additional District Judges, on the other hand, entertain
regular matters requiring proper civil trial following all the rules of evidence and procedures envisaged
in the civil procedure code.

Besides these subordinate courts, to dispense speedy justice, there are some special courts, made for
specific purposes, created under specific statutes, to resolve cases on specific matters.
Such as courts made under State Lokayukta Acts, Special Courts under Essential Commodities and
Narcotic Drugs and Psychotropic Substances Act (EC & NDPS Act), also special tribunals dealing with
the dispute of tax, Labour, Copyright cases. All this increases the pace of dispensing justice in certain
matters.

Also, at remote levels, panchayat courts are constituted, and they compose a system of alternative
dispute resolution. They were recognized through the Madras Village Court Act of 1935, in various
provinces. The model of the Gujarat state, with a judge and two assessors, was used from the 1970s
onwards. In 1984 the Law Commission recommended creating Nyaya Panchayats in rural areas with
laymen (“having educational attainments”).

The 2008 Gram Nyayalayas Act have foreseen 5,000 mobile courts in the country for judging petty
civil (property cases) and criminal (up to 2 years of prison) cases. However, the Act has not been
enforced properly, with only 151 functional Gram Nyayalayas in the country (as of May 2012) against a
target of 5000 such courts. The major reasons behind the non-enforcement include financial
constraints, the reluctance of lawyers, police and other government officials.

A new alternative dispute resolution mechanism is created in the form of „Lok Adalat‟, where the
disputes/ cases pending in the court of law or at the pre-litigation stage are settled/compromised
amicably.
The Adalat has been given statutory status under the Legal Services Authorities Act, 1987. Under, this
Act, an award made by a Lok Adalat is deemed to be a decree of a civil court and is final and binding
on all parties and no appeal lies against thereto before any court.
 26

The act stipulates the establishment of Permanent Lok Adalat for exercising jurisdiction in respect of
disputes relating to Public Utility Services, such as transport service, postal, communication, the supply
of power, service in hospital/dispensary, insurance service and such Lok Adalats for Public Utility
Services have been established in 16 states/UTs.

Bar of Suits | Overview

 Introduction
 Scope
 Proceedings under SARFAESI Act, 2002
 Suits not termed as Civil Suit
 Suits Impliedly Barred
 Civil Suits Not Barred
 Important Case Laws
This article on the bar of suits discusses the scope of section 9 of CPC by outlining the suits impliedly
barred, civil suits not barred and it also deals with important case laws.

Introduction
Civil suits are suits between subject and subjects dealing with civil rights. It generally means a suit in
which any valuable right is sought to be enforced.[1] As a matter of fact, it is the subject-matter of the
suit and not the status of the parties to the suit which decides whether the suit is one of civil nature or
not.[2]

Every person has statutory and inherent right to file a suit of civil nature before appropriate authority
unless the suit is barred by statute, one may, at his peril, bring a suit of his choice. A suit for its
maintainability requires no authority of law and it is enough that no statute bars the suit. Whereas in
appeal there must have a clear authority of law for its maintainability.[3] Any enactment can bar the
jurisdiction of civil courts expressly from the time being in force.[4]

Scope
Section 9 of the CPC reads

“Courts to try all civil suits unless barred- The Court shall (subject to the provisions herein contained)
have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either
expressly or impliedly barred.
Explanation I: A suit in which the right to property or to an office is contested is a suit of a civil nature,
notwithstanding that such right may depend entirely on the decision of questions as to religious rites or
ceremonies.

Explanation II: For the purposes of this section, it is immaterial whether or not any fees are attached to
the office referred to in Explanation I or whether or not such office is attached to a particular place.”

The general rule is that the assumption would be made for the presence of a right to sue in a Civil court,
the avoidance of the equivalent being an exception.
 27

Proceedings under SARFAESI Act, 2002

The Civil Court‟s jurisdiction to entertain any suit or proceeding in respect of any matter under
SARFAESI Act, 2002 is totally barred as per Section 34 of the act, which confers the jurisdiction on
Debt Recovery Tribunal or the Appellate Tribunal.[5]

Suits not termed as Civil Suit

The following are some of the instances which cannot be termed as suits of civil nature:

 Suits related to Right of Privacy;[6]

 Suit where the principal question is relating to caste;
 Suits relating purely to religious rites or ceremonies;[7]
 Suits for mere establishing dignity or honour;[8]
 Matters to be determined by special Tribunal or under the authority of an act of legislature are
expressly barred;
 A tenant who is dispossessed otherwise than in due course of law.[9]
Suits Impliedly Barred
The cognizance of a suit is impliedly barred whether by general principles of law or on grounds of public
policy. Where a right, not pre-existing in common law, is created by a statute which itself provided
machinery for enforcement of that right and finality of such statutory provision is intended then, even in
the absence of an exclusionary provision the civil court‟s jurisdiction is impliedly barred.[10]

If a right pre-existing in common law, is recognized by the statute and a new statutory remedy for its
enforcement provided, without expressly excluding the civil court‟s jurisdiction then both the common
law and the statutory remedies might become concurrent remedies. Thus, the removal of the civil
court‟s jurisdiction would depend on whether the right was pre-existing in common law or not.[11]

Another perspective to be given due consideration while deciding the jurisdiction of the Civil Court is the
principle of Res Judicata.

Section 11 of the CPC – No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former suit between the same
parties, or between parties under whom they or any of them claim, litigating under the same title, in a
Court competent to try such subsequent suit or the suit in which such issue has been subsequently
raised‟ and has been heard and finally decided by such Court.
The exclusion of jurisdiction of a civil court is not to be readily inferred, such exclusion must be either
explicitly expressed or clearly implied.[12]

Civil Suits Not Barred

The following are some of the instances where civil suits are not barred:

1. Suit for Damages[13]

2. Refund of Advance Sales-Tax paid under mistake of law[14]
3. For possessions and mesne profits[15]
4. Suit for correction of date of birth[16]
5. Suits under Consumer Protection Law[17]
6. Suit for a refund of wharfage and demurrage charges collected by railway.[18]
7. Suit for declaration for no liability to pay revenue in case of ferries resumed by government.[19]
8. Exercise of equity jurisdiction[20]
 28

9. Suits for recovery[21]

10. Suit for declaration of title and possession[22]
11. Suit for declaration for illegal retrenchment[23]
12. Suits under section 20(6) of Minimum Wages Act, 1948[24]
13. Recovery of debt due to Bank & Financial Institutions Act, 1973[25]
Important Case Laws
The High Court of Calcutta in Hirday Nath v. Ram Chandra[26] “looked to clarify the term jurisdiction.
It stated jurisdiction may be defined to be the power of Court to hear and determine a cause, to
adjudicate and exercise any judicial power in relation to it; in other words, jurisdiction means the
authority which a court has to decide for the matters presented in a formal way for its decision.”

In the matter of Dhulabhai v. Province of M.P[27], Chief Justice Hidayatullah stated the following
principles for bar of suits arising from an express provision or arising by necessary intendment:

1. Where the statute gives a finality to the orders of the special tribunals the civil court‟s
jurisdiction must be held to excluded if there is adequate remedy to do what the civil courts would
normally do in a suit. Such provision, however, does not exclude those cases where the provisions of
the particular act have not been complied with or the statutory tribunal has not acted in conformity with
the fundamental principles of judicial procedure.
2. Where there is an express bar of the jurisdiction of the court, an examination of the scheme of
the particular act to find the adequacy on the efficiency of the remedies provided may be relevant but is
not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the
examination of the remedies and the scheme of the particular act to find out the intendment becomes
necessary and the result of the inquiry may be decisive. Then, it is necessary to see if the statute
creates a special right or a liability and provides for determination of the right or liability and further lays
down that the said shall be determined by the tribunals so constituted and remedies available.
3. The tribunals constituted under any act cannot adjudicate the matter where the provisions of
the particular act are challenged as ultra vires. Even the High Court does not have the authority to
adjudicated the same on a revision or reference from the decision of the tribunals.
4. A suit is always open to challenge the constitutionality of any provision if it has not been
declared unconstitutional. A writ of certiorari may include a direction for refund if the claim is clearly
within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
5. A suit lies when the particular act has no provision to refund excess tax collected beyond
constitutional limits or collected illegally.
6. Question of the correctness of the assessment apart from its constitutionality are for the
decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be
final or there is an express prohibition in the particular act. In either case, the scheme of the particular
act must be examined because it is the relevant enquiry.
7. An exclusion of the jurisdiction of the civil court is not ready to be inferred unless the conditions
above set down apply.

However in the matter of Shri Panch Nagar Parak v. Puru Shottam Das[28] “Supreme Court held
that without any express statutory provisions, the court needs to inspect the reason, rules and related
provisions of the Act so as to decide the bar of the jurisdiction of Civil Courts.”

In the matter of State of A.P. v. Manjeti Laxmi Kanth Rao[29] the Supreme Court laid down test for
exclusion of the jurisdiction of civil courts where a suit is expressly barred from any special law or
29

enactment. Firstly, the intention of the legislature is to be considered which bars the jurisdiction of civil
courts either expressly or impliedly.

This implies the Court should initially attempt to decide the exact purposes behind the bar of jurisdiction
of the Civil Courts, and its applicability. During the trial of the suit, if the court is of the opinion that the
rule which bars the jurisdiction of the civil courts is valid and binding. Whereby, a reasonable alternative
is provided under the same act, the civil court shall not have the authority to pass an order under the
same act.

In the matter of Balawwa v. Hasanabi[30] Supreme Court held “that the Civil Court lacks jurisdiction to
entertain any suit barred under” any other act if the jurisdiction is conferred to a Tribunal under the act.
As the tribunal is the competent authority to preside over the matter. The matter in this case was with
regard to The Karnataka Land Reforms Act 1961 which is to be adjudicated by Land Tribunal, yet the
petitioner has filed this matter before the civil court.

In this regard, the High Court at Allahabad in numerous cases held that a suit is barred of jurisdiction by
the Civil Courts just if the cognisance of the whole suit is barred. This infers if a specific suit emerges, a
piece will generally not be taken up by the Civil Court, because of express or inferred prohibition. The
purpose of the law is to provide relief and in such cases, if the tribunal refuses to adjudicate on the
same issue then, civil courts have the original jurisdiction to try the suit.

Subsequently, if the jurisdiction of the Civil Court doesn‟t extend to all issues under certain
circumstances in specific suits. It may exercise the inherent powers to exercise the jurisdiction to try the
suit of civil nature without any adverse order to the parties. That the Supreme Court has time and again
explained the circumstance where a suit can be adjudicated by courts in regards to the jurisdiction of a
Civil Court wherein its jurisdiction is absolutely barred, explicitly or impliedly and where a part of it
isn‟t.[31]

[1] Bishan Dayal v. Keso Prasad, AIR 1937 All 176

[2] Maharani Devi v. Ram Adhar, AIR 1962 All 23

[3] Ganga Bai v. Vijai Kumar, AIR 1974 SC 1126

[4] Ohene Moore v. Akesseh Tayee, AIR 1935 PC 5

[5] Bhaiyalal Tiwari v. Central Bank of India, AIR 2014 MP 57

[6] Sayyad Azuf v. Ameerubibi, (1895) ILR 18 Mad 163

[7] Narayana Mudali v. Peria Kalathi Mudali, AIR 1939 Mad 494

[8] Sinha Ramanuja v. Ranga Ramanuja, AIR 1961 SC 1720

[9] State of MP v. Morodhwaj Singh, AIR 1960 SC 976

[10] Mohd. Ishaq v. Mohd. Bashir, AIR 1961 Punj 8

[11] Raja Ram Kumar Bhagawa v. UOI, AIR 1988 SC 752

30

[12] Mario Cotta Pereira v. State of Goa, 2010 (6) Mah LJ 115

[13] MP Electricity Board, Jabalpur v. Vijaya Timber Co, AIR 1997 SC 2364

[14] State of Bombay v. Jagmohandas, AIR 1966 SC 1412

[15] Durga Singh v. Tholu, AIR 1963 SC 361

[16] Ishar Singh v. National Fertilizers, AIR 1991 SC 1546

[17] State of Karnataka v. Vishwabarathi House Building Coop Society, AIR 2003 SC 1043

[18] Raichand A Shah v. UOI, AIR 1964 SC 1268

[19] Ranendra N Sinha v. State of WB, AIR 1971 SC 1245

[20] Shiv Kr Sharma v. Santosh Kumari, AIR 2008 SC 171

[21] IFCI Ltd. v. Cannanore Spg & Wvg Mills Ltd., AIR 2002 SC 1841

[22] Sulochana v. Rajendra Singh, AIR 2008 SC 2611

[23] Allahabad Distt Co-op Ltd. v. Hanuman, AIR 1982 SC 120

[24] Pabbojan Tea co. v. Dy. Comm. Lakhimpur, AIR 1968 SC 271

[25] JP Builders v. Ramadas Rao, (2011) 1 SCC 429

[26] AIR 1929 Cal 445

[27] AIR 1969 SC 78

[28] AIR 1999 SC 3071

[29] AIR 2000 SC 2220

[30] (2000) 9 SCC 272

[31] Ramesh Chand Ardawatiya v. Anil Panjwani, AIR 2003 SC 2508

 31

Res Sub Judice | Overview

 Introduction
 Object of Res Sub Judice
 Scope
 Conditions
 Res judicata and res sub-judice
 Suit Pending in a foreign court
 Inherent power to stay
 Contravention
 Interim orders
 Res Sub-Judice and Lis Pendens
Introduction
Section 10 of the Code of Civil Procedure, 1908 deals with the principle of res sub judice. The principle
bars the trial of a subsequent suit in which the matter in issue is directly and substantially in issue in a
previously instituted suit between the same parties and the court before which the previously instituted
suit is pending is competent to grant the relief sought.

The rule applies to trial of a suit and not the institution thereof. It also does not preclude a court from
passing interim orders, such as grant of injunction or stay, appointment of receiver, etc. It, however,
applies to appeals[1] and revisions.[2]

Object of Res Sub Judice

The object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously entertaining
and adjudicating upon two parallel litigations in respect of the same cause of action, same subject-
matter and same relief.[3] The institution of the second suit is not barred, though the trial thereof may
not be proceeded with. Furthermore, section 10 authorizes only stay of the proceedings and not the
dismissal of the proceedings.[4]

The keywords in Section 10 are “the matter in issue is directly and substantially in issue in a previously
instituted suit.” Hence, when the matter in controversy is the same, then only Section 10 applies. When
it is different, the section has no application.[5]

In Guru Prasad v. Bijay Kumar[6], the court held that the does the rule prevent the courts from
following any other procedure to adjudicate the suit together which would serve the ends of justice.
Thus, it is fundamental to note that the rule of res sub judice merely lays down a procedure that has to
be followed by the court, it is not an inherent legal right of the party i.e. it does not mean that getting the
order of staying the suit is an absolute right of the party.

The object of the said section is to prevent courts of concurrent jurisdiction from simultaneously
adjudicating upon two parallel litigations in respect of the same issues and the same relief. The policy of
the law is to eliminate the possibility of two contradictory verdicts. If consolidation of two suits helps
generate the same underlying principle, it would not in any way hinder the policy behind the doctrine
of res sub judice.
The section intends to protect a person from a multiplicity of proceedings and avoid a conflict of
decisions.[7] It also aims to avert inconvenience to the parties and give effect to the rule of res judicata.

Scope
The stay of a suit as envisaged under section 10 relates to the trial and not the proceedings. The court
which has stayed the suit would not lose its control over the suit or proceedings and it continues to
administer the said suit including the proceedings except to the extent of laying its hands for conducting
the trial.[8]
 32

Conditions
For attracting the provisions of Section 10, the following conditions must be fulfilled:

 There must be two suits, one previously instituted and the other subsequently instituted.
 The matter in issue in the subsequent suit must be directly and substantially in issue in the
previous suit.
 The suits must be between the same parties or their successors.
 The previously instituted suit must be pending in the same court in which the subsequent suit is
brought or in any other court in India or in any Central Government or before the Supreme Court.
 The court in which the previous suit is instituted must have jurisdiction to grant the relief
claimed in the subsequent suit.
 Such parties must be litigating under the same title in both the suits.
As soon as the above conditions are satisfied, the court shall not proceed with the subsequently
instituted suit. Since the provisions contained in Section 10 are mandatory, and no discretion is left with
the court.[9] It is, however, necessary that for Section 10 to be attracted it is essential that entire
subject-matter in controversy must be the same between the previous suit and subsequent suit would
not be sufficient.[10] The order staying proceedings in the subsequent suit can be made at any
stage.[11]

The Gujarat High Court in Sohal Engg Works v. Rustain Jehangir Vakil Mills,[12] held that Section
10 would apply only if the whole of the subject-matter in both the suits is identical, and not merely
where only one of many issues in the two suits is identical.
Res judicata and res sub-judice
The doctrine of res judicata differs from res sub-judice in two aspects:

 Whereas res judicata applies to a matter adjudicated upon (res judicatum), res sub judice
applies to a matter pending trial (sub-judice); and
 Res judicata bars the trial of a suit or and issue which has been decided in a former suit, res
sub judice bars trial of a suit which is pending decision in a previously instituted suit.
Suit Pending in a foreign court
Explanation to Section 10 provides that there is no bar on the power of an Indian court to try a
subsequently instituted suit if the previously instituted suit is pending in a foreign court.[13]

Inherent power to stay

Even where the provisions of Section 10 of the code do not strictly apply, a civil court has inherent
power under Section 151 to stay a suit to achieve the ends of justice.[14] Similarly, a court has inherent
power to consolidate different suits between the same parties in which the matter in issue is
substantially the same.[15]

Contravention
A decree passed in contravention of Section 10 is not a nullity, and therefore, cannot be disregarded in
execution proceedings[16]. Again, as stated above, it is only the trial and not the institution of the
subsequent suit which is barred under this section. Hence, if the parties waive their right and expressly
ask the court to proceed with the subsequent suit, they cannot afterwards challenge the validity of the
subsequent proceedings
33

Interim orders
An order of stay of a suit does not take away the power of the court from passing interim orders. So, in
a stayed suit, it is open to the court to make interim orders, such as attachment before judgement,
temporary injunction, the appointment of a receiver, amendment of a plaint or written statement, etc.[17]

Res Sub-Judice and Lis Pendens

Generally, Res sub-judice means, there must not be two suites under trial at the same time between
the same parties on same subject matter for the same cause of action in two deferent compatible
courts, the court must in this situation stay the later filed suit. This above-stated procedure is called Res
sub-judice.

And, Lis pendens means, during the pendency of any suit or proceeding in any court which is not
collusive and in which any right to immovable property is directly and specifically in question, the
property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to
affect the rights of any other party thereto under any decree or order which may be made therein,
except under the authority of the Court and on such terms as it may impose according to Section 52 of
the Transfer of Property Act,1882.

Here we can see that Lis pendens prevent the sail of Immovable property when the suit is under trial
and, Res Sub-judice prevents run multiple suits at the same time with same parties, subject matter and
the same cause of action in different compatible courts

[1] Raj Spinning Mills v. A.G. King Ltd., AIR 1954 Punj 113

[2] Vaithilinga Pandara Sannadhi, Re, AIR 1930 Mad 381

[3] Karnal Distillery Co Ltd v. LP Jaswal, AIR 1951 Punj (Simla) 275

[4] Asharfi Lal Ramdeo v. Ganeshi Ram Jagarnath, AIR 1952 All 546

[5] Aspi Jal v. Khushroo Rustom Dadyburjor, (2013) 4 SCC 333

[6] AIR 1984 Ori 209

[7] S.P.A. Annamalay Chetty v. B.A. Thornhill, AIR 1931 PC 263

[8] Ranju Ram v. Nand Lal, AIR 2011 HP 35

[9] Manohar Lal Chopra v. Seth Hiralal, AIR 1962 SC 527

[10] Indian Bank v. MS Co-op Marketing Fedn Ltd., AIR 1988 SC 1952

[11] Life Pharmaceuticals (P) Ltd. V. Bengal Medical Hall, AIR 1971 Cal 345
 34

[12] AIR 1981 Guj. 110

[13] Ladi Prashad v. Karnal Distillery Co Ltd, AIR 1954 Punj 94

[14] Jado Rai v. Onkar Prasad, AIR 1975 All 413

[15] P.P Gupta v. East Asiatic Co., AIR 1960 All 184

[16] Pukhraj D. Jain v. G. Gopalakrishna, (2004) 7 SCC 251

[17] Indian Bank v. Maharashtra State Coop. Mktg. Federation Ltd. (1998) 5 SCC 69

RESJUDICATA

Introduction
Res judicata is a plea prescribed under section 11 of the Code of Civil Procedure. It is a doctrine
applied to give finality to a lis in original or appellate proceedings. The doctrine in substance means that
an issue or a point decided and having attained finality, should not be allowed to be re-opened and re-
agitated over again.

The meaning of “res” is “everything that may form an object of rights and includes an object, subject
matter or status” and res judicata means “a matter adjudged; a thing judicially acted upon or decided; a
thing or matter settled by judgement”[1]
All civilized legal system have accepted the doctrine of res judicata. Under the Roman Law, a
defendant could successfully contest a suit filed by a plaintiff on the plea of “ex captio res judicata”. It
was said, “one suit and one decision are enough for any single dispute”.

Scope
The doctrine of res judicata have their roots on the following three maxims:

 Nemo debet bis vexari pro una et eadem causa – no man should be vexed twice for the same
cause;
 Interest reipubliace ut sit finis litium – it is in the interest of the State that there should be an
end to a litigation;
 Res judicata pro veritate occipitur – a judicial decision must be accepted as correct.
The doctrine of res judicata is founded on the principles of equity, justice, and good conscience.[2] The
doctrine applies to all civil and criminal proceedings and equally to all quasi-judicial proceedings before
tribunals.[3] Section 11 of the Code is applicable to both the parties to a suit and not against the
defendant alone. The principle of res judicata is furtherance against the court and is a mixed question of
the fact and law and has to be specifically pleaded.[4]

Justice Das Gupta, in the case of Satyadhyan Ghosal v. Deorjin Debi[5] has explained the doctrine of
res judicata in the most simplest way which is as follows:

“The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says
is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past
litigation and future litigation. When a matter, whether on a question of fact or a question of law, has
been decided between two parties in one suit or proceeding and the decision is final, either because no
 35

appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither
party will be allowed in a future suit or proceeding between the same parties to canvass the matter
again.”
Conditions for Res Judicata
The issues involved, adjudicated and decided in a former suit can‟t always operate as res judicata in a
subsequent suit. As per section 11 of the code, a matter to be termed as res judicata must satisfy the
following conditions:[6]

 Matter in a suit – A matter cannot be said to have been directly and substantially in issue in a
suit unless it is alleged by one party and denied or admitted, either expressly or by necessary
implication.[7]

 Same parties or parties under whom any of them claim – Parties are a person whose name is
on the record at the time of the decision, and a party may be a person who has intervened in the
suit.[8]
 Litigation under the same title – That the parties to the subsequent suit must have litigated
under the same title in the former suit.[9]
 Competent Court – In the subsequent suit, it is necessary that the court which tried the former
suit must have been a court competent to try the subsequent suit.[10]
 Finality – When the court has exercised its judicial mind and has, after argument and
consideration, come to a decision on a contested matter.[11]
Res Judicata and Withdrawal of Suit
Order 23, Rule 1 of the code deals with the withdrawal of suits. It provides that where the plaintiff
withdraws the suit or abandons his claim without the leave of the court, he will be precluded from
instituting a fresh suit in respect of the same cause of action.

The contrast between res judicata and withdrawal of suit is the way that while in the previous the issue
is heard and later settled by the parties, in the latter the plaintiff himself withdraw or relinquishes his
case before it is adjudicated on merits.

Res Judicata and Estoppel

Estoppel is part of the law of evidence and, prevents a person from saying one thing at one time and
contradicting it later, while res judicata precludes a man from avowing the same thing in successive
litigation.[12]

Justice Mahumad in Sita Ram v. Amir Begam[13] stated that perhaps the shortest way to describe the
difference between the plea of res judicata and an estoppel, is to say that whilst the former prohibits the
court from entering into an inquiry at all as to a matter already adjudicated upon, the latter prohibits a
party after the inquiry has already been entered upon, from proving anything which would contradict his
own previous declarations or acts, to the prejudice of another party who, relying upon those
declarations or acts, has altered his position. In other words, res judicata prohibits an inquiry whereas
estoppel is only a piece of evidence.

Res Judicata between co-defendants

Res judicata between co-defendants is a kind of situation where a conflict of interest arose between co-
defendant whereby it is necessary to decide the conflict in order to grant relief to the plaintiff.[14] If it is
not necessary to decide the issue between co-defendants for granting relief to the plaintiff or if the
plaintiff is not concerned with the dispute between co-defendants inter se, or if there is no conflict of
interest between the defendants inter se such determination will not operate as res judicata between
the co-defendants.[15]
 36

If in a suit filed by A against B and C, there is a matter directly and substantially in issue between B and
C, and an adjudication upon the matter is necessary to the determination of the suit, the adjudication
may operate as res judicata in a subsequent suit between B and C, in which either of them is plaintiff
and the other defendant.[16]

Representative Suit

Explanation VI to Section 11 deals with representative suits, i.e. suits instituted by or against a person
in his representative, as distinguished from individual character. It provides that where persons litigate
bona fide in respect of a public right, or a private right claimed in common for themselves and others, all
persons interested in such right shall, for the purpose of this section, be deemed to „claim under‟ the
persons litigating.

Suits brought or defended by one or more person on behalf of themselves and others with the leave of
the court under Order I Rule 8, are common instances of this class.[17]

The conditions under which the decision in such a suit may constitute res judicata against the parties to
a suit are as follows:[18]

1. The must be a right claimed by one or more persons in common for themselves and others not
expressly named in the suit;
2. The parties must have implied interest in the suit despite not being named;
3. The litigation must have been conducted for interested parties in a bonafide manner; and
4. If the suit is under Order 1 Rule 8 where all the conditions therein have been strictly complied
with.[19]
Public Interest Litigation

The public interest litigation has emerged in the forms of writs. Explanation VI applies to the public
interest litigation, but it must be proved that the previous litigation was public interest litigation and not
by the way of a private grievance.[20]

In Rural Litigation and Entitlement Kendra v. State of UP[21] it was observed that every technicality
in procedural law is not available as defence when a matter of grave public importance is for
consideration before the court, even if there is a final order in a dispute of the type under consideration,
it would be difficult to entertain the plea of res judicata.

Res Judicta and Writs

The doctrine of res judicata also applies to writ proceedings under Article 32 of the Constitution. In a
writ petition under Article 226 filed before the High Court, challenging the detention of a person is
dismissed and subsequently, a writ petition under Article 32 is filed before the Supreme Court, with
some additional point not raised before the High Court, the agitation of these additional points before
the court will not be barred.[22]
 37

The Supreme Court in the landmark case of Daryao v. State of U.P.[23] has extensively dealt with the
question of applicability of the principle of res judicata in writ proceedings and laid down certain
principles which may be summarised thus:

 When a petition under Article 226 is considered, contested on merits and is dismissed, the
decision would continue to bind the parties unless it is otherwise modified or reversed by appeal or
other appropriate proceedings as prescribed under the Constitution.
 It would not be open to a party to ignore the said judgement and more the Supreme Court
under Article 32 by an original petition made on the same facts and for obtaining the same or similar
orders or writs.
 A dismissal of writ petition under Article 226 by any High Court not on merit but due to laches of
the petitioner or when the party have an alternative remedy available with them, the dismissal for the
writ petition would not constitute a bar to a subsequent petition under Article 32.
 Such a dismissal may, however, constitute a bar to a subsequent application under Article 32
where and if the facts thus found by the High Court by themselves relevant even under Article 32.

 Whether the writ petition would constitute a bar would depend upon the nature of the order.
There will no bar if the order is on merits.
 If the petition is dismissed in the timeline without a speaking order, such dismissal cannot be
treated as creating a bar of res judicata.
Power of court to correct errors
“One of the first and highest duties of all courts is to take care that the act of the court does no injury to
the suitors”. It has been said that “an act of court shall harm none” (actus curiae neminem gravabit).
All courts, therefore are bound to take care that their acts do not cause harm or injury to suitors.

In the leading case of A.R. Antulay v. R.S.Nayak [24], the Constitution Bench of the Supreme Court
ordered the withdrawal of a case against the appellant pending in the court of a Special Judge and
transferred it to the High Court of Bombay. A preliminary objection was raised by the appellant against
the jurisdiction of the High Court. It was, however, negatived by the court. The appellant then
approached that Supreme Court. It was contended that the direction was contrary to law and could not
have been issued. The arguments of the respondent were of res judicata.

Supreme Court also observed that when an appeal is allowed by recalling the earlier order, the said act
amounts to violative of fundamental rights of the appellant and doctrine of res judicata should not be
applicable in such situation.

Avoidance of Res Judicata

The jurisdiction of a court cannot be affected by the plea of res judicata. It is a plea in bar, which a party
may waive. If a party does not raise the plea of res judicata, it will be deemed to be a matter directly
and substantially in issue and decided against him.[25] Where a party fails to raise such a plea at the
proper stage of the suit or proceedings, it will be deemed to have been waived.[26] The waiver of such
plea has to be decided on the facts and circumstances of each case.[27]

[1] Escorts Farms Ltd v. Commissioner, Kumaon Division, Nainital, AIR 2004 SC 2186
38

[2] Lal Chand v. Radha Krishna, AIR 1977 SC 789

[3] Sulochana Amma v. Narayatianan Nair, AIR 1994 SC 152

[4] R Govindasamy v. Kasturi Ammal, AIR 1998 Mad 218

[5] AIR 1960 SC 941

[6] Lonakutty v. Thoman, AIR 1976 SC 1645

[7] ibid

[8] Gobind v. Taruck, (1878) ILR 3 Cal 145

[9] Koshal Pal v. Mohan Pal, AIR 1976 SC 688

[10] Gopi Nath v. Bhagwat Prasad, (1884) ILR 10 Cal 697

[11] Gur Prasad v. Gur Prasad, AIR 1944 Oudh 321

[12] Radha Rani v. Binoda Moyee, AIR 1942 Cal 92

[13] (1886) ILR 8 All 324

[14] Ferro Alloys Corp. v. UOI, AIR 1999 SC 1236

[15] Mahoob Sahab v. Syed Ismail, AIR 1995 SC 1205

[16] Barkat Ali v. Karim Baksh, AIR 1932 Lah 325

[17] Diwakar Srivastava v. State of Madhya Pradesh, AIR 1949 SC 468

[18] Surender Nath v. Brojo Nath, (1886) ILR 13 Cal 352

[19] Babu Khan v. Hukum Singh, AIR 1947 All 88

[20] Forward Construction Co & Ors v. Prabhat Mandal & Ors, (1986) 1 SCC 100

[21] (1989) Supp 1 SCC 504

[22] Municipal Copn. Of Ahmedabad v. Jyotindra, 20 Guj LR 90

[23] AIR 1961 SC 1457

[24] AIR 1988 SC 1531

[25] Moturi v. Sri Rajah Venkatadri, (1916) 31 MLJ 219

[26] Nazim Ali v. Anjuman Islamia, (1999) 3 SCC 91

[27] State of Punjab v. BD Kaushal, AIR 1971 SC 1676

 39

Doctrine of Res Sub judice and Res Judicata.

Introduction
One of the Yardsticks of Assessing the Functioning of the courts is to assess the „Judicial Efficiency‟.
The Judicial Efficiency is not only dependent on the working of the judges and the courts, rather it
depends more on the right implementation of the „common law rules‟ and doctrines, which are there to
increase the pace of getting the justice in the court, i.e., increasing the judicial Efficiency.

Two of Such Doctrines are:- Doctrine of Res Sub judice and Res Judicata.

Res Sub Judice

Subjudice in Latin means „under judgment‟. It denotes that a matter or case is being considered by
court or judge. When two or more cases are filed between the same parties on the same subject
matter, the competent court has the power to stay proceedings. However, the doctrine of res sub
judice means stay of suit.

The Civil Procedure Code provides rules for the civil court in respect of the doctrine of res sub judice.
This rule applies to trial of a suit, not the institution thereof.
The doctrine of res sub judice aims to prevent courts of concurrent jurisdiction from simultaneously
entertaining and adjudicating upon two parallel litigations with respect to the same cause of action,
same subject matter and same relief claimed.

Section 10 of the Civil Procedure Code, 1908 embodies the doctrine in these words:-

“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, where such suit is
pending in the same or any other Court in India having jurisdiction to grant the relief claimed.
Explanation: The pendency of a suit in a Foreign Court doesn‟t preclude the Courts in India from,
trying a suit founded on the same cause of action.”

Thus it provides that, civil court should not proceed with the trial of any suit in which the matter in issue
is directly and substantially in issue in a previously instituted suit between the same parties and the
court before which the previously instituted suit is pending is competent to grant the relief sought
(Indian Bank v. Maharashtra State Cop. Marketing Federation Ltd., AIR 1998 SC 1952).

The OBJECT of the section is to protect a person from a multiplicity of proceedings and to avoid a
conflict of decisions. It also protects the litigant people from unnecessary harassment (SPA Annamalay
Chetty v. BA Thornlill, AIR 1931 PC 263).

CONDITIONS to be complied with before the application of the principle:

1. There must be two suits one previously instituted and the other subsequently instituted.
2. The matter in issue in the subsequent suit must be directly and substantially in issue in the
previous suit.
3. Both the suits must be between the same parties or their representatives.
4. The previously instituted suit must be pending in the same court in which the subsequent suit is
brought or in any other court in Bangladesh or in any court beyond the limits of Bangladesh established
or continued by the Government or before the Supreme Court.
5. The Court in which the previous suit is instituted must have jurisdiction to grant the relief
claimed in the subsequent suit.
 40

6. Such parties must be litigating under the same title in both the suits.
If these conditions are fulfilled, the subsequent suit must be stayed by the court where it is pending. It
must be remembered that the institution of the subsequent suit is not „barred‟ but its „trial‟ only. The final
decision of the former suit shall operate as res judicata in the subsequent suit.

This Doctrine cannot be applied when the point at issues are distinct and different (Alimallah v.
Sheikh, 43 DL RLL 3), or even where there are some issues in common and others are different issues
(Abdur v. Asrafun, 37 DLR 271). It is also not applicable between the suits where although the parties
are same, the issues are not the same (Manzar v. Rema, 33 DRL 49).

The Effect of the doctrine is that the court may direct to stay the subsequent proceeding. But the Court
also can exercise INHERENT POWER TO STAY. It provides that, although the provision of Section 10
is mandatory, this provision has not taken away the court‟s inherent power under Section 151 so as to
stay the proceedings on the facts and circumstances of a given case to secure the ends of justice
where section 10 is not applicable. Therefore, the court may use its inherent power to secure the ends
of justice when section 10 is not applicable, even to prevent abuse of process of the court, the court
may stay „former suit‟ too, by applying its inherent power (Ram v. Devidayal, AIR 1954 Bom. 176).
There is no bar on the power of an Indian Court to try a subsequently instituted suit if the previously
instituted suit is pending in the foreign court (Explanation to s. 10).

When a decree is passed in CONTRAVENTION the decree does not convert into nullity, and therefore,
it cannot be disregarded in execution proceedings. The legal value of the decree passed by the court
remains intact, even if it is passed in disregard of this principle.

With Respect to Interlocutory/interim orders, these can be considered as an exception to the doctrine
of res sub judice. Certain orders can be passed without a trial, such as attachment. Hence, such orders
are not affected by res sub judice. So, the rule of res Subjudice only bars the trial and does not bar the
courts from adjudicating upon interlocutory orders such as the appointment of receiver, injunction or
attachment (Sennaji Kapuechand v. Pannaji Devachand, AIR 1922 Bom 276).

Res Judicata
The principle of the Res Judicata simply means that if a competent authority has already adjudicated
upon an issue, the same parties which were party to the former suit, cannot file another second or third
suit, asking the court to adjudicate upon the issue, which is similar to the issue already adjudicated
upon in the former suit. The court then disallows the filing of the second matter. This principle facilitates
„judicial efficiency‟, and curbs the filing of „frivolous and repetitive suits‟, on the same matter.

The original maxim was, “Res Judicata pro-Veritate Accipitur”, which meant, a thing adjudged must be
taken as truth. This full maxim has over the years, shrunk to mere “res judcicata”.

The source of the Principle can be traced back to two maxims of Roman Jurisprudence. First maxim is,
“interest reipublicae ut sit finis litium”, which means, „it concerns the State that there be an end to
lawsuits‟ & Second maxim is, “nemo debet bis vexari pro una et eadem cause”, which means „no man
 41

should be vexed twice over the same cause‟. Though the principle may be traced to an English or
Roman Source, it embodies a doctrine which in no way opposes to the spirit of the law as expounded
by the Hindu commentators.

Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed by law, each
citing for this purpose the text of Katyayana, who describes the plea thus: “If a person though defeated
at law, sue again, he should be answered, „you were defeated formerly‟”. This is called the „plea of
former judgment‟.

The Principle of „Res Judicata‟ is embodied under s.11 of the Civil Procedure Code, 1908 (Besides
this, Section 300 of Code of Criminal Procedure, 1973 and Sections 40-43 of Indian Evidence Act) in
Indian Law. The Provision of the Civil Procedure Code, 1908 follows:-

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

 Explanation I- The expression “former suit” shall denote a suit which has been decided prior to
the suit in question whether or not it was instituted prior thereto.
 Explanation II. – For the purposes of this section, the competence of a Court shall be
determined irrespective of any provisions as to a right of appeal from the decision of such Court.
 Explanation III. – The matter above referred to must in the former suit have been alleged by
one party and either denied or admitted, expressly or impliedly, by the other.
 Explanation IV. – Any matter which might and ought to have been made the ground of defense
or attack in such former suit shall be deemed to have been a matter directly and substantially in issue
in such suit.
 Explanation V. – Any relief claimed in the plaint, which is not expressly granted by the decree,
shall, for the purposes of this section, be deemed to have been refused.

 Explanation VI- Where persons litigate bona fide in respect of a public right or of a private right
claimed in common for themselves and others, all persons interested in such right shall, for the
purposes of this section, be deemed to claim under the persons so litigating.
 Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of
a decree and reference in this section to any suit, issue or former suit shall be construed as
references, respectively, to proceedings for the execution of the decree, the question arising in such
proceeding and a former proceeding for the execution of that decree.
 Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction,
competent to decide such issue, shall operate as res judicata in an as subsequent suit,
notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or
the suit in which such issue has been subsequently raised.”
The principle does not affect the jurisdiction of the court but operates as a bar to the trial of the suit or
issue if the matter in the suit was „directly‟ and „substantially‟ in issue (and finally decided) in the
previous suit between the same parties litigating under the same title in a court, competent to try the
subsequent suit in which such issue has been raised.

The OBJECT of the principle rests on public policy as well as private justice. Section 11, CPC aims to
prevent a multiplicity of the proceedings and accords finality to an issue, which directly and substantially
42

had arisen in the former suit between the same parties or their privies, decided and became final so
that parties are not vexed twice over. The doctrine of res judicata is not merely a matter of procedure
but a doctrine evolved by the Courts in the larger public interest. Section 11 merely recognizes the said
doctrine which is basically based on public policy (Standard Chartered Bank v. Andhra Bank
Financial Services Ltd. & Ors., (2006) 6 SCC 94).

The SCOPE of the principle of res-judicata is defined in the judgment of Satyadhan Ghosal & Ors. V.
Smt. Deorajin Debi & Anr., AIR 1960 SC 941. The Supreme Court held that “The Principle of Res
judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is
judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future
litigation.

When a matter – whether on a question of fact or question of law – has been decided between two
parties in one suit or proceeding and the decision is final, either because no appeal was taken to a
higher court or because the appeal was dismissed, or no appeal lies; Neither party will be allowed in a
future suit or proceeding between the same parties to canvass the matter again.

This principle of res judicata is embodied in relation to suits in s. 11 of the Code of the Civil Procedure:
but even where s.11 does not apply, the principle of res judicata has been applied by courts for the
purpose of achieving finality in litigation. The result of this is that the original court, as well as any higher
court, must in any future litigation proceed on the basis that the previous decision was correct.”

The Doctrine applies to give finality to “lis” (suit) in original or appellate proceedings. The issue once
decided should not be allowed to be reopened and re-agitated twice over. The literal meaning of “res” is
“everything that may form an object of rights and includes an object, subject-matter or status” and “res
judicata” literally means “a matter adjudged a thing judicially acted upon or decided; a thing or matter
settled by judgments.” (Escorts Farms Ltd. v. Commissioner, Kumaon Division, Nainital, UP &
Ors., (2004) 4 SCC 281).

It also applies to all quasi-judicial proceedings of the tribunals other than the civil courts. (Sulochna
Amma v. Narayan Nair, JT 1993 (5) SC 450)

The Applicability of the Principle in „Writ Petitions‟ is decided by the court in Amalgamated Coalfields
Ltd. & Anr. v. Janapada Sabha Chhindwara & Ors., AIR 1964 SC 1013, by holding that, “The general
principle of res judicata applies to writ petitions filed under Article 32 and 226. It is necessary to
emphasize that the application of the doctrine of res judicata to the petitions filed under Art. 32 does not
in any way impair or affect the content of the fundamental rights guaranteed to the citizens of India. It
only seeks to regulate the manner in which the said rights could be successfully asserted and
vindicated in courts of law.”

This principle is reiterated in the case of Daryao v. State Of UP, AIR 1961 SC 1457, where the
Supreme Court has placed the doctrine of res judicata on a higher footing, considering and treating the
binding character of the judgments pronounced by competent courts as an essential part of the rule of
law.
 43

In State of Karnataka v. All India Manufacturers Organisation & Ors., AIR 2006 SC 1846, the Apex
Court held that doctrine also applies in a case of PIL (Public Interest Litigation), provided the earlier
case was a genuine and a bona fide litigation as the judgement in the earlier case would be a
judgement in rem.

In Mohanlal Goenka v. Benoy Krishna Mukherjee & Ors., AIR 1953 SC 65, the Supreme Court held
that even an „erroneous decision‟ on a question of law attracts the doctrine of res judicata between the
parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question
whether or not it operates as res judicata.

The principle of res judicata applies also as between two stages in the same litigation to this extent that
a court, whether the trial court or a higher court, having, at an earlier stage, decided a matter in one
way, will not allow the parties to re-agitate the matter again at the subsequent stage of the same
proceedings.
Section 11 of the Code of Civil Procedure clearly contemplates the existence of two suits and the
findings in the first being „res judicata‟ in the later suit, it is well established that the principle underlying,
„is equally applicable to the case of decision rendered at successive stages of the same suit or
proceeding.‟ (Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993). In this judgment, only the supreme
court enunciated the principles for application of this doctrine on „interlocutory/ interim orders‟.

The CONDITIONS to be complied with before the application of the principle are:-

1. The matter directly and substantially in issue in the subsequent suit must be the same matter
which was directly and subsequently in issue, either actually or constructively, in the former suit.
2. the former suit must have been a suit between the same parties or between parties under
whom they or any of them claim. Res judicata not only affects the parties to the suit but his privies, i.e.,
persons claiming under them.
3. the parties must have litigated under the same title in the former suit. The expression “same
title” means in the same capacity.
4. the court which decided the former suit must have been a court competent to try the
subsequent suit or the suit in which such issue is subsequently raised (This condition is done away by
insertion of Explanation VIII in s.11).
5. The matter should be heard and finally decided. If an opinion is expressed on issues not
material to the decision, then res judicata will not apply. (Matter be heard on merits and dismissal on
grounds of procedural infirmities will not attract the application of „res judicata‟).
The TEST to decide whether a matter was directly and substantially in issue in the earlier proceedings
is to see if it was necessary for that issue to be decided in order for an adjudication upon the principal
issue.

However, every single issue framed is not a matter which is directly and substantially in issue. Thus, it
becomes imperative to examine the plaint and the written statement to arrive at a conclusion as to
which issues were directly and substantially in issue and which ones were merely incidentally or
collaterally in the issue.

Another manner in which such may be tested is by checking if the decision on such an issue would
materially affect the decision of the suit. Where there are findings on several issues or where the court
rests its decision on more than one point, the findings on all the issues or points will be res judicata.
However, no objective test can be laid down to definitively determine which matters are directly and
substantially in issue in every case and it depends on the facts and circumstances of each case.
 44

Constructive Res Judicata matter is actually in issue when it is alleged by one – party and denied by
the other. It is constructively in issue when the matter might or ought to have been made a ground of
attack or defense in the former suit.
Explanation IV to Section 11 says that any matter which might and ought to have been made a
ground of defense or attack in such former suit shall be deemed to have been a matter directly and
substantially in issue in such suit.

It may, therefore, happen that a matter though not actually in issue directly and substantially may
nevertheless be regarded as having been in issue in a suit when the same might and ought to have
been made a ground of attack or defense.

The test is whether the parties had an opportunity of controverting it and if they had, the matter will be
treated as actually controverted and decided. When the matter is actually in issue the same is heard
and decided, but when it is constructively in issue from its very nature it could not be heard and
decided, for this was a matter which might and ought to have been made a ground of attack or defense
in the suit. An illustration or two will make the point clear.

An issue which ought to have been raised earlier cannot be raised by the party in a successive round of
litigation. In the case of Tata Industries Ltd. v. Grasim Industries Ltd., (2008) 10 SCC 187, the issue
before the Supreme Court was that whether the jurisdiction to appoint the arbitrator u/s 11(6) of
Arbitration and Conciliation Act, 1996, could be raised before the Supreme Court directly. The Supreme
Court rejected the argument by holding that, „Question of locus standi not having been raised before the
High Court could not survive in Supreme Court.

It amounted to an abandonment of the issue and cannot be raised before the Supreme Court.” The
Court applied the Principle of Constructive Res Judicata to question of locus standi, which was directly
raised in the Supreme Court and had not been challenged in the High court earlier.

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

 If the decree has been obtained by practicing misrepresentation or fraud on the court, or where
the proceedings had been taken all together under a special statute.
 Not every finding in the earlier judgment would operate as a res judicata. Only an issue, which
is „directly‟ and „substantially‟ decided in the earlier suit, would operate as res judicata.
 Where the decision has not been given on merit, it would not operate, in case, the appeal of the
judgement and decree of the court below is pending in the appellate court, as then the judgement of
the court below cannot be held to be final, and the findings recorded therein would not operate as res
judicata.
 When the judgment is non-speaking. (Union of India v. Pramod Gupta (Dead) by LRs &
Ors., (2005) 12 SCC 1).
 Where the matter has not been decided on merit earlier, the doctrine of res judicata is not
applicable (State of Uttar Pradesh & Anr. v. Jagdish Sharan Agrawal & Ors., (2009) 1 SCC 689).
 It does not apply to criminal cases, where the entire proceedings have been initiated illegally
and without jurisdiction. Fatima Bibi Ahmed Patel v. State of Gujarat (2008) 6 SCC 789.
 When a matter involves a pure question of law (Raju Ramsing Vasave v. Mahesh Deorao
Bhivapurkar, (2008) 9 SCC 54).
 In cases of Dismissal in limine or dismissal on default, the principle of res judicata does not
apply.
The distinction between “Res Subjudice” and “Res Judicata”
1. Res Subjudice is discussed in s.10, CPC; while Res Judicata is discussed in s. 11, CPC.
 45

2. Res Subjudice applies to the proceedings pending in the court, i.e., matters pending judicial
inquiry; while Res Judicata applies to matters already adjudicated upon.
3. Res Subjudice stays the latter suit instituted in the court which has the same matter directly and
substantially in issue in the previous suit; while Res Judicata bars the trial of a suit in which the matter
is directly and substantially in issue has already been adjudicated upon in a previous suit.
4. In the case of Res Subjudice, the previously instituted suit must be pending in the same court
in which the subsequent suit was brought or in a different court having jurisdiction to grant the relief
claimed; while in Res Judicata, No such requirement is needed.

FOREIGN JUDGMENT
Introduction
The term “foreign judgement” defined under section 2(6) of the Code of Civil Procedure means the
judgement of a foreign court. And „foreign court‟ defined under section 2(5) of the code means a court
situated outside India and not established by the authority of the Central Government.

A decree passed before the partition of India by a court having territorial jurisdiction over the land which
has fallen into Pakistan would be considered to be a foreign judgement. It cannot be executed in the
Indian domain, but a suit will have to be brought upon it.[1]

The foreign judgement can be understood as “an adjudication by a foreign court upon a matter before
it” and not the reasons for the order made by it, likewise section 13 of the Code of Civil Procedure will
be applicable where the orders are made without providing any reasons. As per proviso “Section 13 a
foreign judgement may operate as res judicata except in the six exceptions specified in the section, and
of course, in order to so operate, the other conditions of section 11 must be fulfilled.[2]
The foreign court must be competent to try the suit, not only with regards to the pecuniary jurisdiction or
subject-matter of the suit, but also with reference to its territorial jurisdiction and, the competency of the
jurisdiction of the foreign court is to be judged not by the territorial law of the foreign state, but by the
rules of private international law.”[3]

Nature and Scope

The foreign judgement is enforceable on the principle that it has been tried and adjudicated by a court
of competent jurisdiction, a legal obligation arises to satisfy that claim. Despite the fact that the
principles of private international law of each state will differ, but the comity of nations has recognized
certain rules as common to civilized jurisdictions.

This common rule is made by a thorough consideration of judicial systems prevailing in each state, for
adjudicating upon the disputes involving a foreign element and to enforce judgements of foreign courts
in certain matters, as per the international conventions.

Such recognition is accorded not as an act of courtesy but on considerations of justice, equity and good
conscience. An awareness of foreign law in a parallel jurisdiction would be a useful guideline in
determining our notions of justice and public policy. We are sovereign within our territory but it is no
derogation of sovereignty to take account of foreign law.[4]
Jurisdiction of foreign courts
As per the rule of the private international law, it is well-settled that unless a foreign court has
jurisdiction in the international sense, the judgement delivered by that court would not be recognized or
enforced in India. But the most important thing to be considered is the competency of the court‟s
jurisdiction, i.e. territorial competence over the subject-matter and over the defendant.

Its competence or jurisdiction in any other sense is not regarded as material by the courts in this
country.[5]
 46

Conclusiveness of Foreign Judgement

A foreign judgement shall be conclusive as to any matter thereby directly adjudicated upon between the
same parties or between parties under whom they or any of them claim to litigate under the same title
except-

1. Where it has not been pronounced by a court of competent jurisdiction;

2. Where it has not been given on the merits of the case;
3. Where it appears on the face of the proceedings to be founded on an incorrect view of
international law or a refusal to recognise the law of India in cases in which such law is applicable;
4. Where the proceedings in which judgement was obtained are opposed to natural justice;
5. Where it has been obtained by fraud;
6. Where it sustains a claim founded on a breach of any law in force in India.”
 Court of Competent Jurisdiction
Jurisdiction of foreign courts is determined by rules of private international law.[6] In private
international law, unless a foreign court has the jurisdiction in the international sphere, a judgement
delivered by that court will not be recognised or enforced in India and a judgement or order passed by a
court having no such jurisdiction is null and void.

Before a foreign judgement may be said to be conclusive, the following conditions must be fulfilled:

1. It must be by a competent court, which is competent under the law of the state in which it has
been constituted. The court in an international sense means that such court has jurisdiction over the
subject-matter of controversy and jurisdiction over the parties as recognised by international law,[7] and
2. Such a court must have directly adjudicated upon the matter.
 Judgement not on merits
A foreign judgement must have been decided on the merits of the case to operate as res judicata
between parties, whether the judgement of a foreign court may be of Europe or America or of a foreign
court in Asia or Africa.[8]

When a foreign judgement is not decided on the merits, it cannot be held conclusive.[9] Where a
judgement is given on evidence, it is deemed to be a judgement on the merits. However, if no evidence
is adduced by the plaintiff and judgement is against the defendant by way of penalty, it will not be
conclusive.[10]
The courts in India have the right to examine a foreign judgement to check whether it has been given
on merits.[11]

 Judgement founded on an incorrect view of International Law

A foreign judgement which appears to be founded on an incorrect view of international law or refusal to
recognise Indian law in cases in which such law is applicable is not conclusive. Such judgement shall
not be recognised in this country and hence it is not conclusive of the matters adjudicated.[12]

Thus, wherein a suit instituted in England on the basis of a contract made in India, the English court
erroneously applied English Law, the judgement of the court is covered by general principle of private
International law that the rights and liabilities of the parties to a contract are governed by the place
where the contract is made (Iex loci contractus).”[13]

 Judgement opposed to natural justice

 47

The term „natural justice‟ in this case refers to the form of procedure that to the merits of the particular
case and related to alleged irregularities in the procedure adopted by an adjudicating court and has
nothing to do with the merits of the case.[14]

The mere fact that a foreign judgement is wrong in law does not make it violative of principles natural
justice. There must be something in the procedure anterior to the judgement which is repugnant to
natural justice.[15] The court rendering the judgement must decide the matter objectively.[16]

A foreign judgement is not open to challenge under clause (d) on the ground that the law of domicile
had not been adopted in deciding on the validity, or that a mistake had been committed during delivery
of the judgement.[17]
Similarly, a judgement given without issuing notice to the defendant or without providing him with a
reasonable opportunity of presenting his case is violative of principles of natural justice and cannot be
enforced.[18] However, a judgement rendered by a foreign court after the observance of fundamental
judicial procedure and due observance of the judicial process is binding and conclusive even though it
might have proceeded on an erroneous view of evidence or law.[19]

 Judgement obtained by fraud

Fraud having a bearing on jurisdictional facts, vitiates all judicial acts, whether in rem or in
personam.[20] No judgement of a court would be allowed to stand if it has been obtained by fraud.[21]

A judgement obtained by fraud is null and void in the eye of law and can be challenged in appeal,
revision or even in collateral proceedings.[22] A foreign judgement obtained by fraud will not operate as
res judicata.[23]

 Judgement founded on a breach of any law in force in Indian

Any foreign judgement which comes before an Indian court must be in conformity with and must not
offend the land in force in India or the public policy. In case of any such breach it cannot be enforced in
India. Therefore, a foreign judgement for a gambling debt would not be enforced in India.

In the matter of Sanjay Angad Chaddah v. Deepa Sanjay Chaddah,[24] the competent court in
London passed consent order regarding the custody of child and the said order was passed on merits
of the case in the presence of both the parties and after hearing both sides, it was held that the order
passed by the court in London was not in breach of any law in force in India. So, the order constitutes
foreign judgement and would be binding on both parties.
Presumption as to Foreign Judgement
“Section 14 of the Code declares that the court shall presume, upon the production of any document
purporting to be a certified copy of a foreign judgement, that such judgement was pronounced by a
court of competent jurisdiction, unless the contrary appears on the record, or is proved. However, if for
admissibility of such copy any further condition is required to be fulfiled, it can be admitted in evidence
only if that condition is satisfied.”

In Narasimha Rao v. Venkata Kakshmi[25], “the Supreme Court held that mere production of a
photostat copy of a decree of a foreign court is not sufficient. It is required to be certified by a
representative of the Central Government of that country.”

Foreign Judgement and Res Judicata

Proviso of section 13 of the code states that, a foreign judgement is conclusive, except under the
circumstances specified in clause (a) to (f), as to any matter directly adjudicated upon by it between the
same parties, or between parties under whom they or any of them claim, litigating under the same title,
and as such it embodies the doctrine of res judicata in the case of foreign judgement.[26] Furthermore,
48

to operate a foreign judgement as res judicata, it should have been decided on the merits of the case
by the competent court.[27]

This section applies not only to suits on foreign judgements but also to cases in which the defendant
relies on a foreign judgement as a bar to suit in India.[28] A foreign judgement rendered after the
institution of a suit would operate as a bar on the principle of res judicata embodied in section 11.[29]
Judgement and Reasons
A foreign judgement is conclusive under Section 13 of the Code, but it does not include reasons in
support of the judgement recorded by a foreign court. It cannot, therefore, be held that a foreign
judgement would mean reasons recorded by a foreign judge in support of the order passed by him. If
that was the meaning of “judgement”, the section would not apply to an order where no reasons are
recorded.[30]

But Supreme Court observed that Section 13 speaks not only of “judgement “ but “any matter thereby
directly adjudicated upon”.[31]

Enforcement of Foreign Judgement

The foreign judgement can be enforced in India through execution proceedings in specified cases as
per Section 44 and 44a of the code. In execution proceedings, it is open to the judgement-debtor to rise
the objections which he may make in a suit.[32]

An Execution must be filed within three years from the date of judgement as provided under Article 101
of the Schedule in the Limitation Act, 1963 and the provisions of the Limitation Act, 1963 apply in
computing the period of limitation.[33] The pendency of an appeal in the foreign court will not bar a suit
on the foreign judgement.[34] However, if a suit on a foreign judgement is dismissed, no application will
lie thereafter to execute that judgement.[35]

Though a foreign judgement may be enforced by a suit in India, it is not to be supposed that Indian
courts are bound in all cases to take cognisance of a suit, and they may refuse to entertain it on
grounds of expediency.[36]

[1] Said-ul-Hamid v. Federal Assurance Co., AIR 1951 Simla 255

[2] Indar v. Thakur, AIR 1927 Lah 20

[3] Chormal Balchand v. Kasturchand, (1936) ILR 63 Cal 1033

[4] Satya v. Teja Singh, (1975) 1 SCC 120

[5] Sankaran Govindan v. Lakshmi Bharathi, (1975) 3 SCC 351

[6] Raj Rajendra v. Shanker Saran, AIR 1962 SC 1737

[7] R. Vishwanathan v. Abdul Mazid, AIR 1963 SC 1

[8] Santa Singh v. Ralla Singh, 49 IC 383

[9] Lalji Raja & Sons v. Firm Hansraj Nathuram, AIR 1974 SC 974

[10] Jacqueline v. Surinder, AIR 1994 P&H 309

49

[11] Mallappa v. Raghavendra, AIR 1938 Bom 173

[12] Y Narashima Rao v. Y Venkata Lakshmi, (1991) 3 SCC 451

[13] Gurdyal Singh v. Rajah of Faridkote, (1895) 22 Cal 222 (PC)

[14] Sankaran Govindan v. Lakshmi Bharathi, AIR 1974 SC 1764

[15] Rama Shenoi v. Hallagna, (1918) ILR 41 Mad 205

[16] Y Narasimha Rao v. Y Venkala Lakshmi, (1991) 3 SCC 451

[17] Manoharlal v. Raghunath, AIR 1957 MB 74

[18] R Vishwanathan v. Abdul Wazid, AIR 1963 SC 1

[19] ibid

[20] Abouloffv Oppenheimer, (1882) 10 QBD 295

[21] Lazarus Estate Ltd v. Beaslley, [1956] 1 All ER 341

[22] 954

[23] 955

[24] AIR 2011 Bom. 393

[25] (1991) 3 SCC 451

[26] R Vishwanathan v. Abdul Wazid, AIR 1963 SC 1

[27] Santa Singh v. Ralla Singh, 49 IC 383

[28] Chockalinga v. Duraiswami, AIR 1928 Mad 327

[29] Vishwa Nathan v. Abdul Wazid, AIR 1963 SC 1

[30] ibid

[31] ibid

[32] Firm Gauri Lal Dundev Das v. Jugal Kishore Sharma, AIR 1959 Punj 265

[33] Roshanlal Nuthiula v. Mohan Singh Oberoi, AIR 1975 SC 824

[34] Hari Singh v. Muhammad, AIR 1927 Lah 200

[35] Gena v. Birdhichand, AIR 1958 Raj 189

[36] Murugesa v. Aimamalai, (1900) ILR 23 Mad 458

50

PLACE OF SUITS

Introduction
Suits are generally of various kinds depending upon nature. Such as properties, contracts, torts,
matrimonial proceedings, and so on. The jurisdiction of a court to entertain, adjudicate and decide a suit
is restricted bases on the circumstances of the suit.

The foremost thing which is to be determined during the filing of a suit is the place of suing. Which
decides the place for trial and it has nothing to do with the competency of the court. Section 15 to 20 of
the Code deal with the place of suing, that is the forum for an institution of suits in India. These sections
are applicable only to those places where the Code of Civil Procedure is into effect.

Scope
Section 15
The object of this section is to prevent higher courts from over-burdening of suits.[1] Section 15 is a rule
of procedure and not of jurisdiction. And it lays down that a suit is instituted in the court of the lowest
grade, it does not oust the jurisdiction of the courts of higher grades which they possess under the Act
constituting them, accordingly, does not apply while exercising original civil jurisdiction.[2]

Allahabad High Court in Radha Charan Das v. Mohini Behari[3], held that the court-fee payable and
the valuation for the purpose of jurisdiction must be determined on the basis of allegations made and
relief claimed in the suit. Defence in the written statement has no relevance for such determination.
An objection that the court has no jurisdiction to deal with the subject-matter of the dispute is not akin to
an objection regarding territorial or pecuniary jurisdiction. If a party may not have raised the point that
the court does not have the jurisdiction to decide the subject-matter of the dispute and ultimately suffers
an order or a decree, such order/decree is nullity and that its invalidity may be raised wherever and
whenever it is tried to be implemented or relied upon, even at the stage of execution and even in
subsequent proceedings.[4]

Section 16
Section 16 refers to Courts in India and to immovable properties situated in India. Though, under the
Code of Civil Procedure, there is no definition of immovable property. However, it has been defined
under Section 3(26) of the General Clauses Act, 1985.

Suits for the recovery of immovable property or for the determination of any other right to or interest in
immovable property or for recovery of the movable property actually under distraint or attachment must
be instituted in the Court within the local limits of whose jurisdiction the property is situated.
The object of the section is to limit the territorial jurisdiction of Courts in regard to property. The
explanation of Section 16 is clear that Courts does not have any power to entertain suits in respect of
properties situated outside India. [5]

However, courts in India are not prevented from adjudicating any question in respect of property
situated outside their territorial jurisdiction where such questions arise incidentally.

Section 17
This section is intended for the benefits of parties and to prohibit the multiplicity of suits. It is
supplementary to provisions of Section 18 and is not applicable so far as Clause (f) of Section 16 is
concerned. This section provides that where a suit is to obtain relief in respect of property situated in
the jurisdiction of different Courts, the suit can be transferred to any one of the courts and such court
can deal with the whole of the property though some portion of it is situated outside its jurisdiction.
51

It is applicable to several properties either situated in different districts or the same property extends
over several districts.

In Madhao Deshpande v. Madhav Dharmadhikaree[6] the Supreme Court held that where dispute
regarding properties was located within the jurisdiction of one of the courts, that court will have
jurisdiction to entertain award. Returning of the award by the court for presentation to the court within
whose jurisdiction other properties forming the subject matter of the dispute were located, was not
proper.
Section 18
Where it is uncertain as to within whose jurisdiction of two or more courts the immovable property is
situated any one of those courts may try the suit relating to that property after recording a statement as
to uncertainty, and thereupon proceed to adjudicate and dispose of the suit relating to that property and
its decree in the suit shall have the same effect as if the property was situated within the local limits of
its jurisdiction.[7]

Section 19
Under this section “a suit for compensation for the wrong done to the person or personal property may
be brought at the option of the plaintiff either where the wrong is committed or where the defendant
resides or carries on business or personally works for gain.”[8]

Within the meaning of this section, a wrong means the infringement of a legal right and is consequently
an actionable wrong. The section applies only to actionable wrongs against any person or to movable
property. Wrong to any person refers to the same thing which is termed as trespass to the person.

According to Bombay High Court, a suit for damages for malicious prosecution can be entertained by
Courts at the place where the plaintiff was served with the summons in the criminal case as the service
of the summons is a part of wrong done to the person.[9]
The aforesaid principle would not be applicable in case of suits to be instituted against the government
for arrears of salary and travelling allowances at a place where the employee was residing throughout
but was employed at a place other than a place of his residence.[10]

Section 20
Section 20 enacts the rule as to the forum in cases of personal actions and has to be read subject to
the provisions of section 15 to 19 of the code. The section designed to secure that justice might be
brought as near as possible to every man‟s heart-stone and that the defendant should not be put to the
trouble and expense of travelling a long distance in order to defend himself.

The Principle behind the provisions of clauses (a) and (b) of section 20 is that the suit is instituted at a
place where the defendant is able to defend the suit without undue trouble.[11]

It has been held that a plain reading of section 20 of the Code of Civil procedure arguably allows the
plaintiff a multitude of choices in regard to where it may institute its lis, suit or action. Obviously, this is
also because every other place would constitute a forum non-conveniens.

The Supreme Court has harmonised the various hues of the conundrum of the place of suing in several
cases and has gone to the extent laying down that it should be court‟s endeavour to locate the place
where the cause of action has substantially arisen. It has even been held that if the defendant
corporation has a subordinate office in the place where the cause of action arises, litigation must be
instituted at that place alone, regardless of the amplitude of options postulated in section 20 of the
Code of Civil Procedure.[12]
52

Jurisdiction of Court for Contract

A suit for breach of contract can be filed at the place where the contract was entered into. It can also be
filed at the place of performance which is also part of the cause of action. Where an ouster clause
occurs, it is pertinent to see whether there is ouster of jurisdiction of other courts.

The stipulation is that the contract shall be deemed to have been made at a particular place. This would
provide the connecting factor for jurisdiction to the court of that place in the matter of any dispute on or
arising out of that contract. It would not, ipso facto take away the jurisdiction of other courts.[13]

Suit between Principal and Agent

Suits in respect of accounts against an agent can be instituted where the contract of agency was
entered into or where the accounts are to be rendered and the payment to be made by the agent. Suit
by an agent against principal for recovery of loss would lie at the place of residence of the
defendant.[14]

Suit for accounts by the principal against agent would not lie at the place where accounts were
demanded and refused.[15]

Suit between Banker and Customer

Where a is made in a Bank, the place of repayment is to be determined from the terms of the receipt. In
the absence of such terms, the money becomes payable at the place where the Bank does its
business.

In the current account, the obligation of the banker to repay arises on demand and is limited to the
office where the account is kept. The customer must make a demand for payment at the branch where
his current account is kept before he can have a cause of action against the Bank. The rule is the same
whether the account is a current or deposit.[16]

Suit against Corporation

As Explanation II of Section 20 of the Code “Corporation” includes not only statutory corporation but
also a company registered under Companies Act.[17] The incorporation, registration and corporate
office of a trading company is its principal place of business, i.e. the place where the administrative
business of the company is conducted, which may not be the place where its manufacturing or other
business operations are carried on.

Thus, irrespective of the provisions of the Companies Act, the domicile of a trading company will be the
place of its suing. The test to be conducted before filing a suit against a company is: Whether the
company carried on business at the place where it has been sued at the time of commencement of the
suit.[18]

Suits against Foreigners

Jurisdiction over persons and property apart from principles of International Law, where foreign subjects
are involved is governed by legislation passed in the country where it is sought to be exercised. The
code does not exempt foreigners from the jurisdiction of Indian Courts.[19] As regards residence, even
a temporary residence is sufficient to give jurisdiction. foreigner carrying on business through an agent
within the jurisdiction will become amenable to the jurisdiction of the Court.

If a cause of action against a non-resident foreigner arises within the territory than in itself, is sufficient
ground of jurisdiction. The presence of a foreign defendant who appears under protest to contest
jurisdiction cannot be considered as conferring jurisdiction on the court to take action.[20]
53

Unless a foreign defendant either resides within the jurisdiction or voluntarily appears or has contracted
to submit to the jurisdiction of the court, it is not possible to hold that the court will have jurisdiction
against a foreign defendant.[21]

A decree passed in a suit against non-resident foreigners is not enforceable in foreign courts.[22]

Consent of Parties to Jurisdiction

It is a well-established principle of law that jurisdiction is conferred upon courts by the legislatures only.
The consent of parties cannot, therefore, confer jurisdiction upon a court, when it does not possess it.
This principle, however, does not apply when the parties agree to submit to the exclusive or non-
exclusive jurisdiction of a foreign court. [23]

In a suit for damages against a corporation, having its branch office in a place where the cause of
action arose, the court at such place would have jurisdiction. the parties cannot confer jurisdiction on
the court where the corporation has its registered office.[24]
The parties can‟t by agreement vest in a jurisdiction on a court that isn‟t governed as per the Code of
Civil procedure. An agreement that one of the courts having such jurisdiction alone will adjudicate the
suit, isn‟t contrary to public policy. It does not contravene section 28 of the Contract Act.[25]

[1] UOI v. Ladulal Jain, AIR 1963 SC 1681

[2] Srinivas v. State of Madras, AIR 1951 Mad 93

[3] AIR 1975 All 368

[4] Hindustan Petroleum Corporation Ltd. V. Barun Shankar Chatterjee, AIR 2012 Cal 255

[5] Kondamudi Sriramulu v. Myneni Pundarikshyaya, (1950) 11 FCR 65

[6] AIR 1988 SC 1347

[7] Gokaldas Melaram v. Baldeodas, AIR 1961 Mys 188

[8] Harelishah v. Shaik Painda, AIR 1926 PC 88

[9] Khanchand v. Harumal, AIR 1965 Bom. 109

[10] State of UP v. Raja Ram, AIR 1966 All 159

[11] UOI v. Ladulal Jain, AIR 1963 SC 1681

[12] Dashrath Rupsingh Rathod v. State of Maharashtra, AIR 2014 SC 3519

[13] ABC Laminart Pvt. Ltd. V. AP Agencies, Salem, AIR 1989 SC 1239

[14] Krishan Lal v. Bhanwar Lal, AIR 1954 SC 500

[15] Dharam Datt v. Ram Lal Suri, AIR 1961 Punj. 567
 54

[16] Allahabad Bank Ltd. V. Gulli Lal, AIR 1940 All 243

[17] Hakam Singh v. Gammon (India) Ltd., AIR 1971 SC 740

[18] Babulal v. Caltex India Ltd., AIR 1967 Cal 204

[19] Muthakanni v. Andappa, AIR 1955 Mad 96

[20] H Ahmed & CO. v. Kohinoor Glass Factory, AIR 1961 AP 476

[21] World Tanker Carrier Corpn v. SNP Shipping Services Pvt. Ltd., AIR 1998 SC 2330

[22] Maloji Nar Singh Rao v. Shankar Sharan, AIR 1962 SC 1737

[23] Modi Entertainment Network v. WSG Cricket, AIR 2003 SC 1177

[24] Patel Roadways Ltd v. Tropical Agro Systems Pvt. Ltd., AIR 1992 SC 1514

[25] Hakam Singh v. Gammon (India) Ltd., AIR 1971 SC 740

Transfer of Suits | Overview

 Introduction
 Scope
 Transfer Application
 Transfer between Benches of Supreme Court
 Conclusion
Section 22-25 of the Code of Civil procedure provide the provisions as respect to transfer of Suits and
withdrawal of suits, appeals and different procedures starting with one court then onto the next.

Introduction
When in doubt, a plaintiff has an option to pick his very own adjudicating authority as „arbiter litis‟ or
„dominus‟, where a suit can be instituted. Regularly, this privilege of the plaintiff can‟t be reduced,
controlled or meddled with. [1] Be that as it may, as the right is constrained by the power entrusted in
superior courts than transferring a case pending in one lower court to another or to review the case to
the same court for adjudicating and passing a decree.

Section 22-25 of the Code of Civil procedure provide the provisions as respect to transfer and
withdrawal of suits, appeals and different procedures starting with one court then onto the next. Section
22 and 23 enable a litigant to apply for transfer of a suit while Sec. 24 and 25 enable any suit, appeals
or any other proceedings to be transferred through an application made by any parties to the suit or by
the court suo motu.

Scope
As the purview of this sections is limited to cases under Section 16 and 20 of the code. If the defendant
pleads want of jurisdiction of Court in which suit has been instituted, he cannot apply under these
sections for transfer.[2]

Section 22 enables the litigant to transfer a suit by the filing of an application before the appropriate
authority. While section 23 demonstrates the court to which such an application can be made. Section
24 encapsulates general capacity to transfer of any suit, at any stage either through an application by
any order or by request of adjudicating court. In any case, High Court has not conferred with the power
 55

of transferring any suit, execution, appeals or any other ongoing proceedings from one subordinate
court of that High Court to a court not subordinate to that High Court.[3] Section 25 presents wide
powers on Supreme Court to transfer any suit, appeal or other proceedings, with one High Court then
onto any other High Court, or any civil court in a state to any other civil court of a different state.

Transfer Application
The privilege of a litigant to apply for the transfer of a suit is given under section 22-23 of the code.
Where the plaintiff has the decision of at least two courts in which he may institute a suit, a respondent,
after notice to the contrary party, may at the most punctual open door applies to the court on its
discretion to suit transfer from the court in where it is has been recorded to another court. In different
cases, such an application might be filed by a party to the suit.

Conditions
Before the transfer is initiated two conditions must be satisfied under section 22 of the code-

 The application for transfer of suit shall be filed before any settlement of the issues between the
parties;
 The opposite parties to be served with a notice, once the application is filed.
Application for Transfer
Section 23 of the code specifies the court to which an application for transfer can be made:

1. Wherein various courts failing within the jurisdiction of the same appellate court, then an
application can be filed before the appellate court for transfer;
2. Wherein corresponding courts are subordinate under the same High Court, an application can
be filed before that High Court;
3. Wherein corresponding courts are not subordinate to the same High Court, then an application
is to be filed before the High Court within the territorial jurisdiction of the court where the proceedings
are pending;
4. The Supreme Court has been conferred with power “to transfer any suit, appeal or other
proceedings from one High Court to another Court, or from one Civil Court in the State to another Civil
Court in any other State.”
Grounds for Transfer
Convenience of the parties though is an absolute postulation for acting under Section 22 of the code,
but it cannot be the only criteria. Though minimal convenience of the parties may not be enough for the
exercise of power, it should be shown that trial in the chosen forum will result in the repulse of justice.[4]

There is uniformity of persuasion that balance of convenience is of paramount consideration for the
transfer of a suit.[5] Balance of convenience means neither the convenience of the plaintiff alone nor of
the defendant alone but for both. The court has to take consideration of the following for determining
the balance of convenience:

1. Ease for the plaintiff and the right to choose his own forum;
2. Ease for the defendant;
3. Convenience of the witness required for a proper trial of the suit;
4. Convenience of a particular place of trial having regard to the nature of evidence;
5. Complexion of issues in the suit.
56

In Manjari Sen v. Nirupam Sen[6], it was held by the High Court of Delhi that requirement of prior
notice cannot be regarded as mandatory unless it has caused prejudice to the other side. It is, however,
submitted that the requirement of giving notice must be held to be mandatory. And an order of transfer
without notice to the opposite party should be held to be bad in law being violative of the principles of
natural justice.

Duty of The Court

Where Court is of the persuasion that the petitioner or the respondent isn‟t probably going to have a
“fair trial” in the court from which he wants to transfer the case, it isn‟t just the power, yet the obligation
of the court to transfer the case.[7]

The court should go into the contents of the transfer application and should prima facie be satisfied that
the case is made out for transfer. Only than application granting transfer is valid.[8]

No notice is necessary if the Court acts suo motu. But if an application is made, notice is must and an
order for transfer made without notice will be set aside, and so will an ex parte decree made by a Court
to which a suit has been transferred without notice to the defendant.

Justice Krishna Iyer, made the following remarks in the landmark judgement of Maneka Sanjay Gandhi
v. Rani Jethmalani[9],

“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 is not the hypersensitivity or relative convenience
of a party or easy availability of legal service or like mini-grievances. Something more substantial, more
compelling, more imperilling, from the point of view of public justice and its attendant environment, is
necessitous if the court is to exercise its power to transfer. This is the cardinal principle although the
circumstances may be myriad and vary from case to case.”
At the point when the party files an application for transfer alleging of bias, prejudice or partiality have
been levelled against the Presiding officer of a court, the judge concerned should be called for before
making an order of transfer. In such report, the Presiding officer will give his version in respect of
averments and allegations made against him.

In Kaushalya Devi v. Mool Raj[10], in a transfer filed by the accused, the Delhi Administration filed an
affidavit of the Magistrate against whom the transfer application was made. Over and above, denying
the allegations made by the accused, the Magistrate tried to justify his order on merits. The Supreme
Court deprecated the action over the “partisan role” of the magistrate and stated:

“A little reflection would have satisfied him of the gross impropriety of his action in making an affidavit
like the present. It is an elementary principle of the rule of law that judges who preside over trials, civil
or criminal, never enter the arena.”
Lack of Jurisdiction
The Supreme Court in the matter of Neha Arun Jugadar v. Kumari Palak Diwanji[11], held that where
a party asserts that the court where the case is pending has no jurisdiction, he ought to apply to that
court for dismissing it on this ground. There is no doubt of transfer such a case.

Transfer between Benches of Supreme Court

Where after oral hearing of a case a party wish to transfer the case from one Bench to the other, it
cannot be done so unless the Bench is discriminatory or any other reasonable grounds for the same
which may prejudice one of the party. No such right can legitimately be claimed merely because the
judge expresses an opinion on the merits of the case.[12]
57

Transfer of Matrimonial Proceedings

In a matrimonial dispute, proceedings can be transferred at a convenient place in favour of a woman
with a minor child.[13]

Transfer to Special Court from District Court

The District Court cannot withdraw a suit pending before any other subordinate court and direct the
transfer of the same to the special court, as the jurisdiction of the special court and District court are
mutually exclusive.[14]

Application for Transfer after Hearing

It is no doubt that the transfer application can be filed at any stage during the proceedings. However, as
the discretionary power of transfer of suit, requires to be exercised in the interests of justice, the court
may refuse such prayer if it is made mala fide or with a view to obviate an adverse decision after the
hearing is over.

In Gujarat Electricity Board v. Atmaram Sungomal Poshami[15], A, an employee of the Electricity

Board was transferred, however, he didn‟t continue service at the transferred spot. Disciplinary
procedures were, in this way, taken and his service was ended. A deprived of his rights filed an appeal
before the High Court challenging the original decision, which was allowed by the High Court. The
Board moved toward the Supreme Court.

The appeal was posted for hearing and was completely heard. The court was fulfilled that the High
Court was a mistake in granting relief to A. The issue was deferred. On the following date of hearing,
another advocate stepped in to argue the issue. They did not hear him. Whereby, an application was
filed by A for transferring of the suit to some other Bench communicating his “no confidence” in the
Bench where the issue of the suit was adjudicated. Depicting the petition as “irregular. Uncalled for and
unjustified”, the court turned down the solicitation.

Retransfer
When a suit is transferred for joint trial with another suit which was decreed and an appeal against the
decree is pending for adjudication, then an application can be filed for retransfer of the transferred
suit.[16]

Conclusion
As stated about over, the intensity of transfer must be practiced with due consideration, alert and in light
of a legitimate concern for justice. The court should consistently choose the inquiry in the light of
guaranteeing reasonable preliminary and appropriate regulation of equity. What‟s more, if the parts of
the justice demands transfer of a case, the court ought not to stop for a second to allow the equivalent.

Whereas, mere inconvenience of the party or bare and vague allegations by an interested party about
insecurity or even a threat to his life is not sufficient to transfer a case. Want of territorial jurisdiction of
the court to which the case is transferred, though a relevant factor, is not conclusive and will not be an
impediment to the power of the court ordering the transfer.

[1] Indian Overseas bank v. Chemical Construction, (1979) 4 SCC 358

[2] Krishnaji Rao v. Gokaldas, AIR 1955 Mys 115.

[3] Durgesh Sharma v. Jayshree, (2008) 9 SCC 648

 58

[4] DAV Boys Sr Secondary School v. DAV College Managing Committee, (2010) 8 SCC 401.

[5] Kulwinder Kaur v. Friends education Trust, (2008) 3 SCC 659.

[6] AIR 1975 Del 42

[7] Kulwinder Kaur v. Friends education Trust, (2008) 3 SCC 659.

[8] Ramesh v. Zubeda Begum Abdul Kadar Kazi, AIR 2013 Bom 142.

[9] (1979) 4 SCC 167

[10] (1964) 4 SCR 884

[11] AIR 2011 SC 1164

[12] Gujarat Electricity Board v. Atmaram Sungomal Poshami, (1989) 2 SCC 602

[13] Arti Rani v. Dharmendra Kr Gupta, (2008) 9 SCC 353

[14] V Rajeshwar Rao v. M Yadgiri Reddy, 2007 (1) ALT 306

[15] (1989) 2 SCC 602

[16] Bihar State Food & Supplies Corpn Ltd. V. Godrej Soaps Pvt. Ltd., AIR 1997 SC 3779

NOTICE

I. Introduction
There is no statutory requirement upon an individual to provide notice to the defendant under the Code
of Civil Procedure,1908 („CPC‟) when a plaintiff is instituting a suit against the same.[1] However,
there is a statutory requirement for notice to be served upon the appropriate authority when it entails
suits against the government, in the Indian civil procedural system.[2]

This requirement also functions in case of suits against a public officer in the situation that an impugned
action has been committed by the latter in his/her official capacity.[3]

1. What is a notice under Civil Procedure Code?

The requirement of notice, as provided in Section 80 of the CPC, refers to the explicit, statutory
mandate that notice be provided to the government or public officers prior to the institution of a suit
against the same. Under Section 80(1), notice is required to be served in case of two categories of
entities:

a. Suits against the Government (Central and State governments); and

b. Suits against public officers in relation to any act purportedly committed by the same in his/her
official capacity.
After the notice has been delivered to or left in the office of the relevant entity, the government or public
officer is afforded a two-month period during which the grievance raised in the notice may be
redressed.[4] If the grievance is not so redressed, legal action may be initiated against the relevant
government or public officer.
 59

2. Whom to serve notice upon?

Section 80 clarifies the specific officers to serve notice- either by delivery to or be leaving the notice at
the office of the same. This mode of delivery has been reiterated in the caselaw.[5]

The appropriate authorities for the delivery of notice are as follows-[6]

“(a) in the case of a suit against the Central Government, except where it relates to a railway, a
Secretary to that Government;

(b) in the case of a suit against the Central Government where it relates to a railway, the General
Manager of that railway;

(c) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief
Secretary to that Government or any other officer authorised by that Government in this behalf;

(d) in the case of a suit against any other State Government, a Secretary to that Government or the
Collector of the district;

(e) in the case of a public officer, delivered to him or left at his office, stating the cause of action, the
name, description and place of residence of the plaintiff and the relief which he claims.”[7]

The clarification of the appropriate authority upon whom to serve notice is important because service of
notice to the wrong authority may lead to a plaintiff‟s claim being disregarded or dismissed in limine by
the respective court. In the case of Coal Mines Provident Fund Commissioner v. Ramesh Chandra
Jha,[8] it was held that the Coal Mines Provident Fund Commissioner was a public servant and thus
notice was required to be served under Section 80(1).

The respondent, in this case, was an employee, as he was in the service of the Coal Mines Provident
Fund Organisation, and served under the appellant. Subsequently, the respondent was removed from
service and in turn, he challenged his removal from service and filed a suit against the appellant in
Munsif court.

However, it was found that the appellant was an entity requiring notice as mentioned in Section 80 of
CPC and the respondent lost the case. In another case, it was found that even a doctor in a
government hospital would count as a public officer given as he was discharging his duty as a public
officer- in which case service was required.[9]

II. Essentials
As mentioned earlier, a notice under Section 80(1) must contain the following details-

1. The name, description of and place of residence of the person giving notice;
2. statement of the cause of action; and
3. the relief claimed by the same
Apart from the above details, there is no explicit mention of the prescribed form in which notice is to be
submitted under Section 80 of the CPC. Courts have observed that notice under section 80 is not a
pleading or plaint under the civil procedure and thus need not be bound by the technical requirements
of a plaint under the CPC.[10]

In the view of the court, it is sufficient for the notice to communicate the nature and basis of the claim as
well as relief sought.[11] The construction of notice and defects in the same was considered in the case
60

of State of A.P. v. Gundugola Venkata,[12] wherein the respondent and one other person had
challenged the operation of a notification issued by the Madras state government and served notice
under section 80(1).

In the trial court stage, the suit was dismissed as inter alia other findings, the trial court noted that the
suit was not maintainable as only one person had filed the suit despite notice being served by two
persons. On appeal, the Supreme Court held that the suit could not be dismissed simply because both
persons who served notice did not file the suit against the state government.

In the judgment, the Court noted that while the statute‟s requirements are to be strictly observed, the
notice itself must be “reasonably construed” and “every venial error or defect” cannot operate to nullify
“a just claim.”[13]
Thus the Court stated that the critical questions for a Court to consider in order to determine
compliance with the notice provision include:

“(1) whether the name, description and residence of the plaintiff are given so as to enable the
authorities to identify the person serving the notice;

(2) whether the cause of action and the relief which the plaintiff claims are set out with sufficient
particularity;

(3) whether the notice in writing has been delivered to or left at the office of the appropriate authority
mentioned in the section; and

(4) whether the suit is instituted after the expiration of two months next after notice has been served,
and the plaint contains a statement that such a notice has been so delivered or left.”[14]

III. Leave of the Court [Section 80(2) CPC]

Despite the mandatory nature of notice under Section 80(1), there is provision for instituting suits
against the government and public officers without complying with the notice requirement in case there
is an urgent or immediate relief on part of the plaintiff. [15] However, the leave of the court is required to
avail this exceptional relief, as mentioned in Section 80(2) of CPC. As laid down in Gyanajeet
Moharana v. Binodini Pattanaik,[16] such permission is to be granted by way of a speaking and
reasoned order.[17]

However, this form of waiver of notice is a discretionary power afforded to the court, and such leave
would be permitted only in the situation that the requirement of service such notice defeats the purpose
or object of filing the suit.[18] This position is reflected in the balanced position taken by the Court
in Govt. of Kerala v. Sudhir Kumar Sharma.[19] In that case, it was noted by the Court that before
granting such leave under Section 80(2), the trial Court must hear both parties, consider the “nature of
the sui and urgency of the matter… before taking a final decision”.

Thus, the trial court must be satisfied as to the urgent requirement of the relief, failing which such
application may not be approved by the same.[20]

Till arguments are advanced and till the trial court is satisfied with regard to the urgency or requirement
of immediate relief in the suit, the court normally would not grant an application under Section 80(2) of
CPC.[21] Additionally, it has been noted that there is no provision to grant and interim relief without
notice to the government parties.[22]

IV. Technical Error [Section 80(3) CPC]

61

Section 80(3) notes that no notice against a government or public officer be dismissed merely for the
reason of any defect or error or defect in the notice as mentioned in Section 80(1), if :

“(a) the name, description and the residence of the plaintiff had been so given as to enable the
appropriate authority or the public officer to identify the person serving the notice and such notice had
been delivered or left at the office of the appropriate authority specified in sub-section and
(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated”[23].

If there is sufficient intimation in the notice as to the general nature of the suit, such notice would be
maintainable.[24] There must also be sufficient identity for the intended recipient to identify the claimant
or plaintiff.[25][26] However, a fresh notice must be served if there is a new cause or new causes of
action between the original plaint of the plaintiff. [27]

V. The object of the section

Section 80 has been enacted with the objective of providing notice or opportunity to the government or
public officer concerned so that they consider their legal position, settle the allegations or claims made
and thereby avoid unnecessary litigation.[28]

This position has also been expressed by the Apex Court in the case of Bihari Chaudhary v. State of
Bihar,[29] wherein inter alia other issues, the Court had noted that the section functions as a measure
of public policy. In the instant case, the appellants had instituted a suit against the government
concerning the declaration and conveyance of certain immovable property.[30]

However, the appellants did not observe the statutory period of 2 months from the service of notice and
instituted the suit against the government. The Supreme Court finally found against the appellants and
noted that the notice period under Section 80 was to be observed and non-observance meant the suit
against the government would not be maintainable.

Thus, as an important tool of civil procedure and to “save public time and money”[31] the legal
language in the section is “express, explicit and mandatory and does not admit any implication or
exception.”[32]

1. Legislative development
The application and implementation of Section 80 has been refined over the years with inputs from the
Law Commission of India. In a number of Law Commission Reports on the Code of Civil Procedure, the
Commission has recommended that Section 80 be deleted or modified to better serve the ends of
justice.

This was prior to the 1976 amendment that inserted sub-sections 80(2) and 80(3) to the CPC. The first
call to delete Section 80 came in its 14th report, wherein the Law Commission noted that the
(unamended) section caused hardship in cases where swift or immediate redress was required as there
was no provision for urgent claims.[33]

According to the 14th report, the notice provision functioned as a technical defence to plaints made by
ordinary litigants and the notice remained unheeded by the officers.

Subsequently, the Commission in its 27th report on the CPC, also recommended that Section 80 be
deleted.[34] It was noted by the Commission that such deletion was in order as no other jurisdiction with
the Anglo-Saxon system of law contained a similar provision on notice.
62

Moreover, in the view of the Commission, “…in a democratic country like ours there should ordinarily be
no distinction of the kind envisaged in section 80 between the citizen and the State.”[35] The
Commission mentions that the particular Section was drafted in pre-independent times wherein
maintenance of law and order was of paramount importance.

Post-independence, India has assumed the position of a welfare state and the position of the state in
litigation should reflect the democratic principles and possess no undue privileges nor any
disadvantages vis-à-vis an ordinary litigant. In its 54th report,[36] the Law Commission once again
reiterated the considered recommendation that Section 80 be deleted.

Finally, in 1976, the amendment to the CPC[37] renumbered the original section and inserted sub-
sections (2) and (3) to Section 80 which allowed for providing urgent and immediate relief to a plaintiff,
with leave of the court. [38]

VI. Conclusion
The applicability of the notice provision under CPC continues to operate in the present day. The
government and public officers receive a vast number of notices served and the mandates of Section
80 serve the ends of justice as it plugs the floodgates of excess litigation.

Given that the notice period interacts with limitation periods of suits, it is an important component of the
civil justice system and a critical cog in the procedural system. The present essay has discussed the
provisions of Section 80, the essentials of such notice and its legislative history.

References
[1] D.F. Mulla, Key to Indian Practice: A Summary of the Code of Civil Procedure, 11 th ed., 2016, 212.

[2] Section 80(1) of the Code of Civil Procedure, 1908.

[3] Section 80(2) of the Code of Civil Procedure, 1908.

[4] Supra, at note 2.

[5] State of A.P. v. Gundugola Venkata, AIR 1965 SC 11.

[6] Supra, at note 2.

[7] Supra, at note 2.

[8] AIR 2012 SC 408.

[9] A. Sarangadharam v. Dr. Vijayam, AIR 1999 Ker 310.

[10] Amar Nath v. Union of India, AIR 1963 SC 424.

[11] Ibid.

[12] Supra, at note 5.

[13] Ibid.
63

[14] Ibid.

[15] Supra, at note 3.

[16] Gyanajeet Moharana v. Binodini Pattanaik, (2009) 107 Cut LT 132 (134-135) (DB).

[17] Ibid.

[18] Supra, at note 1.

[19] 2013 (10) SCC 178.

[20] Ibid.

[21] Ibid.

[22] Supra, at note 1.

[23] Section 80(3)(a) and (b), CPC.

[24] Ghyansham Das v. Dominion of India, (1984) 3 SCC 46.

[25] Supra, at note 1.

[26] Ibid.

[27] Bisham Dayal & Sons v. State of Orissa, AIR 2001 SC 544.

[28] State of Punjab v. Geeta Iron and Brass Works, AIR 1978 SC 1608.

[29] Bihari Chaudhary v. State of Bihar, AIR 1984 SC 11.

[30] Ibid.

[31] Ibid.

[32] Supra, at note 1.

[33] Law Commission‟s Fourteenth Report, pp. 475-476.

[34] Law Commission‟s Twenty-seventh Report, pp. 21-22, para 52.

[35] Ibid.

[36] Law Commission‟s Fifty-fourth Report: see generally.

[37] Section 27 of the Code of Civil Procedure (Amendment) Act, 1976.

[38] Supra, at note 24.

64

Caveat: Introduction, Meaning and Scope

Introduction
The term Caveat has been defined out from Latin which signifies “let a person be aware”. Though
caveat is not being defined under the Code of Civil Procedure, the right and procedure to file a caveat
have been provided under Section 148A.

The said provision has been enacted by the amendment to Code to Civil Procedure, 1976. Prior to this
the Supreme Court already laid down the provisions for Caveat under Supreme Court Rules[1] before it
was enacted. The Law Commission, in there Fifty-fourth report also prescribed for the inclusion of such
provision in the Code of Civil Procedure.[2]

Intention
The aim of Section 148A is to protect the right of a party to suit where an adverse order of ex parte may
be passed without any information, notice or summons.

The object of the section is two-fold. First, it provides an opportunity for the opposite party to be heard
before an order is passed and to show cause why the order should not be passed. Secondly, it avoids
multiplicity of proceedings, because if such a provision was not there, the affected person would have
to file a separate proceeding to have the adverse order set aside.[3]

Scope
The proviso of Section 148A provides that a caveat can be filed in a suit or proceeding. Though, some
High Courts are of the view that no caveat can be lodged in a first or second appeal or execution
procedures. But as observed by Supreme Court in Ram Chandra Aggarwal v. Detail of U.P.[4],

“the expression Civil Proceeding under section 141 of the code includes all proceedings which are not
original proceedings”.
In this manner, the provision with regard to caveat would be made applicable to suits, appeals, and any
further proceedings under the Code of Civil Procedure or under various legislation.[5]

It is true that no order can be passed in a caveat against the caveator (person lodging the caveat)
unless he is heard, but if he is not present during the time of hearing of the application and the court
finds that there exists a prima facie case in favour of the applicant, ad-interim relief can be granted” to
the caveator.

In RBI Employees Association v. RBI,[6] “It was held that interim order passed without giving notice
to the caveator is not without jurisdiction and is valid until it is set aside in appropriate proceedings.

Sub-section (1) empowers an individual asserting the privilege to show up at the hearing of the
application for an interim order to file a caveat. Sub-section (2) requires such a caveator to serve a
notice of his caveat on the individual by whom an application for an interim order has been or is
expected to be made. Sub-section (3) requires the court, before such an order is made, to serve notice
of it to the caveator and sub-section (4) requires the petitioner to serve on the caveator a duplicate copy
of the application, together with any papers or documents or documents proposed to be recorded to
support his application.

With the newly added sub-section (5) which provides that a caveat lodged under sub-section (1) ought
not to remain in force for an indefinite period. However, a period breaking point of 90 days has been
endorsed from the date of its filing,[7] after the endorsed time of 90 days is finished, the caveat might
be restored unless another application is made before the expiry of that period.[8]
65

Who can Apply for a caveat

Sub-section (1) of Section 148A endorses necessary requirements for the individual who wants to file a
caveat. He should be a person having proper right to appear before the court during the hearing “of the
application, which the party may move for the award of interim relief.” As proviso of sub-section (1) is
widened enough not only to incorporate a necessary party but even an appropriate party.

Consequently, “a caveat can be filed by any individual who will be affected by an interim order
foreseeable to be passed on an application which is expected to be made in a suit or” proceeding
initiated or going to be initiated in a court[9].

Applicability
The proviso of Section 148A of the code can be applied in situations where the caveator is qualified to
be heard before any order is passed on the application already pending.

Filing of Caveat
A caveat may, subsequently, be documented as “a petition wherein the caveator needs to indicate the
nature of the application which is expected to be made or has been made” and furthermore his
rights/entitlement to show up before the court at the time of hearing of such application.[10] “The
Registry of the court will keep a register wherein” entries will be made of the recording of caveats.[11]

When a caveat is filed, the caveator must “serve a notice of the caveat by registered post,
acknowledgement due, on the person upon whom the application has been made or is expected to be
made. Thereafter, if an application is filed in any suit or proceedings, the court must serve a notice of
the application on the caveator. The provision of the code obliges the applicant who has been issued
with a caveat to equip the caveator,” at the caveator‟s cost, a copy of the application alongside copies
of papers and records filed together by him to take up the cudgels for his application.[12]

Where to lodge a Caveat

A caveat can be filed in any Civil Court of original jurisdiction, Appellate Court, High Court as well as
Supreme Court. Civil Courts include Courts of Small Causes, Tribunals, Forums, and Commissions.

A caveat is only applicable to proceedings under the code and is not applicable to proceedings under
Article 226 of the Constitution of India or execution proceedings under Criminal Procedure Code.

Hearing
The objective for the Legislature in ratifying the provision of caveat is to enable the caveator to be heard
before any adverse order is passed and no ex parte decree is passed by the court, such hearing is
mandatory.[13] Hence, it is obvious “that once a caveat is filed, it is a condition point of reference for
passing an interim order to serve a notice of the application on the caveator who will be influenced by
the interim” order.[14] Unless the above-mentioned condition is not satisfied, the court will have no right
to pass an interim order impacting the caveator, else it will vanquish the very integrity of Section
148A.[15]

It furthermore can‟t be affirmed that the caveator is required to be heard during the hearing of passing
an ex parte order at the initial stage, however, can be heard during the final order hearing is taken
up. [16] This proportion would make the proviso of Section 148-A useless and not effective in light of
the way that, even without Section 148A, passing a final order or decree would be contrary if the
opposite party is not provided with adequate opportunity to be heard.[17] That is a sine qua non of
natural justice. Along these lines, when a caveat is lodged, “it is the duty of the court to hear the
caveator before passing any interim order against him. In any case, an interim order without hearing the
caveator isn‟t without jurisdiction and scope, until set aside” by the appellate authority.[18]
66

Conclusion
The aforestated provision of Section 148A has provided security to individuals who are frightened to
have a case filed against them in a court. Although the validity of a caveat for 90 days has been
explained in the provision, there is no clear explanation regarding vacating of the caveat before the due
date. It is very important to issue a notice after filing of a caveat; else the legislative intent would be at
stake.

[1] Supreme Court Rules, 1966, Or. 19 R.2

[2] Law Commission‟s Fifty-fourth Report at Page-118

[3] Nirmal Chandra v. Girindra Narayan, AIR 1978 Cal 492

[4] AIR 1966 SC 1888

[5] Chandrajit v. Ganeshiya, AIR 1987 All 360

[6] AIR 1981 AP 246

[7] Pashupati Nath v. Registrar, Coop. Societies, AIR 1983 Raj 191

[8] H.G. Shankar Narayan v. State of Rajasthan, AIR 1985 Raj 156

[9] Siddalingappa v. G.C. Veeranna, AIR 1981 Kant 242

[10] See Supra Note 2

[11] See Supra Note 6

[12] Nova Granites (India) Ltd. v. Craft (Bangalore) (P) Ltd., (1994) I Civ LJ 711 (Kant)

[13] See Supra Note 2

[14] Mahadev Govind Gharge v. Land Acquisition Officer, (2011) 6 SCC 321

[15] G.C. Siddalingappa v. G.C. Veeranna, AIR 1981 Kant 242

[16] Kandla Port Trust v. Mulraj, (1986) 27 (I) GLR 442

[17] Enamul Horo v. Harbans Kaur, (1995) 2 BLJR 1136

[18] Employees Assn. v. RBI, AIR 1981 AP 246

Inherent Powers of the Court in Civil Cases | Civil Procedure

Introduction
The word “Inherent” is very wide in itself. It means existing and inseparable from something, a
permanent attribute or quality, an essential element, something intrinsic, or essential, vested in or
attached to a person or office as a right of privilege.[1] Every single power as might be vital to have the
67

privilege and to repair a wrong over the span to administer the ends of justice, comprise an inherent
power of the court. “The intention of the law-makers in instituting numerous provisions of the laws of the
procedure is to secure the ends of justice”.[1]

Inherent powers under section 151 will be practised by the court to review just such a complaint that no
ameliorate is provided for under the Code of Civil Procedure. It is a mere procedural provision which
enables the parties to have the proceedings of a pending suit conducted in a manner that is consistent
with justice and equity.[2] The said inherent power cannot be used to reopen settled matters or to
restrain the execution of a decree at the instance of one who was not a party to the suit. However, the
inherent powers cannot be exercised in contravention of, or in strife with or by disregarding any express
and explicit provision of law.

Provisions
Section 148 to 153-B of the Code deal with inherent powers of courts. The provisions, however, are not
based on an intelligible pattern. Section 148 and 149 provides for grant and extension of time. Section
150, provides for the transfer of business. While Section 151 preserves the inherent powers of courts.
Section 152,153 and 153-A deal with amendments in judgments, decrees order and in other
proceedings. Section 153-B declares a place of trial to be an open court.

Section 151 confers power upon court if the matter is not covered under Order XXXIX Rule 1 and 2 of
the code.[3] Though an appeal can be made under Order XI Rule 21.[4]

The provision under section 151, does not confer any extraordinary jurisdiction on the court. It saves
the inherent power of all civil courts i.e. from the trial judge to Supreme Court.

Exercise of Inherent Power

The inherent power must be practised distinctly in exceptional conditions for which the Code, sets out
no procedure. It can‟t be practised in order to invalidate the provision of the code. Where the code
accord on a specific issue, the provision should not ordinarily be adjudged as comprehensive.[5]

“This provision doesn‟t bestow any power, however just stipulate that there is a power to make such
orders as may be basic for the ends of justice and to prevent abuse of the procedure of the court, as
expressed by Supreme Court in the matter of Manohar Lal v. Seth Hira Lal[6].”

A court has no power to alter or add to a judgment after it is signed, as it will be a direct contravention
of Order XX Rule 3 of the code. The court can‟t utilize the exceptional provisions of this section where a
party has his remedy given somewhere else in the code and he fails to get benefit from the said
provisions.

The appeal can be conceded in the exercise of inherent powers only on the off chance that it isn‟t
prohibited under any provision. In this manner, the court executing the power under section 151 first
needs to consider about whether the exercise of such power is explicitly denied by any provision of the
code and in the event that there is no such forbiddance, at that point the court will consider about
whether such power ought to be exercised or not based on the facts and circumstances of the case.[7]

In the matter of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal[8], it has been held that
inherent jurisdiction of the court to make orders ex debito justitiae is undoubtedly affirmed by section
151 but that jurisdiction cannot be exercised so as to nullify the provisions of the Code of Civil
Procedure.
 68

In Ram Chand & Sons Sugar Mills Pvt. Ltd. v. Kanhayalal Bhargav[9], the Supreme Court in this
association affirmed that the inherent power of the court is in addition to and complementary to the
powers expressly conferred under the Civil Procedure Code; but that power will not be exercised if its
exercise is inconsistent with, or comes into conflict with any of the powers expressly or by necessary
implication conferred by the other provisions of the Code. If there are express provisions exhaustively
covering a particular topic, they give rise to a necessary implication that no power shall be exercised in
respect of the said topic otherwise than in the manner prescribed by the said provisions.

Whatever limitations are imposed by construction on the provisions of section 151 of the Code, they do
not control the undoubted power of the court to make a suitable order to prevent the abuse of the
process of the court. Thus, inherent powers of the court, would not include a power of revision under
section 115 of the Code, even in cases to which that section is not applicable. [10]

Amendment of Pleadings
In some instances it does happens that the original relief sought ends up unseemly or the law changes
influencing the privileges of the parties. In such cases, the courts may permit an alteration of pleadings,
as per the changed circumstances. Here and there additionally the changed circumstances abbreviate
case and afterwards to maintain a circuitry of action the courts permit the amendment.[11]

The courts can exercise the inherent power in the following ways:-

1. For “the Ends of Justice- It is in the ends of justice that an inquiry should be remedied and
needless expense and inconvenience to parties avoided. It will not be in the ends of justice to exercise
inherent powers if it would interfere with the rights of third parties or cause mischief or injustice.
2. To prevent the abuse of the process of Court- the court has no power to override the express
provisions of the law.” No appeal can be allowed from a non-appealable order by invoking the aid of this
section.
Supreme Court in the matter of Arjun Singh v. Mohindra Kumar[12], held that “It is sufficient if we
proceed on the accepted and admitted limitations on the existence of such jurisdiction. it is common
ground that the inherent power of the court cannot override the express provisions of law.”

Extension of Time
When a time limit is prescribed by court for doing any act, which later requires more time, the court can
invoke inherent powers as per the code to expand the said period regardless of whether the original
time frame fixed has terminated.[13]

Deficiency of Court Fees

According to Section 4 of the Court Fees Act, 1870 which provides that no document chargeable with
court fee under the Act will be documented or recorded in any court of justice, except if the imperative
court fee is paid. If there should arise an occurrence of any inadequacy, the court by invoking inherent
powers “can allow the party to pay the insufficiency of court fee payable on a plaint, appeal, and so on
even after the expiry of the time of limitation endorsed for the recording of such suit, appeal, and so
on.[14]

Recalling of Orders
No court or tribunal can be contemplated as powerless to review its own order on the off chance that it
is persuaded that the order was wangled through deceit or distortion of such a dimension as would
influence the very premise of the case.[15]

Instances where Inherent Power can be exercised by Courts

 To order a joint trial of suits;
 69

 For postponing the hearing of suits;

 To “allow a defence in forma pauperis;”
 To stay cross-suits on the ground of convenience;
 To “determine whether proper parties are before it;
 To entertain the application of a third person to be made a party;”
 To bring the heirs on record, even if it is held that Order 1 Rule 10 cannot be invoked;
 To “set aside a sale brought about by deceit practised in the Court;
 To restore a suit dismissed for default in case not provided by Order IX Rule 9;
 To rectify its own mistake;
 To review an order passed in a petition under 226 of the Constitution;”
 To stay an earlier suit, pending disposal of a subsequent suit;
 To review an interlocutory order granted under s 151 of the Code of Civil for Procedure;
 To grant police aid for the execution of a decree, or implementation of interim injunction order;
 To consolidate a suit based on different claims or parties;
 To pass a conditional order, providing for the dismissal of the suit, in case the order is not
complied with;
 To direct the parties to deposit additional fees to a Commissioner;
 To enable a party to evade the law of limitation;
 The court can, suo motu correct the arithmetical and clerical errors, during the course of the
proceedings;
In the exercise of its inherent jurisdiction, if the court arrives at the resolution that an order of injunction
has been breached, it may bring back the parties to the same position as if the order of injunction has
not been violated.[16]

Instances where Court has no Inherent Power

Inherent powers can‟t be practised in contradiction to the particular provisions of the code. The
principles and practices relating to the levy of costs in administrative law matters can‟t be imported
precisely in connection to civil prosecution governed by the code. Provisions of the inherent power of
the courts can‟t be conjured to do indirectly what is not permitted to be done directly.

The inherent powers of the courts cannot be exercised under the following:-

 Transfer of Suits;
 Stay of proceedings under Arbitration and Conciliation Act, 1996;
 Stay on Income Tax cases;
 Granting of future interest after the date of the decree;
 No power to amend the decree to award enhanced statutory benefits;
 When a proceeding under Article 226 of the Constitution of India is disposed of, the courts can‟t
reopen it through Miscellaneous Application;
 To entertain an appeal from non-appealable order;
 Alter it‟s judgment once it is signed;
 An amendment to the final decree cannot be done by court invoking Order XLVII Rule 1;
 Court has no inherent power to entertain an application for correcting a final decree;
 The courts cannot set aside ex parte decree under its inherent powers;
In Cotton Corpn of India v. United Industrial Bank[17], “the Supreme Court held that the inherent
power of the court can‟t be conjured to invalidate or cripple a statutory provision.”
70

Check to Abuse of Power

In the Law Lexicon[18] the words abuse of procedure of the court, are characterized as:

“Abuse of process of the court is the malicious and improper use of some regular legal proceedings to
obtain an unfair advantage over an opponent. Nothing short of obvious fraud on the part of a debtor
would render him liable to have his petition for insolvency dismissed on the ground of abuse of process
of the court.”
The term is usually used in reference to activity for utilizing some procedure of the court maliciously to
the harm of somebody else.[19]

Madras High Court in Thathunaik v. Condu Reddi[20], abuse of process of court generally applies to
proceed to want in bona fides and is frivolous, vexatious or oppressive. Making use of the process of
court as a device to help the jurisdiction of a civil court is an abuse of the process of the court. Where
the court is bound to grant an application and has no discretion to refuse it, it has no power to dismiss it
on so treacherous a ground of decision, as an abuse of the process of the court.[21]

Additionally, wherever a decree of the first appeals court has turned out to be conclusive, by its not
having been meddled with within the subsequent appeal, an application for stay of its execution, cannot
be allowed on the ground, either on abuse of the procedure of court or in interests of ends of justice,
solely in light of the actual fact that a review application against such an order is pending.[22]

Conclusion
In the wake of analysing the numerous cases and in the critiques which are given by authorities it very
well may be said that the Inherent power is not absolute and it is optional in nature yet carefulness
ought not to be utilized in a discretionary way.

As per Justice Subba Rao, the inherent power of the court is notwithstanding and complementary to
the powers explicitly presented under the code. In any case, the power won‟t be if it‟s conflicting with or
collides with any of the power explicitly or by the fundamental suggestion that no power will be
practised in an arrangement. Whatever limitation is forced by development on the arrangement of
section 151 of the code, they don‟t control the undoubted power of the court presented under
section 151 of the code to make an appropriate order to counteract the maltreatment of the
procedure of the court.

[1] P Sirajuddin v. Government of Madras, AIR 1962 Mad 117

[2] Nain Singh v. Koonwajree, AIR 1970 SC 997

[3] State of UP v. Roshan Singh, (2008) 2 SCC 488

[4] National Bank Ltd. V. Dulal Kanti Chowdhary, 2010 (2) Cal LJ 360

[5] National Institute of DTH 7 N Sciences v. C Parmeshwara, AIR 2005 SC 243

[6] AIR 1962 SC 527

[7] Shipping Corpn of India Ltd v. Machado Brothers, AIR 2004 SC 2093

[8] AIR 1962 SC 527

71

[9] AIR 1966 SC 1899

[10] Mukand Lal v. Gaya Prasad, AIR 1935 All 599

[11] Surinder Kr v. Gian Chand, AIR 1957 SC 875

[12] AIR 1964 SC 993

[13] Ganesh Prasad v. Lakshmi Narayan, (1985) 3 SCC 53

[14] Jugal Kishore v. Dhanno Devi, (1973) 2 SCC 567

[15] United India Insurance Co. Ltd. V. Rajender Singh, AIR 2000 SC 1165

[16] Arjan Singh v. Punit Ahluwallia, (2008) 8 SCC 348

[17] (1983) 4 SCC 625

[18] Aiyar, P. Ramannatha (2001), The Law Lexicon, 2nd ed. (reprint), Lexis Nexis

[19] Tin Va v. Subya, 6 LBR 146

[20] 5 Mad LT 248

[21] Chhatrapat Singh v. Kharag Singh, 44 Cal 535

[22] Satyesh Dutt v. Munnoo Devi, AIR 1968 All 362