CIVIL PROCEDURE CODE IMPORTANT QUESTIONS

Q. 22 Plaintiff a resident of Faridabad has filed a suit in Delhi Courts against the
defendant, a resident of Delhi for declaration that he has half share in the house situated
in Kanpur and in the sum of Rs. 50,000 lying deposited in a bank in Delhi and that
defendant has wrongfully got the house registered in his own name and is also not
admitting the claim of plaintiff in the amount. The defendant has contested the suit on the
ground that Delhi Courts have no jurisdiction to try the suit. How will you decide ?
Defendant in present case resides at Delhi and sum of Rs. 50,000, in respect of which cause
of action arose also lying deposited at Delhi Bank therefore in view of provisions of Section
20 C.P.C., plaintiff's suit at least for Rs. 50,000, is maintainable at Delhi Courts.

Q. 23 (a) X, Y and Z are joint owners of a property situated at Jaipur. X lives in Bombay, Y
lives in Delhi and Z lives in Jaipur. In which court or courts can the suit for partition be
filed ? Give reasons.
Section 16 of the Code of Civil Procedure provides that suits relating to immovable property
are to be instituted where subject-matter is situated. Its proviso also provides that if the relief
sought can be entirely obtained through the personal obedience of the defendant, the suit may
be instituted either in the court within the local limits of whose jurisdiction the defendant
resides or carries on business, or personally woks for gain. That being so, suit for partition of
property situated at Jaipur. Proviso to Section 16 C.P.C. will not be attracted in present case.
X, Y and Z are joints owners, X lives in Bombay, Y lives in Delhi and Z lives at Jaipur.
Therefore in case in hand suit for partition of property can be filed at Jaipur, where suit
property is situated.

b) A residing in Bombay, publishes in Delhi statements defamatory of B. Where can B file

a suit for compensation against A ?
This problem is covered by Section 19 of C.P.C. which provides that suit for compensation
for wrong to persons or moveable property can be filed either where the wrong is committed
or where defendant resides or carries on business or personally works for gain. In case in
hand A (Defendant) was residing in Bombay, while defamatory statement was published in
Delhi by A. So B can file suit again A either at Bombay where A resides or at Delhi where
defamatory statement was published.
Q. 24 A transport company has its head office at Chandigarh and branch offices at
Chennai, Jaipur and Mumbai. A dispute cropped up between Sam and the company in
respect of a transaction made through Chennai office. Sam files a suit in respect of this
dispute against the company in a court at Jaipur. How the court will decide ?
In the case in hand the suit against the Company can be filed at Chandigarh where it has its
head office, or at Chennai where the Company has its branch office and cause of action has
arisen at Chennai. No suit can be entertained by a Court at Jaipur or Mumbai, although the
company has its branch offices at those places, because no part of the cause of action arose
either at Jaipur or Mumbai.

Q. 25 A resides at Shimla, B at Calcutta and C at Delhi. A, B and C being together at

Varanasi, B and C make a joint promissory note payable on demand and deliver it to A.

A files suit for recovery at Varanasi, B and C object to Jurisdiction of Court at Varanasi to
try the suit asserting that defendants B and C do not reside at Varanasi. How would you
decide the objection ?
In the present case, the joint promissory note payable on demand was executed by B and C at
Varanasi. In other words, the contract was made at Varanasi. It is a settled proposition of law
that the making of the contract is a part of the cause of action, and, as such, a suit can be filed
on the basis of the said pronote at Varanasi where the cause of action arose.

Q. 26 Determine the place of suing in the following cases:

(i) `A', a resident of Delhi, `B' a resident of Bangalore and `C' of Calcutta, meet at
Kurukshetra. There `B' and `C' borrowed Rs. 10,000/- from `A' and jointly executed
a pronote and handed it over to `A'. All of them went back to their respective places
but the money was not returned. `A' wants to file a suit for recovery of his money.

In the present case, the joint promissory note payable on demand was executed by B and C at
Kurukshetra. In other words, the contract was made at Kurukshetra. Therefore, A can file the
suit on the basis of the said pronote at Kurukshetra where a part of the cause of action arose.
In view of the provisions contained in Clause (b) of Section 20 of the Code, A can file the
suit at Bangalore where B resides, or at Calcutta where C resides; but in each of these cases
either of the non-resident defendant should acquiesce in such institution or the leave of the
Court should be obtained. If the non-resident defendant objects, the suit cannot proceed
without the leave of the Court.
(ii) Father of `A' and `B' had a bungalow at Gurgaon, one house at Rohtak and Delhi
each and two big mango-groves in the district of Hissar. After the death of the father,
`A' took over the management of the entire property and began appropriating the
income. `B' wants to sue for partition of the property.
) Section 16 of the Code of Civil Procedure provides that subject to the pecuniary or other
limitations prescribed by any law, a suit for partition of immovable property shall be
instituted in the court within the local limits of whose jurisdiction the property is situate.
Then Section 17 lays down that where a suit is to obtain relief respecting, or compensation
for wrong to, immovable property situate within the jurisdiction of different Courts, the suit
may be instituted in any court within the local limits of whose jurisdiction any portion of the
property is situate. This Section is practically another proviso to Section 16(1) of the Code.

Therefore, in the present case B can file a suit for partition of the said properties in any
one of the courts at Gurgaon, Rohtak, Delhi or Hissar.

Q. 44 B was in occupation of a house belonging to A. In March 1981, A had filed suit for
possession alleging that B was a trespasser in the house. The suit was contested by B who
pleaded that he had become the owner of the house by adverse possession. The suit was
fixed for hearing on 15th July, 1981, on which date B appeared in the court but A was
unable to attend and the suit was dismissed in default. On the 10th December 1981, B died
leaving behind his widow C. In January 1982, A brought a suit against C alleging the she
is in illegal possession of the house and praying that a decree for possession he passed
against her. Advise C if the suit is barred. Give reasons.
Order 9 Rule 9 C.P.C. then provide -
(1) Where a suit is wholly or partly dismissed under Rule-8 the plaintiff shall be precluded
from bringing a fresh suit in respect of same cause of action. But he may apply for an order to
set the dismissal aside and if he satisfies the court that there was sufficient cause for his non-
appearance when the suit was called on for hearing, the court shall make an order setting
aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a
day for proceeding with the suit."
Applying the aforesaid law to the facts of case in hand it is clear that defendant C is claiming
her right to adverse possession through her late husband B and the necessary conclusion is
that the cause of action in both the suits is same and thus present suit of A against C is barred
by Order 9 Rule 9 C.P.C.

Q. 45 In an eviction proceedings, 27-5-1989 was fixed for evidence of landlord and 2-6-89
for evidence of tenant. On 27-5-89 neither tenant nor his counsel appeared at hearing. The
court recorded evidence of landlord and passed ex-parte eviction order. Same day tenant
applied for setting aside the exparte order alleging that he was ill and his counsel had
forgotten mentioning the case in his diary. He filed his affidavit but did not file medical
certificate and diary and affidavit of counsel. The landlord rebutted his allegation on
affidavit. Decide the application ?
Order 9 Rule 6 of Civil Procedure Code provides regarding ex-parte proceedings and lays
down that `Where plaintiff appears and defendant does not appear the plaintiff has to prove
service of summons on defendant. If service of summons is proved, the court may proceed
ex-parte against defendant and may pass decree in favour of plaintiff, if the plai

Keeping in view above observations, coming now to case in hand - Defendant has taken the
plea that he was lying ill on date of hearing of suit i.e. 27-5-89 for which he has filed
Affidavit though has not produced any Medical Certificate to substantiate his plea and it is
also pleaded that his counsel forgot to mention the case in Diary and therefore his counsel
could not appear. To prove this fact, Affidavit of counsel and diary is produced. Plaintiff by
way of Affidavit has rebutted the plea taken by defendant.

Considering the facts and keeping in view the observations of Supreme Court in this regard it
can be said that defendant had a "sufficient cause" which prevented him from appearing in
court on relevant date. We should not insist on strict proof of fact of illness of defendant and
thus his application under Rule 13 of Order 9 C.P.C. deserves to be accepted and ex-parte
eviction decree should be set aside.ntiff proves his case."

Q. 66 Plaintiff came to know about death of defendant on 15-12-94 from remarks of process
server on summons received in court unserved that defendant died on 1-6-94. He moved an
application immediately for substitution of legal representative of deceased defendant. Would
this application be allowed or rejected on the ground of expiry of period prescribed therefor ?
Ans. Rule 4 of Order XXII of the Code of Civil Procedure lays down the procedure in such
cases. According to it, where one of two or more defendants die and the right to sue does not
survive against the surviving defendant or defendants alone, or a sole defendant or sole
surviving defendant dies and the right to sue survives, the court, on an application made in
that behalf shall cause the legal representative of the deceased defendant to be made a party
and shall proceed with the suit.

However Rule 4(5) provides that where the plaintiff was ignorant of the death of defendant
and could not for that reason make an application for substitution of legal representative of
deceased defendant, within the prescribed period and suit is abated, plaintiff may make an
application for setting aside such abatement and in considering such application, court shall
have due regard to the fact of such ignorance of the plaintiff."
In case in hand plaintiff was ignorant about death of defendant and on coming to know about
death of defendant from remarks of process server, he immediately move application for
substitution for substitution of legal representatives of deceased defendant. So his application
may be allowed in view of provisions contained in Rule 4(5) of Order 22 of Code.

(b) A plaintiff gives notice under Section 80 of the Civil Procedure Code and institutes a
suit before two months but is allowed to withdraw the same with liberty to file a fresh suit.
Is he entitled to file a fresh suit without a fresh notice ?
Section 80 of C.P.C. provide regarding giving of notice prior to filing any suit against
government or public servant. Section 80 says no suit shall be instituted against Government
or against a public officer in respect of any act purporting to be done by such public officer in
his official capacity until the expiration of two months next after notice in writing has been
delivered to Government or to such public officer.

In Amar Nath Dogra v. Union of India AIR 1963 SC 424: A fresh notice under Section 80,
C.P.C. is not necessary where a suit is instituted but that is withdrawn with liberty to file a
fresh suit. If the plaint which is being considered by the court has been preceded by a notice
which satisfies the requirements of Section 80, C.P.C. then the fact that before the plaint then
under consideration, there had been another plaint which had been filed and withdrawn
cannot, on any principle be held to have exhausted or extinguished the validity of the notice
issued.
In view of the above discussion, a plaintiff can file a fresh suit without serving a fresh notice.
(c) Notice is given by A under Section 80 of the Civil Procedure Code of a proposed suit. A
dies before the institution of the suit. Does the notice by A enure for the benefit of his legal
representative ?

In Beohar Rajender Singh v. State of M.P. 1970(1) SCJ 118, it was observed: The object of
the notice under Section 80, C.P.C., is to give to the Government or the public servant
concerned an opportunity to reconsider its or his legal position and if that course is justified
to make amends or settle the claim out of court. The Section is no doubt imperative; failure to
serve notice complying with the requirements of the statute. But the notice must be
reasonably construed.
Supreme Court, in various case laws has adopted the Rule of substantive compliance in
dealing with requirement of giving notice under section 80 C.P.C. A notice under
section 80 should be held sufficient if it substantially fulfils its object of informing the parties
concerned of the nature of the suit to be filed.

In view of above discussion, it is clear that no fresh notice under section 80 of Code is
required to be given by A's legal representative, after A's death when A had earlier given
notice under section 80 before filing suit.

Q. 69 Who is Minor under the Indian Law ? State the procedure to be adopted for a suit by
or against a minor and persons of unsound mind. A compromise decree is passed in a suit
involving interest of Minor, can the Minor challenge such decree ? If so, on what
grounds ?
Minor: Section 3 of Indian Majority Act, 1875 provides every person domiciled in India shall
be deemed to have attained majority when he shall have completed his age of eighteen years
and not before. But if before the expiry of the age of eighteen, a guardian for the person or for
the property or for both of the minor has been appointed or declared by a court, then the
period of minority is extended till the completion of the age of twenty one year.
Order 32 of Civil Procedure Code prescribe the procedure of suits to which minor or persons
of unsound mind are parties.
Rule 1 of Order 32 of Code lays down that every suit by Minor shall be instituted in his name
by a person who in such suit shall be called the `Next friend' of the Minor.
Rule 3 of Order 32 of the Code of Civil Procedure provides that where the defendant is a
minor, the court on being satisfied of the fact of his minority, shall appoint a proper person to
be guardian for the suit for such minor. An order for the appointment of a guardian for the
suit may be obtained upon application in the name and on behalf of the minor or by the
plaintiff and such applications shall be supported by an affidavit verifying the fact that the
proposed guardian has no interest in the matters in controversy in the suit adverse to that of
the minor and that he is a fit person to be so appointed.

Rule 4 of Order 32 of the Code of Civil Procedure provides who may act as next friend or be
appointed guardian for the suit. According to it, any person who is of sound mind and has
attained majority, may act as next friend of a minor or as his guardian for the suit. Provided
that the interest of such person is not adverse to that of the minor and that he is not, in the
case of a next friend, a defendant, or in the case of a guardian for the suit, a plaintiff.
Where a minor has a guardian appointed or declared by competent authority, no person other
than such guardian shall act as the next friend of the minor or be appointed his guardian for
the suit unless the court considers, for reasons to be recorded, that it is for the minor's welfare
that another person be permitted to act or be appointed, as the case may be. No person shall
without his consent in writing, be appointed guardian for the suit.

Sub-rule (1-A) of the said Rule, which has been inserted by Amendment Act. No. 104
of 1976, lays down that an application for obtaining the leave of the court shall be
accompanied by an affidavit of the next friend or the guardian for the suit; as the case may
be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the
effect that the agreement or compromise proposed is, in his opinion, for the benefit of the
minor.
So minor can challenge a compromise decree passed against him on the grounds - (i) that the
compromise has been effected without the leave of the court (ii) that the next friend or
guardian ad litem has been guilty of gross negligence and (iii) that there has been fraud or
collusion on the part of next friend or guardian ad litem.

Q. 77 `B' filed a suit for dissolution of Partnership and Accounts against `A'. In order to
deprive `B' of the benefits `A' began to shift the goods and assets of business establishment
in a hurry. Advise `B' as to what should he do in the circumstances.
Section 94(d) and Order 40 of the Code of Civil Procedure deals with the appointment of
receivers. According to it, the courts are empowered in certain circumstances to appoint
receivers. It provides that where it appears to the court to be just and convenient, the court
may by order:
(a) appoint a receiver of any property, whether before or after decree;
(b) remove any person from the possession or custody of the property;
(c) commit the same to the possession, custody or management of the receiver; and
(d) confer upon the receiver all such powers, as to bringing and defending suits and for the
realization, management, protection, preservation and improvement of the property, the
collection of the rents and profits thereof, the application and disposal of such rents and
profits, and the execution of documents as the owner himself has, or such of these powers as
the court thinks fit.
n Issar Das S. Lulla v. Smt. Hari, AIR 1962 Madras 458, it was held that the appointment of
receiver is in the discretion of the court and the court should not exercise the power as a
matter of course but only when it is necessary to do so. A receiver should not be appointed
when there is a bonafide possession of the property, unless there is some cogent grounds for
interference. The main object and purpose of the appointment of receivers is the preservation
of the subject matter of the litigation pending a judicial determination of the rights of the
parties thereto.