Civil Procedure Code

Frequently Asked Questions on Civil Procedure Code

Q. 1 What do you understand by Civil Procedure Code ? Give brief

history of Code of Civil Procedure and briefly discuss some of the
important changes made by Amendment Act No. 22 of 2001 in Civil
Procedure Code.

Q. 2 Distinguish between Decree and Order.

Ans. DECREE [Section 2(2)] Decree means formal expression of an adjudication which so
far as regards the court expressing it, conclusively determines the rights of parties with
regard to all or any of the matter in controversy in suit and may be either preliminary or final.
It shall be deemed to include the rejection of plaint and determination of any question within
the Section 144 but shall not include :-
(a) any adjudication from which an appeal lies as an appeal from an Order.
(b) an order of dismissal for default
Explanation : Decree is preliminary when further proceeding 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
ESSENTIAL ELEMENTS
(i) There must be adjudication.
(ii) Such adjudication must have been given in a suit.
(iii) It must have determined the rights of parties with regard to all or any of the matters in
controversy in suit.
(iv) Such determination must be of conclusive nature.
(v) There must be a formal expression of such adjudication.
CLASSES OF DECREE
Primarily there are two kinds of Decree :
(i) Preliminary Decree
(ii) Final Decree
PRELIMINARY DECREE :
Where an adjudication decides the rights of the parties with regard to all or any of matter in
controversy in suit but does not completely dispose of the suit. It is a preliminary
decree. Explanation added to Section 2(2) also says "Decree is preliminary when further
proceedings have to be take before the suit can be completely disposed of". CPC provides
for passing preliminary decree in following cases:
(1) Suit for possession and mesne profit (O. 20 R. 12)
(2) Administration Suit (O. 20 R. 13)
(3) Suit for Pre-emption (O. 20 R. 14)
(4) Suit for Dissolution of Partnership Firm (O. 20 R. 15)
(5) Suit for Accounts between Principal and Agent (O. 20 R. 16)
(6) Suit for Partition and Separate Possession (O. 20 R.18)
(7) Suit for foreclosure of Mortgage (O. 34 R. 2-3)
(8) Suit for Sale of Mortgaged Property (O. 34 R. 4-5)
(9) Suit for Redemption of Mortgage (O. 34 R. 7-8)
Question whether decision amounts to preliminary decree or not is a great significance in
view of Section 97 CPC which provides:-
"Where any party aggrieved by Preliminary decree does not appeal from such decree he
shall be precluded from disputing its correctness in any appeal which may be preferred from
final decree."
FINAL DECREE A decree may be said to final in two ways:-
(i) When within prescribed period no appeal is filed against the decree or the matter has
been decided by decree of the highest court.
(ii) When the decree, so far as regards the court passing it completely disposes of the suit.
Normally "Final Decree" is construed which so far as the court passing it, finally dispose of
the controversy involved and the suit.
ORDER [Section 2(14)]Order means the formal expression of any decision of civil court
which is not a decree (Section 2(14)). Thus the adjudication of a court which is not a
decree is an Order.
DECREE and ORDER : DISTINCTION
The adjudication of court of law may either be decree or Order : Fundamental distinction
between two are:-
(a) Decree can only be passed in a suit which commenced by presentation of plaint. An
Order can be passed in suit by presentation of plaint or may arise from proceeding
commenced from application.
(b) Decree is an adjudication conclusively determining the rights of parties with regard to all
or any of the matter in controversy. Order on the other hand, may or may not finally
determine such rights.
(c) Decree may be preliminary or final, but there cannot be preliminary order.
(d) Except in certain suits in which two decrees i.e. one preliminary and one final is passed,
there can be only one decree, but in suit or proceedings there can be number of orders.
(d) Every decree is appealable unless otherwise expressly provided but every order is not
appealable only those orders are appealable as specified in code.

Q. 3. What is the effect of reversal of the Preliminary decree on the

final decree passed by the lower court during the pendency of appeal
against final decree.

Ans. "The effect of the reversal of the preliminary decree on the final decree passed by the
lower Court during the pendency of the appeal against the preliminary decree is that the
final decree is superseded because the final decree is its nature dependent and
subordinate, as it is a decree which has been passed as a result of proceeding directed and
controlled by the preliminary decree and based thereon. Therefore, when a preliminary
decree is set aside, the final decree is automatically superseded, whether the appeal was
brought before or after the passing of the final decree."
In Sital Parshad v. Kishori Lal, AIR 1967 SC 1236 it was observed by Supreme Court that
since the passing of preliminary decree is only a stage prior to the passing of final decree, if
an appeal against a preliminary decree succeeds, the final decree automatically falls to the
ground for there is no preliminary decree thereafter in support of it.

Q. 4. Are the following orders amount to "decree" within the

meaning of Section 2(2) of Code :

(A) An order rejecting a memorandum of appeal insufficiently

stamped;

(B) Memorandum of appeal which is dismissed as time barred;

(C) An order returning a memorandum of appeal for amendment;

(D) An order that a suit abates.

Ans. Section 2(2) of Code defines the term "Decree" as :

"Decree means the formal expression of an adjudication which so far as regards the court
expressing it, conclusively determines the right 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 plaint and termination 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."
Keeping in view the above definition let us assess whether following are decree or not
(A) An order rejecting a memorandum of appeal as insufficiently stamped is not decree
because said order is not appealable and fresh memorandum of appeal with requisite
stamp may be filled.
(B) Dismissal of appeal being barred by limitation is decree as the court dismissing it, even
on the ground of limitation is finally disposing of the matter. Such order is appealable as
decree.
(C) Order returning memorandum of appeal for amendment is not decree because such
order does not finally dispose off the matters so far as the court passing such order.
(D) An order that suit abates is a decree.

Q. 5 Can an appeal against final decree correctness of the

preliminary decree be questioned, when no appeal has been
preferred by aggrieved party against the preliminary decree ?
Ans. Section 97 of Code of Civil Procedure Code, give answer to this, which provides that -
"Whether any party aggrieved by a preliminary decree ......... does not appeal from such
decree, he shall be precluded from disputing it's correctness in any appeal which may be
preferred from the final decree."
So in view of Section 97, in an appeal against final decree, correctness of preliminary
decree cannot be challenged in the absence of any appeal against preliminary decree by
aggrieved party."

Q. 6 Define and writ short notes on :

(A) Mesne Profits

(B) Foreign Judgment

(C) Judgement Debtor

(D) Decree holder

(E) Exparte decree

(F) Legal Representation

Ans. (A) Mesne Profits - Section 2(12) of Code says "Mesne Profits" of property means
those profits which the person in wrongful possession of such property actually received or
might with ordinary diligence have received therefrom, together with interest on such profits,
but shall not include profits due to improvements made by the person in wrongful
possession.
"The right to possession is a sacred right guaranteed to all law-abiding citizens. When a
person is deprived of his possession he is not only entitled to recover possession but also
damages for wrongful possession by another. The mesne profits are a compensation, which
is penal in nature. The object of awarding a decree for mesne profits is to compensate the
person who has been kept out of possession and deprived of enjoyment of his property.
Thus, `wrongful' possession of the defendant is the essence of a claim for mense profits."
In Fateh Chand v. Bal Kishan Das, AIR 1963 SC 1405 it was observed that mesne profits
being in the nature of damages, no invariable rule governing their award and assessment in
every case can be laid down and court may mould it according to justice of the case.
However following principles would ordinarily guide a court for determining the amount of
mesne profits :-
(i) no profit by a person in wrongful possession;
(ii) restoration of status before dispossession of decree holder; &
(iii) use to which the decree-holder would have put the property if he himself was in
possession.
(B) Foreign Judgment - Section 2(5) of Code has defined "Foreign Court" as a court
situated outside India and not established or continued by the authority of the Central
Government. Similarly section 2(6) say "Foreign Judgement" means a judgment of a foreign
Court.
In Shitole v. Sanker Saran, AIR 1962 SC 1737. It was observed that crucial date to
determine whether the judgment is of a foreign court or not is the date of the judgment and
not the date when it is sought to be enforced or executed, so a judgment of a foreign court
at the time of its pronouncement would not cease to be foreign judgment by reason of the
fact that subsequently the foreign territory has become part of the Union of India.
(C) Judgment-debtor. - Section 2(10) of Code of Civil Procedure says -
`Judgment-debtor' means any person against whom a decree has been passed, or an order
capable of execution has been made. Where the decree is passed against a surety, he is a
judgment-debtor within the meaning of this section. On the other hand, a person who is a
party to the suit, but no decree has been passed against him, is not a "judgment-debtor."
(D) Decree holder. - Then Section 2(3) of Code defines "Decree-holder" as -
`Decree-holder' means any person in whose favour a decree has been passed or an order
capable of execution has been made. From this definition, it is clear that the decree-holder
need not necessarily be the plaintiff. A person who is not a party to the suit but in whose
favour an order capable of execution has been passed is also a decree-holder.
(E) Exparte Decree. - Order 9 Rule 6 of the Civil Procedure Code provides that where the
plaintiff appears and the defendant does not appear when the suit is called on for hearing,
then if it is proved that the summons was duly served the Court may make an order that the
suit be heard exparte. `Exparte' means, in the absence of the other party. Exparte decree
can be passed only after the date of the first hearing fixed in the summons, and not before
that. The order to proceed exparte can also be passed if the defendant, after putting his
appearance after service of summons, remains absent on the date of hearing subsequent
fixed. Even if the court proceeds exparte, it has to act according to law, and the plaintiff
must prove his case.
(F) Legal Representative. - The term, `legal representative' has been defined in section
2(11) of the Civil Procedure Code. According to it, `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.
The above definition is not exhaustive, but illustrative. In order to be a legal representative
under section 2(11), it is not necessary that a person should be a legal heir of a deceased
person or that he should have a beneficial interest in the estate.

Q. 7 What do you understand by the term "Jurisdiction of a Court"?

Ans. Term jurisdiction may be defined to be the power or authority of a court to hear and
determine a cause, to adjudicate and exercise any judicial power in relation to it. So
jurisdiction is meant the authority which a court has, to decide matters that are litigated
before it or the take cognizance of matters presented in a formal way for its decision.
There is always a distinction between want of jurisdiction and irregular exercise of it. The
defect of jurisdiction goes to root of the matters. Such a basic and fundamental defect
cannot be cured by consent of parties. In short, a decree passed by a court without
jurisdiction is a "Coram non judice". In Kiran Singh v. Chaman Paswan, AIR 1951 SC
340 it was observed -
"It is a fundamental principle well established that a decree passed by a court without
jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is
sought to be enforced or relied upon, even at the stage of execution and even in collateral
proceedings. A defect of jurisdiction...strikes at the very authority of the court to pass any
decree, and such a defect cannot be cured even by consent of parties."
Kinds of Jurisdiction; Jurisdiction of a court may be classified into the following categories
:-
(i) Territorial or local jurisdiction - Every court has its own local or territorial limits beyond
which it cannot exercise its jurisdiction. These limits are fixed by the Government. The
District Judge has to exercise jurisdiction within his district and not outside it. The High
Court has jurisdiction over the territory of the State within which it is situate and not beyond
it. Again, a court has no jurisdiction to try a suit for immovable property situated beyond its
local limits.
(ii) Pecuniary jurisdiction - Section 6 of 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. Some courts have unlimited pecuniary jurisdiction, e.g.
High Courts and District Courts have no pecuniary limitations. But there are other courts
having jurisdiction to try suits up to a particular amount of subject matter.
(iii) Jurisdiction over the subject-matter - Different types of courts have been allotted
different type of work by different statutes. For example, a small cause court can try only
certain suits, such as money suit, based on an oral loan or a bond or promissory note, a suit
for price of work done, a suit for recovery of price of goods supplied, but it has no
jurisdiction to try the suits for specific performance of contracts, for injunction, for a
dissolution of partnership, or suit for partition of immovable property. Similarly, only District
Judge has the jurisdiction in respect of testamentary matters, such as granting probate or
letter of administration, and divorce cases.
(iv) Original or Appellate Jurisdiction - The jurisdiction of a Court may be original or
appellate. For example, the jurisdiction of the court of munsif and small cause court is only
original, while the court of Civil Judge, District Judge, and High Court also exercise
appellate jurisdiction. In the exercise of its original jurisdiction, a court entertains original
suits, while in the exercise of its appellate jurisdiction it entertains appeals.

Q. 8 Discuss with the help of decided cases that every kind of

dispute is not entertainable by civil court.

Or
What is a suit of civil nature ? Give few examples.

Ans. Section 9 of Civil Procedure Code confers the power upon the civil court jurisdiction to
try suit of civil nature. Section 9 provides : "The courts shall (subject to the provisions
herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which
their cognizance is either expressly or impliedly barred."
SUIT OF CIVIL NATURE The word "civil" has not been defined in the Code. But according
to the dictionary meaning, it pertains to private rights and remedies of a citizen as
distinguished from criminal, political, etc. Thus, a suit is of civil nature if the principal
question therein relates to the determination of a civil right and enforcement thereof. It is not
the status of the parties to the suit, but the subject-matter of it which determines whether or
not the suit is one of a civil nature. The expression "suit of civil nature" will cover private
rights and obligations of a citizen. Political and religious questions are not covered by that
expression. A suit in which principal question relates to caste or religion is not a suit of a
civil nature. But if the principal question in the suit is of a civil nature (the right to property or
to an office) and the adjudication incidentally involves the determination relating to a caste
question or to religious rights and ceremonies, it does not cease to be a suit of a civil nature
and the jurisdiction of a civil court is not barred. (Explanation 1 to Section 9).
Explanation II, added by the Amendment Act, 1976, further provides that 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. Thus in order to fall within the purview of the
term 'of civil nature ' the suit must be for the enforcement of private rights and obligations of
a citizen and not of matters which are purely social.
In view of Section 9 of the Code of Civil Procedure, the enquiry of the court should be
confined to the dispute of a civil nature. Any dispute which is not of a civil nature should be
excluded from consideration. The dispute as to right of worship is one of a civil nature within
the meaning of Section 9 of the Code and a suit is maintainable for the vindication or
determination of such a right (District Council of United Basel Mission Church and
others v. Salavador Nicholas Mathlas and others, (1988) 2 SCC 31).
The right to remain in the community or to exercise the rights and privileges of the members
of the community is a civil one (Mansoor Ali v. Taiyabali Mohammad Ali Dawoodi Bohra,
157 IC 302).
A suit to establish a person's right to enter a religious place and a suit to restrain the
defendant from entering a place of worship are both entertainable, being suits of a civil
nature. It is a civil right of every citizen that he should be entitled to carry on his worship in
any method he likes so long as he does not, by his performances, affect others injuriously.
Where the plaintiffs claimed to be entitled to enter the temple bareheaded and worship, it
was held that the civil court has jurisdiction to entertain it (Ratan Singh v. Bali Ram, AIR
1952 Punjab 163).
The right to take out a procession through the public streets is a civil right, and a suit will lie
to enforce such a right in a civil court (Sanganbasaswami Guru v. Baburao Ganesh
Kulkarni, ILR (1946) Bom. 437).
The right to officiate as a priest or as a guru simpliciter is not a civil right and no suit lies to
enforce the same. But where it amounts to an office attached to an institution such as a
temple, it has been recognised as a civil right. The fact that there are emoluments of a non-
gratuitous character payable out of the funds of the institution is relevant, though the
absence thereof is not decisive. There may be offices without emoluments at all. The crucial
test in determining whether a claim to purohitship or priesthood of a temple is a claim to an
office or not is whether there are duties attached to purohitship which are enforceable by
law, custom or usage, whether by deprivation or other temporal sanction (Chunnu Dutt
Vyas v. Babu Nandan, AIR 32 All 527).
COGNIZANCE NOT BARRED
Section 9 C.P.C. provides that Civil Court has jurisdiction to entertain suit of civil nature
unless its cognizance is barred either expressly or impliedly.
Cognizance Expressly Barred
A suit is said to be expressly barred when it is barred by any statute for the time being in
force.
Cognizance Impliedly Barred
A suit is said to be impliedly barred when it is barred by general principles of Law. For
Example where a specific remedy is given by a Statute, it thereby deprive the person who
insists upon a remedy in any other form than that given by the Statute.

Q. 9 Whether following suits are cognizable by civil court :-

(A) Suit for dismissal from post of honorary secretary of an

association.

(B) Suit for exclusion of a member from cast.

(C) Suit to set aside the election of directors.

(D) Proceedings for dissolution of Muslim marriage.

(E) Claim by Swami to be carried out in palanquin on high road of

Town on a occasion.

(F) Suit relating to costs property.

Ans. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all
suits of a civil nature excepting suits of which their cognizance is either expressly or
impliedly barred.
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 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.
So in view of Section 9 of Code :-
(A) Suit for dismissal from post of honourary secretary of an association is not suit of civil
nature within the meaning of Section 9.
(B) Suit for exclusion of a member from a caste is a one cognizable by civil court because
exclusion of some one from his caste, affects his legal right.
(C) Suit to set aside the election of director's is suit of civil nature because in such suit, legal
right of some one for being appointed as "Directors' is challenged.
(D) Proceeding for dissolution of Muslim marriage is purely a suit of civil nature.
(E) Claim of any Swami to be carried out in palanquin is not a suit of civil nature, because, it
does not involve any legal right of Swami but claim is mark of honour.
(F) Suit for inspection of accounts of caste property is a civil nature, as every member of
cast is entitled to inspect account books at all reasonable times on demand.
 Q. 10 Does the Code of Civil Procedure make any provision
preventing courts of concurrent jurisdiction from trying at the same
time two parallel suits in respect of same cause of action ? If so what
? Discuss.

Ans. Section 10 of the Code deals with the stay of civil suits. It reads:
"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, or between parties under whom they or any of them claim litigating under the
same title where such suit is pending in the same or any other court in India having
jurisdiction to grant the relief claimed, or in any court beyond the limits of India
established or constituted by the Central Government and having like jurisdiction, or
before the Supreme Court."
The object of the Rule contained in Section 10 is to prevent the courts of concurrent
jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in
respect of the same cause of action, the same subject-matter and the same relief. The
policy of the law is to confine the plaintiff to one litigation, thus obviating the possibility of
two contradictory verdicts by one and the same court in respect of the same relief.
In Shetty v. Giridhar, AIR 1982 SC 83 it was held :
For the application of this Section , the following conditions must be satisfied :-
(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 India or in any court beyond the limits of
India established or continued by the Central 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.
(6) Such parties must be litigating under the same title in both the suits.

Q. 11 A suit for partition of premises has filled by one of the heirs.

Subsequently another suit for eviction of tenant from there premises
was filled by another heir ? Can the subsequent suit be stayed in
view of Section 10 of C.P.C.

Ans. Section 10 of Civil Procedure Code deals with doctrine of "Sub judice' Section 10 says
-
"No Court shall proceed with the trial of any suit in which the matter in issue is also directly
the substantially in issue in a previously instituted suit between the same parties, or
between parties under whom they or any of them claim litigating under the same title where
such suit is pending in the same or any other Court in India having jurisdiction to grant the
relief claimed, or in any Court beyond the limits of India established or continued by the
central Government and having like jurisdiction, or before the Supreme Court."
So what is important to invock Section 10 is that subsequently filled suit should be for same
cause of action and between same parties and matter in issue in previous and subsequent
suits must be directly and substantially the same. Where the cause of action and reliefs are
different, it cannot be said that the matter in issue between the two suits is directly and
substantially the same. Identity of one or two issues is not enough. What has to be seen is
whether the filed of controversy is the same and whether the final decision in the previous
suit is such as would operate as res judicata in the subsequent suit. Where one of the heirs
to the premises filed a suit for declaration of his share and of the other heirs impleaded as
defendants and for partition and the subsequent suit was filed by another heirs for eviction
of the tenant from those premises and the plaintiff in the first suit also being heirs was
impleaded as pro forma defendant, the controversy in the two suits cannot be said to be the
same as the controversy in the first suit relates to the share of the parties in the premises
and the subsequent suit for eviction has nothing to do with the same. Therefore the
subsequent eviction suit need not be stayed under Section 10 C.P.C.

Q. 12 B residing in Calcutta has an agent at Calicut employed to sell

his goods there. A sues B in Calicut claiming a balance due upon an
account in respect of dealing between him and B. During the
pendency of the suit in Calicut Court competent to grant relief B
institute a suit against A in Calcutta for an account and damages
caused by A's alleged negligence. Can the Calcutta Court proceed
with trial of B's suit?

Ans. Rule of "Res Sub Judice" as embodied in Section 10 of C.P.C. says "no court shall
proceed with trial of any suit in which the matter in issue is also directly and substantially in
issue in previously instituted case between same parties or parties under whom they or any
of them claim, litigating under same title, pending in the same court or any other court
competent to grant relief claimed or any court beyond limits of India established or
constituted by Central Govt. or before Supreme Court.
So when a suit between same parties is already pending in a competent court and question
involved therein, is again directly and substantially raised in other suit instituted
subsequently, then such subsequent suit will not be allowed to proceed in view of provision
of Section 10 C.P.C.
In case in hand when matter between A and B is already pending in Calicut Court which is
competent court then alike matter in suit subsequently filed by B at Calcutta shall not be
proceed.
 Q. 13 What is the scope and object of doctrine of res judicata ?
Discuss the conditions necessary for its application in legal
proceedings.

Ans. Section 11 of Civil Procedure Code embodies the doctrine of res judicata which is
based on the need of giving finality to judicial decisions. It is a Rule of conclusiveness of
judgment as to the points decided either of facts or of law or fact and law, in every
subsequent suit between the same parties. It simply enacts that once a matter is finally
decided by a competent court, no party can be permitted to reopen it in subsequent
litigation. The doctrine of res judicata is based on three maxims:-
(1) nemo debt lis vexari pro uno et eaden causa
: No man should be vexed twice for same cause.
(2) intrest republica ut sit finis litium
: It is in the interest of the state that there should be an end to a litigation.
(3) Res Judicata pro veritate occipiture
: a judicial decision must be accepted as correct.
Section 11 C.P.C. provide as under :-
"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".
In Daryao v. State of U.P., AIR 1961 SC 1457 Supreme Court observed :- The binding
character of judgment pronounced by court of competent jurisdiction is itself an essential
part of rule of law and rule of law obviously is the basis of administration of justice on which
the Constitution lays so much emphasis."
In Sheodan Singh v. Daryao Kunwar AIR 1966 SC 1332 it was held that "It is not every
matter decided in a former suit that will operate as `res judicata' in a subsequent suit. To
constitute a matter res judicata under section 11 the following conditions must be satisfied :-
(a) The matter directly and substantially in issue in the subsequent suit or issue must be the
same matter which was directly and substantially in issue either actually or constructively in
the former suit.
(b) The former suit must have been a suit between the same parties or between parties
under whom they or any of them claim.
(c) Such parties must have been litigating under the same title in the former suit.
(d) The court which decided the former suit must be a court competent to try the
subsequent suit or the suit in which such issue is subsequently raised (Explanations II and
VII are to be read with this condition).
(d) The matter directly and substantially in issue in the subsequent suit must have been
heard and finally decided by the court in former suit.

Q. 14 (a) Discuss the doctrine of constructive res judicata.

 (b) A sues B to recover certain property belonging to the estate of C,
alleging that his (A's) father had been adopted by C's brother D, to
whom the property descended on C's death. The suit is dismissed on
the ground that the adoption is not proved. A then sues B to recover
the same property claiming it as C's Bandhu. Is the suit barred as res
judicata ?
(c) A, alleging that he is the adopted son of X sues B to recover
certain property granted to him by X under a deed and forming part
of the estate of X. The court finds that A is not the adopted son of X,
but that he is entitled to the property under the deed and a decree is
passed in favour of A. Will the finding that A is not the adopted son
of X operate as res judicata in a subsequent suit between A and B in
which the question of adoption is again put in issue ?

Ans. (a) Rule of res judicata as contemplated by Section 11 applies only when a matter
directly and substantially in issue in a suit has also been directly and substantially in issue in
a former suit between same parties and such matter has been heard and finally decided in
that former suit by competent court. A matter directly and substantially in issue may be so
either actually or constructively. A matter is actually in issue when it is alleged by one party
and denied or admitted by the other (Explanation III). It is constructively in issue when it
might and ought to have been made a ground of attack or defence in the former
suit. Explanation IV to Section 11 by a deeming provision lays down that any matter which
might and ought to have been made a ground of defence or attack in the former suit, but
which has not been made a ground of attack or defence, shall be deemed to have been a
matter directly and substantially in issue in such suit.
In State of U.P. v. Nawab Hussain, A.I.R. 1977 SC 1681 A, a sub-inspector of police, was
dismissed from service by D.I.G. He challenged the order of dismissal by filing a writ petition
in the High Court on the ground that he was not afforded reasonable opportunity of being
heard before passing the Order. The contention was, however, negatived and the petition
was dismissed. He then filed a suit and raised an additional ground that since he was
appointed by I.G.P., D.I.G. had no power to dismiss him. The State contended that the suit
was barred by constructive res judicata. The trial court, the first appellate court as well as
the High Court held that the suit was not barred by res judicata. Allowing the appeal filed by
the State, the Supreme Court held that the suit was barred by constructive res judicata as
the plea was within the knowledge of the plaintiff and could well have been taken in earlier
writ petition. It was observed by Supreme Court :-
"When any matter which might and ought to have been made a ground of defence or attack
in a former proceeding but was not so made, then such a matter in the eye of law, to avoid
multiplicity of litigation and to bring about finality in it, is deemed to have been constructively
in issue and, therefore, is taken as decided."
Ans. (b) Rule of Constructive Res Judicata as embodied in Explanation IV to Section
11 C.P.C. is an artificial form of Res Judicata and provides that if a plea should have been
taken by a party in a proceeding between him and his opponent, but was not actually taken
in that former suit, he should not be permitted to take that plea against the same party in a
subsequent proceeding with reference to same subject matter.
Explanation IV to Section 11 C.P.C. provides "Any matter which might or ought to have
been made a ground of defence or attack in the former suit, but which has not been
made ground of attack or defence shall be deemed to have been matter directly and
substantially in issue in such suit."
Coming now to case in hand, when A filed earlier suit against B, it was open to A to take the
plea of C's Bandhu to recover property, but A did not take that plea and only made his claim
on the basis of alleged adoption of his father by D who was C's brother. A's earlier suit was
dismissed and now A's second suit is barred by constructive res judicata.
Ans. (c) One of the requirements for application of Rule of res judicata as embodied
in Section 11 C.P.C. is that Judgement of Court must be on a matter which was directly
and substantially in issue between parties. When a court of competent jurisdiction hears
and finally decides any matter which was directly and substantially in issue between parties
it will only operate res judicata in any subsequent suit between same parties if that matter is
again directly and substantially in issue in such subsequent suit. The words "directly and
substantially in issue" have been used in Section 11 in contradiction to words "collaterally
and incidentally in issue". Decisions on the matters collateral and incidental to main issues
in the case will not operate as res judicata. A collateral or incidental issue means an issue
which is ancillary to direct and substantive issue.
Recently Supreme Court in Madhvi Amma Bhawani Amma and others v. Kunjikutti
Pillai Meenakshi Pillai and others, AIR 2000 SC 2301 observed :-
"In order to apply the general principle of res judicata court must find whether an issue in
subsequent suit was directly and substantially in issue in earlier suit or proceeding, was it
between the same parties and was it decided by such court. Thus there should be an issue
raised and decided not merely any finding on any incidental question for reaching such
decision so if no such issue is raised and if on any other issue if incidentally any finding is
recorded, it would not come within the periphery of principle of res judicata."
Moreover, a finding on an issue cannot be said to be necessary to the decision of a suit
unless the decision was based upon that finding. In the case in hand, the finding that A is
not the adopted son of X will not operate as res judicata in a subsequent suit between A
and B in which the question of adoption is again put in issue, for the decree being in favour
of A, A could not have appealed from that finding. The Court having found that A was
entitled to the property under the deed, the finding on the question of adoption was not
necessary to the determination of the suit. The decree, far from being based on the finding
as to adoption, was made in spite of it.

Q. 15 Explain the significance of "the matter collaterally or

incidentally in issue" determining the principles of res judicata.
Ans. Matter collaterally or incidentally in issue. - The expression "collaterally or
incidentally in issue" implies that there is another matter, which is directly and substantially
in issue and the matter collaterally and incidentally is only incidental to the direct and
substantial issue. Collateral and incidental issues are the auxiliary issues, while direct and
substantial issues are principal issues. A collateral or incidental issue is an issue in respect
of which no relief is claimed but which is put in issue to enable the Court to adjudicate upon
the matter which is directly and substantially is issue. It is only those matters which are
directly and substantially in issue that constitute res judicata and not the matters which are
in issue only collaterally or incidentally. The matter could be directly and substantially in
issue if the issue was decided and judgment was, in fact, based upon that decision
otherwise it would be a matter collaterally or incidentally in issue. An illustration will further
elucidate the point. A sues B for rent for the year 1975 and B claims abatement of rent on
the ground that the area is greater that shown in the lease. The finding as to the excess
area is not res judicata for this was not the matter directly and substantially in issue but only
anciallry to the direct and substantial issue, viz., whether the area is equal to that shown in
the lease or less.

Q. 16 Res judicata is sometimes treated as part of the doctrine of

estoppel but the two are essentially different. Explain and point out
the difference between the two.

Ans. The doctrine of res judicata is often treated as a branch of law of estoppel. Res
judicata is really estoppel by verdict or estoppel by judgment (record). The rule of
constructive res judicata is nothing else but a rule of estoppel. Even then, the doctrine of res
judicata differs in essential particulars from the doctrine of estoppel.
(1) the rule of res judicata is based on public policy, viz. that there should be an end to
litigation. Estoppel, on the other hand, proceeds upon the doctrine of equity, that he who, by
his conduct, has induced another to alter his position to his disadvantage, cannot turn round
and take advantage of such alteration of the other's position.
(2) Res judicata ousts the jurisdiction of the Court to try the case and precludes an
enquiry in limine (at the threshold); estoppel is only a rule of evidence and shuts the mouth
of a party.
(3) Res judicata results from a decision of the Court, whereas estoppel flows from the acts
of parties.
(4) The rule of res judicata presumes conclusively the truth of the decision in the former suit,
while the rule of estoppel prevents a party from denying what he has once called the truth.
(5) Res judicata prohibits a man averring the same thing twice in successive litigations,
while estoppel prevents him from saying one thing at one time and the opposite at another.

Q. 17 (a) Nine Akali Sikhs sue for removal of Mahant of a religious

institution. The suit is dismissed on the ground that the institution is
Hindu Dera and not a Sikh Gurudwara. Subsequently and after the
passing of Sikh Gurudwara Act 1925, sixty four sikhs sue for
 declaration that institution is Sikh Gurudwara. Is the suit is barred
by Res Judicata ?

(b) A a Hindu dies leaving widow and brother B. The widow sues B
for recovery of certain property alleging that it was a self acquired
property of her husband and that a will alleged to have been
executed by her husband and relied upon by B was a forgery. B
alleges that the property was joint family property and that on the
death of A he became entitled thereto by right of survivorship, but
he does not claim any title to the property under the will. The court
finds that the property was self acquired property of A and decrees
the widow's claim. Subsequently B sues the widow to recover same
property from her now claiming the same as devisee under A's will.
Is the suit barred by res judicata ?

Ans. (a) For the application of Rule of Res Judicata as enshrined under section 11 of
C.P.C., one of the conditions is that former suit must be between the same parties or parties
under whom they claim litigating under same title as in subsequent suit.
However Explanation VI of Section 11 provides `where persons litigate bona fide in
respect of public right or a private right claimed in common for themselves and others, all
persons interested in such right shall, for the purpose this section, be deemed to claim
under the person so litigating."
So Explanation VI to Section 11 deals with Representative suits i.e. suits instituted by or
against a person to his representative as distinguished from individual capacity. Thus where
a representative suit is brought under section 92 C.P.C. and decree is passed in such suit,
law assumes that all persons who have same interest as plaintiff in representative suit were
represented by said plaintiffs and therefore are constructively barred by res judicata from
reagitating the matter directly and substantially in issue in former suit.
In Forward Construction Co. v. Probhat Mandal, AIR 1986 SC 391, it was held that
(i) there must be a right claimed by one or more persons in common for themselves and
others not expressly named in the suit
(ii) Parties not expressly named in suit must be instructed in such right.
(iii) Litigation must have been conducted bona fide and on behalf of all parties interested
and
(iv) if suit is under Order 1 Rule 8 all conditions of such provision must have been strictly
complied with. It is only then that decision may operate as res judicata.
But where a party claims right for himself alone which happens to be common to him and
other, then it cannot be said that he was litigating on behalf of other and Explanation VI
of Section 11 C.P.C. does not apply."
In the case in hand, earlier suit was filed by nine Akali Sikhs for removal of Mahant of
Religious institution. These Akali Sikhs were claiming in suit not as Representatives for all
sikhs, but they were having their individual claim in that suit. Therefore decision in the
former suit can not operate as res judicata in subsequent suit which was filed by sixty four
sikhs after passing of Sikh Gurudwara Act, 1925.
(b) Rule of Res Judicata applies in respect of only those matters which were directly and
substantially in issue in former suit and which were heard and finally decided in that suit by
court, and are directly and substantially in issue in subsequent suit, between same
parties. Explanation III to Section 11 says all those matters which have been alleged by
one party and either denied or admitted by the other (Expressly or Impliedly) are deemed to
be directly and substantially in issue, within the meaning of Section 11 C.P.C.
Explanation IV of Section 11 C.P.C. provides "Any matter which might or ought to have
been made ground of defence or attack in such former suit but which has not been
made ground of attack or defence, shall be deemed to have been matter directly and
substantially in issue in such suit."
So Explanation IV to Section 11 provides for Rule of "Constructive Res Judicata" and
provide if a plea could have been taken by a party in proceedings between him and his
opponent, he could not be permitted to take that plea against the same party in a
subsequent suit with reference to the same subject matter.
In State of U.P. v. Nawab Hussain, AIR 1977 SC 1681 Supreme Court observed:-"When
any matter which might and ought to have been made a ground of defence or attack
in a former proceeding but was not so made then such a matter in the eye of law, to
avoid multiplicity of litigation and to bring about finality in it is deemed to have been
constructively in issue and therefore, is taken as decided."
Coming now to case in hand, when widow of A filed suit against B for recovery of property
on the ground of Will allegedly executed by A and on the ground that suit property was A's
self acquired property, B contested that suit only on the ground that suit property was joint
property and not A's self acquired property. B in that suit could have taken the defence for
which he filed second suit in reference to same property and against same party i.e. widow
of A. Therefore bar of constructive res judicata will apply in respect of suit filed by B for
recovery of property on the ground of A's will.

Q. 18 (a) What is prematrue discovery ?

(b) What is the penalty for non-compliance by a party with the order
of the court for discovery of document ?

Ans. (a) Premature discovery. : Rule 20 - The court is empowered to postpone a

premature discovery or inspection. A discovery is premature when the right to discovery
depends upon the determination of any issue or question in dispute or for any other reason
it is desirable that any issue or question in dispute in suit should be determined before
deciding upon the right to the discovery. In such a case, the Court may order that issue or
question to be determined first and reserve the question as to the discovery thereafter. The
rule, however, does not apply where discovery is necessary for the determination of such
issue or question.
(b) Non-compliance with order : Rule 21 - Where any party fails to comply with any order
to answer interrogatories or for discovery or production of documents, if such party happens
to be a plaintiff, his suit may be dismissed for want of prosecution, and if he happens to be a
defendant his defence will be struck off and will be placed in the same position as if he had
not defendant. Such order, however, can be passed only after giving notice and a
reasonable opportunity of being heard to the plaintiff or the defendant as the case may be. If
the suit of the plaintiff is dismissed on this ground, he cannot file a fresh suit on the same
cause of action.
In Babber Sewing Machine Co. Triloki Nath, AIR 1978 SC 1436 The court ordered the
defendant to produce certain documents. The defendant did not comply with that order and
his defence was, therefore, struck off. At the trial, he was not allowed to cross-examine the
witnesses of the plaintiff. The defendant challenged that action.
Setting aside the decision, the Supreme Court held that the stringent provisions of Order 11,
Rule 21 should not be lightly invoked and must be applied only in extreme cases as a last
resort.

Q. 19 Describe the procedure you will adopt in the case of discovery

and inspection of documents in possession of the opposite party.

Ans. Procedure in case of discovery and inspection of documents. - Rule 12 of Order

11 provides that any party may, without filling any affidavit, apply to the court for an order
directing any other party to any suit to make discovery on oath of the documents which are
in his possession or power, relating to any matter in question therein. An application will,
therefore, have to be made for discovery of documents in possession of the opposite party
in terms of Rule 12, Order 11, C.P.C.
The general rules as to discovery of documents may be summarised as under :
(1) Any party to a suit may apply to the court for an order directing any other party to make
discovery on oath of the documents which are or have been in possession or power,
relating to any matter in question in the suit.
(2) The court may either refuse or adjourn such application if satisfied that such discovery is
not necessary or not necessary at that stage of the suit or make such order as it thinks fit.
(3) The court may exercise this power at any stage, either of its own motion or on an
application of any party and subject to such conditions and limitations as may be prescribed
by it.
(4) Generally, no order of discovery, inspection or production of documents will be passed
by the court on the application of the plaintiff until the written statement is filed by the
defendant or the time to file it has expired.
(5) Discovery cannot be ordered by the court if it is of the opinion that it is not necessary
either for the fair disposal of the suit or for saving costs.
(6) A party against whom an order for discovery of documents has been made by the court
is, as a general rule, bound to produce all the documents in his possession or power.
However, if such party considers that he is entitled to legal protection in respect of a
particular document which he has been ordered to produce by the court, he is at liberty to
take such objection.
(7) When such privilege is claimed for any document, the court will inspect such document
for the purpose of deciding the validity of the claim of privilege, unless the document relates
to matters of Stage.

Q. 20 What do you understand by `Foreign Judgment' ? In what

manner may a decree of foreign court be executed in India ?

Ans. Section 2(6) C.P.C. says `Foreign Judgment' means judgment of foreign court.
"Foreign court" means a court situated outside India and not established or continued by the
authority of Central Govt.
BINDING NATURE OF FOREIGN JUDGEMENT ( Section 13)
Section 13 provides "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 litigating under the same title except:
1. Where it has not been pronounced by court of competent jurisdiction.
2. Where it has not been given on merits of case.
3. Where it appears on the face of proceedings to be founded on incorrect view of
International Law or refusal of recognised principle of law in India.
4. Where the proceedings in which judgment was obtained are opposed to natural justice.
5. Where it has been obtained by fraud.
6. Where it sustains a claim founded on breach of any law in force in India.
A combined reading of Sections 43 to 44-A shows that the Indian courts have power to
execute the decrees passed by
(1) Indian courts to which the provisions of the Code do not apply;
(2) the courts situate outside India which are established by the authority of the Central
Government;
(3) revenue courts in India to which the provisions of the Code do not apply; and
(4) superior courts of any reciprocating territory.
In Sheikh Ali v. Sheikh Mohd. AIR 1967 Madras 45(a) it was held :
"The jurisdiction of district court in this country to execute foreign judgment arises from and
is exercisable by the filing of a certified copy of foreign decree or judgement. It is only
thereafter and never until then the procedural laws as to lex fori will be attracted to
execution. The Limitation Act can apply possibly to such execution only after filing a certified
copy of the foreign decree or judgment as required by Section 44-A(1) of Civil Procedure
Code.
In M/s International Woollen Mills v. M/s Standard Wools (U.K.), AIR 2001 SC 2134, it
was observed section 44-A C.P.C. says where a certified copy of decree of any superior
court of any reciprocating territory has been filed in District Court along with certificate from
such superior Court stating the extent if any to which the decree had been satisfied or
adjudicated, decree may be executed in India as if it had been passed in India. Court
observed regarding section 13(b) C.P.C. that it can not be said that expression "Foreign
Judgment on merit" implies that it must have been passed after contest and after evidence
had been let in from both the side. An Ex parte foreign decree and judgment in favour of
plaintiff may deemed to be judgment given on meriet if some evidence is adduced on behalf
of plaintiff and judgment is based on consideration of that evidence."
 Q. 21 How a suit is to be instituted ? What are the rules regarding
institution of suits ?

Ans. A suit is to be instituted by presentation of a plaint or in any prescribed manner.

Sections 15 to 20 of Code of Civil Procedure regulate the forum for the institution of suits.
Section 15 of Code says -
"Every suit shall be instituted in the court of the Lowest grade competent to try it."
So section 15 refers to the pecuniary jurisdiction of the Court. Underlying object of Section
15 is to see that court of higher grade may not be over burdened with suits and to ensure
that justice may be provided at the door step of litigants.
Suits to be instituted where subject matter situate Section 16 of the Civil Procedure
Code provides that, "subject to the pecuniary or other limitations prescribed by any law,
suits regarding immovable property are to be instituted in court within whose local
jurisdiction the property is situate". However, it has also been provided in its proviso that a
suit to obtain relief respecting, or compensation for wrong to, immovable property held by or
on behalf of the defendant may, where the relief sought can be entirely obtained through his
personal obedience, be instituted either in the court within the local limits of whose
jurisdiction the property is situate, or in the court within the local limits of whose jurisdiction
the defendant actually resides or carries on business or personally works for gain.
Suits for Immovable property situate within jurisdiction of different Courts. Section 17
of the Civil Procedure Code provides 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, provides that in respect of the value of the subject- matter
of the suit, the entire claim is cognizable by such court.
Place of institution of suit where local limits of jurisdiction of courts are
uncertain. Section 18 of the Code of Civil Procedure provides that where it is alleged to be
uncertain within the local limits of jurisdiction of which of two or more courts, any immovable
property is situate, any one of those courts if satisfied that there is ground for the alleged
uncertainly, record a statement to that effect and thereupon proceed to entertain and
dispose of any suit relating to that property, and its decree in the suit shall have the same
effect as if the property were situate within the local limits of its jurisdiction, provided that the
suit is one with respect to which the court is competent as regards the nature and value of
the suit to exercise jurisdiction.
Sub-section (2) of section 18 C.P.C. further provides that where a statement has not been
recorded under sub-section (1) and an objection is taken before an appellate or revisional
Court that a decree or order in a suit relating to such property was made by a court not
having jurisdiction where the property is situate, the appellate or revisional court shall not
allow the objection unless in its opinion there was, at the time of the institution of the suit, no
reasonable ground for uncertainty as to the court having jurisdiction with respect thereto
and there has been a consequent failure of justice.
Suits for Compensation for wrongs to person or movables. Section 19 of the Code of
Civil Procedure provides that where a suit is for compensation for wrong done to the person
or to movable property, if the wrong was done within the local limits of the jurisdiction of one
court and the defendant resides, or carries on business, or personally works for gain, within
the local limits of the jurisdiction of another court, the suit may be instituted at the option of
the plaintiff in either of the said courts.
Other suits to be instituted where defendant resides or cause of action arises. Section
20 of the Code of Civil Procedure provides that subject to the aforesaid rules, every other
suit shall be instituted in a court within the local limits of jurisdiction -
(i) where the cause of action, wholly or partly, arises; or
(ii) where the defendant resides, or carries on business or personally works for gain; or
(iii) where there are two or more defendants, any of them resides or carries on business or
personally works for gain, provided that in such case (a) either the leave of the court is
obtained, or (b) the defendants who do not reside or carry on business or personally work
for gain at that place acquiesce (agree to) in such institution.
Explanation - A corporation shall be deemed to carry on business at its sole or principal
office in India, in respect of any cause of action arising at any place where it has also a
subordinate office, at such place.

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 ?

Ans. Sections 15 to 20 of Civil Procedure Code regulate the forum for the institution of
suits. Section 16 of C.P.C. is relevant here which provide :-
"Subject to pecuniary or other limitation prescribed by any law, suits -
(a) for the recovery of immovable property
(b) for partition of immovable property
(c) for foreclosure, sale or redemption in case of mortgage of or charge upon immovable
property.
(d) for the determination of any other right to or interest in immovable property.
(d) for compensation for wrong to immovable property.
(f) for recovery of immovable property actually under distraint or attachment,
shall be instituted in the Court within the local limits of whose jurisdiction the property is
situated.
Provided that suit to obtain relief respecting or compensation for wrong to immovable
property held by or on behalf of defendant may, where the relief sought can be entirely
obtained through his personal obedience be instituted either in court within the local limits of
whose jurisdiction the property is situate, or in the court within the local limits of whose
jurisdiction the defendant actually and voluntarily resides or carries on business or
personally works for gains."
In the present case plaintiff's claim is right or interest in immovable property which is
situated at Kanpur therefore in view of clause (d) of Section 16, Delhi Courts has no
territorial jurisdiction to decide the suit for such immovable property. Therefore plaintiff's suit
for his right to or interest in immovable property situated at Kanpur shall not be
maintainable.
Now question arises as to claim of plaintiff for Rs. 50,000, lying deposited at Delhi Bank.
Here Section 20 of C.P.C. is relevant which provide that suits not covered by any Rules
provided under section 16 to 18 shall be filed :
(a) Where the cause of action wholly or partly arises
(b) Where defendant resides or carries on business or personally works for gain or
(c) Where there are two or more defendants, any of them resides or carries on business or
personally works for gains provided in such case either leave of court is obtained or the
defendant who does not reside or carry on business or personally works for gains at that
place acquiesce in such institution.
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.

(b) A residing in Bombay, publishes in Delhi statements defamatory

of B. Where can B file a suit for compensation against A ?

Ans. (a) 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) 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 ?

Ans. Section 20 of the Code of Civil Procedure, so far as it is relevant for our purpose,
reads as under : "Subject to the limitations aforesaid, every suit shall be instituted in a Court
within the local limits of whose jurisdiction -
(a) the defendant, or each of the defendants where there are more than one, at the time of
the commencement of the suit, actually and voluntarily resides, or carries on business, or
personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or
personally works for gain, provided that in such case either the leave of the Court is given,
or the defendants who do not reside, or carry on business, or personally work for gain, as
aforesaid acquiesce in such institution;
(c) or the cause of action, wholly or in part, arises.
Explanation : A corporation shall be deemed to carry on business at its sole or principal
office in India or, in respect of any cause of action arising at any place where it has also a
subordinate office, at such place".
So if a suit is filed against a Corporation on the ground of its carrying on business, then in
view if Explanation to Section 20, suit will lie where the Corporation has its head office
even if no part of cause of action arises there or branch office where cause of action has
arose.
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 ?
Ans. Section 20 of the Code of Civil Procedure provides as under :-
"Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local
limits of whose jurisdiction :-
(a) the defendant, or each of the defendants where there are more than one, at the time of
the commencement of the suit, actually and voluntarily resides, or carries on business, or
personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or
personally works for gain, provided that in such case either the leave of the Court is given or
the defendants who do not reside, or carry on business, or personally work for gain, as
aforesaid, acquiesce in such institutions; or
(c) the cause of action, wholly or in part, arises."
Under this Section the plaintiff has the option of suing at a place either where the cause of
action or a part thereof has accrued, or in the forum of the defendant, i.e., where the
defendant resides or carries on business or personally works for gain.
In view of the provisions contained in Clause (b) of Section 20 of the Code, A can file the
suit at Calcutta where B resides, or at Delhi where C resides; but in each of these cases
either 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.
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.

(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.
Ans. (i) Section 20 of the Code of Civil Procedure provides as under:- "Subject to the
limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose
jurisdiction-
(a) the defendant, or each of the defendants where there are more than one, at the time of
the commencement of the suit, actually and voluntarily resides, or carries on business, or
personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or
personally works for gain, provided that in such case either the leave of the Court is given or
the defendants who do not reside, or carry on business, or personally work for gain, as
aforesaid, acquiesce in such institutions; or
(c) the cause of action, wholly or in part, arses.
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) 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. 27 When can an objection to jurisdiction be raised ? Can an

objection as to territorial or pecuniary jurisdiction of the court be
raised by a party before the court of appeal or revision?

Ans. Section 21 of the Code of Civil Procedure deals with the question of objections to
jurisdiction of Court. It is important to point out here that objection as to territorial jurisdiction
of a court does not stand at par with objection as to competency of court to try a case.
Competency of a court to try a case goes to the very root of the jurisdiction and where it is
lacking it is uncurable irregularity, vitiating the whole proceedings whereas objection as to
local jurisdiction of a court can be waived. Section 21 of Code is based on this principle.
OBJECTION AS TO TERRITORIAL JURISDICTION Under Section 21(1), no objection as
to the place of suing will be allowed by an appellate or revisional court unless the following
three conditions are satisfied :
(i) The objection was taken in the court of first instance ;
(ii) It was taken at the earliest possible opportunity and in cases where issues are settled at
or before settlement of issues ; and
(iii) There has been a consequent failure of justice.
OBJECTION AS TO PECUNIARY JURISDICTION Sub-section (2) of section 21 of the
Code of Civil Procedure provides that no objection as to the competence of a court with
reference to the pecuniary limits of its jurisdiction shall be allowed by any appellate or
revisional Court unless such objection was taken in the Court at first instance at the earliest
possible opportunity and in all cases where issues are settled, on or before such settlement,
and unless there has been a consequent failure of justice.
So Section 21 which confines its application only to objections as to territorial or pecuniary
jurisdiction of a court and provides that defects as to place of suing under section 15 to 20
may be waived, if defendant allows the trial Court to proceed to decide the matter without
raising objection in this regard. In Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, it
was observed-
"When a case had been tried by a court on the merits and judgment rendered, it should not
be liable to be reversed purely on technical grounds, unless it had resulted in failure of
justice, and the policy of the legislature has been to treat objections to both territorial and
pecuniary as technical and not open to consideration by an appellate court, unless there
has been a prejudice on merits."

Q. 28 What are the provisions relating to transfer of a civil suit ?

Ans. Sections 22 to 25 of the Code of Civil Procedure lay down the provisions relating to
transfer of a suit. Section 22 of the Code of Civil Procedure provides that where a suit may
be instituted in any one of two or more courts and is instituted in one of such courts, any
defendant after notices to the other parties, may at the earliest possible opportunity and in
all cases where issues are settled, at or before such settlement, apply to have the suit
transferred to another court, and the court to which such application is made, after
considering the objections of the other parties, if any, shall determine in which of the several
courts having jurisdiction the suit shall proceed.
Section 23 of the Code of Civil Procedure further lays down in which court such application
lies. According to it, the position is as follows :-
(i) Where the several courts having jurisdiction are subordinate to the same appellate court,
an application under section 22 shall be made to the appellate court.
(ii) Where such courts are subordinate to different appellate courts, but to the same High
Court, the application shall be made to the said High Court.
(iii) Where such courts are subordinate to different High Courts, the application shall be
made to the High Court within the local limits of whose jurisdiction the court in which the suit
is brought is situate.
Apart from the said provisions relating to transfer, section 24 of the Code of civil Procedure
deals with the general powers of transfer and withdrawal. It provides that on the application
of any of the parties and after notice to the parties and after hearing such of them as desires
to be heard, or of its own motion without such notice, the High Court or the District Court
may at any stage withdraw any suit, appeal or other proceedings before it for trial or
disposal to any court subordinate to it and competent to try or dispose of the same, or,
withdraw any suit, appeal or other proceeding pending in any court subordinate to it. In case
of withdrawal, it can try or dispose of the same, or transfer the same for trial or disposal to
any court subordinate to and competent to try or dispose of the same or retransfer the same
for trial or disposal to the court from which it was withdrawn.
By adding sub-section (3) to section 24 of the Code of Civil Procedure, by the Amendment
Act of 1976, it has further been clarified that courts of Additional and Assistant Judges shall
be deemed to be subordinate to the District Judge Court and `proceeding' includes a
proceeding for the execution of a decree or order. It has further been provided by sub-
section (5), which too has been added by the Amendment Act of 1976, that a suit
proceeding may be transferred under this section from a Court which has no jurisdiction to
try it.
Section 25 of Code provide regarding power of Supreme Court to transfer suits etc. Section
25(1) says that on application of a party and after notice to the parties and after hearing
such of them as desire to be heard, the Supreme Court, may at any stage, if satisfied that
an order under this Section, is expedient for the ends of justice, direct that any suit, appeal
or other proceeding be transferred from a High Court or other Civil Court in one State to a
High Court or other Civil court in any other State.

Q. 29 What do you understand by an interpleader suit ? State the

relevant provisions contained in the Code of Civil Procedure Code
with regard to such a suit.

Ans. (a) Meaning - An interpleader suit is a suit in which the real dispute is not between the
plaintiff and the defendant but between the defendants only and the plaintiff is not really
interested in the subject-matter of the suit. In other words, in an interpleader suit, the
defendants interplead, i.e., plead against each other instead of pleading against the plaintiff
as in an ordinary suit. Section 88 enacts that where two or more persons claim adversely to
one another the same debt, sum of money or other property, movable or immovable, from
another person who does not claim any interest in it except the charges or costs and is
ready to pay or deliver it to the rightful claimant, such person may file an interpleader suit.
(b) Conditions - The following conditions must be satisfied before an interpleader suit can
be instituted -
(1) there must be some debt, sum of money or other property movable or immovable in
dispute;
(2) two or more persons must be claiming it adversely to one another;
(3) the person from whom such debt, money or property is claimed, must not be claiming
any interest therein other than the charges and costs and he must be ready to pay or deliver
it to the rightful claimant; and
(4) there must be no suit pending in which the rights of the rival claimants can be property
decided.
(c) Procedure - Order 35 lays down the procedure relating to an interpleader suit. In every
interpleader suit the plaint in addition to other statements necessary for plaints, state (i) that
the plaintiff claims no interest in the subject-matter in dispute other than the charges or
costs; (ii) the claims made by the defendants severally; and (iii) there is no collusion
between the plaintiff and any of the defendants. The Court may order the plaintiff to place
the thing claimed in the custody of the court and provide his costs by giving him a charge on
the thing claimed. Where any of the defendants in an interpleader suit files a suit against the
plaintiff in another court in respect of the subject-matter of the suit, that court shall stay the
proceedings. At the first hearing, the court may declare that the plaintiff is discharged from
all liability, award him his costs and dismiss him from the suit; or if it thinks that justice or
convenience so requires, retain all parties until the final disposal of the suit. Where the
admission of the parties or other evidence enables the court to do so, it may adjudicate the
title to the thing claimed.

Q. 30 What do you under stand by non-joinder and mis-joinder of

parties and mis-joinder of causes of action ?

Ans. The question of joinder of parties may arise either as regards the plaintiffs or as
regards the defendants. Order 1 deals with the subject of parties to suit and inter
alia (amongst other things) with the joinder, misjoinder and non-joinder of parties and to
some extent with the joinder of cause of action.
Joinder of plaintiffs (Rule 1) - All persons may be joined in one suit as plaintiffs where (a)
any right to relief in respect of, or arising out of, the same act, or transaction or series of
acts or transactions, is alleged to exist in such persons whether jointly, severally or in the
alternative; and (b) if such persons brought separate suits, any common question of law or
fact would arise.
A enters into an agreement jointly with B and C to sell 100 tins of oil. A thereafter refuses to
deliver the goods. Here both, B and C have each of them a right to recover damages from
A. The said right arises out of the same transaction, namely, the breach of agreement; and
common questions of law and fact would also arise. B and C, therefore, may file a suit
jointly as plaintiffs against A for damages.
Separate trials (Rule 2) - Where it appears to the court that any joinder of plaintiff may
embarrass or delay the trial of the suit, the court may put the plaintiffs to their election or
order separate trials or make such other order as may be expedient.
Joinder of defendants (Rule 3) - All persons may be joined in one suit as defendants
where - (a) any right to relief in respect of, or arising out of, the same act or transaction or
series of acts or transactions, is alleged to exist against such persons, whether jointly,
severally or in the alternative; and (b) if separate suits were brought against such persons,
any common question of law or fact would arise.
Before going into Non-joinder or Mis-joinder of parties, it is necessary to understand the
meaning of "Necessary party" and "Proper party". A necessary party is one whose presence
is indispensable for proceeding with the suit and for final decision thereof. On the other
hand "Proper party" is one in whose absence an effective order can be passed, but whose
presence is necessary for complete and final decision of suit.
Mis-Joinder and Non-Joinder of Parties Where a person who is necessary or proper
party to a suit has not been joined as a party to suit, it is a case of non-joinder. On the other
hand, if two or more persons are joined as plaintiffs or defendants in one suit in
contravention of Order 1 rule 1 and 3 and they are neither necessary nor proper party, it is a
case of mis-joinder of parties.
Order 1 rule 9 says "No suit shall be defeated by reason of the mis-joinder or non-joinder of
parties, and the court may in every suit deal with the matter in controversy so far as regards
the rights and interests of the parties actually before it :
Provided that nothing in this rule shall apply to non-joinder of a necessary party.
Misjoinder of Causes of Action Order 2 Rule 3 of the Code of Civil Procedure provides
that save as otherwise provided, a plaintiff may unite in the same suit several causes of
action against the same defendant, or the same defendants jointly, and any plaintiffs having
cause of action in which they are jointly interested against the same defendant or the same
defendants jointly may unite such causes of action in the same suit. Therefore, if the
plaintiffs are not jointly interested against the same defendant or defendants jointly, then,
there is a misjoinder of causes of action.
It has further been provided in Order 2 Rule 7 C.P.C., that all objections regarding
misjoinder of causes of action shall be taken at the first hearing of the suit i.e., at the earliest
opportunity at or before settlement of issue, unless the ground of objection has
subsequently arisen and any such objection not so taken shall be deemed to have been
waived. Same is the position regarding the objections as to non-joinder or misjoinder of
parties as provided in Order 1 Rule 13 C.P.C.

Q. 31 A owned some land which B was cultivating as a tenant. A had

four sons C, D, E and F. After A's death the land was sold by C, D, E
and G son of predeceased son F to H vide registered sale deed dt.
12.2.68. H filed suit for recovery of possession against B. B
contested the suit on the ground inter alia that there are other co-
owners of that property and since all co- owners have not joined in
the filing of suit, the suit is bad for non-joinder of necessary parties.
In the written statement he also gave the pedigree table of A but did
not lead any evidence in this regard. The revenue record also did not
show that there was any other legal heir of A except C, D, E and G at
the time of sale. So H contended that he is sole owner and suit is not
bad for non-joinder of other co-owners - Decide.

Ans. There is essential distinction between "Necessary Party" and "Proper Party" A
necessary Party is one whose presence is indispensable or against whom relief is sought
and without whom no effective order can be passed. A Property Party is one in whose
absence an effective order can be passed but whose presence is necessary for complete
and final decision on question involved in proceedings.
Order 1 Rule 9 of C.P.C. provide that "no suit shall be defeated by reason of the misjoinder
or non-joinder of parties and court may in every suit deal with the matter in controversy so
far as regards the rights and interests of parties actually before it, Provided that nothing in
this Rule shall apply to non-joinder of necessary party."
So general Rule is that no suit can be decided without necessary parties to it. However
Rule 10 of Order 1 C.P.C. provides for substitution or addition of parties to suit on either of
two grounds namely:-
(a) He ought to have been joined as plaintiff or defendant and is not so joined or
(b) Without his presence, the question involved in the suit can not be completely decided.
So precisely speaking no suit shall be dismissed for non-joinder or mis- joinder of parties
unless it is shown that any necessary party is there which is not joined and without whom
matter can not completely and adequately decided.
In Laxmi Shankar v. Yash Ram Vasta AIR 1993 SC 1587 Supreme Court after relying
upon the judgment of Pal Singh v. Sunder Singh AIR 1989 SC 758 wherein it was held
that when other co-owner did not object to eviction, one co-owner could maintain eviction
petition in the absence of other co-owner. Similarly in A. Vishwanath Pillai's Case AIR
1991 SC 1966 wherein it was held that co-owner could successfully file suit and recover the
property against stranger, held that in the absence of necessary proof it can not be held that
suit is not maintainable on the ground of non- joinder of necessary party.
Coming now to case in hand only issue for determination is whether plea of defendant (b) in
the suit that necessary parties have not been joined is sustainable. In his written statement
Defendant (b) has produced pedigree table. However to substantiate his plea, B has not led
any evidence as to Necessary party. A vague statement of B could not be considered
sufficient for attraction of provisions of Order 1 Rule 9 C.P.C. On the other hand Revenue
Record shows that there were no other legal heirs of A except B, C, D and G at the time of
sale of suit property to plaintiff (H). Therefore in the absence of any proof that there are
other co-owner and are necessary parties, the suit can not be dismissed for non-joinder of
necessary parties.

Q. 32 What do you understand by Representative Suit ?

Ans. The general Rule is that all persons interested in the suit should be joined as party to it
so that matter involved in it may finally and completely be adjudicated upon and fresh
litigation over the same matter may be avoided.
Rule 8 of Order 1 of C.P.C. is an exception to above said general rule. It provides that when
there are number of persons commonly interested in a suit, one or more of them can with
the leave or upon the direction of court, sue or be sued on behalf of themselves and other.
Plaintiff in representative suit need not to obtain previous consent of persons whom he
represents.
DEFINITION: `Representative Suit' may be defined as suit filled by or against one or more
persons on behalf of themselves and others having same interest in the suit.
Order 1 Rule 8 C.P.C. has been enacted in order to save time and expense to ensure that a
single comprehensive trial of question in which numerous persons are interested and also
to avoid harassment to parties by multiplicity of suits.
However Order 1 Rule 8 C.P.C. contains only enabling provisions and does not compel any
one to represent many. Order 1 Rule 8 also does not vest a right of suit in a person, if he by
himself has no right to sue. It is necessary to bring the case within the provisions of
Order 1 Rule 8, all the members of a class should have common interest in a subject matter
and a common grievance and relief should in its nature be beneficial to all.
CONDITIONS - Following Rules must exist for application of Rule 8 Order 1 of C.P.C.
(a) The Parties must be numerous.
(b) They must have same or common interest in suit.
(c) Permission must have been granted or direction must have been given by the court.
(d) Notice must have been issued to parties whom it proposed to represent in the suit.

Q. 33 Can a person file a fresh suit in respect of same cause of

action, when he has in a former suit, relinquished part of his claim ?

Ans. Order 2 Rule 2 of the Code of Civil Procedure provides that every suit shall include the
whole of the claim which the plaintiff is entitled to make in respect of the cause of action ;
but a plaintiff may relinquish any portion of his claim in order to bring the suit within the
jurisdiction of any court. It further provides that if a plaintiff omits to sue in respect of, or
intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of
the portion so omitted or relinquished. Thus, the plaintiff is not entitled to spilt his cause of
action in two parts and bring separate of any portion of his claim arising from the same
cause of action, or relinquishes part of his claim, he will be precluded from filing a fresh suit
in respect of the same cause of action or the portion so omitted or relinquished.
Order 2 Rule 2 of the Code of Civil Procedure is based on the principle that the defendant
should not be vexed twice for the same cause. It is directed against the two evils, that is,
spliting up of claims and spliting of remedies. As regards the remedies available in respect
of the same cause of action, sub-rule (3) of Rule 2 of Order 2 of the Code of Civil Procedure
provides that a person entitled to more than one relief in respect of the cause of the action
may sue for all and any of such reliefs; but if he omits, except with the leave of the court, to
sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
The following conditions are essential for attracting the provisions of Order 2 Rule 2 of the
Code of Civil Procedure :-
(i) That the second suit is in respect of the same cause of action as that on which the
previous suit was based,
(ii) that in respect of the cause of action, the plaintiff was entitled to more than one relief;
and
(iii) that the plaintiff without the leave of the court omitted to sue for the relief for which the
second suit has been filed.

Q. 34 A plaintiff who is entitled to sue for possession and damages

files suit for damages only. Suit is decreed. Can he file suit for
recovery and damages ?

Ans. Order 2 of Civil Procedure Code deal with Frame of Suit.

Order 2 Rule 1 says as far as practicable all matters in dispute between parties be disposed
of finally.
Order 2 Rule 2 provides that "every suit must include whole of the claim to which plaintiff is
entitled in respect of a cause of action and where plaintiff omits to sue or intentionally
relinquish any portion of his claim, he shall not, afterwards be allowed to sue in respect of
portion of claim so omitted or relinquished."
Underlying object of legislature to enact this provision is thus so far as possible all the
matters in dispute between parties in respect of same cause of action may be disposed of in
the same suit so as to prevent further litigation.
In Gurubax Singh v. Boora Lal AIR 1964 SC 1810 - it was held: to make the Rule
applicable, following conditions must be fulfilled :
(i) Second suit must be in respect of same cause of action as that on which a previous suit
was based.
(ii) In respect of that cause of action, plaintiff was entitled to more than one relief.
(iii) Being so entitled plaintiff without leave of the court omitted to sue for relief, for which
now second suit has been filed.
That being the legal position, in problem in hand Order 2, Rule 2 is not applicable because
suit for mesne profit (Damage for wrongful possession) arise subsequent to when suit for
possession is decreed.
Suit for possession and suit for damages for wrongful possession (mesne profits) are two
distincts suit and have separate cause of action.
Therefore plaintiff after having suit for possession decreed can file suit for damages.

Q. 35 (a) Whether the court has power to order separate trials in

respect of a suit in which several causes of action have been joined ?

(b) Whether the Court can order consolidation of pending suits ? A

suit is filed by a tenant for declaring him as a monthly tenant of the
defendant landlord and subsequently another suit is filed by landlord
for recovery of possession of the same property from the tenant.
Whether both these suits can be consolidated ?

Ans. (a) Power of Court to Order Separate Trials.

Order 2 Rule 6 of the Code of Civil Procedure provides that where it appears to the court
that joinder of action in one suit may embrass or delay the trial, or, is otherwise
inconvenient, the Court may order separate trials or make such other order as may be
expedient in the interest of justice. The object of Rule 6 is to prevent embarrassment or
delay in the trial of suit and it gives power to the court to order separate trials of causes of
action whose joinder may cause embarrassment but the defendant cannot claim the
separation of the trials as of right. The said rule applies when it is open to the plaintiff to
combine several causes of action in one suit and it does not apply to a cause of misjoinder
of causes of action.
(b) Yes. The Court can order consolidation of pending suits in appropriate cases. It has
been held in several cases that the Courts have inherent jurisdiction to order consolidation
of suits. The Court should dispose of consolidated suits or appeals by one judgment. The
consolidation is to be done keeping in view the convenience of all the parties concerned.
Where a suit is filed by a tenant for declaring him as a monthly tenant of the defendant-
landlord and subsequently another suit is filed by landlord for recovery of possession of the
same property from the tenant, both the suits can be consolidated, as held by the Hon'ble
High Court of Calcutta in Humayan Properties Limited v. Narayan Das Arora, AIR 1983
(NOC) 189 Calcutta.

Q. 36 State Rules relating to service of summons.

Ans. Summons is a document issued from the office of a court of justice calling upon the
person to whom it is directed to attend before a judge or officer of the court on the day
mentioned therein. Vide Amendment Act, No. 22 of 2002 Rule 1 to Order V has been
amended. Sub-rule (1) to Rule 1 says - "When a suit has been duly instituted, a summons
may be issued to defendant to appear and answer the claim and to file the written statement
of his defence if any within 30 days from the date of service of summons on that defendant :
Provided that no such summons shall be issued when a defendant has appeared at the
presentation of plaint and admitted the claim of plaintiff.
Provided further that where defendant fails to file the written statement within said period of
30 days he shall be allowed to file the same on such other days as may be specified by the
court for reasons to be recorded in writing, but which shall not be later than 90 days from
date of service of summons." Order V Rule 2 of the Code of Civil Procedure also provides
that every summons shall be accompanied by a copy of the plaint or, if so permitted, by a
concise statement.
RULES RELATING TO SERVICE OF SUMMON (1) Personal Service: Order V Rule 10 of
Code of Civil Procedure provides that service of summons shall be made by delivering or
tendering a copy thereof, signed by the judge or such officer as he appoints in this behalf
and sealed with the seal of the court. According to Rule 12 of Order V of the Code of Civil
Procedure, wherever it is practicable, service shall be made on the defendant in person,
unless he has an agent empowered to accept service in which case the service on such
agent shall be sufficient.
Order V Rule 15 of the Code of Civil Procedure provides that where in any suit the
defendant is absent at the time when the service of summons is sought to be effected on
him at this residence and there is no likelihood of his being found at the residence within a
reasonable time and he has no agent empowered to accept service of the summons on his
behalf, service may be made on any adult member of the family, whether male or female,
who is residing with him.
(2) Service by Affixation : Order V Rule 17 of Code of Civil Procedure provides this mode
of service. According to it, where the defendant or his agent or such other person, as
aforesaid, i.e., the adult member of this family, refuses to sign the acknowledgement, or
where the serving officer after using all due and reasonable diligence, cannot find the
defendant who is absent from his residence at the time when service is sought to be
effected on him at his residence within a reasonable time and there is no agent empowered
to accept service of the summons on his behalf, nor any other person on whom the service
can be made, the serving officer shall affix a copy of summons on the outer door or some
other conspicuous part of the house in which the defendant ordinarily resides or carries on
business or personally works for gain, and shall then return the original to the court from
which it was issued, with a report endorsed thereon or annexed thereto, stating that he has
so affixed the copy, the circumstances under which he did so.
(3) Service by Registered Post : Rule 12-A has been added to Order V of the Code of
Civil Procedure by the Amendment Act of 1976 and it provides for simultaneous issue of
summons for service by post in addition to personal service. It lays down that the court
shall, in addition to and simultaneously with, the issue of summons for service also direct
the summons to be served by registered post, acknowledgement due, addressed to the
defendant or his agent empowered to accept the service at the place where the defendant
or his agent, actually and voluntarily resides or carries on business or personally works for
gain.
Sub-rule (2) of Rule 12-A of the said Order V lays down that when an acknowledgement
purporting to be signed by the defendant or his agent is received by the court or the postal
article containing the summons is received back by the court with an endorsement
purporting to have been made by a postal employee to the effect that the defendant or his
agent had refused to take delivery of the postal article containing the summons when
tendered to him, the court issuing the summons shall declare that the summons had been
duly served on the defendant.
(4) Delivery of Summons by Court. - Vide Amendment Act No. 22 of 2002, Rule 9 of
Order 5 has been amended, which provided Delivery of Summons By Court" - Rule 9 inter
alia says that where defendant resides within the jurisdiction of court in which suit is
instituted or has an agent resident within that jurisdiction who is empowered to accept the
summon it shall, unless court otherwise directs, be delivered to proper offices, to be served
by him or to such courier services as all approved by the court.
(5) Serice by curier. - Sub rule (3) as amended in year 2002 says service of summons may
be made by delivering or transmitting a copy thereof by registered post A.D. or by speed-
post or by such courier services as approved by High Court or Court referred in sub-
rule (1). However service of summons under this rule shall be made at the expense a
plaintiff.
(6) Substituted Service : Order V Rule 20 of the Code of Civil Procedure provides for
substituted service. It lays down that where the court is satisfied that there is no reason to
believe that the defendant is keeping out of the way for the purposes of avoiding service, or
that for any other reasons the summons cannot be served in the ordinary way, the court
shall order the summons to be served by affixing a copy thereof in some conspicuous part
of the house, if any, and in which the defendant is known to have last resided or carried on
business or personally worked for gain or in such other manner as the court thinks fit.
Sub-rule 1 - A added to the said Rule, by the Amendment Act of 1976, further provides that
where the court acting under Sub-rule (1) orders service by an advertisement in a
newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the
defendant is last known to have actually and voluntarily resided, carried on business or
personally worked for gain.
(7) Service on Soldiers, Sailors or Airman : Rule 28 of Order V of the Code of Civil
Procedure provides that where the defendant is a soldier, sailor or airman, the court shall
send the summons for service to his commanding officer, together with a copy to be
retained by the defendant.
(8) Service on Corporation : Order XXIX Rule 2 of the Civil Procedure Code deals with
service on corporation. It provides that where the suit is against a corporation, the summons
may be served: (a) on the secretary, on any director, or other principal officer of the
corporation, or (b) by leaving it or sending it by post addressed to the corporation at the
registered office, or if there is no registered office, then at the place where the corporation
carries on business.
(9) Service on defendant resides within the jurisdiction of another court. - Service of
summons on the defendant who resides within the jurisdiction of another court is to effected
in accordance with Rule 25 Order V the Code of Civil Procedure. It provides that a
summons, in such a case, may be sent by the court by which it is issued, whether within or
without the State, either by one of its officers or by post to any court having jurisdiction in
the place where the defendant resides.
(10) Service on defendant residing out of India. - Service on the defendant residing out
of India and having no agent in India is to be effected in accordance with the provisions of
Rule 25 of Order V of Code of Civil Procedure. It provides that where the defendant resides
out of India has no agent in India and empowered to accept service, the summons shall be
addressed to the defendant at the place where he is residing and sent to him by post, if
there is postal communication between such place and the place where the court is situate.

Q. 37 What is meant by "Pleadings" ? Briefly state the object and

fundamental rules regarding pleadings.

Ans. Pleadings : Order 6 Rule 1 of Code of Civil Procedure provides that "Pleading" shall
mean plaint or written statement. So pleadings are statements in writing, filed by each party
to a case stating what his contention will be at the trial and giving all such details as his
opponent needs to know in order to prepare his case in answer.
Plaint is the statement of claim in writing and filed by plaintiff in which he sets out his cause
of action with all necessary particulars and "Written Statement" is the statement of defence
in writing and filed by defendant in which he deals with every material facts alleged by
plaintiff in the plaint and also states any new facts which may be in his favour including legal
objections.
Order 6 Rule 2 of Code provides that every pleading shall contain, and contain only, a
statement in a concise form all material facts on which the party pleading relies for his claim
or defence as the case may be, but not the evidence by which they are to be proved and
shall as and when necessary be divided into paragraphs numbered consecutively.
Object of Pleadings
The whole object of pleadings is to bring parties to definite issues and to diminish expense
and delay and to prevent surprise at the hearing. In Ganesh Trading Co. v. Moji Ram, AIR
1979 SC 484 it was observed :
"Provisions relating to pleadings in civil case are meant to give to each side intimation of the
case of the other so that it may be met, to enable courts to determine what is really at issue
between parties, and to prevent deviations from the course which litigation on particular
causes of action must take."
Rules Regarding Pleadings :- The Code of Civil Procedure lays down the following rules
regarding pleadings of the parties:-
(i) Pleading must state the material facts on which the party relies and not evidence. [Order
1 rule 2(1)]
(ii) The facts should be stated in the form of a concise statement and shall be divided into
paragraphs numbered consecutively. [Order VI Rule 2(2) C.P.C.]
(iii) In the pleadings, dates, sums and numbers shall be expressed in figures as well as in
words. [Order VI Rule 2(3) C.P.C.]
(iv) In all cases in which the party relies on any misrepresentation, fraud, breach of trust,
wilful default and undue influence and in all other cases in which particulars may be
necessary, they should be stated with dates and items in the pleadings. [Order VI Rule 4
C.P.C.]
(v) Any condition precedent, the performance of occurrence of which is intended to be
contested, shall be distinctly specified in the pleading by the plaintiff or defendant, as the
case may be, and all conditions precedent necessary for the case of the plaintiff or
defendant shall be implied in his pleading and, therefore, such conditions need not be
alleged specifically. [Order VI Rule 6 C.P.C.]
(vi) Where the contents of any document are material, it shall be sufficient in any pleadings
to state the effect thereof as briefly as possible without setting out the whole or any part
thereof, unless the precise words of the document or any part thereof are material. [Order
VI Rule 9 C.P.C.]
(vii) Wherever it is material to allege malice, fraudulent intention, knowledge or other
condition of the mind of any person, it shall be sufficient to allege the same as a fact without
setting out the circumstances from which the same is to be inferred. [Order VI Rule 10
C.P.C.]
(viii) Wherever it is material to allege notice to any person of any fact, matter or thing, it shall
be sufficient to allege such notice as a fact, unless the form of the precise term of such
notice, or the circumstances from which such notice is to be inferred, are material (Order VI
Rule 11 C.P.C.)
(ix) Whenever any contract or any relation between any person is to be implied from a
series of letters or conversations or otherwise from a number of circumstances, it shall be
sufficient to allege such contract or relation, as a fact, and to refer generally to such letters,
conversations or circumstances without setting them out in detail. [Order VI Rule 12 C.P.C.]
(x) Facts which the law presumes need not be pleaded. [Order VI Rule 13]
(xi) Legal pleas such as estoppel, limitation and res judicata may be pleaded.
(xii) Every pleading shall be signed by the party and his pleader, if any. [Order VI Rule 14
C.P.C.]
(xiii) Every pleading shall be verified at the foot by the party or by one of the parties
pleadings [Order VI Rule 15 C.P.C.]

Q. 38 What are the powers of the court to allow amendment of

pleadings ?

Ans. General Rule of pleadings is that all the material facts and necessary particular must
be stated in the pleadings and decision cannot be based on grounds outside the pleadings.
But many a time the party may find it necessary to amend his pleadings before or during
trial of the case. Rule 17 of Order 6 C.P.C. provides for amendments of pleading. It reads
as under:-
"The court may at any stage of proceedings allow either party to alter or amend his
pleadings in such manner and on such terms as may be just and all such amendments shall
be made as may be necessary for the purpose of determining the real questions in
controversy between the parties."
Civil Procedure Code (Amendment) Act, 2002 has inserted proviso to Rule 17 of Order 6
of Code which says :-
"Provided that no application for amendment shall be allowed after the trial has
commenced, unless the court comes to the conclusion that inspite of due diligence, the
party could not have raised the matter before the commencement of trial."
So the object of the Rule is that the courts should try the merits of case that come before
them and should consequently allow all amendments that may be necessary for
determining the real question in controversy between the parties provided it does not cause
injustice or prejudice to other side. Therefore main points to be considered before a party is
allowed to amend his pleadings are: Firstly whether the amendment is necessary for
determination of real question in controversy and secondly can the amendment be allowed
without injustice to other side.
However in following cases, court is justified in refusing to amend pleadings :-
(a) Leave to amend will be refused where the amendment is not necessary for the purpose
of determining the real question in controversy.
(b) Leave to amend will be refused if it introduces a totally different and a new and
inconsistent case or changes the fundamental character of case.
(c) Leave to amend will be refused where the effect of proposed amendment is to take away
from other side a legal right accrued in his favour by lapse of time or when leave to amend
pleadings is not made in good faith.
Recently Supreme Court in B.K.N. Pillai v. P. Pillai, AIR 2000 SC 614 has observed:-
"All amendments of pleadings should be allowed which are necessary for
determination of real controversy in suit provided proposed amendment does not
alter or substitute new cause of action or proposed amendment should not cause
such prejudice which cannot be compensated by cost"

Q. 39 What do you understand by "Plaint" and "Written Statement" ?

What are particulars which are required to be contained in 'Plaint'
and 'Written Statement' ?

Ans. PLAINT : Plaint is statement of claim , a document by presentation of which the suit is
instituted. Order 7 Rules 1 to 5 C.P.C. say that Plaint should contain fillowing particulars :
(a) Name of the court in which suit is brought.
(b) Name , description and place of residence of Plaintiff(s) and Defendant(s)
(c) Facts constituting the cause of action and when it arose.
(d) Facts showing that court has jurisdiction.
(e) Statement of value of subject matter of suit for the purpose of court fee
(f) Relief claimed by Plaintiff.
(g) Where the Plaintiff or Defendant is minor or person of unsound mind, statement to this
effect.
(h) Where Plaintiff has allowed set off or relinquished any portion of his claim, the amount
so allowed or relinquished
(i) If subject matter of suit is immoveable property, description of such property for identity
(j) If the suit is time barred , the grounds upon which the exemption from law of Limitation is
claimed.
In view of Civil Procedure Code (Amendment) Act 2002, Rule 9 of Order 7 has been
amended, now, it provides -
"PROCEDURE ON ADMITTING PLAINT : Where the court orders that the summons be
served on defendants in the manner provided in Rule 9 of Order 5, it will direct the plaintiff
to present as many copies of the plaint on plain paper as there are defendants within seven
days from the date of such order along with requisite fee for service of summons on
defendants."
Order 7 Rule 10 C.P.C says that where at any stage of suit, court finds that it has no
jurisdiction either teritorrial or pecuniary or with regard to subject matter of suit, it will return
the plaint to be presented to proper court.
Order 7 Rule 11 says that Plaint will be rejected in following cases :
(a) Where plaint does not disclose the cause of action.
(a) Where relief claimed is under valued and valuation is not corrected within the time fixed
by court.
(c) Where plaint is insufficiently stampped and plaintiff fails to pay requisite court fee fixed
by court.
(d) Where suit appears to be barred by Law.
Following ground were added vide Amendment Act of 1999 and 2002, in Rule 11 of Order
7 one ground is added as :-
(e) Where it is not filed in duplicate
(f) Where plaintiff fails to comply with provisions of Rule 9 WRITTEN STATEMENT : Written
statement is pleading of defendant wherein he deals with every material fact alleged by
plaintiff in his plaint and also states any new fact in his knowledge and takes legal
objections against the claim of plaintiff.
Civil Procedure Code (Amendment) Act 2002 has amended Rule 1 of Order 8 of Code in
following words :
"The defendant shall within 30 days from the date of service of summons on him, present a
written statement of his defence :
Provided that where defendant fails to file the written statement within said period of thirty
days, he shall be allowed to file the same on such other day as may be specified by the
court, for reasons to be recorded in writing, but which shall not be later than ninety days
from the date of service of summons."
Order 8 Rule 1 to 5 and 7 to 10 C.P.C provides as to particulars to be contained in a written
statement :
(a) Defendant may take any number of defences either simply or alternatively, even though
they may be inconsistent provided they are maintainable at Law.
(b) New facts such as the suit is not maintainable or that transaction is either void or
voidable and all such defences as , if not raised would take the plaintiff by surprise must be
raised.
(c) Defendant is bound to produce all the documents in support of his defence or his claim
to set-off or counter claim, which are in his possession.
(d) Where defendant wants to deny any allegation of fact in the plaint, he must do so clearly
and specifically. Every allegation of fact in plain if not specifically or by necessary
implication, shall be taken as admitted except as against a person under disability. Court
may however require the proof of any such fact otherwise than by such admission.
Vide Amendment Act of 2002 Sub-rule (3) is amended in Rule 1-A of Order 8 of Code as :-
"A document which ought to be produced in court by the defendant under this rule, but is
not so produced shall not, without the leave of the court, be received in evidence on his
behalf at the hearing of the suit."
Vide Amendment Act 2002, Rule 9 and 10 to Order 8 have been amended in following
words -
"9. Subsequent pleadings - No pleading subsequent to the written statement of a
defendant other than by way of defence to set-off or counter-claim shall be presented
except by the leave of the Court and upon such terms as the Court thinks fit; but the Court
may at any time require a written statement or additional written statement from any of the
parties and fix a time of not more than thirty days for presenting the same.
10. Procedure when party fails to present written statement called for by Court -
Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to
present the same within the time permitted or fixed by the Court, as the case may be, the
Court shall pronounce the judgment against him, or make such order in relation to the suit
as it thinks fit and on the prouncement of such judgment a decree shall be drawn up".

Q. 40 (A) When can a plaint be returned for presentation to another

court ?

(B) When can court reject the plaint ?

Ans. (A) RETURN OF PLAINT Order 10 Rule 1(1) of Code of Civil Procedure says "Subject
to the provisions of rule 10-A the plaint shall at any stage of the suit be returned to be
presented to the court in which the suit should have been instituted."
Rule 1(2) says "On returning a plain, the judge shall endorse thereon, the date of its
presentation and return the same of the party presenting it, and a brief statement of reasons
for returning it."
In Amar Chand v. Union of India, AIR 1973 SC 313, it was observed that when the plaint
is filed in proper court after getting it back from the wrong court, it cannot be said to be
continuation of suit. Suit must be deemed to be presented when it is filed in proper Court."
By Order VII, Rule 10-A of the Code of Civil Procedure, it has been provided that where, in
any suit, after the defendant has appeared, the court is of opinion that the plaint should be
returned, it shall, before doing so, intimate this decision to the plaintiff and the plaintiff, on
receiving such intimation, may make an application to the court (a) specifying the court in
which he proposes to present the plaint after its return (b) praying that the court may fix a
date for the appearance of the parties in the said court and (c) requesting that the notice of
the date so fixed may be given to him and to the defendant. Sub-rule (3) of Rule 10-A of the
Code lays down that where an application is made by the plaintiff, the Court shall, before
returning the plaint, and notwithstanding that the order for return of plaint was made by it on
the ground that it has no jurisdiction to try the suit : (a) fix a date for the appearance of the
parties in the court in which the plaint is proposed to be presented and (b) give to the
plaintiff and to the defendant notice of such date for appearance. Sub-rule (4) of this Rule
further provides that where the notice of the date for appearance is given, it shall not be
necessary for the court in which the plaint is presented after its return, to serve the
defendant with a summons for appearance in the suit, unless that court, for reasons to be
recorded otherwise directs, and the said notice shall be deemed to be a summons for the
appearance of the defendant in the court in which the plaint is presented on the date so
fixed by the court by which the plaint was returned.
Rule 10-B of order VII of the Code of Civil Procedure, deals with the power of appellate
court to transfer suit to the proper court. It provides that where, on an appeal against an
order for the return of plaint, the Court hearing the appeal confirms such order, the Court of
appeal may, if the plaintiff by an application so desire, while returning the plaint, direct
plaintiff to file the plaint, subject to the provisions of the Limitation Act, 1963, in the court in
which the suit should have been instituted (whether such court is within or without the State
in which the court hearing the appeal is situated), and fix a date for the appearance of the
parties in the court in which the plaint is directed to be filed and when the date is so fixed it
shall not be necessary for the court in which the plaint is filed to serve the defendant with
the summons for appearance in the suit, unless that court in which the plaint is filed, for
reasons to be recorded, otherwise directs.
(B) REJECTION OF PLAINT Rules 11 to 13 of Order 7 of Code of Civil Procedure deal with
rejection of plaint. After the Amendment Act No. 22 of 2002, Rule-11 says plaint shall be
rejected in following cases :-
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is under valued and the plaintiff on being required by the court
to correct the valuation within a time to be fixed by the court fails to do so;
(c) Where the relief claimed is properly valued, but the plaint is returned upon paper
insufficiently stamped and plaintiff, on being required by court to supply the requisite stamp-
paper within a time to be fixed by the court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law.
(e) Where it is not filled in duplicate.
(f) Where the plaintiff fails to comply with the provisions of rule- 9.
PROCEDURE ON REJECTION OF PLAINT (Rule-12)
Where a plaint is rejected the judge shall record an order to that effect with the reasons for
such order.
Effect of rejection of plaint : Rule 13 If the plaint is rejected on any of the above grounds,
the plaintiff is not thereby precluded from presenting a fresh plaint in respect of the same
cause of action. An order rejecting a plaint is a "decree" within the meaning of Section 2(2)
of the Code, and therefore, is appealable also.

Q. 41 What do you understand by "Set off" ? Distinguish between the

Legal and equitable set off.

Ans. When the plaintiff files a suit for recovery of money and the defendant pleads liability
of the plaintiff to pay to him, such a plea is called "set off". Thus in an action to recover
money, a set off is a cross claim by the defendant, for which he might maintain an action
against the plaintiff. Order VIII Rule 6 C.P.C. provides that only a set-off which is for
ascertained sum of money legally recoverable by the defendant from the plaintiff within the
pecuniary jurisdiction of the court is permissible and both the parties must fill the same
character as they fill in the plaintiff's suit. It has also been provided in it that the defendant
may, at the first hearing of the suit, but not afterwards, unless permitted by the court,
present a written statement containing the particulars of the debt sought to be set-off. The
following are the essential conditions of legal set off :-
(i) The suit must be for recovery of money :
(ii) the amount claimed to be set off must be an ascertained sum of money ;
(iii) it must be legally recoverable from the plaintiff, i.e., it is not barred by time etc.
(iv) it must not exceed the pecuniary limits of the jurisdiction of the court ;
(v) it must be recoverable by the defendant or by all the defendants, if there are more than
one ;
(vi) it must be recoverable by the defendant from the plaintiff or all the plaintiffs, if there are
more than one ;
(vii) both the parties must fill the same character as they fill in the plaintiff's suit.
Equitable Set off Equitable set off means a set-off of an ascertained sum of money arising
out of cross demands, arising out of the same transaction in cases of debits and credits, in
cases in which cross demands arise out of the same transaction or are so connected in
their nature and circumstances as to make it inequitable that the plaintiff should recover and
the defendant driven to a cross suit, courts have allowed a set off even though the amount
may be an unascertained sum and such set off are known as equitable set off. Legal set off
has been recognized by Order VI Rule 6 of the Code of Civil Procedure and can be raised
as of right but no provisions for equitable set off has been made in the Code of Civil
Procedure and it cannot be claimed as a matter of right.
Distinction Between Legal and Equitable Set off Following are the main distinctions between
the legal and equitable set off -
(a) Legal set off is for an ascertained sum of money while equitable set off may be allowed
in respect of an unascertained sum of money.
(b) In case of legal set off cross demand may or may not arise from the same transaction
but in equitable set off, the cross demands must arise out from the same transaction.
(c) In case of legal set off, the court is bound to entertain and adjudicate upon it because it
has been provided in Order 8 Rule 6 of Code and can be raised as of right while in case of
equitable set off it is not obligatory on the part of the court to adjudicate upon it.
(d) In a legal set off, the amount claimed must be legally recoverable and not barred by
limitation at the date of suit but claim by way of equitable set off can be allowed even if it is
based by limitation on date of suit where there is a fiduciary relationship between plaintiff
and defendant.
(e) For legal set off, court fee is to be paid but it is not to be paid in case of equitable set off.

Q. 42 What do you understand by "Set-Off" and "Counter Claim" ?

What is the difference between the two ?

Ans. SET -OFF (Order 8 Rule 6 C.P.C ) A plea of set-off is 'a plea where by defendant
acknowledges the justice of Plaintiff's demand but sets up another demand of his own to
counter claim that of plaintiff either wholly or in part.'
Where in a suit for recovery of money by plaintiff, defendant finds that he has also a claim of
some amount against the plaintiff, he can claim a set-off in respect of said amount.
A defendant may claim set-off, if following conditions are satisfied :
(a) Suit must be for recovery of money.
(b) Sum of money must be ascertained.
(c) Such sum must be legally recoverable .
(d) It must be recoverable by defendant from plaintiff.
(e) It must not exceed the pecuniary limits of the court in which the suit is brought.
(f) Both the parties must fill in defendant's claim to set-off, the same character as they fill in
plaintiff's suit.
COUNTER CLAIM : Counter claim may be defined as claim made by defendant in the suit ,
against plaintiff. Thus counter claim is substantially a cross action. In Laxami Das v. Nana
Bhai, AIR 1964 SC 11 Supreme Court. Held that right to make counter claim as statutory
right and held that court has power to treat the counter claim as cross suit and hear the
original suit and counter claim together if counter claim is properly stamped. Vide
Amendment Act 1976 Rule 6-A to 6-G were added in Order 8 C.P.C. Rule 6-A(1) provides
that defendant may set up by way of counter claim against the claim of plaintiff any right or
claim in respect of cause of action occruing to defendant against plaintiff either before or
after filing of suit but before the defendant has delivered his defence or before the time fixed
for delivery of his defence has expired.
SET-OFF and COUNTER CLAIM -- DISTINCTION (a) Set-off is statutory defence against
plaintiff's action and couter claim is substantially a cross action.
(b) Set-off must be for ascertained sum or it must arise out of same transaction , a counter
claim need not to arise out of the same transaction.
(c) In case of Set-off the amount must be recoverable at the date of suit, while in case of
counter claim the amount must be recoverable at the date of filling written statement.
(d) When defendant demands in a plaintiff's suit an amount below or upto that of suit, it is
Set-off but when it is for larger amount, the claim for excess amount is counter claim.

Q. 43 Discuss the provisions of Code of Civil Procedure relating to

dismissal of suit for non-appearance of parties ?

Ans. Order IX of the Code of Civil Procedure deals with the appearance of parties and
consequences of non-appearance. Order IX Rule 1 of the Code of Civil Procedure provides
that on the date fixed in the summons for the defendant to appear and answer, the parties
shall be in attendance at the court house in person or by their respective pleaders, and the
suit shall then be heard unless the hearing is adjourned to a future day fixed by the court.
Dismissal of Suit ; The court may dismiss the suit on the date fixed for hearing if
(a) the summons is not served upon the defendant in consequence of failure of the plaintiff
to pay the court fee or postal charges, if any, chargeable for such service or to present
copies of the plaint or concise statement as required by Rule 9 of Order VII of the Code of
Civil Procedure (Order IX Rule 2 C.P.C.)
(b) neither party appears when the suit is called for hearing (Order IX Rule 3 C.P.C.)
(c) After a summons has been issued to the defendant or to one of several defendants, and
returned unserved, the plaintiff fails for a period of one month from the date of the return, to
apply for the issue of a fresh summons unless the plaintiff has within the said period
satisfied the court that (i) he has failed after using his best endeavours to discover the
residence of the defendant who has not been served, or (ii) such defendant is avoiding of
process or (iii) there is any sufficient cause for extending the time (Order IX Rule 5 C.P.C.)
(d) The defendant appears and the plaintiff does not appear when the suit is called out for
hearing unless the defendant admits the claim or part thereof (Order IX Rule 8 C.P.C.).

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.

Ans. After having gone through the facts of case in hand following issue is framed:-
Whether A's suit against C (B's wife) is on the same cause of action, as was A's earlier suit
against B which dismissed in default. Order 9 Rule 8 of C.P.C. provides that where the
defendant appears and plaintiff does not appear and the defendant does not admit the
plaintiff's claim wholly or partly, the court shall pass an order dismissing the suit.
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."
So in view of provisions of Order 9 Rule 9 second suit can not be brought when first has
been dismissed under Rule 8, on same cause of action. In the case in hand, it is admitted
fact that A's earlier suit against B was for possession on the ground that B was trespasser.
That suit was dismissed under Order 9 Rule 8 as A could not appear in court on 15th
July 1981. So A is precluded from bring a suit again on same cause of action in view of
Order 9 Rule 9.
The expression "Cause of Action" means all those facts which are necessary for a plaintiff
to prove in a suit to get judgment of court in his favour or every one of those facts which if
not proved would give the defendant the right of judgment of court. In Mohd. Khallil Khan
and Others v. Mehbub Ali Mian 75 I.A. 121 the Privy Council had observed:-
"In considering whether the cause of action in subsequent suit is the same or not as the
cause of action in previous suit the tests to be applied is: are the causes of action in two
suits in substance - not technically - identical." In case in hand plaintiff `A' had filedthe
earlier suit for possession of house against B, which was dismissed in default. Thereafter A
never filed any application for setting aside the order of dismissal of suit. Later B died
leaving behind his widow `C'. A has again filed suit against C for possession of that very
house on the ground that he is owner of suit property and widow C is trespasser therein.
Such suit attracts Art. 65 of Limitation Act and onus is on C to establish that she was in
adverse possession of said property. Now question is whether C can take the same plea
which B had taken in earlier, it is well established that the expression "the possession of
defendant" under Article 65 includes also the possession of person from or through whom
the defendant derived his liability to be sued and as such defendant is entitled to take his
possession with that of his predecessor-in-interest for the purpose of computing the
statutory period of limitation.
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 ?

Ans. 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 plaintiff
proves his case."
So when defendant has not appeared on date of hearing of case, and plaintiff appears and
proves the service of summons on defendant, then court can proceed with the case ex-
parte and pass decree in favour of plaintiff, if he proves his case. The defendant against
whom an ex-parte decree has been passed has the following remedies:-
(a) He can apply to court by which such decree is passed to set it aside (Order 9 Rule 13).
(b) Prefer appeal against such decree (Section 96(2)).
(c) Apply for review (Order 47 and Section 114).
(d) File suit on ground of fraud.
That being the legal position, coming now to case in hand, it is admitted that 27-5-89 was
fixed for evidence of landlord and 2-6-89 was fixed for recording evidence of tenant.
However on 27-5-89 defendant (tenant) did not appear nor his counsel appeared in court
and thus court proceeded ex-parte and after recording plaintiff's evidence passed ex- parte
eviction decree against tenant on 27-5- 89. On that very day i.e. 27-5- 89 tenant applied
under Rule 13 Order 9 for setting aside above said ex-parte eviction decree on the ground
that he was ill and his counsel had forgotten to mention the case in his diary.
Rule 13 of Order 9 C.P.C. provides that if defendant satisfies the court that he was
prevented by "sufficient cause" from appearing on date of hearing of case, court will set
aside decree passed against him. However expression "sufficient cause" has not been
defined. Thus every case has to be seen in light of peculiar facts of case. Supreme Court
recently in G.P. Srivastva v. R.K. Raizada AIR 2000 SC 1221 has held :-
"Under Order 9 Rule 13 C.P.C., an exparte decree passed against defendant can be set
aside upon the satisfaction of court that either summons were not duly served upon
defendant or he was prevented by "sufficient cause" from appearing when suit was called
for hearing. Words "was prevented by sufficient cause from appearing" must be liberally
construed to enable the court to do complete justice between parties. "Sufficient cause" for
the purpose of O. 9 R. 13 CPC has to be construed as elastic expression for which no hard
and fast Rule can be laid down."
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.

Q. 46 Plaintiff could not reach the court on the date fixed, so his suit
was dismissed for default. Advise the plaintiff as to steps he should
take.

Ans. Order 9 Rule 8 C.P.C. provides : Where the defendant appears and the plaintiff does
not appear when the suit is called on for hearing, the court shall dismiss the suit, unless the
defendant admits the claim, or part thereof, in which case the court shall pass a decree
accordingly.
Order 9 Rule 9 C.P.C. further provide : On such dismissal of the suit, the plaintiff is
precluded from bringing a fresh suit in respect of the same cause of action; but he may
apply for an Order to set the order of dismissal aside. The court shall, after issuing notice of
the application to the other side and on being satisfied that there was sufficient cause for
non-appearance, set aside the dismissal on payment of costs or on other terms as it thinks
fit.
In Lakshmi Commercial Bank v. Hans Raj AIR 1981 P&H 228 it was observed:-
"In deciding whether a suit dismissed for default be restored, what has really to be
considered is whether the plaintiff was really trying to appear on the day fixed. If sufficient
cause is shown by the plaintiff for his non- appearance court may restore the suit. What is
"sufficient cause" depends upon facts and circumstances of each case and liberal and
generous construction should be adopted to advance the cause of justice and restoration
should not ordinarily be denied."

Q. 47 What is the provision of examination of the parties by the

Court?

Ans. Order X of Code of Civil Procedure deals with the examination of parties by the
court. Order 10 Rule-1 provides that the court shall, at the first hearing the suit, ascertain
from each party or his pleader whether he admits or denies such allegations or facts as are
made in the plaint or in the written statement, if any of the opposite party.
After the Amendment Act No. 46 of 1999 Rule 1A, 1-B and 1-C has been added in Order X
of Code. Rule-1A says "After recording the admission and denials, the court direct the
parties to suit to opt either mode of settlement outside the court as specified in sub-section
(1) of Section 89. On the option of the parties, the court shall fix the date of appearance
before such forum or authority as may be opted by the parties" and Rule 1-B says that
parties shall appear before such forum or authority. Rule 1-C says that if the presiding
officer of Conciliation forum or authority is satisfied that it would not be proper in interest of
justice to proceed with the matter he shall refer the matter again to the court.
Rule 2 provides for oral examination of the parties to the suit with a view to elucidating
matters in controversy in the suit. The court thus, ascertains with precision the propositions
of law or fact on which the parties are at variance and on such question issues are required
to be framed. Rule-3 then says that substance of the examination shall be reduced to
writting by judge, which shall form part of record. Then R-4 lays down the consequence of
refusal or inability of pleader to answer and provides that where pleader or any person
accompanying a pleader as referred to in Rule-2 refuses to or is unable to answer any
material question relating to suit which in opinion of court be answered by party, court shall
post-pone the hearing of suit and direct such party to appear in person on such date as
fixed.

Q. 48 What do you understand by `Discovery' what is its object and

who can apply for it ?

Ans. Discovery Discovery means to compel the opposite party to disclose what he has in
his possession. Order XI of Code Civil Procedure deals with discovery and inspection.
Discovery means to find out material facts and documents from an adversary in order to
ascertain nature of the case and to narrow down the points in issue or to avoid proving
admitted facts.
Kinds Of Discovery : Discovery is of two kinds
(i) Discovery by interrogatories;
(ii) Discovery documents.
(i) Discovery By Interrogatories ; Order XI Rule 1 of the Code of Civil Procedure deals
with discovery of interrogatories and it provides that in any suit the plaintiff or defendant, by
leave of the court, may deliver interrogatories in writing for the examination of the opposite
parties or any one or more of such parties, and such interrogatories when delivered shall
have a note at the foot thereof stating which of such interrogatories each of such person is
required to answer :
Provided that no party shall deliver more than one set of interrogatories to the same party
without an order for that purpose :
Provided also that interrogatories which do not relate to any matter in question in the suit
shall be deemed irrelevant, notwithstanding that they might be admissible in the oral cross-
examination of a witness.
Rule 2 of Order XI of the Code of Civil Procedure provides that on an application for leave
to deliver interrogatories, the particular interrogatories proposed to be delivered shall be
submitted to the court. In deciding upon such application, the court shall take into account
any offer, which may be made by the party sought to be interrogated to deliver particulars,
or to make admissions, or to produce documents releating to the matters in question, or any
of them, and leave shall be given as to such only of the interrogatories has been laid down
in Raj Narain v. Indira Gandhi, AIR 1972 SC 1302, it was observed that interrogatories
can be allowed whenever the answer to them will serve either to prove the case of party
administering tthe interrogatories or to destroy the case of his adversary. The right is a
valuable one and the party should not lightly be deprived of that right and must be exercised
liberally as to shorten litigation, save expenses and serve the ends of justice.
Rule 6 of Order XI of the Code of Civil Procedure deals with the objections to
interrogatories. It provides that any objection to answer any interrogatory on the ground that
it is scandalous or irrelevant or not exhibited bonafide for the purpose of the suit, or that the
matters inquired into are not sufficiently material at that stage, (or on the ground of privilege,
of on any other ground) may be taken in the affidavit in answer. According to Rule 8 of
Order XI of the Code interrogatories shall be answered by affidavit to be filed within 10 days
or within such other time as the court may allow.
Discovery of documents ; Rules 12 to 14 of Order XI of the Code of Civil Procedure deal
with the discovery of documents. All documents relating to the matters in issue in the
possession or power of any adversary can be inspected by means of discovery of
documents.
Rule 12 of Order XI of the Code of Civil Procedure provides that any party may, without
filing any affidavit, apply to the court for an order directing any other party to any suit to
make discovery on oath of the documents which are or have been in his possession or
power, relating to any matter in question therein. On the hearing of such application the
court may either refuse or adjourn the same, if satisfied that such discovery is not
necessary or not necessary at the stage of the suit, or make such order, either generally or
limited to certain classes of documents, as may in its discretion to thought fit, provided that
discovery shall not be ordered when and so far as the court shall be opinion that it is not
necessary either for disposing fairly of the suit or for saving costs.
Rule 13 of Order XI of the Code of Civil Procedure provides that the affidavit to be made by
a party against whom an order for making discovery of documents is made by the court
shall specify which of the documents therein mentioned he objects to produce and it shall
be in Form No. 5 in Appendix C, with such variations as circumstances may require. It has
further been provided in Rule 14 of the said Order that it shall be lawful for the court, at any
time, during the pendency of any suit, to order the production by any party thereto, upon
oath, of such of the documents in his possession or power, relating to any matter in
question in such suit, as the court shall think right; and the court may deal with such
documents, when produced, in such manner as shall appear just.

Q. 49 What is meant by "issue" and how they are to be framed ?

Ans. Order 14 of the Code of Civil Procedure deals with settlement of issues and
determination of suit on issues of law on issues agreed upon. Rule 1 of Order of the Code
of Civil Procedure provides that issues arise when a material proposition of fact or law is
affirmed by the one party and denied by the other. Material propositions are those
propositions of law or fact which a plaintiff must allege in order to constitute his defence.
Such material proposition affirmed by one party and denied by the other shall form the
subject of a distinct issue.
According to sub-rule (4) of Rule 1 of Order 14 of the Code of Civil Procedure, issues are of
two kinds :-
(a) issues of fact
(b) issues of law
Sub-rule (5) of Rule 1 of Order 14 of the Code of Civil Procedure further provides that at the
first hearing of the suit, the court shall, after reading the plaint and the written statements, if
any, and (after examination under Rule 2 of Order X and after hearing the parties or their
pleaders) ascertain upon what material propositions of fact or of law, the parties are at
variance, and shall thereupon proceed to frame and record those issues on which the right
decision of the case appears to depend.
In Sita Ram v. Radha Bai, AIR 1964 SC 497, it was observed that "issues" are the
backbone of a suit. Framing of issue has a very important bearing on the trial and decision
of case. Firstly because it is issues framed and not the pleadings that guide the parties in
matter of leading evidence. Secondly the court cannot refuse to decide the point on which
issue has been framed. Thirdly court should not frame issue which does not arise in
pleadings.
MATERIALS FOR FRAMING ISSUES According to Order 14 Rule 3 of the Code the court
may frame the issues from all or any of the following materials :-
(a) allegations made on oath by the parties, or by any person present on their behalf, or
made by the pleaders of such parties ;
(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit ;
(c) the contents of documents produced by either party :
In addition to the said material the other material which may be considered in framing
issues are the answer to interrogatories statements made by parties or their
representatives, when examined under Order X of the Code of Civil Procedure and
examination of a witness or any document ordered to be produce under Order XIV of the
Code of Civil Procedure. Rule 4 of order XIV of the Code of Civil Procedure provides that
where the Court is of opinion that the issues cannot be correctly framed without the
examination of some person not before the Court or without the inspection of some
document not produced in the suit, it may adjourn the framing of the issue to a future day,
and may (subject to any law for the time being in force) compel the attendance of any
person or the production of any document by the person in whose possession or power it is,
by summons of other process.

Q. 50 What is the effect of omission of framing an issue ? Whether a

court is empowered to amend or strike out an issue?

Ans. Omission to Frame Issue In Kewal Krishan v. Dina Nath, AIR 1993 SC 881, it was
observed that even though it is the duty of the court to frame proper issues, mere omission
to frame an issue is not necessarily fatal to the suit. Omission to frame an issue is an
irregularity which may or may not be a material one. If such omission affects the disposal of
the suit on merits, the case must be remanded to the trial court for a fresh trial. On the other
hand, where the parties went to trial with full knowledge that a particular point was at issue,
they have not been prejudiced and substantial justice has been done, absence of an issue
is not fatal to the case so as to vitiate the proceedings.
Power to amend and strike out issue Rule 5 of order 14 of the Code of Civil Procedure
deals with this power of the court. It provides that the Court may, at any time before passing
a decree, amend the issue or frame additional issues on such terms as it thinks fit, and all
such amendment or additional issues as may be necessary for determining the matters in
controversy between the parties shall be so made or framed.
The court may also, at any time before passing a decree, strike out any issues that appear
to it to be wrongly framed or introduced.

Q. 51 Is there any penalty in case of default of attendance of witness

on the issue of summons ?

What are the consequences of refusal of a party to give evidence ?

Ans. The court has power to enforce the attendance of any person to whom a summons
has been issued and for that purpose may -
(a) issue a warrant, with or without bail, for his arrest;
(b) attach and sell his property;
(c) impose a fine upon him not exceeding Rs. 500; or
(d) order him to furnish security for his appearance and in default commit him to civil prison.
The court may, where a person to whom summons has been issued fails to comply with it,
without lawful excuse, issue a proclamation requiring him to attend at a time and place
named therein before inflicting the penalities mentioned above.
No court of small causes shall, however, make an order for the attachment of immovable
property. (Order 16, Rule 10)
Where the person appears after the attachment of his property and satisfies the court that
he did not fail to comply with the summons without lawful excuse or did not intentionally
avoid service, or that he had no notice of the proclamation, the court may release the
property from attachment.
If the person, however, does not appear or appears but fails to satisfy the court, the court
may impose upon him fine not exceeding Rs. 500, having regard to his condition in life and
the circumstances of the case and attach and sell his property for the recovery of the same.
(Order 16, Rules 11 and 12).
Consequence of refusal of party to give evidence - Where any party to a suit present in
court refuses, without lawful excuse, when required by the Court, to give evidence or to
produce any document, then and there in his possession or power, the court may
pronounce judgment against him or make such order in relation to the suit as it thinks fit.
(Order 16, Rule 20)

Q. 52 When can adjournment be granted by court and what are the

consequences of failure of a party to produce evidence for which an
adjournment was granted by court ?

Ans. Order 17 Rule 1(i) of Code of Civil Procedure provides that court may, if sufficient
cause is shown, at any stage of the suit, grant time to the parties or to any of them and may
from time to time adjourn the hearing of the suit for reasons to be recorded in writting.
Vide Amendment Act No. 46 of 1999 a proviso is attached to Rule 1(i) which says -
"No such adjournment shall be granted more than three times to a party during hearing of
the suit."
So right of adjournment on showing sufficient cause has been limit to three times, so that
suit may be dispossed off expeditiously and no party to suit should seek adjournment as a
delaying tactic.
Sub-rule (2) of Rule 1 of Order 17 of the Code of Civil Procedure further provides that in
every such case the court shall fix a day for the further hearing of the suit; and may make
such order as it thinks fit with respect to the costs occasioned by the adjournment.
Order 17 Rule 3 of the Code of Civil Procedure deals with the power of the court to proceed
with the case, notwithstanding either party fails to produce evidence. It provides that where
any party to a suit to whom time has been granted fails to produce his evidence, or to cause
the attendance of his witnesses, or to perform any other act necessary to the further
progress of the suit, for which time has been allowed, the court may, notwithstanding such
default -
(a) if the parties are present, proceed to decide the suit forthwith; or
(b) if the parties are, or any of them is absent, proceed under Rule 2.
The main distinction between rule 2 and 3 of Order XVII of the Civil Procedure Code is that
a decree passed against the defendant under Rule 3 will not be an exparte decree which
can be set aside under Order IX Rule 13 of the said Code while a decree passed under
Rule 2 can be set aside under Order IX rule 13 of the Code if the necessary requirements
are fulfilled.

Q. 53 Who has the right to begin the evidence at the hearing of the
suit ? Discuss the important amendment brought about in Order 18
of Code, in this regard.
Ans. Order 18 of Code of Civil Procedure deals with hearing and examination of
witnesses. Order 18 Rule 1 of Code says that "The plaintiff has right to begin unless the
defendant admits the facts alleged by the defendant and contends that either in point of law
or on some additional facts alleged by the defendant, the plaintiff is not entitled to any part
of the relief which be seeks, in which case the defendant has the right to begin."
It has further been provided in Rule 2 of Order XVIII of the Code of Civil Procedure that on
the date fixed for the hearing of the suit or on any other day to which the hearing is
adjourned, the party having the right to begin shall state his case and produce his evidence
in support of the issues which he is bound to prove. The other party shall then state his
case and his evidence, if any, and any then address the court generally on the whole case
and the party beginning may then reply generally on the whole case.
Sub-rule (4) of Rule 2 of Order 18 of the Code of Civil Procedure, which has been inserted
by the Amendment Act No. 104 of 1976, provides that notwithstanding anything contained
in this rule, the court may, for reasons to be recorded, direct or permit any party to examine
any witness at any stage.
Rule-4 of Order 18 has been amended vide Amendment Act of 2002. Rule-4(i) of Order
18 says "In every case the examination-in-chief of a witness shall be on affidavit and copies
thereof shall be supplied to the opposite party, by the party who calls him for evidence;
Provided that where documents are filled and the parties rely upon the documents, the
proof and admissibility of such documents which are filled along with affidavit shall be
subject to the order of the court."
So in order to expedite the trial of suit, provision for furnishing examination-in-chief of
witnesses on affidavit has been made. Rule 4(2) says : The evidence (cross-examination
and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by
affidavit has been furnished to the court, shall be taken either by the court or by the
commission appointed by it :
Provided that the court may, while appointing a commission under this sub- rule, consider
taking into account such relevant factors as it thinks fit."

Q. 54 What is a judgment pronounced and when it may be altered or

modified ? What are its contents ? Is there any time limit for
pronouncing judgment ?

Ans. Section 33 of Code of Civil Procedure provides that the court, after the case has been
heard shall pronounce judgment and on such judgment a decree shall follow.
Order 20 of Code of Civil Procedure deals with Judgment and Decree. Vide Amendment Act
No. 22 of 2002 in Rule 1 of Order 20, Sub-rule (1) has been amended in following words.
"(1) The Court, after the case has been heard, shall pronounce judgment in an open Court,
either at once, or as soon thereafter as may be practicable and when the judgment is to be
pronounced on some future day, the Court shall fix a day for that purpose, of which due
notice shall be given to the parties or their pleaders :
Provided that where the judgment is not pronounced at once, every endeavour shall be
made by the Court to pronounce the judgment within thirty days from the date on which the
hearing of the case was concluded but, where it is not practicable so to do on the ground of
the exceptional and extraordinary circumstances of the case, the Court shall fix a future day
for the pronouncement of the judgment, and such day shall not ordinarily be a day beyond
sixty days from the date on which the hearing of the case was concluded and due notice of
the day so fixed shall be given to the parties or their pleaders".
So maximum time limit for pronouncing the judgment after hearing of the case is 60
days. Rule 1(2) of Order 20 says where a written judgment is to be pronounced, it shall be
sufficient if the findings of the court on each issue and final orders passed in the case are
read out and it shall not be necessary for the court to read out whole judgement.
When Judgement may be Altered or Modified
Order 20 Rule 3 of C.P.C. provides -
"The judgment shall be dated and signed by the in open court at the time of pronouncing it
and when once signed, shall not after wards be altered or added, save -
(a) to correct clerical or arithmetical mistakes or error due to accidental slips or omission
(Section 152 C.P.C.)
(b) On Review (Section 114 C.P.C.)
So any alteration or addition in judgment is permissible so long as it is not signed by the
Judge in open court, once it is signed no alteration or addition can be done except to correct
clerical or arithmetical mistakes or accidental slips as contemplated under section 152 of
Code or upon Review
Recently In Jaya Laxami Coelho v. Oswald Josph Coelho, AIR 2001 SC 1084 Supreme
Court observed :
"In terms of Section 152 C.P.C. any error occurred in the decree on account of airthmetical
or clerical error or accidental slip may be rectified by court..........In a matter where it is clear
that something which court intended to do but the same was accidently slipped or any
mistake creeps in due to clerical or arithmetical mistake, it would only advance the end of
justice to enable to rectify such mistake. But before exercise of such power the court must
be legally satisfied, that court must have in its mind that Decree or Order should be passed
in particular manner but that intention is not translated into the Decree or Order due to
clerical, arithmetical error or accidental slip."
CONTENTS OF JUDGEMENT Order Rule 4 of the Code of Civil Procedure deals with the
contents of the judgment also. Sub-rule (2) of Rule 4 of Order, 20 of the Code of Civil
Procedure provides that judgments of courts, other than Small Cause Court, shall contain -
(a) a concise statement of the case,
(b) the points for determination,
(c) the decision thereon and
(d) the reasons for the decision.
Sub-rule (1) of Rule 4 of Order 20 of the Code of Civil Procedure also provides that
judgments of a Court of Small Causes shall not contain more than the points for
determination and the decision thereon.
Rule 5 of the said Order also provides that in suits in which issues have been framed, the
court shall state its finding or decision with the reasons therefor, upon each separate issue,
unless the finding, upon any one or more of the issues, is sufficient for the decision of the
suit.
Rule 5-A of the said Order which has been inserted by Amendment Act No. 104 of 1976,
also lays down that except where both the parties are represented by pleaders, the court
shall, when it pronounces its judgment in a case subject to appeal, inform the parties
present in court as to the court to which an appeal lies and the period of limitation for the
filling of such appeal and place on record the information so given to the parties.
Rule 6-A (1) of the said Order also lays down that the last paragraph of the judgment shall
state in precise terms the relief which has been granted by such judgment.

Q. 55 What are the provisions of Code of Civil Procedure relating to

Cost ?

Ans. Question of imposing costs in Civil proceeding is entirely on the discretion of the court.
Rules as to costs is subject to provisions of Code of Civil Procedure.
KINDS OF COSTS The Code of Civil Procedure provides for four kinds of costs:
(1) General costs - Section 35 ;
(2) Miscellaneous costs - Order 20-A ;
(3) Compensatory costs for false or vexatious claims or defences - Section 35-A ; and
(4) Costs for causing delay - Section 35-B.
(1) General costs : Section 35
(a) Object. - Section 35 deals with general costs. The object in awarding costs to a litigant
is to secure to him the expenses incurred by him in the litigation. It neither enables the
successful party to make any profit out of it nor punishes the opposite party.
(b) Principles. - The primary rules in respect of award of general costs are as under :
(i) Costs are in the discretion of the court. The said discretion, however, must be exercised
on sound legal principles.
(ii) Normally, costs should follow the event and the successful party is entitled to costs
unless there are good grounds for depriving him of that right. Even a successful party may
be deprived of the costs if he is guilty of misconduct or there are other reasons to do so.
Sub-section (2) of Section 34, however, expressly provides that when the court orders that
costs should not follow the event, it must record reasons for doing so.
(2) Miscellaneous costs : Order 20-A
Order 20-A makes specific provision with regard to the power of the court to award costs in
respect of certain expenses incurred in giving notices, typing charges, inspection of records,
producing witnesses and obtaining copies.
(3) Compensatory costs : Section 35-A
(a) Object. - Section 35-A provides for compensatory costs. This section is an exception to
the general rule on which Section 35 is based; viz. that the "costs are only an indemnity,
and never more than indemnity". This section is intended to deal with those cases in which
Section 35 does not afford sufficient compensation in the opinion of the court. Under this
provision, if the court is satisfied that the litigation was inspired by vexatious motive and
altogether groundless, it can take deterrent action. This section applies only to suits and not
to appeals or to revisions.
(b) Conditions. - The following conditions must exist before this section can be applied :
(1) the claim or defence must be false or vexatious ;
(2) objections must have been taken by the other party that the claim or defence was false
or vexatious to the knowledge of the party raising it ; and
(3) such claim must have been disallowed or withdrawn or abandoned in whole or in part.
The maximum amount that can be awarded by the court is Rs 3000.
(4) Costs of causing delay : Section 35-B
Section 35-B is added by the Amendment Act of 1976. It is inserted to put check upon the
delaying tactics of the litigating parties. It empowers the court to impose compensatory
costs on the parties who are responsible for causing delay at any stage of the litigation.
Such costs would be irrespective of the ultimate outcome of the litigation. The payment of
costs has been a condition precedent for further prosecution of the suit, if the party
concerned is a plaintiff and the defence, if he is a defendant. The provisions of this section
are mandatory in nature and, therefore, the court should not allow prosecution of suit or
defence, as the case may be, in the event of party failing to pay costs as directed by the
court. If however the party is unable to pay costs due to unavoidable circumstances such as
strike of advocates or staff, etc., court can extend the time.

Q. 56 When do the execution proceeding begin and is the notice for

execution necessary ? If so, when ?

Ans. Execution :- Term `Execution' has not been defined in Code of Civil Procedure.
However expression "Execution" means enforcement of decrees and orders by the process
of the court, so as to enable the decree holder to realise the fruits of the decree. Section 38
of Code says "A decree may be executed either by the court which passed it or by the court
to which it is sent for execution. Section 37 defines the expression" court which passed the
decree". Section 37 has given widest possible defination of above said expression to
facilitate the decree holder to realise the fruits of decree passed in his favour. As per
Section 37 following courts fall within the expression "Court which passed the decree" :-
(i) Court of first instance by which decree is actually passed;
(ii) The court of first instance in the case of decree passed by appellate court;
(iii) Where the court of first instance has ceased to exist the court which would have
jurisdiction to try the suit at the time of execution;
The execution proceedings can be started only after the delivery of judgment by the court
and preparation of the decree. All proceedings in execution are started by an application for
execution which can be oral or written, as the case may be.
Rules 10 and 11 of Order XXI of the Code of Civil Procedure deal with the applications for
execution. Rule 10 provides that where the holder of a decree desires to execute it, he shall
apply to the court which passed the decree or to the officer (if any) appointed in this behalf,
or if the decree has been sent under the provisions herein before contained to another
court, then, to such court or to the proper officer thereof.
Rule 11(1) of the said Order deals with the oral application for execution and it lays down
that where a decree is for the payment of money, the court may, on the oral application of
the decree-holder at the time of the passing of the decree, order immediate execution
thereof by the arrest of the judgment debtor, prior to the preparation of a warrant, if he is
within the precincts of the court.
Then Sub-rule (2) to Rule 11 of Order 21 of Code says that save as otherwise provided by
sub-rule (1), every application for the execution of a decree shall be in writting signed and
verified by the applicant and shall contain particulars as provided in sub-rule (2)
Rules 11-A to 13 of Order 13 deal with certain specific applications for execution. Rule 11-A
provides that where an application is made for arrest and detention of judgment debtor, it
shall state, or be accompanied by an affidavit, stating the grounds on which arrest is applied
for. Rule 12 deals with application for attachment of moveable properties not in possession
of judgment debtor, which require decree holder to attach with application, an inventory of
property and their accurate descriptions Rule-13 of Code then deals with application for
attachment of immovable properties belonging to judgment debtor and it also requires that
application shall contain full description of property with boundaries etc. for proper
identification and also proof of judgment debtor's ownership or his share in it.
Notice of execution Notice is not to be issued to the party against whom execution
application is filed in every case but only in certain cases mentioned in Rule 22 of Order XXI
of the Code of Civil Procedure. According to it, show cause notice is to be issued in the
following cases :-
(i) Where an application for execution is made more than two years after the date of decree;
(ii) Where an application for execution is made against the legal representative of a party to
the decree or where an application is made for execution of a decree filed under the
provisions of Section 44-A of the Code of Civil Procedure;
(iii) Where an application for execution is made against the assignee or receiver in
insolvency where the party to the decree has been adjudged to be an insolventy.
Show cause notice can also be issued by the Court if the execution has been sought by
arrest and detention of the judgment-debtor in view of the provisions of Order XXI Rule 37
of the Code of Civil Procedure.

Q. 57 Comment on the statement that an execution court cannot go

behind the decree.

Ans. Term `Execution' has not been defined in C.P.C. Execution is enforcement of decree
and order by process of the court, so as to enable the decree holder to realise the fruits of
decree. Section 38 of C.P.C. lays down that a decree may be executed either by the court
which passed it or by court to which it is sent for execution. Section 37 define the
expression "court which passed a decree" and enlarge the scope of expression "court
which passed a decree" so as to facilitate the decree holder to realise the fruits of decree
passed in his favour.
One of the most important Rule regarding the "Execution" is that: It must take the decree
as it stands and execute according to its terms. It has no power to vary or modify the terms.
It has no power to question its legality or correctness, no inquiry into its regularity or
correctness can be permitted in such a proceeding. Section 47 of CPC is important
provision in this regard which lays down as to which questions are to be determined by
court executing the decree. It provides :
"(1) All questions arising between the parties to the suit in which the decree was passed or
their representatives and relating to execution, discharge or satisfaction of decree shall be
determined by court executing the decree not by a separate suit.
(2) (* * * *)
(3) Where a question arises as to whether any person is or is not representative of a party,
such question shall, for the purpose of this Section be determined by the court.
Explanation I - For the purposes of this Section , a plaintiff whose suit has been dismissed
and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation II - (a) For the purposes of this Section , a purchaser of property at a sale in
execution of a decree shall be deemed to be a party to the suit in which the decree is
passed; and
Explanation II (b) all questions relating to the delivery of possession of such property to
such purchaser or his representative shall be deemed to be questions relating to the
execution, discharge or satisfaction of the decree within the meaning of this Section .
The underlying object of this provision is to provide cheap and expeditious remedy for
determination of certain questions in execution proceedings without recourse to a separate
suit and to prevent needless and unnecessary [Link] the executing court can go into
all question between the parties relating to execution, discharge or satisfaction of decree
and as such court has no power to amend, modify or substitute a decree or in other words
can not go behind the decree.
Although An executing court cannot go behind the decree nor can it question its legality or
correctness. But there is one exception to this general Rule and that is that where the
decree sought to be executed is nullity for the lack of inherent jurisdiction in court passing it
its invalidity can be set up in an execution proceeding. The executing Court can therefore
entertain an objection that the decree is nullity and can refuse to execute the decree.
In Kiran Singh v. Chaman Paswan, AIR 1954 SC 340,it was observed: It is a fundamental
principle well established that a decree passed by a court without jurisdiction is a nullity, and
that is invalidity could be set up whenever and wherever it is sought to be enforced or relied
upon even at the stage of execution and even in collateral proceedings.

Q. 58 What is the effect of a decree passed in favour of a dead

person ?

Ans. Decree passed in favour of a dead person. - Where the court proceeds with the
case in ignorance of the fact of death of a person and passes a decree, that decree cannot
be treated as a nullity. It may, no doubt, be a wrong decree, but it will have to be set aside
by taking appropriate proceedings like appeal, revision or review. Generally speaking, a
decree passed in favour of a dead person is not a nullity, though a decree passed against a
dead person can be construed as a nullity. Even if there is abatement of the suit, that would
not make the decree passed in the suit as one without jurisdiction and the executing court is
not entitled to refuse to execute the decree on the ground that the plaintiff was not alive on
the date when the decree was passed in his favour.

Q. 59 A is survived by his widow, daughter, sister and four brothers.

On a partition suit filed by B, one of the brothers of deceased A, the
disputed property fell to the share of C, the daughter of A. During
the pendency of partition suit filed by B, B was appointed receiver of
entire estate of A. In this capacity B inducted D as a tenant and took
some advance from D but the possession of whole of leased
premises was not given to D. So D filed suit against B for recovery of
 amount of advance. This suit was decreed against B and his estate.
In execution of this decree D purchased the suit land belonging to C
in auction and then transferred it to some other persons without any
notice to B.

C filed suit for recovery of possession of her land. Suit was resisted
by D and his transferee on the ground inter-alia that same is barred
by Section 47 C.P.C. decide whether the bar created by Section 47
C.P.C. will apply to suit filed by C.

Ans. Section 47 of the Code reads as under:

(1) All questions arising between the parties to the suit in which the decree was passed, or
their representatives, and relating to the execution, discharge or satisfaction of the decree,
shall be determined by the court executing the decree and not by a separate suit.
(2) * * *
(3) Where a question arises as to whether any person is or is not the representative of a
party, such question shall, for the purposes of this Section, be determined by the court.
Explanation I - For the purposes of this Section, a plaintiff whose suit has been dismissed
and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation II (a) For the purposes of this Section, a purchaser of property at a sale in
execution of a decree shall be deemed to be a party to the suit in which the decree is
passed; and
Explanation II(b) all questions relating to the delivery of possession of such property to
such purchaser or his representative shall be deemed to be questions relating to the
execution, discharge or satisfaction of the decree within the meaning of this Section .
The underlying object of this provision is to provide cheap and expeditious remedy for
determination of certain questions in execution proceedings without recourse to a separate
suit and to prevent needless and unnecessary litigation.
In order that this Section may apply, the following conditions must be satisfied -
(i) the question must be one arising between the parties to the suit in which the deree is
passed, or their representatives; and
(ii) it must relate to the execution, discharge or satisfaction of the decree.
In the case in hand, during pendency of partition suit, B was appointed as receiver of estate
of A and in that capacity B inducted D as tenant to suit land which fell in the share of C. B
had taken advance from D, when D could not get the possession of leased property. D filed
suit against B which was decreed against B and his estate and not against the estate of A,
therefore suit property which had fell in share of C (A's daughter) did not come in B's estate.
In the execution of decree passed against B, share of C was not liable for satisfaction of
said decree. It is also important that suit filed by D for recovery of advanced by him, against
B, C was not party in that suit. Therefore, none of the above said conditions apply for
application of Section 47 C.P.C. Therefore suit of C is not barred by Section 47.
 Q. 60 When can a decree holder apply to get the decree transferred
to another court for execution ?

Ans. Transfer of the decree - Section 39 of the Code of Civil Procedure deals with the
transfer of decree. It provides that the Court which passed the decree may, on the
application of the decree holder, send it for execution to another court of competent
jurisdiction -
(a) if the person against whom the decree is passed actually and voluntarily resides or
carries on business, or personally works for gain, within the local limits of the jurisdiction of
such other court, or
(b) if such person has no property within the local limits of the jurisdiction of the court which
passed the decree, sufficient to satisfy such decree and has property within the local limits
of the jurisdiction of such other court, or
(c) if the decree directs the sale or delivery of immovable property situate outside the local
limits of the jurisdiction of the court which passed it, or
(d) if the court which passed the decree considers for any other reason, which it shall record
in writing, that the decree should be executed by such other court.
The Court which passed a decree, may of its own motion send it for execution to any
subordinate court of competent jurisdiction.
For the purposes of this section, a court shall be deemed to be a court of competent
jurisdiction if, at the time of making the application for the transfer of decree to it, such court
would have jurisdiction to try the suit in which such decree was passed.
Powers of the Court to which a decree is transferred for execution Section 42 of the
Code of Civil Procedure deals with the powers of transferee court. It provides that the court
executing a decree sent to it shall have the same powers in executing such decree as if it
had been passed by itself. All persons disobeying or obstructing the decree shall be
punishable by such court in the same manner as if it had passed the decree. Section 42(2)
of Code says powers of transferee court shall include the following powers of the court
which passed the decree, namely :-
(a) Power to send decree for execution to another court under section 39
(b) Power to execute the decree against the legal representative of the deceased judgment
debtor under section 50
(c) Power to order attachment of a decree
According to Section 42(4) of Code, transferee court cannot exercise the following power :-
(a) Power to order execution at the instance of the transferee of the decree
(b) in the case of decree passed against a firm, power to grant leave to execute such
decree against any person other that such a person as is referred to in clause (b) or (c) of
sub-rule (1) of Rule 50 of Order 21.

Q. 61 Discuss the provisions relating to arrest and detention in civil

prison in execution of a decree.
Ans. Arrest and detention in execution of a decree - One of the modes of executing
decrees is arrest and detention in civil prison of the judgment-debtor. Sections 55 to 59 and
Rules 37 to 41 of Order 21 deal with arrest and detention of the judgment-debtor in civil
prison. Section 55 provides that a judgment debtor may be arrested in execution of a
decree at any hour and on any day, and shall, as soon as practicable, be brought before the
court, and his detention may be in the civil prison of the district in which the court ordering
the detention is situate, or where such civil prison does not afford suitable accommodation
in any other place which the State Government may appoint for the detention of persons
ordered by the courts of such district to be detained, except that :
Procedure
(i) for the purposes of making an arrest under this section, no dwelling house shall be
entered after sunset and before sunrise;
(ii) no outer door of a dwelling house shall be broken open unless such dwelling house is in
the occupancy of the judgment debtor and he refuses, or in any way prevents access
thereto, but when the officer authorised to make the arrest has duly gained access to any
dwelling house, he may break open the door of any room in which he has reason to believe
the judgment debtor is to be found :
(iii) if the room is in the actual occupancy of a woman who is not the judgment-detor and
who, according to the customs of the country, does not appear in public, the officer
authorised to make the arrest shall give notice to her that she is at liberty to withdraw, and,
after allowing a reasonable time for her to withdraw and giving her reasonable facility for
withdrawing, may enter the room for the purpose of making the arrest.
(iv) where the decree in execution of which a judgment debtor is arrested, is a decree of the
payment of money and the judgment debtor pays the amount of the decree and the costs of
the arrest to the officer arresting him, such officer shall at once release him.
Order XXI Rule 37 of the Code of Civil Procedure deals with the discretionary power of the
court to issue Show Cause Notice to the judgment debtor against detention in prison. It
provides that where an application is for the execution of a decree for the payment of
money by the arrest and detention in the civil prison of a judgment debtor who is liable to be
arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his
arrest, issue a notice calling upon him to appear before the court on a day to be specified in
the notice and show cause why he should not be committed to the civil prison. Provided that
such notice shall not be necessary if the court is satisfied by affidavit, or otherwise, that with
the object or effect of delaying the execution of the decree, the judgment debtor is likely to
abscond or leave the local limits of the jurisdiction of the court.
Sub-section (2) Rule 37 lays down that where appearance is not made in obedience to the
notice, the court shall, if the decree holder so requires, issue a warrant for the arrest of the
judgment debtor.
Sub-section (3) of section 55 of the Code of Civil Procedure also lays down that where a
judgment debtor is arrested in execution of a decree for the payment of money and brought
before the court, the court shall inform him that he may apply to be declared an insolvent,
and that he may be discharged if he has not committed any act of bad faith regarding the
subject of the application and if he complies with the provisions of the law of insolvency for
the time being in force.
Section 56 of the Code of Civil Procedure provides that a woman shall not be arrested in
execution of decree in payment of money.
Section 57 of the Code of Civil Procedure deals with the subsistence allowance payable by
the decree holder for the subsistence of the judgment debtor. According to it, the State
Government may fix scales graduated according to rank, race and nationality of such
monthly allowance.
Period of Detention Section 58 of the Code of Civil Procedure deals with the period of
detention. According to it every person detained in the civil prison in execution of a decree
shall be so detained -
(a) where the decree is for the payment of a sum of money exceeding one thousand
rupees, for a period not exceeding three months, and
(b) where the decree is for the payment of a sum of money exceeding five hundred rupees,
but not exceeding one thousand rupees, for a period not exceeding six weeks.
How Released
Provided that he shall be released from such detention before the expiration of the said
period of detention -
(i) On the amount mentioned in the warrant for his detention being paid to the officer
incharge of the civil prison or
(ii) On the decree against him being otherwise fully satisfied or
(iii) On the request of person on whose application he has been so detained or
(iv) On omission to pay subsistence allowance by person on whose application he was so
detained
Provided also that he shall not be released from such detention under clause (ii) or (iii)
without the order of the court.

Q. 62 What is a "Garnishee Order" and how is it enforced ?

Ans. Garnishee is a person who is liable either to pay debt to a judgment-debtor or account
for any movable property not in the possession of the judgment-debtor. The Garnishee
Order is an order issued to such a person not to pay back to the judgement debtor but to
the Court. The debt must be one other than a debt secured by a mortgage, a charge, a
negotiable instrument, or a debt recovered only in a revenue court.
A garnishee order is an order which a court is authorised to make against a garnishee-
judgment debtor' requiring him to pay or deliver in court the amount due from or the
property deliverable by him to the judgment-debtor or so much as may be sufficient to
satisfy the decree and the cost of execution.
The Court may in the case of debt (other than a debt secured by a mortgage or a charge)
which has been attached under Rule 46 (attachment of a debt, share and other property not
in possession of the judgment-debtor), upon the application of the attaching creditor, issue
notice to the garnishee liable to pay such debt, calling upon him either to pay into court the
debt due from him to the judgment-debtor or so much thereof as may be sufficient to satisfy
the decree and costs of execution, or to appear and show cause why he should not do so.
Where the garnishee pays in the court the amount due from him to the judgment-debtor or
so much thereof as is sufficient to satisfy the decree and the costs of the execution, the
court may direct that the amount may be paid to the decree-holder towards satisfaction of
the decree and costs of the execution. (Order 21, Rule 46-A).
Where the garnishee does not forthwith pay into court the amount due from him to the
judgment-debtor or so much thereof as is sufficient to satisfy the decree and the costs of
execution, and does not appear and show cause in answer to the notice the court may
order the garnishee to comply with the terms of such notice, and on such order, execution
may issue as though such order were a decree against him. (Order 21, Rule 46-B).
Where the garnishee disputes liability, the court may order that any issue or question
necessary for the determination of liability shall be tried as if it were an issue in a suit, and
upon the determination of such issue shall make such order or orders as it deems fit. (Order
21, Rule 46-C).

Q. 63 Explain the law relating to attachment of salary or allowances

of servant of Government or railway company or local authority.

Ans. Attachment of salary of public officer, etc. - Accordint to Order 21 Rule 48 the court
can order that the amount which not liable to attachment and sale in execution of a decree
as per section 60 of CPC, be withheld from such salary or allowances either in one payment
or by monthly instalments. The officer or the person whose duty is to disburse shall then
withhold and remit to the court the amount due under the order or the monthly instalment,
as the case may be. (Section 60, Order 21 and Rule 48).
Attachment of salary of private employees. - Order 21, Rule 48-A of the Code of CPC
provides that where th property to be attached is the salary or allowances of an employee to
whom Rule 48 applies, is within the local limits of the court's jurisdiction, may order that the
amount shall, subject to the provisions of Section 60, be withheld from such salary or
allowances either in one payment or by monthly instalments as the court may direct, and
upon notice of the order to such disbursing officer, such disbursing officer shall remit to the
court the amount due under the order, or the monthly instalments, as the case may be.

Q. 64 What remedy is available to a person whose land has been

wrongfully attached in the execution of a decree ?

Ans. Order 21 Rule 58 provides that where any claim is preferred to, or any objection is
made to the attachment of, any property attached in execution of a decree on the ground
that such property is not liable to attachment, the court shall proceed to adjudicate upon the
claim or objection in accordance with the provisions herein contained:
Provided that no such claim or objection shall be entertained -
(a) where, before the claim is preferred or objection is made, the property attached has
already been sold; or
(b) where the court considers that the claim or objection was designedly or unnecessarily
delayed. [Order 21, Rule 58(1)].
All questions (including questions relating to right, title or interest in the property attached)
arising between the parties to a proceeding or their representatives under Rule 58 and
relevant to the adjudication of the claim or objection, shall be determined by the court
dealing with the claim or objection and not by a separate suit. [Order 21, Rule 58(2)].
Upon the determination of the questions referred to in Sub-rule (2), the court shall, in
accordance with such determination, - (a) allow the claim or objection and release the
property from attachment either wholly or to such extent as it thinks fit; or (b) disallow the
claim or objection; or (c) continue the attachment subject to any mortgage, charge or other
interest in favour of any person; or (d) pass such order as in the circumstances of the case
it deems fit. [Order 21, Rule 58(3)].
Where a claim or an objection is preferred and the court, under the proviso to Sub-rule (1),
refuses to entertain it, the party against whom such order is made may institute a suit to
establish the right which he claims to the property in dispute; but, subject to the result of
such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive.
[Order 21, Rule 58(5)].
In Canara Bank v. Gurmukh Singh AIR 2000 Del. 48, it was observed:
"......... After the introduction of Amendment Act in 1976 Order 21 contemplates an
adjudictaion . It is now necessary that objection filed under Order 21 Rule 58 should not be
disposed of summarily. Wherever objection are filed under these provisions , these must be
heard and disposed of by a procedure akin to that which obtains the disposal of a suit .........
It is open to a party to adduce evidence to prove his claim and there is nothing in the
Section to make the court to adopt summary procedure when dealing with an application
under order 21 Rule 58. Sub-section (4) to Rule 58 makes it clear that order under this
provision shall have staus of decree."
The object of the Rule is to secure a speedy settlement of the question of title raised at an
execution sale. It gives the claimant a speedy and summary remedy. The court is bound to
decide the question of possession when an objection is made to attachment of the property
in execution of a decree. On the question of possession the onus is on the claimant or
objector.

Q. 65 When does a suit stand abated ? What do you understand by

complete and partial abatement ?

Ans. Abatement implies a suspension or termination of proceeding for want of proper

parties. Provisions of Order 22 of Code of Civil Procedure deals with creation, assignment
or devolution of interest during pendency of suit as well as appeal but not execution
proceedings due to death, marriage or insolvency of parties.
Rule-1 of Order 22 C.P.C. provides that the death of plaintiff or defendant shall not cause
the suit to abate if the right to sue survives.
In Krishana Singh v. Mathura Ahir AIR 1980 SC 707, it was observed
"When a party to a suit dies the first question to be decided is whether the right to sue
survives or not ? If it does not, there is an end of the suit, if it does, the suit will not abate...
The Expression "Right to sue "may be interpreted to mean Right to seek relief, general rule
is that all rights of action and all demands whatsoever existing in favour of or against a
person at the time of his death survive to or against his representatives."
Rules 1 to 6 of Order 22 provide as to consequences, in case of death of party to suit.
Rule 2 says `where there are more plaintiffs or defendants than one and any of them dies
and where the right to sue survives to the surviving plaintiff or plaintiffs alone or against the
surviving defendant or defendants alone, the Court shall cause an entry to that effect, to be
made on record and suit shall proceed at the instance of surviving plaintiff(s) or against
surviving defendant(s) as the case may be. Rule 3 says where one of two or more plaintiffs
dies and the right to sue does not survive to surviving plaintiff or plaintiffs alone or a sole
plaintiff or sole surviving plaintiff dies and right to sue survive, the court on an application
made in that behalf, shall cause the legal representative of the deceased plaintiff to be
made a party and shall proceed with the suit. Where within the time limited by law (i.e.
within 90 days of death), no application is made, the suit shall abate so far as the deceased
plaintiff is concerned.
Rule 4 then lays down that where one of two or more defendant dies and right to sue does
not survive against the surviving defendant or defendants alone, or where sole defendant or
sole surviving defendant dies and right to sue survives, the court on an application made in
that behalf shall cause the legal representatives of deceased defendant to be made party
and proceed with the suit. However where within the time limited by law (i.e. 90 days of
death) no application is made the suit shall abate against the deceased defendant.
Rule 4(4) of Order 22 however provide that court, whenever it think fits exempt the plaintiff
from the necessity of substituting the legal representatives of any such defendant who has
failed to file written statement or who having filed it, has failed to appear and contest the suit
at the hearing and the judgment may in such case be pronounced against said defendant
notwithstanding the death of such defendant and shall have same effect and force as if it
has been pronounced before his death.
Rule 4(5) says where the plaintiff was ignorant of death of defendant and could not for that
reason make an application for substitution of legal representative of such defendant within
the prescribed period and the suit is abated, plaintiff may make an application for setting
aside such abatement and in considering the said application the court shall have due
regard to the fact of such ignorance of plaintiff.
In Dhurandhar Prasad v. Jai Parkash University and other, AIR 2001 SC 2552, it was
observed by Supreme Court that Order 22 Rules 3 and 4 prescribe procedure in case of
devolution of interest on death of party to suit. It says if party dies and right to sue survives,
court on application made in this behalf, is required to substitute legal representatives of
deceased party, but if such application is not filled within time prescribed, suit shallabate so
far as deceased party is concerned, whereas rule 10 of Order 22 C.P.C. provides for cases
of assignment, creation and devolution of interest, other than those referred to in foregoing
rules. In cases covered under rules 384 if right to sue survives and no application for
bringing legal representatives of deceased of deceased party filled within time prescribed,
there is automatic abatement of suit. In cases covered under Rule 10 legislature has not
prescribed any such procedure.

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.
Sub-rules (3) of Rule 4 of Order XXII C.P.C. lays down that where within the time limited by
law, which is 90 days, no application is made under Sub-rule (1), the suit shall abate as
against the deceased defendant.
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.

Q. 67 (a) What is the doctrine of restitution ? Has a court inherent

power to grant restitution ?

(b) A obtained a decree against. B for possession B filed an appeal

against the decree and obtained stay of delivery. The appeal was
allowed and the suit dismissed. Against the dismissal A preferred
second appeal and that was allowed and decree of trial court was
restored. A applied in restitution for mesne profits from the day of
stay order of first appellate court to the date of the decree of second
appellate court. Is A entitled to the mesne profits so claimed.
(c) A obtained a decree exparte against B and in the execution of the
decree brought the properties of B to sale and himself became the
purchaser. On appeal by B, the appellate court set aside the decree
and remanded the suit for re-hearing. Then B applied for restitution.
While that application was pending, the suit was heard and again
decreed. A then contended that as the suit had been decreed no
restitution could be granted. Is B entitled to restitution ?

Ans. (a) The expression "Restitution" means restoring to a party the benefit which the
other party has received under a decree subsequently held to be wrong. The principle of the
doctrine of restitution is that on the reversal of a decree the law imposes an obligation on
the party to suit who received an unjust benefit of erroneous decree to make restitution to
the other party for what he has lost. Doctrine is based on maxim "actus curiea neminum
gravabit" i.e. the act of court shall harm no one. Doctrine of Restitution as embodied under
section 144 of Code, however does not confer any new substantive right to party but is a
Rule of equity. In Order that Section 144 of Code apply following conditions must be
satisfied:-
(a) restitution sought must be in respect of decree or Order which has been reversed or
varied.
(b) the party applying for restitution must be entitled to benefit under the reversing decree or
order.
(c) the relief claimed must be properly consequential on the reversal or variation of decree
or order.
If these conditions are satisfied, the court must grant restitution.
In Bhagwanti Singh v. Lala Shri Kishan Das, AIR 1953 SC 136, it was observed: "The
doctrine of Restitution is that on reversal of a judgment the law raises an obligation on the
party to the restore who has received the benefit of the erroneous judgment to make
restitution to the other party for what he had lost and it is duty of court to enforce that
obligation unless it is shown that restitution would be clearly contrary to real justice of case.
Restitution Under Inherent Power :
In Kavita Rehan (Mrs.) v. Balsara Hygiene Products Ltd. AIR 1995 SC 44 it was
observed: "The jurisdiction to make restitution is inherent in every court and will be
exercised whenever the justice of case demands. It will be exercised under inherent
power where the case did not strictly fall within the ambit of Section 144."
Ans. (b) The court is competent to make orders as to mesne profits consequent upon an
order of restitution and cannot refer the party to a separate suit. Court has ample power
under section 144 C.P.C. to make restitution to party which has been deprived of fruits of its
decree by an order of court at the instance of judgment debtor. Even though a party may
not claim mesne profits, the same may be granted by way of restitution if on account of
action of court a party is deprived of benefit of [Link] facts of the case in hand have
been borrowed from a judgment in Inderam Mansa Ram v. Ramdin Bhagwant Prasad
AIR 1961 M.P. 200 it was held :
"Where a party is deprived of possession of property due to an >order or decree of
court below, which is later reversed or varied by appellate court, the court could
under the power conferred by Section 144 place the party, who has been deprived of
possession temporarily, in the position as if the reversed decree had not at all been
passed." In view of above discussion, it can be held that A is entitled to mesne profit from
date of stay Order of first appellate court till the date of decree passed by second appellate
court.
Ans. (c) The object of restitution is to restore the status quo ante between the parties. The
principle of restitution is that on the reversal of a decree, the law imposes an obligation on
the party to the suit who received the benefit of the erroneous decree to make restitution to
the other party what he has lost. In Binayak Swain v. Ramesh Chandra, AIR 1966 S.C.
948 it was held
"Where in execution of an ex parte decree passed in appeal by the District Judge, the
property of the judgment debtor is sold and purchased by the decree-holder himself and the
decree of the District Judge is set aside by the High Court and the suit is remanded for re-
hearing and fresh disposal, the judgment debtor is under Section 144 Civil P.C. entitled to
restitution of his properties purchased by the decree-holder subject to equities to be
adjusted which was set aside by the High Court is not validated by the passing of the
application for restitution, judgment debtor was entitled to restitution because on that date
the decree in execution of which the properties were sold had been set aside. He is entitled
to restitution notwithstanding anything which happened subsequently as the right to claim
restitution is based upon the existence or otherwise of a decree in favour of the plaintiff at
the time when the application for restitution was made." It was observed by Supreme
Court:- "...The principle of the doctrine of restitution is that on the reversal of a decree, the
law imposes an obligation on the party to the suit who received the benefit of the erroneous
decree to make restitution to the other party for what he has lost. This obligation arises
automatically on the reversal or modification of the decree and necessarily carries with it the
right to restitution of all that has been done under the erroneous decree, and the Court in
making restitution is bound to restore the parties, so far as they can be restored, to the
same position they were in at the time when the Court by its erroneous action had displaced
them from...." In view of the above discussion the objection raised by A is not sustainable
and B is entitled to restitution of his property.

Q. 68 (a) Discuss the procedure to be adopted by court in a suit by or

against Government or Public officer.

(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 ?
(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 ?

Ans. (a) Order 27 Sections 79 to 82 of Civil Procedure Code, deal with procedure in any
suit brought by or against Government or Public Officer.
NOTICE : Section 80 C.P.C provides for giving of notice prior to filling of suit against
Government or Public officer. Section 80 says no suit shall be instituted against
Government or Public officer in respect of any act purporting to be done by him in his official
capacity untill expiration of two months next after giving notice in writting has been delivered
to Government or to such public officer. In Bihari Choudhary v. State of Bihar AIR 1981
SC 1043, Supreme Court observed that
"---- Section has been enacted as a measure of public policy with the object of ensuring that
before a suit against Government of Public officer is instituted in the court, the Government
or Public officer concerned is afforded an opportunity to scrutinize the claim in respect of
which the suit is proposed to be filed and if it is found to be just claim, to take immediate
action and avoid unnecessary litigation."
Notice under Section 80 should contain (a) Name, description and place of residence of
plaintiff, (b) a statement of cause of action, (c) Statement of relief claimed, (d) Any other
important information.
Sub-section (2) to Section 80 provides that a suit may be instituted with the leave of court
for obtaining urgent or immediate relief claimed against Government of Public officer in his
official capacity without serving statutory notice. But in such case court shall not grant relief
in the suit whether interim or otherwise except after giving to Government of Public officer
as the case may be a reasonable opportunity of showing cause in respect of relief claimed.
Order 27 C.P.C provides regarding procedure to be followed in such suit.
Ans. (b) 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 Bihari Chowdhary v. State of Bihar AIR 1984 SC 1043 explaining the underlying object
behind Section 80 Supreme Court observed:-
"...Section has been enacted as a measure of public policy with the object of ensuring that
before a suit is instituted against the government or a public officer, the government or
officer concerned is afforded opportunity to scrutinise the claim in respect of which suit is
proposed to be filed and if it be found to be just claim, to take immediate action and thereby
avoid unnecessary litigation.."
However Sub-section (2) of Section 80 provides that a suit may be instituted with the leave
of the court for obtaining an urgent or immediate relief against the government or any public
officer in respect of any act purporting to be done by such public officer in his official
capacity without serving a statutory notice. But in such a case, the court shall not grant relief
in the suit, whether interim or otherwise, except after giving to the government or the public
officer, as the case may be, a reasonable opportunity of showing cause in respect of the
relief prayed for in the suit.
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.
Ans. (c) 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 Ghanshyam Dass v. Dominion of India, 1984 A.W.C. 407 (SC): AIR 1984 SC
1004 Supreme Court held
"Where a notice under Section 80 given by the plaintiff's father reached the concerned
department of the Dominion of India and it was replied by not accepting the claim of the
father of the plaintiff, but before instituting the suit the plaintiff's father died, the suit by the
legal heirs of the deceased without giving fresh notice under Section 80, C.P.C. is
maintainable and the notice by the deceased will enure for the benefit of his legal heirs."
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 ?

Ans. 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.
No order shall be made on any application under this Rule except upon notice to any
guardian of the minor appointed or declared by an authority competent in that behalf, or,
where there is no such guardian upon notice to the father or where there is no father, to the
mother, or where there is no father or mother, to other natural guardian of the minor, or
where there is no father, mother or other natural guardian, to the person in whose care the
minor is, and after hearing any objection which may be urged on behalf of any person
served with notice.
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.
In Asharfi Lal v. Smt. Koili AIR 1995 SC 1440 Supreme Court has observed that in case
of a decree against minor, minor can file suit to set aside the decree if there is gross
negligence on the part of his "next friend."
Effect of Non-compliance of the Provisions Relating to Minors According to
Rule 2 Order 32 of the Code of Civil Procedure where a suit is instituted by or on behalf of a
minor without a next friend the defendant may apply to have the plaint taken off the file with
costs to be paid by the pleader or other person by whom it was presented. Notice of such
application shall be given to such person, and the court, after hearing his objection (if any),
may make such order in the matter as it thinks fit. If a minor defendant is sued without a
guardian ad-litem, the decree in favour of the plaintiff is a nullity and inoperative and it
cannot be enforced against the minor.
Agreement or Compromise by next friend or guardian for the suit Rule 7 of Order 32 of
the Code of Civil Procedure deals with agreements or compromise on behalf of minors. It
provides that no next friend or guardian for the suit shall without the leave of the court,
expressly recorded in the proceedings, enter into the agreement or compromise on behalf
of a minor with reference to the suit in which he acts as next friend or guardian.
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. Provided that the opinion so expressed, whether in the affidavit or in the certificate,
shall not preclude the court from examining whether the agreement or compromise
proposed is for the benefit of the minor.
Thus, according to the said provisions, it is the duty of the court to safeguard the interest of
the minors and any compromise which is not beneficial to the interest of the minor should
not be allowed.
In Kumari Manju Gupta v. National Insurance Co. 1993 H.V.D. Vol. IV Page 357 it was
held that in a claim petition on behalf of a minor, no settlement can be arrived at, without
leave of the court as required under Rule 7 of Order 32 CPC. Provisions contained in
Rules 6 and 7 of said Order are mandatory and Addl. District Judge could not legally act
upon that settlement without applying its mind to see whether amount agreed between
parties is adequate to compensate the minor girl.
In Sant Bhushan Lal v. Brij Bhushan Lal, AIR 1967 Del. 137, it was held that where a
next friend or guardian ad litem of minor enters into a compromise on his behalf with
permission of the court under Order 32 R. 7 the compromise and decree based thereon
would be as much binding on the minor as it is on adult parties, unless the minor can show
that the next friend or his guardian ad litem was guilty of fraud or negligence.
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. 70 Discuss the validity of the following :

(a) decree against a major treating him as a minor;

 (b) decree against a minor treating him as a major;

(c) decree in favour of a minor without a next friend;

(d) decree passed against a minor in a suit in which he is not

represented by a guardian ad litem;

(e) decree passed against a person who is a minor at the date of the
institution of the suit with a properly appointed guardian ad litem;
he attains majority during the pendency of the suit, but no steps are
taken to remove the guardian ad litem and the decree is passed
against him as a minor.

Ans. (a) A decree obtained against a major treating him as a minor at the date is not a
nullity, but is only an irregularity, which is curable.
(b) decree against a minor treating him as a major; is a nullity.
(c) It is only an irregularity which is deemed to be waived by the defendant if he does apply
to have the plaint taken off the file under Order 32, Rule 2. The decree is consequently
valid. Moreover, the law treats all Acts of a minor which are for his benefit on the same
footing as those of an adult. It only does not permit him to do anything which is prejudicial to
his own interests.
(d) A decree passed against a minor in a suit in which he is not represented by a
guardian at litem is a nullity, and cannot be enforced against him.
(e) The decree passed in the suit is a valid decree. The question under consideration is
governed by Rule 3(5) of Order 23, which provides that a person appointed to be
guardian ad litem for a minor shall, unless his appointment is terminated by retirement,
removal or death, continue as such throughout all proceedings arising out of the suit
including the proceedings in any appellate or revisional court and any proceedings in the
execution of a decree. Consequently, the guardian ad litem does not automatically cease to
function on the minor's attaining majority. It is necessary for the minor on attaining majority
that he should take steps to have his guardian removed and in the absence of such steps,
he will continue to function as guardian and the decree passed against the defendant as
minor in the suit will be a valid decree.

Q. 71 Discuss the validity of the following :

(i) Decree against a person of unsound mind supposing him to be of

sound mind.

(ii) Decree passed against a minor in a suit in which he is not

represented by a guardian ad litem.
 (iii) A person who was minor at the date of the institution of suit
with a proper guardian ad litem, attains majority during the
pendency of suit but no steps are taken to remove the guardian ad
litem and a decree is passed against him as a minor.

Ans. (i)& (ii) Rule-15 of Order 32 C.P.C. has provided that all the Rules except Rule 2-A of
Order 32 equally extend to persons adjudged to be of unsound mind or who though not so
adjudged are on inquiry, found by the court, by reason of mental infirmity incapable of
protecting their interests when suing or being sued. Therefore as Rule 3 Order 32 say that
where the defendant of suit is Minor or person of unsound mind, then court on being
satisfied of fact of minority or insanity of defendant, shall appoint a proper person as
guardian ad litem of such minor or person of unsound mind.
These provisions are mandatory. Therefore when decree is passed against person of
unsound mind or against minor without complying with provisions of Rule 3 Order 32 C.P.C.
i.e. without appointment of guardian ad litem, such decree is a nullity and cannot be
enforced against him.
In Rama Lal v. Laxmi, AIR 1940 Ajmer 48, it was held that lunatics are under the special
protection of the court and decree will not be effective even if by ignorance of court, no
enquiry as to mental infirmity of the defendant, was made.
Ans. (iii) No provision has been made in the Code in respect of a minor defendant attaining
majority during the pendency of the suit. The reason for the omission is that while a plaintiff
minor on becoming major can elect either to go on with or put an end to the litigation, but
the defendant has no such choice available to him and suit must proceed against him not
withstanding his becoming major.
A decree passed against a person who was a minor at the date of the institution of the suit
with a properly appointed guardian ad litem but attains majority during the pendency of the
suit without any steps being taken to remove such guardian with the result that the decree is
passed against him as a minor, is a valid decree as the guardian ad litem does not
automatically cease to function on the minor attaining majority, but continues to represent
him throughout all proceedings unless his appointment is terminated by retirement, removal
or death under Rule 3(5) of Order 32.

Q. 72 Who is an indigent person ? What is the mode of instituting

suits by such person ?

Ans. Object: Order 33 C.P.C. deals with suits by indigent persons. Provisions of
Order 33 are intended to enable the indigent person to institute suits without payment of
court fees. Generally a plaintiff suing in a court of law is bound to pay court fee.
Indigent Person - Meaning Explanation 1 to Rule 1 says A person is an "indigent person if
(i) he is not possessed of sufficient means to enable him to pay the fee prescribed by law
for the plain in such suit or
(ii) Where no such fee is prescribed, when he is not entitled to property worth one
thousands rupees.
In both the cases, the property exempt from attachment in execution of a decree and the
subject matter of the suit should be excluded.
APPLICATION (Rule 2) Every application for permission to sue as an indigent person
should contain following particulars :-
(1) Particulars required in regard to plaints in suits.
(2) Schedule of moveable or immovable property belonging to applicant with estimated
value thereof
(3) Signature and verification as provided in Order 6 Rules 14 and 15 C.P.C.
The application is to be presented to the court by applicant in person unless appearance is
exempted. Rule 1A of order 33 provides for initial enquiry into the means of applicant by
officer of court. Rule 4 provides that where application is in proper form and duly presented,
court may if it think fit examine the applicant and his agent regarding the merits of the claim
and property of applicant. Rule 5 provides that the court may reject an application for
permission to sue as an indigent person on the following grounds:-
(i) Where it is not framed and presented in the manner prescribed above.
(ii) Where the applicant is not an indigent person.
(iii) Where he has within 2 months next before the presentation of the application disposed
of any property fraudulently or in order to be able to apply for permission to sue as an
indigent person :-
Provided that no application shall be rejected if even after the value of the property
disposed of by the applicant is taken into account, the applicant would be entitled to sue as
an indigent person.
(iv) Where his allegations do not show a cause of action.
(v) Where he has entered into any agreement with reference to the subject-matter of the
proposed suit under which any other person has obtained an interest in such subject-
matter.
(vi) Where the allegations made by the applicant in the application show that the suit would
be barred by any law for time being in force.
(vii) When any other person has entered into an agreement with him to finance the
litigation.
Rule 6 of Order 33 then says : Where the application is not rejected, the court shall fix a
date for receiving evidence in proof or disproof of applicant's indigency. Rule 7 says that on
the day so fixed the court shall examine the witnesses (if any) produced by either side and it
shall also hear the arguments of parties and then either allow or refuse to allow the
applicant to sue as an indigent person.
Rule 8 says where the application is granted, it shall be numbered and registered and shall
be deemed to be a plaint in the suit and the suit shall proceed in ordinary manner, except
that the plaintiff shall not be liable to pay any court fees or process fees. Where the court
rejects the application to sue as an indigent person, order of refusal bars a subsequent
similar application, but the applicant may sue in the ordinary manner provided he pays the
costs incurred by the government or opposite party in opposing such application.

Q. 73 Under what circumstances can a court order arrest before

judgment ?
Ans. Order 38 Rules 1 to 4 of the Code of Civil Procedure deal with arrest before judgment.
Rule 1 of Order 38 of the Code of Civil Procedure provides that where at any stage of a suit,
other than a suit of the nature of referred to in section 16, clauses (a) to (d), the court is
satisfied by affidavit or otherwise -
(a) that the defendant, with intent to delay the plaintiff or to avoid any process of the court or
to obstruct or delay the execution of any decree that may be passed against him.-
(i) has absconded or left the local limits of the jurisdiction of the court, or
(ii) is about to abscond or leave the local limits of the jurisdiction of the court, or
(iii) has disposed of or removed from the local limits of the jurisdiction of the court his
property or any part thereof, or
(b) that the defendant is about to leave India under circumstances affording reasonable
probability that the plaintiff will or may thereby be obstructed or delayed in the execution of
any decree that may be passed against the defendant in the suit,
the court may issue a warrant to arrest the defendant and bring him before the court to
show cause why he should not furnish security for his appearance :
Provided that the defendant shall not be arrested if he pays to the officer entrusted with the
execution of the warrant any sum specified in the warrant as sufficient to satisfy the
plaintiff's claim ; and such sum shall be held in deposit by the court until the suit is disposed
of or until further order of the court.
Where the defendant fails to show such cause the court shall order him either to deposit in
court money or other property sufficient to answer the claim against him, or to furnish
security for his appearance at any time when called upon while the suit is pending, and until
satisfaction of any decree that may be passed against him in the suit, or make such order
as it thinks fit in regard to the sum which may have been paid by the defendant under the
proviso to the last proceeding rule. (Order Rule 2 C.P.C.)
Rules 3 and 4 of Order 38 of the Code of Civil Procedure deal with the procedure where the
surety applies for being discharged and the defendants fail to furnish security or find fresh
surety. Sub-rule (3) lays down that a surety for the appearance of a defendant may at any
time apply to the court in which he became such surety to be discharged from the obligation
and on such application being made, the court shall summon the defendant to appear or, if
it thinks fit, may issue a warrant for his arrest in the first instance. On the appearance of the
defendant in pursuance of the summons or warrant or, on his voluntary surrender, the court
shall direct the surety to be discharged from his obligation, and shall call upon the
defendant to find fresh security.

Q. 74 Under what circumstances may a court order attachment

before judgment ?

Ans. Attachment before judgment - According to Rule 5 of Order 38, where, at any stage
of a suit the court is satisfied, by affidavit or otherwise, that the defendant with intent to
obstruct or delay the execution of any decree that may be passed against him -
(a) is about to dispose of the whole or party of his property, or
(b) is about to remove the whole or any part of his property from the local limits of the
jurisdiction of the court,
the court may direct the defendant either to furnish security in such sum as may be
specified in the order, to produce and place at the disposal of the court, when required, the
said property of the value of the same or such portion thereof as may be sufficient to satisfy
the decree, or to appear and show cause why he should not furnish security. (Order 38,
Rule 5(1)).
The plaintiff shall unless the court otherwise direct specify the property required to be
attached and the estimated value thereof. (Order 38, Rule 5(2)).
The court can also order conditional attachment of whole or part of the property.

Q. 75 What do you understand by "Temporary Injunction" ? What is

its scope ? When can the court grant temporary injunction ?

Ans. TEMPORARY INJUNCTION Temporary injunction is an order by which a party to suit

is required to do or to refrain from doing a particular act until the suit is disposed or until
further order of the court. It is in the nature of an interim order passed by the court. Order 39
of Code of Civil Procedure deals with "Temporary Injunction" Rules 1 and 2 of Order 39 of
Code of Civil Procedure are relevant which read as under :-
Rule 1. Cases in which temporary injunction may be granted - Where in any suit it is
proved by affidavit or otherwise -
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated
by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends to, remove or dispose of his property with a view
to defrauding his creditors,
(c) that the defendants threatens to dispossess the plaintiff or otherwise cause injury to him
in relation to disputed property, the court may by order, grant a temporary injunction to
restrain such act, until the disposal of the suit or until further orders.
Rule 2. Injunction to restrain repetition or continuance of breach - In any suit for
restraining the defendant from committing a breach of contract or other injury of any kind,
whether compensation is claimed in the suit or not, the plaintiff may, at any time after the
commencement of the suit, and either before or after judgement, apply to the Court for a
temporary injunction to restrain the defendant from committing the breach of contract or
injury complained of, or any breach of contract or injury of a like kind arising out of the same
contract or relating to the same property or right.
Scope - The power to grant temporary injunction is discretionary and the discretion has to
be exercised judicially. The grant of temporary injunction pending the suit of permanent
injunction is a very serious matter as it affects the rights of the person in possession of
property and restricts him from using the same at his disposal just because a suit has been
instituted in this respect. It is thus too serious a matter to be given a casual or routine
treatment.
It may be noted that application of temporary injunction is instituted only where regular suit
for permanent injunction is pending before the same court with whom the application for
temporary injunction has been instituted. Temporary injunction cannot be granted unless it
appears that there are chances of success of the basic suit of permanent injunction. Where
a permanent injunction cannot be given, generally no temporary injunction is allowed. Thus,
grant of an ad interim injunction is an `extraordinary' thing.
Guiding principles
Before granting of the temporary injunction, the following conditions are required to be
satisfied, namely :-
(i) prima facie the case is in favour of the plaintiff and against the defendant;
(ii) irreparable injury is likely to be caused to the plaintiff which cannot be compensated for
in terms of money;
(iii) balance of convenience lies in favour of the plaintiff and against the defendant;

Q. 76 A constructed a house for B under an agreement. B revoked

the agreement complaining that the work was incomplete, shoddy
and grossly delayed. A filed suit for wrongful termination of contract
and for recovery of Rs. 50 lacs allegedly outstanding for the work
done. B also filed suit for recovery of Rs. 12 lacs allegedly overpaid
and for permanent injunction. He filed an application for grant of ad-
interim injunction under O. 39, Rules 1 and 2 CPC for restraining A
from entering upon it. A resisting it contended that the construction
is complete and it was wrongful on the part of B to revoke the
agreement, that a huge sum is outstanding for the work done and he
has a lien over the building, his licence cannot be revoked till his
dues are paid and that grant of temporary injunction will amount to
decreeing the suit itself. Decide B's ad-interim injunction application.

Ans. Temporary injunction is an order by which a party to an action is required to do or

refrain from doing a particular thing until the suit is disposed of or until further orders of
court. Temporary injunction is interim in nature granted on an interlocutory application of
plaintiff. The granting of temporary injunction is a matter of discretion of court, to be
exercised judicially according well settled principles.
Rule 1 of Order 39 of Code provide that where in any suit it is proved by Affidavit or
otherwise:-
(a) Property in dispute in a suit is in danger of being wasted, damaged or alienated by any
party to suit or wrongfully sold in execution of a decree.
(b) Defendant threatens or intends to remove or dispose of his property with a view to
defrauding his creditors.
(c) Defendant threatens to dispossess the plaintiff or otherwise cause injuries to plaintiff in
relation to property in dispute in suit.
Court may by order grant a temporary injunction to restrain such act or to make such order
for the purpose of staying or preventing the wasting, damaging, alienation, sale or removal
etc. or dispossession of plaintiff or otherwise causing injury to plaintiff in relation to property
in dispute; as court think fit until the disposal of suit or further Orders.
In Dorab Cawas Ji v. Coomi Sorah, AIR 1990 SC 867, it was observed : "Object of
making an order regarding interim relief is to evolve a workable formula to the extent called
for by demands of situation keeping in mind the pros and cons of matter and striking a
delicate balance between two conflicting interests i.e. injuries and prejudice likely to be
caused to plaintiff if relief is refused and injury and prejudice likely to be caused to
defendant if the relief is granted. Underlying object of granting temporary injunction is to
maintain and preserve status quo at the time of institution of proceedings and to prevent
any change in it until the final determination of suit. "It was also observed - "The power to
grant a temporary injunction is in discretion of court and before granting the injunction the
court must be satisfied about following aspects:-
(i) First, applicant must make out a prima facie case in support of right claimed by him.
Court must be satisfied that there is a bona fide dispute raised by applicant and there is
probability of the applicant being entitled to relief claimed by him. So existence of prima
facie right and infraction of such right is condition precedent to grant a temporary injunction.
(ii) It is necessary to prevent irreparable or serious injury which normally cannot be
compensated in terms of money.
(iii) The balance of convenience is in favour of one seeking such relief.
Being essentially an equitable relief the grant or refusal of temporary injunction shall
ultimately vest in the sound judicial discretion of the court to be exercised in the light of the
facts and circumstances in each case.
In United State of America v. Master Builders, 1991 DLT 719 , it was observed: "If the
owner in building contractor terminates the contract and revokes the licence, the contractor
cannot seek relief to be authorised to continue the work under contract and court will not
that way indirectly grant specific performance of agreement. The owner cannot be forced to
continue to employ a contract with whom he is at logger heads. Similarly a contractor
cannot be forced to work for owner whose contract has been terminated even though
wrongfully.
As regards the plea of lien, it was observed "term" "lien" in its ordinary sense means the
right by law to keep possession of something belonging to a person in debt until that debt
has been paid. Lien cannot give any right, interest or title in the immovable property in
possession of person claiming lien."
In view of above discussion the plaintiff `B' is entitled to an ad-interim injunction directing A
to remove himself from property and further not to resist or obstruct the entry of B plaintiff,
thereto. Facts of present case, have been drawn from case Master Builders v. United
States of America 1991 DLT 719.

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.
Ans. 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.
In Krishan Kumar v. Grindlays Bank AIR 1991 SC 899, it was observed, following
principles must be borne in mind before a receiver is appointed by court:
(a) The appointment of receiver is a discretionary power of court.
(b) The object of appointment of receiver is the preservation of property in dispute pending
judicial determination of rights of parties to it.
(c) A receiver should not be appointed unless the plaintiff prima facie proves that he has
very excellent chance of succeeding in the suit.
(d) Since appointment of receiver deprives the opposite party the possession of property
before final judgment is pronounced , it should only be granted for prevention of menifest
injury or wrong.
In 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.

Q. 78 (a) Can a court appoint a Receiver in a case even without an

application from the party concerned ? What is the duration of the
appointment of a Receiver ?

(b) Can a Receiver be appointed in the following cases :

(i) in execution of a decree in respect of a compulsory deposit in the

Provident Fund due to the judgment-debtor;

(ii) in a suit for enforcement of simple mortgage on the application

of the mortgagee.
Ans. (a) Appointment without application. According to the provision of Order 40, Rule 1
of the Code of the Civil Procedure, a court can appoint a receiver in a case even without an
application from the party concerned if it is satisfied that it would be just and conveninent to
do so. According to those provisions, it is not necessary that the appointment should be
made only when the application is made.
Duration No provision has been made in the Code of the Civil Procedure regarding the
duration of appointment of Receiver. The Supreme Court has summarised the law on this
point in Hira Lal Patni v. Loon Karan Sethiya, AIR 1962 SC 21, has observed :-
(i) If a receiver is appointed in a suit until judgment, the appointment is brought to an end by
the judgment;
(ii) if a receiver is appointed in a suit without his tenure being expressly defined, he will
continue to be receiver till he is dis-charged;
(iii) but after the final disposal of the suit as between the parties to the litigation, the
Receiver's functions are terminated, he would still be answerable to the Court as its officer
till he is finally discharged.
(iv) the court has ample power to continue the Receiver even after the final decree if the
exigencies of the case so required;
Ans. (b)(i) A receiver cannot be appointed in execution of a decree in respect of a
compulsory deposit in a Provident Fund to the judgment-debtor as held by our Hon'ble
Supreme Court in Union of India v. Heera Devi and another, AIR 1952 SC 765. In this
case the decree holder, a lady, had obtained a money- decree against one Ram Grahit
Singh, a retired Head clerk in the dead letter office. In 1949, a Receiver was appointed for
collecting the monies standing to the credit of the judgment-debator in the Provident Fund
with the postal authorities. The Union of India intervened for setting aside the order of
appointment of Receiver and the Hon'ble Supreme Court allowing the appeal of Union of
India held that no Receiver can be appointed and such a deposit cannot be assigned or
charged and is not liable to any attachment.
(ii) It has been held in several cases that a Receiver can be appointed even where the
mortgage is a simple mortgage but the Hon'ble High Courts of Allahabad and Patna have
taken a contrary view. The view in Charan Nandi Chaudhry v. Rajnit Prasad, AIR 1932
Patna 360 appears to be correct in view of sub-rule (2) of Rule 1 of Order 40 of the Code of
Civil Procedure which lays down that nothing in this rule shall authorise the court to remove.
In the case of simple mortgage the plaintiff gets a decree for sale and he has no present
right to be in possession of the property and, therefore the defendant's possession cannot
be taken away by the appointment of the Receiver.

Q. 79 What are the powers of a Civil Court in regard to the

appointmet of a Commissioner ? Has a court inherent powers under
section 151 Cr.P.C. to appoint a Commissioner ?

Ans. Appointment of Commissioner Sections 75 to 78 Order 26 of the Code of Civil

Procedure lays down the provisions relating to commissions. According to the provisions of
sections 75 and 76 of the Code, the court may issue commission in the following cases to
any person or to Court other than a High Court :
(i) for examination of witness
(ii) for local investigation;
(iii) to examine accounts;
(iv) to make a partition;
(v) to hold a scientific, technical or expert investigation.
(vi) to conduct sale of properties which is subject to speedy and natural decay and which is
in the custody of the Court pending the determination of the suit;
(vii) to perform any ministerial act;
Order 26 Rule 1 of the Code of Civil Procedure deals with the cases in which the Court may
issue commission to examine witnesses. It provides that any Court may in any suit issue a
commission for the examination on interrogatories or otherwise of any person resident
within the local limits of its jurisdiction who is exempted under this Code from attending the
Court or who is from sickness or infirmity unable to attend it :
Provided that a commission for examination on interrogatories shall not be issued unless
the Court, for reasons to be recorded, thinks it necessary so to do.
Rule 4 of the Order XXVI of the Code of Civil Procedure further lays down that any Court
may in any suit issue a commission for the examination on interrogatories or otherwise of -
(a) any person resident beyond the local limits of its jurisdiction;
(b) any person who is about to leave such limits before the date on which he is required to
be examined in court; and
(c) any person in the service of the Government who cannot, in the opinion of the court,
attend without detriment to the public service:
Provided that where, under Rule 19 of Order 16, a person cannot be ordered to attend a
court in person, a commission shall be issued for his examination if his evidence is
considered necessary in the interests of justice:
Provided further that a commission for examination of such person on interrogatories shall
not be issued unless the Court, for reasons to be recorded, thinks, it necessary so to do.
Rule 9 of Order 26 of the Code of Civil Procedure deals with the commission to make local
investigation. It provides that in any suit in which the court deems a local investigation to be
requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining
the market value of any property, or the amount of any mesne profits of damages of annual
net profits, the Court may issue a commission to such person as it thinks fit directing him to
make such investigation and to report thereon to the Court.
Rule 10-A of Order 26 of the Code of Civil Procedure deals with the commission for
scientific investigation and Rule 10-B of that Order deals with the commission for
performance of a ministerial act. Rule 10-A provides that where any question arising in a
suit involves any scientific investigation which cannot, in opinion of the court, be
conveniently conducted before to the court may, if it thinks it necessary or expedient in the
interests of justice so to do, issue a commission to such person as it thinks fit, directing him
to inquire into such question and report thereon the Court. Rule 10-B provides that where
any question arising in a suit involves the performance of any ministerial act which cannot,
in the opinion of the Court, be conveniently performed before the Court, the Court may, if,
for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of
justice so to do, issue a commission to such person as it thinks fit, directing him to perform
that ministerial act and report thereon to the Court.
Rule 11 of Order 26 of the Code of Civil Procedure deals with the commission to examine or
adjust and its Rule 13 deals with the commission to make partition of immovable property.
Appointment of Commissioner under inherent powers :
A Court has no inherent powers under section 151 of the Code of Civil Procedure to appoint
a Commissioner because inherent powers are not over substantive rights. Our Hon'ble
Supreme Court has held in Padam Sen v. State of U.P., AIR 1961 SC 218, that a Court
has no inherent powers under section 151 C.P.C. to appoint a Commissioner to seize
account books in the possession of the plaintiff upon an application by the defendant that he
has apprehension that they would be tampered with. It was observed by the Hon'ble
Supreme Court that powers saved by section 151 C.P.C. are not powers over substantive
rights which a litigant possesses. A party has full right over his account books and a Court
can not seize them forcibly. It can summon them and, if not produced, it can penalise the
party and draw adverse presumption against him.

Q. 80 "Unless a right of appeal is clearly given by statute, it does not

exist" -- Comment Can an appellate court reverse a decree on the
ground of misjoinder of parties ?

Ans. Right of appeal is not a natural or inherent right attaching to litigation. Such a right is
given by the statute or by the Rules having the force of statute.
Section 96 of the Code of Civil Procedure provides that
"Save as where otherwise expressly provided in body of this Code or by any other law for
the time being in force, an appeal shall lie from every decree passed by any court
exercising original jurisdiction to the Court authorised to hear appeals form the decisions of
such court. An appeal may lie from an original decree passed ex-parte. The following are
the exceptions:-
1. No appeal shall lie from a decree passed by the Court with the consent of parties.
2. No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognisiable by Courts of Small Causes, when the amount or value of the subject-matter of
the original suit does not exceed three thousand rupees.
Note : - In view of C.P.C. (Amendment) Act, 1999 in sub- Section (4) of Section 96, now in
place of words "three thousand rupees" the words "ten thousand rupees" have been
substituted.
3. Where any party, aggrieved by a preliminary decree passed after the commencement of
this Code does not appeal from such decree.
Kinds of Appeal Appeals can be divided into following four classes according to the
provisions of the Code of Civil Procedure:
(i) Appeals from original decree. (Sections 96 to 99 and Order 41 C.P.C.)
(ii) Second appeals. (Sections 100 to 103 and Order 42 C.P.C.)
(iii) Appeals from Orders. (Section 104 to 106 and Order 43 C.P.C.).
(iv) Appeals to the Supreme Court. (Section s 109 and Order 45 C.P.C.).
Appeals from Original Decree Section 96 provides that save where otherwise expressly
provided in the body of this Code or by any other law for the time being in force, an appeal
shall lie from every decree passed by any court exercising original jurisdiction to the court
authorized to hear appeals from the decisions of such court. An appeal may lie from original
decree passed exparte but no appeal shall lie from a decree passed by the court with the
consent of the parties. Sub-section (4) of Section 96 C.P.C. which has been added by
Amendment Act No.104 of 1976, also lays down that no appeal shall lie, except on a
question of law, from a decree in any suit of the nature cognizable by courts of small
causes, when the amount or value of the subject-matter of the original suit does not exceed
ten thousands rupees.
Section 97 of the Code of Civil Procedure deals with appeal from final decree where no
appeal is preferred against preliminary decree, and Section 98 provides that where an
appeal is heard by a bench of two or more judges, the appeal shall be decided in
accordance with the opinion of such judges or of the majority (if any) of such judges.
Second Appeals Section 100 of the Code of Civil Procedure lays down that:
(i) Save as otherwise expressly provided in the body of this Code or by any other law for the
time being in force, an appeal shall lie to the High Court from every decree passed in
appeal by any court subordinate to the High Court, if the High Court is satisfied that the
case involves a substantial question of law.
(ii) An appeal may lie under this Section from an appeal (1) decree passed exparte.
(iii) In an appeal under this Section, the memorandum of an appeal shall precisely state the
substantial question of law in the appeal.
(iv) Where the High Court is satisfied that a substantial question of law is involved in any
case, it shall formulate that question.
(v) The appeal shall be heard on the question so formulated and the respondent shall, at
the hearing of the appeal, be allowed to argue that the case does not involve such question.
Provided that nothing in this Sub-section shall be deemed to take away or abridge the
power of the court to hear, for reasons to be recorded, the appeal on any other substantial
question of law.
Section 101 of C.P.C. lays down that no second appeal shall lie except on the ground
stated above and Sections 100-A and 102 C.P.C. provide that in certain cases no second
appeal lies. Order 42 deals with procedure to be adopted in second appeal.
Civil Procedure Code (Amendment) Act, 2002 has inserted Section 100- A which
provides.
"No Further Appeal in Certain Cases" - Notwithstanding anything contained in any letters
patent for any High Court or in any other instrument having the force of law or in any other
law for the time being in force where any appeal from an original or appellate decree or
order is heard or decided by a single judge of High Court, no further appeal shall lie from
the judgment and decree of such single Judge :
By single Judge of High Court, no further appeal shall lie from judgment, decision or order
of such single Judge." Section 102 of Code has also been substituted by Amendment Act
2002 which says :-
Section 102 "No second appeal shall lie from any decree, when amount or value of subject
matter of original suit does not exceed 25000/- rupees".
Recently Three Judges Bech of Supreme Court in Santosh Hazari v. Purushottam Tiwari
(By [Link]), AIR 2001 SC 965, observed that :
" Section 100 of Code as amended in 1976 restricts the Jurisdiction of High Court to Hear
the Second Appeal only on `Substantial Question of Law involved in the case'. An obligation
is cast upon the appellant to precisely state in Memorandum of appeal the substantial
question of law involved in appeal for which appellant proposes to urge before High Court.
High Court must be satisfied that a substantial question of law is involved in the case and
such question has to be formulated by High Court. At the hearing of appeal, the scope of
hearing is circumscribed by the question so formulated by High Court. Respondant is at
liberty to show that question formulated by High Court is not involved in the case. However
High Court's power to hear the appeal on any other substantial question of law not earlier
formulated by it, is not taken away subject to twin conditions being satisfied : (a) the High
Court feels that the case involves such question and (b) High Court records reasons for
such satisfaction. The phrase " Substantial Question of Law" means question of law
which must be debateable, not previously settled by law of land or binding precedent and
must have material bearing on the decision of the case, if answered either way, in so far as
the rights of parties before it are concerned."
Appeals from Orders Section 104 and Order 43 of the Code of Civil Procedure deals with
such orders from which appeal lies. According to it, an appeal shall lie from the following
Orders, and save as otherwise expressly provided in the body of the Code or by any law for
the time being in force, and from no other orders :
(i) An order under Section 35 ;
(ii) An order under Section 91 or 92 refusing leave to institute a suit of the nature referred to
in Sections 91 and 92, as the case may be
(iii) An order under any provision of Code imposing a fine or directing the arrest or detention
in the civil prison of any person except where such arrest or detention is in execution of a
decree.
(iv) Any order made under Rules from which an appeal is expressly allowed.
Provided that no appeal lies against any order under Section 35-A save on the ground that
no Order or an order for payment of a less amount ought to have been made.
APPEAL TO SUPREME COURT Section 109 of Code of Civil Procedure lays down, that
subject to provisions in Chapters IV and V of the Constitution and such Rules as may from
time to time be made by the Supreme Court regarding appeals from the courts of India and
to provisions hereinafter contained, an appeal shall lies to Supreme Court from any
judgement, decree or final Order in a civil proceeding of High Court, if the High Court
certifies:-
(i) That the case involves a substantial question of law of general importance and
(ii) That the opinion of the High Court on said question needs to be decided by Supreme
Court.
Order 45 C.P.C deals with procedure in appeal before Supreme Court.
Whether Appellate Court can Reverse a Decree on Ground of Mis Joinder of
Parties Section 99 of the Code provides:
"No decree to be reversed or modified for error or irregularity not affecting merits or
jurisdiction. - No decree shall be reversed or substantially varied, nor shall any case be
remanded, in appeal on account of any misjoinder [or non-joinder] of parties or causes of
action or any error, defect or irregularity in any proceedings in the suit, not affecting the
merits of the case or the jurisdiction of the Court: provided that nothing in this Section
shall apply to non-joinder of a necessary party." Thus, the appellate Court shall not
reverse a decree on the ground of mis- joinder of parties unless it has affected the merits of
the case or the jurisdiction of the Court or there has been a failure of justice.

Q. 81 State the circumstances in which a person aggrieved by the

judgment of the Court may apply for review of its judgment?
Ans. In simple words Review means to look once again. In Legal Parlance Review is a
judicial re-examination of the case by same court. Section 114 of Code of Civil Procedure
gives a substantive right of review and order 47 provides the procedure, therefore Section
114 of Code says any person considering aggrieved:
(a) By a decree or order from which an appeal is allowed but from which no appeal has
been preferred;
(b) By decree or order from which no appeal is allowed;
(c) By a decision on reference by court of small cause.
may apply for Review of Judgement to court which passed the decree or made the order
and the Court may make such order thereon as it think fit.
GROUNDS
Order 47 Rule 1 of Code says that Application for Review of Judgement may be made on
any of the following grounds:-
(a) Discovery of new and important matter or evidence, which after the exercise of due
diligence was not within his knowledge or could not be produced at the time when the
decree was passed or made.
(b) Mistake or error, apparent on the face of record.
(c) Any other sufficient reason.
Explanation : The fact that the decision on a question of law on which judgment of the
court is based has been reversed or modified by subsequent decision of a superior court in
any other case shall not be a ground for the review of such judgement."
Power of Review should not however be confused with appellate power which enables the
court to correct all errors committed by subordinate court. In A.T. Sharma v. A.P. Sharma
AIR 1979 SC 104 it was observed:
"As a general rule where a litigant obtained a judgment in a court, he is by law entitled, not
to be deprived of fruits thereof without solid grounds. It is very easy for party who has lost
the case to see the weak points in case and try to fill in the gaps by procuring evidence
which will strengthen that weak part of his case. Object of Review is neither to enable the
Court to write a second judgment nor to give second inning to a party who has lost the
battle because of his own negligence."

Q. 82 Can Revision be filed against an Order of court disallowing an

important question put to a witness ?

Ans. Section 115 of the Code of Civil Procedure deals with the revisional jurisdiction of the
High Court. It provides that the High Court may call for the record of any case which has
been decided by any court subordinate to such court and in which no appeal lies thereto,
and if such subordinate court appears: (a) to have exercised jurisdiction not vested in it by
law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the
exercise of its jurisdiction illegally or with material irregularity, the High Court may make
such order in the case as it thinks fit. Provided that the High Court shall not, under this
Section , vary or reverse any order made, or any order deciding an issue, in the course of a
suit or other proceeding except where:
(a) the order, if it had been made in favour of the party applying for revision, would have
finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable
injury to the party against whom it was made.
Sub-section (2) of Section 115 C.P.C. further lays down that the High Court shall not under
this Section, vary or reverse any decree or order against which an appeal lies either to the
High Court or to any court subordinate thereto.
Explanation - In this Section, the expression "any case which has been decided" includes
any order made, or any order deciding an issue, in the course of a suit or other proceeding.
Civil Procedure Code (Amendment) Act, 1999has substituted the proviso to sub-section
(1) of Section 115 of Code by following words :-
"Provided that High court shall not, under this section vary or reverse any order made or
any order deciding an issue, in course of a suit or other proceedings except where the
order, if it had been made in favour of party applying for revision, would have finally
disposed of the suit or other proceedings."
Amendment Act, 1999 has also inserted sub-section (3) to Section 115 of Civil Procedure
Code, which provides as under:-
"A revision shall not operate as a stay of suit or other proceeding before the court, except
where such suit or other proceeding is stayed by the High Court.
Supreme Court in Baldev Das v. Filmistan Distributors, AIR 1970 SC 406 has held that
case may be said to have been decided if the court adjudicates for the purpose of the suit
some right or obligation of parties in controversy.
Explanation added to Section 115 of Code vide Amendment Act 1976 makes it clear that
expression "Case decided" includes any order made or any order deciding an issue, in the
course of a suit or other proceeding.
In view of above discussion it is clear that order allowing or disallowing a question to a
witness is not case decided. Therefore such an order can not be challenged in Revision.
In Prem Bakshi and other v. Dharam Dev, AIR 2002 SC 559 application for amendment
of plaint was filled to bring to notice of court the subsequent facts application allowed by
Trial Court. High Court set aside that order in revision. When matter went in Supreme Court,
while relying upon judgment of Maj. S.S. Khanna's case AIR 1964 SC 497, it was observed
-
"The proviso to sub-section (1) of Section 115 puts a restriction on power of High Court in
as much as it shall not under section 115 C.P.C. vary or reverse any order made or any
order deciding a issue, in course of a suit or other proceedings except where (i) the order
made would have finally disposed of the suit or other proceedings or (ii) said order would
occasion failure of justice or cause irreparable injury to party, against whom it is made...
Order in question by which the amendment was allowed could not be said to have finally
disposed of the case.... It is almost inconceivable how mere amendment of pleadings could
possibly cause failure of justice or irreparable injury to any party. Thus order of High Court
was held to be outside the purview of revisional jurisdiction.

Q. 83 Distinguish between Appeal Review and Reference and

Revision

Ans. (i) Revision and Appeal - There are following main distinctions between revision and
appeal:
(a) An appeal lies to a superior court from every original decree unless expressly barred,
while a revision lies only in the cases mentioned in Section 115 C.P.C., and to the High
Court only.
(b) The revisional jurisdiction can also be exercised suo moto, while appellate jurisdiction
cannot be exercised suo moto.
(c) The exercise of the revisional power is entirely discretionary and ordinarily High Court
does take a technical view so as to interfere in every case while right of appeal is a
substantive right given by statute, and every appeal is to be decided according to law.
(d) The High Court or the revisional court cannot, in exercise of its revisional powers, set
aside the findings of facts of subordinate courts but a court of appeal can do so.
(d) An appeal abates if the legal representative of the deceased are not brought on record
within the time allowed by law while a revision may not abate and the High Court has a right
to bring the proper parties before the court at any time.
(ii) Revision and Review ; There are the following distinctions between revision and
review:
(a) The power of revision is exercised by the High Court and in some cases, by the District
Court, i.e., the superior court, while the power of review is exercised by the court which
passed the decree or order.
(b) The power of revision is conferred on the High Court only and in some cases in some
States, on the District Court also, but review can be made by any court which passed the
judgment or order.
(c) Revisional powers can be exercised only in cases in which no appeal lies, but review
can be made even when appeal lies to the Supreme Court.
(d) The grounds on which the powers of revision and review can be exercised are different.
The ground for revision relates to jurisdiction, i.e., want of jurisdiction, failure to exercise
jurisdiction vested in the court, or illegal or irregular exercise of the jurisdiction, while the
grounds for review are the discovery of new and important matter of evidence, some
apparent mistake or error on the face of the record or any other sufficient reason.
(d) No appeal lies from an order passed in the exercise of revisional jurisdiction while the
order following the review application is appealable.
(iii) Reference and Revision ; There are the following distinctions between reference and
revision:
(a) In reference, the case is referred to the High Court by a court subordinate to it as
provided in Section 113 of the Code of Civil Procedure, while the revision application is
moved by the party concerned or the revisional court can suomoto send for the case and
examine the record.
(b) The ground of reference, the entertainment of some reasonable doubt by the court trying
the suit, appeal or executing the decree in respect of a question of law or usage having the
force of law, while the ground for revision relates to jurisdiction, i.e., want of jurisdiction,
failure to exercise jurisdiction vested in the court or its irregular exercise.
(iv) Reference and Review ; There are the following distinctions in reference and review:-
(a) In reference, the subordinate court refers the case to the High Court under Section 113
of the Code of Civil Procedure, while in review an application is made by the aggrieved
party in the court which passed the order of judgement.
(b) The High Court only can decide matters on reference while the power of review is to be
exercised by the court which passed the decree or order, as the case may be.
(c) Reference is made during the pendency of the suit, appeal or execution proceedings,
while application for review is made to the court after a decree or order is passed.
(v) Reference and Appeal
(a) A right of appeal is a substantive right conferred by law while the power of reference is
vested in the court.
(b) Reference is always made to the High Court, while the appeal is preferred to a superior
court which need not necessarily be a High Court.
(c) The grounds of appeal are wider than the grounds of reference.
(d) Reference is made in a pending suit, appeal or execution proceedings in order to enable
a court to arrive at a correct conclusion, while an appeal is preferred after a decree or
appealable order is passed by the court.
(vi) Review and Appeal ; There are the following main distinctions between review and
appeal:
(a) An application for review lies to the same court while an appeal lies to a superior court.
(b) The grounds of review are different from the grounds of appeal. The grounds of appeal
are wider than the grounds of review.
(c) There is no second review provided in the Code of Civil Procedure, while there are
provisions for second appeal in certain cases.
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