CPC

Order II, Rules 1-2, 4-5:

Relief is the legal remedy for wrong. According to Rule 1 of Order 2 every suit shall as
far as practicable be framed so as to afford ground for final decision upon the subjects
in dispute and to prevent further litigation concerning them.

Rule 2 provides for the following conditions to be complied with:

(1) 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.

(2) ...Where 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.

(3)... A person entitled to more than one relief in respect of the same cause of action may sue for
all or 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...

· Object of this Rule:

This rule is based on the cardinal principle that a defendant should not be vexed twice for the
same cause. The object of this salutary rule is doubtless to prevent multiplicity of suits.

· Conditions for the application of this Rule:

i. The second suit must be in respect of the same cause of action as that on which the previous
suit was based.

ii. In respect of that cause of action, the plaintiff was entitled to more than one relief.

iii. Being thus entitled to more than one relief, the plaintiff without the leave of the Court
omitted to sue for the relief for which the second suit has been filed. Such leave need not be
express and it may be inferred from the circumstances of the case. It can be obtained at any
stage. The question whether leave should be granted, depends on the circumstances of each
case.
· Illustrations:

i. A lets a house to B at a yearly rent of ₹ 1,200. The rent for the whole of the years 1905, 1906
and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not
afterwards sue B for the rent due for 1905 or 1907.

ii. A advances loan of ₹ 2200 to B. To bring the suit within the jurisdiction of Court X, A sues B
for ₹ 2000. A cannot afterwards sue for ₹ 200.

Rules 4 and 5 provide for the joinder of claims. Rule 4 states that no cause of action shall, unless
with the leave of the Court, be joined with a suit for the recovery of immovable property,
except-

a) claims for mesne profit or arrear of rent in respect of the property claimed or any part thereof;

b) claims for damages for breach of any contract under which the property or any part thereof is
held; and

c) claims in which the relief sought is based on the same cause of action.

Rule 5 provides that no claim by or against an executor, administrator or heirs, as such, shall be
joined with claims by or against him personally, unless the last mentioned claims are alleged to
arise with reference to the estate in respect of which the plaintiff or the defendant sues or is
sued as executor, administrator or heirs or are such as he was entitled to or liable for jointly with
the deceased person whom he represents

[10:31 AM] Dr. Ashu Maharshi

Cause of action: Order 2, Rules 3, 6 and 7:

Cause of action may be defined as ‘a bundle of essential facts, which is necessary for the
plaintiff to prove before he can succeed.’ A cause of action is the foundation of a suit. It
must be antecedent to the institution of a suit and on the basis of it the suit must have
been filed. Every fact constituting the cause of action should be set out in clear terms. A
cause of action must include some act done by the defendant since in the absence of
such an act no cause of action can possibly accrue. If a plaint does not disclose a cause
of action, the Court will reject that plaint.

· Joinder of Causes of Action:

Order 2, Rule 3 provides for the joinder of cause of action. According to this Rule, 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
causes of action in which they are jointly interested against the same defendant(s), may
jointly unite such causes of action in the same suit.

[10:33 AM] Dr. Ashu Maharshi

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.

[10:35 AM] Dr. Ashu Maharshi

Objections as to misjoinder:

All objections on the ground of misjoinder of causes of action shall be taken at the
earliest possible opportunity and, in all cases where issues are settled, at or before such
settlement unless the ground of objection has subsequently arisen, and any such
objection not so taken shall be deemed to have been waived.

ORDER 39 – TEMPORARY INJUCTIONS AND INTERLOCUTORY ORDERS

[12:22 PM] Dr. Ashu Maharshi

Temporary Injunctions and Interlocutory orders=Order 39/40

[12:25 PM] Dr. Ashu Maharshi

Latin maxim “Actus curiae neminem gravabit”

[12:26 PM] Dr. Ashu Maharshi

“an act of the court shall prejudice no one”

[12:27 PM] Dr. Ashu Maharshi

Section 94(e) of the Civil Procedure Code

[12:27 PM] Dr. Ashu Maharshi

‘In order to prevent the ends of justice from being, defeated the Court may, if it is so
prescribed,- (e) make such other interlocutory orders as may appear to the Court to be just
and convenient.

[12:29 PM] Dr. Ashu Maharshi

Interim orders are necessary to deal with and protect rights of the parties in the
interval between the commencement of the proceedings and final adjudication.
They prevent abuse of process during the pendency of proceedings

[12:30 PM] Dr. Ashu Maharshi

Such interim orders may be summarized as follows:

Commissions: Order 26

Arrest before judgment: Order 38

Attachment before judgment: Order 38

Temporary injunctions: Order 39

Interlocutory orders: Order 39

Receiver: Order 40

Security for costs: Order 25

Payment in court: Order 24

[12:32 PM] Dr. Ashu Maharshi

It is a well settled principle of law that interim relief can always be granted in
the aid of and as ancillary to the main relief available to the party on final
determination of his right in a suit or any other proceeding. Therefore, the court
undoubtedly possesses the power to grant interim relief during the pendency of
the suit.

[12:33 PM] Dr. Ashu Maharshi

Injunction is stated in Order 39, Rule 1-5,

[12:36 PM] Dr. Ashu Maharshi

An injunction is a judicial process whereby a party is required to do, or to

refrain from doing, any particular act. It is a remedy in the form of an
order of the court addressed to a particular person that either prohibits
him from doing or continuing to do a particular act (prohibitory
injunction); or orders him to carry out a certain act (mandatory
injunction).

[12:37 PM] Dr. Ashu Maharshi

Temporary injunction restrains a party temporarily from doing the

specified act and can be granted only until the disposal of the suit or until
the further orders of the court. It is regulated by the provisions of Order
39 of the Code of Civil Procedure, 1908 and may be granted at any stage
of the suit. It remains in force till disposal of the suit or until it is revoked
and ad interim temporary injunction remains in force till disposal of the
petition for temporary injunction or until it is revoked .The provisions of
temporary injunction as well as ad interim temporary injunction is
contained in Rule 1 of Order 39 of the Civil Procedure Code.
 [12:38 PM] Dr. Ashu Maharshi
Case: State of Orissa vs. Madan Gopal 1952 AIR 12, 1952 SCR 28

[12:39 PM] Dr. Ashu Maharshi

Temporary injunction is mode of granting preventive relief by the court at

its discretion. A temporary injunction is also known as interim injunction.

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[12:48 PM] Dr. Ashu Maharshi

The following principles are laid down for consideration by the court while
granting temporary injunction:

 Prima facie case

 Balance of convenience

 Irreparable injury.

[12:52 PM] Dr. Ashu Maharshi

The expression “prima facie” means at the first sight or on the first
appearance or on the face of it, or so far as it can be judged from the first
disclosure. Prima facie case means that evidence brought on record would
reasonably allow the conclusion that the plaintiff seeks. The prima
facie case would mean that a case which has proceeded upon sufficient
proof to that stage where it would support finding if evidence to contrary
is disregarded. The Supreme Court in Marin Burn Ltd. v. R.N. Banerjee
1958-I L.L.J. 247 held that ‘A prima facie case does not mean a case
proved to the hilt but a case which can be said to be established if the
evidence which is led in support of the same were believed. While
determining whether a prima facie case had been made out, the relevant
consideration is whether on the evidence led it was possible to arrive at
the conclusion in question and as to whether that was the only conclusion
which could be arrived at on that evidence
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In Gujarat Electricity Board, Gandhinagar v. Maheshkumar and Co.

Ahmedabad 1995(5) SCC 545 wherein it was held that “Prima facie case” means
that the Court should be satisfied that there is a serious question to be tried at
the hearing, and there is a probability of Plaintiff obtaining the relief at the
conclusion of the trial on the basis of the material placed before the Court.
“Prima facie case” is a substantial question raised bona fide which needs
investigation and a decision on merits. The Court, at the initial stage, cannot
insist upon a full proof case warranting an eventual decree. If a fair question is
raised for determination, it should be taken that a prima facie case is
established. The real thing to be seen is that the Plaintiff’s claim is not frivolous
or vexatious.’’

[12:54 PM] Dr. Ashu Maharshi

Uttara Bank vs. Macneill & Kilburn Ltd. 33 DLR

[12:54 PM] Dr. Ashu Maharshi

In Seema Arshad Zaheer & Ors Vs Municipal Corporation of Greater
Mumbai & Ors., (2006) 5 Scale 263, the Hon’ble Supreme Court has
indicated the salient features of prima facie case as under: “The discretion
of the court is exercised to grant a temporary injunction only when the
following requirements are made out by the plaintiff: (i) existence of
a prima facie case as pleaded, necessitating protection of the plaintiff’s
rights by issue of a temporary injunction; (ii) when the need for
protection of the plaintiff’s rights is compared with or weighed against the
need for protection of the defendant’s rights or likely infringement of the
defendant’s rights, the balance of convenience tilting in favour of the
plaintiff; and (iii) clear possibility of irreparable injury being caused to the
plaintiff if the temporary injunction is not granted. In addition, temporary
injunction being an equitable relief, the discretion to grant such relief will
be exercised only when the plaintiff’s conduct is free from blame and he
approaches the court with clean hands.”
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[1:00 PM] Dr. Ashu Maharshi

Balance of convenience:
It is where there is doubt as to the adequacy of the respective remedies
in damages available to either party or to both, that the question of
balance of convenience arises. The court should issue an injunction where
the balance of convenience is in favour of the plaintiff and not where the
balance is in favour of the opposite party. The meaning of “balance of
convenience” in favour of the plaintiff is that if an injunction is not
granted and the suit is ultimately decided in favour of the plaintiffs. The
inconvenience caused to the plaintiff would be granted than that which
would be caused to the defendants if an injunction is grated but the suit is
ultimately dismissed. Although it is called “balance of convenience”, it is
really the “balance of inconvenience”, and it is for the plaintiffs to show
that the inconvenience caused to them would be granted than that which
may be caused to the defendants. Should the inconvenience be equal, it
is the plaintiffs who suffer. In other words, the plaintiffs have to show
that the comparative mischief from the inconvenience which is likely to
arise from withholding the injunction will be greater than which is likely to
arise from granting it. In granting a temporary injunction the Court
should consider,

Firstly- The plaintiff makes out a prima facie case;

Secondly- That the plaintiff will suffer irreparable loss if the injunction
prayed for is not granted; and

Thirdly- The balance of convenience lies in favour of the plaintiff.

Case: MT. AymumNessa v. md. Obaidul haque 35 DLR temporary
injunction should be refused in the absence of the above mentioned three
principles. In the case of Orissa State Commercial Transport Corporation
Ltd. v. Satyanarayan Singh (1974) 40 Cut LT 336, observed: ‘Balance of
convenience’ means the comparative mischief or inconvenience to the
parties. The inconvenience to the plaintiff, if temporary injunction is
refused, would be balanced and compared with that to the defendant if it
is granted. If the scale of inconvenience leans to the side of the plaintiff,
then interlocutory injunction alone should be granted.

In Antaryami Dalabehera v. Bishnu Charan Dalabehera 2002 I OLR 531,

as this point, it was held that balance of convenience, which means,
comparative mischief for inconvenience to the parties. The inconvenience
to the petitioner if temporary Injunction is refused would be balanced and
compared with that of the opposite party, if it is granted.

In Bikash Chandra Deb v. Vijaya Minerals Pvt. Ltd 2005 (1) CHN 582 the
Hon’ble Calcutta High Court observed that issue of balance of
convenience, it is to be noted that the Court shall lean in favour of
introduction of the concept of balance of convenience, but does not mean
and imply that the balance would be on one side and not in favour of the
other. There must be proper balance between the parties and the balance
cannot be a one-sided affair.

Irreparable injury:
In Dalpat Kumar & Anr. v. Prahlad Singh & Ors. AIR 1993 SC 276, the
Supreme Court explained the scope of aforesaid material circumstances,
but observed as under: “The phrases `prima facie case’, `balance of
convenience’ and ` irreparable loss’ are not rhetoric phrases for
incantation, but words of width and elasticity, to meet myriad situations
presented by man’s ingenuity in given facts and circumstances, but
always is hedged with sound exercise of judicial discretion to meet the
ends of justice. The facts rest eloquent and speak for themselves. It is
well nigh impossible to find from facts prima facie case and balance of
convenience.”

In the case of Orissa State Commercial Transport Corporation Ltd. v.

Satyanarayan Singh(1974) 40 Cut LT 33, the court observed: ‘Irreparable
injury’ means such injury which cannot be adequately remedied by
damages. The remedy by damages would be inadequate if the
compensation ultimately payable to the plaintiff in case of success in the
 suit would not place him in the position in which he was before injunction
was refused.

[1:01 PM] Dr. Ashu Maharshi

Order 39 Rule 1 says that temporary injunction can be granted

when:

1. a) any property in dispute in a suit is in danger of being wasted ,

damaged or altered by any party to the suit , or wrongfully sold in
execution of a decree; or

2. b) the defendant threatens, or intends to remove or dispose of his

property with a view to defrauding his creditors;

3. c) the defendant threatens to dispossess the plaintiff or otherwise

cause injury to the plaintiff relating to any property in dispute in
the suit .

In such cases, the court may, by order, grant a temporary injunction to

restrain such act, or make such other order for the purpose of staying and
preventing the wasting, damaging, alienation, sale, removal or disposition
of the property or dispossession of the plaintiff, or otherwise causing
injury to the plaintiff in relation to property in dispute in the suit as the
court thinks fit, until the disposal of the suit or until further orders.

Who can apply for the appointment of the

receiver?
Generally, a plaintiff files the application for appointment of a receiver but
defendants can also file such application. A third party is not allowed to file the
application but if he is interested in the protection and preservation of the
property, he can also make an application after taking permission from the
court.

Who can be appointed as a receiver?

A person who is independent, impartial and totally disinterested should be
appointed as a receiver. Such a person should not have any stake in the
disputed property. Generally, parties to the suit are not appointed as receiver
by the court. But in extraordinary circumstances, a party to suit can be
appointed as receiver.

What is the process of appointment of a

receiver?
The process of appointment of a receiver is provided by the courts in their
respective court rules. The high court has the power to make rules for the
superintendence and control of the subordinate courts.

For instance,

In chapter XIX of the Delhi High Court (Original Side) rules, 1967, the following
process is provided:

1. Application for appointment shall be made in writing and shall be

supported by affidavit.

2. Receiver other than the official receiver has to give security.

3. The security is to be given to the satisfaction of the registrar.

4. He has to provide personal bonds with the number of surety required by

the registrar. The personal bond will be double the amount of annual
rental value of the property or the total value of the property which the
receiver is going to administer.

5. Within a week of appointment, the receiver will have to submit a report

providing the details regarding the property such as inventory of property
or books of account etc.

6. The registrar will give directions on where to invest the money received
by the receiver from the property. Generally, such money is submitted in
scheduled banks or government bonds.
What are the powers of the receiver?
Under order 40 rule 1(d) powers of the receiver are provided as following:

1. Collection of rents and profits arising out of the property.

2. Application and disposal of such rents and profits.

3. Execution of documents as the owner himself.

4. To institute and defend the suit.

Such powers as the court may deem fit.

Will a receiver be entitled to remuneration?

Receivers are entitled to remuneration as fixed by the court for the services
rendered by them. Also, a receiver has to be provided for the loss or expenses
incurred by him for maintaining the property.

Under order 40 rule (2), the court can fix the remuneration to be paid to the
receiver for the services provided by him. The court can pass a general or
specific order regarding the same.

For example, The Delhi high court has provided in Delhi High Court (original
side) rules,1967, the for remuneration of the receiver as follows:

Rents recovered, outstanding recovered, the value realised on the sale of

movable and immovable properties calculated on anyone estate:

(i) On First Rs. 10,000 : 5 %

(ii) Above Rs. 10,000 up to Rs. 20,000 : 3 %

(iii) Above Rs. 20,000 up to Rs. 50,000 : 2 %

(iv) Above Rs. 50,000 up to Rs. 1,00,000 : 1 %

(v) Above Rs. 1,00,000 : ½ %

Similarly, for taking custody of money, 1 %, for taking custody of Government
securities of stocks, shares, 1 % of the estimated value.

If no remuneration is specified for any work, such remuneration can be granted,

as the court may think reasonable, on the application of the receiver.

T. Krishnaswamy Chetty vs C. Thangavelu Chetty And Ors., AIR 1955

Mad 430.

Appointment of Receiver -Order 40

In civil litigation, a receiver plays an important role in assisting the court. The
Receiver is considered to be an officer of the court who helps the court to
protect and preserve the subject matter of suit till the time the court decides
the matter. Sometimes, the court thinks, it is in the best interest of both the
parties to appoint a receiver who will be responsible for the management of the
subject matter. The subject matter is generally a movable or immovable
property.

The Receiver is liable to take care of the property just as a prudent man will
take care of his own personal property. He should follow the directions of the
court or else his property can be attached by the court to recover the amount
which is due to him.

Who is a receiver under the civil procedure

code?
Under order 40 of CPC, The Receiver is an independent and impartial person
who is appointed by the court to administer/manage, that is, to protect and
preserve a disputed property involved in a suit.

For example, in a dispute between A and B for an immovable property, if the

court thinks that it is in the best interest of both the parties that possession
should be taken from B and given to an independent person, the court may
appoint a receiver who can manage the property till the time the suit is being
decided. Such a receiver appointed by the court would be responsible for the
maintenance of the property. He can collect the income accruing like rent or any
other profits and utilize it to maintain the property. After deducting the
expenses incurred in maintenance from the income received from the property,
the receiver will have to submit the remaining income, if any, in the court.

He is not representative of either of the parties in the action, is uniformly

regarded as an officer of the court working in the interest of neither plaintiff nor
defendant but for the common benefit of all the parties.

What is the purpose of the appointment of a

receiver?
When a party in possession of the disputed property exhausts the property or
causes irreparable damages to it, the whole object of the suit gets defeated
because the subject matter ceases to exist or its value gets affected. Therefore,
when the court is of the opinion that the property in dispute must not go to
either of the parties, pendente lite, the court appoints a receiver who is
entrusted with the protection and preservation of such property. It is a form of
interim protection which the court provides to the parties who makes the
application till the time the court adjudicates the matter.

What is the role of a receiver?

The Receiver is regarded as an officer of the court and is the extended arm and
hand of the court. He is entrusted with the responsibility to receive disputed
property or money given by the court and manage such property or money till
the time a decree is passed or the parties have compromised or any other
period as the court deems fit. The property or fund entrusted to the receiver is
considered to be custodia legis i.e. in the custody of the law. The Receiver has
no power other than those entrusted to him by the court while appointing him.

Who can appoint a receiver?

According to the civil procedure code, the court before which the proceedings
are pending can appoint a receiver if it appears just and convenient to the court
to appoint such receiver [section 51(d)]. It is within the discretionary power of
the court to appoint the receiver. For example, in a suit, the trial court can
appoint a receiver. Whereas, in appeal, the appellate court can appoint a
receiver.

However, the discretion is not absolute, arbitrary or unregulated. The

expression “just and convenient” does not mean the appointment is based on
the whims and wishes of the judge on any grounds which stand against equity.

How does the court decide whether to

appoint a receiver or not?
Court has to keep the following principles in mind before appointing a receiver:

1. Appointment of a receiver is a discretionary power.

2. It is a protective relief to the plaintiff. The object is to protect and

preserve the disputed property till the time the suit is pending in the
court.

3. A receiver should not be appointed unless the plaintiff shows prima facie
that he has a strong case against the defendant and it is more than likely
that he will succeed in the suit.

4. Appointment of a receiver is one of the hardest remedies as it deprives

the defendant of his right to possession before the final decree.
Therefore, the

5. court should not resort to it merely on the ground that it will do no harm.
There should be strong apprehension that there is a danger to the
property or the plaintiff will be in worse of a situation if the appointment
of a receiver is delayed.

6. The court should appoint a receiver only when there is a possibility of

wrong or injury. Also, if it is shown that the subject matter is not in the
possession of any of the parties and it is in the common interest of both
the parties to appoint a receiver for the protection and preservation of the
property.

7. The court should look at the conduct of the party who makes the
application for appointment of a receiver. The party should come to the
court with clean hands and their conduct should be such that they are not
disentitled to this equitable relief.