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Sakthivrshani J S
BA LL.B(A)
9th semester

Explain the procedure to be followed in suits by or against minors?

Introduction:

The Code of Civil Procedure (CPC), 1908, is one such Act dealing with enforcing the civil
rights of the people from every section of society. Even the minors and lunatics, who were assumed
to have no voices of their own, were not excluded from availing such rights. They have been entitled
to special rights and protection under Order 32 of the CPC.

Order 32:

Order 32 (Rules 1 to 16) of the Code of Civil Procedure (CPC), 1908 deals with the “Suits by or
against minors and persons of unsound mind.”

✔ It describes the procedure that to be followed by minor or unsound mind persons while filing the
suits.
✔ It was generally assumed that minors and lunatics had no authority to institute a suit on the
ground that such persons lacked reason and understanding to participate in the proceedings.

Object:

✔ Protect the interest of minor.

✔ Proper representation in suit.
✔ Procedure for suits to be filed by or against minors or persons of unsound mind.

Definition:

Minor:

As per Section 3 of the Majority Act of 1875, a minor is a person who has not attained a
majority, that is, who has not attained the age of 18 years. But in the case of a minor for whose
person or property a guardian is appointed by the court or whose property is under the
superintendence of the court of wards, the age of attaining majority is 21 years.

Persons of unsound mind:

As per Section 12 of the Indian Contract Act, 1872, a person of sound mind is a person
who is capable of understanding and forming a rational judgment as to its effect on his/her interests.
Similarly, in Section 84 of the Indian Penal Code, 1860, a person of unsound mind is a person who,
by reason of unsoundness of mind, is not able to know the nature and consequence of his/her act,
whether it is right or wrong.

Orders 32 (Rule 1 - 16)

All acts which are for benefits of minors should be taken by -> Guardian appointed by the court ->
nothing should be prejudice by his own.
Suits by minor

✔ Every suit of the minor shall be instituted in his name by a person who in such suit shall be
called the next friend of the minor.
✔ Suit by minor should be instituted in the name of guardian or next friend.
✔ 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.
✔ Such person can ask to furnish security for cost any time.

Suit against minor:

✔ Court shall appoint guardian to defendant such guardian can control throughout the case.

Next friend or Guardian:

Power / Duty / Liability of Guardian

✔ Every application should be made by him.

✔ Guardian shall not receive any property on behalf of minor - unless court leave.
✔ When guardian of suit is not appointed as guardian of the proporty - not furnish security.
✔ Guardian not enter into agreement / compromise (behalf of minor) without the leave of court.

Case: Dhirendra Kumar v. Sughandhi Bain.

Court has duty to ensure that guardian / Next friend can honestly exercise their discretionary
bonafide.

Rule 8 to 11

✔ If Next friend retired/ removal/ death

Fit person has to procured first

Put in his place

✔ The court shall remove Next friend/ Guardian if satisfies that

1. His interest is to adverse minor.

2. So connected with the opposite party.
3. Default in duty.
4. Move out of India - suit in pending.
5. Others sufficient cause.

✔ Suit is stayed if the person is retired/ removal/ death - untill the next person is appointed.
Minor attained Majority. Order 32 (Rule 12 - 14)

✔ When minor attained the majority he will proceed with the suit - apply to discharge of Next
friend/ guardian.
✔ Abondon the suit - apply for dismissal or repayment of cost to Guardian / next friend.
✔ Can also apply for dismissal when the suit is improper or unreasonable.

Conclusion:

Minors in the public sphere exist as unprotected or vulnerable entities, and they require the help of
their parents and guardians to survive and advance their interests in society. The legal institution is
well aware of this incapability of minors or other persons who, by reason of unsoundness of mind, or
any physical or mental infirmity, are not able to raise their voices for their protection of rights. Order
32 of the CPC specifically aspires to resolve this issue by entitling them with certain rights to sue or
appeal in court upon any violation of their civil rights. Rules 1 to 16 are exhaustive enough to deal
with the protection of such a vulnerable section of society.

CASE LAWS:

1. Budhilal v. Morarji (1907)

In this case, it was clear that a guardian appointed by the Hindu father in his will for his
minor son was not a guardian appointed by the ‘competent authority’ within the meaning of this rule.

2. Sham Singh v. Jaswant Singh (1970)

In this case it was stated by the Punjab and Haryana High Court that the principle behind
such removal is to safeguard and not prejudice the interest of the minor.

3. Sherija Bi v. Pillai (1976)

In this case, where the guardian was appointed based on the minority of the defendant and it
was later revealed that he was a major at the time of the institution of the suit but was deaf and dumb,
the appointment of a guardian was held invalid and the decree passed as void.

4. Dakeshur v. Rewat (1897)

In this case, it was held if a minor was sued without a guardian ad litem and a decree was
passed against him, the decree is null and void and cannot be enforced against him.

5. Amulya Ratan Mukherjee v. Kanak Nalini Ghosh (1950).

In this case, it was held that the decree passed against a lunatic, not properly represented, is
not binding on him and may be set aside by the court.
Explain the procedure to be followed in Suits by indigent persons?

Introduction

Order XXXIII of the Civil Procedure Code talks about suits by indigent persons. Section 304 of
Criminal Procedure Code, and Article 39A of the Indian Constitution respectively mention legal
aid to accused at state expense in certain cases, and equal justice and free legal aid.

Definition of Indigent Person

Order 33 of the Code of Civil Procedure provides for civil suits that may be filed by a person even
without payment of a court fee. Therefore, a suit instituted without paying court fees by a person
who is incapable of paying court fees is characterized as a suit instituted by an indigent person or
a suit instituted in forma pauperis.

A person is an indigent person,-

(a) If he is not possessed of sufficient means (other than property exempt from attachment in
execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by
law for the plaint in such suit, or

(b) Where no such fee is prescribed, if he is not entitled to property worth one thousand rupees
other than the property exempt from attachment in execution of a decree, and the subject-matter
of the suit.

Explanation II - Any property which is acquired by a person after the presentation of his application
for permission to sue as an indigent person, and before the decision of the application, shall be
taken into account in considering the question whether or not the applicant is an indigent person.

Explanation III - Where the plaintiff sues in a representative capacity, the question whether he is
an indigent person shall be determined with reference to the means possessed by him in such
capacity.

Meaning and Procedure

A person is an indigent person if he does not have sufficient means to pay the fee prescribed by
law for such a suit. Here it is clear that a person may have means for his livelihood that consist of
property that is exempt from attachment in the execution of a decree and the subject-matter of the
suit. So apart from the subject matter of the suit and such other property that cannot be attached in
execution of a court decree, an indigent person does not have other property or means to pay for
the prescribed court fees.

The word "person" mentioned in Order 33 of the Code of Civil Procedure shall include both a
natural person as well as a legal person such as a company or a body corporate. Therefore, a
company can also maintain an application under Order 33 Rule 1, seeking permission to file a suit
as an indigent person.

For the purpose of determining a person as an "indigent person" the property that is exempt from
attachment and the subject of the suit are not to be taken into consideration.

Inquiry into the Means of an Indigent Person

On an application seeking permission to sue as an indigent person filed by the plaintiff, a details
inquiry is to be conducted by the executive magistrate (SDM) of his local area to verify details of
the property of the indigent person. And a report is prepared mentioning the details of the plaintiff's
property. On the basis of this report, the court may decide whether the applicant is a suitable person
to be permitted to file a suit as an indigent person. Rule 1A of Order 33 of the Code of Civil
Procedure provides that every inquiry regarding the indigence of the person shall be made by the
chief ministerial officer of the Court unless the Court otherwise directs, and the Court may adopt
the report of such an officer as its own finding or may itself make an inquiry into the question.

Who shall take the inquiry

Every inquiry into the question whether or not a person is an indigent person shall be made, in the
first instance, by the chief ministerial officer of the Court, unless the Court otherwise directs, and
the Court may adopt the report of such officer as its own finding or may itself make an inquiry
into the question.

Content of the Application

Every application for permission to sue as an indigent person (pauper) shall contain the particulars
required in regard to plaints in suits: a schedule of any movable or immovable property belonging
to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed
and verified in the manner prescribed for the signing and verification of pleadings.

Procedure to be followed described under the following heads:-

1. Presentation of application
Notwithstanding anything contained in these rules, the application shall be presented to the
Court by the applicant in person, unless he is exempted from appearing in Court, in which
case the application may be presented by an authorized agent who can answer all material
questions relating to the application, and who may be examined in the same manner as the
party represented by him might have been examined had such party attended in person:
Provided that, where there are more plaintiffs than one, it shall be sufficient if the
application is presented by one of the plaintiffs.
2. Examination of applicant
Where the application is in proper form and duly presented, the Court may, if it thinks fit,
examine the applicant or his agent when the applicant is allowed to appear by agent
regarding the merits of the claim and the property of the applicant.
If presented by agent, Court may order applicant to be examined by commission.-
Where the application is presented by an agent, the Court may, if it thinks fit, order that the
applicant be examined by a commission in the manner in which the examination of an
absent witness may be taken.
3. Rejection of application
The Court shall reject an application for permission to use as an indigent person-
(a) Where it is not framed and presented in the manner prescribed by rules 2 and 3, or
(b) Where the applicant is not an indigent person, or

(c) Where he has, within two months next before the presentation of the application,
disposed of any property fraudulently or in order to be able to apply for permission to use
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.

(d) Where his allegations do not show a cause of action, or

(e) 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;
or
(f) Where the allegations, made by the applicant in the application show that the suit would
be barred by any law for the time being in force, or
(g) Where any other person has entered into an agreement with him to finance the litigation.
4. Notice of day for receiving evidence of applicant's indigency
Where the Court sees no reason to reject the application on any of the grounds stated in
rule 5, it shall fix a day (of which at least ten day's clear notice shall be given to the opposite
party and the Government pleader) for receiving such evidence as the applicant may adduce
in proof of his indigency, and for hearing any evidence which may be adduced in disproof
thereof.
5. Procedure at hearing
On the day so fixed or as soon thereafter as may be convenient the Court shall examine the
witnesses (if any) produced by either party, and may examine the applicant or his agent,
and shall may a full record of their evidence.
• The examination of the witnesses under sub-rule (1) shall be confined to the matters
specified in clause (b), clause (c) and clause (e) of rule 5 but the examination of the
applicant or his agent may relate to any of the matters specified in rule 5.
• The Court shall also hear any argument which the parties may desire to offer on the
question whether, on the face of the application and of the evidence (if any) taken
by the Court under rule 6 or under this rule, the applicant is or is not subject to any
of the prohibitions specified in rule 5.
• The Court shall then either allow or refuse to allow the applicant to sue as an
indigent person.
6. Procedure if application admitted
 Where the application is granted, it shall be numbered and registered, and shall be deemed
the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in
the ordinary manner, except that the plaintiff shall not be liable to pay any court-fee or fees
payable for service of process in respect of any petition, appointment of a pleader or other
proceeding connected with the suit.
7. Withdrawal of permission to sue as an indigent person
The Court may, on the application of the defendant, or of the Government pleader, of which
seven days, clear notice in writing has been given to the plaintiff, order that the permission
granted to the plaintiff to sue as an indigent person be withdrawn-
(a) if he is guilty of vexatious or improper conduct in the course of the suit;
(b) If it appears that his means are such that he ought not to continue to sue as an indigent
person;
(c) If he has entered into any agreement with reference to the subject-matter of the suit
under which any other person has obtained an interest in such subject-matter
8. Costs where indigent person succeeds
Where the plaintiff succeeds in the suit, the Court shall calculate the amount of court-fees
which would have been paid by the plaintiff if he had not been permitted to sue as an
indigent person; such amount shall be recoverable by the State Government from any party
ordered by the decree to pay the same and shall be a first charge, on the subject-matter of
the suit.
9. Procedure where indigent person fails
Where the plaintiff fails in the suit or the permission granted to him to sue as an indigent
person has been withdrawn, or where the suit is withdrawn or dismisses,-
(a) Because the summons for the defendant to appear and answer has not been
served upon him in consequence of the 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, or
(b) Because the plaintiff does not appear when the suit is called on for hearing, the
Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to
pay the court-fees which would have been paid by the plaintiff if he had not been
permitted to sue as an indigent person.
10. Procedure where indigent person's suit abates
Where the suit abates by reason of the death of the plaintiff or of any person added as a co-
plaintiff, the Court shall order that the amount of court-fees which would have been paid
by the plaintiff if he had not been permitted to sue as an indigent person shall be recoverable
by the State Government from the estate of the deceased plaintiff.

Case Laws

Case: R.M.Seshadri v. G.V. Rao (AIR 1983 SC 1246)

In this case, the Supreme Court held that the power of the court to permit a person to sue
as an indigent person is discretionary. The court must be satisfied that the person is
genuinely unable to pay the requisite court fees and that the claim is not frivolous. The
court emphasized that the exemption from payment of court fees is not a matter of right
but a concession granted by the court based on the petitioner's financial status.

Case: Kalander v. Md. Ali (AIR 1996 All 22)

In this case, the Allahabad High Court emphasized that while deciding whether to grant
permission to sue as an indigent person, the court should consider the financial status of
the petitioner, the merits of the case, and whether the petitioner is likely to succeed. The
court reiterated that the power to grant permission is discretionary and should be exercised
judiciously.

Conclusion

According to the Indian Constitution, every citizen has a fundamental right to free and fair
justice. Further justice is not only done, it is seen to be done. Order 33 of the Code of Civil
Procedure implements the fundamental right to free justice by allowing a person to exercise
his rights without paying any court fees in order to assert his rights and interests. However,
certain conditions must be met before taking advantage of these provisions.
Elucidate on the power of revision-

Answer- Part VIII section 115 of the Code of Civil Procedure gives High court the right to
revise cases decided by subordinate courts to ensure delivery of justice and maintenance of
fairness.
Whereas Revision means to go through something carefully, thoroughly and diligently.
The conditions when the High Court can exercise its revisional jurisdiction is under
Section 115 (1) to (3)of the Code of Civil Procedure-
1 Precedents
The case must have already been decided and judgement declared by the subordinate court. A
case cannot be revised if it has not been decided in the first place and no judgement is given.

An explanation was added to Section 115 by the Amendment Act of 1976, on the
recommendation of the Joint Committee of Parliament. This makes it clear that the
expression, “case decided” includes any order made, or any order deciding an issue, in the
course of a suit or any other proceeding.
In the case of Baldevdas Shivlal V. Filmistan Distributors (India) (P) Ltd., 1969 the
Supreme Court held that a case may be said to have been decided if the court adjudicates for
the purpose of the suit some right or obligation of the parties in controversy. Every order in
the suit cannot be recorded as a case decided.
2 No appeal lies
There must not be any appeal lying against the case decided by the subordinate court. The
High Court cannot revise a case if there is a pre-existing appeal against the case as the
revision interferes with the appeal and vice-versa.

The revision can only be filed once the appeal is dismissed. The word “appeal” includes both
the first appeal and second appeal. Therefore, the revision can only lie when the appeal is
dismissed or does not lie.

3 Jurisdictional error

The revisional jurisdiction can be applied by the High Court when the subordinate court
appears to have:

1. Acted in excess of jurisdiction vested in it by law, or

2. Failed to exercise the jurisdiction vested in it by law, or
3. Displayed material irregularity and exercised its power illegally or in breach of the
provisions of law.
4 Subordinate court

The High Court cannot exercise revisional jurisdiction unless a case is decided by a court
which is subordinate to the High Court. Only a court of civil judicature is considered and this
does not include any person acting in an administrative capacity. As a general rule, where it is
provided that a matter should be decided by a particular court, the presiding officer of such
court will act as a court.

But where it is provided that a particular judge should decide a matter, the provisions of the
statute will have to be considered for determining whether the judicial officer acts as
a court or as a persona designata. The revision by the High Court is mainly done to rectify
the jurisdictional or procedural errors caused by subordinate courts in the course of
proceedings in any case when an application is filed by an aggrieved party.

5 Alternative remedy
The power of revisional jurisdiction and its application lies under the discretion of the High
Court and cannot be claimed as a right by any aggrieved party. Several factors are considered
before the authority of revisional jurisdiction is exercised. If there is the presence of an
efficacious or alternate remedy available to the aggrieved party, the court may not exercise its
revisional jurisdiction and instead suggest the alternate remedy and relief to the aggrieved
party. This is done to prevent the misuse of revisional jurisdiction and make it applicable only
in cases where necessary.

Limitations on revisional jurisdiction

Article 131 of the Schedule of Limitation Act provides a limitation period of 90 days for
filing the revision under the Code of Civil Procedure from the date of decree or order or
sentence sought to be revised. Thus, the limitation period prescribed for filing the revision
against the impugned order is 90 days. The application for revision must be filed with the
High Court within the limitation period.

In the case of Salekh Chand V. Deepak Sharma 2015, During the pendency of the revision
petition, an application was filed under Section 5 of the Limitation Act by the revisionist. But
it was declared by the Court that Article 131 of the Schedule of Limitation Act stated that the
limitation period to file for revision is 90 days. Thus, the revision petition was not barred by
limitation and allowed to proceed.

In the case of Samudrala Nagabhushanam V. Venkana Raghavayy, 1966, the Court decided
that the petition for revision in this particular case was governed under Section 22 of
the Andhra Pradesh Buildings Control Act, 1960 and not Role 41-A(2) of the Appellate Side
Rules of the a

Erroneous Exercise of Jurisdiction:Revision can be sought when a court exercises

jurisdiction illegally or with material irregularity.It provides a remedy against miscarriage of
justice resulting from the erroneous exercise of jurisdiction.
The power conferred by Section 115 is discretionary. The HC may decline to interfere if the
lower court's order is not vitiated by jurisdictional errors.
Revision can be sought against orders, decrees, or judgments of subordinate courts.It covers a
wide range of judicial determinations that affect the rights of the parties involved. 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 HC.

Suo moto exercise of power

The term ‘suo moto’ means on its own motion or self-decision. The judiciary has the power
to revise cases suo moto. This means that the small court has the authority to make its own
decision to exercise the power of revision and takes the decision to revise any case on its own
accord, i.e. without any application filed by any aggrieved party. The sole decision as to the
exercise of the power of revision rests with the court and the aggrieved party is not entitled to
receive it

In the case of Chimanbhai G. Patel V. D.Y. Collector, 1999, it was stated by the Court that
a Deputy Collector or Assistant Collector cannot exercise the powers of revision suo moto.
Therefore, the order was set aside as there was no jurisdiction in the exercise of revisional
powers.

Interlocutory Orders and Revision

The Interlocutory order which is often called interim order is a decision of the court given
during the proceedings and before the finality of a case to ensure that the interest of either
party is not harmed due to or during the process of justice

Section 94 of Part VI of the Code of Civil Procedure lists the ‘Supplemental Proceedings’
which mentions how the court can issue interlocutory orders to prevent the ends of justice
from being defeated. The court can:

1. Issue a warrant for the arrest of the defendant or if he fails to comply with any
order for security, commit him to the civil prison.
2. Direct the defendant to produce any property belonging to him and furnish it as
security by placing it at the disposal of the Court.
3. Grant temporary injunction and commit a guilty person to a civil prison in case of
disobedience, and order his property to be attached and sold.
4. Appoint a receiver of any property and enforce the performance of his duties by
attaching and selling his property.
5. Make any such interlocutory orders as may appear before the Court to be just and
convenient.
 Eg- Temporary Injunctions.
Death of Applicant
The death of an applicant does not abate the proceedings of the application of revision as
revision is not governed under Order 22 of the Code of Civil Procedure. Once the application
for revision is filed, the proceedings shall continue despite the death of the applicant and the
order shall be given to the legal representative of the applicant.

Conversion of Revision into Appeal

In the case of Munshi Singh v. Tula Ram 1980 The nature and scope of revisional
jurisdiction is different from appellate jurisdiction. If an order impugned is revisable, it
cannot be converted into an appeal if there is no presentation of appeal in the eyes of law.

As seen in the case of Om Prakash V. Dwarka Prasad, 2004.The petitioner can file appeal
explaining the delay by filing an application under Section 14 of the Limitation Act along
with memo of appeal.

Conclusion-
The power of revision of the High Court is exceptional and should be exercised when
necessary in cases where there is a defect in the proceedings due to jurisdictional error in the
subordinate courts which may result in a miscarriage of justice and beats the purpose of the
rule of law.
 1

Q. ELUCIDATE ON TEMPORARY INJUNCTION?

(Order 39 Rule 1 to 5)
INTRODUCTION
A temporary or interim injunction is that which, 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.

OBJECT:
Its main purpose is to stop someone from causing serious harm to another party
during the legal process. This idea was made clear in the case of:
❖ M/S Gujarat Bottling Co. Ltd. & Ors v. The Coca Cola Company & Ors.
(1995)

WHEN TEMPORARY INJUNCTION IS GRANTED:

The granting of temporary injunction is a matter of discretion of the Court.
Rule 1 of Order 39 of the Code of Civil Procedure, 1908 provides that 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
(R.1a)

(b) that the defendant threatens or intends to remove or dispose of his property with a
view to defrauding his creditors, or (R 1b)

(c) that the defendant threatens or dispossess the plaintiff or otherwise cause injury to
the plaintiff in relation to any property in dispute in the suit, or (R 1c)

(d) where a defendant is about to commit a breach of contract, or other injury of any
kind; or (R 2(1))

(e)where a court is of the opinion that the interest of justice so requires

❖ Manohar Lai v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527-
 2

It is essential to note that the application for an interim injunction is not restricted to the
plaintiff alone; a defendant can also seek an injunction against the plaintiff.

CONDITIONS FOR GRANTING TEMPORARY INJUNCTIONS:

❖ In a landmark judgement (Gujarat Bottling Co. Ltd. vs. Coca-Cola Co. (AIR
1995 SC 2372)
The Supreme Court established essential guidelines for courts to follow when
considering applications for granting temporary injunctions. It emphasized a Triple
Test, requiring the court to evaluate:
(i) There is a prima facie case in favour of the plaintiff and against the defendant.

(ii) That irreparable injury is likely to be caused to the plaintiff which cannot be
compensated for in terms of money.

(iii) That the balance of convenience lies in favour of the plaintiff and against the
defendant.

(iv) The conduct of the plaintiff should be fair and honest.

❖ Kashinath Sansthan v. Srimad Sudhindra Thirtha Swamy, AIR 2010 SC 296

the court prescribed the criteria for temporary injunction as follows:
"In order to grant an order of injunction, the party who seeks for grant of such
injunction has to prove that he has made out a prima facie case to go for trial, the
balance of convenience is also in his favour and he will suffer irreparable loss and
injury if injunction is not granted. But it is equally well-settled that when a party fails
to prove prima facie case to go for trial, question of considering the balance of
convenience or irreparable loss and injury to the party concerned would not be
material at all.

❖ Mandati Ranganna v. T. Ramachandra, AIR 2008 SC 2291, it is held that

while considering an application for grant of injunction, the Court will not only
take into consideration the basic elements in relation thereto, viz., existence of a
prima facie case, balance of convenience and irreparable injury, it must also take
 3

into consideration the conduct of the parties. Grant of injunction is an equitable

relief.

(The duration of a temporary injunction is determined by the court when it grants the
injunction. According to Orde39, Rule 6 of the Civil Procedure Code of 1908, a
temporary injunction can remain in effect until a specified time or until the court
issues further orders.)

RULES UNDER O.39

Order 39, Rule 2-A talks about the non-compliance of an individual with regards to an
injunction, they are:
➢ It mandates the detainment of that individual in civil prison for not more than
three months.
➢ Furthermore, it warrants the attachment of property of that guilty individual for
not more than a year.
➢ In the case of Ram Prasad Singh v. Subodh Prasad Singh (1983), it was
highlighted that it is not necessary for an individual to be a party to the concerned
suit, to be liable under Order 39, Rule 2-A of the CPC, 1908, provided it is
known that he was an agent of the defendant and violated the injunction despite
being aware of the same.
EX-PARTE INJUNCTION:
Usually, the court is required to issue a notice to the opposite party regarding the
application of injunction, but through Order 39, Rule 3, the court can grant an
ex-parte injunction when it is under the belief that the object of the injunction would
be defeated because of delay. the said power is to be exercised under exceptional
circumstances.
❖ Morgan Stanley vs. Kartick Das, (1994) 4 SCC 225 (241-242),
the Supreme Court indicated the following factors which should weigh with a court in
the grant of an ex-parte Injunction:
a) Whether irreparable or serious mischief will ensure to the plaintiff.
b) Whether the refusal of an ex-parte injunction would involve greater injustice
c) The court will also consider the time at which the plaintiff first had notice of the
act
 4

d) General principle like prima facie case, balance of convenience and irreparable
loss would also be considered by the court.

Order 39, Rule 4 lays down that an injunction may be discharged, varied or set aside,
if any dissatisfied party makes an appeal against it.

CONCLUSION
Thus, the rationale behind the provision of Order 39 of the Code of Civil Procedure,
as laid down by Hon’ble Supreme Court in the case of M. Gurudas and Ors. v.
Rasaranjan and Ors. (2006) can be summarized as “While considering an
application for injunction, the Court would pass an order thereupon having regard to
prima facie, balance of convenience and irreparable injury“.
Short note:

1. Appointment of receiver and powers?

INTRODUCTION:

In civil court proceedings in India, a receiver is a significant figure appointed by the court to
take charge of disputed property. Their primary role is to ensure the safety and proper
management of the property while legal matters are being resolved. This appointment is
particularly crucial when the property is under threat or needs protection until a fair and just
decision is reached by the court. Receivers play a pivotal role in safeguarding assets and
ensuring equitable outcomes during the course of litigation, thereby contributing to the
integrity and effectiveness of the legal process.

Under the Civil Procedure Code (CPC), a Receiver is like a referee chosen by the court to
take care of a disputed property during a lawsuit.

Ex: Let's say A & B are arguing over a piece of land. If the court thinks it's best to have
someone neutral handle the property until the case is settled, they appoint a Receiver. This
person doesn't take sides instead, they make sure the property is looked after properly.

For Ex: they might collect rent from the land and pay for its Maintenance. Any money left
after expenses is given to the court. The Receiver works for the court not for A or B to ensure
a fair outcome for everyone involved.

PROVISIONS:

The relevant provisions in the CPC that govern the appointment of a receiver are primarily
found in Order 40. Order 40, Rule 1 of the CPC grants the court the authority to appoint a
receiver. It states:

“Where it appears to the court to be just and convenient, the court may, by order, appoint a
receiver of any property, whether before or after decree.”
APPOINTMENT OF RECEIVER:

The appointment of a receiver under the CPC is a discretionary power held by the court, used
to safeguard and manage property during civil litigation. It's crucial for protecting rights and
assets, especially when their value or condition is at risk. The court's decision to appoint a
receiver is guided by principles of justice, fairness, and the specific circumstances of the case.
Key considerations include assessing the prima facie case, the nature of the property, the
balance of convenience, the likelihood of irreparable harm the facts and circumstances of the
case, opposition or objections, and principles of equity and fairness. Conditions and security
may be imposed to ensure the receiver's appointment serves the interests of all parties
involved.

POWERS OF RECEIVER:

A receiver, appointed by the court, is vested with various powers to carry out their duties
effectively. According to Order 40 R 1(1) (d), the Court may grant the receiver some or all of
the following powers:

● Possession and Management: Receivers can take control of and manage the property
or assets, including collecting rents and profits.

● Protection of Property: They're responsible for keeping the property safe from
damage or harm.

● Maintenance and Repairs: Receivers can approve necessary repairs and upkeep to
maintain the property's condition.

● Lease or Sale: They may be allowed to rent out or sell the property to generate
income or realize assets.

● Investment of Funds: Receivers can invest any income from the property to preserve
or increase its value.

● Collection of Debts: They can collect rents, debts, or other income associated with
the property.

● Submission of Reports: Receivers have to regularly report to the court on their

actions and finances regarding the property.

● Taking Legal Action: They can start or defend legal actions related to the property.
 ● Payment of Expenses: Receivers can pay for property expenses like taxes and
insurance using the property's income.

● Access to Records: They have access to all relevant documents and records regarding
the property.

● Bank Accounts: Receivers can open and use bank accounts for property-related
transactions.

● Enforcement of Court Orders: They're responsible for carrying out court orders
related to the property.

● Dissolution of Receivership: Once the case is settled, they may dissolve the
receivership and distribute remaining assets as ordered by the court.

CASES:

1) In the case of Anthony C. Leo v. Nandlal Balakrishnan, AIR 1996 SC 1323. The

Supreme Court explained that a receiver is a neutral person appointed by the court. This
person works for the court and takes care of the property involved in the case. The
property is considered to be under the control of the law or the court while it's with the
receiver. The receiver has authority over the property, similar to the real owner, but the
court keeps an eye on everything the receiver does.

2) In case of T. Krishnaswany Chetty v. C. Thangavelu Chetty: AIR 1930 Mad 430

(LAND MARK CASE)

The Madras High Court established five simple principles for appointing a receiver:

1. Court's Discretion: The court can decide to appoint a receiver, but it must consider
all relevant circumstances. This is because it's a serious remedy that takes away
someone's property before a final decision is made. So, it should only be used when
there's no better option.

2. Urgency Required: The person asking for a receiver must show that there's a real and
urgent problem that needs quick action. The court won't appoint a receiver just
because it won't cause harm.
 3. No Deprivation of Possession: The court won't appoint a receiver if it means taking
away a defendant's actual possession. Doing so could cause serious harm that can't be
fixed.

4. Blameless Applicant: The person asking for a receiver must not have caused the
problem by delaying or using unfair tactics.

These principles help ensure fairness and protect everyone's rights in a dispute.

CONCLUSION:

In conclusion, the appointment of a receiver under the Civil Procedure Code is a pivotal and
multifaceted aspect of the Indian legal system. It acts as a safeguard, preserving and
managing property during civil litigation, thereby promoting fairness, and preventing
potential harm. Receivers, acting as officers of the court carry substantial responsibilities,
including the custody and efficient management of the property in question. These duties are
rooted in principles of equity and justice necessitating transparent and impartial actions that
serve the best interests of all parties involved.
Commission

Definition
Commission is instruction or role given by the Court to a person to act on behalf of the Court
and to do everything that the Court requires to deliver full and complete justice. Such person
who carries out the commission is known as a Court commissioner.

Relevant Articles and Order:

Article 75, 76, 77 and Order-26 of CPC.

Appointment of a commissioner by Court

Under CPC, the Court which issues the commission can appoint the commissioner. Section 75,
provides that “the Court” can issue commission provided the limitations and restrictions
applicable. Therefore, the Court who has to decide the suit can appoint the commissioner.
Commissioner is appointed to carry out the functions for which the commission is issued. Court
has the discretionary power to appoint the commissioner and such power can be exercised on
the application of any of the parties or the Court can issue the commission suo moto.

•Who can be appointed as a commissioner?

The person who is appointed as commissioner should be independent, impartial, disinterested
in the suit and the parties involved in it. Such a person should have the requisite skills to carry
out the commission. It will be a complete waste of time and resources of the Court and the
parties if a person who cannot read and understand the accounts and documents is appointed
as commissioner to adjust accounts. Similarly, a person who does not have the qualifications to
conduct scientific investigation should not be appointed as a commissioner for such task.

•Powers of the commissioner:

Under Order 26 Rule 16, powers of a commission are as follows:
a. Commissioner has the authority to examine the parties and the witnesses and any other
person who the commissioner thinks can give evidence in the matter referred to him.
b. Commissioner can direct the parties to produce any documents which are required to be
examined.
c. Commissioner also has the power to enter and search any land or building with the
permission of the Court.
d. If the party fails to appear before the commissioner after the order of the Court, the
commissioner can proceed ex parte.

• Purpose of issuing a commission by Court:

According to Section 75 of CPC, the Court has the power to issue a commission to carry out the
following functions:
1. To examine witnesses (Order 26 Rule 1-8).
2. To make local investigations (Order 26 Rule 9-10).
3. To adjust accounts (Order 26 Rule 11-12).
4. To make partition (Order 26 Rule 13-14).
5. To hold investigation (Order 26 Rule 10-A).
6. To sell the property (Order 26 Rule 10-C).
7. To do ministerial work (Order 26 Rule 10-B).

1. Commission for examination of witnesses:

The general rule of evidence is to bring the evidence before the Court and must be recorded in
open Court. But in extraordinary circumstances, the appearance of witness is dispensed and the
witness is allowed to depose evidence without appearing in Court. Issuing of commission for the
purpose of examination of witnesses is guided by Sections 76 to 78 and by Rules 1 - 8 of Order
26. Generally, the examination of witnesses is done in an open court. The evidence of the
witnesses is examined by cross - examination and recorded in the presence of all. However
sometimes it may happen where the witness may not be able to come and appear in the court.
The reasons for the inability to come to the Court must be reasonable. The Court relaxes the
rule of attendance in the Court and issues commission only if the Court finds that the reason for
non - attending the court is justified. The reasons for non - attendance of the witnesses may be
on the grounds of illness, or if the witness resides beyond the local limits of the jurisdiction of the
Court or any other reasons as the Court may find sufficient.

2. Commission to make local investigations:

The Court can appoint commission for local investigation if the Court is of the opinion that a
local investigation is necessary:
a. For proper clarity of any matter in dispute, or
b. In ascertaining the market value of any property, or
c. To know the amount of mens rea or annual net profits.

While appointing a commissioner for, the Court has to examine:

a. The pleadings of both the parties,
b. Relief claimed,
c. The real controversy between the parties.
It is important to note that the object of a commission is not to collect evidence which can be
brought to the Court by the parties but to acquire evidence from a fixed spot. It is also used to
enable the Court to have more clarity regarding the facts of the case. Commissioner should not
be appointed to provide pre-trial decree against the defendant, that is, the Court should not
appoint a commissioner to provide the relief claimed, directly or indirectly, by the plaintiff before
the final decree is passed. It is important because such commission will prejudice the rights of
the defendant to a fair trial.

3. Commission to adjust accounts:

Rules 11 and 12 of Order 26 of the CPC, 1908 guide the action of conducting an investigation
by the Court by issuing a commission to examine and for the adjustment of accounts. The Court
issues gives necessary instructions to the commissioner and the reports provided by the
Commissioner shall then be deemed to be evidence in the Court.

4. Commission to make partition:

This is guided by Rules 13 and 14 of Order 26 of CPC, 1908. In this case, the Court issues a
Commission when a preliminary decree of partition of an immovable property has been passed
by the Court. The duty of the Commission is to make the partition according to the guidelines
provided by the decree.
The Commissioner then divides the property into the required number of parts and then allots
the shares to the parties. After partitioning and allotting the parts of the property to the rightful
owners, the Commissioner prepares a report and provides it to the Court. After allotting, if any
party objects or is unsatisfied of something, the Court hears their objections and passes a final
allotment decree.

5. Commission to hold investigation:

According to Order 26 Rule 10-A, When the Court has to conduct a scientific investigation, the
Court can appoint a commissioner who will then be responsible for such investigation. For
example, to identify the substance used as a raw material in the subject matter, the Court may
issue commission to hold scientific investigation. After conducting such investigation, the
commissioner has to submit the report within the time prescribed by the Court.

6. Commission to sell the property:

This is guided by Rule 10-C of Order 26 of the CPC, 1908. The Court issues a commission
when the Court requires selling a movable property on which the Court has custody and on
which a case is pending. The selling of the property becomes necessary if the property cannot
be properly preserved or if the court deems the selling necessary in the interest of justice. The
Commissioner is directed to sell off the property and submit the report of the sale to the Court.

7. Commission to perform ministerial work:

Ministerial work means the administrative work which the Court has to do, but are not of judicial
nature like accounting, calculation, etc. Such work takes a lot of valuable time of the Court
which can be used in other important judicial functions. Therefore, the Court appoints a
commissioner to do such works on behalf of the Court. It is important to note that
commissioners cannot do judicial functions.

Procedure for carrying out the commission:

a. The commissioner will conduct the local investigation, examination of witnesses, adjust
accounts and other functions as ordered in the commission.
b. After completion of the function, the commissioner will reduce the findings in writing and will
make a report.
c. The commissioner will submit the report signed by him along with the evidence recorded in
the Court.
d. The report of commissioner will form a part of the record.
e. While examining the report, the Court or the concerned parties, after prior permission, can
examine the commissioner personally in open Court.
f. If the Court is dissatisfied with the proceedings of the commissioner the Court can order a
further inquiry on the commission or can issue a fresh commission and appoint a new
commissioner.
 REFERENCE
INTRODUCTION
A Subordinate court may refer a case for the opinion of the High Court. Such opinion can be
sought when the court itself feels some doubt about a question of law or usage having force
of law arise in course of such suit or proceedings. The question can be related to validity of
any act, ordinance or regulations or any other question. The high court may then make such
order as it thinks fit. Under section 113 of CPC 1908 grants authority to a lower court to
present a case to the High court and request its opinion.
OBJECT
“The object is to enable the subordinate court to obtain in Non appealable cases, the opinion
of the High court on a question of law and thereby avoid the commission of an error which
could not be remedial later on” this was held in the case of Chhotubhai V. Bai kashi AIR
1941 Bom 365. It also ensures the validity of any legislative provisions, act, ordinance, or
regulations should be interpreted and decided by the highest court of the state. The Reference
must therefore be made before passing of the judgment in the case.
PROCEDURE

● Court trying the suit shall draw up a situation of facts and the points of doubt.
● Such statement along wig its own opinion will be forwarded to the HC
● The court may then stay or proceed with the proceeding. In the later case, it shall pass
an order contingent upon the decision of the HC.
● Where Reference has been made in a suit, no execution shall happen before receiving
the judgment of the HC
● The HC shall decide the point after hearing the parties of they desire.
● Its judgment will be signed by the registrar and transmitted to the court.
● HC can also refuse to answer or quash the Reference.

CONDITIONS
‘The right to Reference, however is subject to the conditions prescribed by order 46 rule 1
and unless they are fulfilled, the High Court cannot entertain a reference from a subordinate
court' this was held in the case Geevarghese V. Abraham AIR 1979 Ker 237. The rule
requires the following conditions to be satisfied to enable a subordinate court to make
reference ;
1. There must be a pending suit or appeal in which the decree is not subject to appeal or
pending proceeding in execution of such decree.
2. A question of law or usage having the force of law must arise in the course of such
suit, appeal or proceeding.
3. The court trying the suit or appeal or executing the decree must entertain a reasonable
doubt on such question.
POWER AND DUTIES OF REFERRING COURT
A reference under CPC can only be made in a suit, appeal or execution proceeding pending
before the court when there is a genuine doubt of law. It was emphasised in the case of
Banarasi Yadav v. Krishna Chandra that the legal question causing doubt must have actually
arisen in the case for adjudication and should not be a hypothetical issue. Therefore,
references cannot be made based on hypothetical questions or points that may or may not
arise in the future. However, if such a situation does arise, it may be considered for reference.
POWER AND DUTIES OF HIGH COURT
Consultative Jurisdiction: The High Court possesses consultative jurisdiction when a
reference is sought. It is not obligated to solely decide the specific legal question in doubt. As
established in the case of S.K. Roy v. Board of Revenue, the High Court can also consider
new aspects of the law if they emerge during the proceedings.

Discretion in Answering Questions: The High Court has discretion in answering the referred
question under CPC. According to Order 46 of the Code, the High Court may choose to
answer the question and send the case back to the referring court for disposal in line with the
law. Alternatively, the High Court has the authority to refuse to answer the question and can
even quash it.

CONCLUSION
A reference under CPC occurs when a subordinate court seeks the High Court’s opinion on a
legal matter during a pending suit, appeal or execution proceeding. Governed by Order 46,
the referring court formulates a legal question, stays proceedings or issues a contingent order
and sends the question to the High Court.
 REVIEW
INTRODUCTION
The Code of Civil Procedure grants the Right of Review as a remedy to be
sought for and applied under certain criteria and circumstances. This right is
intended to rectify any error or mistake that may have been made in the court’s
ruling. Many restrictions and criteria are listed in Order 47 of the Code of Civil
Procedure with regard to this right.
REVIEW PETITION
A review petition may be submitted in the same court that issued the decree or
order on the following reasons by anybody who feels wronged by a decree or
order in which an appeal is permitted but not filed, or by a decree or order form
in which no appeal is allowed, as per section 114 cpc bare act.
● When a decision is rendered following a referral from a Small Causes
Court;
● When a decree or order is issued that is subject to appeal under the CPC
but no appeal is filed, and
● When a decree or order is issued that is not subject to appeal under the
CPC.
In addition, there are rationales for the submission of a review application.
These rationales comprise:
The finding of additional information after it was either unavailable or
impossible to collect at the time the order was made due to neglect
The error that is readily apparent on the surface of the record, which pertains to
errors that do not require repeating the case in its entirety or that have nothing to
do with poor judgment calls
Any more sufficient grounds permitted by the Code, in which case the court’s
misinterpretation could be deemed a legitimate basis.

GROUNDS FOR REVIEW PETITION

● A review petition may be filed in cases where new information comes to
light that was either not known by the dead at the time of the decree or
was not filed by them.
 ● A review petition may be filed if an error or mistake is found that is
evident from the record and does not require further evidence to support
it.
● The deceased may submit a review petition if the order’s decree prohibits
them from appealing.
● A review petition may be filed if the decedent did not appeal the decree
against him and an appeal is permitted.
● A party may submit a review petition if the court determines that it has
enough justification.
PROCEDURE
The court will first hear the application ex parte. The court will immediately
dismiss the application if it is not persuaded that the grounds are sufficient. As
an alternative, the opposing party may get a notice from the court.
Second, the review is carried out by the same judge and court. The court can
decide whether to approve or reject the application after hearing from the
parties. The matter will proceed to a merits trial after the court grants the
petition for review. Following a rehearing, the court may then affirm or modify
the original order.
The same panel of judges or any other judges who are still associated with the
court at the moment of the review application and who are not prohibited from
hearing the review case for the next six months due to absence or other reasons
will hear the case if a judgment made by a panel of two or more judges is
rendered and a petition for review is filed.
In the event that a panel of judges hears the review case, the judgment of the
majority will be used to make the decision. On the other hand, the application is
going to be turned down if the court is equally divided.
CASE LAWS
The two landmark section 114 cpc judgment is as follows:
● In the case of Sow Chandra Kante v Sheikh Habib, the Supreme Court
ruled that the primary goal of Section 114 of the CPC is not to grant the
losing party a second chance at winning, nor is it to allow the court to
issue a second decision.
● In the case of Northern India Caterers Ltd. V Governor of Delhi, the
Supreme Court ruled that a review process cannot be compared to the
 case’s initial hearing and that the court’s decision is final and won’t be
reviewed unless there was a clear omission or parent error that was
introduced earlier due to judicial fallibility.
CONCLUSION
According to Section 114 of the Civil Procedure Code of 1908, the court may
review its own decision or decree in order to address any inadvertent errors or
omissions that may have occurred, as well as to address any new and significant
information or evidence that the party requesting the review was unaware of
during the initial hearing. Nevertheless, the power of review is restricted in
terms of time and grounds, and it can only be used when the court determines
that a mistake or error needs to be corrected.