CIVIL PROCEDURE CODE AND LIMITATION ACT

UNIT — I

Introduction

 Distinction between procedural law and substantive law

 History of the code, extent and its application,

 Definition

 Jurisdiction of the Civil Courts- Kinds of jurisdiction

 Suits of civil nature (Sec.9)

 Doctrine of Res sub judice (Sections 10)

 Doctrine o f Res judicata (Sections 11)

 Bar on suits- ( Sections 12)

 Foreign Judgment (Sections 13-14)

 Place of Suits (Sections. 15 to 20)

 Transfer of Cases (Sections. 22 to 25)

 Distinction between procedural law and substantive law

Laws can be divided into two groups: (1) Substantive law, and (2)
Adjective or procedural law. Whereas substantive law determines
rights and liabilities of parties, adjective or procedural law prescribes
the practice, procedure and machinery for the enforcement of those
rights and liabilities.

Substantive laws

Substantive laws define the rights and responsibilities in civil law and
crimes and punishments in criminal law. Substantive laws are
codified in legislated statutes or may be practised or modified through
precedent, especially in the common law system.

The function of substantive law is to define, create or confer

substantive legal rights or legal status or to impose and define the
nature and extent of legal duties

Nature of substantive laws

Substantive laws deal with those areas of law which establish the
rights and obligations of the individuals and what individuals may or
may not do.

 These laws have independent power to decide any case.

  Substantive laws dictate the legal context of any crime such as
how the case will be handled and what specific punishments to
be given for any crime.
 Statutory laws or precedents in the common law system are
substantive laws.
 Substantive laws deal with the legal relationship between
individuals or the legal relationship between an individual and
the State.
 Substantive laws define and determine both the rights and
obligations of the citizens to be protected by law and the crimes
or wrongs and also their remedies.
 Substantive laws determine the subject matter of litigation
pertaining to the administration of justice.

Procedural laws
Procedural laws prescribe procedure for the enforcement of rights and
liabilities. The efficacy of substantive laws, to a large extent, depends
upon the quality of procedural laws. Unless the procedure is simple,
expeditious and inexpensive, substantive laws, however good are
bound to fail in achieving their object and reaching the goal.

Nature of procedural laws

 Procedural laws lay down the ways and means substantive laws
can be enforced.
 They do not carry any independent powers to decide any case.
  These laws are enforced by the Acts of Parliament or
implemented by the government.
 Apart from prescribing ways and means of enforcing rights,
procedural laws also redress for the infringement of rights, also
describe the machinery for proceedings of any suit.
 A procedural law should always follow substantive law.

Procedural Law And Substantive Law

Procedural law is thus an adjunct or an accessory to substantive law.
The two branches are complementary to each other and
interdependent, and the interplay between them often conceals what is
substantive law and what is procedural law. It is procedural law which
puts life into substantive law by providing a remedy and implements
the well-known maxim ubi jus ibi remedium.

Instances of substantive law

 The Indian Contract Act,
 The Transfer of Property Act,
 The Industrial Disputes Act,
 The Indian Penal Code

Instances of procedural law

 The Indian Evidence Act,
 The Limitation Act,
 The Code of Civil Procedure,
  The Code of Criminal Procedure.

The Code of Civil Procedure is an adjective or procedural law. It

neither creates nor takes away any right. It is intended to regulate the
procedure to be followed by civil courts
BASIS FOR
COMPARISO SUBSTANTIVE LAW PROCEDURAL LAW
N
Procedural law is a law that
Substantive Law is the law
specifies the practice,
that states the rights and
Meaning procedure and machinery for
obligations of the parties
the imposition of rights and
concerned.
duties.
Governs How people should behave? How legal case flows?
Fixation of rights and duties Ways and means for
Concerned with
of the citizens. imposing substantive law.
Applicable to legal context Applicable to legal and non-
Context
only legal context.
Governance By act of parliament. By statutory law.
Rights of parties and Initiation and prosecution of
Defines
punishment for wrongdoer. civil and criminal lawsuits.
Related to Matters outside the court Matters inside the court
 History of the code, extent and its application

Historical Background

Till 1859, in India, there was no uniform codified law for the
procedures to be followed in Civil Courts. In those old days, under the
British rule, there were Crown Courts in Presidency towns and
Provincial Courts in Mofussil.

 These Courts in Mofussil areas and Presidency towns were

governed by different systems of Civil procedure through
various rules, regulations and special acts and those were
changed on time to time basis on the basis of circumstances and
needs.
 1859 :- For the first time in 1859, a uniform civil
procedure Code was introduced by passing the Civil Procedure
Code (Act VII of 1859). But this code could not serve the
purpose as this code was not made applicable to the Supreme
Courts (Crown Courts under the Royal Charter) and the Sadar
Diwani Adalats (Principal Courts under the Judicial Plan by the
Governor General).
 In 1861, the Indian High Courts Act was passed and the
Supreme Courts and Sadar Diwani Adalats were abolished.
Then the High Courts were established by replacing the
Supreme Courts at Madras, Bombay and Calcutta. Then the
 Civil Procedure Code 1859 made applicable to these newly
established High Courts.
 1877 & 1882 - The Code of 1859 was amended regularly from
time to time but still there were many defects in it, and
therefore, a new Code was enacted in 1877. Again, another
Code was enacted in 1882, which was also amended from time
to time.

Civil Procedure Code 1908 and its amendments :-

In 1908, the present Code of Civil Procedure was enacted. It was
amended by two important Amendment Acts of 1951 and 1956. On
the whole, this Code worked satisfactorily, though there were some
defects in it. The Law Commission in its various reports made many
recommendations, and after carefully considering them, the
Government decided to bring forward the Bill for the amendment of
the Code of Civil Procedure, 1908, keeping in view, inter alia, the
following considerations:
1. a litigant should get a fair trial in accordance with the accepted
principles of natural justice;
2. every effort should be made to expedite the disposal of civil
suits and proceedings, so that justice may not be delayed;
3. the procedure should not be complicated, and should, to the
utmost extent possible, ensure a fair deal to the poorer sections
of the community who do not have the means to engage a
pleader to defend their cases.
Some of the important changes made by the Amendment Act, 1976
are as under:
i. The doctrine of res judicata is being made more effective.
ii. Power to transfer proceedings from one High Court to
another is given to the Supreme Court.
iii. Freedom from attachment of a portion of salary to all
salaried employees, is granted.
iv. Provision of giving notice under Section 80 before the
institution of a suit against the Government or a public
officer is made less stringent.
v. Restrictions are imposed on the right of appeal and
revision.
vi. Provisions are being made to ensure that written
statements and documents were filed without delay.
vii. New Order 32-A has been inserted to provide a special
procedure in litigation concerning the affairs of a family.
viii. The practice to pass preliminary and final decree in certain
suits is abolished.
ix. Scope of Summary Trials is substantially widened.
x. Important changes have been made to provide relief to
poorer sections of the community.

The amendments made in 1976 were not found sufficient. With a

view to dispose of civil cases expeditiously, Justice Malimath
Committee was appointed by the Government. In pursuance of
recommendations of the Committee, the Code was amended by the
Amendment Acts of 19996 and 2002
Important amendments made by Acts of 1999 and 2002 may be
summarised thus:
1. In several matters, such as issuing of summons, filing of written
statement, amendment of pleadings, production of documents,
examination of witnesses, pronouncement of judgments,
preparation of decree, etc., a time-limit is prescribed;
2. A new provision for settlement of disputes outside the court has
been introduced;
3. Number of adjournments have been restricted;
4. A provision for recording of evidence by the Court
Commissioner has been made;
5. Endless arguments are sought to be shortened by (a)
empowering the court to fix a time-limit for oral arguments; and
(b) by permit- ting written arguments to be placed on record by
the parties;
 A provision is made for filing of appeal in the court which
passed the decree;
 Instituting of appeal against the judgment is allowed where the
decree is not drawn up;
 Scope of First Appeal, Second Appeal, Letters Patent Appeal
and Revision has been curtailed.
All amendments made in the Code in 1999 as also in 2002 are intra
vires and constitutional.

Meaning and Object

The Law relating to the practices and procedure to be followed in the

Civil Courts is regulated by the Code of Civil Procedure, 1908. The
word CODE means ‘a systematic collection of statutes, body of laws
so arranged as to avoid inconsistency and overlapping‘.

Preamble :-

An Act to consolidate and amend the laws relating to the procedure of

the Courts of Civil Judicature.

WHEREAS it is expedient to consolidate and amend the laws relating

to the procedure of the Courts of Civil Judicature

 The main object of this civil procedure code is to consolidate

and amend the laws relating to the procedure and practices
followed in the Civil Courts in India.
 The Civil Procedure Code regulates every action in civil
courts and the parties before it till the execution of the
degree and order.
Extent and Application

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

1. The State of Jammu and Kashmir - omitted by Act 34 of

2019,

2. The state of Nagaland and the tribal areas

There is also a provision that the concerned state governments may
make the provisions of this code applicable to the whole or part of the
State of Nagaland or such tribal areas by notification in the official
gazette.

This code is applicable in the scheduled areas of the erstwhile State of

Madras (Lakshadweep), the East Godavari, West Godavari and
Visakhapatnam agencies (Now in Andhra Pradesh State).

By the Amendment Act of 1976, the application of the provisions of

the Code have been extended to Schedule Areas also.

Civil Procedure Code: Scope

The Code is exhaustive on the matters directly dealt by it but it is

comprehensive in other issues. The framers of the code could not
foresee the possible circumstances which may arise in the future
litigations and could not provide the procedure for such situations.
  Hence the framers of the code (legislature) provided inherent
powers to the court to meet such circumstances (where the code
could not provide a procedure) according to the principles
of natural justice, equity and good conscience.

As this Code is a general procedural law, it does not contradict with

the local or special law in force. In the event of any conflict between
the civil procedure code and the special law, the special law will
prevail over the civil procedure code. In case the local or general
law is silent on any matter, then the provisions of the civil procedure
code will prevail.

Civil Procedure Code: Scheme

The Code has two parts and they are –

 the body of the Code containing 158 sections; and

 the (First) Schedule, containing 51 Orders, Rules and Forms.

 The sections deal with provisions of a substantive nature, laying

down the general principles of jurisdiction,
 The Orders in the (First) Schedule relates to the procedure and
the method, manner and mode in which the jurisdiction may be
exercised."
  The Provisions of the Body of the code can be amended only
by the legislature and the Courts can not alter or amend the body
of the code.
 The various High Courts are empowered to alter or add any
rules in the schedules under Section 122 to 127, 129, 130 and
131 and such new rules should not be inconsistent with the
provisions of the body of the code.

 The sections and the rules, therefore, must be read together and
harmoniously construed, but if the rules are inconsistent with the
sections, the latter will prevail.

Jurisdiction of the Civil Courts- Kinds of jurisdiction

Introduction :-
The term "jurisdiction" has not been defined in the Code. The word
(juris- diction) is derived from Latin terms "juris" and "dicto" which
means "I speak by the law".
 Stated simply, "jurisdiction" means the power or authority of a
court of law to hear and determine a case or a matter. It is the
power to entertain, deal with and decide a suit, an action,
petition or other proceeding.
Thus, jurisdiction of a court means the extent of the authority of a
court to administer justice prescribed with reference to the subject-
matter, pecuniary value and local limits.

KINDS OF JURISDICTION
Jurisdiction can, as stated above, be classified into three categories,
viz.,
 Jurisdiction over Subject matter
 Territorial Jurisdiction
 Pecuniary Jurisdiction

Jurisdiction as to subject-matter
Different courts have been empowered to decide different types of
suits. Certain courts are precluded from entertaining certain suits.
Thus, a Presidency Small Causes Court has no jurisdiction to try suits
for specific performance of a contract, partition of immovable
property, foreclosure or redemption of a mortgage, etc. Similarly, in
respect of testamentary matters, divorce cases, probate proceedings,
insolvency proceedings, etc., only the District Judge or Civil Judge
(Senior Division) has jurisdiction.

Territorial or local jurisdiction

Section 16 to 20 of C.P.C deals with Territorial jurisdiction of a court.
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 out- side it. The High Court has jurisdiction over the
territory of a 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.

Pecuniary jurisdiction (Section 15)

The Code provides that a court will have jurisdiction only over those
suits the amount or value of the subject-matter of which does not
exceed the pecuniary limits of its jurisdiction. 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.
Karnataka Civil Courts Act
 Junior Civil Judge – upto 5 lakh – Section 17
 Senior Civil Judge karnataka - Rs. 5,00,000/- and above
 Court of Small Causes at Bangalore : Upto Rs. 2,00,000/-
 Jurisdiction of the Dist. Court Upto Rs. 10,00,000
Presidency Small Causes Court cannot entertain a suit in which the
amount claimed exceeds Rs 1000.

Other kinds of jurisdiction

Civil and criminal jurisdiction
Civil jurisdiction is that which concerns and deals with disputes of a
"civil nature". Criminal jurisdiction, on the other hand, relates to
crimes and punishes offenders.
Original and appellate jurisdiction
Original jurisdiction is jurisdiction inherent in, or conferred upon, a
court of first instance. In the exercise of that jurisdiction, a court of
first instance decides suits, petitions or applications. Appellate
jurisdiction is the power or authority conferred upon a superior court
to re-hear by way of appeal, revision, etc., of causes which have been
tried and decided by courts of original jurisdiction.
 Munsiffs Courts, Courts of Civil Judges, Small Cause Courts are
having original jurisdiction only,
 while District Courts, High Courts have original as well as
appellate jurisdiction.
Exclusive and concurrent jurisdiction
Tribunal to try, deal with and decide a case. No other court or
authority can render a judgment or give a decision in the case or class
of cases. Concurrent or co-ordinate jurisdiction is jurisdiction which
may be exercised by different courts or authorities between the same
parties, at the same time and over the same subject-matter. It is,
therefore, open to a litigant to invoke jurisdiction of any of such court
or authority.

General and special jurisdictionGeneral jurisdiction extends to all

cases comprised within a class or classes of causes. Special or limited
jurisdiction, on the other hand, is jurisdiction which is confined to
special, particular or limited causes.

Legal and equitable jurisdiction – only in England

Legal jurisdiction is a jurisdiction exercised by Common Law Courts
in England, while equitable jurisdiction is a jurisdiction exercised by
Equity Courts. Courts in India are courts of both, law and equity.

Municipal and foreign jurisdiction

Municipal or domestic jurisdiction is a jurisdiction exercised by
municipal courts, i.e. courts in a country. Foreign jurisdiction means
jurisdiction exercised by a court in a foreign country. A judgment
rendered or decision given by a foreign court is a "foreign judgment".

Suits of civil nature - Section 9

Courts to try all civil suits unless barred :-

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 questions as to religious rites
or ceremonies.

[Explanation ll].- For the purposes of this section, it is immaterial

whether or not any fees are attached to the office referred to in
Explanation I or whether or not such office is attached to a particular
place

Jurisdiction refers to the power or authority of the court to decide or

hear on a particular issue or matter. The Jurisdiction of a case is
decided on following grounds:

 Subject matter

 Financial Value

 Geographical limits.

Two conditions need to be satisfied for a civil court to exert

jurisdiction on a suit:

1. The suit must be civil nature

 2. The cognizance should not have been impliedly or expressly
barred for such a suit.”

Civil Suit :-

 A civil suit has not been defined in any Act. Any suit of a non-
criminal nature which ratifies or determines civil rights can be
termed as a civil suit.
 The private rights and obligations of citizens are covered under
the expression “suit of civil nature.” A civil suit shall not
adjudicate on a political or religious question.
 As can be observed from the explanations, suits of civil nature
mean a suit that is presented before a Civil Court for
adjudication of a civil matter, more specifically to determine the
right of property or office.
 a suit which concerns a question of property is a suit of civil
nature, irrespective of whether such suits might include a
question pertaining to religious ceremonies or rituals

Expressly or impliedly barred

Suits expressly barred – A suit barred by an enactment for the time

being in force is said to be expressly barred.

Recovery of Debts Due to Banks and Financial Institutions Act,

1993 – It is evident from Sections 17 and 18 of the Act that civil
court’s jurisdiction is barred only in regard to applications by a bank
or a financial institution for recovery of its debts

Arbitration and Conciliation Act, 1996 – Where the parties have

submitted their disputes to the Arbitral Tribunal, the same disputes
cannot be permitted to be agitated simultaneously in a civil suit and
the bar laid down under Section 5 of the Arbitration and Conciliation
Act, 1996

Payment of Wages Act, 1936 – A civil court has no jurisdiction to

entertain a suit by an employee against his employer for recovery of
wages, after the expiry of the period of limitation prescribed by
Section 15(2) of the Act for making an application to the Authority
appointed under the Act,

Motor Vehicles Act, 1988 – Section 175 of the Act bars the
jurisdiction of the civil courts in respect of claims for compensation
on account of motor accident if the claims Tribunal is constituted in
the area.

Constitution of India 1950 – In view of Article 329, civil courts have

no power to entertain a suit which challenges the elections to
Parliament or the State Assemblies

Suits impliedly barred –

A suit barred by general principles of law is said to be impliedly

barred.
  Where the statute provides a specific remedy, it deprives the
person of a remedy of any other form. Similarly,
 even civil suits are barred from the cognizance of a civil court
on the ground of public policy.
 A suit is said to be impliedly barred when it is said to be
excluded by general principles of law.
 When a specific remedy is given by statute, it, therefore, denies
a person who requires a remedy of any different form than is
given by statute.”

Eg :- Consumer Protection Act, 1986 – It was held in CCI Chambers

Coop. HSG. Society Ltd. v. Development Credit Bank Ltd. that
jurisdiction of consumer dispute redressal forum cannot be relegated
to civil court on the ground that the case involves detailed
investigation.

Land Acquisition Act :- Civil court is barred to take up the case

related to the matters deals with not- following the procedure during
acquisition

General principles relating to jurisdiction of civil courts :

1. A Civil court has jurisdiction to try all suits of civil nature

unless their contingence is barred either expressly or impliedly.
2. Concernt can neither confer nor take away jurisdiction of a
court.
 3. A decree passed by a court without jurisdiction is a nullity and
the validity thereof can be challenged at any stage of the
proceedings, in execution proceedings or even in collateral
proceedings.
4. Every court has inherent power to decide the question of its own
jurisdiction.
5. Jurisdiction of a court depends upon the environments made in
plaint and upon the defence in a written statement.
6. For deciding jurisdiction of a court substance of a matter and not
its form is important
7. Every presumption should be made in favor of jurisdiction of a
civil court
8. A statue ousting the jurisdiction of a civil court must be strictly
construed.
9. Bardden of proof of exclusion of jurisdiction of a court is on the
party who asserts it.

Brij Raj Sing Vs Laxman Singh :

Any person having cause of civil nature can approach the court and
file a suit, unless it is expressly or impliedly barred.

Rajasthan SRTC v. Bal Mukund Bairwa

Section 9 of the Code is an enforcement of fundamental principle of

law laid down in the maxim ubi jus ibi remedium. A litigant, thus
having a grievance of a civil nature has a right to institute a civil suit
in a competent e civil court unless its cognizance is either I expressly
or impliedly barred by any statute. Civil courts can try all suits, unless
barred by a statute, either expressly or by necessary implication. Civil
court being a court of plenary jurisdiction has the power to determine
its jurisdiction upon considering averments made in the plaint.

Shri Panch Nagar v. Purushottam Das, if any specific terms are

lacking from any statute, to find an implied dismissal of the civil
courts’ jurisdiction enumerated in any design, plan, or suitable
provisions of the statute.

PMA Metropolitan vs M.M. Marthoma : In this case, the Supreme

Court made a certain observation regarding Section 9 of the Civil
Procedure Code.

 Various phrases contained under Section 9 have both positive

and negative implications.
 The initial part debars opens the doors to try civil cases in the
court, latter debars from the entry of those cases which are
expressly or impliedly barred.
 A religious matter which involves the right of property is a case
of civil nature, the civil court is competent to try the case. No
court can refuse to try cases that are mentioned in the
description.
 The word Shall makes it a compulsory section.

State of AP vs Majeti Laxmikanth Rao : The Supreme Court laid

down two tests about the exclusion of jurisdiction of the civil court.
 1. There should be a legislative intent to exclude the jurisdiction of
the civil court. It could be either directly or indirectly, have to
mention adequate reasons for justification for the exclusion of
the suit.
2. There should be an existence of an alternate remedy available
for the claimant if not the jurisdiction of the civil court cannot
be excluded.

Conclusion: Section 9 at the threshold of the civil procedure code

primarily deals with the question of civil courts jurisdiction to
entertain a cause. It lays down that subject to what are contained in
section 10, 11, 12, 13, 47, 66, 83, 84, 91, 92, 115, etc., civil court has
jurisdiction to entertain a suit of civil nature except when its
cognisance expressly barred or barred by necessary implication

Section 10 – Res Sub Judice

10. Stay of Suit :-

“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
o between the same parties, or between parties under whom
they or
o any of them claim litigating under the same title
 o 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
the jurisdiction, or
 before the Supreme Court.”

Explanation- The pendency of a suit in a foreign court does not

preclude the Courts in India from trying a suit founded on the same
cause of action.

Why Section10 (Res sub Judice) :

The whole object of Civil Procedure code is, whenever the legal right
of a person is infringed , they can legitimately approach the court to
get remedy,

But sometimes it happens the litigant or the advocate may not get the
order what they want, so somehow by hook or crook to get the
order ,they make an attempt to get the same order by filing one more
suit ,.

Ex – Bangalore 95 Civil Courts and Sessions courts are there.

This is not the position right now, it was the same way back 1908
when the CPC was framed. So to curtail this act, the farmers of CPC
made this provision under Section 10 of CPC
Sub Judice refers to a Latin term essentially means a ‘matter that is
still in consideration of the Court’ or the suit is still pending

The object of Section 10

Objectives: -

1. To protect a person from multiplicity of proceedings.

2. To avoid a conflict of decisions by the court of concurrent

jurisdiction.

3. To avert the inconvenience to the parties and give effect to the rule
of res judicata.

4. Avoid wasting Court Resources

5. To avoid harassing the defendant,

6. To avoid delaying the court’s proceedings

Essential conditions for the application of this provision

1. Two suits- There must be two suits, one previously instituted

and the other subsequently instituted.

2. Directly and Substantially- The matter in issue in the

subsequent suit must be directly and substantially in issue in
the previous suit.
 3. Same parties- The parties involved in both the suits must be
the same.

4. Jurisdiction of Court- The previously instituted suit must be

pending in a court in India or a Court beyond the limits of
India but established or continued by the Central government
of India.

5. Competent Court- The Court in which the previous suit is

instituted must be competent and have the jurisdiction to grant
the relief claimed in the subsequent suit.

6. The same title- The parties involved must be litigating under

the same title.

When Res-Subjudice is not applicable:-

i. Suits pending in foreign court: If the previous suit is
instituted in a foreign court then it will not bar Indian Courts from
trying subsequently instituted suit. Foreign Court is defined in Section
2(5) of the Code. It means court situated outside India and not
established by the authority of the Central Government.

ii. Interim Order: Section 10 does not preclude the courts

from passing interim orders such as grant of injunction, appointment
of receivers, etc

iii. Summary Suits: In Indian Bank v. Maharashtra State Coop.

Marketing Federation, the Supreme Court held that Section 10 is
applicable to regular suits and not summary suits under Order 37 of
the Code.

iv. issues are different: Court cannot apply this section where
point at issues are distinct and different, or even where there are some
issues in common and others are different issues. This section is also
not applicable between the suits where although the parties are same,
but the issues are not the same.

In Practical :-

Inherent power to stay:- Even where the provisions of Section 10 do

not strictly apply, a civil court has inherent power under Section 151
to stay a suit to achieve the ends of justice . Similarly, court has
inherent power to consolidate different suits in such cases .

Effect of contravention:- A decree is passed in contravention of

Section 10 is not a nullity and cannot be disregarded at the stage of
execution. It is only the trial and not institution of subsequent suit
which is barred under Section 10. Thus, it only lays down a rule of
procedure .

Applicability to the interim orders: Section 10 does not bar

institution of suits, but it bars trial of the suit. Since this rule applies to
the trial of the suit and not the institution it does not preclude the
courts from passing interim orders such as grant of injunction,
appointment of receiver, etc .
Mandatory Nature :- The provisions of section 10 are definite and
mandatory. If all the conditions are satisfied then there is no discretion
left on the part of court and the provisions become mandatory. The
court should even suo moto stay the second suit if it is satisfied that
this section is applicable.

Case Laws :-

Mathew &Anr v. Sony Cyriac :- in respect to criminal prosecution

and redemption of money for a dishonoured cheque.

Manohar Lal Chopra v. Sait Hiralal :- this section of the Code must
apply mandatorily, with no exceptions, unless and unless the Court
lacks jurisdiction authority or the power to award relief in a
subsequent suit.

Escorts Const. Equipment Ltd. v. Action Const Equipments Ltd., the

requisites for invoking Section 10 were repeated. This section’s
provisions are exhaustive. They include explanations as well as
detailed and clear interpretations. These requirements are not
optional; they must be followed by the Courts when they proceed with
the trial of a case. The provisions in Section 10 are very clear and
unambiguous, with an open forum for interpretation, in order to
decrease the number of lawsuits involving the same subject matter
and issues.

Guru Prasad Mohanty v. Bijoy Kumar Das :- it was laid down that
if the parties give consent or do not raise objection and waive their
right, the court may decide the subsequent suit. No objection
thereafter can be raised by the aggrieved party.

Doctrine of RES JUDICATA (SECTION 11)

No Court shall try any suit or issue in which

 the matter directly and substantially in issue has been directly
and substantially in issue in a former suit
 between the same parties, or between parties under whom they
or any of them claim,
 litigating under the same title,
 in a Court competent to try such subsequent suit or the suit in
which such issue has been subsequently raised, and
 has been heard and finally decided by such Court.

Explanation I.-- The expression former suit shall denote a suit which
has been decided prior to a suit in question whether or not it was
instituted prior thereto.

Explanation II.-- For the purposes of this section, the competence of

a Court shall be determined irrespective of any provisions as to a
right of appeal from the decision of such Court.

Explanation III.--The matter above referred to must in the former

suit have been alleged by one party and either denied or admitted,
expressly or impliedly, by the other.
Explanation IV.-- Any matter which might and ought to have been
made ground of defence or attack in such former suit shall be deemed
to have been a matter directly and substantially in issue in such suit.

Explanation V.-- Any relief claimed in the plaint, which is not

expressly granted by the decree, shall for the purposes of this section,
be deemed to have been refused.

Explanation VI.-- Where persons litigate bona fide in respect of a

public right or of a private right claimed in common for themselves
and others, all persons interested in such right shall, for the purposes
of this section, be deemed to claim under the persons so litigating .

Explanation VII.-- The provisions of this section shall apply to a

proceeding for the execution of a decree and references in this
section to any suit, issue or former suit shall be construed as
references, respectively, to a proceeding for the execution of the
decree, question arising in such proceeding and a former proceeding
for the execution of that decree.

Explanation VIII.-An issue heard and finally decided by a Court of

limited jurisdiction, competent to decide such issue, shall operate as
res judicata in as subsequent suit, notwithstanding that such Court of
limited jurisdiction was not competent to try such subsequent suit or
the suit in which such issue has been subsequently raised.

Introduction
Section 11 of the Code of Civil Procedure embodies the doctrine of
res judicata or the rule of conclusiveness of a judgment, as to the
points decided either of fact, or of law, or of fact and law, in every
subsequent suit between the same parties. It enacts that once a matter
is finally decided by a competent court, no party can be permitted to
reopen it in a subsequent litigation. In the absence of such a rule there
will be no end to litigation and the parties would be put to constant
trouble, harassment and expenses.

Nature and scope

Res - subject matter or dispute and
Judicata - adjudged, decided or adjudicated.
Res Judicata - a matter adjudged or a dispute decided

The doctrine of res judicata is conceived in the larger public interest

which requires that all litigation must, sooner than latter, come to an
end. It embodies the rule of conclusiveness and operates as a bar to
try the same issue once again. It thereby avoids vexatious litigation.

Object
The doctrine of res judicata is founded on three principles, which are
non- negotiable in any civilized system of law
(a) nemo debet bis vexari pro una et eadem causa - no man should
be vexed twice for the same cause.
(b) interest reipublicae ut sit finis litium - it is in the interest of the
State that there should be an end to a litigation
(c) res judicata pro veritate occipitur - a judicial decision must be
accepted as correct.
Conditions
It is not every matter decided in a former suit that will operate as res
judicata in a subsequent suit. To constitute a matter as res judicata
under Section 11, the following conditions must be satisfied:
(I) 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 in the
former suit (Explanation I).
(II) The former suit must have been a suit between the same
parties or between parties under whom they or any of
them claim.
(III) Such parties must have been litigating under the same title
in the former suit.
(IV) 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.
(V) The matter directly and substantially in issue in the
subsequent suit must have been heard and finally
decided by the court in the former suit.
Subject Matter in issue
A decision of a competent court on a matter in issue may be res
judicata in another proceeding between the same parties; the "matter
in issue" may be an issue of fact, an issue of law, or one of mixed law
and fact.

 The expression "matter in issue" means the rights litigated

between the parties, i.e. the facts on which the right is claimed
and the law applicable to the determination of that issue. Such
issue may be an issue of fact, issue of law or mixed issue of law
and fact.
Same parties
The second condition of res judicata is that the former suit must have
been a suit between the same parties or between the parties under
whom they or any of them claim. when the parties in the subsequent
suit are different from the former suit, there is no res judicata.
 A "party" is a person whose name appears on the record at the
time of the decision.
 A party may be a plaintiff or a defendant.

Same title
The third condition of res judicata is that the parties to the subsequent
suit must have litigated under the same title as in the former suit.
Same title means same capacity. Title refers to the capacity or interest
of a party. Litigating under the same title means that the demand
should be of the same quality in the second suit as was in the first suit.
It has nothing to do with the cause of action on which he sues or is
sued.

Competent court
The fourth condition of res judicata is that the court which decided the
former suit must have been a court competent to try the subsequent
suit, Thus, the decision in a previous suit by a court, not competent to
try the subsequent suit, will not operate as res judicata. The principle
behind this condition is sound one, namely, that the decision of the
court of limited jurisdiction ought not to be final and binding on a
court of unlimited jurisdiction.
The expression "competent to try" means "competent to try the
subsequent suit if brought at the time the first suit was brought".

Heard and finally decided

The fifth and the final condition of res judicata is that the matter
directly and substantially in issue in the subsequent suit must have
been heard and finally decided by a court in the former suit.
 The section requires that there should be a final decision on
which the court must have exercised its judicial mind.
 In other words, the expression "heard and finally decided"
means a matter on which the court has exercised its judicial
mind and has after argument and consideration come to a
decision on a contested matter. It is essential that it should have
been heard and finally decided.
A matter can be said to have been heard and finally decided
notwithstanding that the former suit was disposed of
(i) ex parte; or
(ii) by failure to produce evidence (Order 17 Rule 3); or
(iii) by a decree on an award; or
(iv) by oath tendered under the Indian Oaths Act, 1873.
But if the suit is dismissed on a technical ground, such as non-joinder
of necessary party, it would not operate as res judicata.

Decision on merits - In order that a matter may be said to have been

heard and finally decided, the decision in the former suit must have
been on merits. Thus, if the former suit was dismissed by a court for
want of jurisdiction, or for default of plaintiff's appearance, or on the
ground of non-joinder or misjoinder of parties, or on the ground that
the suit was not properly framed, or that it was premature, or that
there was a technical defect, the decision not being on merits, would
not operate as res judicata in a subsequent suit.

EXPLANATION

Explanation I - Former suit:

Explanation I to Section 11 provides that the expression "former suit"
shall denote a suit which has been decided prior to the suit in question
whether or not it was instituted prior thereto. It is not the date on
which the suit is filed that matters but the date on which the suit is
decided; so that even if a suit was filed later, it will be a former suit
within the meaning of Explanation I if it has been decided earlier.

Explanation II.- Right of Appeal :-

Explanation II to Section 11 makes it clear that for the purpose of res
judicata, the competence of the court shall be determined irrespective
of any provision as to a right of appeal from the decision of such
court. No doubt, one of the tests for application of the doctrine of res
judicata is to ascertain whether a party aggrieved could challenge the
finding by filing an appeal.
 But the question whether there is a bar of res judicata does not
depend on the existence of a right of appeal but on the question
whether the same issue, under the circumstances mentioned in
Section 11 of the Code, has been heard and finally decided.

Explanation III - Matter directly and substantially in issue:

A matter directly and substantially in issue in a former suit will
operate as res judicata in a subsequent suit. "Directly" means directly,
at once, immediately, without intervention. "Substantially" means
essentially, materially or in a substantial manner. It is something short
of certainty but indeed more than mere suspicion.

Explanation IV - Matter constructively in issue

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.
The principle underlying Explanation IV is that where the parties
have had an opportunity of controverting a matter, that should be
taken to be the same thing as if the matter had been actually
controverted and decided. The object of Explanation IV is to compel
the plaintiff or the defendant to take all the grounds of attack or
defence which were open to him.

Explanation VI -Representative suit

This Explanation provides that where persons litigate bona fide in
respect of a public right or of a private right claimed in common for
themselves and others, and all persons interested in such right shall,
for the purposes of Section 11, be deemed to claim under the persons
so litigating.

Explanation VII - Execution proceedings:

Explanation VII specifically provides that the provisions of Section
11 will directly apply to execution proceedings also.

Explanation VIII - Competent court:

The expression "competent to try" means "competent to try the
subsequent suit if brought at the time the first suit was brought". In
other words, the relevant point of time for deciding the question of
competence of the court is the date when the former suit was brought
and not the date when the subsequent suit was filed.

Exceptions to the Plea of Res Judicata

Judgment in original suit obtained by the fraud – if a court thinks

that the judgment of former suit is obtained by the fraud, then the
doctrine of the res judicata is not applied.

A different cause of action – Section 11 will not be applied when

there is a different cause of action in the subsequent suits. The court
cannot bar a subsequent suit if it contains the different cause of action.

When there is Interlocutory Order – Interlocutory order is the

interim order, decree or sentence passed by the court. A principle of
the Res Judicata will be not applied when an interlocutory order is
passed on the former suit.

Waiver of a decree of Res Judicata – Decree of Res Judicata is a

plea in the bar which party must waive. If a party did not raise the
plea of res judicata then the matter will be decided against him. It is
the duty of an opposite party to make the court aware about the
adjudication of matter in former suit. If a party fails to do so, the
matter is decided against him.
Court not competent to decide – When the former suit is decided by
the court who has no jurisdiction to decide the matter then the
doctrine of res judicata is not applied to the subsequent suit.

When there is a change in Law – When there is a change in the law

and new laws bring new rights to the parties then such rights are not
barred by Section 11.

Difference between Res- Judicata and Res Sub-judice

Res Judicata Res Subjudice

The provisions relating to res
The provisions relating to res
judicata have been provided
subjudice have been provided
under section 11 of the Civil
under section 10 of the Civil
Procedure Code, 1908.
Procedure Code, 1908
Res judicata is defined as 'Res'
means 'subject matter' and Res subjudice is defined as the
'judicata' means 'adjudged' or term 'Res' means matter, cause, or
'decided'. Therefore, together litigation and the term 'subjudice'
the meaning of res-judicata is 'a means 'under judge', or 'under
subject matter adjudged' or 'a the judgment'.
subject matter decided

Res Judicata Res Subjudice

The rule of res judicata is The rules of res subjudice are
applicable only when the matter applicable when the subsequent
has already been decided by the suit relates to the previous suit
competent court of jurisdiction. pending before the competent
 court of jurisdiction.

Res judicata prevents the trial of Whereas, res subjudice bars the
a suit or issue in which the trial of a suit in which the matter
matter in issue has already been is pending for decision in the
decided in the former suit previous suit.

Conditions for Res Judicata:-

Conditions for Res Subjudice:-
1. The previous suit must have
been decided by the competent 1. There must be two suits
court of jurisdiction. pending whereas one is
previously instituted and the other
2. The subject matter in issue in subsequently instituted.
the subsequent suit must be the
same which directly and 2. The subject matter in the issue
substantially in issue either in the subsequent suit must be
actually or constructively or directly and substantially in the
ineffectually in the previous suit issue in the previous suit.

3. The previous suit and 3. The previous suit and

subsequent suit must be subsequent suit must be between
between the same parties. the same parties.

4. The court which decided the 4. The court in which the previous
previous suit must be a suit has been instituted must be a
competent court of jurisdiction. competent court of jurisdiction.

5. Both parties must have 5. Both parties in the suit must be

litigated under the same title in under the same title in both the
the former suit suits
The primary purpose of the
The main purpose of the doctrine
doctrine of res judicata is to
of res subjudice is to avoid the
prevent the time and resources
contradiction of decisions on a
of the court from being
similar matter in issue.
misused.

Ex :- Order 9 Rule 9

Bar to further suit – Section 12

Section 12 :- Bar to further suit Where a plaintiff is precluded by

rules from instituting a further suit in respect of any particular cause
of action, he shall not be entitled to institute a suit in respect of such
cause of action in any Court to which this Code applies.

The main object of this section is to prevent endless litigations and

to prevent abuse of Legal procedure...

The Code of Civil Procedure 1908 precludes a plaintiff from

instituting a suit in the following cases -

 Section 11 :- Where is suit is barred by Res-judicata

 Section 21(1) :- No objection as to the place of suing shall be
allowed by any appellate or Revisional Court unless such
 objection was taken in the Court of first instance at the earliest
possible opportunity and in all cases where issues or settled at or
before such settlement, and unless there has been a consequent
failure of justice.
 Section 21-A :- Where a decree is sought to be challenged on
objection as to territorial (and/or pecuniary) jurisdiction of a
Court
 Section 47(1) :- Where questions relate to execution,
discharge or satisfaction of decree 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.
 Section 95(2) :- An order determining any such application
shall bar any suit for compensation in respect of such arrest,
attachment or injunction.
 Section 144(2) :- Where restitution can be claimed No suit
shall be instituted for the purpose of obtaining any restitution or
other relief which could be obtained by application under sub-
section (1).
 Order 2 Rule 2 :- Where there is omission to sue in respect of
part of claim by a plaintiff
 Order 9 Rule 9 :- Where a decree is passed against a plaintiff
by default
  Order 11Rule 21(2):- Where a suit is dismissed for non-
compliance with an order of Discovery.
 Order 22 Rule (9) :-Where a suit is abated
 Order 23 Rule 1(1) :-Where a suit or part of a claim has been
abandoned by the plaintiff
 Order 23 rule 1(3) :-Where a suit or part of a claim has been
withdrawn by a plaintiff without the leave of the court.
 Order 23 rule 3(a) :-Where a compromise decree is sought to
be challenged on the ground that the compromise was not
lawful

Foreign Judgment - Sections 13-14

Section 2(5) “foreign Court” :- means a Court situate outside India
and not established or continued by the authority of the Central
Government;

Section2(6) “foreign judgment” :- means the judgment of a foreign

Court;

Section 13 - When foreign judgment not conclusive.—A foreign

judgment 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
—
 a. where it has not been pronounced by a Court of competent
jurisdiction;
b. where it has not been given on the merits of the case;
c. where it appears on the face of the proceedings to be
founded on an incorrect view of international law or a
refusal to recognise the law of [India] in cases in which
such law is applicable;
d. where the proceedings in which the judgment was
obtained are opposed to natural justice;
e. where it has been obtained by fraud;
f. where it sustains a claim founded on a breach of any law
in force in [India]

Section 14 - Presumption as to foreign judgments.—The Court shall

presume upon the production of any document purporting to be a
certified copy of a foreign judgment, that such judgment was
pronounced by a Court of competent jurisdiction, unless the contrary
appears on the record; but such presumption may be displaced by
proving want of jurisdiction.

Foreign Judgments When Not Binding: Circumstances:

Sec. 13

Under Sec. 13 of the Code, a foreign judgment is conclusive and will

operate as res judicata between the parties there to accept in the cases
mentioned therein.
In other words, a foreign judgment is not conclusive as to any matter
directly adjudicated upon, if one of the conditions specified in clauses
(a) to (f) of section 13 is satisfied and it will then be open to a
collateral attack.

In the following six cases, a foreign judgment shall not be conclusive:

 Foreign not by a competent court;

 Foreign judgment not on merits;
 Foreign judgment against international or Indian law;
 Foreign judgment opposed to natural justice;
 Foreign judgment obtained by fraud;
 Foreign judgment founded on a breach of Indian law.

Foreign Judgment Not by A Competent Court

It is a fundamental principle of law that the judgment or order passed

by the court, which has no jurisdiction, is null and void. Thus, a
judgment of a foreign court to be conclusive between the parties must
be a judgment pronounced by a court of competent jurisdiction . Such
judgment must be by a court competent both by the law of state.

 Thus if A sues B in a foreign court, and if the suit is dismissed,

the decision will operate as a bar to a fresh suit by A in India on
the same cause of action.

Foreign Judgment not on Merits

In order to operate as res judicata, a foreign judgment must have been
given on merits of the case. A judgment is said to have been given on
merits when, after taking evidence and after applying his mind
regarding the truth or falsity of the plaintiff's case, the Judge decides
the case one way or the other.

 Thus, when the suit is dismissed for default of appearance of the

plaintiff; or for non-production of the document by the plaintiff
even before the written statement was filed by the defendant, or
where the decree was passed in consequence of default of
defendant in furnishing security, or after refusing leave to
defend,

such judgments are not on merits

Foreign Judgment Against International or Indian Law

A judgment based upon an incorrect view of international law or a

refusal to recognize the law of India where such law is applicable is
not conclusive. But the mistake must be apparent on the face of the
proceedings.

 Thus, where in a suit instituted in England on the basis of a

contract made in India, the English court erroneously applied
English law, the judgment of the court is covered by this clause
in as much as it is a general principle of Private International
Law that the rights and liabilities of the parties to a contract are
governed by the place where the contract is made (lex loci
contractus).
Foreign Judgments opposed to Natural Justice

It is the essence of a judgment of a court that it must be obtained after

due observance on the judicial process, i.e., the court rendering the
judgment must observe the minimum requirements of natural justice -
it must be composed of impartial persons, act fairly, without bias, and
in good faith; it must give reasonable notice to the parties to the
dispute and afford each party adequate opportunity of presenting his
case. A judgment, which is the result of bias or want of impartiality on
the part of a judge, will be regarded as a nullity.

Foreign Judgment Obtained By Fraud

It is a well-established principle of Private International Law that if a

foreign judgment is obtained by fraud, it will not operate as res
judicata.

In the leading case of Satya v. Teja Singh, where a husband obtained

a decree of divorce against his wife from an American Court averring
that he was domiciled in America. Observing that the husband was
not a bonafide resident or domicile of America, and he had played
fraud on a foreign court falsely representing to it incorrect
jurisdictional fact, the Supreme Court held that the decree was
without jurisdiction and a nullity.

Foreign Judgment Founded on Breach of Indian Law

Where a foreign judgment is founded on a breach of any law in force

in India, it would not be enforced in India. The rules of Private
International Law cannot be adopted mechanically and blindly. Every
case, which comes before an Indian Court, must be decided in
accordance with Indian law. It is implicit that the foreign law must not
offend our public policy.

 a decree for divorce passed by a foreign court cannot be

confirmed by an Indian court if under the Indian law the
marriage is indissoluble.

Section 14 :- Presumption As To Foreign Judgments:

Section 14 of the Code declares that the court shall presume, upon the
production of any document purporting to be a certified copy of a
foreign judgment, that such judgment was pronounced by a court of
competent jurisdiction, unless the contrary appears on the record, or is
proved. However, if for admissibility of such copy any further
condition is required to be fulfilled, it can be admitted in evidence
only if that condition is satisfied.

Thus, in Narsimha Rao v. Venkata Lakshmi, the Supreme Court held

that mere production of a Photostat copy of a decree of a foreign court
is not sufficient. It is required to be certified by a representative of the
Central Government in America.

Place of Suits (Sections. 15 to 20)

Introduction :-
Suits may be of different types.
 They may relate to movable properties or immovable properties;
 They may be based on contracts or torts
 They may be matrimonial proceedings,
 suits for accounts and so on.
The jurisdiction of a court to entertain, deal with and decide a suit
may be restricted by a variety of circumstances. Sections 15 to 20 of
the Code of Civil Procedure regulate the forum for the institution of
suits.

PECUNIARY JURISDICTION

Section 15 : Court in which suits to be instituted :-

Every suit shall be instituted in the Court of the lowest grade

competent to try it.
It thus directs the suitor to institute a suit in the court of a lowest
grade.
Nature and Scope
Section 15 states that of the Code refers to the pecuniary jurisdiction
of the court. It every suit should be instituted in the court of the lowest
grade competent to try it. The rule laid down in the section is a rule of
procedure and does not affect the jurisdiction of the court. Hence, a
decree passed by a court of a higher grade cannot be said to be
without jurisdiction.
It is merely an irregularity covered by Section 99 of the Code and the
decree passed by the court is not a nullity."

Object
The object underlying this provision is twofold,
 to see that the courts of higher grades shall not be overburdened
with suits; and
 to afford convenience to the parties and witnesses who may be
examined in such suits.
 Not to curtail rights of appeal

Thus, Bombay, Calcutta and Madras High Courts are having original
jurisdiction like City Civil Courts and Small Causes Courts. The
pecuniary jurisdiction of a Small Causes Court is, say, up to Rs
50,000. Therefore, a suit to recover Rs 5000 as damages for breach of
contract can be tried by any of the courts.
But according to Section 15 of the Code, the suit must be filed in the
lowest court, i.e. in the Small Causes Court. But if the suit is filed in
the City Civil Court and the decree is passed by that court, it is not a
nullity

TERRITORIAL JURISDICTION
Types of suits
For the purpose of territorial jurisdiction of a court, suits may be
divided into four classes, viz.:
 (a) Suits in respect of immovable property; Sec 16-18
(b) Suits for movable property; Sec 19
(c) Suits for compensation for wrong (tort); and Sec 19
(d) Other suits. Sec 20

Section 16 : Suits to be instituted where subject-matter situate

Subject to the pecuniary or other limitations prescribed by any law,

suits

a) for the recovery of immovable property with or without rent or

profits,

b) for the partition of immovable property

c) for foreclosure, sale or redemption in the case of a mortgage

of or charge upon immovable property,

d) for the determination of any other right to or interest in

immovable property,

e) for compensation for wrong to immovable property,

f) for the recovery of movable property actually under distraint

or attachment,

shall be instituted in the Court within the local limits of whose

jurisdiction the property is situate

Provided 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
and voluntarily resides, or carries on business, or personally works
for gain.

Explanation.— In this section "property" means property situate in

India.

Immovable property: Sections 16-18

Sections 16 to 18 deal with suits relating to immovable property.
Clauses (a) to (e) of Section 16 deal with the following five kinds of
suits, viza
i. Suits for recovery of immovable property
ii. Suits for partition of immovable property
iii. Suits for foreclosure, sale or redemption in case of
mortgage of or charge upon immovable property
iv. Suits for determination of any other right to or interest in
immovable property; and
v. Suits for torts to immovable property.
These suits must be filed in the court within the local limits of whose
jurisdiction the property is situate. This is very clear and simple and
does not create any difficulty.

Section 17. Suits for immovable property situate within jurisdiction

of different Courts: Where a suit is to obtain relief respecting, or
compensation for wrong to, immovable property situate within the
jurisdiction of different Court, the suit my be instituted in any Court
within the local limits of whose jurisdiction any portion of the
property is situate:

Provided that, in respect of the value of the subject matter of the

suit, the entire claim is cognizable by such Court.

immovable property situate within jurisdiction of different Courts

But what will happen if the property is situate within the jurisdiction
of more than one court? Section 17 of the Code provides for this
contingency. It says that where a suit is to obtain a relief respecting,
or damage for torts to, immovable property situate within the
jurisdiction of different courts,
 the suit can be filed in the court within the local limits of whose
jurisdiction any portion of the property is situate provided that
the suit is within the pecuniary jurisdiction of such court.
 This provision is intended for the benefit of suitors and to
prevent multiplicity of suits.
Section 18. Place of institution of suit where local limits of
jurisdiction of Courts are uncertain

(1) Where it is alleged to be uncertain within the local limits of

the jurisdiction of which of two or more Courts any
immovable property is situate, any one of those Courts may, if
satisfied that there is ground for the alleged uncertainty,
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.

(2) Where a statement has not been recorded under sub-section

(1), and 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.
  A case may, however, arise where it is not possible to say with
certainty that the property is situate within the jurisdiction of the
one or the other of several courts. In such a case, one of these
courts, if it is satisfied that there is such uncertainty, may after
recording a statement to that effect proceed to entertain and
dispose of the suit.'

Section 19: Suits for compensation for wrongs to person or

movable 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.

Illustrations

(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in

Calcutta or in Delhi.

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

of B. B may sue A either in Calcutta or in Delhi.

Movable property: Section 19

It has been said, movables follow the person
 A suit for wrong to movable property may be brought at the option of
the plaintiff
 either at the place where the wrong is committed or
 where the defendant resides, carries on business or personally
works for gain.
 Where such wrong consists of a series of acts, a suit can be filed
at any place where any of the acts has been committed.
 Similarly, where a wrongful act is committed at one place and
the consequences ensue at another place, a suit can be instituted
at the option of the plaintiff where the action took place or
consequences ensued.

PLACE OF SUING : GENERAL PROVISIONS

Nature of Suit Place of Suing

Court of the lowest grade competent

Every Suit
a try it
(Section 15)
Suits for Court within whose jurisdiction the
 Recovery of Immovable property is situate -
 Partition of Section 16
 Foreclosure, sale or redemption of
mortgage of or charge upon
 Nature of Suit Place of Suing
 Determination of any other right
to or interest in
 Compensation for wrong to
immovable property

Recovery of movable property under Court within whose jurisdiction the

actual distraint or attachment Immovable property is situate -
Section 16

 Relief respecting
 Compensation for wrong Court within whose jurisdiction
 the property is situate, or
-immovable property held by or on  the defendant resides, or
behalf of the defendant where the relief carries on business or
sought can be entirely obtained through personally works for gain
his personal obedience-

Court within whose jurisdiction any

 Relief respecting portion of the property is situate,
provided that the entire claim is
 Compensation for wrong
within the pecuniary Jurisdiction of
- Immovable property situate within the
such court (Section 17)
jurisdiction of different courts-
Where it is uncertain within the
jurisdiction of which of two or more Any of those courts, provided that
courts any immovable property is the court has pecuniary jurisdiction
situate- and jurisdiction as regards the
subject matter of the suit (Section
18)
 Nature of Suit Place of Suing

Compensation for wrong

 to person, or
 movable property- In either of the courts at the option
if the wrong is done within the of the plaintiff (Section 19)
jurisdiction of one court and the
defendant resides or carries on business
or personally works for gain within the
jurisdiction of another court-
 Where the cause of action
wholly or partly arises; or
 the defendant resides, carries
on business or personally
Any other suit-
works for gain; or
 where there are two or more
defendants, where any one of
them resides, carries on
business or personally works
for gain,
Case Laws :-
The Supreme Court has not only disapproved but strongly deprecated
the practice and increasing tendency on the part of the litigants of
crossing a forum which may oblige them by entertaining suits or
petitions though they have no jurisdiction in the matter.

In Union of India v. Oswal Woollen Mills Ltd.", though the

registered office of the company was at Ludhiana (Punjab), a petition
was filed against it in High Court of Calcutta and ex-parte ad interim
relief was obtained by the petitioner. The Supreme Court set aside the
order and observed that the action was taken as a part of manoeuvring
legal battle.

In Morgan Stanley Mutual Fund v. Kartick Das, the Supreme Court

stated, "There is an increasing tendency on the part of litigants to
indulge in speculative and vexatious litigation and adventurism which
the fora seem readily to oblige. We think such a tendency should be
curbed."
In ONGC v. Utpal Kumar Basus, though no cause of action had
arisen in Calcutta, the High Court entertained a writ petition and
granted interim relief to the petitioner.

Objections to jurisdiction (Sec 21 & 21A)

Section 21. Objections to jurisdiction :

(1) No objection as to the place of suing shall be allowed by

any appellate or Revisional Court unless such objection was taken in
the Court of first instance at the earliest possible opportunity and in
all cases where issues or settled at or before such settlement, and
unless there has been a consequent failure of justice.

(2) 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 of first instance at the earliest possible
opportunity, and in all cases where issues are settled, at or before
such settlement, and unless there has been a consequent failure of
justice.

(3) No objection as to the competence of the executing Court

with reference to the local limits of its jurisdiction shall be allowed
by any Appellate or Revisional Court unless such objection was
taken in the executing Court at the earliest possible opportunity, and
unless there has been a consequent failure of justice.

Section 21A. Bar on suit to set aside decree on objection as to place

of suing No suit shall lie challenging the validity of a decree passed
in a former suit between the same parties, or between the parties
under whom they or any of them claim, litigating under the same
title, on any ground based on an objection as to the place of suing.

Explanation The expression "former suit" means a suit which has

been decided prior to the decision in the suit in which the validity of
the decree is questioned, whether or not the previously decided suit
was instituted prior to the suit in which the validity of such decree is
questioned.

“Objection to be raised at the earliest possible opportunity” :

This Section contemplates rule of convenience and based on the maxim

vigilantibus non dormentibus jura subvenient meaning thereby that the
law supports only those who are vigilant and not those who are dormant.
As per this section, there are 3 types of objection:-

1) As to place of Suing [Section 21 (1)]

2) As to pecuniary Limits [Section 21 (2)]

3) As to territorial limits of executing court [Section 21 (3)]

In all those cases, objection can be allowed only if it was raised at the
earliest possible opportunity in the court of first instance and at the time
of settlement of issues or before it and unless there has been a consequent
failure of justice.

 This means any suit decided by court having no pecuniary or

territorial jurisdiction is not per se nullity and has to be tested
through alleged irregularity in revision and appellate courts as per
Section 21

 1st opportunity to raise objection by whom? Defendant through

Written Statement [O.VIII].

 This facility is available till Order XIV i.e. during the settlement of
issues but not afterward. (Framing of issues)

 Uless There has been a consequent failure of justice.

 Also all the above condition must co-exist.

Objection as to territorial jurisdiction (place of suing)-

Pathumma v. Kuntalan Kutty,. It is well established principle that

neither consent nor waiver nor acquiescence can confer jurisdiction upon
a court incompetent to try such suit. It is equally well settled that the
objection as to the local jurisdiction of a court does not stand on the same
footing as an objection to the competence of a court to try such a case. It
is a fundamental rule that a decree of court without jurisdiction is a
nullity; however objection as to the local jurisdiction of a court can be
waived. Moreover, Section 21 does not preclude objection as to the place
of suing in the appellate or revisional court, if the trial court has not
decided the suit on merits.

Objection as to Pecuniary Jurisdiction

In Hira Lal v. Kali Nath , the court held that objection as to the local
jurisdiction of the court can be waived. It is however submitted that the
principle applicable to territorial defects will pro tanto apply to pecuniary
defects as well.
Objection as to subject-matter of jurisdiction
Harshad Chiman Lal Vs DLF Universal Ltd
A court cannot adjudicate upon a subject-matter, which does not fall
within its province as limited or defined by law. A jurisdiction as to the
subject-matter of a suit is regarded as essential, for jurisdiction over the
subject-matter is a condition precedent or a sine qua non to the acquisition
of authority over the parties and the matter, and if the court does not
possess that jurisdiction, a judgment given, order made or decree passed is
absolutely null and void, which may be set aside in appeal, review or
revision. It's validity can be challenged even in collateral proceedings.
 Bar on suit to set aside decree on objection as to place of
suing [Section 21A]

Section 21 A was inserted by Amendment Act of 1976 which specifically

provides that no substantive suit shall lie challenging the validity of
decree passed in a former suit or to set aside such decree between the
same parties or their legal representatives litigating under same title on
the ground based on an objection as to the place of suing. This rule is
based on public policy and similar to the rule of res judicata. However
this provision is ambiguous, defective and incomplete. It speaks only of
place of suing but does not talks about pecuniary limits. But the principle
applicable to territorial defects will pro tanto apply to pecuniary defects
as well.

Transfer of Cases (Sections. 22 to 25)

Transfer of Cases (Sections. 22 to 25)

Section 22. Power to transfer suits which may be instituted in more than one
Court— 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 notice 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.

23. To what Court application lies :

(1) 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.

(2) 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.

(3) Where such Courts are subordinate to different High Courts, the application
shall be made the High Court within the local limits of whose jurisdiction the
Court in which the suit is brought is situate.

24. General power of transfer and withdrawal—

(1) On the application of any of the parties and after notice to the parties and
after hearing such of them as desired to be heard, or of its own motion without
such notice, the High Court or the District Court may at any stage—

(a) transfer any suit, appeal or other proceeding pending before it for
trial or disposal to any Court subordinate to it and competent to try or
dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court
subordinate to it, and— (i) try or dispose of the same; or (ii) transfer the
 same for trial or disposal to any Court subordinate to it and competent to
try or dispose of the same; or

(iii) retransfer the same for trial or disposal to the Court from which it
was withdrawn

(2) Where any suit or proceeding has been transferred or withdrawn under sub-
section (1), the Court which is (thereafter to try or dispose of such suit or
proceeding] may, subject to any special directions in the case of any order of
transfer, either retry it or proceed from the point at which it was transferred or
withdrawn.

(3) For the purposes of this section,—

(a) Courts of Additional and Assistant Judges shall be deemed to be

subordinate to the District Court;

(b) "proceeding" includes a proceeding for the execution of a decree or

order.]

(4) the Court trying any suit transferred or withdrawn under this section from a
Court of Small Causes shall, for the purposes of such suit, be deemed to be a
Court of Small Causes.

(5) A suit or proceeding may be transferred under this section from a Court
which has no jurisdiction to try it.

25. Power of Supreme Court to transfer suits, etc.—

(1) On the 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.
(2) Every application under this section shall be made by a motion which shall
be supported by an affidavit.

(3) The Court to which such suit, appeal or other proceeding is transferred
shall, subject to any special directions in the order of transfer, either retry it or
proceed from the stage at which it was transferred to it.

(4) In dismissing any application under this section, the Supreme Court may, if
it is of opinion that the application was frivolous or vexatious, order the
applicant to pay by way of compensation to any person who has opposed the
application such sum, not exceeding two thousand rupees, as it considers
appropriate in the circumstances of the case.

(5) The law applicable to any suit, appeal or other proceeding transferred
under this section shall be the law which the Court in which the suit, appeal or
other proceeding was originally instituted ought to have applied to such suit,
appeal or proceeding.

Introduction

The Plaintiff is Dominus Litis and as such he has the right to choose his
own forum and normally this right of the plaintiff cannot be interfered
with or curtailed either by the opposite party or by the court. But CPC
under section 22-25 gave powers to the court to transfer any suit, appeal
or other proceedings keeping in view of “Balance of convenience”

Who May Apply Sections 22-23

Sections 22 and 23 of the Code deal with the right of a defendant to apply
for the transfer of a suit. Where the plaintiff has the choice of two or more
courts in which he may institute a suit, a defendant, after notice to the
other side, may at the earliest opportunity apply to a court to have the suit
transferred from the court in which it is filed to another court." such
application may be filed by any party to the suit, appeal or other
proceeding.

Conditions
Before transfer is ordered under Section 22, two conditions must be
satisfied, namely,
(i) the application must be made at the earliest possible
opportunity and in all cases, where issues are settled, at or
before the settlement of issues;
(ii) notice must be given to the other side. The provision as to
notice is mandatory. Such notice may be given by the party
making an application or by the court."

To Which Court Application Lies

The Code specifies the court to which an application for transfer can be
made:
(1) Where several courts having jurisdiction are subordinate to the
same appellate court, an application for transfer can be made to that
appellate court;"
(2) Where such courts are subordinate to the same High Court, an
application can be made to that High Court," and
(3) Where such courts are subordinate to different High Courts, an
application can be made to the High Court within the local limits of
whose jurisdiction, the court in which the suit is instituted is situate
 (4) The Supreme Court may transfer any suits, appeals or other
proceedings from one High Court to another High Court, or from
one civil Court in the state to another civil court in any other state.

Transfer Allowed: Illustrative Cases

The following have been held to be sufficient grounds for transfer:
 reasonable apprehension in the mind of the litigant that he might not
get justice in the court in which the suit is pending;
 to avoid multiplicity of proceedings or conflicting decisions
 where the judge is interested in one party or prejudiced against the
other
 where common questions of fact and law arise between the parties
in two suits
 where balance of convenience requires, e.g. where the property is
situate or parties or their witnesses reside; or the account books are
kept, etc
 where two persons have filed suits against each other in different
courts on the same cause of action;
 where transfer avoids delay and unnecessary expenses
 where important questions of law are involved; or a considerable
section of the public is interested in the litigation;

Transfer Not Allowed: Illustrative Cases

The following, on the other hand, have been held not to be sufficient
grounds for transfer:
  mere fact that the opposite party is a man of influence in the
locality;
 mere fact that the court is situate at a long distance from the
residence of the applicant
 mere fact that the presiding officer belongs to a community rival to
that of the applicant
 mere fact that the judge has decided a similar point in a previous
case;
 mere balance of convenience to the applicant;
 refusal to grant adjournment
 prejudice of a judge against a party's pleader not likely to affect the
party
 judge making adverse remarks regarding merits of the case
 allegation of apprehension against fair trial without furnishing
particulars
 on counsel losing temper and using unparliamentary language, the
judge ordering adjournment, etc

CIVIL PROCEDURE CODE

UNIT – I

10 Marks
1. Explain the kinds of jurisdictions.
2. Explain the different kinds of Jurisdiction of the civil Court.+1
3. What are suits of Civil nature. Explain with Illustration. +1
4. State the rules regarding 'Transfer of suits'.+1
 5. Explain Doctrine of 'Resjudicata'. State the conditions for applicability of
the doctrine of Resjudicata. +1 +1 +1 – State its object and principles
6. Explain Doctrine of Res subjudice+1 – Scope and object
7. Briefly describe various stages of suit. +1+1
8. "Every civil suit must be instituted before a lowest civil court competent
to try that suit'. Discuss.+1
9. Discuss the provisions pertaining to Place of Suing under civil procedure
code. +1 +1
10.Explain the Provisions of CPC in respects of Transfer of suit.+1
11.Define Foreign judgement, When it shall be conclusive and the state
presumption relating to foreign judgment.

Short notes
1. Foreign judgement. +1 +1 +1 +1+1
2. Res-judicata.
3. Res subjudice. Or stay of suits +1
4. Discuss the rules in C-P-C relating to transfer of suits. +1+1
5. Kinds of Jurisdiction
6. Suit of Civil Nature.
7. Bar on jurisdiction
8. Place of suing
9. Pecuniary jurisdiction of courts. +1
10.Territorial jurisdiction of courts
11.Rajan has instituted a suit against his wife Rajani in the Civil Court at
Dharwad. Rajani is residing at Tumakuru with her parents. She has no
income of her own and therefore, she is finding it difficult to travel to
Darwad frequently to attend the proceedings. Advise her.
12.Anil who is resident of Bellary publishes a newspaper containing
statements defamatory of Basant. The newspaper | is circulated in Bidar,
 Bellary, Kalaburgi and Raichur. Basant 2 desires to institute suit against
Anil. Where can he institute the suit ?
13.'A' residing in Delhi publishes in Calcutta statements of defamation to 'B'.
The newspaper is circulated in Bombay, Madras and Raipur. 'B 'wants to
file a suit against 'A'' Where he can sue? Advise him.
14.Shankar was the trustee of a trust. After Shankar’s death, Anil wrongfully
takes the possession of the trust property. Rohan the son of Shankar files
a suit for recovery of possession of the property against Anil as a legal
heir and in his individual capacity. But Rohan did not succeed. Then
Rohan files another suit for recovery of trust property against Anil in the
capacity of a trustee, as he is appointed as a trustee after the death of
Shankar. Can Rohan succeed in this case ?
15.A’ sues ‘B’ in a foreign Court The suit is dismissed. Thereafter, ‘A’ wants
to file the same suit against ‘B’ in India | on the same cause of action.
Whether he can institute a suit — Decide.

16.A textail manufacturing company having its Head Office at Bangalore,

had branch offices at Hubli, Mysore and Mangalore. A dispute cropped
up between Mr. Babu and Prakash Transport Company in respect of
transaction through Hubli office. Mr. Babu files a suit in respect of the
dispute against the company in the court of Mangalore. Is the court of
Mangalore is competent to decide the case ? Give reason.

17.Ramesh is a permanent resident of Belagavi and Ashok is a permanent

resident of Dharwad. Ramesh has taken a loan from Ashok at Belagavi.
He has not repaid the loan till today. Ashok has instituted a suit for the
recovery of the said loan, against Ramesh at Dharwad. Ramesh has raised
objection as to the jurisdiction. Decide.
18.Subhash is a permanent resident of Ballary and Anand is a permanent
resident of Kolar. Subhash has made an agreement with Anand at Ballary
for supply of certain quantity _ of paper every month. The parties to the
agreement have agreed that if any dispute arises between them, the same
shall be subject to the jurisdiction of Civil Court at Tumkur. Decide the
validity of the agreement,

19.Sunil is a permanent resident of Davanagere and Prakash is a permanent

resident of Shivamogga. Sunil has taken a loan from Prakash at
Davanagere. He has not repaid the loan till today. Prakash has instituted a
suit for the recovery of the said loan, against Sunil at Shivamogga. Sunil
has raised objection as to the jurisdiction. Decide

20.A suit was institutes by the plaintiff firm alleging infringement by the
defendant company for using the trade name on their product with the
same combination as that of plaintiff firm. A subsequent suit was
institutes in a different court by the defendant company stating the same
allegation. Advice the plaintiff firm with the step to be taken in
accordance with law.