Civil Procedure Code

Mohammad Asadulla Shareef (Asad)

© Copyrighted Material
 § Saiyad Mohd Bakar v. Abdulhabib Hasan: A
procedural law is always subservient to the
substantive law. Procedure law is not a tyrant, but
a servant. It should not be construed too strictly,
Civil but should aid substantive law.
Procedure § CPC applies retrospectively as do procedural
Code laws generally.
§ Section 151 stipulates that courts have inherent
powers to be used to make orders necessary for
ends of justice.

© Copyrighted Material
 § Section 2 (2): The essentials of a decree are:
§ Adjudication: Orders of administrative nature or
dismissal for default are not decrees.
§ On a suit: Hansraj Gupta v. Official Liquidator:
Suit is a civil proceeding instituted on a plaint.
Decree § Must determine rights of the parties with regard to
any of the matters in controversy.
§ Determination must be final and conclusive.
§ Formal expression: Hence, should be given in a
manner provided by law.

© Copyrighted Material
 § Shankar v. Chandrakant: Preliminary decree is a
decree which declares the rights and liabilities of
the parties and leaves the actual result for further
proceedings. Ex: Inquiry into mesne profits.
Decree § Section 97: No appeal against the preliminary
decree in an appeal to the final decree. Further, if
the preliminary is set-aside, final decree
automatically falls.

© Copyrighted Material
 DECREE
§ Passed only on presentation of a plaint.
§ Conclusively determines the rights of the parties.
§ May be final or preliminary.
§ Generally, there is only one decree in a suit.
§ Every decree is appealable, generally.

Decree § Second appeal lies against a decree.

ORDER
§ May arise from plaint, petition or application.
§ May or may not finally determine the rights.
§ There cannot be a preliminary order.
§ There can be any number of orders.
§ Not every order is appealable.
© Copyrighted Material
§ No second appeal against an order.
 Order I: Parties to the Suit

š Rule 1: All persons may be joined in one suit as plaintiffs where:

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or
transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and

(b) if such persons brought separate suits, any common question of law or fact would arise.

š Rule 2: All persons may be joined in one suit as defendants where:

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or
transactions is alleged to exist against such persons, whether jointly, severally or in the alternative;
and

(b) if separate suits were brought against such persons, any common question of law or fact
would arise. © Copyrighted Material
 Order I: Parties to the Suit

š Necessary Party:

š There must be a right to relief against such person; and

š It should not be possible to pass an effective decree in absence of such party;

š Ex: All sharers in a partition suit.

š Proper Party: A party in whose absence an effective order can be made, but a complete
and final decision cannot be arrived at.

š Ex: Sub-tenant in eviction proceedings.

š When a necessary or proper party to a suit has not been made a party, it is non-joinder. And
when a party neither necessary nor proper is joined, it is misjoinder. © Copyrighted Material
 Order I: Parties to the Suit

š B Prabhakar Rao v. State of AP: Although not all affected persons were joined as parties, the
court held that their interests were identical to present parties and the interests were well-
represented. Hence, decree was held to be valid.

š Rule 13: All objections on the ground of non-joinder or misjoinder of parties shall be taken at
the earliest possible opportunity and, in all cases where issues are settled, at or before such
settlement, unless the ground of objection has subsequently arisen, and any such objection
not so taken shall be deemed to have been waived.

© Copyrighted Material
 Order I: Parties to the Suit

š Rule 10: (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it
is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any
stage of the suit, if:
š satisfied that the suit has been instituted thought a bona fide mistake, and

š that it is necessary for the determination of the real matter in dispute so to do,

order any other person to be substituted or added as plaintiff upon such terms as the Court thinks
just.

š (2) The court may order that a party:

š Improperly joined by struck out; or

š Ought to have joined be added. © Copyrighted Material

 Order I: Parties to the Suit

š Razia Begum v. Sahebzadi Anwar Begum: The judicial discretion should be exercises in view of
all the facts and circumstances. Further:

š In a suit related to property, a party should have a direct interest and not simply commercial interest;

š This rule of direct interest may be relaxed when the suit is of legal status or character. Ex: Heirs.

š No person may be added as plaintiff without his consent. The plaintiff is dominus litus.

š When a defendant is added, the plaint should be amended. He shall be considered a party
from the time summons are served to him.
© Copyrighted Material
 Order VI: Pleadings

š Rule 1: "Pleading" shall mean plaint or written statement.

š Rule 2: Pleadings should contain:

š Only material facts on which the party relies;

š In a concise form;

š But not evidence to prove such facts;

š Virender Nath v. Satpal Singh: All primary facts to be proved at a trial to establish the cause of action or
defence are material facts. What are such material facts depends on the case and no universal rule can be
made. Further, there is a difference between ‘material facts’ and ’particulars’:

š Material facts are basic facts to be proved;

š Particulars make material facts more clear and informative; © Copyrighted Material
 Order VI: Pleadings

š Facts are of two kinds:

š Facta Probanda: Facts required to be proved;

š Facta Probantia: Facts by means of which facts probanda are proved;

š Pleadings should only contain facta probanda. They must be concise. Brevity and precision
are important. Should avoid tautology.

š This rule is not a mere technicality. Hence, if a party omits to state material facts, the court
may disallow the party to lead evidence on such facts.

š Ram Swarup v. Bishnu Narain Inter College: The pleadings should be interpreted liberally
relying on the substance rather than the form. The aim should be to further justice. © Copyrighted Material
 Order VI: Pleadings

š Rule 17: The court may allow parties to alter or amend the pleadings at any stage of the proceedings on:

š Terms as may be just; and

š Necessary for determining real questions in controversy;

š However, such application to amend shall not be allowed after the trial has commenced, unless the court is
satisfied that despite due diligence, the matter could not have raised earlier.

š Cropper v. Smith: Amendment of pleading should not be allowed when:

š It will not lead to a decision of the real matter in controversy.

š It cannot be done without injustice to the opposite party.

š If it introduces inconsistent changes to the case.

š Leads to taking away of a legal right of the opposite side. Ex: Including a charge barred by limitation. © Copyrighted Material

š When the applicant acts mala fide.

 Order VI: Pleadings

š An opportunity should be given to the other side to file an objection to the amendment.
Further, the amended pleadings may apply retrospectively (“relation back”). But the court
may allow it to apply only from the time they were made.

š Bijendra Nath v. Mayank Srivastava: When an application to amendment is made, the court
may ask the party to pay costs to the other side. The other side then cannot accept the costs
and also object to amendments due to estoppel.

š An amendment is neither a decree or order (under Order 43). Hence, it cannot be appealed.
However, a revision or writ petition may be preferred. © Copyrighted Material
 Order VII: Plaint & Section 26

š Rule 1: The plaint shall contain the following particulars:

(a) the name of the Court in which the suit is brought;

(b) the name, description and place of residence of the plaintiff;
(c) the name, description and place of residence of the defendant, so far as they can be ascertained;
(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;
(e) the facts constituting the cause of action and when it arose;
(f) the facts showing that the Court has jurisdiction;
(g) the relief which the plaintiff claims;
(h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or
relinquished; and
(i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and ©ofCopyrighted
court Material
fees, so far as the case admits.
 Order VII: Plaint

š Amarjit Singh v. Khatoon Quamarain: As a general rule, the rights of the parties should be determined on basis of the
date of filing the suit. However, subsequent events can be taken cognisance of if they are relevant and material. This
helps avoid multiplicity of proceedings and ensures that orders are comprehensive. But an addition of time-barred
claims cannot be allowed.

š Rule 14: (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of
his claim, he shall enter such document in a list, and shall produce it in court when the plaint is presented by him and
shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in
whose possession or power it is.
(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in
the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave
of the Court, be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to document produced for the cross examination of the plaintiffs witnesses, or,
© Copyrighted Material
handed over to a witness merely to refresh his memory.
 Order VII: Plaint

š Rule 10: Return of a Plaint: When the court finds that it has no jurisdiction, it may return the plaint with
an endorsement regarding:

š Date of presentation;

š Date of return;

š The name of the party; and

š Reasons returning it;

š Rule 10A says that when plaintiff is intimated about the return, he may make an pplication to have
the court:
š Specify the court to present the plaint;

š Pray that the court fix a date in the said court; © Copyrighted Material
š Request that notice of such dates to be given to defendant.
 Order VII: Plaint

š Rule 11: Rejection of a Plaint: The plaint may be rejected when:

š It does not disclose cause of action;

š Relief claimed is undervalued, and not corrected in time;

š Plaint is insufficiently stamped, and not corrected in time;

š Suit is barred by law;

š Plaint in duplicate is not submitted;

š Rejection of a plaint is deemed decree under Section 2 (2) and is appealable.

© Copyrighted Material
 Interim Orders

Temporary Injunctions: Order 39 – Rules 1 to 5

š Injunction is an order which mandates a party to do or abstain from doing an act. Order 39
provides for temporary injunction during the suit. An ad-interim injunction is granted while the
application for interim injunction is being heard and until it is disposed. Once the application
is heard, an interim injunction is granted.

š An interim injunction is issued only against a party and not a stranger.

š Rule 1: Grounds for temporary injunctions.

© Copyrighted Material
 Interim Orders

Temporary Injunctions: Order 39 – Rules 1 to 5

š A three-fold test is to be followed to decide of temporary injunction is to be followed:

Prima Facie Case

Temporary
Injunction
© Copyrighted Material
Irreparable Injury Balance of
Convenience
 Interim Orders

Temporary Injunctions: Order 39 – Rules 1 to 5

š American Cyanamid Co. v. Ethicon Ltd: Two questions need to be asked:

š When the defendant is doing an act which causes an injury to the plaintiff, and plaintiff wins the
case, will the plaintiff be compensated for such loss? If yes, an interim injunction is not necessary.

š If the defendant wins, will he be compensated for the loss caused due to the interim injunction? If
not, an interim injunction should not be granted.

© Copyrighted Material
 Interim Orders

Temporary Injunctions: Order 39 – Rules 1 to 5

š Rule 3: Ex parte Injunction: A notice of application for a temporary injunction should be given
to the opposite party, unless the object of granting such injunction would be defeated by the
delay.

š When notice is not given, the court shall record reasons and require the application to:

š Deliver a copy of the application along with affidavit, plaint and documents to the opposite party.

š File an affidavit stating that such copies have been delivered.

š Further, when an injunction is granted without notice, the court should dispose of the
application within thirty days from the date of injunction.
© Copyrighted Material
 Interim Orders

Temporary Injunctions: Order 39 – Rules 1 to 5

š An interim injunction can also be a mandatory injunction. But it should only be to restore status quo
and not to create a new situation.

š A temporary injunction is to be granted pendente lite – until the disposal of the case. But it may also
be issued for a limited time. Further, the disposal of the suit vacates the injunction. But if a party seeks
an appeal, the court may order it to continue until the higher court takes up the matter.

š Morgan Stanley v. Karthik Das: The court should see if refusal of ex parte injunction causes more
injustice. If the plaintiff had acquiesced for sometime, it should not be granted. The same when the
request is not bona fide. Further, the court should issue an ex parte injunction for a limited period only.
© Copyrighted Material
 Interim Orders

Temporary Injunctions: Order 39 – Rules 1 to 5

š Rule 4 says that an order granting an injunction can be discharged, varied, or set aside. But if
the party was heard at the time of such order, then such order shall not be modified unless due
to change in circumstances or undue hardship to the party.

š Section 95 says that the suit of the plaintiff fails and it appears that there was reasonable ground
to instituted it, the plaintiff may be ordered to pay an amount not exceeding fifty thousand
rupees.

š Rule 2A: When a party disobeys an injunction, it may be ordered to attach a property and may
also detain such person in civil prison not exceeding three months.
© Copyrighted Material
 Order VIII: Written Statement

š Rule 1 says that the defendant should present a written statement within thirty days,
extendable up to ninety days. Section 148 allows extension of up to another thirty days.

š Salem Advocate Bar Association v. Union of India: Rule 10 states that on failure to file written
statement, the court may pronounce judgement against the defendant or make such order as
it thinks fit. Hence, it is not mandatory to pronounce judgement. The court may grant further
time as 90 days is only directory. However, extension of time should be done with some reasons.

© Copyrighted Material
 Order VIII: Written Statement

š New facts and all new grounds of defence must be raised.

š Denial of each allegation must be specific and not general. It should not be vague or evasive.

š Every allegation not denied specifically or by implication will be taken as an admission.

š In compound allegations, a single denial should be made. Each allegation should be separately countered.

š Each defence, set-off, or counter-claim should be separate and distinct.

š Once the written statement is filed, no other pleading can be made except a set-off or counter claim.

š Defendant should also produce all documents in his support except those:

š Reserved for cross-examination;

š Used to refresh witness memory; © Copyrighted Material

 Order VIII: Written Statement

š Set-off: Rule 6 allows set-off by the defendant in the written statement when the following conditions are satisfied:

š Suit is for recovery of money;

š Sum should be ascertained;

š Sum must be legally recoverable;

š Must be recoverable by all the defendants, if more than one;

š Must be recoverable from all plaintiffs, if more than one;

š Must be not exceed the pecuniary jurisdiction of the court;

š Both the parties must fill the same character in the defendant’s claim;

š When the suit is dismissed due to plaintiff’s fault such as ‘dismissed for default’, the court may still decree
defendant’s claim. © Copyrighted Material
Order VIII: Written Statement

Legal Set-off Equitable Set-off

š Sum of money is ascertained. š Sum of money unascertained.
š Can be claimed as a right. š Cannot be claimed as a right.
š Set-off may not arise from the same š Only when the set-off is from the same
transaction. transaction.
š Must not be time-barred. š May be time-barred.
š Requires court fee. š No court fee required.

© Copyrighted Material
 Order VIII: Written Statement

š Counter-claim: Rule 6A: Counter-claim is a claim made by the defendant against the plaintiff.
It amounts to a cross suit. Such counter-claim will be considered a plaint and all rules of plaint
apply. The plaintiff then files a written statement.

Set-off Counter-Claim

š It is a defence. š It is an offence and amounts to a cross-

suit.
š Need not be ascertained and need not
š Sum must be ascertained in Legal Set-off;
arise from same transaction.
or must arise from the same transaction in
Equitable Set-off;
š Must be recoverable at the date of the © Copyrighted
š Must be recoverable at the date of the Material
suit. written statement.
Thank
You!

© Copyrighted Material