CODE OF CIVIL PROCEDURE – II

Points from CPC I:

1. Don’t copy the notes blindly – questions will explore your knowledge of
the case and you might risk plagiarism.

2. Be careful about facts – need facts, nuances of ratio to get marks – give
material facts at least

3. Don’t give cases where it is not required.

4. Don’t copy notes, make your own notes – stringent rules on plagiarism

5. He won’t ask questions that are beyond the syllabus, eg. Limitation Act.

6. Next exam onwards: DO NOT EXCEED 300 WORDS, else you will get
negative marking.

7. Handout portions are marked in RED, Class notes are in black.

PLEADINGS:

1. The Cardinal Rules emanating from Order 6 Rule 2

a. Order VI relates to Pleadings generally; Order VII relates to Plaint and

Order VIII relates to Written Statement.
b. What is “Pleading”? Order 6 Rule 1: “Pleading shall mean Plaint or
Written Statement”. Is a rejoinder/reply included? Why not?
c. The cardinal principles of pleadings: Order 6 Rule 2: Pleadings to
state material facts and not evidence; Pleadings should contain all
material facts; Pleadings should not contain law; nor should it contain
argumentation. Further, pleadings should contain only material facts,
not all facts.
d. Why would it be unwise to include argumentation in pleadings?
Explain the phrase: “pleadings do not argue- lawyers do!”

- What are the cardinal rules from Order 6, Rule 2? Pleadings contain all
material facts, not all facts, no evidence, no arguments, no law.

- What would be the effect of the failure to include all material facts in
the Plaint?
(1)No cause of action would be seen to arise at all. Material facts are all
facts upon which the Plaintiff’s cause of action or the defendant’s
defense depends. The question whether a particular fact is material or
not depends upon the facts and circumstances of each case.
 (2) Further, the party in question would be guilty of suppression of
material facts, an aspect he would have to answer later in the course of
the trial when his suppression comes to light.
(3)Also, no amount of evidence can be looked into upon a plea which was
never raised.

- What is the effect of failure to include all material particulars? Won’t have
a cause of action for a plea never raised

- What is the effect of a false statement in the pleading? The pleadings

which are verified by the party and are further supported by affidavit, if
found to be false to the knowledge of the party concerned, would expose the
party to the risk of the charge of perjury.
- Pleadings not to contain the evidence by which the pleadings are to be
proved. Classic case of Barrodaile vs Hunter (1845) 5 Man and Gr 639.
- What is the exception carved out by the Supreme Court to the rule in Order
6 Rule 2? Even though evidence must be based on pleadings and the
judgment must be based on the pleadings set out- where from a perusal of
the circumstances of the case it is apparent that the parties knew the
case they had to meet, and actually led evidence thereon, then the
objection that a particular fact was not pleaded will not be successful.
Thus, a pedantic approach will not be adopted. Ram Sarup Gupta vs
Bishun Narain Inter College (1987) 2 SCC 555; Bhagwati Prasad vs
Chandramaul AIR 1966 SC 735.
- Note the special rules contained in Order 6 Rules 6 to 13 which could be
said to be extensions/illustrations or exceptions to the general rule
contained in Order 6 Rule 2.

o If you wantonly make a false statement, you go to jail.

1. What is the level of specificity necessary in pleadings? The pleadings

should be specific enough to give the opposite party adequate notice of
the case that she must meet. Order 6 Rule 2 read with Order 6 Rule 4:
in all cases in which the party pleading relies upon misrepresentation,
fraud, breach of trust, willful default or undue influence, particulars
shall be stated in the pleadings. “Particulars are details in support of
material facts pleaded by the party. They amplify, refine and embellish
material facts by giving distinctive touch to the basic contours of a
picture already drawn so as to make it full, more clear and more
informative.” Virender Nath Gautam vs Satpal Singh [2007 (3) SCC
617].

2. Can pleadings contain inconsistent pleas? Order 6 Rule 7.

Inconsistent pleas are permissible :G. Nagamma vs Siromanamma
[(1996) 2 SCC 25]; Srinivas Ram Kumar vs Mahabir Prasad [(AIR 1951
SC 177)] and Praful Manohar Rele vs KN Ghosalkar [(2014) 11 SCC
316]. Per contra : Steel Authority of India Limited vs Union of India
[(2006) 12 SCC 233]; Sarva Shramik Sangh vs IOC [(2009) 11 SCC
609]. What is the difference between having inconsistent pleas and
raising alternative reliefs ? (Order 6 Rule 7 and Order 7 Rule 7).
 o Inconsistent pleas are permissible according to some pleadings, but not
according to some

2. What are the principles applicable to amendment of pleadings? Order

6 Rule 17.

(a) By virtue of the proviso to Order 6 Rule 17 applications for

amendment after trial has commenced have to establish due
diligence.
(b) It is the discretion of the court to be exercised judiciously.
(c) The general principle is that all amendments should be allowed except
those which cause injury that cannot be compensated with costs.
(d) Prejudice caused to the opposite side is the important factor- whether
the prejudice can be compensated through costs.
(e) Amendments which are necessary to determine the real questions in
controversy between the parties should be allowed.
(f) M/s Ganesh Trading Co vs Moji Ram [(1978)2 SCC 91] –
amendment application whether amounted to altering the cause of
action and changing the very identity of the Plaintiff.
(g) BK Narayana Pillai vs Parameswaran Pillai [2000(1) SCC 712]-
liberal approach to amendments especially when opposite side can be
suitably compensated through costs, advocated. Inconsistent and
contradictory allegations or mutually destructive allegations of facts
should not be allowed by way of amendments.
(h) Pirgonda Hongonda Patil vs Kalgonda Shidgonda Patil [AIR 1957
SC 363] – where Plaintiff seeks to amend the Plaint by setting up a
fresh claim in respect of a cause of action which since the institution
of the suit had become barred by limitation, the amendment must be
refused. To allow it would be to cause the Defendant an injury which
could not be compensated in costs.

3. What are the formalities to be complied with pleadings? Order 6

Rule 14- Pleading to be signed by the party and the pleader. Order 6
Rule 14A- Address for service of notice shall be furnished by each party.
Order 6 Rule 15- Pleading shall be verified and shall also be supported
by affidavit.

4. Can the court interfere with the pleadings ? Order 6 Rule 16- power to
order striking out or amendment of pleadings that are unnecessary,
scandalous, which prejudice or embarrass the fair trial or which abuse
the process of court.

5. What are the particulars to be contained in the Plaint ? Order VII

Rules 1 to 8. Under Order 7 Rule 2, in money suits, where the Plaintiff
seeks recovery of money the Plaint shall precisely state the amount
claimed except if mesne profits, etc., are sought, in which case the Plaint
shall state the approximate value. Under Order 7 Rule 3, where the
subject-matter of the suit is immovable property, the Plaint shall contain
a description of the property sufficient to identify it. Relief shall be
specifically stated (Order 7 Rule 7).

6. Return and Rejection of Plaint

● Return of Plaint – Order 7 Rules 10, 10A, 10B.

⮚ To be adopted where the court finds it does not have the

jurisdiction to entertain the dispute; even an appellate or
revisional court may exercise the power.
⮚ The judge returning the Plaint should make endorsements
on it regarding the date of presentation, the date of return,
the name of the party presenting it and the reasons for
returning it.
⮚ The order returning the Plaint is appealable under Order 43
Rule 1(a) except where the procedure under Rule 10A has
been followed fixing a date for appearance in the Court
where Plaint is to be filed after its return.
⮚ There is no continuation of the initial suit filed and the
suit must be deemed to have been filed on the date of
re-presentation after return of the Plaint. However, the
Plaintiff may be able to take advantage of section 14 of the
Limitation Act, 1908, and may also seek adjustment of
court fees. ONGC Limited vs Modern Construction
Company [2014(1) SCC 648]. Harshad Chimanlal Modi vs
DLF Universal Ltd [2006(1) SCC 364].

● Rejection of Plaint: Order 7 Rules 11,12,13

⮚ The Plaint shall be rejected where any of the grounds

mentioned in clauses (a) to (f) of Order 6 Rule 11 are
satisfied.
⮚ The judge upon rejecting the Plaint is required to pass an
order with reasons (Rule 12).
⮚ An order rejecting the Plaint is deemed a “decree” as per
section 2(2) and is thus appealable under section 96.
⮚ A fresh suit is also not barred after rejection of Plaint. (Rule
13).
⮚ P.V. Gururaj Reddy vs P. Neeradha Reddy [2015 (8) SCC
331]- Rejection of Plaint is a drastic power to be exercised
to terminate a civil action at the threshold. At the stage of
rejection of Plaint, averments in written statement, etc., are
all immaterial. It is only the averments in the Plaint that
are relevant to determine whether the Plaint should be
rejected on the ground of not disclosing a cause of
action or suit being barred by any law.
⮚ Balasaria Construction (P) Ltd vs Hanuman Seva Trust
[2006 (5) SCC 658]- Plaint can be rejected under Order 7
Rule 11 (d) as being barred by limitation only if it is ex facie
 barred from a reading of the Plaint. If limitation is a mixed
question of law and fact in a given case, Order 7 Rule 11
cannot be invoked.
⮚ M/s Commercial Aviation and Travel Co vs Vimla
Pannalal [1998 (3) SCC 423]- only if positive objective
standards are available to determine the correct valuation,
rejection can be done under Order 7 Rule 11(b).

FILING OF WRITTEN STATEMENT: ORDER 8

1. Filing of written statement within time-limits: Order 8 Rule 1

Within 30 days from the date of service of summons on the Defendant,
the Defendant shall present a written statement of his defense;
extendable upto 90 days from the date of service of summons. In Kailash
vs Nankhu [2005(4) SCC 480] held however that Order 8 Rule 1 is not
mandatory but directory. In exceptional cases, court could permit filing
even after lapse of 90 days.

- Written statement of the Defendant within 30 days, but not later than 90
days with explanation – For Commercial Courts, no later than 120 days in
any case.

- Kailash v Nankhu – in CPC I notes.

- Written statement can be filed under rule 1 or rule 9 – In Rule 9, the court
usually steps in the capacity of a parent (In loco parentis) when the
adversarial idea has failed or when there are suspicious or unusual
circumstances or when the government is involved and they don’t seem
to be doing a good job.

- Rule 2 allows for exceptions to be made by the court in cases of parties

with disabilities – Rule 9 is however broader and different from rule 2.

- Proviso to rule 10 and Rule 1: filing happens under 2 circumstances: when

there is no court order for written statement, but you are a defendant who
has been served summons – the second is when the court steps in under
Rule 9. Extension beyond 30 days is not permissible under Rule 9, when
the court intervenes, that’s what Rule 10 says.

7. What is the effect of not filing a written statement when required or

as fixed by the court?
⮚ Order 8 Rule 5(2), Rule 9, Rule 10: the court is empowered to
pass judgment against the Defendant on the basis of the facts
contained in the Plaint or make such other order as it thinks fit
except as against a person under a disability. But the court may,
in its discretion, require any of the facts to be proved by the
Plaintiff.
 ⮚ Balraj Taneja vs Sunil Madan [1999(8)SCC 396]- court not to act
blindly in decreeing the suit merely because written statement not
filed. Should still see whether the Plaintiff has a good case. Section
58 Indian Evidence Act analogous.

Balraj Taneja v Sunil Madan:

- When defendant fails to file a written statement despite having the

opportunity to do so

- Facts: Suit of specific performance filed in May 1996 – defendant didn’t

file WS when they could have – Delhi HC gave the suit in favour of
Plaintiff without trial, exercising powers under Rule 5(2) and Rule 10 -
Appeal to SC about whether the suit could be decreed without asking the
plaintiff to prove their case in trial – Appellants said that merely because
WS wasn’t filed and the HC passed a decree without listening to the
defendant, it results in a serious miscarriage of justice. The second
contention is [para 37] that the HC gives no real reasons for why they
decided in favour of defendant and it doesn’t come under the defn of a
judgement under Order 8, Rule 10. Thus, the court should decide the case
freshly on facts.

- The Court looks at S.16 of SRA and Order 8, Rule 10 and its proviso – Using
16, look at the conduct of the parties and determine whether they had the
intention to carry out some other action. The Court uses Order 8, Rule 5(2)
and Rule 10 to say that the court has discretion and the judgement doesn’t
necessarily have to be decided against the defendant. These Rules are on
the same aspect – even if the court has the power to decree a suit, when
WS hasn’t been filed, admitted facts still need to be proved in accordance
with the Indian Evidence Act – cant blindly decree a suit and need to
conduct some enquiry to determine if the grounds alleged by the claimant
are true or not. The Court is still required to go into facts of the case and
carefully exercise discretion to determine the grounds.

- If the court thinks it is reasonable to pass the judgement, it may do so after

the enquiry of facts to be proved.

- If the Court requires you to file a WS and you don’t file it, then the court
may pronounce judgement against him or make such order as it thinks fit
– Rule 10. The Court has to do this act reasonably [need to reread the
case].
 - O8, R5 applies when you don’t file a statement, O8 R10 is when the court
asks you to file a WS to ensure that a defence is set up in a given case.

What is the effect of a WS being filed? How should it be filed and what should it
contain?

1. New facts must be specially pleaded in written statement – Order 8

Rule 2: which show that the suit is not maintainable, or that the
transaction is either void or voidable in point of law, and all such
grounds of defence which if not raised, would be likely to take the
opposite party by surprise or would raise issues of fact not arising out of
the Plaint, etc. Shri Udhav Singh vs Madhav Rao Scindia
[1977(1)SCC511]: a pure question of law need not be pleaded in the
written statement.

- Order 8, Rule 2: New facts must be specially pleaded – defendant must

show all matters that show the suit is not maintainable, that the
transaction is void/voidable in law, or all facts that if not raised would take
the opposite party by surprise or would raise issues of fact not arising out
of the plaint, such as fraud, limitation, payment, performance of facts
showing illegality.

- Pleadings in one case can be used as evidence in another case by

obtaining a certified copy of the same and producing it in the suit – an
admission made in a pleading can be used against you only if it is
produced and marked in the present suit.

Uddhav Singh v Madhav Rao Scindhia:

- Appeal against MP HC which dismissed the election petition to disqualify

Defendant in his election to LS.

- Defendant had spent more money than was allowed [more than 35K]
under the RPA and had indulged in corrupt acts. The plaint mentions
instances of corruption and coercion towards voters. After the issues were
framed, WS filed and examination of witnesses, the defendant filed an
application saying that the petition was defective – S. 82 RPA requires all
parties against whom corruption allegations are made – The HC can
dismiss a petition that violates S. 82 of the RPA.

- D said that these instances were too vague and lacked material facts and
Pratap Singh, who bullied the man on behalf of the defendant, should also
 be made respondent in the suit. The Petitioner said that the defendant
hadn’t raised this objection to non-joinder in time and therefore, had
waived their objection.

- HC sided with defendant, saying that the non-joinder of Pratap Singh was
violative of S.82 of the RPA and therefore, dismissed the election petition.

- In SC, the petitioner argued that the point of non-joinder of parties was
not raised in WS and was only after the examination of witnesses. Under
Order 8, Rule 2, D was supposed to raise this in WS and the failure to do so
amounted to a waiver. SC looked at whether the grounds raised had taken
the opposite party by surprise, such questions of facts have to be
mentioned but points of law can be raised later as they are pure questions
of law and do not require any evidence. The point of S.82 was a point of
law and therefore, was not hit by O8, R2. Although objections with non-
joinder should have been taken up in the beginning, but the petition
cannot be dismissed simply because of lack of joinder of parties as it was a
pure question of law that could be discussed later. In conformity with
Order 6, Rule 2 – pleadings having material facts, not questions of law.

- If the point is a mixed question of law and fact, then it is better to raise it in
the WS.

- Once facts are established, legal arguments are made.

8. Denials in written statement

⮚ The Defendant should not deny generally the grounds alleged by

the Plaintiff, but must deal specifically with each allegation of fact
that he does not admit. Order 8 Rule 3.
⮚ However, this principle does not apply to damages, which are
always deemed to be denied by a line of English cases- Millington
vs Loring (1880) 6 QBD 190; Wood vs Durham (1888) 21 QBD
501.
⮚ Evasive denials are improper.Order 8 Rule 4. Classic case of
Tildesley vs Harper [1878 (10) CD 393].
⮚ Every allegation of fact in the Plaint if not denied specifically or by
necessary implication, or stated to be not admitted shall be taken
to be admitted except as against a person under disability.
However, the Court can nonetheless require any fact so admitted
to be proved otherwise than by such admission. Order 8 Rule 5.
⮚ Badat and Co vs East India Trading Co [ AIR 1964 SC 538]:
Order 8 Rules 3, 4 and 5 form an integrated code dealing with the
 manner in which allegations of fact in the Plaint should be
traversed and the legal consequences flowing from non-
compliance.

Order 8, Rule 3: Denial to be specific – Cant generally deny claims, must deal
specifically with each allegation of fact of which he does not admit the truth,
except damages.

Three types of response: Admit, deny as false, deny as having no knowledge

Rule of Traverse – Repeat the same sentence and then state whether you
admit it or deny it. In English law, if you fail to traverse an allegation of fact
and keep quiet, it is deemed to have been admitted against you.

Why not damages? Wood v Durham – generally accepted that damages are
always deemed to be denied and anytime someone claimed damages, it was
deemed denied even if you don’t explicitly mention it.

Order 8, Rule 4: Evasive denial – Answer the point of substance, don’t

response evasively. If an allegation is made with diverse circumstances, it
shall not be sufficient to deny it along with the circumstances – need to make
sure you are denying all possibilities of a fact, as opposed to a specific
instance.

Order 8, Rule 5: Specific denial - not specifically denied or denied by

necessary implication or stated to be not admitted in the pleading of the
defendant, shall be taken to be admitted except as against the person under a
disability. Proviso states that the plaintiff will have to prove a fact that wasn’t
specifically denied.

Order 6 Rules 16-17 – Extra readings

9. Documents to be produced along with the pleadings

⮚ Order 7 Rule 14 and Order 8 Rule 1A: documents relied upon or

upon which sued, which are in the possession or power of theparty
shall be entered in a list and shall be produced in court along with
the Plaint and Written Statement along with a copy. If this rule is
not complied with, such documents cannot be received in evidence
at the trial, except if court’s leave is taken. However, this rule does
not apply to a document produced merely to cross-examine the
opposite party’s witnesses or to refresh the memory of one’s own
witnesses. (Note special rules with regard to lost negotiable
instruments and shop-books- Order 7 Rules 16 and 17).
 ⮚ Do the documents produced along with the Plaint and Written
Statement become a part of the record of the case?
Documents produced with pleadings don’t automatically become evidence –
they are part of the file – only becomes evidence when you offer it as
evidence in court, with the opposing party having a chance to object and the
court finally admitting it.

LEGAL SET-OFF, EQUITABLE SET-OFF AND COUNTERCLAIMS

LEGAL SET-OFF
● Order 8 Rule 6

● Requirements to claim Legal Set-Off: (a) In a suit for recovery of money (b)
an ascertained sum legally recoverable from the Plaintiff (c) not exceeding
the pecuniary limits of the court’s jurisdiction (d) where both parties fill
the same character as in the suit and (e) where the defendant presents the
written statement with set off at the first hearing of the suit or afterwards
(with leave of the court).
● Special provision with regard to Limitation- section 3 of the Limitation Act,
1908-claim by way of set-off deemed to be instituted on the same date as
the suit in which the set off is pleaded.
● Court Fees for set-off: a written statement pleading a set-off is chargeable in
the same manner as a Plaint.

EQUITABLE SET-OFF
● Even though not found in the Code, recognized by judicial decisions.

● Union of India vs Karam Chand Thapar and Bros [2004(3) SCC 504]-
equitable set-off can only be claimed if it arises from the same transaction as
the main claim of the Plaintiff; further, it cannot be claimed as a matter of
right and is discretionary.
● Jitendra Kumar Khan vs Peerless General Finance and Investment
Company Limited [ 2013 (8) SCC 769] –equitable set-off is based on the
fundamental principles of equity, justice and good conscience; it must arise
from the same transaction or ought to be so connected to the claim as
to make it inequitable for the court to allow the claim before it and
drive the Defendant to file a cross-suit.

Legal Set-off – Order 8, Rule 6 – to be raised in WS – found in the law.

Rule 6: Particulars of set-off to be given in WS – should be a suit for recovery

of money- the sum claimed by way of set-off should be discreet and not
inchoate, the sum should be ascertained, should not exceed the pecuniary
limits of the court – both parties fill the same character as they fill in the
plaintiff’s suit (Same application as Res Judicata), the WS for set-off should be
filed in the first hearing only (later only with the permission of the court).

Must claim set-off in the WS itself – after complying with all pleadings
requirements, you claim that a certain sum of money needs to be adjusted
against the damages sought.

Rule 6(2): Effect of Set-off - has the same effect as a cross-suit.

S.3 of the Limitation Act: Limitation is from the date of institution of suit
(filing of plaint)

10.COUNTER-CLAIM
● Order 8 Rule 6A to 6G.

● Permissible only after 1976 amendment.

● Requirements: any cause of action arising before or after the filing of the suit
but before the Defendant has delivered his defence or before the time limited
for delivering the defence has expired; should not exceed pecuniary limits of
court’s jurisdiction.
● Ramesh Chand Ardwatiyavs Anil Panjwani [2003(7) SCC350]-the right to
prefer a counter-claim runs with the right of filing a written statement. Once
that right is lost, then counter-claim cannot be permitted to be raised.
● Chargeable with court fees in the same manner as a Plaint (section 8 of the
KCFSV Act).
● Limitation- deemed to be instituted on the day when counter-claim filed in
court.

Order 8, Rules 6A to 6G:

6A: Counter claim by defendant: by way of counter-claim in respect of a

cause of action accruing to the defendant against the plaintiff either before or
after the filing of the suit but before the defendant has delivered his defence.
If you cant satisfy the criteria of set-off, then you can file your claims as
counterclaims in a suit. – cant exceed pecuniary limit of court.

Plaintiff gets a right to file a WS in answer to the counter-claim.

Can also find a counter suit, which may or may not be clubbed by the Court.

What is the advantage of a counterclaim or set-off, as opposed to a separate

suit?
 - Court fees are paid on set-off and counterclaim, counterclaim is deemed
to be filed on the day of first hearing – no BT of filing another suit
altogether.

Rule 6B: Counter claim to be stated specifically in the WS – label it as a

counterclaim to avoid confusion

6C: Exclusion of counter claim –

6D: Effect of discontinuance of suit – counterclaim can be proceeded with

6E: Default of plaintiff to reply to counter claim

6F: Relief to defendant where counter claim succeeds

Rule 7: Defence or set-off founded upon separate grounds

Rule 8: New ground of defence

Counter-claim is chargeable as a separate claim – no advantage of court fees.

Equitable set-off:

The SC has stated that you can claim a set-off, have it tried with the main suit
and get the limitation advantage even if you don’t satisfy all the conditions
under O8,R6 as an equitable set-off, because it would be inequitable in those
circumstances to get the defendant to go and file a fresh claim.

Jitendra Kumar Khan v Peerless :

- Plaintiff instituted an OS in Kolkata against Pearless for declaration that

they were entitled to pay all the commissions to all the defendants and
field officers. Def was an insurance company and they employed the
plaintiff, who in-turn used agents and field officers to procure investors
for the defendant company. The plaintiff’s case was that they were
entitled to commissions and payments wrt transactions as per the
circulars issued by the def company – decree of 25 lakhs against company.
Alternatively, they sought an inquiry into the amount of damages suffered
by the plaintiffs.

- Plaint was presented on 11/8/1993 – Defendant filed WS at 12/8/1994 and

did not seek any set-off or counterclaim (Should have been done at this
stage) – on 7/4/1998, defendant sought an amendment of the pleadings
 that they were entitled to a claim of money (4 lakhs) from the plaintiffs as
per the contract. This application was opposed, as introducing a
counterclaim/set-off by an amendment. The HC rejected the application,
stating that the counterclaim/set-off should have been done in WS/first
hearing of the suit.

- Intra court appeal to the division bench was filed – the division bench
considered whether this was a set-off or counterclaim? – Court said
neither, as the application neither met the requirements of setoff or
counterclaim and was time-barred for both – however, they said that it
would be considered an equitable set-off – the question of time does not
apply to equitable set-off.

- Plaintiffs appealed to the SC – SC dismissed the appeal and reiterated the

judgement of the division bench and this was an equitable set-off –
equitable set-off is not a matter of right and does not lie in Order 8, Rule 6
and it is solely within the discretion of the court – based on the
fundamental principles of equity, justice and good conscience. Even if the
sum is unascertainable, you can claim it as equitable set-off.

- Test: The Set-off should be so connected to the main claim, that it would
inequitable to ask the defendant to go and file a fresh suit and such
Equitable set-off must arise from the same transaction. It is discretionary
and cannot be claimed as a matter of right.

- A Legal set-off does not arise from the same transaction – you need to be
in the same character. ‘Before the time the defence is presented’ means
the time the WS is filed.

- Legal set-off has the advantage of limitation (deemed to have been filed
on the date of institution of the suit of the plaintiff) but usually if the
request for set-offs/counterclaims fail, the lawyers just file a counter-suit
because that is a right that the party has.

- Same character means that you should have the same title – Eg: Suit is
between plaintiff and you, where you are the Director of a Company, sued
in that capacity. You cannot file a set-off in your individual capacity in the
same case.

- Your counterclaim/set-off can be of a greater amount than the amount

claimed by the plaintiff.
3 ways to tackle any averment:

1. Traverse and admit

2. Traverse and deny

3. Traverse and denied due to lack of knowledge

Cannot have a evasive denial – the denial has to be that the ‘fact that xyz
happened is denied’ – ‘Defendant was never in Bangalore, where tiffany hotel is,
on the date mentioned’.

Damages are always deemed to be denied.

Reliance on documentary evidence:

Order 7, Rule 14: Production of document on which plaintiff sues or relies – must
be mentioned in a list in the plaint and produced in court, if in his possession – if
not in his possession, then the proviso is followed, where the person who
possesses the document is mentioned (if any) and the court orders its
production.

Order 8 Rule 1A: Duty of defendant to produce documents upon which relief is
claimed or relied upon by him.

If you cant trace the document, it cannot be considered as evidence because it

hasn’t been formally admitted in court – it is just annexed to the pleading/WS. It
can be used to clarify facts and corroborate evidence.

Subrule 4, subclause A and B: Nothing in this rule applies to documents

produced for cross-examination of the plaintiff’s witness – it prevents witness
tutoring as the witnesses don’t know which document can be produced and the
element of surprise is important to know the veracity of the statements made by
the witness – when the document is produced in court during cross
examination, the court marks the document and adds it to the file. This
document doesn’t automatically become evidence. If you produce this
document, the defence can object on various grounds on exclusion of evidence.

APPEARANCE OF PARTIES AND CONSEQUENCES OF NON-APPEARANCE

 ● Note at the outset that the relevant rules are contained in Order 9 and
Order 17 Rules 1 to 3.In Order 9 Rule 1 a distinction is made between
hearing on the day fixed in the summons for defendant to appear and
answer and an adjourned hearing. The provisions of Order 9 relate to the
day fixed in the summons – however, by virtue of Order 17, Rule 2, the court
may dispose of the suit in one of the modes directed in Order 9 and therefore
the provisions of Order 9 become applicable to the hearing on the day fixed
in the summons and to the adjourned hearings. (Note however the phrase
“or make such other order as it deems fit” in Order 17 Rule 2.)

- First hearing: The day on which the court applies its judicial mind to draft
the issues for trial

- Adjourned hearings: All subsequent hearings after first hearing

- Hearing on the day fixed in the summons for the defendant to appear and
answer – another type of hearing

● Provisions relating to defaults by the Plaintiff :

(a) Order 9 Rule 2: Failure to pay court-fee or postal charges for

summons or present copies of the plaint-court may dismiss the suit.
Remedy: Order 9 rule 4 –fresh suit or application to set aside dismissal.
(b) Order 9 Rule 5: Failure to apply within 7 days from the date of return
of summons for a fresh summons- court shall make an order of
dismissal unless satisfied that failure due to sufficient cause, etc.
Remedy: Order 9 Rule 5: Fresh suit.
(c) Order 9 Rule 3: Failure to appear (and Defendant also does not
appear)- Court may make an order that the suit be dismissed. Remedy:
Order 9 Rule 4- fresh suit or application to set aside order of dismissal.
(d) Order 9 Rule 8: Failure to appear (but Defendant appears)- the Court
shall make an order that the suit be dismissed unless Defendant admits
the claim or part thereof. Remedy: Order 9 Rule 9 – fresh suit precluded
but can apply to have dismissal set aside.

Order 9: Day fixed in summons for hearings

Rule 1: Parties to appear on day fixed in summons for defendant to appear and
answer – distinction between that hearing and adjourned hearings (unless the
hearing is adjourned to a future day fixed by the court)

Why is this difference important? When you read Order 9, it by and large applies
to the day fixed in the summons for defendant; while Order 17 applies to be to
what is to be done on all the adjourned hearings.
Rule 2: Dismissal of suit where summons not served in consequence of plaintiff’s
failure to pay costs – court has the discretion – Proviso is that if the defendant
shows up, its fine.

Rule 3: Neither party appears: the Court may dismiss the suit.

Rule 4: Plaintiff may bring a fresh suit or court to restore suit to file: If the case is
dismissed under Rule 2 or 3, and if you apply within the limitation period, then
you can file for a fresh suit/to set aside the dismissal – Nuance between Rule 2
and Rule 3 – rule 2 is when the defendant does not appear, rule 3 is when neither
party appears before the court for the hearing.

Rule 5: Dismissal of suit where plaintiff after summons returned unserved, fails
for 7 days to apply for fresh summons – if the earlier suit is dismissed for default,
a fresh suit is not barred by virtue of Rule 5(2).

Provisions relating to defaults by the Defendant

(a) Order 9 Rule 6: Defendant fails to appear even though Plaintiff

appears – the Court may make an order that the suit be heard ex parte.
Remedy: Order 9 Rule 7: application to set aside ex parte proceedings
(can be filed only until suit posted for judgment).
(b) Order 9 Rule 13: Ex parte decree passed against the Defendant.
Remedies: Order 9 Rule 13 application to set it aside, appeal against the
ex parte decree under section 96; review petition if possible and fresh suit
to set aside ex parte decree on the ground of fraud.

Rule 6: Procedure when only plaintiff appears – If the summons was duly served,
the court may make an order that the suit is heard ex parte – if summons was not
duly served, then the court shall direct a second summons to be issued and
served on the defendant. – When summons served but not in due time, the
court gives notice to the plaintiff and adjourns the hearing.

Rule 7: Procedure when defendant appears on day of adjourned hearing and

assigns good cause for previous non-appearance: Defendant may be heard if he
can give good reasons for not showing up previously. D can file an application to
set be heard before the decree is passed under this rule. After decree is passed,
Rule 13 kicks in.

Rule 8: Failure of plaintiff to appear but the defendant appears – Court shall
make an order to dismiss the claim unless the defendant admits the claim, in
which case the court shall pass a decree against the defendant upon such
admission
Rule 9: Decree against plaintiff by default bars fresh suit – no fresh suit for
dismissal under rule 8, but can approach the court to set aside the dismissal in
case there was a sufficient cause for his non-appearance when the hearing was
conducted.

Rule 13: If a decree has been passed against D ex parte, defendant may apply to
the court to set aside the decree – super important provision.

Rule 14: No decree to be set aside without notice to the opposite party – they
need to be given an opportunity to be heard in order for the court to reach its
conclusion in a fair manner.

● Where there are multiple Plaintiffs and Defendants and only some
appear- Order 9 Rule 10 (only some Plaintiffs appear)- suit may proceed or
court may pass such order as deemed fit. Order 9 Rule 11 (only some
Defendants appear)- the suit shall proceed and the Court shall at the time of
pronouncing judgment make such order as it thinks fit with regard to the
Defendants who do not appear.

● Consequences of non-appearance by party ordered to appear in

person.Order 9 Rule 12.

6 Possible situations of default in this Order – know what to invoke when.

Order 17: Applies to all Adjourned hearings (Sangram Singh’s case)

● Where parties fail to produce evidence, cause the attendance of the

witnesses or perform other acts necessary for the further progress of
the suit- Order 17 Rule 3.

● Sangram Singh vs Election Tribunal Kotah [AIR 1955 SC 425]: Defendant who
is placed ex parte has right to take part in the proceedings from the stage at
which he appears; but no right to “turn back the clock” which is the
discretion of the court.

● Bhure Lal contested the election of the appellant Sangram Singh. After a few
hearings, seat changed and parties notified to appear in a different court. On
the due date – 17th march, neither sangram singh nor his counsel appeared
before the tribunal. Only after 3 days after the commencement of the
proceeding, counsel appeared but dismissed because court said proceedings
ex parte. Appellant wanted to set aside this ex parte order but court set it
aside, in favour of the respondent, saying they didn’t satisfactorily give
reason. HC rejected appeal that appellant was negligent and deferred to the
tribunal. Appealed to the SC under art 133. First issue whether the HC had
juris to entertain appeal from the tribunal. The unique issue is that s/105 of
RPA mentions that any judgement would be final and conclusive – so appeal
might not be allowed. But SC cited precedent and said S.105 does not bar
HC or SC’s right to hear case on appeal. But exercise it very carefully, and
not do in every case, only cases where substantive justice is needed.
2nd issue – court said it was conflicting – what is an ex parte? One precedent
said it is ‘absence of the defendant’, another said it was defined as ‘absence
of the defendant till the proceedings have been terminated’. SC went with the
first definition ‘absence of the other party’ – does not mean not giving the
defendant any right after he comes at some point in the case. SC quashed
the order from the HC and the tribunal – if the defendant appears at a later
stage, then he has to be given his right. Court said procedure is only
regarded as facilitating ends of justice, not a penal enactment giving
penalties. If there’s too much technical strictness, it would be against
justice. Procedure is grounded in PNJ. It requires that any decision should
not be reached against one’s back and one should not be condemned
unheard. The other party should not be precluded from participating. Court
says this is not a case in which the defendant didn’t appear at all. The
tribunal failed to exercise its discretion – could have used order 9 or 17 to
grant relief to the defendant. Court said tribunal felt that there was no way
of relief, but it was wrong. Tribunal should have heard the defendant. Court
said HC also wrong.
Crux of the legal question – can sangram singh take part in the proceedings
from the day he came to the court? SC said he can do it from the point he
joins the proceedings, and this will prospectively affect everything that
happens.

Sir’s version of facts:

Bhure Lal filed an election petition under s.100 of RPA against sangram
singh and others. During adjourned hearings, on 17.3.1953, sangram singh
didn’t appear nor his counsel. Tribunal proceeded ex parte against him –
order 9 rule 6. Matter adjourned to the 18th – both of these days, witnesses
were examined for the plaintiff. On 18th also, sangram singh didn’t come. On
19th, case adjourned to 20th. On 20th, sangram’s counsel appeared and
sought to take part in the proceedings – for cross examination. But court
didn’t permit him to take part in the proceedings, because an ex parte order
was passed on 17th. It means you are never entitled to take part in the
proceedings. After 20th, matter was adjourned to the 21st. on 21st, sangram’s
counsel made an application in writing seeking to set aside the ex parte
proceedings from 17th and asking to cross-examine Bhure lal’s witnesses –
all those who had been examined in the 3 sessions before. This application
was filed basically to go back to the 17th and start over by cross examining
all the witnesses. The election tribunal rejected the app. A writ petition filed
in HC, rejected, granted a certificate under Art.133(1C) of Consti – leave to
appeal to the SC. So the defendant-appellant went to the SC under Art.133
and Q was whether the tribunal was right in refusing the defendant’s
counsel in refusing to allow the counsel to participate on or after 20.3.1953.
SC noted that under 90(2) of RPA – procedure in the CPC applies to these
RPA proceedings. SC talked about right to be heard and right to participate.
Distinction between first hearings and subsequent hearings, order 9 and
order 17, date fixed in the summons and adjourned hearings. Order 9
applies only to the date fixed in the summons. But by virtue of order 17 rule
2 – which applies to adjourned hearings - court is empowered to pass orders
as it may have passed under order 9 or any other orders. Under order 9 rule
6, if a party has come later even after an ex parte order has been passed, he
 can participate from that day onwards. So counsel, as a matter of right, can
take part in the proceedings on the 20th. Though he has a right to appear
in the adjourned hearings, he has no right to set back the hands of the
clock, cannot seek cross exam of witnesses who have been examined on
the 17th and the 18th. That cannot be done – what is done is done. This
is exclusively within the discretion of the court – it may or may not
allow.
PARTICIPATION FROM THE DAY YOU COME – RIGHT.
PARTICIPATION BY SETTING BACK THE CLOCK – DISCRETION.
Even though the defendant had appeared at the first hearing, filed written
statement and all, etc, order 17 would apply and not order 9 – because final
issue was about an adjourned hearing. Order 17 rule 2 applies – court is
given the widest discretion – make an order as may be made under order 9
or any other order as it deems fit. So discretion under order 17 wider than
order 9. SC set aside order of tribunal and HC and remanded the matter
back – tribunal should reconsider the decision and see whether it wants to
exercise its discretion to set the clock back, and allow the defendant to
cross-examine earlier witnesses.

There is no such provision which explicitly sanctions continuing your

appearance in later hearings, because that is a matter of right.

● Bhanu Kumar Jain vs Archana Kumar [2005(1) SCC 787]-the remedies

available to a Defendant against an ex parte decree discussed. Once appeal
against ex parte decree disposed, no application lies under Order 9 Rule 13.
Conversely, once application under Order 9 Rule 13 rejected and appeal
against the order of rejection under Order 43 Rule 1 dismissed, cannot raise
the issue in the appeal. The appeal can only be agitated on the merits of the
case.

● Suit for partition filed in 1976. In this suit, in 1985, the defendant was
placed ex parte – 7.10.1985 and matter was adjourned on several occasions
for plaintiff’s evidence. Finally listed for argument and plaintiff’s counsel
argued the matter, then listed for judgement, after judgement – 25.10.1985,
decree was also drawn up – all in 1985 itself, in favour of the plaintiff. App
under order 9 rule 13 filed on 5.11.1985. Once decree is passed, make
application under order 9 rule 13, before judgement make under order 9
rule 7. The application under order 9 rule 13 dismissed here bc defendant
had not shown sufficient cause. Appellate remedy against order dismissing
this app – order 43, rule 1d. (When an app is made under order 9 rule 13,
the final order passed by the code can be appealed under order 43, rule 1d).
Defendant preferred an appeal to the HC saying he did show good cause. HC
also dismissed. Then he went to SC. SC also dismissed SLP.

● Another appeal: HC in an appeal on the main decree under S.96, reversed

the decree saying he should have been heard. SC said once HC gave an
order on the issue of order 9 rule 13 – conclusively. Why bring it up again
under S.96? HC can look at decree on merits, but not the procedure of the
decree. Res judicata applies in different stages of the same proceedings.
 ● CRUX: When an ex parte is passed, he can prefer a review petition, he can
file a suit saying fraud to set aside the ex parte decree, he can prefer an
appeal under S.96, he can make an application under order 9 rule 13. All
these can be pursued simultaneously. But once a judgement has been
rendered in ONE OF THESE REMEDIES, the same point cannot be
agitated again in another proceeding under any court.

● Alleging fraud on the parties – the other party gives your name wrong,
address wrong, so that summons is not served to you, etc. so he makes the
ex parte order obtainable through fraud.
Bhanu Kumar Jain: All remedies (O9, R13 or S.96 CPC) are available until the
court has passed a decree. After the decree is passed, you must go to the
appellate court and not the trial court. Until the appellate court has decided, you
can use both remedies – if the appellate court decides.

Rule 2: Procedure if parties fail to appear on day fixed – On any day to which the
suit is adjourned and the parties fail to appear, court may dispose of the suit –
Explanation: If substantial portion of evidence has been recorded, the court will
proceed as if the party were present.

Rule 3: Court may proceed notwithstanding either party fails to produce

evidence etc

FIRST HEARING OF THE SUIT:

(a) What is the ‘first hearing” of a suit? Arjun Khiamal Makhijani vs.
Jamnadas Tuliani (AIR 1989 SC 1599) – the day on which the court
applies its judicial mind to the case either for framing issues or for taking
evidence, is the first hearing of the suit and the first hearing cannot be
before that date. Shyamlal vs. AtmenandJain Sabha, Dal Bazaar – 1987
(1) SCC 222 – the day on which the Court applies its mind to the case is the
first hearing of the suit and not before that.

(b) What happens on the first hearing? Examination of parties by the court
(Order X), Framing of Issues (Order XIV), reference to ADR (Section 89
read with Order X Rules 1A to 1C) and even possibly Final Disposal (XV).

(c) What is the object and purpose of the provisions under Order X CPC– is it
for the purpose of gathering evidence?

T. Aravindanam vs. T.V. Satyapal (1977 (4) SCC 467) – frivolous suits
should be nipped in the bud on the first hearing by examining the parties
under Order X CPC.
 Duty cast on the court to not straight away go for trial. But before going to trial,
English law mandates that the judge applies his judicial mind to go
through the pleadings and see whether in fact, the party admits what he
is purporting to admit. Every allegation of fact made in the plaint if it is
not denied specifically, is deemed to be admitted. So defendant’s written
statement is important.
Object of order 10, rule 1 is to ensure that you are expressly admitting or denying
something, without jumping to conclusions about implicit acceptance/denial – courts
check with the defendant once.

3 forms of denial- admitted, denied, ignorant.

But usually, none of the judges look at order x, rule 1. So usually a lot of
things are deemed to be admitted, which weakens the defendant’s case.

Order X, Rule 2:

Manmohan Das Alias Bachchaji v Ramdei Musammat (1931)

- 4 judge bench (privy council)

- appeal against a decree of the High Court of Allahabad reversing a decree of the Additional
Subordinate Judge of Allahabad.
- about validity of a gift deed - SJ said fake, HC said genuine - PC agreed with HC
- defendant (Behari Lal) transferred a property share (4 Annas/16) to his wife using a gift
deed- then he sold the same share to appellants
- The appellants in the present suit pray to be put in possession of their purchase and allege
that the deed of gift which stands in their way is fictitious and invalid.
- if it was a valid gift (out of love and affection) -defendant had no title to sell

About CPC
PC highlighted 2 procedural irregularities
1. that the defendant was summoned as a court witness by the judge himself, instead
of the parties. under Order X, Rule 2, any party present in Court may be examined
orally by the Court at any stage of the hearing- but this power should only be used
as an exception) - power of judge
2. in the appeal, HC allowed the examination of witness who had not been called in
the lower court.
As per Order 41 Rules 27 and 29 - there is a general bar on adducing additional
evidence in appeal - this may only happen in exceptional circumstances, reasons have
to be recorded.
HC did not mention any such reason. PC thinks this was irregular and affected the
judgement

About the Deed

The onus is on the party challenging the deed. The court can examine the surrounding
circumstances, positions of parties- to determine validity (Dalip Singh v. Nawal Kunwar)
● The deed had a number of conditions for the wife. Court observed that such
conditions would be unnecessary if it was a sham deed - made just to cheat
creditors
 ● The situation of the parties at the time of the execution of the deed renders it
probable that it was intended to be genuine transaction
● Defendant does not appear to have been at the time of the execution of the deed
under any pressure of debt
● The deed of gift was duly registered and the name of the donee entered

● The appellants, who were aware that Behari Lal had given the 4 annas share in
question to his wife, initially did not want to buy, but it was represented to them
that the deed was a fictitious one and of no binding effect
● The sale document referred to a suit which Behari Lal had filed in the local Court to
have the deed of gift declared null and void and provided that after it was cancelled
by the Court and the decree had become absolute he would sell the 4 annas share to
the appellants and execute a sale deed, but if the case should be decided against him
the sale should be off and the earnest money should be returned.
● The defendants were his wife and her guardian, but neither of them appeared and
the suit was decreed ex parte - the appellants paid - but the wife got the decree set
aside - thus the sale could not be completed.

Final order
● The gift deed was valid. HC decree affirmed. Appellants' claim to the possession of
the subject of suit fails

NK’s way:

- 4 judges of the Privy Council

- Appeal from the Allahabad HC.

- Beharilal had executed a gift deed in favour of his wife in 1919 – In 1923, he
sold the immoveable property which was in the gift deed to the appellants
– the question is whether he had the title to the property at the time he
sold it? The gift deed was executed when his wife was a minor, so the
question was also whether it was a valid deed.

- The Trial Court, even before the Trial commenced, called Beharilal as a
court witness – was examined and cross-examined by the court and the
opposite party at length – then the regular trial followed. The Trial Court
said that the suit was decreed. Allahabad HC reversed the decree.

- Privy Council said that the Court has this power, but it should only be
used to obtain information at any stage, but this does not supercede the
regular procedure at trial – they deprecated it and told the courts not to
do it again - the Privy Council did not strike out his evidence and
 appreciated the facts and evidence once again to say that gift deed was
valid and that Beharilal did not have the title to transfer it.

Then what is even the purpose of order 10, rule 2? - This is only a clarificatory
hearing to check your pleadings, it is not to collect evidence. This examination can
happen even in a subsequent hearing. Order 10 rule 3,4 make it clear that the
information recorded is not even evidence.

- K.S. Satyanarayana vs. V.R. Narayana Rao (1999 (6) SCC 104) – where
the defendant denied his signature on theVakalath itself, the trial court
could have investigated the matter under Order X and prevented a
protracted trial.
-
- Kapil Core Packs Pvt. Ltd. Vs. Harbanslal (2010 (8) SCC 452) - the power
under Order X is only for the purpose of clarifying the stand of the parties in
regard to the allegations made; it cannot be converted to a process of cross-
examination by the court.

Kapil filed a criminal complaint against Harbanslal saying that the

agreement that Harbanslal had drafted was a forgery. He had relied upon a
forged document to make them pay money. Suit filed by Kapil Core Packs.
The crux of the dispute was whether the agreement was valid or not. TC
exercised power under order 10, rule 2 – manager of Kapil to appear in
person with docs relating to the company. TC examined him and showed
him the agreement – covered the letter in such a way that the MD could only
see the signature on the agreement and asked if it was his sign? TC recorded
that MD admitted that his signature was indeed on the agreement so this
being the crux of the dispute, MD has committed perjury because in the
written statement, he denied entering into the agreement. TC proceeded
under S.195 IPC r/w 340 CrPC – criminal prosecution against MD for
contradicting himself in pleading and examination. Issue went to SC. Judges
pointed out that order 10, rule 1 to be used when there is no full
traversal of the pleading – court should figure out if facts are admitted
or not. Rule 2 is wider, and to ascertain if the matter is noteworthy.
Not to record evidence (not under oath). Order 10, rule 2 cannot be
considered as a collective cross examination by the court. In this case,
TC effectively cross examined the MD. That’s not okay.

Sir says power can be used later also, as long as it is used for clarifying but
not collecting evidence.

ISSUES – ORDER XIV

(d) What are issues? When do they arise?Order XIV Rule 1.

(e) Is the court bound to pronounce judgment on all issues?Order 14 Rule 2.

(f) What are the materials fromwhich issues may be framed?Order 14 Rule 3.

(g) Can the Court amend or strike out issues at a laterstage?Order XIV Rule 5.
 (h) When can the court dispose of a suit on a preliminary issue?Order XIV Rule
2.

(i) Can the parties agree to put forward questions of fact orlaw as issues to
bedecided by the court? Order 14 Rules 6 & 7.

(j) What is the effect of non-framing of a material issue - is it fatal to the suit
and is a re-trial mandatory?

- Issues arise when a material proposition of law of fact is affirmed by one

party and denied by the other.

- Rule 1 – Framing of issues

- What is the effect of the non-framing of a material issue and what happens
subsequently? Can the issue be framed at the appellate stage? – The court has
stated that the counsels must bring it to the attention of the court and it is
your fault. If you don’t raise this concern, you are deemed to have waived it –
Montford case. Also, Vishwanatha case.

Biswanatha Agarwala vs. Sabitri Bera (2009 (15) SCC 693) – Supreme
Court remanded the matterfor fresh framing of fresh issue and trying the
same on the ground appellant was prejudiced.

Vishwanatha Agarwalla v Sabitri Bera [2 J bench]

- Facts: The present case came to SC by way of appeal – dispute is about a

shop situated in a town in WB – the appellant has entered possession in
1979 after leasing it from Abdul Rahman, who was succeeded by his son –
it was assumed that after the Respondent bought the shop from Son of
Rahman, the respondent became the landlord of the property and the
appellant was the tenant – sought to evict the appellant by terminating
the tenancy under S.106 TPA – the appellant denied that he was the
tenant – the trial court framed issues, one of which was ‘whether the
relationship of landlord-tenant was established by the defendant?’ - the
trial judge held the while the Respondent was the owner of the land, they
had failed to show a landlord-tenancy relationship and failure to prove
tenancy means that they are not entitled to a notice of eviction.

- The First Appellate court reversed the judgement – said that there is no
need to show landlord-tenancy relationship – need to show you have a
claim and the other party doesn’t have a superior claim so you can get an
order of eviction.
 - SLP went to the SC – SC said that in this case, there was no issue passed as
to whether the defendant was a trespasser or not and if such an issue had
been framed, it would have been possible for the defendant to keep his
possession due to provisions under adverse possession – non-framing of
the issue did caused prejudice to the defendant and therefore, it should
be remanded back to the trial court.

- SC used Article 142 to render this decision on the specific facts of the case
– cannot be a precedent.

Montford Brothers of St. Gabriel vs. United India Insurance (2014 (3)
SCC 394)Where crucial issue was not raised the party was penalized for the
same.

Montford Brothers [3 J bench]:

- A member of the society, called Thomas was the director and headmaster
of the society – he was driving a car when a jeep struck him and he died –
the vehicle that hit his car was insured under a policy given by United
India Insurance (Need insurance if you wanna drive under Motor Vehicle
Act) – the Montford brothers decided to sue for damages and
compensation for his death and the insurance company was made a party
– the company filed a WS, where they never raised the contention that
the society could not file a claim under the MV Act since that only
provides for family members. The Claim of the Brothers was allowed.

- The Insurance Company filed a writ petition to the HC, stating that the
Montford Brothers were not the family of the deceased and they could
not have maintained a suit for the deceased – the HC set aside the order,
saying that the MB were not family and couldn’t claim. Appeal to SC.

- The SC said that the determination of whether MB were heirs was a

question of fact and no issue had been framed to this regard as the non-
framing of the material issue prejudiced MB in this case and they set aside
the HC order and reinstated the first order – didn’t remand it back to the
trial level in this case – if something is not an issue in a case, the party that
would have benefitted from a finding on that issue is deemed to have
waived the issue altogether.
 Mahendra Manilal Nanavati vs Sushila Mahendra Nanavati AIR 1965SC
364 – Order 41 Rules 23, 25 invoked.

Order XV – Disposal of the suit at first hearing.

Rule 7 of Order XIV allows parties to give the court a list of issues between
them – like in arbitration

What happens when the Court has failed to frame an issue on a material
contention?

- Some judgements say that the framing of issues is the job of the court, and
the failure to do so results in remanding the matter to trial to frame the
issue, argue it and pass the judgement.

- Some judgements say that if the court fails, the counsel of the party can
bring it to the attention of the court and file an application for the framing
of issue and thus, they are deemed to have waived the issue.

DISCOVERY
- Relevant Provisions: S. 30 to 32 and Order 11.

- What is the rationale for discovery in an adversarial proceeding? Why is it

only available against the party opponent and not third parties? Why is it
not available with regard to the facts that constitute exclusively the case of
the opponent?

- What are the three modes of discovery recognized by the Code? By

interrogatories, by affidavit of documents, and by inspection.

- Theoretical background: English system allows parties to use surprise as a

weapon – you can suppress a document and spring it on the witness
suddenly at cross-examination to take advantage of their surprise. In
India, the pleadings must contain all material facts and should not contain
any lies as that would amount to perjury. However, you do not have to
disclose all the documents that you would rely upon in court to support
your case – you can use surprise as a tactic. Inspite of this, due to the
evolution of English Common law, it has been recognized that it is
nonetheless prudent to let the party know the plausible evidence that
might be led against them – the Court may use its coercive powers to
discover documents.
 - Principles regarding rules of discovery – Discovery is available only with
regard to facts that constitute exclusively the case of the opponent
(Cannot ask the appellant to reveal information that would favour the
respondent, only the evidence they will use). Discovery is only available
against the opposing party in a suit and not against a third party. There are
three modes of discovery in the CPC – Interrogatories, by affidavit of
documents and by inspection.

- Surprise is not useful if the witness is a dishonest person – the process of

discovery helps in rebutting false evidence that may be presented by the
other party, by eliminating the element of surprise and finding rebuttal
evidence to help buttress your claims.

- Would it include documents to be relied upon in cross-examination of

opponent’s witnesses – yes, but he's unsure.

- Needed to protect real evidence from being tampered by the opponent, or

to prevent an honest witness from being thrown off by false evidence

S.30 – 32:

- S.30: Power to order discovery and the like – Subject to conditions and
limitations as may be prescribed, the Court may at the time either on its own
motion or on application by either party – make such orders relating to the
delivery and answering of interrogatories, the admission of documents and
facts and the discovery, inspection, production, impounding and return of
documents or other material productible as evidence. – can also order that
witnesses be presented before the court.

- S.31: Summons to witness

- S.32: Penalty for default: If the witness doesnt come, the court treats you
more harshly

(a) What are the three modes of discovery recognized by the Code? By
interrogatories, by affidavit of documents, and by inspection.

(b) What is the procedure for delivering interrogatories to the party? Order 11
Rules 1 to 11– leave of the court necessary and they must relate to matters
in question in the suit; court will decide within 7 days from the date of
application; objections may be taken in affidavit in answer or application can
be made for striking off under Rule 7; affidavit in answer shall be filed within
10 days; the court can issue direction to answer further.
 “In law, interrogatories (also known as requests for further information) are a
formal set of written questions propounded by one litigant and required to be
answered by an adversary in order to clarify matters of fact and help to
determine in advance what facts will be presented at any trial in the case.”

Order 11: Discovery and Inspection

What is the procedure for delivering interrogatories to the party? Order 11 Rules 1
to 11– leave of the court necessary and they must relate to matters in question in
the suit; court will decide within 7 days from the date of application; objections
may be taken in affidavit in answer or application can be made for striking off
under Rule 7; affidavit in answer shall be filed within 10 days; the court can issue
direction to answer further.

- Rule 1: Discovery by interrogatories – Scope of interrogatories is narrower

than cross-examination – make an application and obtain the leave of the
court.

- Rule 2: Particular Interrogatories to be submitted – Within 7 days of filing,

the court may decide on the application, taking into account the
concessions that the opposing party might be willing to make.

- Rule 3: Costs of interrogatories –

- 4; Form of interrogatories

- 5. Corporations

- 6 – Objections to interrogatories by answer – all the safeguards available

in the Indian Evidence Act are available to the party to be used in their
affidavit as a response to request of interrogatories

- 7: Setting aside and striking out interrogatories:

- Order 11 rule 1- seek permission of the court and deliver interrogatories in

writing for the examination of opposite parties. Have a footnote saying
which questions which person has to answer.

- Scope of questions on interrogatories is narrower than scope on cross

examination. Typically, questions relating to the character of the witness
– not allowed in the form of interrogatories. Scope narrower here, as
given in the proviso to Rule 1.
- Court shall, within 7 days of filing app, whatever opponent concedes,
don’t ask it again in the interrogatories.

- If you have vexatiously or frivolously or excessively asked interrogatories,

the taxing officer can charge you for it.

- When youre suing a corporation, mention the member in charge of the

company by name (MD, CEO etc)

- Objections to interrogatories, all the exceptions to evidence (privilege,

self-incrimination) can be raised in the affidavit to not answer the
interrogatory

- Interrogatories may be set aside or struck on being unnecessary,

scandalous etc

- The other side will file an affidavit answering the questions in your
interrogatory, but court will still confirm if they have answered
sufficiently. The main party can apply to court for an order to ask him to
answer further.

- Appendix C, no 1.

- Person on discovery is on oath, if he lies then he is liable for perjury.

- Party can use what you said in an interrogatory, to mark contradictions in

cross examination.

- Discovery is only for other party, not for his witnesses. This is to retain the
surprise element.

- Raj Narain vs Indira Nehru Gandhi (1972) 3 SCC 850- relationship

between pleadings, issues and interrogatories seen; questions permissible
during cross-examination not necessarily “related to any matters in question
in the suit” under Order 11 Rule 1.
- Nishi Prem vs Javed Akhtar 1987 SCCOnlineBom 296: discovery does not
enable the party to know the facts which constitute exclusively the evidence
of the opposite side; or to discover who the witnesses for the other side
might be; “newspaper rule” in England followed.
Facts: OG defendant no.3 published an article in a film magazine ‘stardust’
published in 3 languages. Article published related to plaintiff and wife
(Javed Akhtar and Shabana azmi). Statements made by the writer based on
info given by various people at parties etc. especially in relation to mr. india
– she used words like industry wala, star wife, etc. JA claimed defamation
for rs.25 lakhs damages. Defendant claimed it was true based on some
conversations. Plaintiff said it was concocted and no such information. Sued
mag, writer, etc. affidavit filed by the plaintiff wrt chamber summons said he
needed name of information to substantiate his case. He also wished to sue
those people. As her answer to the chamber summons, plaintiff said discover
by interrogatories should not be allowed. 1. Wanting to file case against
informant is an improper object. 2. She shouldn’t reveal witnesses to trial. 3.
It would be breach of confidentiality. Trial court judge negatived all
considerations. Appeal to Bombay HC by the defendant against order of TC
judge.

Whether the newspaper can be compliant in revealing the sources?

Order 11 rule 1 talks about the leave of the court. Whether the grant of order
for interrogatories was relevant.

Arguments in the Bom HC:

Appellant: you cannot direct us to respond to interrogatories which pertains

to evidence that we are directly relying upon for the later case – esp
confidential sources. So this is directly a part of our evidence, you cannot
compel us to supply their claims.

Respondent: but this interrogatory will lead to them boosting their own
arguments, will prove malicious intent to help damages. They haven’t
directly responded to the claim that it exclusively pertains to evidence.

Appellant: you didn’t tell why its so important to substantiate the claim.
Even if malice is proved, you can get damages later. Why you need now itself
at this stage of the case?

They also said they’re protected under newspaper rule – not allowed to reveal
the sources in the interlocutory stage. Relied on an English case of steel
corporation – where for some 100 years, newspaper rule has prevailed in
England. The only exception is larger public interest, national security.

So the appellant said neither of these exceptions, so not compelled to reveal

the name of the informant.

Defendant: this rule is not followed in all common law countries. They
pointed to America and showed that in 2 cases, it has been revealed.

Judgement:
HC held that interrogatories should not be granted because the need for the
interrogatories here seems to be to sue them instead. You can’t ask in an
interrogatory who the probable witnesses might be – cuz of tampering (ratio).
They upheld the newspaper rule. The court held that at this stage,
interrogatories doesn’t seem relevant.
(c) What is the procedure to obtain discovery of documents? Order 11 rules 12
to 13. Application to court for order – Affidavit in answer in Form No. 5
Appendix C.

ML Sethi vs RP Kapur (1972) 2 SCC 427: Order 11 can be used in forma

pauperis proceedings; application for discovery need not specify the
documents sought to be discovered.

Forma Pauperis: It refers to the ability of an indigent person to proceed in

court without payment of the usual fees associated with a lawsuit or appeal.

The respondent filed an application for permission to sue in forma pauperis

against the appellant, and notice of the petition was-given to the state
Government and the appellant under O.33, r. 6, CPC à notice of day for
receiving evidence of applicant’s indigency. The Government and the
appellant filed objections, that the respondent was not a pauper. The
appellant also filed an application for discovery of documents from the
respondent for proving that the respondent was not a pauper.

HC said there was no evidence that he was a pauper – respondent filed

affidavit and application much later than directed and so was asked to pay
the court fees – HC also said documents being claimed to have been
discovered weren’t specified in the appln - the trial court acted with
material irregularity as it did not consider the question of the necessity for
discovery of the documents or the relevance of the documents of which
discovery was sought also for the reason à that, in ordering discovery of the
documents relating to personal accounts, and pass books, it overlooked the
right of the respondent to claim privilege the trial court overlooked the right
of the respondents to claim privilege; and- the trial court, rejected the
application to sue in forma pauperis for statistical purposes

HELD : (1) The suit commences from the moment an application

for permission to sue in forma paupers as required by O..33

C.P.C. is presented and the provisions of Order 1, r. 10, of O.9 and O.39
would apply to it. If that be so, there is no reason why the provisions of
O.11 r. 12 relating to discovery should not also apply to proceedings
under O.33.

- Distinction between material irregularity and error on law.

- S. 115 CPC : uses the phrase material irregularity

- In S. 96 CPC, the party has the right to first appeal

- The suit is for damages here

 - S. 115: The HC calls for the record of any case and the case must
meet one of the conditions enumerated in S. 115

- Discovery should be used in the main trial, but not for the damages –
the civil court acted with material irregularity

- Can use discovery proceedings (Order 11 CPC) in in forma porporis

(Order 33) – can only be used in the main trial and its use in the damages
suit was a material irregularity. - neither accepted nor rejected the ratio in
anisminic (v imp)

You need not ask for any document in specific also, you can even say
produce all documents relating to the case.

Discovery through inspection of documents: Order 11, Rules 15-19

- Rule 15: You don’t know what those documents contain but you only have
a list – so you make an application to inspect such documents. Discovery
is about finding out facts that do not exclusively make up the case of the
opponent.

- Rule 16: Plaintiff gives notice of inspection, D gives reply notice w date and
time to come inspect documents. If the party served with notice does not
reply, then the order for such inspection of document may be passed.

- You need to give affidavit w application for inspection to explain why this
inspection is important.

- Rule 19: Verified copies

- Rule 20: Premature discovery

- Rule 21: Non-compliance with order for discovery: Suit can be dismissed
and fresh suit may be barred – if you are a defendant, your defense may
be struck off and the court deems you have admitted it.

Appendix C: Forms for Discoveries

(d) What is the effect of failure to comply with an order for discovery? Rule 21.
M/s Babbar Sewing Machine Co vsTrilokNathMahajan (1978) 4 SCC 188:
unless there is a clear failure to comply with the Rule, Order 11, Rule 21
should not be lightly invoked.

(e) Rajesh Bhatia vs G. Parimala 2006 (3) ALD 415, M.

SivasamyvsVestergaardFrandsen.
ADMISSIONS

● What is the procedure for issuing notice to admit documents?Order

XII Rules 2 to 3A.

● What is the procedure to issue notice to admit facts? Order XII Rules
4 to 5.
● What is the procedure to prove an admission – is the affidavit of the
pleader or his clerk sufficient? Order XII Rule 7.

- Order 12 only relates to judicial, formal admissions. However, S.58 IEA

does not distinguish between different types of admissions.

- If there is admission, you don’t need to go to trial on that point.

- Rules 1 -7: Admissions by the opponent to admit a document or fact –

failure to deny is deemed admission.

- Rule 7: Affidavit with the signature of the advocate is enough to prove the
admission.

- Form 12, Appendix C: Notice to produce documents as per O11, Rule 8 to

be used in cases of O11, R15

- Any admission made anywhere can be used in another suit – no bar on

admissibility, but the questions of relevancy and weight have to be
determined by the new court.

- Admissions allow you to make contradictory statements, but estoppel

prevents you from making a contradictory statement.

- What are the two types of admissions according to Wigmore?

- Wigmore differentiates between judicial admissions in one’s pleadings
and admissions and one made in the course of trial - can it be retracted?
In WS, you can amend your pleadings to retract an admission. Any
admission made in cross-examination cannot be retracted but you can try
to explain it in a re-examination.

TRIAL
- Trial is the process in which the dispute questions of fact, framed as
distinct issues, will be determined using techniques recognized in law –
witnesses will have to give affidavits and , documents and pleadings will
 be marked as exhibits and there will be examination, cross-examination
and then the arguments.

- S.30 to 32 are applicable – give judges widespread powers to conduct trial.

ORDER 13: PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS

(f) Sections 30 to 32, Order 13.

(g) Original documents to be produced at or before settlement of issues – Order

13 Rule 1. What are the exceptions to the same?

- Rule 1: Original documents to be produced at or before the settlement of

issues – pleadings already require you to annex the originals and copies to
the pleadings – why is this needed again? This anomaly has not been
resolved by the case law – Initially, under Order 7, you need to only file
the suit document and the other documents have to be presented before
the formation of issues. However, after amendment, all documents have to
filed with the pleadings itself and can be allowed later only if there is leave
of the court. Under O7 and O8, you can take the leave of the court to file it
later but you cant do that under O13. Further, the proviso to rule 1 says
that you need to file the original if copies have been filed with the plaint
or written statement.

- Is delay in producing originals fatal? Billa Jagan Mohan Reddy vs Billa

Sanjeeva Reddy (1994) 4 SCC 659- the requirement to explain the delay
under Rule 1 Order 13 is not as rigorous as that under section 5 of the
Limitation Act; in this case documents were allowed to be produced at the
stage of arguments but opportunity to rebut given to the other side. Is the
approach of the Supreme Court in the said case defensible?

- Is delay in producing originals fatal? – Case in handout – At the stage of

arguments (after trial), one of the parties wanted to produce documents,
the SC said that the documents were allowed to be produced, and the
other side was allowed to rebut it – SC said that the explanation/ standard
of delay under Order 13 was not as strict as that under S.5 of the Limitation
Act and non-production was not fatal. (Sir thinks this is not a good
precedent as Trial should be conducted as per the rules and such laxity
can compromise the process).

(h) What is the procedure for the marking or admission of documents? Order
13 Rules 3 to 7. What are the matters to be endorsed on every document
admitted in evidence? Rule 4.
(i) What is the effect of failure to endorse a document as required under Rule
4? SadikHussain Khan vs Hashim Ali Khan AIR 1916 PC 27-the
document will not be read as evidence.

- Tests to be considered when documents are produced: Whether it can be

admitted as evidence (Threshold test) and if it is admitted as evidence,
what is the evidentiary weight to be attached to the evidence?

- If it is admissible, it becomes evidence and is marked. The evidence then is

appreciated to determine its weight in the final outcome.

- Marking means that the judge endorses the document with his signature
as a means to ensure that the document is admitted into evidence.

- Plaintiff’s witness is called and shown documents, the witness must

identify it and the counsel offers for it to be admitted – the defence can
challenge it on any valid grounds under the IEA – the judge gives a ruling
on the admissibility on this evidence and if it is admitted, it is marked.

- What is the need to identify the document before it is admitted? Part of

the chain of causation – linking the witness with the event and the
documentary evidence.

- Rule 3: Rejection of irrelevant or inadmissible documents – wide ranging

powers to the court to reject documents (even documents admitted
previously may be rejected later as the Rule uses the phrase at any stage).

- Rule 5: Endorsements on copies of admitted entries in books, accounts

and records.

- What is the effect of the failure of a judge to endorse a document as

required? Privacy Council ruling states that the document cannot be
treated as evidence (case in handout) .

Hemendra Rasiklal Ghia v Subhodh Mody:

Objections against documents can be of three types- (i) insufficient stamping

(ii) inadmissibility and (iii) proof of the document. Merely because a
document is marked, objections as to admissibility not precluded even at
later stages. However, failure to object as to proof of a document amounts to
waiver of the necessity of formal proof of a document and cannot be raised
later. Objections as to insufficient stamping have to be decided then and
there before proceeding further. However, note Sait Tarajee Khimchand vs
Yelamarti Satyam alias Satteyya (1972) 4 SCC 562 – mere marking of a
document does not dispense with proof of the document.
- Full bench of Bombay HC on the question of whether the admissibility of
documents should be decided when the documents are sought to be
marked or whether it can be deferred until the final judgement has been
given by the court?

- Under Order 13 Rules, the court should give a ruling on the admissibility
as soon as is possible and should not defer it to the end so that in case it is
rejected, the party may then have some remedy or recourse to produce
admissible evidence. The bench also held that not only can you object to
the admissibility of documents at the stage of marking, but may also be
permissible to deny documents in your pleadings or your notices to
admit/deny documents.

- Objections can be of 3 types – 1. Objection as to proof of document

(Forged or improper documents); 2. Insufficient stamping (Court said that
this has to be decided then and there and cannot be deferred under any
circumstances as this would be a violation of stamp law which is a penal
offence); 3. Due to some other legal provisions. If there is any objection
relating to other laws to be considered, the bench said that merely
because the document has been marked as evidence, it doesn’t preclude a
ruling on its admissibility at a subsequent point of time. If there is no
objection as to the proof of the document, it is deemed to have been
waived and adequate proof of such document cannot be demanded at a
later stage. The court however, is not stopped from treating the same
document as ‘not proved’, but the opposing party cannot object.

- Under what circumstances might the court order the impounding of

documents? Order 13 Rule 8. Insufficient stamping could be a ground.

- When can a party seek return of documents produced by him in the suit?
Order 13 Rule 9.

- If a document is in the custody of another court, how to get the same?Apply

under Order 13 Rule 10.

- Provisions as to documents also apply to material objects. Order 13 Rule

11.

- When can an adverse inference be drawn from non-production of a

document? Hiralal vs Badkulal AIR 1953 SC 225- not necessary that a
direction to produce has been issued.

- Rule 8: Court may order any document to be impounded

- Rule 9: Return of admitted documents

SUMMONING OF WITNESSES TO THE TRIAL

- Manner of summoning defendants is used to summon witnesses as well –

Under S.30 CPC – Procedure in S.27-29

- What is the procedure for ensuring that witnesses to be called are present in
court on the date of trial? If the witness willingly would come and depose, it
would appear that nothing needs to be done except ensuring the presence of
the witness on the date of trial (Rule 1A Order XVI). However, if the witness
is recalcitrant, then you should include her name in the List of Witnesses
furnished to the court under Order 16 Rule 1 within 15 days from the date
issues are settled.

- The Plaintiff/Defendants have something to lose/gain, but witnesses are

just bystanders who are to bound to come give evidence about matters
within their knowledge – that’s why their penalty for not turning up after
a summons is a mere fine or an order to furnish security.

Order XVI – Summoning and Attendance of Witnesses

- What is the import of Rules 1 and 1A? The Code seems to contemplate 2
ways to bring a witness to court.

- Mange Ram vs Brij Mohan (1983) 4 SCC 36: rules 1 and 1A operate in
separate fields – only if court assistance is required, the name should be
included in the list; failure to include the name of a witness who has come to
court to depose without summons is not fatal.

- Mangeram v Brijmohan: if a witness is recalcitrant or reluctant to come to

court or difficult to find and who need to be summoned by the Court
officially – if a witness is readily coming to the court on your behalf, you
don’t need to include the name in the list under Rule 1 as no summons is
necessary.

Lalitha J. Rai vs Aithappa Rai (1995) 4 SCC 244: If the witness list isn’t
produced in 15 days, the Court condoned it as long as there was no
prejudice cause to the parties (in this case, the trial hadn’t commenced
yet) delayed production of list of witnesses condoned since trial was yet to
commence.

- Who pays for the witness’ summons and what’s the procedure? Order XVI,
Rules 2-4 – The Party calling the witness pays for their summons, their
travel and other expenses required for one day’s attendance. Experts also
get reasonable renumeration for coming and giving evidence in the
 expert capacity. Payment of expenses is a sine qua non for the summoning
of witnesses.

- Witness can be summoned to give evidence or produce document in his

custody. Rule 6 Order 16.

- Can a person present in court be required then and there to give evidence or
produce a document in his possession? Yes, Order 16 Rule 7.

- What is the procedure for serving a witness? Similar to the procedure for
serving a party. Order 16 Rules 7A to 9.

- What are the consequences if a witness fails to comply with a summons?

Section 30 read with Rules 10 to 13, Rule 15 to 19. Proclamation,
warrant for arrest, attachment of property, fine, etc. Note the difference in
the manner in which a witness is treated as compared to a party who fails to
attend. Whilst a party who fails to attend court is placed ex parteand no
penal consequences ensue, a witness is supposed to assist the court in the
interest of justice and has a duty to perform.

- What are the consequences of refusal of a party to give evidence when called
on by the court? Order 16 Rule 20.

- Can the court of its own accord summon as witnesses strangers to the suit?
Yes – Order 16 Rule 14.

- Rule 5: Time, Place and purpose of attendance to be specified in summons

- Rule 6: Summons to produce document

- Read 7A to 9 yourself – summons served to witnesses in the same way as

the defendant is served under Order 5.

- Rule 10: Procedure where witness fails to comply with summons – S.32,
r.w. Order 16, Rules 10-13 provide the court with a number of coercive
measures.

- Rule 15: Duty of persons to summon to give evidence or produce

document – duty to the court and to ‘justice’

- Rule 20: Consequence of refusal of party to give evidence when called on

by Court and Rule 21: Rules as to witnesses to apply to parties summoned.

Seshadri v Vasanth Pai 1969 SC:

- Appeal against the HC petition where S’ election from Madras was set
aside – Out of 5 candidates, 3 were eliminated – S won by around 250
votes – S’ party provided 63 cars for voters to the booths and back and this
constituted corrupt practices under the RPA, however there was no
evidence on the point of who had hired these cars and none of the parties
led evidence on this matter – the HC judge summoned 3 Court witnesses
and a report from the police on its own accord – the evidence showed
that S had hired the cars – HC reasoning: Acc. to 123(5), the plying of the
voters in cars, which contained the symbols and names of Seshadri, was
corrupt practice – however, the plaint didn’t mention who hired these
cars and was slightly vague.

- Ques before SC was whether in an adversarial system, the court could

interfere in such a manner?

- SC reasoning: The Madras HC had called 3 court witnesses on its own

under O16, rule 14 – S argued that the Court cannot summon witnesses as
this was an RPA suit and not an ordinary civil suit – the SC held that the
Madras HC did the right thing as the power to summon is available to civil
suits, but the RPA act uses CPC for procedure – any allegations of
malpractice must be adequately dealt with and must be uncovered and
the Court was right to do it in this case where no evidence was led by
either party on a crucial point of the case – the SC applied O16,R14 in
cases where it would serve the ends of justice.

Municipal Corporation of Ludhiana v Balinder Bachan Singh 2004 (5) SCC

182- SC at appellate stage exercising powers under Order 16 Rule 14.

- Facts: MC had notified a scheme for the development of certain lands –

the plaintiffs instituted a suit for permanent injunction against the MC,
claiming they were in possession of land that the MC was trying to illegally
take possession of – they contended that the said land did not form a part
of the scheme and they remained the owners. The question was whether
the said land was a part of the scheme or not. MC held that the land had
been developed into a park and the plaintiffs were not in possession of it.

- Trial court held that it was a park, HC reversed – went to SC

- SC said that the notification that these lands were a part of the scheme –
they suo motu asked the MC to submit the original reports and scheme
documents to determine whether the lands were a part of the scheme –
 such evidence was produced and on its basis, the SC held that the park
was a part of the scheme and the suit for permanent injunction must fail.

- The SC can appreciate evidence if there is a manifest perversity in the

evidence led in the lower courts.

- Can the party opponent be summoned as a witness? Yes- Order 16 Rule 14

read with Rule 21. ‘so far as they are applicable’ – so usually coercive
machinery not applicable to parties. Because it is an adversarial process and
you’ll end up suffering the consequences.

- What is the procedure for the attendance of witnesses confined in prisons?

Order16A.

PROCEDURE RELATING TO ORDER OF EXAMINATION OF WITNESSES AND

DOCUMENTS

Sequence of events in a trial: Order 18.

(a) What is the relationship between the Burden of Proof under sections
101 to 106 of the Indian Evidence Act, 1872, and the right to begin
under Order XVIII of the Code?What are the two senses in which the
phrase “burden of proof” is used according to Wigmore?

Who has the right to begin under Order 18 Rule 1 CPC? Where there are
multiple issues, some of which are to be proved by the Plaintiff and some by
the Defendant, what is the sequence to be followed in the trial for the leading
of evidence? Order 18 Rules 1 to 3.

- What is the relationship between burden of proof and right to begin?

Under the law of evidence, in S.101, the person who asserts the state of
affairs must prove it. Burden rests on a person, who would lose the case if
they fail to lead evidence. The burden of proof mostly lies on the plaintiff
to win the case, since they’re the ones who bring the case to court.
Evidence shows the court whose case is more plausible – plaintiff or
defendant – this is based on the preponderance of probabilities in civil
cases.

- The Right to begin is about who should lead evidence first between the
two parties. The literature uses right to begin interchangeably with the
burden of proof, but they are different concepts.

- Order 18, Rule 1: Right to begin – Plaintiff has the right to begin, unless
certain conditions are fulfilled – unless the defendant admits the facts
alleged by the plaintiff, and contents either in point of law or additional
 facts alleged by the defendant, the plaintiff is not entitled to any part of
the relief which he seeks, in which case the defendant has the right to
begin. If the burden of proof is on you, you generally have the right to
begin.

- Rule 2: Statement and production of evidence.

- Rule 3: Evidence where several issues – where the burden of proving

some lies on the other party – either the starting party gives evidence all
at once, or reserves it’s right on producing evidence on the other issues
after the other party has produced all its evidence.

Manjit Singh Lassi v Col. Gurcharan Singh 2004 SCC Online P&H 994
(SJ)- where Defendant admits the facts stated in the Plaint but sets up
additional facts the Defendant would have the right to start.
- Facts: The undisputed facts of the case are that the petitioner (defendant
No. 1) and respondent No. 1 (plaintiff) are the sons of Inderjit Singh Lassi
deceased. Inderjit Singh was the absolute owner of the suit property. On
the death of his father Inderjit Singh Lassi, respondent No. 1 Col.
Gurcharan Singh filed a suit for possession through partition on the basis
of natural succession. The suit was contested by Manjit Singh Lassi
petitioner and he filed written statement, wherein he admitted the
relationship with the plaintiff-respondent No. 1 as well as the fact that
Inderjit Singh Lassi, their father, was the absolute owner of the suit
property. However, in the written statement, an averment was made by
the petitioner-defendant that his father Inderjit Singh Lassi had executed
a registered will in his favour, whereby he bequeathed his entire property
in his favour. On the pleadings of the parties, the Civil Judge (Junior
Division), Nabha, framed a number of issues on 16.8.2000 and the onus to
prove the registered Will dated 4.2.1974 was put on defendant No. 1
(present petitioner) and fixed the case for evidence of the defendant-
petitioner on 9.10,2000. Thereafter, petitioner continued filing
applications one after the other. Ultimately, the petitioner moved the
application under Order 18, Rule 1, C.P.C. on 3.1.2003, i.e., after 2 years and
5 months of the framing of the issues by the trial Court and he was
ordered to lead the evidence in the first instance to prove the Will set up
by him. The said application has been dismissed by the trial Court vide
order dated 16.9.2003 and the case has been fixed for the evidence of the
defendant on 6.11,2003. The order dated 16.9.2003 has been impugned in
the present revision petition.
 - P and H HC holding: The defendant has admitted his relationship with the
plaintiff. However a new plea with regard to the execution of the Will dated
4.2.1974 executed by their father in favour of defendant No. 1 has been taken by
him for the first time in the written statement. He has pleaded that on account of
the Will in his favour, he is entitled to succeed to all the property left behind S.
Inderjit Singh Lassi deceased. In case the defendant does not lead any evidence
or fails to prove the Will set up by him, then the plaintiff will automatically
become entitled to the claim of separate possession on the strength of his
relationship with deceased by S. Inderjit Singh Lassi. The trial Court has rightly
ordered defendant No. 1 to lead his evidence first and prove the Will set up by
him. The major plea of relationship of the parties with S. Inderjit Singh Lassi
deceased has been admitted by the petitioner-defendant No. 1. Thus, it is for the
defendant first to prove the Will by leading evidence in his command.

- As per the provisions of XVIII, Rule 1, Code of Civil Procedure, also the plaintiff
has the right to begin only in case the defendant does not admit ALL the facts
alleged by the plaintiff in the suit. In the present case, the petitioner has
admitted the fact that S. Inderjit Singh Lassi deceased, who was the absolute
owner of the suit property, was the father of the plaintiff as well as his. In case S.
Inderjit Singh Lassi had not executed the Will in favour of the petitioner, then the
respondent No. 1 as well as the petitioner would automatically succeed to the
property left behind by him. Now as the petitioner has set up the Will in his
favour, thus, the right to begin shifts to him instead of the plaintiff.

- B.H. Ravindra Pai vs Smt K. Sulochana Bhandarkar 1981 ILR (KAR) 708
(SJ)- Plaintiff has the right to begin evidence but can reserve the right to lead
rebuttal evidence on issues that the Defendant has to prove.

What is the procedure for addressing oral arguments and submitting written
arguments?

- Rule 2 – Statement and production of evidence.

Should the party appear before the witnesses are called on its behalf?

- Order XVIII, Rule 3A: Party to appear before other witnesses.

- Rule 4: Recording of evidence – if the document is admitted, it is marked

by the judge. Chief exam will be on affidavit.

- Proviso – for the documents with the affidavit, the proof and admissibility
of such documents are subject to the order of the court.
- What was the procedure for recording the chief examination of a
witness before the 1999/2002 amendments? How would a document be
marked in court? What is the procedure and the practice now after the
amendments? Order 18 Rules 4 and 19. What is the procedure regarding
the proof and admissibility of documents filed along with the affidavit? Do
you think that the 1999/2002 amendments have helped or not?

- In the newly amended rules, Chief examination of witnesses is now done

by affidavit and they don’t have to come to for the chief examination–
Affidavits are not document and they are just filed, not marked - how is
the document marked then, if the witness doesn’t come to the box? So
now in Karnataka, the Chief is done by affidavit and the witness comes to
get the document marked and then gets cross-examined. How does the
other side object to the procedure of recording such statement?
Maharashtra case says you can object via applications filed and maybe
argue at the stage of weight about how it is irrelevant, hearsay etc and
should not be considered.

- Affidavit evidence is inferior evidence – IEA does not apply to affidavits at

all. Affidavits are considered important because of expediency measures,
but what sort of objections can even be raised?

- 4(2): Evidence of the witness in attendance, whose affidavit has been

furnished to the court, shall be taken by the Court or by the Commission
appointed by it – this is rather useless and never actually used.

- 4(3): Evidence must be recorded as soon as the evidence is given by the

witness.

- Proviso to 4(7) – if there is any objection during the recording of evidence

before the Commissioner shall be recorded and decided by the Court at
the stage of arguments.

- What is the manner of taking down evidence in court in appealable and

unappealable cases? Order 18 Rules 5 to 9, 13.

- When might the court take down not only the answer but even the
question asked?Order 18 Rule 10.

- What is the procedure to be followed whenever a question put to a

witness is objected to by the opposite side?Order 18 Rule 11.

- If one judge has recorded evidence but gets transferred before the
conclusion of the trial, can the new judge proceed from stage where his
predecessor stopped?Order 18 Rule 15.
 - When can a witness be examined immediately in disruption of the
normal sequence of trial ?Order 18 Rule 16.

- Cross examination and re-examination are done in accordance with the

old procedure only.

- Rule 10: Any particular question and answer may be taken down – the
questions are usually not taken down, but certain questions may be
recorded upon the request by the counsel.

- Rule 12: Remarks on demeanour of witnesses – material remarks on the

witnesses while under circumstances.

- Rule 13: Memorandum of evidence in unappealable cases.

- Rule 15: Power to deal with evidence taken before another judge.

When can a witness be recalled and examined once again?Order 18 Rule

17.Is this a power of the court or is it a right of the party? Altaf Hussain vs
Nasreen Zahra AIR 1978 All 515 – power not to be used for filling up
lacuna in the evidence – only in exceptional cases, for removing ambiguities
and clarifying statements the court may use the power.

Steelage Industries v Shrimati Chander Bagai AIR 1992 Bom 406.

- The chief exam was conducted by a junior advocate, cross was also
conducted by the opposing counsel. The next day, the senior advocate
came and said that he couldn’t attend the chief because he met with an
accident and couldn’t communicate the same to the junior, which is why
the junior did the chief – several aspects were not covered by the junior
and given the circumstances, the senior said that under O13, R17, the
witness should be recalled and examined. The opposing Counsel
objected. The trial court allowed the application. The Bombay HC upheld
the order of the trial court, but held that under O13, R17 only the court
could recall and examine the witness and not the counsels involved in the
case – since it is a power of the court.

- Re-examination is a very controlled process and not many new matters

can be introduced – can be permitted to cross examination though it is
not very clear this will happen.

- Can the court inspect any property or thing and use the memorandum
of facts recorded as evidence?Order 18 Rule 18.
- Rule 18: Power of the Court to inspect.
Ugam Singh v Kesari Mal:

- Plaintiffs filed a suit seeking declaration that they were carrying out some
religious ceremonies in line with the tenets of the Digambara Jain sect.
The defendants contended that they were conducting the religious
ceremonies in line with the Shwetabara Jain tenets. The question was
whether the idol was Digambara or Shwetabara – look at whether it had
eyes, loin cloth etc.

- The judge went to the idol and did a spot inspection – recorded what he
saw and brought it back to the court hall to make a decision – the matter
went to the SC, saying that the Trial judge had based his decision solely on
his out-of-court experience and he was not cross-examined and such
evidence should not be allowed in the trial. The SC held that under O18,
R18, the power is to go to the site to get a better understanding of the case
presented in court and not to record fresh evidence to decide the matter.
The SC, however, did not overturn the judgement of the trial court since it
was based on material other than the site inspection report.

Kesowji Issur v Great Indian Peninsula Railway:

Whether the result of a spot inspection can be taken on record as evidence and
used to decide the court?

- Facts: Appellant was a passenger in the train – upon reaching his station,
the train overshot the platform and while descending, the appellant fell
down and sustained injuries because of which he was disabled from
business and claimed negligence on part of the railway to not provide
adequate lighting and not informing passengers with the information that
the train had overshot the platform. The trial court held that 24K would be
paid to the appellant, largely due to the sustained disability to work due to
injuries.

- The question was whether there was sufficient light to allow the
passenger to see what had happened. The Railway company appealed.

- Appellate Court was approached after failure of review by the lower court
– conducted a spot inspection to see how the lighting was at the platform
– found that the light from the train was sufficient to see and it
overturned the decision of the trial court – held no negligence on part of
the railway.
- The matter reached the Privy Council – they found it unusual that the
court had conducted a spot inspection and meddled in the case by
overturning the case – the inspection was done on another night (doesn’t
resolve the question of whether there was enough light on the night of
the accident and was thus, irrelevant) and that the appellate court had
done this when the trial court had already given a reasoned judgement.
The Privy Council restored the trial court’s judgement and disregarded
the spot inspection of the Appellate Court.

- The judge who inspects cannot be cross-examined and that is against the
adversarial system. A judge cannot import his personal knowledge of the
case into the decision making.

- Hurparshad vs Sheo Dayal 3 IA 259: The judge cannot import his own
knowledge of facts without being a witness – the judge in this case knew
the family involved in the dispute and stated that the family couldn’t have
been involved in the suit.

Buckingham v Daily News Ltd:

- Facts: Appellant was employed by the respondent as an attendant for the

rotary machine to fold newspapers and to clean the blades in that – one
day, he suffered cuts from the blade and had to get 11 stitches – Common
law imposes a duty on employers to provide safe equipment – he sued the
company.

- With the consent of both companies, the judge visited the machine and
the plaintiff showed the judge what had happened – the judge dismissed
the case, stating no negligence.

- The plaintiff appealed and stated that English law did not give so much
importance to spot inspection – the appellate court said that if the judge
can appreciate real evidence inside court, then he can go and see it
outside court as well – the decision in Kesowji was distinguished to say
that one can use a spot inspection, but in Kesowji the inspection was
irrelevant as it was conducted on another night.

- There can be two types of spot inspections – one where the thing to be
examined does not change at all or one where the thing to be examined is
dependent on the day on which the accident happened – this case allows
the former, while Kesowji barred the latter.
 AFFIDAVITS

(a) What is an affidavit? A sworn statement in writing made especially

under oath; a declaration of facts made in writing and sworn before a
person having authority to administer oath. It should be drawn up in the
first person.

(b) When can affidavits be used as evidence? Section 1 of the Indian

Evidence Act, 1872 makes the Act inapplicable to affidavits. However,
Section 30 read with Order XIX of the code provides for evidence to be
given by affidavits if (a) the court has ordered any fact to be proved by
affidavit (Order 19 Rule 1) or (b) upon any application filed (Order 19
Rule 2).

SmtSudha Devi vs M. P. Narayanan (1988) 3 SCC 366: affidavits not

included in the definition of evidence in the Indian Evidence Act, 1872,
and can only be used as evidence if the court passes an order under
Order 19 Rules 1 and 2. Yohannan Samuel vs Mathew John (1991) 1
KLJ 605.

(c) What are the matters to which an affidavit should be confined?

Order 19 Rule 3.
3. Matters to which affidavits shall be
confined.
(1) Affidavits shall be confined to such facts
as the deponent is able of his own
knowledge to prove, except on interlocutory
applications, on which statements of his
belief may be admitted, provided that the
grounds thereof are stated.

Padmabati Dasi vs Rasik Lal Dhar ILR 1909 Vol 37 pg 259: the
provisions of Order 19 Rule 3 must be strictly observed.

State of Bombay vsPurushottam Jog Naik (CB) AIR 1952 SC 317:

Order 19 rule 3 would need to be complied even in case of affidavits filed
in writ proceedings.

(d) What is the effect of swearing to a false affidavit? Offence of perjury

under section 191 IPC.

What is an affidavit? A sworn statement in writing especially under oath – a

declaration of facts in first person, ordinary language.

S.139 CPC: Who can administer the oath?

139. Oath on affidavit by whom to be administered.— In the case of any affidavit

under this Code—
(a) any Court or Magistrate, or

1[(aa) any notary appointed under the Notaries Act, 1952 (53 of 1952); or]

(b) any officer or other person whom a High Court may appoint in this behalf, or

(c) any officer appointed by any other Court which the State Government has
generally or specially empowered in this behalf, may administer the oath to the
deponent.

Do affidavits come under the purview of the IEA? No, as per S.1 IEA

S.30 and Order 19 of the CPC deal with affidavits

Yohaanan Samuel v Mathew John:

(e) There were 2 suits about declaration of title to land – PW3 and 5 were
plaintiff’s two witnesses – before the institution of the suit, they had
sworn to certain affidavits – these affidavits were marked as exhibits so
that the plaintiff could rely on them.

(f) The trial court relied on these affidavits and rendered a judgement –
the matter went up to SC – the SC noted that the IEA is inapplicable to
affidavits and affidavits cannot be treated as evidence unless the Court
makes an order of a fact proved on affidavit under Order 19 – treating
these affidavits as evidence was wrong on part of the trial court and the
appellate court was right to change this.

Can you use affidavits in writ jurisdiction? Depends on the HC rules, but are
often relied upon in writ cases.

Additional safeguards are incorporated in the law wrt affidavits, as safeguards of

cross-examination and oath are not there.

(g) Order 19, Rule 3: Matters to which affidavits shall be confined – such
facts that the deponent is able of his own knowledge to prove – this
excludes statements made on belief, opinion and information because
these are nearly impossible to verify without the safeguards of an oral
examination – On interlocutory applications, statements of belief may
be admitted, provided the grounds thereof are stated.

Padmavati Dhasi – The court held that O19, R3 must be strictly adhered to – the
statements must be clearly delineated on the basis of knowledge and belief. If
the grounds of belief are statement, the court is in a better position to adjudge
whether such beliefs can be relied upon.

State of Bombay v Jyotimati: In writ petitions relating to the detention under the
Preventive Detention Act, the Secretary of the Government had sworn on the
affidavit – all of the statements were true to the best of his information and
belief – they endorsed Padmavati Daasi and rejected the affidavit as the facts
were not based on their knowledge the format under O19, R3 must be followed
strictly whenever you swear to an affidavit.

What is the effect of swearing to a false affidavit? – Perjury under the 191 IPC.

Affidavits can only be used when there is a statutory exception providing for
their use – but it should comply with Rule 3.

Jones v National Coal Board [UK]:

(h) Deceased was employed in a coal mine and died due to a fall of the roof
in the mine – widow claimed damages stating that the employers
ought to have maintained the roof – the suit was dismissed and the
widow appealed – one of the grounds of appeal was that the judge had
excessively intervened in the proceedings and it became impossible
for her counsel to examine witnesses – the judge almost did the
examination himself – the judge kept intervening and stopping the
counsel from conducting the examination thoroughly – the Court of
Appeal stated that the behaviour of the judge was excessive of what
the court envisages such behaviour to be – judges have a more passive
role in the UK system.

COMMISSIONS:
(a) What are the different commissions that can be issued and which of them
relate to the fact-finding process? Section 75.

(b) Why does it become necessary to issue commissions in the fact-finding

process? Can they be issued on application or suo motu?

(c) What are the pre-requisites for the issue of commissions to examine
witnesses? Have these been watered down by the 1999/2002 amendments?
Now by virtue of the insertion of Rule 4A the requirements in Rules 1, 4
and 8 appear to have been rendered redundant.

(d) What is the crucial difference between a judge making a spot inspection and
a commissioner making the very same spot inspection that renders the
report of the commissioner admissible? The report of the Commissioner
 and the evidence taken by him shall be evidence in the suit and shall
form a part of the record. Crucially, the court or any of the parties,
with the permission of the court, may examine the commissioner.
(Order26 Rule 10(2)).

- S. 75: Power of the Court to issue Commissions – does not mention

whether it is suo motu or on application of the parties.

- S.76: Commission to another court.

- S.78: Commissions issued by foreign courts

Order 26: Commissions

Who pays for the expenses of a commission?

- Rule 15: Expenses of commission to be paid into court by the party making
an application for the commissioner

Different categories of Commissions:

- For examining witnesses – Rule 2

- For local investigations – Rule 9

- For sale of movable property – Rule 10

- To examine or adjust accounts – Rule 11

- To make partitions – Rule 14

- AmarendraPratap Singh vsTejBahadurPrajapati AIR 2004 SC 3782:

matter remanded to the trial court with a direction that the trial court shall
appoint a commissioner to determine the extent of encroachment.
-
- Praga Tools Corporation Limited vsMahaboobunnissa Begum 2001(6)
SCC 238: remand by the Supreme Court with a direction to get the lands
surveyed through a surveyor and determine in which village the lands were
situated.
-
- KumariVermavs State of Kerala AIR 2006 SC 3048: High Court directed
Forest Tribunal to appoint a Commissioner to determine the extent of
cardamom plantation. Approved by the Supreme Court.
-
- ShardavsDharmpal AIR 2003 SC3450: In a divorce case, petitioner sought
direction for medical examination of wife on the ground of lunacy – held that
such a direction could be issued to appoint a medical expert. Failure to
comply would justify adverse inference being drawn.
-
Pragaar tools Corporation ltd v Mehboobnissa Begum:
 - Some lands were allotted to Pragaar tools and they were given possession
by the government – Begum claimed that the lands belonged to her and
hadn’t been claimed by the government. The main question was whether
the lands were in Kukadpalli or Musapet – if the former, the govt didn’t
own them. The SC suo motu asked the trial court to appoint the
commission to determine this question and after the report was sent back
to the SC, the court made its decision.

Sharda v Dharampal:

- The petitioner, in a divorce case, made an application to the court to make

an examination of his wife to determine if she was of unsound mind – the
matter came up before the SC as to whether the matrimonial court could
make such an order – the court held that they had the power and could
use it suo motu also as per S.75 and order 26. If one of the parties acts
against the working of the commission, then an adverse inference may be
drawn from such behaviour.

- Commissioners are like expert witnesses. In such cases, the Privy Council
has held that the reports of Commissioners have high regard in a trial.

- How much weight does the report of the Commissioner carry? Chandan Mull
Indra Kumar vsChimanLalGirdhar Das Parekh AIR 1940 PC 3: should not
easily overrule the report of the Commissioner whose integrity and
carefulness are unquestioned.

- The rationale for appointment of Commissioners appears to be that it

enables the court to get to the best evidence available.

- The English conservative approach: Abbey National Mortgages PLC Vs Key

Surveyors Nationwide Limited 1996 (3) AER 184: the appointment of a
commissioner even on the application of a party deprecated.

Abbey National Mortgagers v Key Surveyors Nationawide Limited:

- The SC rules – O40, R1 – empowered the court to appoint independent

experts suo motu to help determine matters [usually parties get their own
witnesses, as in a true adversarial system]. The plaintiffs were lenders and
they had relied on valuation surveyors to determine whether the property
given by borrowers was adequate or not. The plaintiffs had a claim that
the surveryers had overvalued the houses mortgaged and that had
resulted in losses. The judge appointed a valuation expert. An appeal was
filed against the said order. Such an order was considered exceptional as
the courts usually do not get so involved in matters. Parties usually
 appoint their own experts, who can often counter each other and create
confusion.

How much weight of the report of the Commissioner carry? Chanda Mull Indra
Kumar v Chiman Lal Giridhar Das Parekh – has the most weight because they are
experts who have witnessed the evidence and not much can overrule the report
of the Commissioner.

The Commissioner can be cross-examined and that is why their evidence is more
acceptable than that of a judge conducting a spot visit.

ADJOURNMENT: ORDER 17

- Read all provisions.

Summary of Fact-finding techniques that parties can use to

detect, collect and place on record evidence in the case

DOCUMENTS

● Document in possession of party: produce original with copy and include

in the list of documents under Order 7 Rule 14or Order 8 Rule 1A+ ensure
marked in evidence through one of the witnesses called. Last chance to
produce originals if not produced with pleadings: at or before settlement of
issues (Order 13 Rule 1).

● Document which is a copy sought to be produced where original with

opponent: Mention it in list of documents(Order 7 Rule 14 or Order 8 Rule
1A) + Issue Notice to Produce under sections 65/66 Indian Evidence Act,
1872, read with Order 12 Rule 8 (Form 12)CPC + get xerox marked
through a witness.

● Document in possession of opponent to be produced by order of

court:Make an application for an order under Order 11 Rule 14 or under
Order 16 Rule 14 r/w Rule 21.

● Document in the custody of a third party stranger: make an application

under Order 16 Rule 14.
● Document in the custody of another court: Application under Order 13
Rule 10.

● Document in the custody of another person present in court: Seek order

under Order 16 Rule 7.

● How to know which documents are/were in the custody of the

opponent? Make an application for discovery on affidavit under Order 11
Rule 12 for discovery of documents on oath.

● How to know whether opponent has a particular document in question?

Make application under Order 11 Rule 19 (3).

● How to get inspection of documents referred to in pleadings or

affidavits? Give notice under Order 11 Rule 15.

● How to get admitted signature of opponent? Seek order under Section

73 Indian Evidence Act, 1872.

● Residuary: Use Section 165.

ORAL EVIDENCE

● Evidence of own willing party/witness: Make sure present in court on the

date of his/her evidence (Order 16 Rule 1A).

● Evidence of own recalcitrant witnesses: Name in list of witnesses under

Order 16 Rule 1 and get summonses issued and call at trial.

● Evidence of party opponent: Make application under Order 16 Rule 14

read with Rule 21.
● Evidence of strangers: Make application under Order 16 Rule 14 or get
summonses issued under Order 16 Rule 1.

● How to get to know the oral evidence of opponent before the trial?
Make an application for discovery on interrogatories under Order 11 Rule 1
and use them during the trial under Rule 22.

● How to get a witness recalled? Make an application under Order 18 Rule

17 and try.

● How to get the evidence of a witness who is sick or unable to attend

court for any reason? Make an application for appointment of a
commissioner under Section 75 read with Order 26.

● Residuary:Section 165.

OTHER

● How to get the judge to conduct a spot inspection? Apply under Order
18 Rule 18.

● How to get a local investigation done, or a scientific investigation or

get accounts examined? Make an application under Section 75 read with
Order 26.

● Can the witnesses’ demeanor be evidence? Yes, ask that it be recorded

under Order 18 Rule 12.

● How to make an affidavit part of the evidence ? Make an application for

an order under section 30.

Can the judge enter the fray? Section 165 Indian Evidence Act,
1872, read with other provisions in the Evidence Act and the
Code
 ● Section 165 read with Order 18 Rule 18, Section 75, Order 16 Rule 14,
Order 11, Rule 14, Section 30, Section 73 (Evidence Act) and other
provisions appear to confer great powers on the trial judge to suomotu
procure evidence and record the same. This raises the question of how
inquisitorial or adversarial our system really is. When contrasted with the
English legal system, it is seen that in England, the judges do not even have
the power to do many of the things that Indian judges are empowered to do
under Indian statute law.

● Power to examine a person in the witness box: Pratap Singh vsRajendra

Singh AIR 1975 SC 1045: in an election petition matter remanded with a
direction that the trial judge re-call the witnesses and examine them
suomotu under section 165.

Approach of the English courts: Jones vs National Coal Board 1957 (2)
AER 155 (COA)- the power is only for the purposes of clarifying – not for
collecting evidence.

● Power to appoint commissioners: English approach: Abbey National

Mortgages PLC vs Key Surveyors Nationwide Limited 1996(3) AER 184-
appointment of an expert even on the application of the party deprecated.

● Power to summon witnesses/documents suomotu: English approach: Re

Enoch and Zaraetzky, Bock and Co’s Arbitration 1910 (1) KB 327 – judge
cannot call a witness of his own accord against the will of the parties
because the civil rights of a man cannot be decided by the evidence of
persons whose personal credibility and accuracy of statements cannot be
tested as of right by cross-examination.

● Power to require specimen handwriting: recognized in English law also-

Cobbett vs Kilminister.

● Power to conduct a spot-inspection: English law: Buckingham vs Daily

News Ltd 1956 (2) QB 534- judge is entitled to treat the results of an
inspection as evidence.

Hence, only insofar as spot inspections are concerned, the English system is
more inquisitorial. In all other areas, powers are greatly restricted.

JUDGEMENT AND DECREE

- S.33: Judgement and decree.

- What is the difference between a judgment, a decree and an order?

Definitions in Section 2(2), 2(9) and 2(14).
 - Are judgement and decree defined in the Code? S.2(9) - judgement is the
statement given by the judge of the grounds of a decree or order [Orders
are passed in interlocutory matters] – the reasoning and rationale for the
decree or order.

- S.2(2): Decree – formal expression of an adjudication that conclusively

determines the rights of the parties with regard to all or any of the matters
in controversy in the suit and may be either preliminary or final.

- Preliminary decree – judge doesn’t go into too many details, decides the
case on facts – another application for the final decree must be submitted
in the same suit – the preliminary decree is appealable and it cannot be
executed because it is inchoate and not detailed enough for it to be
binding.

- The Limitation Act applies to preliminary decrees in terms of when they

can be appealed or not.

- How to distinguish between order and preliminary decree? PD finally

determines the rights of the parties in a fairly conclusive manner on some
issues, Order is of an interlocutory nature.

- If the appeal for the preliminary decree is admitted, then the final decree
also becomes stayed because the preliminary decree is the foundation of
the final decree.

● What are the requirements of a valid judgment?

● The judgment shall be pronounced in open court (Order 20 Rule 1);

● Within 30 or 60 days (in exceptional cases) from the date hearing was
concluded (Order 20 Rule 1);
● It shall be dated and signed by the judge in open court at the time of
pronouncement (Order 20 Rule 3);
● It should contain a concise statement of the case, the points for
determination, the decision thereon and the reasons for such
decision. (Order 20 Rule 4).
● It shall state its finding on each issue (Order 20 Rule 5).

Order 20:

- Rule 1: Judgement when pronounced – should be announced in open

court and not in Chambers
- Rule 2: Power to pronounce judgement written by judge’s predecessor –
should have been written

- Rule 4(2) – Judgements of other courts

- A decree is always supported by a judgement, which contains the

reasoning of the court to arrive at the ultimate outcome.

Certain conditions or certain types of decrees:

- Order 20, Rule 12A: Decree for specific performance of contract for the
sale or lease of immovable property – the decree must specify the period
in which the payment shall be made.

- O20, Rule 13: Administration Suit – Court must order a preliminary decree
in these cases.

- Rule 14: Decree in pre-emption suit

- Rule 15: Decree in suit for dissolution of partnership – Court may pass a
preliminary decree [Contrast with administration suit].

- Rule 16: Decree in suit for account between Principal and agent – Shall
pass preliminary decree

- Rule 17: Special Directions as to accounts

● If the formalities of a judgment are not complied with, is the judgment

vitiated?

● Surendra Singh vs State of UP AIR 1954 SC 194but note Order 20

Rule 2.

● Smt. Swaran Lata Ghosh vs HK Banerjee 1969(1) SCC 709-

recording of reasons essential. Judge must record the ultimate mental
process leading from the dispute to its resolution.

● Are statements recorded by the court as to what transpired in court

conclusive? State of Maharashtra vs Ramdas Shrinivas Nayak (1982) 2
SCC 463.
Yes, statements recorded by the court as to what has transpired in court.
Apply for review to change the record. But then if it is irrefutable before
the appellate court but not before the same judge itself.

REVIEW TO SAME JUDGE, APPEAL TO NEXT COURT.

 REVIEW MEANS DISPUTING RECORD, APPEAL WITH IMPLICIT
ACCEPTANCE OF RECORD, BUT CAN CONTEST AN IRREGULARITY.

There could be some irregularity which does not render judgement void,
but gives rise to an irregularity (giving judgement after 90 days). So you
can appeal and say since judge has delayed, please don’t award interest
at this percentage etc. but judgement is not vitiated. It can be executed.

But if judge has rendered a judgement which he has not signed or

pronounced at all, then it is void ab initio. So cant be executed.

● Can a judgment be corrected once it is signed? Order 20 Rule 3.

The judgment shall be dated and signed by the Judge in open Court at
the time of pronouncing it and, when once signed, shall not afterwards be
altered or added, to save as provided by section 152 or on review s 114.
You can seek a review to correct the record.

● What should be contained in a decree? Order 20 Rule 6.

Judge will record everything that happens in the case right from pleading
to final arguments. If he makes a mistake, then you can take it up in the
appellate court.
But you can’t directly say judge recorded it wrongly or didn’t record it. Don’t
make an allegation against the judge itself unless its easily discernable from
the record itself. Don’t dispute the recorded statements itself.
State of Maharashtra vs Ramdas ShrinivasNayak (1982) 2 SCC 463. SC
said record made by judge as to what transpired in court is irrefutable.

● Who draws up the decree?

Drawn by the registry of the court. Judge will give reasoning, finding on
each issue and write ‘I therefore hold that all parties are entitled to xyz.
Prelim decree to be passed accordingly’. Then decree bench of the registry
will prepare the decree. They have to figure out what the operative part of
the judgement is.

● Can an appeal be filed against the decree without a copy of the same if
decree is not yet drawn? Order 20 Rule 6A.

● If the previous judge has vacated office before signing the decree can his
successor sign it? Order 20 Rule 8.

● What are the requirements of a decree for recovery of immovable property?

Order 20 Rule 9.

● What are the requirements of a decree for delivery of movable property?

Order 20 Rule 10.
 ● When can the defendant seek payment of the decretal sum by installments
or seek postponement? Order 20 Rule 11.

● Can the court decree future mesne profits even if not prayed for? Order 20
Rule 12.Gopalakrishna Pillai vs Menakshi Ayal AIR 1967 SC 155.
Whenever landlord wants to sue for possession, he will ask for recovery.
Then after lease ends, lessee become unauthorized occupant on property.
Then you cant seek rent after period ends, because he is not tenant. Now
this unauthorized fellow can pay you for staying on property – that is known
as mesne profits, not rent. You can see arrears of rent, if rent is also
remaining. Provisions empowers landlords. But time limit. Enquiry can be
ordered. Mesne profits given as a routine thing.
Suit for recovery of possession, court can grant possession, mesne property and
arrears of rent even without asking.

● Why are mesne profits limited to 3 years under Order 20 Rule 12? Chittoori
Subbanna vs Kudappa Subbanna AIR 1965 SC 1325. But mesne profits
limited to three years to discourage those who delay execution of the decree.

● What are the requirements of a decree for specific performance of contract

for the sale or lease of immovable property? Order 20 Rule 12A.

● What are the requirements of a decree in certain other types of suits?

Administration suits - Order 20 Rule 13. Pre-emption suits- Order 20 Rule
14. Suits for dissolution of partnership- Order 20 Rule 15. Suits for
account between principal and agent – Order 20 Rule 16. Suit for partition
of property or separate possession or share therein – Order 20 Rule 18.
Decree where set-off or counter-claim allowed- Order 20 Rule 19.

● General principles with regard to preliminary and final decrees:

● A preliminary decree is not executable unless a final decree is applied

for and passed. Sankar Balwant Lokhande vs Chandrakant Balwant
Lokhande AIR 1995 SC 1211.
● If appeal against preliminary decree succeeds, the final decree
automatically falls to the ground.
● Residuary power to pass preliminary decree – Order 20 Rule 16.

Certain conditions or certain types of decrees:

- Order 20, Rule 12A: Decree for specific performance of contract for the sale
or lease of immoveable property – the decree must specify the period in which the
payment shall be made.
- O20, Rule 13: Administration Suit – Court must order a preliminary decree
in these cases.
- Rule 14: Decree in pre-emption suit
- Rule 15: Decree in suit for dissolution of partnership – Court may pass a
preliminary decree [Contrast with administration suit].
- Rule 16: Decree in suit for account between Principal and agent – Shall pass
preliminary decree
- Rule 17: Special Directions as to accounts

INTEREST:
- S. 34: Interest – must be a decree claiming money – Date of suit to date of
decree, there can be reasonable interest - date of the decree to date of
payment, the rate should be reasonable and not exceed 6%. If it is a
commercial transaction, the rate may be more than 6% p.a., but not
exceed the contractual rate of interest or where there is no contractual
rate of interest. Explanation II defines a commercial transaction for the
section.

(a) What are the 3 stages when interest can be allowed and what are the
parameters for each type?

● Section 34.

● Union of India vs Watkins Mayor and Co AIR 1966 SC 275.

● Mahesh Chandra Bansal vs Krishna Swaroop Singhal 1997 (10)

SCC 681.

(b) What are the salient features of the Interest Act, 1978?
Rate not exceeding current rate of interest
If you're not able to locate interest statutorily:
Is there a debt and is it evidenced by a written instrument? Then also youre
entitled to interest
Even if no written instrument, written notice + debt payable from the date of the
issuance of the written notice

- Court has the discretion to award interest, even when not prayed for in
the plaint.

Union of India v Watkins Mayor:

- Interest Act 1978 – Section 3: Power of the Court to allow interest - (1) In
any proceedings for the recovery of any debt or damages or in any
proceedings in which a claim for interest in respect of any debt or
damages already paid is made, the court may, if it thinks fit, allow interest
to the person entitled to the debt or damages or to the person making
such claim, as the case may be, at a rate not exceeding the current rate of
 interest, for the whole or part of the following period, that is to say,— (a)
if the proceedings relate to a debt payable by virtue of a written
instrument at a certain time, then, from the date when the debt is payable
to the date of institution of the proceedings; (b) if the proceedings do not
relate to any such debt, then, from the date mentioned in this regard in a
written notice given by the person entitled or the person making the
claim to the person liable that interest will be claimed, to the date of
institution of the proceedings: Provided that where the amount of the
debt or damages has been repaid before the institution of the
proceedings, interest shall not be allowed under this section for the
period after such repayment. (2) Where, in any such proceedings as are
mentioned in sub-section (1),— (a) judgment, order or award is given for a
sum which, apart from interest on damages, exceeds four thousand
rupees, and (b) the sum represents or includes damages in respect of
personal injuries to the plaintiff or any other person, or in respect of a
person’s death, then, the power conferred by that sub-section shall be
exercised so as to include in that sum interest on those damages or on
such part of them as the court considers appropriate for the whole or part
of the period from the date mentioned in the notice to the date of
institution of the proceedings, unless the court is satisfied that there are
special reasons why no interest should be given in respect of those
damages. (3) Nothing in this section,— (a) shall apply in relation to— (i)
any debt or damages upon which interest is payable as of right, by virtue
of any agreement; or (ii) any debt or damages upon which payment of
interest is barred, by virtue of an express agreement; (b) shall affect— (i)
the compensation recoverable for the dishonour of a bill of exchange,
promissory note or cheque, as defined in the Negotiable Instruments Act,
1881 (26 of 1881); or (ii) the provisions of rule 2 of Order II of the First
Schedule to the Code of Civil Procedure, 1908 (5 of 1908); (c) shall
empower the court to award interest upon interest.

- Facts: Watson sued UoI for compensation for storage of iron sheets from
July 1944 to May 1949 – In 1944, the UoI had placed a order for supply of
iron drums from Watson Mayer and the Watson Mayer would receive iron
sheets from UoI, make them into drums and then give it back – in 1944,
the UoI gave 600 tons of iron sheets, but in August 1944 UoI cancelled the
contract – Watson Mayer asked UoI to remove the iron sheets from the
premises they were in, at the plaintiff’s factory in Jalandhar, but UoI only
removed it in 1949. Watson claimed that they had acted as Bailees and
 were entitled to compensation for warehouse rent etc. they also claimed
interest.

- The question before the SC was whether any interest was payable on the
principal from the date it was due to the date of the suit. The court held
that interest may be provided if there is an agreement or if there is a trade
usage to that effect or if it is provided for under the substantive law. In the
present case, there was no agreement on payment of interest prior to suit
– the interest act was not applicable as the sum was a debt and not a
‘certain sum of money’ and thus, the claimant is only entitled to the
principal sum and no interest.

COSTS:

● Sections 35, 35A and 35B; Order XXA, Order 20 Rule 6; Karnataka Civil
Rules of Practice 1967.

● What are the differences between award of costs under sections 35, 35A and
35B?

● The general principle is that costs should follow the event. Jugraj Singh vs
Jaswant Singh 1970(2) SCC 386; Kali Prasad Singh vs Ram Prasad Singh
(1974) 1 SCC 182.

- S.35: Costs – General principle is that costs follow the event, which means
that the loser must pay the costs in the decree to compensate the winner.

Kaali Prasad Singh v Ram Prasad Singh:

- Matter was being litigated for 17 years before it came to SC – the losing
party at the SC argued that the court should not award costs because the
parties have lost and won in different cases and they had spent enough on
litigation the event – the court rejected this and said that the general
principle on costs couldn’t be avoided and costs had to be paid by the
losing party.

Order 20A – Costs

- Rule 1: Provisions relating to certain items

T Aravindam v TV Satyapal:
 - Facts: The HC passed a decree for eviction of tenant in question, giving
the tenant 6 months to vacate – the landlord tried to execute the decree –
the son of the tenant filed a frivolous suit to avoid this execution – the suit
was contested for many years, but the SC dismissed the suit and called it
frivolous, said res judicata applied. S.35A relates to punitive costs, when
cases are recorded as false or vexatious.

Ashok Kumar Mittal vs Ram Kumar Gupta (2009) 2 SCC 656:

- Under section 35 award of costs is discretionary; the primary object is to

recompense a litigant for the expenses incurred by him in the litigation; it
is paid by the loser to the winner; present system of meagre costs
deprecated.

• Plaintiff sued for specific performance of agreement to sell. TC decreed,

HC dismissed appeal. HC found plaintiff lied by stating there was concluded
contract, plaintiff and also defendant lied. Both were liars. Both deserved to be
prosecuted. Instead of directing prosecution under 191 IPC. HC decided costs
could be incurred by them to be paid to the state. HC imposed exemplary costs
of 1 lakh each, deposit to Delhi HC LSC. SLP filed in SC that costs awarded were
disproportionate, illegal, unwarranted etc. SLP dismissed on merits but
observations were made. SC said usually costs between parties. But restrictions
mentioned in 35, 35A, 35B etc don’t apply to writ but only to civil suits. But they
noted that present costs are too less even for civil suits. Whether we should
adopt western model, law comm should take up? Even though this cost may not
be legal (of Rs.1 lakh), now we’re doing under 136, we won’t interfere with illegal
order. But instead of paying to LSC, it should be paid to state govt.

MORAL: Costs under 35 are punitive, can’t exceed 3000. 35A compensatory – but
well-regulated in civil rules of practice. But present system of costs v sad.

DEATH, MARRIAGE AND INSOLVENCY:

- Order 22

- When does the suit abate upon the death of a Plaintiff or Defendant? Order
22, Rule 1. What is the meaning of the phrase “right to sue”? Is it the same
as “cause of action”? The “right to sue” in Order 22 means the right to
bring a suit asserting a right to the same relief which the deceased
Plaintiff asserted at the time of his death.

- What determines whether the right to sue survives or not? The substantive
law inter alia, section 37 of the Indian Contract Act, section 306 of the
Indian Succession Act, etc.
- Rule 1: No abatement by party’s death if the right to sue survives – what is the
meaning of right to sue? Similar to cause of action – it means the right to bring a suit,
asserting the same right to the same relief as the deceased, at the time of his death.
The right to sue is determined by the substantive law. No fresh cause of action can
arise in these suits.
- S. 37 Contract Act (Performance contract, representatives of the deceased are bound
as long as there is no contrary intention) and S.306 of the Indian Succession Act
(Demands and rights of action of deceased survive to and against his administrators,
except personal injuries not including death and in case of death, where the relief
would be nugatory. – Right to sue does not survive in these two cases.

Where there are multiple Plaintiffs or Defendants and upon the death of 1 of
them, the right to sue survives to the remaining parties alone, what is the
procedure? Order 22 Rule 2: Court shall make an entry to that effect and
the suit will proceed.

- Rule 2: Procedure where one of several plaintiffs or defendants dies and right to sue
survives: suit proceeds against the surviving plaintiffs/defendants and the
representatives of the deceased are not impleaded into the suit – no application is
required to be filed.

Where a sole Plaintiff dies or 1 of two of more Plaintiffs dies and the right to
sue does not survive to the remaining parties alone, then what is the
procedure? Order 22 Rule 3: On an application made in that behalf, the
court shall cause the legal representatives of the deceased Plaintiff to be
made parties and then proceed with the suit. If within the time limited by
law (ie, 90 days under Article 120 of the Limitation Act), no application is
made, the suit shall abate.

Is any order required to be made where the suit abates? No. It happens
automatically.

- Rule 3: Procedure in case of death of one of the several plaintiffs or of the sole
plaintiff: When the right to sue does not survive to the remaining plaintiff or plaintiffs
alone OR a sole plaintiff dies and the right to sue survives, the court shall, on an
application made in that behalf, shall cause the legal representative of the deceased
plaintiff to be made a party and shall proceed with the suit. There is a 90 day
limitation period to bring LRs on record and failure to do so results in automatic
abatement of the suit.

Where a sole Defendant dies or 1 of two of more Defendants dies and the
right to sue does not survive against the remaining parties alone, then what
is the procedure? Order 22 Rule 4: On an application made in that behalf,
the court shall cause the legal representatives of the deceased Defendant to
be made parties and then proceed with the suit. If within the time limited by
 law (ie, 90 days under Article 120 of the Limitation Act), no application is
made, the suit shall abate.

When can the Court exempt the Plaintiff from substituting the legal
representatives of a deceased Defendant? Order 22, Rule 4.

- Rule 4: Procedure in case of death of one of several defendants or of sole defendant –

based on application, LR of the deceased may be added as a party.
- Subrule 4(5) – even after the limitation period has expired and the suit has abated, if
you file the application for reviving the suit after this limitation period – 3
applications, one for setting aside the abatement, one for condoning delay and one
regular application for bringing the LR on record. There must be an honest attempt to
implead all the legal representatives of the deceased.
- Rule 4A: When there are no legal representatives
- Rule 5: Dispute as to who the legal representatives are – this determination will not
amount to res judicata as it is collateral to the suit and it isn’t binding within the
LRs.

(a) If the suit has already abated as a consequence of not bringing the legal
representatives on record within the time specified in Article 120
Limitation Act, what is the procedure? Application under Order 22 Rule
9 to set aside the abatement to be filed within a further period of 60 days
to set aside the abatement (Article 121). If even the 60-day period has
expired, then an application under section 5 of the Limitation Act will
also have to be filed explaining the delay and seeking condonation
thereof.

- Rule 9: Effect of abatement or dismissal – no fresh suit shall be brought on the same
cause of action.
- Rule 7: Abatement by marriage of a female party
- Rule 8: Abatement by reason of insolvency – Court may appoint a receiver or an
assignee

- Duty of pleader to communicate to court death of a party- Order 22 Rule

10A.
- Rule 10: Procedure in case of assignment during the pendency of the suit.

If there are multiple Plaintiffs or Defendants and one of them dies, does the suit
abate as a whole or only insofar as the deceased Plaintiff or Defendant is
concerned? State of Punjab vsNathu Ram AIR 1962 SC 89.

Dolai Maliko v Krushna Chandra Patnaik: If all the legal representatives of a

deceased party are not impleaded, what is the effect?
- A suit was brought by 11 plaintiffs, claiming they had occupancy rights over the land
in question – the suit was dismissed against the plaintiffs and plaintiffs appealed –
 during the pendency of the appeal, Dolai Maliko died – his widow and son were
added as parties to the suit – the appellate court reversed it and gave all plaintiffs who
were parties occupancy rights – In second appeal, it was found that Dolai Malliko had
3 other LRs who hadn’t been impleaded and because all LRs were not impleaded, the
right to sue had abated.
- Widow and son appealed to the SC – the SC said that if the plaintiffs had acted bona
fide after due enquiry, the entire estate would be bound by it – if there was any fraud
or collusion in the application bringing LRs on record or if the absent heir has special
defence and wasn’t brought on record or when the LRs purposely don’t fight the case
properly, the application is set aside.

Saraswati Ammal v Lakshmi: AIR 1989 Mad 216: tricky question involving death of
a husband in a matrimonial case
The defendant’s husband was asking for divorce. He contended that she
had deserted him without justification. The court placed Exparte
divorce decree. The husband died after the grant of exparte decree.
After his death, wife said that she did not even know about the
exparte decree for divorce. She applied Under order 9, rule 13 to set aside the decree on the
ground that she did not know about proceedings.
The madras HC held that The suit had abated.
The application under order 9, rule 13 is not maintainable . all
applications pertaining to the case are debris of suit. If the suit dies,
all applications under the suit also die along.
Here, the suit has abated due to the death of the plaintiff, so no
application for setting the exparte decree aside can be entertained.

WITHDRAWAL AND ADJUSTMENT OF SUITS

- Order 23

- Rule 1: Withdrawal of suit or part abandonment of claim

Does the Plaintiff have an unqualified right to withdraw the suit? Order 23 Rule 1.
M/s Hulas RaiBaijNathvs Firm KB Bass and Co AIR 1968 SC 111. Also S.
RathinavelChettiarvs V. Sivaraman1999(4) SCC 89.

Hulas Rai Baijnath c Firm KB Bass and co

- Does plaintiff have an unconditional right to withdraw the suit at any

given point of time?

- A person instituted a suit for rendition of accounts of the partnership firm

against the partner, the defendant. After a great deal of the suit was done,
there was an application for unconditional withdrawal. The defendant
 objected saying that in cases of rendition of accounts, the defendant is
entitled to obtain a decree in their favour and the plaintiff’s application
defeats the defendant’s rights. The Trial Court held that the application for
withdrawal was unconditional and def could only get costs.

- SC said that O23, R1 gives the plaintiff an unconditional right to the

plaintiff to withdraw at any stage of the suit – however, if there comes
about a vested right to the opponent in the course of the proceedings,
then this unconditional right does not arise – the application may be
rejected. A vested right accrues in cases where a preliminary decree has
been passed in a partition suit (rights have crystallized), but in this case,
no preliminary decree has been passed and the plaintiff can withdraw the
suit and will only have to pay costs – O23, 3A says no fresh suit on the
same subject matter.

- When should the Plaintiff seek leave to withdraw the suit? Order 23 Rule 1:
when there is a formal defect or other sufficient grounds and he wishes to
obtain permission to withdraw with liberty to institute a fresh suit or if the
Plaintiff is a minor, etc.

- If a suit is withdrawn without permission, can a fresh suit be filed on the

same subject-matter? No. Order 23 Rule 1 bars it.

- What are the requirements of a valid compromise under Order 23 Rule 3?

- Rule 3: Requirements of a valid compromise – must be written and signed

by both parties, the compromise must be lawful (Void and voidable
contracts are not permitted under this section)

- Does the subject-matter of the compromise have to be the same as the

subject-matter of the suit? Order 23 Rule 3. Doesnt have to be the same

- How can a compromise decree be challenged? Order 23 Rule 3A. Section

96 read with Order 43 Rule 1A. HorilvsKeshav (2012) 5 SCC 525.
-

- Rule 3A: How can a compromise decree be challenged? What remedies are
available against a compromise decree? S.96 r.w. O43, Rule 1A – Appeal
from Original decree –allowed for decrees of court with the consent of
parties – Rule 1A(2): Right to challenge non-appealable orders in appeal
against decrees – whilst under S.96, an appeal is permissible against a
compromised decree, Rule 1A(2) says that an appellant can contest a
decree on the ground that the compromise should or should not have
been recorded.
 - What is the procedure for entering into a compromise in a representative
suit? Order 23 Rule 3B.

- Who is liable for the costs when a suit is withdrawn? Order 23 Rule 1.

Horil v Keshav (2012) 5 SCC 525

- A person had suffered a decree in a suit under the UP Land Reforms Act
1950 – his son filed a suit subsequently, seeking a declaration that the
previous suit against his father was fraudulent and not binding upon him
– plaintiff stated that the earlier decree has ended in a compromise, but
the compromise petition was not signed by his father and his sign was
forged – he had not even attended court and someone else had
impersonated the father and the father had died by the time the
compromise decree was signed.

- The SC said that O23, R3A also covers a decree based on fraudulent
compromise – doesn’t necessarily have to be an illegal consideration –
therefore, you cannot file a suit, but the only remedy is to appeal under
S.96 r.w. O43, Rule 1A. Since the decree in this case was filed by a revenue
court, it was not a decree under Order 23, Rule 3A and that’s the only
reason the suit can continue

- Rule 3B: No agreement or compromise to be entered into in a

representative suit without leave of court – to ensure the interests of the
minor are met

- Who is liable for costs when suit is withdrawn? Order 23, Rule 1 – the
person who withdraws shall be liable for costs

INTERLOCUTORY ORDERS

- Until main judgement and decree can be given, grant some interlocutory
relief during the proceeding.

- (a) Sections 94 and 95; Orders 38, 39, 40 (possibly 24 and 25 also).
-

- 94. Supplemental proceedings.—In order to prevent the ends of justice from being defeated
the Court may, if it is so prescribed, —
- (a) issue a warrant to arrest the defendant and bring him before the Court to show cause why
he should not give security for his appearance, and if he fails to comply with any order for
security commit him to civil prison;??

- (b) direct the defendant to furnish security to produce any property belonging to him and to
place the same at the disposal of the Court or order the attachment of any property;

- (c) grant a temporary injunction and in case of disobedience commit the person guilty thereof
to the civil prison and order that his property be attached and sold;

- (d) appoint a receiver of any property and enforce the performance of his duties by attaching
and selling his property;

- (e) make such other interlocutory orders as may appear to the Court to be just and convenient.

- 95. Compensation for obtaining arrest, attachment or injunction on insufficient

grounds.—(1) Where, in any suit in which an arrest or attachment has been effected or a
temporary injunction granted under the last preceding section,—

- (a) it appears to the Court that such arrest, attachment or injunction was applied for on

- insufficient grounds, or

- (b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or
probable grounds for instituting the same,the defendant may apply to the Court, and the Court
may, upon such application, award against the plaintiff by its order such amount 1[not
exceeding fifty thousand rupees], as it deems a reasonable compensation to the defendant for
the 2[expense or injury (including injury to reputation) caused to him]:

- Provided that a Court shall not award, under this section, an amount exceeding the limits of
its pecuniary jurisdiction.

- (2) An order determining any such application shall bar any suit for compensation in respect
of such arrest, attachment or injunction.

- You can get some compensation if the interlocutory appeal was against you
and you were arrested or your property was attached or something. You can
prove that the interim was not correct because it was ordered without
reason. Also under a circumstance where the entire suit is frivolous. But
you’’ get max 50,000. Sir says youll get higher compensation if you sue for
wrongful arrest etc. Once you get compensation under this section, you’re
barred from filing a further suit for compensation. BUT COURT’S FAULT NO
– not really, granted ex parte. Thinking plaintiff is in good faith.

- 94, 95 applicable only if grounds were insufficient or malicious. Can it be

given on the ground that appeal is allowed? Not sure.

-
- (b) What are the different categories of interlocutory orders that may be
passed by the court under the heading “supplementary proceedings” (section
94, Part VI of the Code) ? Arrest and attachment before judgment (Order 38);
 Temporary Injunctions (Order 39); Appointment of Receivers (Order 40);
Payment into Court (Order 24) and Security for Costs (Order 25).
-
- TEMPORARY INJUNCTIONS: ORDER 39.
- Rule 1,2 – temporary injunction
- 6-10 – interlocutory orders.
- But all of them are interim orders – injunction- negative in order,
interim or interlocutory – maybe negative or a positive order.
-
- (a) What are the different categories of temporary injunctions that can be
granted under Order 39?
- (i) For protection of any property that is in danger of being wasted,
damaged or wrongfully alienated, wrongfully sold, being disposed of with a
view to defraud creditors, or that the Plaintiff might be dispossessed of,
etc. Order 39Rule 1.
- Wherever there is property involved, esp immovable property and injury may
happen to that property.
- (ii) For restraining the Defendant from committing a breach of contract or
other injury of any kind. Order 39 Rule 2.
- Wherever there may be breach of contract or tortious injury.
- (iii) To order interim sale of movable property which is subject to speedy
and natural decay. Order 39 Rule 6.
-
- (iv) For the detention, preservation or inspection of any property. Order 39
Rule 7.
- (v) Where land paying revenue to government is ordered to be sold for
failure to pay land revenue. Order 39 Rule 9.
- (vi) Order to deposit money held by a trustee. Order 39 Rule 10.
- (vii) If the application in question does not satisfy the requirements of the
aforementioned provisions, under which provision would one apply? The
residuary section 151.
ManoharLal Chopra vs RaiBahadurRao Raja Seth Hiralal AIR 1962 SC 527.
- Appellant and respondent partnership agreement for coal mines in the name
of diamond industries. In 1945 deed of dissolution of firm. After dissolution
disputes arose between partners. Appellant instituted a suit in asansole, WB
against respondent for recovery of 1 lakh on the partnership account. Filed
in 1948. Respondent filed under indore court. Respondent applied under s
10 cpc before assan sole court and asked for a stay. Rejected because only
second suit can be stayed. Now appellant filed in indore for a stay but indore
court said subject matter of bth cases are v diff. respondent filed an
injunction at indore restraining appellant from continuing suit at assan sole.
Basically its like asking under s 10, but in a v tricky way. Indore trial court
gave the injunction under order 39. Matter appealed to HC. Because of the
wording used in order 39 rules 1 and 2, trial court empowered under s 151
cpc. Appeal to SC. SC went through full jurisprudence on 151. 151 referred
to inherent powers, not controlled by provisions of the code. General rule:
don’t use S.151 – residuary clause – inherent power – to overcome the
clear wording of the rules. But where there are gaps in the law you can
invoke s 151. In effect, one court cannot restrain another court indirectly.
Not in the interest of justice to allow this. But as a matter of principle, TC
not bound by O.39 and s.94, can grant injunctive relief even de hors that.
 But justice shah dissented and said civil courts don’t have random powers
beyond the CPC. Appeal allowed because courts crossed their limits. Both
same conclusion, different reasoning.
-

- (b) What happens to a temporary injunction if the suit is dismissed for

default but then restored? The orders also get revived and restored Vareed
Jacob vs Sosamma Geevarghese (2004) 6 SCC 378.
-
-
- (c) What are the considerations that the court will take into account in
deciding whether or not to grant a temporary injunction?

- Dalpat Kumar vsPrahlad Singh AIR 1993 SC 276 – “the three pillars”.
- Agreement to sell a residential house. Plaintiff filed a suit for specific
performance, decreed ex parte. Before plaintiff could execute by getting
registered sale deed executed in favour, def wife filed suit for injunction
restraining plaintiff from dispossessing her. Was dismissed. Then sons of def
filed that prop is joint fam property, sale did not bind them, sought temp inj,
dismissed. Then defendant filed another suit saying lawyer frauded him.
Sought temp injunction from dispossession property. Property consisted of
commercial and residential areas. Def in residential area. Shops in
commercial property possessed by plaintiff. Only res portion remained. At
this stage TC dismissed def. HC on appeal allowed application of the
defendant.
- SLP filed by plaintiff against HC order. SC said in this case, OG defendant
seems to file in mala fide. Fourth round of litigation. They laid down
principles to be applied while deciding whether temp injunction should
be granted:
- 1. Whether the plaintiff is able to establish that there is a serious disputed
Q to be tried in the suit and the plaintiff is entitled to relief? Plaintiff should
show a prima facie case. – prima facie case
- 2. Interlocutory necessary to protect the party from irreparable damage? –
irreparable damage
- 3. Whether the damage from not granting injunction is greater than
granting the injunction? – balance of convenience
- SC said the burden on the plaintiff to establish through affidavit that there is
a prima facie case and balance of convenience in his favour.
- Defendant lost the SLP.

- ∙ M/s Gujarat Bottling Co Ltd vs Coca Cola Company AIR 1995 SC

2372- fair and honest conduct of an applicant necessary.
- ∙ Whether the applicant has delayed making the application.

- ∙ Acquiescence.

- ∙ Whether monetary compensation would be adequate.

- Temporary injunction is a subset of an interlocutory order – orders
passed in the interim of the suit are called interlocutory as they merge
with the decree once the suit concludes.

What is the procedure for grant of an injunction? Is notice to the opponent

necessary? Order 39 Rule 3. If an ex parte injunction is to be granted, what
procedure would need to be followed? Order 39 Rule 3 and Rule 3A. copy of
affidavit, plaint, supporting documents.
- The plaintiff, in his application for temp injunction, may have made false
or misleading statements and therefore, to determine the truthfulness of
the statements made in the affidavit, the defendant needs to be heard.

- When the other side doesn’t turn up, it is called ex parte relief –
temporary relief is usually given with the other party , S.2(b) must be
applied with in cases it doesn’t and reasons for passing ex parte injunction
should be given.

What is the difference between an ad interim and an interim injunction? Order

39 Rules 3 and 3A.
- 3A: Court to dispose of application for injunction within thirty days – The
ex parte temporary injunction is given in the interim on deciding on the
application for the interlocutory order – the ad interim temporary
injunction is given till the application for temporary injunction has been
decided in the main. Basically, ad interim ex parte temp injunction is
granted only for 30 days, till the application for temporary injunction has
been heard and disposed of in the main (after hearing the opponent) –
the ad interim relief expires after 30 days, if the temporary injunction is
granted that lasts till the end of the suit.

How can the opponent overcome an injunction order? Application to vacate it

under Order 39 Rule 4. If an injunction has been granted after hearing both
sides, will an application to vacate it be maintainable?

- Rule 4: Order for injunction may be discharged, varied or set aside: Any
dissatisfied party (including the party who got the order) can make an
application. If you make a false statement for interim relief, the court may
vacate the order by giving reasons. If the order has been passed after
hearing the other party, the court is reluctant to change the order.

If the injunction granted by the court is violated, what steps should be taken
and what would be the consequences thereof? Order 39 Rule 2A.
- Rule 2A: Consequence of disobedience or breach of injunction – the
court may order the attachment of property of the person guilty of
 violating injunction. There are also provisions under the Execution Order
that can be looked at.

Whom does an injunction against a corporation bind? Order 39 Rule 5 –

binding on all members of the corporation that it seeks to restraint

What is the difference between an order of stay and an order of injunction? “Stay”
generally applies to judicial or administrative proceedings whilst injunction
generally applies to a person.
- Stay is more appropriate in Writ proceedings, where they are staying the
operation of judicial/administrative proceedings – hardly ever passed by a
trial court. Appellate courts stay the operations of judgements passed by
lower courts.
- Injunction is usually addressed towards a person.

What is the difference between an interim injunction and a permanent injunction?

Permanent- forever. Temporary-until disposal of the suit. Also see sections 38 to
42 of the Specific Relief Act, 1963.

Does res judicata apply to interlocutory applications? Generally yes- though the
wording in section 11 might not in terms apply.

What is an order of “status quo”? – Order passed against both parties, stating that
the parties will remain in the same position they are in, as on the day of passing
the order.

ARREST AND ATTACHMENT BEFORE JUDGMENT: ORDER 38

When can a defendant be called upon to furnish security for his appearance? Order
38 Rules 1 to 4.What is the exception carved out in Rule 1? Suits of the nature
referred to in section 16 (a) to (d).

- Rule 1: Where the defendant may be called upon to furnish security for
appearance
- Rule 2: Security
- Rule 3: Procedure on application by surety to be discharged
- Rule 4: Procedure where defendant fails to furnish security or find fres
security.
- Read 10-13 yourself
- Drastic remedy of attachment and arrest is provided, but only if you can
satisfy the court that the defendant is likely to run away or sell his property

What are the parameters for exercise of discretion under Order 38? Raman Tech
and Process Engg Co vsSolanki Traders (2008) 2 SCC 302- the object of
supplemental proceedings like arrest and attachment before judgment is to prevent
the ends of justice being defeated especially the realization of the decree that may
ultimately be passed in favour of the Plaintiff. The power under Order 38 Rule 5
CPC is drastic and extraordinary and to be used sparingly and strictly. Attempts to
use it as leverage to settle the case should be discouraged.

If arrest or attachment is obtained on insufficient grounds, what is the remedy?

Section 95: Compensation
RECEIVERS : ORDER 40

Who is a “receiver”? “An impartial person appointed by the court to collect and
receive, pending the proceedings, the rents, issues and profits of land or personal
estate, which it does not seem reasonable to the court that either party should
collect or receive, or for enabling the same to be distributed among the persons
entitled”. A receiver is an officer and extended arm and hand of the court, a part of
the court machinery.

What is the object of the appointment of a receiver? To protect, preserve and

manage the property during the pendency of the litigation.

When can a receiver be appointed and what is the procedure applicable? Order 40
Rules 1 to 5. Benoy Krishna Mukherjee vs Satish Chandra Giri 1927 ILR PC
720 – appointment of a receiver of property in possession of a Defendant should be
made only if there is a well-founded fear that the property will be dissipated or
irreparably injured.

Why is appointment of a receiver considered a harsh remedy? It deprives the

person in possession of the property during the pendency of the suit. It is thus
generally not ordered if one party is in de facto possession but may be ordered if
the property is in medio.

PAYMENT INTO COURT: ORDER 24

What are the rules pertaining to payment into court? Order 24 Rules 1 to 4.

How are costs calculated when payment is made into court? Order 24 Rule 4.

What is the effect on liability to pay interest once payment is made into court?
Order 24 Rule 3.

SECURITY FOR COSTS: ORDER 25

When can the Plaintiff be required to furnish security for costs? Order 25 Rules 1
and 2.

A. WHAT IS “EXECUTION”?

The word has not been defined in the Code, but in its widest sense, it
signifies the enforcement or giving effect to a judgment or order of a court of
justice (Halsbury’s Laws of England). Execution is the enforcement of
decrees and orders by the process of the court, so as to enable the decree-
holder to realize the fruits of the decree. Execution is complete when the
decree holder gets the money or other thing awarded to him by the decree or
order.

B. WHERE ARE THE PROVISIONS CONTAINED FOR EXECUTION OF

DECREES AND ORDERS?
 Part II: sections 36 to 74 and Order 21. Also sections 145 and 146.

C. WHAT ARE THE DIFFERENT HEADS UNDER WHICH EXECUTION CAN

BE DISCUSSED?

● What are the general principles applicable to execution?

Proceedings in execution separate from proceedings in suit,
Proceedings commenced by plaint, execution commenced by
application seeking execution
In same civil proceeding

● Which courts can execute decrees?

● What are the requirements of an application for execution?

● How is payment to be made under a decree?

● What are the rules applicable to stay of execution?

● What are the different modes available for execution?

● When will the court order arrest and detention in the execution of a
decree and what are the procedures thereof?
● When will the court attach property in execution of a decree and what
are the procedures thereof?
● What procedure applies for sale of property in execution?

● What procedure applies for delivery of possession?

● What procedure applies for distribution of assets when there are

several applications for execution against the same property?
● What are the mechanisms available before the executing court for
adjudication of claims and disputes?
● What questions should be determined by the executing court?

D. WHAT ARE THE GENERAL PRINCIPLES APPLICABLE TO

EXECUTION?

● The executing court cannot go beyond the decree or vary or modify its
terms.
● However, if the terms of the decree are vague, the executing court can
construe the decree and refer even to the pleadings in the suit.
● In case of inherent lack of jurisdiction the decree passed is a nullity
and its invalidity could be raised in execution proceedings – here the
court cannot be said to be going behind the decree as there is no
decree at all. However, the inherent lack of jurisdiction must appear
from the face of the record.
● The executing court can also go into the executability of the decree
and enquire whether the decree has ceased to be executable.
● The executing court has the power to mould the relief granted to the
Plaintiff in accordance with the changed circumstances.
● The principle of res judicata specifically applies to execution
proceedings by virtue of Explanation VII of section 11. But an earlier
decision can operate as res judicata if the execution application has
been heard and finally decided and not otherwise. If the application is
dismissed for default of appearance, non-prosecution, as being
premature or as not pressed, the principle of res judicata will not
apply.

A. Under the Code, the provisions thereof applicable to decrees are

deemed applicable to orders also.Hence, the same procedures
would need to be adopted for execution of orders also.

B. WHICH COURTS CAN EXECUTE DECREES? (sections 37 to 46 and

Order 21 Rules 3,4,9)

● A decree may be executed by the Court which passed it or by the

Court to which it is sent for execution (the transferee court) –section
38.
● In S.37 – deeming fiction – definition of court which passed the decree
– the court of first instance.
● When a decree is assailed before appellate court and they pass their
own decree, decree of TC merges with appellate court decree. The
decree of the appellate court to be executed. At any point of time only
one executable decree of the highest court. But S.37 says that court
which passed the decree originally – court of first instance – that only
shall be the ‘court which passed it’. Appellate courts also included –
because that is really the court which passed the decree.
● If the court of first instance ceased to exist or have jurisdiction – if the
suit you had to file now, where would you file – that court will be the
court which passed it.
● If the suit was transferred from one court to another, all those courts
will have jurisdiction.
● However, by virtue of the deeming provision in section 37, the “court
which passed the decree” is deemed to include several other courts as
well.
● Transfer of decree is provided for under section 39- the court which
passed the decree may transfer the decree for execution to another
court of competent jurisdiction ie, as defined in sub-clause (4). The
circumstances under which transfer can be effected are laid out in
section 39.
● Under section 39, the court which passed the decree may also send
it to a subordinate court for execution.
● However, by virtue of section 39 (4), the court which passed the
decree cannot execute the decree against any person or property
outside the local limits of its jurisdiction.
● Cases: Mahadeo Prasad Singh vs Ram Lochan (1980)4SCC 354.

Mohit Bhargava vs Bharat Bhushan Bhargava (2007) 4 SCC 795.

Decree holder filed at district court Gwalior. Prelim and final decree
passed there directing judgement debtor to ay 6,66,000 rupees to
decree holder. Judgement debtor minor. Grandfather of judgement
debtor gave property to some third parties on rent and asked them to
give possession after a certain period. These properties in indore. Also
handed over documents of title relating to said property to third party.
Third party had custody. They are liable to hand it over to the
judgement debtor. Third party said they won’t hand over. Executing
court granted these orders. Decree holder made application seeking
sale of property at indore. This was ordered. Judgement debtor
became major by then. He challenged all these orders by the
executing court and asked them to order that third parties don’t need
to hand over anything. This was also passed by the executing court.
HC said order of sale was not permissible – bc court at Gwalior did
not have territorial jurisdiction bc property at indore. They said
should be transferred to indore court. SC said decree can be executed
by court which passed it as long as assets within own jurisdiction,
and if judgement debtor is within jurisdiction of the court. If property
to be proceeded against is outside jurisdiction or if judgement debtor
outside jurisdiction and you require his personal obedience, court
cannot execute. Then remedy is to transfer the decree. However, SC
noted that there are important exceptions to this rule. When a precept
is ordered, court which passed decree may have powers even outside
jurisdiction. Similarly when a court is ordering a third party not to
deliver property or give title, when it is passing freezing order or anton
pillar or mareiwa order not to do something, then it is allowed even if
outside jurisdiction. 3rd exception under order 21 rule

3 where if property is situated in more than one than one court, any
of those courts have power.

● The transferee court shall have the same powers in executing the
decree as if it had been passed by itself. However, there are some
fetters on the powers of the transferee court. Section 42.
● Procedure to be adopted for transfer of a decree- sections40, 41, 42
and Order 21 Rules 4, 5,6,7,8,9.
● Diff states also. When you're executing, follow the rules of execution
in the final state.
● Precepts- section 46. What is a precept and when will it be issued?
● Exception to 39(4) which states that cant execute if someone outside
court’s jurisdiction. Precept means one court can direct another
court to attach the property.
● What are the exceptions to the rule that a court cannot execute
against person or property outside its territorial jurisdiction? Order
21 Rule 3.
● Can a decree be executed in more than 1 court? Yes- but this should
be done only in exceptional cases.

A. APPLICATION FOR EXECUTION

● What is the procedure for seeking execution? Is a written application

always necessary? Order 21 Rules 10,11.
Decree holder should apply through a written application usually.
Decree for payment of money – can arrest the judgement debtor on
decree holder applying through oral application. Apprehension of
fleeing.
● What details should be contained in the application for execution?
Order 21 Rules 11 to 14.
● What is the enabling provision with regard to joint decree holders?
Order 21 Rule 15. Any one can apply. If decree transferred by
assignment in writing, then assignee can execute it.
● What is the procedure in case of cross-decrees and cross-claims?
Order 21 Rules 18 to 20.
● What is the procedure to be adopted after filing of the application?
Order 21 Rules 17, 22, 23, 24, 25. When is notice required to be
issued on an application for execution?
If more than 2 years passed, notice is mandatory. He will then be
heard and may oppose application for execution. If youre seeking
execution from legal hair, or assignee or receiver in insolvency, or
third party, then mandatory to issue a notice of execution.
In rule 24, court has to issue a process. If he is ordering arrest or sale
etc, you need some formal proof of the procedure to the adopted. This
is called the process. The officer who has to do this shall do it before
the last day, if delay or not executed, reasons to be recorded and
returned to court. Court shall examine officer.

B. PAYMENT UNDER A DECREE (Order 21 Rules 1 and 2)

● How can money payable under a decree be paid?

● If a payment has not been certified or recorded, what is the effect?

You can pay through court or outside court but get it recorded in
court.
 A. WHO CAN MAKE AN APPLICATION AND AGAINST WHOM CAN
IT BE MADE ?

· Section 146: where any proceeding may be taken or application made by or

against any person, then the proceeding may be taken or the application may be
made by or against any person claiming under him. – Includes heirs, includes
beneficiary in a representative suit, joint decree holder

· However, under section 49 the transferee shall hold the decree

subject to the same equities that judgment-debtor might have
enforced against the original decree-holder.

· Further however, under section 50 if judgment-debtor dies before

decree has been fully satisfied, the decree can be executed against
the legal representatives of the deceased only to the extent of the
property of the deceased which has come to his hands and has not
been duly disposed of. However, if the legal representative has not
duly applied the property of the deceased, the decree may be
executed against the judgment-debtor in the same manner as if
the decree was against him personally-section 52. See also
section 53.

· Further however, in case of assignment of the decree, no such

decree shall be executed unless notice is given to the judgment
debtor and the transferor and they have been heard on their
objections. Order 21 Rule 16.

· Note Order 21 Rule 22A: death of judgment debtor before sale but
after proclamation of sale does not vitiate the sale.

· The liability of a surety has been specifically provided in section

145.

· In a representative suit, a beneficiary may apply for execution, even

if he has not been made a party.

· One or more of joint decree-holders can apply subject to

conditions. Order 21 Rule 15.

B. STAY OF EXECUTION (Order 21 Rules 26 to 29)

· Which are the courts empowered to stay execution? The

court to which the decree has been sent (section 26) may
stay for a reasonable time; & the court which passed the
decree or the appellate court (section 28).

· Stay where another suit pending between decree holder and

judgment debtor (section 29).

· Shaukat Hussain vs Smt Bhuneshwari Devi (1972) 2 SCC

731.
 C. MODE OF EXECUTION GENERALLY (sections 51, 54, Order 21
Rules 30 to 36)

· Section 51: Powers of the court to enforce execution:

subject to such limitations and conditions as may be
prescribed, the Court may order execution of the decree by
one of the modes prescribed or in such other manner as the
nature of the relief granted may require.

· Section 54: partition and separate possession of undivided

estate shall be made by the Collector.

· What are the different modes prescribed for execution for

particular types of decrees? Order 21 Rules 30 to 36.

· Rule 30: Decree for payment of money

· Rule 31: Decree for specific movable property

· Rule 32: Decree for specific performance for restitution of

conjugal rights or for an injunction

· Different modes of execution for different types of

decree

· How is a decree for restitution of conjugal rights to be

executed? Order 21 Rules 32, 33.

D. ARREST AND DETENTION (Sections 51, 55, 56, 57, 58, 59 and
Order 21 Rules 11, 21, 30, 31, 32, 37 to 40)

What are the safeguards and pre-conditions for arrest in execution?

ü Order 21 Rule 21: court may refuse

simultaneous execution at the same time
against the person and property of the
judgment debtor.

ü Section 55: detention shall be in civil prison.

Distinction between civil prison and criminal

prison – the inmates are different, although they
are usually in the same compound but have
separate cells.

ü Shall be brought before court as soon as

possible (section 55 and Order 21 Rule 38).

ü No dwelling house shall be entered after sunset

and before sunrise. (section 55).

ü Outer door of dwelling house not to be broken

open unless…(section 55).
 ü Room in occupancy of a woman who does not
appear in public according to custom (section
55).

ü State Government may prescribe special

procedure for certain persons. (section 55).

ü Section 57: State Government may fix scales

for allowances payable for the subsistence of
judgment-debtors. Order 21 Rule 39: decree
holder bound to pay into court subsistence
allowance. – different from criminal detention –
the judgement holder has to pay for their
subsistence. If you don’t pay, then they will be
released.

ü Release on the ground of illness permitted-

section 59.

What are the additional safeguards with regard to arrest in execution of a money
decree?

ü Opportunity of showing cause necessary

(section 51 and Order 21 Rule 37).

ü The court for reasons to be recorded in

writing should be satisfied that (a)
judgment debtor likely to abscond or has
dishonestly transferred property or
committed any other act of bad faith (b) the
decretal amount is a sum which the
judgment debtor was bound in a fiduciary
capacity to account or (c) the judgment
debtor has the means but refuses or
neglects to pay. (Section 51).

ü If judgment debtor pays the sum due to the

officer arresting, such officer shall at once
release him (section 55).

ü Under section 55(3) – once the judgment

debtor is arrested and brought before the
court, the Court is bound to inform him that
he may apply to be declared an insolvent.

ü No woman shall be arrested or detained in

execution of a decree for the payment of
money (section 56).

ü Persons detained in execution of a money

decree – maximum periods of detention are
prescribed in section 58 – No more than 3
months for the execution of a money
decree.
 ü A judgment debtor released is not discharged
from his debt, but he shall not be liable to be
re-arrested (section 58).

ü Special procedure before committal to civil

prison (Order 21 Rule 40).

· Why is a distinction made in the Code with regard to

execution of regular decrees and money decrees?
Historically, it has been a right of the person to not be
arrested for not fulfilling a money decree as it adversely
impacts their liberty.

Jolly George Varghese vs The Bank of Cochin (1980) 2 SCC 360.

- Jolly owed a decretal sum of 7 lakh, which he didn’t pay – he was arrested
and detained in a civil court after issue of a warrant – the matter went upto the
SC – Justice Krishna Iyer relied on Article 11 of the ICCPR to say that no one
shall be detained for the non-fulfillment of a contractual liability and it would
also violate due process in Article 21 of the Constitution.

- S.51(c) was to be interpreted in this case – the judgement debtor has the
means but refuses or neglects to pay and therefore, the arrest and detention
was warranted. Justice Krishna Iyer said that simple default to pay is not
enough to detain them – there should be something more, or some element of
bad faith beyond indifference, some attitude of refusal, dishonestly committing
acts of bad faith.

Subrata Roy Sahara vs Union of India (2014) 8 SCC 470

- The purpose of detention in civil proceedings is to coerce compliance and to

get the judgement debtor to fulfill his deeds and make the payment under the
decree – the detention does not affect the monetary liability of the debtor and
the liability remains the same.

Padrauna Rajkrishna Sugar Works Ltd vs Land Reforms Commissioner 1969

(1) SCC 485

- Simultaneous execution against the judgement debtor and their property is

permissible and there is no bar against it.

3 judge bench: not a rule that movables should be proceeded against first then
immoveables. Both can be done simultaneously. CPC imposes no obli that
movables be sold first or that arrest be done first before immoveable property.
Simultaneous execution is permissible.
If you are the lawyer, ask for as many modes of relief as you can otherwise lose
opportunity if you missed out on any particular mode.
Shyam Singh vs Collector, District Hamirpur, UP (1993) Supp 1 SCC 693

Farmer took loan from SBI for 34000 in 1972 to purchase a tractor. Tractor
hypothecated to the bank. 22 acres of agri land mortgaged to bank as addlt
security. Shyam singh couldn’t repay loan. Bank approached authoritirs under UP
Agri Credit Act 1973 where provisions in pari material w CPC for execution of
decree. Under act, tractor was attached and custody of tractor was taken. They also
attached land. At this stage shyam singh objected. He said I only owe u 34000. Sell
my tractor first and if you don’t recover it, take my land. Matter went to SC, they
noted that under order 21 rule 21, court can permit simultaneous execution
against person and property. They noted that CPC were analogous to UP act. They
said since it’s a discretionary matter, the authorities should check amount from
sale of tractor. Only if it doesn’t add up, take lands.
General rule don’t attach and sell more than what is necessary. In this case, order
21 rule 21 not appropriate. It talks about simultaneous execution against person
and property. But doesn’t remark on attaching more than required

E. ATTACHMENT (sections 60 to 64 and Order 21 Rules 41 to 59)

· Attachment is a process by which a court , at the request of a

decree holder, designates specific property owned by the judgment
debtor, to be transferred to the decree holder, or sold for the benefit of
the decree holder.

· The primary object of attachment is to give notice to the

judgment debtor not to alienate the property to anyone as
also to the general public not to purchase or deal with the
property attached. Attachment is not a condition precedent
for sale.

· Section 64 provides that any private transfer or delivery of

property attached shall be void. However, the section does
not apply to any private transfer or delivery of the property
attached made in pursuance of a contract entered into and
registered before the attachment.

· Section 60 provides a non-exhaustive list of all properties

(anything with market value and which is saleable can be
attached) liable to attachment that are “saleable”; it also
provides a list of items that cannot be attached and sold.
Under section 60(1-A) no person can waive the benefit of
these exemptions from attachment.

· Section 61 provides that the State Government may

exempt agricultural produce from attachment.

· Section 62 imposes safeguards to be observed whilst

attaching property.

· Section 63 provides that if the same property is under

attachment in execution of decrees of more than 1 court,
then the Court entitled to deal with the property shall be
the court of the highest grade or the court which first
attached the property.
 · Order 21 Rule 41 provides that in a money decree, the
judgement debtor or any other person can be examined as
to the properties available or court can require an affidavit
stating the particulars of the assets of the judgment debtor.

· Order 21 Rule 42 provides for attachment even if the

amount due has not yet been ascertained such as where
enquiry as to rents or mesne profits is pending.

· Order 21 Rules 43 to 54 provide for the manner of making

the attachment with regard to different types of properties.
See Takwani’s Chart page 656. [IMPORTANT].

· It is to be noted that disputes arising in the course of

attachment can be decided by the court and such orders of
the court are deemed to be decrees (ie can be appealed
against)-Order 21 Rule 43A (determination of liability of a
custodian of movable property); Order 21 Rule 46H (orders
in cases involving Garnishees); &Order 21 Rule 49 and 50
(liability of a partner of a firm). Also Order 21 Rule 58 – if
property has been wrongly attached

· What is the procedure adopted in the Code as to recovery

from Garnishees? Order 21 Rules 46A to H. The same
procedure applies to negotiable instruments. (Order 21
Rule 46I)

· What is the procedure for attachment of immovable

property? Order 21 Rule 54. – order prohibiting the
judgement debtor from transferring or charging the property
in any way and all persons taking benefit from such
transfer of charge.

· When is the attachment removed or withdrawn? Order 21

Rule 55.

· When does the attachment determine? Order 21 Rule 57.

· What is the procedure for attachment of coin or currency

notes? Order 21 Rule 56. Attachment of movables, Order
21, Rule 43.

· What is the procedure for adjudication of claims and

objections on the ground that the property in question is
not liable to be attached? Order 21 Rule 58. If the court
refuses to entertain the claim, what remedy is available? If
the court entertains and determines the issue, what is the
effect?

· When might the court stay the sale? Order 21 Rule 59.

F. SALE
 · Section 65 provides that when immovable property is sold
and such sale has become absolute, the property is deemed
to have vested from the time the property is sold and not
when the sale becomes absolute.

· Section 67 empowers the State Government to make rules

for the sales of land in execution of decrees where the value
of the lands are uncertain.

· Under rule 64 the court is empowered to order any property

attached by it and liable to sale to be sold and that the
proceeds shall be paid to the party entitled to it under the
decree.

Ambati Narasayya vs M. Subba Rao 1989 Supp(2) SCC 693

- An exparte decree was passed against the judgment debtor with costs and
his land was attached to the suit – an auction purchaser purchased the land
and it was confirmed – after confirmation, an application was filed for setting
aside the sale under O21, R19 – the matter went to SC, which said that O21,
R64 had been violated, which states that only that portion of the property which
is necessary to satisfy the decree must be attached and sold. In the instant
case, the sale was effected without examining this aspect and thus, the sale was
set aside and fresh attachment happened.

- Can an application to set aside the sale be filed after the confirmation of the
sale, i.e. after the transfer of ownership?

· The following safeguards are enshrined in the Code:

Ø Every sale in execution of a decree shall be conducted

by an officer of the court or court-appointed
person and it shall be made by public auction, in
the manner prescribed. Rule 65.

Ø Proclamation of the intended sale is mandatory,

after notice, and compliance with the other
requirements of rules 66 and 67.

Ø The time of sale is prescribed by rule 68.

Ø Rule 69 provides for adjournment or stoppage of sale

if the amount due is paid.

Ø Rule 71 provides that the defaulting purchaser is

answerable for the loss on re-sale.

Ø Rules 72 and 72A provide that the decree-holder and

mortgagee cannot bid at the auction without the
leave of the court.

Ø Officers are prohibited from bidding in these sales-

Rule 73.
Rules 74 to 81 (specifically with regard to sale of
movable property)

Ø Rules 74 to 76 provide special provisions for sales of

movable property such as agricultural produce,
growing crops and negotiable instruments.

Ø Under Rule 77, in the case of movable property sold

by public auction, upon the payment of the purchase
money, and the grant of a receipt for the same, the
sale becomes absolute. – as per TOPA, the date of
vesting of title is when the owner transfers it – in
case of a court order, the transfer is after the sale
becomes absolute after confirmation of sale –
once purchase money is paid and there is a
receipt for the same.

Ø Under Rule 78,no irregularity in the sale of movable

property shall vitiate the sale, but a fresh suit for
compensation and recovery of the property is not
barred. – The sale becomes absolute on payment of
the money and there is no confirmation for the sale of
movables.

Ø Rules 82 to 96 make specific provision for the sale of

immovable property.

Rules 82 to 96 (specifically with regard to sale of

immovable property)

Ø Rule 82: Court of Small Causes cannot order

sale of immovable property.

Ø Rule 83 provides that sale may be postponed if

judgment debtor satisfies the court that
decretal amount can be raised by private sale
or otherwise; in such a case the court will
grant a certificate to the judgment debtor
authorizing him to make the proposed sale
notwithstanding section 64 (ie any attachment
of the property).

Ø Purchaser of immovable property is bound to

deposit 25% immediately, failing which the
property will be re-sold forthwith – Section
84.

Ø Within 15 days from the date of sale the

purchase money shall be paid in full: Rule 85.

Ø In case of failure to pay the purchase money,

the property shall be re-sold and the
 defaulting purchaser will forfeit his deposit –
Rule 86.

Ø Upon re-sale, fresh proclamation is to be

issued- Rule 87.

Ø Bid of a co-sharer shall have preference – Rule

88.

Ø After the sale, there are 3 provisions under

which the sale still be set aside: Order 21
Rules 89 (application to set aside on deposit),
90 (application to set aside sale on the ground
of irregularity or fraud) and 91(application by
purchaser to set aside sale on the ground of
judgment debtor having no saleable interest).

Ø Under Order 21 Rule 92 where no application

is made under the three rules or where such
an application is made and disallowed, the
Court shall make an order confirming the sale
and only thereupon the sale shall become
absolute.

Ø Where sale is set aside, the purchase money

will be returned to the purchaser – Rule 93.

Ø Once the sale has become absolute, the Court

shall grant a certificate specifying the property
sold and the name of the person declared to be
the purchaser and the date on which the sale
became absolute. Order 21 Rule 94. However,
this is only a ministerial act.

Ganpat Singh v Kailash Sankar:

- Even after the confirmation of sale, an application was made on grounds

other than those mentioned in O21, R89, 90 and 91 (supposed to be exhausted
of provisions empowering you to set aside sale before confirmation) – once a sale
becomes absolute, the title vests in the purchaser and cannot be set aside.

- In the execution proceedings, where the decree holder sought possession of

the property, the appellants in the SC argued that they set an application for
setting aside the sale and that application was rejected – the date of rejection is
when the sale became absolute and that’s the date from which the limitation
should be calculated and that his application seeking possession was within the
limitation period.

- SC said Rules 89, 90 and 91 are exhaustive and you cannot make an
application for setting aside the sale under any other provisions and thus
your application was not maintainable – thus, the sale became absolute from
the date of the confirmation and not the date of the order.
 G. DELIVERY OF POSSESSION

· Movable property – Order 21 Rules 79 to 81. Can go and

take the movable property

· Immovable property – Order 21 Rules 95 to 104.

· Resistance to possession of immovable property- Order 21

Rules 97, 98 (civil prison) – In cases of resistance in
handing over immovable property.

· Dispossession of person other than judgment debtor – Order

21 Rules 99, 100, 101, 102, 103, 104. Deemed decree. –
the order passed at the ultimate stage of the proceedings,
but someone can actually still cause interruption because
they can say that someone else is in possession of the
immovable property – easy to delay the execution of the
proceedings.

H. PROCEEDS OF EXECUTION SALE TO BE RATEABLY

DISTRIBUTED AMONGST DECREE HOLDERS - Section 73

- S.73: More persons than one have made an application to the court for the
execution of decrees for the payment of money passed against the same
judgement debtor and have not obtained satisfaction thereof – proceeds must be
distributed rateably.

I. DEFAULT IN EXECUTION PROCEEDINGS – Order 21 Rules 105

and 106.

- Read yourself.

J. CAN A SUIT LIE TO CORRECT ANYTHING DONE IN

EXECUTION PROCEEDINGS?

· Section 47 : all questions arising between the parties to the suit

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. – Everyone has to adjudicate their matter in the
execution proceedings and all matters are settled in execution
proceedings. All disputes relating to execution shall be decided
within the execution itself and if there is no objection, it results in
a deemed decree.

Conflict of Laws – Execution of Foreign decree in India

- Why should a foreign decree not be executed in India? Laws are different,
certain aspects of the laws may conflict with Indian laws and policy, Question of
Sovereignty in that they might have to pass decrees against their own citizens,
does the concerned court have jurisdiction over the citizen? Plus, enforcement
of foreign decree may give rise to treaty shopping.

- Foreign decree enforcement stems from the principle of comity – reciprocal

treatment from the courts of other countries. The list of reciprocating territories is
notified by the Central Govt

- S. 44A CPC – Execution of decrees passed by Courts in reciprocating

territory. S. 47 provisions shall apply for to the district court – district court
may refuse the execution of the decree if any of the exceptions from (a) to (f) of
S.13 apply – in these cases, the foreign decree is held to be non-conclusive and
cannot be executed – this is different from Res Judicata slightly but they look at
similar considerations

- This is not applicable to arbitral awards

Interpretation of S.44A:

- Requirement of certificate – is it mandatory? Interpretation of reciprocating

territory and foreign courts

Kevin George Vaz v Cotton Textiles Exports (2006) Bom HC

- The plaintiff was appointed as a director in the defendant company. P was

sent to HK to set up the defendant’s representative office and there is some
controversy regarding the termination dues to be paid to P by D – P went to HK
Labour Court in 2004 and got a decree in his favour, came to India and sought
to get it executed in India – D defended that the notification granting HK
reciprocating territory status also granted the UK the same status and at the
time of obtaining the decree, HK was a part of China – the legal status of HK
had changed and for them to become a reciprocating territory, a new
notification had to be issued. They also argued that the court in HK was a
labour court and was not a superior court, as mentioned in the notification.

- Bombay HC said that reciprocating territory is any territory outside India –

doesn’t matter which sovereignty the territory is under and the Central Govt
was aware of the contingencies in International politics – HK was given the
status and is outside India and thus, counts as a reciprocating territory.

- Whether a labour tribunal’s decree be enforced – the main fundamental

rationale behind enforcing foreign decrees is the doctrine of comity – the logical
extension is that the obligation to execute is only when the court giving the
decree is of equivalent status as the enforcing court or a superior court. For the
purpose of avoiding any controversy, the legislature in 44A has stated that they
would specify the superior court whose decree would be executed – the Labour
Tribunal was not a superior court and thus, this decree was not enforceable.

Moloji Nar Singh Rao v Shankar Saran

 - What is the decree of a foreign court and whether the foreign court was a
competent court for the execution of a decree?

- Facts: Appellant had filed a suit for recovery of money in Gwalior in May
1947 (Gwalior was not a part of India, thus it is a foreign court outside India).
The defendants were residents of UP, didn’t attend court in Gwalior – the
Gwalior Court passed an ex parte decree against the respondents. 26 th Jan
1950, Gwalior became a part of India – after this, in 1951, the appellants came
to the UP court to execute the decree.

- IT was argued that Gwalior Court was no longer a foreign court as of the
date of execution and could not be enforced under S.44A.

- The SC said that the for determining whether the decree is from a foreign
court, the relevant date is the date of the decree and not that of the execution.
Thus, even if Gwalior later became Indian territory, it does not matter as it was
a foreign court at the time of passing the decree.

- The certificate must be mandatorily filed.

- They also argued that the Gwalior court had no jurisdiction over the
judgement debtor, who were residents of UP, and thus could not have passed
the judgement – the SC accepted this argument and gave 6 reasons why the
Gwalior Court didn’t have personal jurisdiction over these judgement debtors –
laid down principles that have become the foundation of foreign decree
enforcement (Points in handout)

- S.13 CPC: When Foreign Judgement not conclusive.

- What is a court of competent jurisdiction?

1. Foreign court should be a superior court

2. Foreign court should have personal jurisdiction over the judgement debtor,
against whom the decree is sought to be enforced

3. Moloji Nar Singh v Shankar Saran

- Ramanathan Chettyar v Kalimuthu Pillay – when does the foreign court is

said to have competent jurisdiction – points in the handout

- Foreign court may have territorial or personal jurisdiction over you – if my

goods/property are in their territory, they have jurisdiction over the assets in
that jurisdiction (Court of the situs is competent) – if it is a person against
whom the suit is filed, in this case the court has jurisdiction if the person lived
within the jurisdiction of the court or if the person had voluntarily submitted to
the jurisdiction of the court or in any manner had contracted to submit to the
jurisdiction of the court. The resident test is very broad, the person may be
 domiciled in that country, can be a temporary resident if they were in the
country when the cause of action arose – there has to be some linkage between
the foreign court and the matter over which the decree is being given.

- Facts: Defendants were carrying out business as a partnership firm and had
some work they did in Singapore through their agent – this agent signed some
promissory notes on behalf of the partnership and after this, the plaintiffs filed
a suit in the Singapore Courts against the agent and the partnership firm for
honouring the promissory notes that the agent had filed. The Singapore Court
gave a decree and the plaintiffs came to India to execute it – D claimed that the
Singapore Court had no jurisdiction over them.

- The Madras court said that Singapore had jurisdiction over the Partnership
– laid down the principles in the handout, which are being followed till date –
they said that the defendants had contracted to submit themselves to the
jurisdiction of the Singapore Court by carrying out business through their agent
and the agent had the authority to sue and be sued on behalf of the
partnership, which was considered evidence against them – Another example is
the exclusive jurisdiction clauses in international contracts.

Crux of the matter: The Court giving a valid and binding decree must be competent
according to the domestic law constituting that court. Foreign courts need to
satisfy 2 conditions – 1. Competency to give the decree by domestic law; 2.
Competency in the international sense, for it be enforced in India – needs
extraterritorial enforcement.

Enforceability is determined by law of enforcing and law of issue judgement – need

for conflict of laws – S.13 CPC

If the object of decree is immoveable property, then only the court of situs has the
jurisdiction and no foreign decree can relate to that property. Territorial jurisdiction
remains within the jurisdiction and does not follow a person who leaves the
territory. However, courts can issue binding decrees over persons who may leave
the territory/jurisdiction of the court. However, the court should have some
jurisdiction over the person – instances highlighted in Ramanathan Chettyar.

Merits

SUITS IN PARTICULAR CASES

· SUITS BY OR AGAINST GOVERNMENT OR PUBLIC OFFICERS
IN THEIR OFFICIAL CAPACITY : sections 79 to 82; Order XXVII

· The authority to be named shall be the Union of India or the

State Government concerned-section 79.

· Mandatory Notice before suit –Section 80.

· Special procedure for suing government or public officers

· Rationale – govt is biggest litigant of our country
· It is mandatory to issue 2 months’ prior notice in writing before
institution of every suit against the Government or a public officer in
respect of any act purporting to be done by such public officer in his
official capacity. “Public Officer” is defined in section 2(17) of the
Code.
· The 2 months shall be calculated from the date of delivery or the
date when it was left at the office of the concerned official.
· The notice should contain the cause of action, the name,
description and place of residence of the Plaintiff, and the relief which
he claims.
· Further, the Plaint shall contain a statement that such a notice
has been delivered or left at the office of the Government official
concerned.
· As to who the concerned official would be – see section 80.
· However, under section 80(2), if urgent or immediate relief is
sought, then suit can be instituted without the 2 months’ notice-
provided the leave of the court is obtained. But the court shall not
grant any relief whether interim or otherwise in such a case, except
after giving notice to the Government or public officer concerned.
· Leave of court has to be obtained if you don’t want to give notice –
if matter is so urgent.
· Failure to comply with section 80 will lead to rejection of the
Plaint.
· If the Government or public officer concerned fails to object to the
suit instituted without complying with section 80, it would amount to
waiver of the requirement. Government can waive if they don’t object
to your non-compliance w s.80.

· The Government pleader in any court may receive processes

against the Government issued by any court- (Order 27 Rule 4). He
need not file Vakalath.
· Special provisions relating to exemption from arrest and personal
appearance of a public officer. Section 81.
· Special provisions relating to execution of a decree against
Government or public officer. Section 82.
· SUITS INVOLVING A SUBSTANTIAL QUESTION OF LAW AS TO
THE INTERPRETATION OF THE CONSTITUTION OR AS TO THE
VALIDITY OF ANY STATUTORY INSTRUMENT : ORDER XXVII-A

· Any suit in which it appears to the Court that a question referred

to in Article 132 read with Article 147 is involved, the Court cannot
proceed unless notice is given to Attorney- General (if the question
concerns the Central Government) or the Advocate – General (if the
question concerns the State Government). (Rule 1).
· If the suit involves a question as to the validity of any statutory
instrument, then the court cannot proceed without notice to the
Government pleader or the authority which issued the instrument.
(Rule 1A)
· Court may also implead the State or Central Government as a
party. (Rule 2).

· SUITS BY OR AGAINST MILITARY OR NAVAL MEN OR AIRMEN

: ORDER 28.
· If they cannot obtain leave they can authorize any person to sue or
defend for them (Rule 1).

· SUITS BY OR AGAINST CORPORATIONS : ORDER 29

· Pleadings may be signed and verified on behalf of the corporation
by the secretary, any director or other principal officer of the
corporation who is able to depose to the facts of the case. (Rule 1).
· Service on a corporation can be effected by serving the secretary,
or any director, or other principal officer of the corporation or by
leaving the summons or sending it by post addressed to the
corporation at the registered office; if there is no registered office, then
at the place where it carries on business (Rule 2).

· SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON

BUSINESS IN NAMES OTHER THAN THEIR OWN – ORDER 30
· Only the firm needs to be described in the cause title – and that
would amount to all the partners being parties to the suit, as per the
law of partnership. Any one of the partners may verify and sign the
pleadings. (Rule 1).
· The firm is bound to declare in court the names of all its partners.
(Rules 1 and 2).
 · After the declaration, even though the suit may continue in the
name of the firm, the decree will contain the names of all the partners
(Rule 2).

· SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND

ADMINISTRATORS – Order 31
· If property is vested in a trustee, executor or administrator, where
the contention is between the person beneficially interested in such
property and a third person, the trustee, executor or administrator
will represent the persons beneficially interested and they need not be
made parties.

· SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND

MIND –Order 32

The next friend of the Plaintiff

· What is the procedure for institution of a suit on behalf of a minor?
Order 32 Rule 1- the suit shall be instituted in his name by the next
friend of the minor. “Minor” defined in the explanation to Order 32
Rule 1.
· What is the effect of instituting a suit without the next friend? Order
32 Rule 2- the Defendant may apply to have the Plaint taken off the
file with costs payable by the pleader concerned.
· The court may order the next friend to give security for the costs of
the Defendant. Rule 2A.
· The eligibility criteria for next friend: any person of sound mind,
attained majority, with no adverse interest and not an opponent party
in the suit; if there is already a guardian declared by competent
authority, then only such a person shall act as next friend unless the
court otherwise directs. Rule 4.
· Safeguards for the minor Plaintiff:
· If the minor has been prejudiced in the suit by virtue of the next
friend having an adverse interest in the subject-matter of the suit,
then decree may bet aside, but not otherwise. Rule 3A. (If decree not
set aside minor Plaintiff can sue next friend for misconduct or gross
negligence.)
· Every application to court shall be made by the next friend. Rule
5. If an order is passed in the suit without the minor being
represented, the order may be discharged, with costs payable by the
pleader.
· The next friend shall not receive money or other movable property
on behalf of the minor in a compromise or under a decree or order in
favour of the minor without the leave of the court. Rule 6. (Court may
require security to protect the property).
· No next friend can enter into any compromise without the express
leave of the court recorded in the proceedings; an application for leave
shall be accompanied by an affidavit of the next friend and by a
certificate of the pleader to the effect that the compromise is for the
benefit of the minor; the court may still examine whether the
compromise is for the minor’s benefit; any compromise entered into
without the leave of the court shall be voidable. Rule 7.
· Next may not retire without first procuring a fit person to be put in
his place and also furnishing security for the costs already incurred.
Rule 8. The application for appointment of a new next friend shall be
supported by an affidavit.
· Court may order next friend to be removed if there is adverse
interest, if he fails to do his duty, ceases to reside in India or for any
other sufficient cause and appoint a new person. Rule 9. On the
retirement, removal or death of the next friend further proceedings
shall remain stayed until a new next friend is appointed.
· Course to be followed upon the minor Plaintiff attaining majority: He
shall elect whether he will proceed with the suit. If he elects to
proceed, he shall apply for an order discharging the next friend and to
proceed in his own name. If he elects to abandon the suit, he shall
apply for an order to dismiss the suit. Rule 12. If he is a co-plaintiff,
he must apply to repudiate the suit and have his name struck off as a
co-plaintiff. The sole-Plaintiff minor upon attaining majority may also
apply that the suit be dismissed on the ground that it was
unreasonable or improper – court may allow the application and court
may order next friend to pay costs. Rule 14. Court has to be satisfied
of unreasonableness. You have to give evidence to prove your case
that person acted improperly.

The guardian of the Defendant

· The court shall appoint a guardian for the suit for a minor
defendant. Rule 3.
· Appointment of guardian for the minor for the suit shall be after
notice to any guardian appointed by a competent authority or the
father or mother or natural guardian. Rule 3.
· The guardian has to swear to an affidavit to the effect that he has
no interest in the matter in controversy adverse to that of the minor
and that he is a fit person to be so appointed. Rule 3.
· The eligibility criteria for guardian : any person of sound mind,
attained majority, with no adverse interest and not an opponent party
in the suit; if there is already a guardian declared by competent
authority, then only such a person shall act as guardian unless the
court otherwise directs; consent in writing is necessary of the
guardian. Rule 4.
· Safeguards for the minor Defendant:
· The guardian appointed shall continue as such in all proceedings
arising out of the suit including proceedings in any Appellate or
Revisional court and in execution proceedings. Rule 3.
· If the minor has been prejudiced in the suit by virtue of the
guardian having an adverse interest in the subject-matter of the suit,
then decree may bet aside, but not otherwise. Rule 3A. (If decree not
set aside minor Defendant can sue next friend for misconduct or
gross negligence.)
· Every application to court shall be made by the guardian. Rule 5.
If an order is passed in the suit without the minor being represented,
the order may be discharged, with costs payable by the pleader.
· If there be no person fit and willing to act as guardian for the
minor Defendant, court may appoint one of its officers to act as
guardian. Rule 4.
· The guardian shall not receive money or other movable property on
behalf of the minor in a compromise or under a decree or order in
favour of the minor without the leave of the court. Rule 6. (Court may
require security to protect the property).
· No guardian can enter into any compromise without the express
leave of the court recorded in the proceedings; an application for leave
shall be accompanied by an affidavit of the guardian and by a
certificate of the pleader to the effect that the compromise is for the
benefit of the minor; the court may still examine whether the
compromise is for the minor’s benefit; any compromise entered into
without the leave of the court shall be voidable. Rule 7.
· Court may permit the guardian to retire or may even remove him if
he fails to do his duty and shall appoint a new guardian in his place.
Rule 11.

Persons of unsound mind

· Rules 1 to 14 (except Rule 2A) shall apply as far as may be, to
persons adjudged, before or during the pendency of the suit, to be of
unsound mind and shall also apply to persons though not so
adjudged to be found by the court to be incapable by reason of any
mental infirmity of protecting their own interest. Rule 15.

· SUITS RELATING TO MATTERS CONCERNING THE FAMILY –

ORDER 32A
· To which proceedings the order applies- Order 32A Rule 1- to
suits or proceedings relating to matters concerning the family,
including suits for matrimonial reliefs, declaration of legitimacy,
 guardianship suits, adoption suits, wills and intestacy and
succession, etc.
· Special rules: proceedings may be in camera(Rule 2); court has a
duty to make efforts for settlement (Rule 3); court may take the
assistance of a welfare expert (Rule 4).

I.SUITS BY INDIGENT PERSONS (Order 33)

· Who is an “indigent”? Order 33 Rule 1. Too poor to pay courtfees
or somebody who has property worth less than Rs.1000.
· Can a suit be filed by an indigent? Yes. Rule 1 is an enabling
provision. Even a poor person is empowered to file the suit. Court will
exempt you from paying the court fee until the suit ends. If you get
the decree, then court fees can be deducted then.
· What happens when the suit ends? If Plaintiff wins, the court fees
payable shall be recoverable by the State Government from any party
ordered by the court to pay the same (Rule 10). If he loses, or
permission is withdrawn, or suit is dismissed for default, the Court
shall order the Plaintiff to pay the Court fees (Rule 11). If the suit has
abated by death of Plaintiff, then court shall order that the court fees
payable shall be recoverable by the state government from the estate
of the deceased. (Rule 11A).

· What is the special procedure to be adopted for the filing of suits

an indigent?
· Application seeking permission to sue as an indigent person to be
made containing the particulars required in regard to plaints in suits;
a schedule of property belonging to the indigent shall be annexed
thereto with an estimate of the value; it shall be signed and verified
like pleadings. Rule 2.
· The inquiry whether the applicant is indigent shall be made in the
first instance by the chief ministerial officer of the court unless the
court otherwise directs. Rule 1A.
· The application shall be presented by the applicant in person to
the Court unless exempted. Rule 3. Only after he is held to be an
indigent, pleader can be appointed.
· The court will then examine the applicant on the application. Rule
4.
· Court may reject the application at the threshold if the application
is not framed and presented in the manner prescribed; where the
court finds he is not an indigent; where he has disposed of property
fraudulently within 2 months from the date of the application; where
the allegations do not show a cause of action; if any other person has
obtained an interest in the subject-matter by virtue of an agreement
entered into by the applicant; if the suit is barred by any law or where
any other person has entered into an agreement with him to finance
the litigation. Rule 5. However, if the court does not reject the
application at the threshold on any of these grounds, it shall fix a day
for receiving the evidence of the Plaintiff and the opposite party and
Government pleader too, after notice to them. Rule 6.
· After evidence, including the examination of witnesses, and the
hearing of arguments, the court shall either allow or refuse to allow
the application. Rule 7.
· Once the application is granted, it shall be deemed the Plaint in
the suit and the suit shall proceed in the ordinary manner except that
the Plaintiff shall not be liable to pay any court fees or service fees.
Rule 8.
· The Court may also assign a pleader to the indigent person if he
does not have one. Rule 9A. but LSC rules don’t mention indigent as
a criteria. So court can give indigent a lawyer under LSC Act, but not
under CPC. Court has lot of powers.
· Can the court withdraw permission to sue as an indigent? Yes. If he
is guilty of improper or vexatious conduct in the course of the suit, if
his means are such that he should not be granted permission to sue
an indigent; or if he has entered into an agreement with regard to the
subject-matter giving any other person an interest therein. Rule 9.
· What happens when the suit ends? If Plaintiff wins, the court fees
payable shall be recoverable by the State Government from any party
ordered by the court to pay the same (Rule 10).If he loses, or
permission is withdrawn, or suit is dismissed for default, the Court
shall order the Plaintiff to pay the Court fees (Rule 11). If the suit has
abated by death of Plaintiff, then court shall order that the court fees
payable shall be recoverable by the state government from the estate
of the deceased. (Rule 11A).
· What are the rights of the State Government regarding Court Fees?
State Government has the right to apply for an order under Rules 10,
11 or 11A for payment of court fees (Rule 12). All matters between
the State Government and the parties shall be deemed to fall under
section 47 (Rule 13). Once an order is made for recovery, the
Collector shall recover as an arrear of land revenue. (Rule 14).
· If an application seeking leave to sue as an indigent is rejected,
fresh application is barred; but applicant can sue in the ordinary
manner subject to payment of the costs of the application failing
which Plaint shall be rejected. Rule 15.
· Court has power to grant time for payment of court fees. Rule
15A. Upon such paymentsuit deemed to be instituted on the date on
which application filed.
· Defence by an indigent by way of set-off or counter-claim – same
procedure. Rule 17.
· Power of Government to provide free legal services to indigent
persons. Rule 18.
 · SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY
(Order 34)
· What are the different types of reliefs that parties to a mortgage
transaction might seek from the civil court?
· What procedures would apply to each type of suit?
· When a party sues, mandatory to pass prelim decree. Then only
final decree.

· INTERPLEADER SUITS (Order 35)

· What is an interpleader suit? Someone wants to relieve themselves
of their liability and give custody of the property to the court. Third
party is the plaintiff, and both the other parties will be defendants in
the case. Then after third party leaves, one of the defendants will
become the next plaintiff. Usually a bank may do this.
· What are the matters to be stated in the Plaint in an Interpleader
suit? (Rule 1)
· What procedure can be adopted in Interpleader suits at the first
hearing to discharge the Plaintiff? Rule 4.

· Friendly suits (Section 90, Order 36)

· What is the procedure for stating a case for the court’s opinion?
Parties should enter into an agreement in writing with the proposed
relief (Rule 1). The parties shall also mention the estimated value of
the property in the agreement. They both want one thing – jointly
agreed to suit and will abide by court’s decision. Estopped from
appealing.
· The agreement shall be filed and registered as a suit (Rule 3) and
shall be heard like a regular suit (Rule 5). Thereupon judgment will
be pronounced and a decree will follow.
· No appeal can be filed against the decree as per Rule 6. But if
fraud or something, then it will be a decree that violates the
agreement or like if somebody impersonates or misrepresents one of
the parties, etc. you can say the agreement is a sham.
· You may not file an appeal but file a suit to set aside the point.
· Similar to order 14 rule 6:

6. Questions of fact or law may by agreement be stated in form of issues.—(1) Where the parties

to a suit are agreed as to the question of fact or of law to be decided between them, they may state the

same in the form of an issue, and enter into an agreement in writing that, upon the finding of the Court
in
the affirmative or the negative or such issue,—

(a) a sum of money specified in the agreement or to be ascertained by the Court, or in such

manner as the Court may direct, shall be paid by one of the parties to the other of them, or that one of

them be declared entitled to some right or subject some liability specified in the agreement;

(b) some property specified in the agreement and in dispute in the suit shall be delivered by one

of the parties to the other of them, or as that other may direct; or

(c) one or more of the parties shall do or abstain from doing some particular act specified in the
· agreement and relating to the matter in dispute.

· Suits relating to public nuisance (Section 91)

· What are the essential ingredients of a suit under section 91 of the
Code?

91. Public nuisances and other wrongful acts affecting the public.—2[(1) In the case of a public

nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and
injunction

or for such other relief as may be appropriate in the circumstances of the case, may be instituted,—

(a) by the Advocate-General, or

(b) with the leave of the Court, by two or more persons, even though no special damage has been

caused to such persons by reason of such public nuisance or other wrongful act.]

(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may

exist independently of its provisions.

· Suits relating to public charities (Section 92)

· What are the essential elements of a suit under section 92 of the
Code?

· Summary suits (Order 37)

· Mostly in suits where there is no valid defence – like if you have a
promissory note. You don’t need a big trial.
· To which classes of suits does the summary procedure under
Order 37 apply? Rule 1(2).
(2) Subject to the provisions of sub-rule (1), the Order applies to the following classes of suits.

namely:—

(a) suits upon bills of exchange, hundies and promissory notes;

(b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money

payable by the defendant, with or without interest, arising,—

(i) on a written contract; or

(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the

nature of a debt other than a penalty; or

(iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand
only.]
· What are the procedural requirements for filing a summary suit?
Rule 2: Plaint to contain specific averment that suit is filed under
Order 37, that no relief has been claimed outside the ambit of Order
37 and an appropriate inscription.
· What are the distinguishing features of summary suits?
· The defendant has no right to defend the suit but must appear and
seek leave to defend the suit. Only if such leave is granted the suit will
be heard in the ordinary manner.
· If there is default on the part of the Defendant in entering
appearance the Plaintiff shall be entitled to a decree forthwith (Rule
2(3)).
· After appearance of the Defendant, Plaintiff shall serve a summons
for judgment in Form No. 4A in Appendix B stating that there is no
defence to the suit. The Defendant may, within 10 days from the
service of such summons, apply for leave to defend the suit by
swearing to an affidavit. Only if the court is satisfied that he has a
substantial defence and that it is not frivolous or vexatious it may grant
leave. (Rule 3(5)).
· Thereupon the court may direct the Defendant to give security for
the suit. Rule 3(6).
· The court however has the discretion to excuse delay in entering
appearance or in applying for leave. (Rule 3(7)).
· If a decree has already been passed then under special
circumstances, the court is empowered to set aside its own decree
and stay execution and grant leave to the Defendant to defend. (Rule
4).

BASIC READING
· Sections 79 to 82, 90, 91, 92 and Orders XXVII to XXXVII of CPC,
1908
ADDITIONAL READING

Takwani Part 2, Chapter 16