SHORT ANSWERS

1) MESNE PROFITS: Mesne Profits include those profits which the

person in wrongful possession of such property actually received or might
with ordinary diligence have received therefrom. Wrongful possession of the
Defendant is the very essence of a claim for Mesne Profits and the very
foundation of the Defendant's liability therefor.

Mesne Profits are claimed against the person in wrongful possession. For
example, a tenant who refuses to evict the house after expiry of lease period.
Here the possession becomes wrongful or illegal. Mesne Profits are always
available on immovable property.

2) FOREIGN JUDGEMENTS: The Civil Procedure Code, 1908 has

defined the meaning of the term Foreign Courts and Foreign Judgments in
detail. According to the Code, “Foreign Courts means a Court situated outside
India and not established or continued by the authority of the Central
Government” and “Foreign Judgments means the judgment of a foreign
Court”

In the Civil Procedure Code, it is mentioned that the Foreign Judgment is

conclusive but there are certain circumstances in which it does not amount to
be conclusive. A foreign judgment is not conclusive in the following six
circumstances which are mentioned in Section 13 of the Code :

Where a court of competent jurisdiction has not pronounced it.

Unless it was granted on the merits of the case.
Where, on the face of the trial, it seems to be based on an erroneous
interpretation of foreign law or on a failure to accept the law of India in
situations where that law is valid.
Where natural justice is contrary to the courts in which the judgment was
received.
Where it was acquired by fraud.
Where it sustains a claim founded on a breach of any law in force in India.
(https://legalreadings.com/foreign-judgments-cpc/)

3) ORDER: An order is defined under Section 2(14) of the CPC as the formal
expression of any decision of a civil court which is not a decree. As the
definition clearly explains, an order is not a decree. However, though an order
is not a decree, a decree is usually an order. It is because a decree may be
preliminary, final, or partially both, but an order is always final in nature. Itl
means that an order must be essentially and procedurally executed. An order
determines the procedural rights of the parties.

Essentials of an order:
From the definition of the term “order” provided under Section 2(14) of the
CPC, we can say that an order has the following essentials:

 Decision of a Civil Court: Only the formal expression of a civil court’s

decision is considered as an order.

 Formal expression: An order must be expressed formally, that is, in

writing.

 It should not be a decree : Under Section 2(14) of the CPC, no order can
be a decree.

Types of orders:
The following are the types of orders under CPC:

 Final order: A final order is one which ultimately establishes and calls
for the execution of the procedural rights of the parties.
  Interlocutory order: An interlocutory order is one which is passed as a
temporary measure to prevent the happening of any harm to any person
or property. Interlocutory orders are also called interim orders.

 Appealable order: As the name suggests, an appealable order is one

against which an appeal can be filed. Though most orders can not be
appealed, a few orders, for instance, the orders provided under Section
104 and Order 43 Rule 1 of the CPC, are appealable orders.

 Non-appealable order: A non-appealable order is one against which no

appeal can be filed. It is issued during the course of the suit and is
provisional in nature.

4) Decree: A decree is a document prepared by the court at the end of a civil

suit after judgment has been passed. It is signed by the judge and bears the
seal of the court. A decree is likely to be prepared within 15 days of the
judgment being issued. In general, the proceedings of a civil suit conclude
when the court renders judgment in a specific matter.

The requirement for a court decision to become a decree is that there must
have been adjudication in a civil suit, and such adjudication must have
determined the rights of parties with regard to all or any of the matters in
controversy in the suit, and such a determination must be of a conclusive
nature.

Types of Decree: According to the definition given in Section 2(2), decrees

are of two types: preliminary decrees and final decrees. However, a decree
may be partly preliminary and partly final.
  Preliminary Decree − a decree is a preliminary decree when further
proceedings have to be taken before the suit can be completely
disposed of.

 Final Decree − a decree is final when such adjudication completely

disposes of the suit.

Essentials of a decree
A bare reading of Section 2(2) of the CPC clarifies that a decree has the
following essentials. It has been further restated in the case of Vidyacharan
Shukla v. Khubchand Baghel (1964).

 Adjudication : The very beginning of Section 2(2) of the CPC states that
a decree is the formal expression of an adjudication. The CPC does not
define the term “adjudication.” However, in general parlance, it means a
judicial decision or a formal judgement on a disputed matter.
In the case of Madan Naik v. Hansubala Devi (1983), the Supreme Court held
that only those decisions that are judicially determined can be recognized as
a decree.

 Suit: Section 2(2) of the CPC provides that a decree must be in a suit. In
other words, a decree arises only when a suit is instituted.

 Determination of the parties’ rights:

In a civil suit, there are two parties- the plaintiff (the person who institutes a
suit) and the defendant (the person against whom a suit is instituted). It is
instituted only when the plaintiff feels that his civil rights are being infringed
upon by the defendant. So, under Section 2(2) of the CPC, a decree is passed
only when there is a civil suit in which the rights of the parties are disputed.

 Conclusive determination: Section 2(2) of the CPC provides that a

 decree should be conclusive in nature. It should conclusively decide the
rights and duties of the parties in such a way that the judge has nothing
further to decide on.

5) Interpleader suit: It’s define in section 88 and order 35 of Cpc. When the
plaintiff on behalf of defendant filed a suit in the court for choosing the actual
owner of the property, then it is called interpleader suit.
In other words an interpleader suit is a legal action initiated by a person or
entity holding property, funds, or assets that are claimed by two or more
conflicting parties. An interpleader suit is filed when the party holding the
property has no interest in it, except for potential charges or costs and seeks
to avoid liability or multiple lawsuits.

The primary dispute in an interpleader suit typically arises among the

defendants who interplead against each other, rather than involving the
plaintiff and the defendant of a case. The fundamental and most significant
objective of an interpleader suit is to resolve conflicting claims among rival
defendants. This situation arises when there is a disputed debt, capital, or
other property solely between the defendants. Essentially, an interpleader suit
is initiated to adjudicate a matter concerning a third party.

Essentials: essential elements of an interpleader suit as follows:

 Similar Property: There must be property involved that is of a similar
nature, which can include a mortgage, a sum of money, or any movable
or immovable property.

 Multiple Claims: Two or more parties must assert competing claims

against each other regarding the said property.

 Disinterested Claimant: The person initiating the suit (plaintiff) claiming

 the property must not have any interest in it, except for potential
charges or expenses. This disinterest is crucial, as the plaintiff must be
in a position to deliver or transfer the property to the rightful claimant.

 Interpleader Action: A person claiming property may commence an

interpleader action against all the claimants involved. The objective is to
determine which claimant is entitled to receive payment or possession
of the property. Additionally, the plaintiff seeks indemnity for
themselves in this process.

(For more: https://lawbhoomi.com/interpleader-suit/)

DIFFERENCES:

1)Difference between Plaint and Written Statement

What is Plaint?
Plaint is a legal document that contains the plaintiff's claim presented before
a civil court of competent jurisdiction. It is a pleading of the plaintiff and the
first step taken for the institution of a suit. Now, what all is comprised within
a plaint? The contents and essentials of the civil suit are laid out in a plaint,
including the plaintiff’s claim. It showcases the grievances of the plaintiff &
the causes of action that can arise out of the suit. It hasn't been defined in the
CPC but it has been laid down under Order VII of the CPC.

Particulars of a Plaint:

a)Name of the court where the suit is initiated.

b)Name, place, & description of the plaintiff's residence.
c)Name, place, & description of the defendant's residence.
d) A statement of unsoundness of mind or minority in case the plaintiff or the
defendant belongs to either of the categories.
e)Facts which led to the cause of action and when it arose.
f)Facts which point out the jurisdiction of the court.
g) The plaintiff's claim for relief.
h)The amount allowed or relinquished by the plaintiff just in case.
i) A statement containing the value of the subject matter of the suit as
admitted by the case.
Written statement
A written Statement is nothing but a reply from the defendant to the plaint led
by the plaintiff. it is the pleading of the defendant where he deals with the
material fact alleged by the plaintiff in his plaint and also elucidates any new
fact favouring him or taking legal objections against the plaintiff's claims in
the plaint. In a written statement defendant can deny the allegations made in
the plaint against him. Apart from this, he can also claim to set off any sums
of money payable by the plaintiff to him as a counter-defence (Order 8 Rule 6).
On the other hand, if the defendant has any claim against the plaintiff
concerning any matter in the issue raised in the plaint, he can separately file a
counter-claim alongside his written statement (Order 8 Rule 6A to 6G)

Who may file a written statement?

A written statement may be filed by the defendant or by his duly authorized
agent. In the case of more than one defendant, the common written
statement led by them must be signed by all of them. However, it will suffice
if it is verified by one of them who is aware of the facts of the case.

Time limit for written statement

A written statement must be filed within thirty days from the service of the
summons on him. The said period can be extended up to ninety days.
Difference between Plaint and Written Statement

Plaint Written statement

1. A legal document stating the A defence statement comprising

cause of action and other all material facts and other details
mandatory particulars supports against the plaint is a “written
the plaintiff's claim. statement”.

2. It is filed by the plaintiff stating It is filed by the defendant as a

its facts and relief to be claimed by reply to the plaintiff's claims.
the plaintiff.

3.It contains name of the court, it contains all materials and other
name, place, and description of the objections that the defendant
plaintiff's & defendant’s residence, might place before the court to
a statement of unsoundness of admit or deny the plaintiff's claim.
mind, cause of action, relief
claimed etc.

4. Plaint is the first stage in a civil A written statement must be filed

suit for institution of suit. within 30 days from the date of
receipt of the copy of the plaint.
(extended to 90 days)

Generally it is divided in parts like- A general denial of grounds

a heading, the cause title, the body, alleged in the plaint is not
the prayer, signature & verification sufficient and denial has to be
of the plaintiff. specific and must be
substantiated with documentary
evidence.

6. Plaint must contain name, Every allegation of fact in the plaint

description and residence of if not denied specifically shall be
defendant. deemed to be admitted.

7. Order VII of CPC deals with Order VIII of CPC deals with
plaint. written statement.

2. Differences between Decree and Order:

Now that we have understood what a decree and an order mean, let us now
discuss the key differences between both terms.

A) Definition:
Firstly, a decree is defined under Section 2(2) of the CPC as the formal
expression of an adjudication which, so far as regards the Court expressing it,
conclusively determines the rights of the parties with regard to all or any of
the matters in controversy in the suit and may be preliminary or final.
On the other hand, an order is defined under Section 2(14) of the CPC as the
formal expression of any decision of a civil court which is not a decree.

B) Finality:
Secondly, a decree may be either preliminary, final, or partly preliminary and
partly final.
However, an order is always final in nature.

C) Appealability:
An appeal can lie only against a decree, not an order. A decree is appealable
except in cases where the law explicitly bans it.
However, most orders are non-appealable, except those specified in Section
104 and Order 43 Rule 1 of CPC.

D) Institution:
A decree is passed in a suit instituted upon presenting a plaint. On the other
hand, an order is given in a suit that may be instituted upon the presentation
of either a plaint, an application, or a petition.

E) Ascertainment of the rights of parties:

As discussed earlier, a decree determines the substantive rights of the parties
to a suit. Contrarily, an order concerns only their procedural rights.

F) The number of decrees/ orders:

Generally, there is only one decree in a suit. However, there may be as many
orders as needed in the suit.
3) Difference Between Set-Off and Counter Claim in
CPC:

Set-off in CPC refers to the statutory defence where a defendant can

counterbalance the plaintiff’s claim by asserting their claim for a related or
ascertained sum. Counterclaim, on the other hand, is a cross-action initiated
by the defendant, allowing them to maintain an independent claim against the
plaintiff, even if it does not arise from the same transaction.

Definition and Meaning of Set-Off [Rule 6 of Order 8]:

Set-off is the mutual cancellation of debts. It is a reciprocal arrangement
where two parties acquit each other of their debts. The Code does not
explicitly provide the meaning and definition of set-off, but it can be inferred
from judicial interpretation.

A claim of set-off arises when one party asserts a claim against another party.
It is a counter-claim that partially offsets the original claim. Set-off occurs
when two individuals owe each other debts and are extinguished by their
reciprocal credits.

In cases where the plaintiff and the defendant have mutual debts, one debt
can be settled against the other. Set-off serves as a defensive plea available
to the defendant. Through adjustment, set-off either eliminates or reduces the
plaintiff’s claim in a lawsuit for monetary recovery.

Essential of set-off:
The essential requirements for a defendant to claim a set-off are as follows:
  The lawsuit must be initiated to recover a specific sum of money.
 The amount of money being claimed must be determinable and clear.
 The money being claimed must be legally recoverable.
 The defendant, or all the defendants, if multiple, must have the right to
recover the money.
 The money must be recoverable from the plaintiff or all the plaintiffs if
multiple.
 The claimed amount must be within the jurisdiction of the court in
which the lawsuit is filed.

Effect of Set-off:

When a defendant asserts a set-off, he assumes the role of a plaintiff

regarding the claimed amount. This results in two simultaneous lawsuits: one
initiated by the plaintiff against the defendant and another by the defendant
against the plaintiff. These lawsuits are heard together and are not assigned
separate suit numbers specifically for the set-off claim.

If the plaintiff fails to appear in court, leading to the dismissal of their suit due
to default, or if the plaintiff voluntarily withdraws their suit, or if the plaintiff
fails to substantiate their claim during the trial resulting in the dismissal of
their suit, it does not impact the defendant’s claim for set-off. In such cases,
if the defendant can substantiate their claim, a decree may be granted in
favour of the defendant.

Counter Claim by Defendant in CPC:

Sub-rule (i) of Rule 6-A permits the defendant to present a counter-claim
against the plaintiff’s claim, encompassing any right or claim that the
defendant may have against the plaintiff. This right or claim can arise before
or after the lawsuit’s filing, but it must be asserted before the time designated
for the delivery of the defendant’s defence has expired.
A counter-claim is an independent and separate claim from the plaintiff’s,
which can be enforced through cross-action. It represents a cause of action
in favour of the defendant against the plaintiff. Consequently, a counter-claim
constitutes a valid cross-action, and the court can render a final judgment on
both the original claim and the counter-claim.

The plaintiff can apply to exclude the counter-claim at any time before the
issues related to the counter-claim are determined. Upon hearing the
application, the court has the authority to issue an appropriate order as
deemed fit.

Effect of Counter-claim
The counter-claim carries significant implications. Even if the plaintiff’s
lawsuit is stayed, discontinued, dismissed, or withdrawn, the counter-claim
will be independently assessed on its merits, and the defendant will have the
right to obtain a decree based on the counter-claim as stated in their written
statement.

Suppose the plaintiff fails to respond to the counter-claim made by the

defendant. In that case, the court may issue an ex parte judgment against the
plaintiff regarding the counter-claim or make any other appropriate order.

In the leading case of Laxmidas v. Nanabhai, the Supreme Court emphasized

that no legal impediment prevents a court from treating a counter-claim as a
plaint in a cross-suit. While the Code of Civil Procedure outlines the
requirements for a plaint, it does not preclude the court from reasonably
interpreting and construing the pleadings.

Difference Between Set-Off and Counter Claim in CPC:

It is crucial to understand and carefully consider the difference between set-
off and counter-claim under CPC, as they may appear similar but have
significant differences:

A) Nature:
Set-off is a statutory defence available to the defendant in response to the
plaintiff’s action, while a counter-claim is essentially a cross-action initiated
by the defendant.

B) Basis:
Set-off must be based on an ascertained sum or arise from the same
transaction as the plaintiff’s claim. On the other hand, a counter-claim does
not necessarily have to arise from the same transaction.

C) Purpose:
Set-off serves as a statutory defence and is pleaded in the written statement.
It acts as a shield for the defendant and cannot be used as an offensive
measure. In contrast, a counter-claim does not provide a defence against the
plaintiff’s claim. Instead, it empowers the defendant to assert their claim
against the plaintiff, similar to an independent action. It serves as a weapon
of offence.

D) Scope:
An equitable set-off typically cannot exceed the plaintiff’s claim and is a
defensive measure. In contrast, a counter-claim can exceed the plaintiff’s
claim as it operates as a cross-action.

According to Rule 6-F of Order 6, if a set-off or counter-claim is established as

a defence against the plaintiff’s claim and a balance is found due to the
defendant, the court may grant judgment to the party entitled to such balance.
However, it is important to note that in both set-off and counter-claim cases,
the defendant’s claims must not exceed the pecuniary limits of the court’s
jurisdiction.

4) Differentiate between Judgement, Decree and

Order:
5)Difference between res judicata and res sub judice

Grounds of Res Res sub judice

difference judicata
Meaning It means a matter is It applies to the
already decided and pending suit. It bars
can not be heard parallel proceedings.
again. Res judicata Res sub judice
prevents a second trial prevents parallel
of the formerly settled proceedings on the
disputes. same matter.
Provisions Section 11 of CPC Section 10 of CPC
Applicability Res judicata is Res sub judice is
applicable to the suits applicable to the suit
and applications and appeals.
Essentials The suit had been There must be two
decided by the suits and one must
competent court.The have already
issue must be the commenced.The
same in subsequent matter in issue is the
and former suits.The same.The suit was
suit must be filed filed in a competent
between the same court.The suit must be
parties.The court must pending in court.The
have jurisdiction.The title of the suit and the
former and parties are the same.
subsequent suits have
the same title.
Aim The end of the Prohibit parallel
litigation proceedings proceedings between
the same parties.
LONG ANSWERS:

RES JUDICATA

Introduction
Recently, a bench of Supreme Court of India has made an observation
regarding the Doctrine of Res Judicata. The Court has held that this doctrine
would not be a ground for rejecting a plaint under Order VII Rule 11(d) of the
Code of Civil Procedure (hereinafter referred to as “CPC”). This has stirred an
interesting debate in the legal fraternity around the adjudication of plea of Res
Judicata, making it a significant topic to study with respect to the CPC.

Doctrine of Res Judicata Meaning

The doctrine of Res Judicata has been embodied in Section 11 of the CPC.
This is a Latin term. It means “a thing/matter adjudged”. It indicates that
where a matter is already judged, no court will have the power to try any fresh
suit or issues which has been already settled in the former suit between the
same parties.
Hence, when a competent body adjudicates upon an issue, involving the same
parties which were party to the previous suit, cannot file another suit, asking
the court to adjudicate upon the issue, which is similar to the issue already
adjudicated upon in the previous suit.

Elucidating upon this legal doctrine, Justice Das Gupta in Satyadhyan Ghosal
v Deorjin Debi[ii] had stated that the importance of the doctrine of res judicata
lies in the need for giving finality to judicial decisions. It means that once a
matter is adjudicated, it mustn’t be adjudged again. Preliminary it will be
applicable as between past litigation and future litigation. In case where a
matter has been decided between parties in a suit or proceeding and the
decision is final, either because they did not resort to an appeal to a higher
Court or because the said appeal was dismissed, or in cases where there is
no scope for an appeal, none of the two parties will be permitted in a future
suit or proceeding between the same parties to canvass the matter all over
again.

The doctrine of res judicata finds a mention in the laws of almost every nation.
The doctrine finds its genesis in the Roman law which acknowledged the
concept of “one suit and one decision was enough for any single dispute.” It
is essential to note that even the Hindus and the Muslim Jurists recognized
the doctrine of res judicata. In ancient Hindu Law, this doctrine was referred
to as Purva Nyaya which meant former judgement.

Associated Legal Maxims to Doctrine of Res Judicata

It would be right to say that the Doctrine of Res Judicata primarily takes
inspiration from three legal maxims. Nemo Debet Lis Vexari Pro Eadem
Causa is the legal maxim that can be associated with this doctrine. According
to this maxim, a person must not be vexed annoyed, harassed or vexed twice
for the same cause. The second legal maxim is Interest Republicae Ut Sin
Finis Litium, meaning, it is in the interest of the state to put a stop to litigation.
Lastly, Re judicata pro veritate occipital, meaning, the decision of the court of
law must be adjudged as true.
In cases where the former judgement is not sound or erroneous, this doctrine
can work against the injured party to the former suit. Nonetheless, we must
keep in mind that the Doctrine of Res Judicata tries to secure public interest
and upholds the principle of public policy. Hence, leaving very little scope for
absolute justice. Where one of the parties feels like the judgement is not
sound, they have the option to appeal the respective court of appeal.
Section 11 of the CPC:
Section 11 of the CPC propounds upon the doctrine of Res Judicata. It reads
as follows:
“No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former
suit between the same parties, or between parties under whom they or any of
them claim, litigating under the same title, in a Court competent to try such
subsequent suit or the suit in which such issue has been subsequently raised,
and has been heard and finally decided by such Court”.
Explanation 1 of Section 11 clears the air around the meaning of ‘former suit’
as used in Section 11. Here, ‘former suits’ refer to those suits which have
been decided before the suit in question irrespective of whether it was
instituted prior thereto.
Explanation 2 talks about the determination of the competence of a court.
Explanation 3, again, deals with the matter of former suit and states that the
former suit must be alleged by one party and denied by the other.
Explanation 4 talks about the subject matter and states that where any
matter has already been made a ground in the former suit, such a matter can
be said to be a matter in the former suit.
Explanation 5 states that relief claimed and not granted is deemed to have
been rejected/refused.
Explanation 6 states that where a person initiates a proceeding pertaining to
a public right, all such persons who have interest in the said right would be
deemed to claim under that person who initiated the litigation.
Explanation 7 elucidates upon the applicability of the doctrine of Res
Judicata on the execution of a decree.
Explanation 8 states that where a former court becomes incompetent to try a
subsequent suit due to incompetency to try it due to limitation pertaining to
its jurisdiction, the doctrine of Res judicata will be applied.
Essential Conditions of Section 11 of CPC
There are certain conditions for the applicability of the Doctrine of Res
Judicata under Section 11 of the CPC. The following conditions must be met
with to avail the plea of Res Judicata.
Both the suits must be between the same parties or their representative. If
the parties to both the suits are different there would lie no ground for the
application of the doctrine of Res Judicata. Both, the parties as well as their
privies will be bound by Res Judicata.
They should prosecute under the same title. This refers to the capacity of the
party.
The matter directly and substantially in issue in both the suits must be related
or, the issue directly and substantially in issue in the ensuing suit should
likewise be directly and substantially in issue in the previous suit.
For the application of doctrine of Res Judicata, it is essential to ensure that
the matter in the former or previous suit was heard and decided. Therefore,
where the suit was dismissed because the plaintiff failed to appear or on
technical defect, or on the ground for misjoinder of parties, etc., the doctrine
of res judicata would not be applicable in the subsequent suit.
The court that decided the previous suit has the competency to decide the
subsequent suit. This doctrine will be devoid of any significant bearing where
the order was passed without jurisdiction. The underlying principle for this
condition is that the court having limited jurisdiction cannot bind a court to
have larger jurisdiction by its decision.

Case Laws on Doctrine of Res Judicata

The following are a few case laws related to the Doctrine of Res Judicata:
Daryao v. State of UP, AIR 1961 SC 1457
In this case, the Apex Court placed this doctrine on a higher footing,
considering and treating the binding character of the judgments pronounced
by competent courts as an essential part of the rule of law.
Amalgamated Coalfields Ltd. & Anr. v. Janapada Sabha Chhindwara & Ors.,
AIR 1964 SC 1013
The court held that the general principle of doctrine of res judicata applies to
writ petitions filed under Article 32 and 226. Further, the court ensured that
the application of this doctrine to the petitions filed under Article 32, does not
in any way impair the fundamental rights guaranteed to the citizens. It only
seeks to regulate the manner in which the said rights could be successfully
asserted and vindicated in courts of law.

State of Karnataka v. All India Manufacturers Organisation & Ors., AIR 2006
SC 1846
In this case, it was held that the doctrine of Res Judicata would be applicable
to a Public Interest Litigation, provided the earlier case was a genuine and a
bona fide litigation as the judgement in the earlier case would be a judgement
in rem.

(Exceptions to the Doctrine of Res Judicata:

There are certain exceptions to the doctrine of res judicata and these are as
follows:
If the decree has been obtained by practicing misrepresentation or fraud on
the court, or where the proceedings had been taken all together under a
special statute.
Not every finding in the earlier judgment would operate as a res judicata. Only
an issue, which is ‘directly’ and ‘substantially’ decided in the earlier suit, would
operate as res judicata.
Where the decision has not been given on merit, it would not operate, in case,
the appeal of the judgement and decree of the court below is pending in the
appellate court, as then the judgement of the court below cannot be held to
be final, and the findings recorded therein would not operate as res judicata.
When the judgment is non-speaking.
Where the matter has not been decided on merit earlier, the doctrine of res
judicata is not applicable.
The doctrine of Res Judicata does not apply to criminal cases, where the
entire proceedings have been initiated illegally and without jurisdiction.
When a matter involves a pure question of law, the doctrine of res judicata
will not apply.
In cases of Dismissal in limine or dismissal on default, the doctrine of res
judicata does not apply.)

Difference Between Res Sub Judice And Res Judicata

The sections dealing with Res Sub Judice and Res Judicata are section 10
and section 11 respectively. The former is applicable to the proceedings
pending in the court, while the latter is applicable to matters already
adjudicated upon. The doctrine of Res Sub Judice bars two parallel suits
between the same parties, i.e., it bars the trial of a suit in which the matter is
pending for decision in the previous suit. One the other hand Doctrine of Res
Judicata stops the second trial of the same dispute between the same
parties.

Constructive Res Judicata

Constructive Res Judicata is referred to as an artificial form of res judicata. It
can be said that it is reflected in Explanation IV of Section 11 of the Civil
Procedure Code. If a party fails to raise a plea in the previous suit in spite of
having an opportunity to do the same, then they are barred from raising the
same plea in the subsequent suit, as they may still be bound by this doctrine.

Conclusion
While discussing the doctrine of Res Judicata, it is essential to realize that the
main objective behind this doctrine is to prevent multiplicity of suits, to
ensure the court’s resources are not being misused or wasted, to prevent
injustice by ensuring that there is no unnecessary recovery of damages twice
for the same matter. Perpetual litigation would do no good to society at large.
The Doctrine of Res Judicata must be applied mindfully. We must realize that
this doctrine has a very wide scope and the application of which is constantly
changing and evolving.

2) TEMPORARY INJUNCTION: EXPLAIN IN DETAIL:

Introduction

An injunction is a restraining writ issued by a court at the request of a party

plaintiff, directed to a party defendant in action, or a party made a defendant
for that purpose, barring the other from doing something, or allowing his
servants or agents to do something, that he is threatening or trying to do, or
restraining him from continuing to do something, that is unjust and unfair,
harmful to the Plaintiff, and unable to be effectively redressed.

In simple words an injunction is a court-issued remedy that prevents the

commission of a threat of wrongdoing or the continuance of a wrongdoing
that has already occurred commenced.

Types of Injunctions:

A) Preliminary Injunction
B) Preventive Injunction
C) Mandatory Injunction
D) Temporary restraining order
E) Permanent Injunction

Injunctions are documented by several Relief Acts (Specific Relief Act, 1963)
and are carried out following the Civil Procedure Code, 1908.

For example – if the Plaintiff is suing a name and a particular label for his
product of, let’s say, pencils to sell them in the market and found that
Defendant has been using the same label and copyrighted name to sell his
products of pencils and stationery then the Plaintiff can file suit demanding
Injunction based on trademark infringement or through intellectual property
rights.

Temporary Injunction (based on time)

The Court may impose a temporary restraining order to prevent the Defendant
from causing any damage to the Plaintiff’s property or threatening to sell it.
This is an interim relief provided to ensure that Plaintiff’s rights are not
violated. The Court can issue this Injunction at any point throughout the trial,
even before the case is resolved.

Section 94 – This section tries to prevent the defeat of justice. Sub clause (c)
refers to awarding temporary injunctions and, in the event of non-compliance,
even condemning the individual to civil prison or ordering the attachment and
sale of his property.

Section 95 – If the Plaintiff’s claim is dismissed, the Court may award the
Defendant to compensate if he requests it.

Order 39 of CPC –

1. Order 39, Rule 1 lists the circumstances in which the Court may grant a
temporary injunction as a statutory relief, and they include:-

If the property in question is in danger of being squandered, damaged,

alienated, or unlawfully sold by one of the parties to the litigation, the Court
may order that it be maintained.
If Plaintiff is threatened with eviction or property damage by Defendant during
the property dispute.
Assume Defendant has broken the law or breached a contract. The ground
described before is also emphasized in Order 39, Rule 2 of the CPC, 1908.
Finally, if the Court believes it would be in the best interests of justice, it may
issue an injunction.

Requirements for Temporary Injunctions:

1. Prima Facie Case:

The basis for a lawsuit is a contested subject. The circumstanczes in those
inquiries suggest that the Plaintiff or Defendant may be entitled to
compensation. A prima facie case does not mean that the Plaintiff or
Defendant has constructed an impregnable case that will almost certainly win
in court. Simply put, the case they build for their Injunction must be strong
enough to avoid being rejected immediately.

2. Irreparable Loss:
It would be a grave injustice if a person experienced irreparable harm as a
result of the lawsuit before his legal entitlement was determined in court.
Situations like frustration over the loss of a sentimental item, on the other
hand, will not be regarded irreparable damage. If the Court does not have a
fair or reasonable address, things that can be repaired by nature will be
regarded irreparable damage. When harm is persistent and recurring, or when
it can only be repaired through a series of litigation, it is usually irreversible.
The difficulty of determining the level of injury and inflicted damage is
frequently referred to as “irreparable damage.” However, just because it’s
difficult to prove injury doesn’t mean it’s irreversible.

3. Balance of convenience:
The Court must weigh the parties’ cases and determine whether the
comparative harm or annoyance that would ensue if the Injunction was not
granted is higher than the harm or inconvenience that would result from
granting it.
These requirements were laid under the Dalpat Kumar and Another v. Pralhad
Singh And Others (1991[2]).

(For more https://lawcorner.in/temporary-injunction-under-

cpc/#:~:text=Temporary%20Injunction%20(based%20on%20time),-
The%20Court%20may&text=Section%2094%20%E2%80%93%20This%20secti
on%20tries,and%20sale%20of%20his%20property.)

3) Appeal:

Meaning of Appeal in CPC:

The concept of ‘appeal’ is not explicitly defined in the CPC (Code of Civil
Procedure). According to the Black’s Law Dictionary, ‘appeal’ is the formal
complaint made to a higher court to rectify an injustice or error committed by
a lower court.

Essentials of Appeals:

The three essential elements of appealing cases can be summarised as

follows:

 A decree issued by a judicial or administrative authority.

 An aggrieved individual who may not have been a party to the original
proceeding.
 A reviewing body was established specifically to handle such appeals in
CPC.

Who Can File an Appeal?

The right to appeal in CPC is available to specific categories of individuals:

  Any party to the original proceeding or their legal representatives.
 Any person claiming under such a party or a transferee of interests
from such a party.
 Any person appointed by the Court as the legal guardian of a minor.
 Any other aggrieved person, with the Court’s permission.

The general rule is that only a party to a suit who has been adversely affected
by the decree or their representatives can file an appeal in CPC. However, with
the Court’s leave, a person not originally involved in the case may also appeal
if they are bound by the decree, aggrieved by it, or maliciously influenced by it.

Who Cannot File an Appeal in CPC?

To summarise the situations in which parties may not have the right to appeal:

 A party that has explicitly and unambiguously given up its right to

appeal as per an arrangement or agreement.
 A party that has received benefits from a decree and has implicitly
accepted its terms.
 A consent decree binds parties, as they have willingly agreed to its
terms.
 Parties whose evidence or compromises were not presented or
expressed during the dispute.

Condonation of Delay:

The Amendment Act of 1976 introduced Rule 3A, which states that if an
appeal is filed after the prescribed limitation period expires, the appellant
must submit a statement explaining the reasonable grounds for the delay in
filing the appeal. The purpose of this rule is twofold: firstly, to inform the
appellant that the delayed appeal in CPC may not be accepted until the Court
considers the application justifying the delay, and secondly, to alert the
respondent that the appellant may not be immediately prepared to argue on
the merits of the case, as the Court needs to address the application for
condonation of the delay as a preliminary matter. However, it is essential to
note that this clause is considered a directory and not mandatory.

Stay of Proceedings:

Rules 5 to 8 deal with the provision for a stay of execution of a decree or

order during the appeal process. Rule 5 allows the appellate Court to order a
stay of proceedings under the decree or the enforcement of the decree once
an appeal under CPC has been filed.

The purpose of Rule 5 is to protect the interests of both the party who
obtained the decree and the party against whom the decree was passed. For
the Court to grant a stay, the following conditions must be met:

A. The application for a stay must be filed without any undue delay.
B. The party seeking the stay must demonstrate that they would suffer
significant harm if the order is not granted.
C. The applicant must provide adequate security to ensure the due
performance of the decree or order in case the appeal is unsuccessful.

Doctrine of Merger :

The concept of the merger theory is rooted in the principle that there should
not be multiple operative decrees governing the same subject matter
simultaneously. As a result, when an appeal is adjudicated by an appellate
court, the decree of the trial court no longer remains effective under the
provisions of the statute.

Instead, it is replaced by the decree passed by the appellate Court, and the
decree of the trial court effectively combines or “merges” with the decree of
the appellate Court.

Powers of Appellate Court under CPC

The appellate Court is granted several powers under Section 107 and the
corresponding rules of Order 41 of the Code of Civil Procedure:

Power to decide a case finally (Section 107(l)(a) and Rule 24):

When the evidence on record is sufficient, the appellate Court can make a
final decision on the case, even if the judgment of the lower Court was based
on different grounds.

Power of remand (Section 107(1)(b) and Rule 23)

If the trial court decides the case on a preliminary point without considering
other issues, and the appellate Court reverses that decree, it can remand the
case back to the trial court to decide the remaining issues and reach a
decision.

Power to frame issues and refer them for trial (Section 107(1)(c), Rules 25
and 26)
If the trial court fails to frame an issue or overlooks a crucial factual question,
the appellate Court can frame those issues and refer them for trial to the
lower Court. The lower Court is directed to take the additional evidence
required to properly determine the case.

Power to take additional evidence (Section 107(1)(d), Rules 27-29)

Generally, the appellate Court decides the appeal in CPC based on the
evidence presented during the original trial. However, the Court may admit
additional evidence if the party requesting it demonstrates that this evidence
was not available during the initial trial despite their best efforts. The other
party must have an opportunity to challenge the additional evidence, which
should be relevant to the issues under consideration.

First Appeal in CPC:

According to Section 96 of the CPC, a regular first appeal can be filed against
a decree passed by any Court exercising original jurisdiction, except when
expressly prohibited. Analysing Sections 2(2), 2(9), and 96 of the CPC
together, it becomes evident that a first appeal may or may not be
maintainable in certain adjudications.

Second Appeal in Civil Procedure Code:

Section 100 of the CPC provides for a second appeal under this code. It
stipulates that an appeal may be filed to the High Court from a decree passed
in the first appeal by a subordinate Court, except where contrary provisions
exist. However, the jurisdiction exercised under this section is limited to
substantial questions of law framed either at the time of admission of the
appeal or subsequently.
5) Place of Suing in CPC:

Place of suing in CPC refers to where a lawsuit or legal action should be

initiated or filed. It specifies the jurisdiction and venue where the case should
be brought before a court.
The provisions regarding the place of suing are outlined in the Code of Civil
Procedure to ensure that the appropriate Court with the necessary jurisdiction
is chosen for the efficient and fair resolution of the dispute.

Provisions for Place of Suing under CPC:

The place of suing in CPC is discussed under Sections 15 to 20. Section 15

pertains explicitly to the pecuniary jurisdiction of the Court. Sections 16 to 18
address suits concerning immovable property, Section 19 covers suits related
to compensation for wrongs and movable property, and Section 20 deals with
suits concerning other matters.
Section 15: Place of Suing Based on Pecuniary Basis:
Section 15 of the Code of Civil Procedure states that every lawsuit should be
initiated in the Court of the lowest grade with the competence to handle it.
This requirement aims to prevent overburdening of higher courts.

Section 15 serves two primary purposes:

 Reducing the workload of higher courts.

 Providing convenience to the parties and witnesses involved in such
lawsuits.

The jurisdiction of a court under Section 15 is determined based on the

valuation stated by the plaintiff in the lawsuit, rather than the final amount for
which the Court will pass the decree.
Mazhar Husain And Anr. v. Nidhi Lal (1885)

In the case of Mazhar Husain and Anr. v. Nidhi Lal (1885), heard by the
Allahabad High Court before India’s independence, elucidates the objectives
of Section 15 of the Code of Civil Procedure, 1908. These objectives, as
observed in the case, are as follows:

 Avoiding overburdening higher-grade courts with an excessive number

of suits.
 Providing convenience to the parties and witnesses involved in such
suits.

Section 16 to 20: Place of Suing Based on Territorial Aspects

When examining the territorial jurisdiction of a court, it is important to
consider the following four types of suits:

Suits related to immovable property:

These are governed by Sections 16-18 of the Code of Civil Procedure.
These sections outline the rules and guidelines for filing suits
concerning disputes over immovable property.

Suits related to movable property:

Section 19 of the Code of Civil Procedure pertains to suits involving
movable property. It lays down the provisions for filing suits related to
disputes over movable assets.

Suits related to compensation for wrongs:

Section 19 of the Code of Civil Procedure also covers suits concerning
compensation for wrongs. This section provides guidelines for filing
suits seeking compensation for injuries or damages caused by wrongful
acts.
 Other suits:
Section 20 of the Code of Civil Procedure deals with suits that fall
outside the specific categories mentioned above. It encompasses suits
that do not fit into the scope of immovable property, movable property,
or compensation for wrongs.

Place of Suing for Matters Involving Immovable Property (Section 16-

18):

Section 16
Section 16 of the Code of Civil Procedure, 1908 states that suits related
to specific types of claims concerning immovable property should be
instituted in the Court within the local jurisdiction where the property is
situated. These types of suits include:

Recovery of immovable property with or without rent or profits,

Partition of immovable property,
Foreclosure, sale, or redemption in the case of a mortgage or charge on
immovable property,
Determination of any other right or interest in immovable property,
Compensation for wrong to immovable proper

Subject-Matter Jurisdiction:

Subject-matter jurisdiction refers to the authority of a court to hear and

decide cases based on the nature of the issues involved. Different courts are
granted jurisdiction over specific types of lawsuits to handle diverse legal
matters. For instance, matters related to insolvency, probate, divorce, and
similar issues cannot be adjudicated by a court of civil judges of the junior
division. If a court lacks subject-matter jurisdiction over a particular case, any
decree or judgment issued by that Court is considered null and void.
Section 16 of the Code of Civil Procedure, 1908 allows invoking jurisdiction in
five specific types of suits, which are as follows:

Partition of immovable property

Recovery of immovable property
Torts to immovable property
Determination of any right or interest in the property
Sale, foreclosure, or redemption regarding a mortgage or charge on
immovable property

In the case of Harshad Chiman Lal Modi v. DLF Universal Ltd. (2005), the
Supreme Court held that an action could be filed under Section 16 of the CPC,
1908, in the jurisdiction where the immovable property is located, regardless
of factors such as the location of the cause of action or the residence of the
parties. In that particular case, since the immovable property was in Gurgaon
(Haryana), the Delhi High Court lacked jurisdiction to hear the case.

Section 17 of the CPC

Section 17 of Code of Civil Procedure 1908 states, “Suits for immovable

property situate within the jurisdiction of different Courts”.

In cases where the immovable property is situated within the local jurisdiction
of different courts if a lawsuit is filed seeking compensation or relief for
wrongs caused to the immovable property, it can be brought before any court
within the jurisdiction where a portion of the property is located. However, it is
important to note that the Court hearing the case will have cognizance over
the entire claim, considering the significance of the subject matter of the suit.

Place of Suing in CPC for Matters Involving Immovable Property (Section 19)
Section 19 of Code of Civil Procedure 1908 deals with “Suits for
compensation for wrongs to person or movables”.

In cases where a suit involves compensation for a wrong done to a person or

movable property, if the wrong occurred within the jurisdiction of one Court
and the defendant resides, carries on business, or personally works for gain
within the jurisdiction of another court, the plaintiff has the option to file the
suit in either of the mentioned courts.

For instance, if Raj, who resides in Kolkata, commits a wrongful act against
Suraj, who resides in Gujarat, Suraj can choose to file the lawsuit in either the
Court in Kolkata or the Court in Gujarat, but not in a third unrelated court like
Delhi. This provision allows the plaintiff to select the Court based on their
convenience or strategic considerations when the wrong and the defendant’s
location fall under different court jurisdictions.