CODE OF CIVIL

PROCEDURE
Notes for Competitive Exams

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 Civil Procedure Code, 1908.
Laws can be divided into two groups-substantive and adjective or procedural law. While the former
determines rights and liabilities of the parties, the latter prescribes the practice, procedure and
machinery for the enforcement of these rights and liabilities. The Indian Contract Act, The Indian
Penal Code, The Industrial Disputes Act are instances of substantive law; The Indian Evidence Act,
Criminal Procedure Code, The Limitation Act are instances of procedural law.
Procedural law is an adjunct or an accessory to substantive law. The two branches are
complementary to each other. The rules of procedure are intended to be a handmaid to the
administration of justice and they must, therefore, be construed liberally and in such manner as to
render the enforcement of substantive rights effective; so far as possible, no proceeding in a court
of law should be allowed to be defeated on mere technicalities. A "hyper-technical view" should be
avoided by the court.
It is procedural law which puts life into substantive law by providing a remedy and implements the
well-known maxim ubi jus ibi remedium (where there is a right, there is a remedy') (Ghanshyam
Dass v Dominion of India AIR 1984 SC 1004). A party cannot be refused relief merely because of
some mistake, negligence, inadvertence or even infraction of the rules of procedure (Jai Jai Ram
Manohar v National Building Material Supply AIR 1969 SC 1267).
A procedural law is always in aid of justice, not in contradiction or to defeat the very object which is
sought to be achieved. A procedural law is always subservient to the substantive law. Nothing can
be given by a procedural law what is not sought to be given by a substantive law and nothing can be
taken away by the procedural law what is given by the Substantive law (Saiyad Mohd. Bakar v
Abdulhabib Hasan AIR 1998 SC 1624). "Processual law is not to be a tyrant but a servant, not an
obstruction but an aid to justice" (State of Punjab v Shamlal Murari AIR 1976 SC 1177)
The Code of Civil Procedure is an adjective law. It neither creates nor takes away any right; it is
intended to regulate the procedure to be followed by Civil Courts. The Code is designed to facilitate
justice and further its ends and is not a penal enactment for punishments and penalties, not a thing
designed to trip up people (Sangram Singh v Election Tribunal AIR 1955 SC 425).
Civil Procedure Code (Act No. 5 of 1908) has been passed on 21st March, 1908. Is has come into
force on 1st January 1909. Earlier this act was applicable to whole India
Except Jammu & Kashmir (After entry No. 8 of Jammu & Kashmir Reorganization Act, 2019 this act
is applicable in Jammu & Kashmir as well.)
The state of Nagaland and tribal areas. (Tribal area includes the territory which, immediately
before the 21st 1972, were included in the tribal areas of Assam as referred to in paragraph 20 of
the 6th schedule to the Indian Constitution)
The act does not exempt foreigners from its operations. The object of this act is to consolidate and
amend the laws relating to the procedure of the court of civil judicature. This code is majorly
bifurcated into two parts.
Body of the code or substantive parts (158 Sections) - This part lays down the general principles
and create jurisdictions. This part cannot be amended by the courts of judicature except by the
legislature.
Rules or Procedural parts (51 Orders in Schedule 1) - This part lays down the provisions relating to
procedure and indicate the mode in which the jurisdiction created by substantive part can be
exercised. This part can be amended by the high courts. Here it is important to note that sec. 151 of
the code defines the inherent powers of the court. Inherent powers mean the powers which are not
defined in the code but can be applied by the court to make such orders as may be necessary for the
ends of justice or to prevent abuse of the process of the court.

Important Definition
Sec. 2 of the act is the definition clause which provides the definition of certain terms subject to the
condition unless there is any contrary meaning appears.
Sec. 2 (1) - Code

It is an inclusive definition which includes rules.

Sec. 2 (2) - Decree
It is one of the most important definition under this code. The Code of Civil Procedure, 1908 defines
Decree as ‘A formal expression which determines the interest of both the parties in a conclusive
manner, with regards to any disputed matter in a civil suit. Significantly, a decree is a formal
expression of adjudication by which the court determines the rights of parties regarding the matter
in a controversy or a dispute. A set-off or a counterclaim can be obtained on the decree.
-
Rejection of a
A decree shall be deemed to include
plaint

Determination of any question under Section 144 of the Act.

The decree might not include
Any adjudication from which an appeal lies as an appeal from an order
Any order of dismissal for default.

Essential Elements of a Decree

In order to determine that a decision of a court is a decree or not, the following elements has to be
adjudged -
There must be a formal expression of adjudication. Such adjudication must be given in a law suit.
It must have determined all or any of the rights of the parties as relating to matter of controversy in
the suit.
Such determination must be conclusive in nature.
Adjudication is a judicial determination of the dispute. Thus, a decision on an administrative order
or an order dismissing a suit for default of appearance of parties or return of case for presentation
in the proper court or to the court of competent jurisdiction is not a decree since all of these
matters are not judicially dealing with the case. In the cases of rejection of a plaint under order VII
Rule 11 of the code it is considered as deemed decree since rejection of a plaint takes place due to
not disclosing the cause of action, or the improper valuation of the property, or the suit is barred by
any law. In all these cases the court has to apply its judicious mind so they are considered as
matters of judicial dealing of the case, thus all of these matters fall within the ambit of judicial
determination of dispute so it an adjudication. Sec. 144 of the act deals with application for
restitution I.e. Varied or reversal of order or decree of the inferior court by the appellate court, here
also the appellate court has to apply its judicious mind so it is also considered as an adjudication
thus any order under sec. 144 is also a deemed decree.
Decree is generally proposed after 15 days of passing of judgement (O XX R 6A). Decree is
challenged in the higher courts not the judgement.

Contents of a decree
The decree shall follow the judgment, agree with it and bear -
The number of the suit
The names and description of the parties and their registered addresses
The particulars of their claims
The relief granted
The amount of costs incurred in the suit, and by whom or out of what property and in what
portions are they paid
The date on which the judgment was pronounced
The signature of the judge

As per the definition of decree as per sec. 2 (2) of CPC, Decree can be of three types –
Preliminary Decree – It is passed by the court when the final judgement is still pending. Such decree
determines the rights of the parties with regards to some or one matter of controversy but does not
completely dispose of the suit. Preliminary decree resolves any particular controversy or
determination of right of the party/parties to the suit completely. Usually there is one preliminary
decree but there can be more than one preliminary decree in exceptional cases where the facts or
circumstance come into existence after passing of one preliminary decree.
E.g. - There was a dispute regarding ownership of a property between A & B. B has proved in the
court of law that he was paying the electricity rent of the property from past 13 years from the date
of filing the suit. Here, the court derived the conclusion that the land was in the possession of B at
the time of filing the suit, so the court can pass a preliminary decree that the land was in B’s
possession at the time of filing the suit.

Final Decree – A final decree is one which completely dispose of the matter and settle down the
issue between the parties to the suit. Ordinarily there is one final decree in a suit but in the cases
where two or more causes have been joined together in a suit, there can be more than one final
decree as well. A final decree does not include any dismissal of suit for default and any appeal that
lies from an order. Here it is important to note that any appeal from an order is not a decree since it
does not include adjudication of the court of law. Appeals from orders like returning the plaint to be
presented to the proper court or an order rejecting an application for an order to set aside ex parte
decree etc. Are appealable orders not decrees.

Partly Preliminary and Partly final Decree – Such a composite decree is passed in certain cases
where a suit includes various controversies such as possession of the property, ownership of the
property and mesne profits in a single suit. The court orders the possession of the property to the
plaintiff and directs inquiry as to ownership and mesne profits. Here the first part of the decree I.e.,
possession of the property is final decree while the second part I.e., ownership and mesne profit is
preliminary since more inquiry has to take place before deciding such matters.

Difference between Preliminary Decree and Final Decree

Preliminary decree decides the rights and duties of the parties but leave the case for further inquiry
and once the inquiry is completed by the court, it comes up with final decree. If a preliminary
decree has passed and the party against whom such preliminary decree has passed does not
Challange it, then it cannot be challenged at the later stage either in the same court or in the higher
court while challenging the final decree. There are certain cases in which preliminary decree can be
issued (As held in the case of Shankar v. Chandrakant Case, 1995) -
Suit relating to possession. (Order XX R 12)
Administrative Suits. (Order XX R 13)
Dissolution of Partnership (Sec. 40)
Sale of mortgaged property (Order XXXIV R 2)
Foreclosure in the cases of mortgaged property
Redemption of mortgage property
Suit of pre – emption.
Partnership account between principal and agent.
Partition and separate possession.

In the case of Bhagwan Singh v. Kallu Maula Shah, the court stated that it is not an exhaustive list to
pass a preliminary decree.
Things amounts to Decree -
Dismissal of a time barred appeal.
Order of abatement of suit.
Dismissal of suit or appeal for less evidence.
Dismissal of a suit in which appeal is not maintainable.
Dismissal of suit in which the party does not have any right to sue.
Modification of scheme under sec. 92 of the act.
Rejection of plaint for non-payment of court fees.
Granting or refusing to grant cost of suit.
Order to reject one out of several relief in a decree.
Order that no cause of action lies in a suit.

Things doesn’t amount to Decree -

Dismissal of appeal for default.
Appointment of commissioner to take account.
Order of remand.
Return of plaint for presentation to proper court.
Dismissal of suit under Order XXIII Rule 1 I.e., withdrawal of suit or abandonment of claim.
Order stating an application is maintainable as a suit.
Order to directing the assessment of main profit.
Order refusing to set aside a sale.

Sec. 2 (3) - Decree Holder

It means any person in whose favour a decree has been passed or an order capable of execution has
been made.It is not necessary that a decree holder should always a plaintiff. A decree for the
specific performance can be executed against both plaintiff and defendant. Even if a person who is
not a party to the suit and a decree has been passed in his favour will be a decree holder.
Sec. 2 (9) - Judgment
Judgement means a statement given by a judge [A presiding officer of the court as per sec. 2 (8) of
the act] of the grounds of a judgement or decree.
Essential elements of a judgement -
Every judgment other than the judgement made by the court of small cause shall contain -
A concise statement of case.
The points for determination.
The decision thereon.
The reasons for such decision.
While the judgment of small cause court shall contain only last 2 points.
An order passed by a central administrative tribunal cannot be considered as judgement, even if it
follows up the conditions stated above, since it has not given by a presiding officer of the court.
(State of Tamil Naidu v. Thangavel AIR 1997 SC 2283).

Sec. 2 (11) - Legal Representative

Legal representative means a person who in law represents the estate of a deceased person and
includes any person who intermeddles with The estate of the deceased and where the party sues or
is prosecuted in a representative manner by the person to whom the estate is transferred upon the
death of the party so suing or sued. This is a broad and inclusive definition. This definition is not
limited to legal heirs, but rather defines a person who may or may not be the heir, who is eligible to
inherit the deceased’s estate but who must represent the deceased’s estate. This includes all heirs
and individuals holding the assets either without ownership, even as executors even administrators
of the deceased’s estate. All such persons are covered by the expression “legal representative.” If
there are many heirs, then those in good faith are also entitled to represent the deceased’s estate,
without fraud or collusion.
In the case of Andhra Bank Ltd vs. R. Srinivasan and others, (1962 AIR 232), The supreme court
held that the legal representative is a “Person representing the estate of the deceased” in law, that
the estate does not mean the entire estate, and that even a legatee who obtains only part of the
estate of the deceased under a will can be said to represent the estate of the deceased and is,
therefore, a legal representative under S. 2 (11) CPC.
In some circumstances, an intermediary is involved as an agent in court proceedings, and this type
of rights is limited only to the conduct of court proceedings. It does not confer the right of legal
heirship to the property of the deceased, nor does the decision of the court on that basis involve res
judicata.
The legal representative also includes the intermeddler. A person would not be an intermeddler
unless he has an intention to represent the estate of another. He is organized as legal representative
only to award relief against the estate in his hands. A person who has purchased the property under
a collusive transaction during the lifetime of deceased cannot be terms as intermeddler and cannot
act as a legal representative. A certain class of people can be coined as legal representative I.e,
Executors.
Administrator.
Reversioners.
Hindu coparceners.
Residuary legatee
The persons have actual possession of the property of deceased.
There are few other classes of people cannot be considered as legal representative -
Trespassers.
Creditors.
Official assignee or receiver of the court
A succeeding trustee.
Persons dealing with the goods of the deceased received from another in the ordinary course of
business.
Persons who intervene to preserve the goods.

Sec. 2 (12) - Mesne Profit

Mesne profits” of property means those profits which the person in wrongful possession of such
property actually received or might with the ordinary diligence have received therefrom, together
with interest on such profits but shall not include profits due to improvement made by the person
in wrongful possession.
When a person is deprived of from his lawful possession by another, he is not only entitled to
recover the possession but also damages caused from such deprivation. The mesne profits are
compensation which are penal in nature. The object of awarding the decree of mesne profit is to
compensate the person who has been deprived of enjoying his property. The wrongful possession
of the defendant is an essential condition to claim mesne profit. Mesne profit not only states about
the monetary advantage taken by defendant by such wrongful possession but also includes the
financial gains which he could have made after applying his due diligence but unable to made. In
other words, we can say that Mesne profit includes ‘Deemed profit’ as well which could have been
taken by the defendant by such wrongful possession. It is also important to note that the mesne
profit will be given either as per the market value of the property and production or as per the land
used to make it more profitable as compared to the prudent person’s use of such property. In the
case of Harry Grey v. Bhagumian AIR 1930 PC 82. A person in wrongful possession plants indigo on
a land and it is proved that a prudent agriculturist would have planted sugarcane, wheat or tobacco
the mesne profit should be calculated with more profitable crops.
Sec. 2 (14) - Order
Order means the formal expression of any decision of a Civil Court which is not a decree.
In the words we can say that the formal expression of any decision of a court which is not a decree
will be considered as order.
Order which amounts to Decree -
Order of abatement of suit.
Order holding appeal not maintainable.
Order discharging defendant for failure of plaintiff to furnish particulars.
Order of dismissal of suit for non – payment of court fees.
Order of dismissing the parties to file cross objection.
Orders which do not amount to Decree -
Order of remand.
Order granting interim relief.
Order overruling a plea against the maintainability of a suit.
Order rejecting appeal for non – payment of court fees.
Declaration of questions of limitations and jurisdictions.
Res - judicata.
Res – subjudice.

Distinction between Decree and Order -

The adjudication of court of law can be either decree or order, but it cannot be both. Both of them
has formal expression of adjudication of court of law, and both are related to controversy to the suit
but there are certain differences between these two -
A decree can only be passed in a suit which has originated by the presentation of plaint but an order
may come into existence from a suit by presentation of plaint or may arise from a proceeding
commenced by the petition.
A decree is the adjudication conclusively determining the rights of the parties with regards to all or
any of the matter of controversy while an order may or may not finally determine such rights.
A decree may be preliminary or final or partly preliminary partly final but an order cannot be
preliminary.
Usually where there is no joinder of causes of action one decree is passed in a suit while multiple
number of orders can be passed in a suit.
Every decree is appealable unless contrary is expressly prescribed by law. While on the other hand
sec. 96 (3) states that no appeal shall lie from an order except with the consent of the parties to the
suit. The orders mentioned under sec. 104 and Order XLIII R. 1 are appealable.
A second appeal lies to the High court on certain grounds (where the high court thinks that the
matter involves substantial question of law) from a decree passed in the first appeal as per sec. 100
of the act.

Other Definitions -
Sec. 2 (4) - District

District means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction
(hereinafter called a "District Court"), and includes the local limits of the ordinary original civil
jurisdiction of a High Court;
Sec 2 (5) - Foreign Court

Foreign Court means a Court situate outside India and not established or continued by the authority
of the Central Government;
Sec. 2 (6) - Foreign Judgement

Foreign Judgement means the judgment of a foreign Court;

Sec, 2 (7) - Government Pleader

Government Pleader includes any officer appointed by the State Government to perform all or any
of the functions expressly imposed by this Code on the Government Pleader and also any pleader
acting under the directions of the Government Pleader.
Sec. 2 (7A) - High Court

High Court in relation to the Andaman and Nicobar Islands, means the High Court in Calcutta;
Sec. 2 (7B) - India

India except in sections 1, 29, 43, 44, 4[44A,] 78, 79, 82, 83 and 87A, means the territory of India
excluding the State of Jammu and Kashmir.
Sec. 2 (8) - Judge

Judge means the presiding officer of a Civil Court;

Sec. 2 (10) - Judgment-debtor

Judgment-debtor means any person against whom a decree has been passed or an order capable of
execution has been made;
Sec. 2 (13) - Movable property

Movable property includes growing crops;

Sec. 2 (15) - Pleader

Pleader means any person entitled to appear and plead for another in Court, and includes an
advocate, a vakil and an attorney of a High Court;
Sec. 2 (16) - Prescribed
Prescribed means prescribed by rules;
Sec. 2 (17) - Public Officer

Public Officer means a person falling under any of the following descriptions, namely:--
(a) Every Judge;
(b) Every member of 5[an All-India Service];
(c) Every commissioned or gazetted officer in the military 6 [naval or air] forces of 7 [the Union]
8[***] while serving under the Government;
(d) Every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any
matter of law or fact, or to make, authenticate or keep any document, or to take charge of dispose of
any property, or to execute any judicial process, or to administer any oath, or to interpret, or to
preserve order, in the Court, and every person especially authorised by a Court of Justice to
perform any of such duties;
(e) Every person who holds any office by virtue of which he is empowered to place or keep any
person in confinement;
(f) Every officer of the Government whose duty it is, as such officer, to prevent offences, to give
information of offences, to bring offenders to justice, or to protect the public health, safety or
convenience;
(g) Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on
behalf of the Government, or to make any survey, assessment or contract on behalf of the
Government, or to execute any revenue process, or to investigate, or to report on, any matter
affecting the pecuniary interests of the Government, or to make, authenticate or keep any document
relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the
protection of the pecuniary interests of the Government; and
(h) Every officer in the service or pay of the Government, or remunerated by fees or commission for
the performance of any public duty;

Sec. 2 (18) - Rules

Rules means rules and forms contained in the First Schedule or made under section 122 or section
125;
Sec. 2 (19) - Share in a corporation

Share in a corporation shall be deemed to include stock, debenture stock, debentures or bonds;
Sec. 2 (20) - Signed

Signed, save in the case of a judgement or decree, includes stamped.

There is another important word which has been used in CPC at numerous places, but its definition
is not referred anywhere in the code, so by judicial precedents court interpreted it by some
landmark case laws, I.e. Cause of Action.
The term cause of action means all set of facts which is necessary for the plaintiff to prove (but does
not include all the evidences) if transverse, in order to entitle him to a decree in the suit. It is the
media through which the court decides the case in favour of plaintiff or defendant not on the basis
of claim and defence made by the parties in the plaint and written statemen. ‘The cause of action
must be antecedent to the institution of suit, and no cause of action can be found on any allegations
made in the proceedings. However, a new claim made on a new basis constituted by the new facts is
also included in a cause of action.’ (A.K. Gupta & Sons Ltd. V. Damodar Valley Corporations, AIR
1967 SC 96).
Scope of Civil Procedure Code, 1908
For the purpose of Civil procedure code, 1908 every district court shall be subordinate to Hight
court of the state and every court inferior to district court shall be under high court and district
court. The government can pass official gazette that some of the provisions of this code are not
applicable on Revenue courts. Revenue courts are those courts maintained by the local laws of a
state relating to rent, revenue or profit of land used for the agricultural purpose. Every court under
this code shall have a pecuniary jurisdiction and no court can exceed its pecuniary jurisdiction to
try a suit. The provisions of this code are not applicable on provincial small cause court and
presidency small cause court.

Suit in General (Sec. - 9)

Under Civil procedure code, 1908 court shall entertain only the suits which are not expressly or
impliedly barred. A suit relating to right to property or any other office relating to right to property
is a suit of civil nature and it is not barred by CPC merely because it is solely based on the religious
rites and ceremonies. Here is a list of suits which are considered of civil nature and not barred by
CPC.
Suits of civil nature -
1. Suits relating to rights to property;
2. Suits relating to rights of worship;
3. Suits relating to taking out of religious procession;
4. Suits relating to right to share in offerings;
5. Suits for damages for civil wrongs;
6. Suits for specific performance of contracts or for damages for breach of contracts;
7. Suits for specific relief’s;
8. Suits for restitution of conjugal rights;
9. Suits for dissolution of marriages;
10. Suits for rent;
11. Suits for or on account;
12. Suits for rights of franchise;
13. Suits for rights to hereditary offices;
14. Suits against wrongful dismissal from service and for salaries, etc.

Suits not of civil nature -

1. Suits involving principally caste questions;
2. Suits involving purely religious rites or ceremonies;
3. suits for upholding mere dignity or honor;
4. suits for recovery of voluntary payments or offerings;
5. suits against expulsions from caste, etc.

The following general principles relating to jurisdiction of a civil court can be used to understand
the concept of jurisdiction of civil courts –
1. A civil court has jurisdiction to try all suits of a civil nature unless their cognizance is barred
either expressly or impliedly.
2. Consent can neither confer nor take away jurisdiction of a court.
3. A decree passed by a court without jurisdiction is a nullity and the validity thereof can be
challenged at any stage of the proceedings, in execution proceedings or even in collateral
proceedings.
4. There is a distinction between want of jurisdiction and irregular exercise thereof.
5. Every court has inherent power to decide the question of its own jurisdiction.
6. Jurisdiction of a court depends upon the averments made in a plaint and not upon the defense in
a written statement.
7. For deciding jurisdiction of a court, substance of a matter and not its form is important.
8. Every presumption should be made in favor of jurisdiction of a civil court.
9. A statute ousting jurisdiction of a court must be strictly construed.
10. Burden of proof of exclusion of jurisdiction of a court is on the party who asserts it.
11. Even where jurisdiction of a civil court is barred, it can still decide whether the provisions of an
act have been complied with or whether an order was passed de hors the provisions of law.
In the case of GundajiSatwaji Shinde v. Ramchandra Bhikaji Joshi, AIR 1979 SC 653.
The apex court of India held that even when a properly constituted suit is brought to the civil court
having jurisdiction to try the same, premia facie, on a contention being raised by the defendant an
issue may arise which the civil court would not be competent to try and the legislature stepped in to
avoid the conflict of jurisdiction by making it obligatory upon the civil court to refer such an issue to
the competent authority upon the tenancy act.
In this case, the issue is where in a suit for specific performance an issue arises whether the plaintiff
is an agriculturist or not, would the Civil Court have jurisdiction to decide the issue or the Civil
Court would have to refer the issue under Sec. 85-A of the Tenancy Act to the authority constituted
under the Act, viz. Mamlatdar. Sec. 85 bars the jurisdiction of the Civil Court to decide or deal with
an issue arising under the Tenancy Act and Sec. 85-A imposes an obligation on the Civil Court to
refer such issue to the competent authority under the Tenancy Act.
On the question of jurisdiction to decide the issue whether the plaintiff is an agriculturist, the Trial
Court was of the opinion that it being an incidental issue in a suit for specific performance of
contract, which suit the Civil Court has jurisdiction to try, it will also have jurisdiction to decide the
incidental or subsidiary issue and recorded a finding that the plaintiff was not an agriculturist. The
High Court agreed with the trial Court observing that Civil Court has undoubtedly jurisdiction to
entertain a suit for specific performance, and while considering the main issue whether specific
performance should be granted or not, Civil Court will have to consider whether there are prima
facie any facts on account of which granting of specific performance would result into a transaction
forbidden by law and, therefore, civil court will have jurisdiction to decide the subsidiary issue
whether the plaintiff is an agriculturist.
The Supreme Court observed: This view overlooks and ignores the provision contained in Sec. 85-A.
There can be a civil suit properly constituted which the Civil Court will have jurisdiction to
entertain but therein an issue may arise upon a contest when contentions are raised by the party
against whom the civil suit is filed. Upon such contest, issues will have to be determined to finally
dispose of the suit. If any such issue arises which is required to be settled, decided or dealt with by
the competent authority under the Tenancy Act, even if it arises in a civil suit, the jurisdiction of the
Civil Court to settle, decide and deal with the same would be barred by the provision contained in
Sec. 85 and the Civil Court will have to take recourse to the provisions contained in Sec. 85 A for
reference of the issue to the competent authority under the Tenancy Act.
Upon a proper construction the expression "any issues which are required to be settled, decided or
dealt with by any authority competent to settle, decide or deal with such issues under this Act" in
Sec. 85-A would only mean that if upon assertion and denial and consequent contest an issue arises
in the context of the provisions of the Tenancy Act and which is required to be settled, decided and
dealt with by the competent authority under the Tenancy Act, then notwithstanding the fact that
such an issue arises in a properly constituted civil suit cognizable by the Civil Court, it would have
to be referred to the competent authority under the Tenancy Act. Any other view of the matter
would render the scheme of Ss. 85 and 85-A infructuous and defeat the legislative policy (Bhimaji
Shanker v Dundappa Vithappa AIR 1966 SC 166). The construction suggested by the respondent
that bar would only operate if such an issue arises only in a proceeding under the Tenancy Act,
could render Sec. 85-A infructuous or inoperative or otiose.
The court further observed: The legislature should by specific provision provide for transfer of such
suits where issues arises in respect of which the competent authority under the Tenancy Act is
constituted a forum of exclusive jurisdiction so as to avoid the dismissal of the suit by the Civil
Court or being kept pending for a long time till the competent authority disposes of the issue which
it alone is competent to determine [Dhondi Tukaram Mali AIR 1954 Bom 100 (D.B.)].
In Noor Mohd. Khan v Fakirappa (AIR 1978 SC 1217), a question arose during the pendency of the
suit whether by the final allotment of the land to the appellant, the respondent had ceased to be a
tenant in view of Sec. 52 of the Transfer of Property Act. This question according to the opinion of
the majority fell squarely and exclusively within the jurisdiction of the revenue authorities and the
Civil Court had no jurisdiction to decide it.
The Supreme Court, in the present case, thus, held:
(I) (Both on principle and an authority there is no escape from the conclusion that where in a suit
properly constituted and cognizable by the Civil Court upon a contest an issue arises which is
required to be decided or dealt with by a competent authority under the Tenancy Act, the
jurisdiction of the Civil Court to decide or deal with the same is not only ousted but the Civil Court is
under a statutory obligation to refer the issue to the competent authority under the Tenancy Act to
decide the same and thus dispose of the suit in accordance with the decision of the competent
authority.
(ii) If there is an issue which had to be settled, decided or dealt with by competent authority under
the Tenancy Act, the jurisdiction of the Civil Court, notwithstanding the fact that it arises in an
incidental manner in a civil suit, will be barred and it will have to be referred to the competent
authority under the Tenancy Act. By such camouflage of treating issues arising in a suit as
substantial or incidental or principal or subsidiary, Civil Court cannot arrogate to itself jurisdiction
which is statutorily ousted. This unassailable legal position emerges from the relevant provisions of
the Tenancy Act.
(iii) If plaintiff sued for specific performance of a contract for sale of agricultural land governed by
the provisions of the Tenancy Act in the Civil Court and defendant appeared and raised a contention
that in view of the provisions contained in Sec. 63 of the Tenancy Act the plaintiff being not an
agriculturist he is barred from purchasing the land, the issue would arise whether the plaintiff is an
agriculturist or not. Such an issue being within the exclusive jurisdiction of the Mamlatdar, it is
incumbent upon the Civil Court to refer the issue to the competent authority under the Tenancy Act
and the Civil Court has no jurisdiction to decide or deal with the same.
(iv) To avoid any conflict of decision arising out of multiplicity of jurisdiction by Civil Court taking
one view of the matter and the competent authority under the Tenancy Act taking a contrary or
different view, an express provision is made in Sec. 85(2) that no order of the competent authority
made under the Act shall be questioned in any Civil Court.
The Apex Court also laid down when the Civil Court would have jurisdiction in such cases: A suit for
specific performance of a contract for sale of land is cognizable by the Civil Court and its jurisdiction
would not be ousted merely because contract, if enforced, would violate some provisions of the
Tenancy Act. If contract when enforced would violate some provisions of the Tenancy Act it may be
that the competent authority under the Tenancy Act may proceed to take action as permissible
under the law but the Court cannot refuse to enforce the contract. And while so enforcing the
contract the Court need not refer any subsidiary issue to the competent authority under the
Tenancy Act because if there is any violation of the Tenancy Act the same would be taken care of by
the competent authority under the Tenancy Act (Jambu Rao Satappa v Neminath Appayya AIR 1968
SC 1358).
In the aforesaid case, a suit for specific performance, the defendant contended that if the contract is
enforced it would violate Sec. 35 of the Tenancy Act in that the plaintiff's holding after the
appointed day would exceed the ceiling and the acquisition in excess of the ceiling is invalid. A
contention appears to have been raised that the question whether an acquisition in excess of the
ceiling would be invalid would be within the exclusive jurisdiction of the Mamlatdar under Sec. 70
(mb) and that the Civil Court cannot decide or deal with this question and a reference ought to have
been made to the Mamlatdar. Negativing this contention it was observed that the Civil Court had
jurisdiction to entertain and decree a suit for specific performance of agreement to sell land. If upon
the sale being completed it would violate some provision of the Tenancy Act an enquiry has to be
made under Sec. 84-C, which provides that if an acquisition of any land is or becomes invalid under
any of the provisions of the Tenancy Act, the Mamlatdar may suo motu inquire into the question
and decide whether the transfer of acquisition is or is not valid. This inquiry has to be made after
the acquisition of the title pursuant to a decree for specific performance.]

Stay of Suit: Res Subjudice (Sec. 10)

No Court shall proceed with the trial of any suit in which the matter in issue is also directly and
substantially in issue in a previously instituted suit between the same parties, or between parties
under whom they or any of them claim litigating under the same title where such suit is pending in
the same or any other Court in 1[India] having jurisdiction to grant the relief claimed, or in any
Court beyond the limits of 1[India] established or continued by 2[the Central Government] 3[***]
and having like jurisdiction, or before 4[the Supreme Court].
Explanation- The pendency of a suit in a foreign Court does not preclude the Courts in 1[India] from
trying a suit founded on the same cause of action.
Here Sec. 10 of the act lays down the rule of Res subjudice which means when a subject matter is
pending in a court of law for adjudication between the same parties, other court is barred to try the
case as long as the former instituted suit continues. It is also important to understand that once the
former suit has been decided then also the second suit will be stopped by Res Judicata.

Conditions pre – requisite for the application of Sec. 10 -

There must be institution of two suits one formerly instituted and another subsequently instituted.
The matter in issue in the subsequent suit must be directly and substantially in issue in the
formerly instituted suit.
Both of the suits must be between the same parties or their representative or any other party
claiming its title under the parties to the previous suit.
Previously instituted suit must be pending in the same court in which subsequently instituted suit
is brought or any other court in India having jurisdiction to try such suit or any other court beyond
India having like jurisdiction or before Supreme court of India.
It is also important to note that pendency of a suit in foreign court does not preclude any court in
India to try the same suit. Sec. 10 merely bars the trial of suit not the institution of the suit so it is
required for the court in which the former suit has been instituted to stay the suit not to dismiss the
suit. The provisions of sec. 10 are mandatory in nature so the court does not have any discretionary
power in such cases.
Indian Bank v. Maharashtra state cooperative marketing Federation Ltd, AIR 1998 SC 1952.
[The rule laid down in Sec. 10 applies to 'trial' of a suit and not the institution thereof. It also does
not preclude a court from passing interim orders, such as, grant of injunction or stay, appointment
of receiver, etc. The concept of 'trial' as contained in Sec. 10 is applicable only to a regular/ordinary
suit and not to a summary suit filed under Order 37.]
The question in this case was whether the bar to proceed with trial of subsequently instituted suit,
contained in Sec. 10 is applicable to summary suit filed under Order 37 of the Code. The High Court
(Single Judge) held that the concept of trial as contained in Sec. 10 is applicable only to a
regular/ordinary suit and not to a summary suit filed under O. 37. The Division Bench of High Court
held the word 'trial' in Sec. 10 has not been used in a narrow sense and would mean entire
proceedings after the defendant enters his appearance, thus, Sec. 10 applies to a summary suit also.
The submission of the learned counsel for the appellant was that the view taken by the learned
Single Judge was correct and Division Bench has committed an error of law in taking a contrary
view. It was his contention that if Sec. 10 is made applicable to summary suits also the very object
of making a separate provision for summary suits will be frustrated. The learned counsel for the
respondent, on the other hand, supported the view taken by the Division Bench. The Supreme Court
agreed with the learned single judge.
The Supreme Court observed: Sec. 10 prohibits the court from proceeding with the trial of any suit
in which the matter in issue is also directly and substantially in issue in a previously instated suit. In
legal parlance, the word 'trial' means judicial examination and determination of the issue in civil or
criminal court by a competent tribunal. According to Webster's Comprehensive Dictionary (Intern
Ed.), it means the examination, before a tribunal having assigned jurisdiction, of the facts or law
involved in an issue in order to determine that issue. According to Stroud's Judicial Dictionary (5th
Ed.), a 'trial' is the conclusion, by a competent tribunal, of questions in issue in legal proceedings,
whether civil or criminal. Thus in its widest sense it would include all the proceedings right from
the stage of institution of a plaint in a civil case to the stage of final determination by a judgment
and decree of the Court.
Whether the widest meaning should be given to the word or it be construed narrowly must depend
upon the nature and object of the provision and the context in which it is used. Therefore, the word
"trial" in Sec. 10 will have to be interpreted and construed keeping in mind the object and nature of
that provision and the prohibition to proceed with the trial of any suit in which the matter in issue
is also directly and substantially in issue in a previously instituted suit. The object of the prohibition
contained in Sec. 10 is to prevent the court of concurrent jurisdiction from simultaneously trying
two parallel suits and also to avoid inconsistent findings on the matters in issue. The provision is in
the nature of a rule of procedure and does not affect jurisdiction of the court to entertain and deal
with the later suit nor does it create any substantive right in the matters. It is not a bar to the
institution of a suit.
It has been construed by the Courts as not a bar to the passing of interlocutory orders such as an
order for consolidation of the later suit with the earlier suit, or appointment of a Receiver or an
injunction or attachment before judgment. The course of action which the Court has to follow
according to Sec. 10 is not to proceed with the 'trial' of the suit but that does not mean that it cannot
deal with the subsequent suit any more or for any other purpose. In view of the object and nature of
the provision and the fairly settled legal position with respect to passing of interlocutory orders it
has to be stated that the word 'trial' in Sec. 10 is not used in its widest sense.
The provision contained in Sec. 10 is a general provision applicable to all categories of cases. The
provision in O. 37 applies to certain classes of suits. One provides a bar against proceeding with the
trial of a suit, the other provides for granting of quick relief. Both these provisions have to be
interpreted harmoniously so that the objects of both are not frustrated.
Considering the objects of both the provisions i.e. Sec. 10 and O. 37, wider interpretation of the
word "trial" is not called for. The word 'trial' in Sec. 10 in the context of a summary suit, cannot be
interpreted to mean the entire proceedings starting with institution of the suit by lodging a plaint.
In a summary suit the 'trial' really begins after the Court /Judge grants leave to the defendant to
contest the suit. Therefore, the Court/ Judge dealing with the summary suit can proceed up to the
stage of hearing the summons for judgment and passing the judgment in favour of the plaintiff if (a)
the defendant has not applied for leave to defend or if such application has been made and refused
or if (b) the defendant who is permitted to defend fails to comply with the conditions on which
leave to defend is granted.]
Res Judicata (Sec. 11)
No Court shall try any suit or issue in which the matter directly and substantially in issue has been
directly and substantially in issue in a former suit between the same parties, or between parties
under whom they or any of them claim, litigating under the same title, in a Court competent to try
such subsequent suit or the suit in which such issue has been subsequently raised, and has been
heard and finally decided by such Court.
Res Judicata literally means ‘a thing which has been decided previously’. Res means ‘thing’ and
Judicata means ‘decided already’. In other words, we can say that the things decided previously by a
court of competent jurisdiction should be taken as conclusive and can be reversed only by the
higher courts. The doctrine of Res Judicata is based on three principles -
Interest reipublicaeut sit finislitiumI.e.The finality and conclusiveness of judicial decisions for the
final termination of disputes in the general interest of community as a matter of public policy.
Nemo debet bis vexari pro un et eadern causa I.e. No one should be vexed twice over the same
cause of action. (The same concept is available in Indian Constitution under Article 20 (2), and Sec.
300 of Criminal Procedure Code, 1973.)
Res judicata pro veritateoccipiturI.e. A Judicial decision must be accepted as correct.
The following conditions must be satisfied to constitute a bar of Res Judiciata -
The matter must be directly and substantially in issue in the two suits.
Matter in issue is distinct from the subject matter and the object of the suit as well as the relief
which can be asked for in it and the cause of action based upon it. The rule of res judicata will apply
even when the subject matter, the object, the relief and cause of action are different. It is the matter
in issue not the subject matter which forms the application of res judicata. Explanation III of Sec. 11
makes it clear that the referred to must in the former suit have been alleged by one party and either
denied or admitted, expressly or impliedly, by the other. Thus, a matter in which no relief is claimed
cannot be directly and substantially in issue even if a decree has been passed by the court of
competent jurisdiction. A matter will be directly and substantially in issue when the matter has
been decided by the court of competent jurisdiction and the judgement was, in fact, based upon the
decision.
Example – A sues B foe the rent due, B denies, here the claim for rent is a matter in respect of which
relief is claimed and thus, a matter directly and substantially in issue. But when A sues B for rent
and B claims abatement of rent on the ground that the area is greater than that shown in the lease,
the finding as to the excess area is not res judicata for this was not the matter directly and
substantially in issue but was only ancillary to it.

The prior suit must have been between the same parties or persons claiming under them.
In this condition it is important that the former suit must have been between the same parties or
between parties under whom they or any of them claim. Res judicata not only affects the parties to
the suit but also the parties claiming under such party. Explanation VI of Sec. 11 states that ‘Where
persons litigate bona fide in respect of a public right or of a private right claimed in common for
themselves and others, all persons interested in such right shall, for the purposes of this section, be
deemed to claim under the persons so litigating .’ It means that a decision in a suit may operate as
re judicata against the persons not expressly named as parties to the suit I.e. in a representative
suit. If a party in the subsequent suit can be said to have been represented by the parties in the
former suit, the decision of the former suit will bind the parties to the subsequent suit.

Such parties must have litigated under the same title in the former suit.
Under this essential it is important that the parties litigating must be in the same capacity in the
former suit. If in former suit plaintiff sues the defendant under a different capacity and in the later
suit, the same plaintiff sues the same defendant in different capacity then the later suit cannot be
restricted by res judicata. This we can understand by an example. A suit brought by a person to
recover possession from a stranger of Math property claiming it as heir of the deceased Mahant is
no bar to suit by him as a manager of the Math.
The court which determined the earlier suit must be competent to try later suit.
In this condition it is important that the court which decided the former suit must have been a court
competent to try the subsequent suit or the suit in which such subsequent issue is raised. The term
‘competent to try’ means competent to try the subsequent suit if brought at the time the first suit
was brought.

The question directly and substantially in issue in the subsequent suit should have been heard and
finally decided in the earlier suit.
In the last condition the matter must be heard and finally decided by the court of competent
jurisdiction in the first suit. A matter can be considered as finally decided even when the matter is
dismissed or disposed of by an ex parte judgement. It is important at this stage that the court has
applied its judicial mind to decide the matter. Here, it is important to note that the matter cannot be
considered as decided when the case has been returned in the first suit due to lack of jurisdiction
for the presentation in proper court having jurisdiction, or for default of plaintiff’s apperance.

Application of Res Judicata in Public Interest Litigations, Arbitration and Tax matters of different
financial years
In the case of Rural Litigation & Entitlement Kendra v. the State of U.P., the court held that the
doctrine of the res judicata cannot be applied in the cases of Public Interest Litigation.
In the case of K.V. George v. Secretary to Govt., the court held that plea of Res Judicata cannot be
raised in the cases of Arbitration and Rewards.
The doctrine of Res Judicata is not been applied in the income tax proceedings. In the case of B.S.N.L
vs. Union of India, the court held that the decision given for one assessment year does not operate
as res judicata in the Subsequent year.

Exceptions to the Plea of Res Judicata

Judgment in original suit obtained by the fraud – In the later suit if the court observes that the
judgment of former suit is obtained by the fraud, collusion etc. then the doctrine of the res judicata
is not applied.
When previous Special Leave Petition is dismissed – When special leave petition is dismissed
without adjudication or decision then res judicata should not be applied. For obtaining Doctrine of
Res Judicata, the formal suit should be decided finally by the competent court.
A different cause of action – Res Judicata will not be applied when there is a different cause of
action in the subsequent suits. The court cannot bar a subsequent suit if it contains the different
cause of action.
When there is Interlocutory Order – Interlocutory order is the interim order, decree or sentence
passed by the court. A principle of the Res Judicata will be not applied when an interlocutory order
is passed on the former suit. It is because in Interlocutory order immediate relief is given to the
parties and it can be altered by subsequent application and there is no finality of the decision.
When there is a change in Law – When there is a change in the law and new laws bring new rights
to the parties then such rights are not barred by Res Judicata.

Explanations of Res Judicata

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

Explanation II.—For the purposes of this section, the competence of a Court shall be determined
irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III.—The matter above referred to must in the former suit have been alleged by one
party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV.—Any matter which might and ought to have been made ground of defence or attack
in such former suit shall be deemed to have been a matter directly and substantially in issue in such
suit.

Explanation V.—Any relief claimed in the plaint, which is not expressly granted by the decree, shall
for the purposes of this section, be deemed to have been refused.

Explanation VI.—Where persons litigate bona fide in respect of a public right or of a private right
claimed in common for themselves and others, all persons interested in such right shall, for the
purposes of this section, be deemed to claim under the persons so litigating .

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

Explanation VIII. —An issue heard and finally decided by a Court of limited jurisdiction, competent
to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such
Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which
such issue has been subsequently raised.

Constructive Res Judicata - Explanation IV of Sec. 11 defines the concept of constructive res judicata
I.e. when any party leaves any part of his claim in the first suit then he cannot claim the same in the
later suit as a ground of defence or attack

Iftikhar Ahmed v. Syed Meharban Ali (1975) 1 SCJ 306.

In this case, the title to the properties was in dispute. Thus there was a conflict of interest among
co-plaintiffs. In the previous suit, Ishtaq Ahmed, K. Fatima and M. Ali (co-plaintiffs) instituted a suit
against a mortgagee, relating to shares of latter two in mortgaged properties. In that suit, it was
decided that only Ishtaq Ahmed had title to the properties and other two had no title. The decree
was confirmed by the High Court. Thus, the question of title, which was in dispute, was conclusively
determined by a competent court.
There can be no doubt that by the written statement, the mortgagee denied the title of K. Fatima
and M. Ali to the properties and set up the contention that Matlub-un-nissa, the mortgagor, from
whom Ishtaq Ahmed traced his title, alone was entitled to the properties. There was, therefore, an
actual conflict of interest between Ishtaq Ahmed on the one hand and K. Fatima and M. Ali on the
other, and it was necessary to decide the conflict in order to give relief to the defendant (Ishari
Prasad) and the Court decided that the properties belonged exclusively to the mortgagor, the
mother of Ishtaq Ahmed. The effect of the judgment is that K. Fatima and M. Ali failed to establish
their contention that they had title to the properties, and, the question is, could they be allowed to
agitate the same question?
In the later suit, the dispute was in between Ishtaq Ahmed on the one hand and K. Fatima and M. Ali
on the other hand regarding the same property. The matter was referred to the Arbitrator. The
question arose whether the earlier decision of the Hool court regarding the title of the property in
question would operate as res judicata in between the parties. The Supreme Court held that the
four conditions (mentioned above) were satisfied in the case and thus the principle of res judicata
has to operate. It held that the case would have been different had the Arbitrator given his finding
upon the question of adverse possession. Had it been held that they might have acquired the title
due to adverse possession at any point of time, the case would have been different and res judicata
would not apply in that case.
In the award, the arbitrator has stated that the judgment of the High Court in the second appeal
would not operate as res judicata as regards the title to the properties but was only a piece of
evidence. The arbitrator came to the conclusion that the respondents were in joint possession of
the properties and, therefore, there was no ouster. If the judgment operated as res judicata, the
respondents had no title to the properties. There was no finding by the arbitrator that by adverse
possession they had acquired title to the properties at any point of time. The question which was
referred to the arbitrator was the dispute between the parties as regards the title to the properties.
If the judgment of the High Court operated in law as res judicata, it would be an error of law
apparent on the face of the award if it were to say that the judgment would not operate as res
judicata. The District Judge was, therefore, right in holding that the award was vitiated by an error
of law apparent on its face in that it was based on the proposition that the judgment of the High
Court would not operate as res judicata on the question of title to the properties.
The Supreme Court observed: The doctrine of res judicata may apply even though the party against
whom it is sought to enforce it, did not in the previous suit think fit to enter an appearance and
contest the question. But to this the qualification must be added that if such party is to be bound by
a previous judgment, it must be proved clearly that he had or must be deemed to have had notice
that the relevant question was in issue and would have to be decided (Chandu Lal v Khalilur
Rahman AIR 1950 PC 17).
In considering any question of res judicata they have to bear in mind the statement of the Board in
Sheoparsan Singh v Ramanandan Prasad Narayan Singh (AIR 1916 PC 78) that the rule of res
judicata "while founded on ancient precedent is dictated by a wisdom which is for all time" and that
the application of the rule by the courts should be influenced by no technical consideration of form,
but by manner of substance within the limits allowed by law.
"The raison d'etre of the rule is to confer finality on decisions arrived at by competent courts
between interested parties after genuine contest; and to allow persons who had deliberately chosen
a position to reprobate it and blow hot now when they were blowing cold before would be
completely to ignore the whole foundation of the rule (Ram Bhai v Ahmad Saeed Akhtar Khan AIR
1938 Lah 671).
State of U.P. v. Nawab Hussain (1977 SC 1680)
[The general principles of res judicata and constructive res judicata have been acted upon in cases
of 'renewed applications for a writ.]
In this case, the petitioner was dismissed from service. He filed a writ petition on the ground of
denial of opportunity of being heard and that the action taken against him was male fide. After the
dismissal of petition, he filed another petition alleging that he was appointed by the Inspector
General of Police and he was dismissed by the Deputy I.G. He alleged that the latter was not
empowered to dismiss him and therefore his order of dismissal was by a person who did not have
the power to do so.
The Supreme Court held that it was an important plea which was within the knowledge of the
petitioner when he filed the previous suit and this plea could well have been taken in the same
petition. But he contended himself by raising the other pleas that he was not afforded a reasonable
opportunity to meet the case against him in the departmental inquiry and that the action taken
against him was mala fide. It was therefore not permissible for him to challenge his dismissal in the
subsequent suit on the ground that he had been dismissed by an authority subordinate to that by
which he was appointed.
The Apex Court observed: The principle of estoppel per rem judicatam is a rule of evidence. As has
been stated in Marginson. v Blackburn Borough Council, it may be said to be "the broader rule of
evidence which prohibits the re-assertion of a cause of action." This doctrine is based on two
theories: (i) the finality and conclusiveness of judicial decisions for the final termination of disputes
in the general interest of the community as a matter of public policy, and (ii) the interest of the
individual that he should be protected from multiplication of litigation. It therefore serves not only
a public but also a private purpose by obstructing the reopening of matters which have once been
adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on
the same cause of action, for otherwise the spirit of contentiousness may give rise to conflicting
judgments of equal authority, lead to multiplicity of actions and bring the administration of justice
into disrepute. It is the cause of action which gives rise to an action, and that is why it is necessary
for the courts to recognize that a cause of action which results in a judgment must lose its identity
and vitality and merge in the judgment when pronounced. It cannot therefore survive the judgment,
or give rise to another cause of action on the same facts. This is what is known as the "general
principle" of res judicata.

But it may be that the same set of facts may give rise to two or more causes of action. If in such a
case a person is allowed to choose and sue upon one cause of action at one time and to reserve the
other for subsequent litigation, that would aggravate the burden of litigation. Courts have therefore
treated such a course of action as an abuse of its process and Somervell, L.J., has answered it as
follows in Greenhalgh v Mallard:
"I think that on the authorities to which I will refer it would be accurate to say that res judicata for
this purpose is not confined to the issues which the court is actually asked to decide, but that it
covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly
could have been raised that it would be an abuse of the process of the court to allow a new
proceeding to be started in respect of them. This is therefore another and an equally necessary and
efficacious aspect of the same principle, for it helps in raising the bar of res judicata by suitably
construing the general principle of subduing a cantankerous litigant. That is why this other rule has
some times been referred to as "constructive" res judicata which, in reality, is an aspect or
amplification of the general principle.
The Apex Court further observed: Res judicata relates to suits and former suits, and has, in terms,
no direct application to a petition for the issue of a high prerogative writ. The general principles of
res judicata and constructive res judicata have however been acted upon in cases of 'renewed
applications for a writ. Thus, a petitioner making an application which had already been refused
could not on fresh materials have "the same application repeated from time to time."

A question which specifically arose for consideration was whether a decision of the High Court on
merits on certain matter after contest, in a writ petition under Art. 226 of the Constitution, operates
as res judicata in a regular suit with respect to the same matter between the same parties. The Apex
Court observed: We are of opinion that the provisions of Sec. 11 CPC are not exhaustive with
respect to an earlier decision operating as res judicata between the same parties on the same
matter in controversy in a subsequent regular suit and that on the general principle of res judicata,
any previous decision on a matter in controversy, decided after full contest or after affording fair
opportunity to the parties to prove their case by a Court competent to decide it, will operate as res
judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly
be competent to decide the subsequent suit or that the former proceeding and the subsequent suit
have the same subject-matter. The nature of the former proceeding is immaterial.
C.A. Balakrishnan v. Commr., Corpn. of Madras (AIR 2003 MAD.120)
[Constructive res judicata applies to a writ petition also.] The main question in this case was
whether O.2, R.2 applies to the writ petition or not? Answering in affirmative, the court observed:
The principle underlying O.2, R.2 being based upon public policy, a person who files a suit seeking
certain relief in respect of a cause of action is precluded from instituting another suit for seeking
other reliefs in respect of same cause of action under O.2, R.2. It is evident from O.2, R.2 that the suit
shall include the whole claim. The relinquishment of part of claim is not permissible and omission
to sue for one of several reliefs is also prohibited. Likewise, the same person cannot be allowed to
invoke the writ jurisdiction of this court for obtaining the very same reliefs. If second suit is barred,
a writ petition would equally be barred, public policy underlying 0.2, R.2 is attracted with equal
vigour in this situation also.
In the present case, the prayer in the writ petition is for the issuance of a writ of mandamus
directing the respondent to restore the possession of the premises to the petitioner, a licensee. It is
admitted fact that the petitioner has filed original suit for mandatory injunction of restoration of
possession to him of the premises which is also the subject matter of the writ petition. It is also
brought to the notice of this Court that the petitioner has filed I.A. No. 8055/95 for a interim relief
of restoration of possession and for removal of the lock, I.A. No. 8056/95 to appoint an Advocate
Commissioner to take inventory of the entire articles which were inside the canteen and I.A. No.
8054/95 restraining the respondents from interfering with the petitioner's peaceful possession. All
the said interim applications were dismissed.
The Apex Court in Devilal v Sales Tax Officers, Ratlam (AIR 1965 SC 1150), held that 'Consideration
of public policy and the principle of the finality of judgments are important constituents of the rule
of law, and they cannot be allowed to be violated just because a citizen contends that his
fundamental rights have been contravened by an impugned order and wants liberty to agitate the
question about its validity to by filing one writ petition after another...... if constructive res judicata
is not applied to such proceedings a party can file as many writ petitions as he likes and take one or
two points every time. That clearly is opposed to considerations of public policy on which res
judicata is based and would mean harassment and hardship to the opponent. If such a course is
allowed to be adopted, the doctrine of finality of judgments pronounced by this court would also be
materially affected.'
The above said decision was followed by the Division Bench of the Andhra Pradesh High Court in K.
Madhadeva Sastry v Director, Post Graduate Centre, Anantapur (AIR 1982 A.P. 176).]
Bar to Further Suit (Sec. 12)
Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular
cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any
Court to which this Code applies. There are certain cases which bars the institution of fresh suit in
respect of same cause of action apart from Res judicata.
Sec. 21 A – Decree on objection of territorial jurisdiction of the
court.
Sec. 144 – The cases where restitution (I.e. reversal of the order of the lower court by the higher
court in the cases of appeal) can be claimed under sec. 144 (1).
Order II Rule 2 – Where the plaintiff does not include the whole of the claim which the plaintiff is
entitled to make in respect of a single cause of action.
Order IX Rule 9 – Where the suit is dismissed under Order IX Rule 8 I.e. where only defendant
appears and the plaintiff does not appear when the suit is called for hearing.
Order XI Rule 21 (2) - Where the plaintiff fails to comply with the order to answer the
interrogatories, or for discovery or inspection of document.
Order XXII Rule 9 – Where the suit has been abated.
Order XXIII Rule 1 – Withdrawal of suit without the leave of court, I.e. abandoning any part of claim
or the complete claim against the defendant without the leave of the court.
Order XXIII Rule 3 A – Compromises decree on the ground that the compromise was not lawful.

Foreign Judgement
A foreign judgement means an adjudication by a foreign court upon a matter before it. Sec. 13 of the
act provides when foreign judgment is not conclusive. It states that a foreign judgment shall be
conclusive as to any matter thereby directly adjudicated upon between the same parties or
between parties under whom they or any of them claim litigating under the same title except—

(a) Where it has not been pronounced by a Court of competent jurisdiction;

A judgement of a foreign court to be conclusive between the parties must be a judgement
pronounced by a court of competent jurisdiction. Such judgement must be competent by the law of
the state in which such court is situated and in the international sense too.

(b) Where it has not been given on the merits of the case;
In order to be conclusive, the foreign judgement must be on the merits I.e. which involves the
application of the mind of the court to the truth or falsity of the plaintiff’s case and a judgement
passed after a judicial consideration of the matter after taking the evidence may be a decision on
the merits been though passed ex parte.

(c) Where it appears on the face of the proceedings to be founded on an incorrect view of
international law or a refusal to recognize the law of India in cases in which such law is applicable;
A judgement based on incorrect view of international law or a refusal to recognize law of India
where such law is applicable is not conclusive. Where a suit instituted in England on the basis of
contract made in India, the English court erroneously applied English law, the judgement of the
court is not conclusive since the English court has not recognized Indian laws applicable in such
case.

(d) Where the proceedings in which the judgment was obtained are opposed to natural justice;
The judgement of the case would have been drawn with the minimum principles of justice, I.e.
justice, equity and good conscience. If these principles were not followed up while deciding the case
then it cannot be considered as conclusive judgement. If the parties were not given notice of the
case, or they had not given adequate opportunity to represent themselves in the court of law then
such judgement is not conclusive.

(e) Where it has been obtained by fraud;

It is well settled principles of law that if a judgment has been obtained by fraud collusion or any
other deceitful means then such judgment cannot be conclusive. The fraud can be either fraud on
the part of party invalidating a foreign judgement in whose favor the judgement is given or fraud on
the court pronouncing the judgement.

(f) Where it sustains a claim founded on a breach of any law in force in India.
Where a Foreign judgement is found on a breach of an Indian law, then it would not enforce in
India. Every case comes before an Indian court must be decided in accordance with the Indian law.
Thus, a foreign judgement for a claim which is barred under the law of limitation in India is not
conclusive. Similarly, a decree for divorce passed by a foreign court cannot be confirmed by an
Indian court if under the Indian law the marriage is indissoluble.
Bharat Nidhi Limited v. Meghraj Mahajan (AIR 1964 Del 22)
[Foreign judgment has to be passed only by a foreign court of competent jurisdiction to operate as
res judicata in the Indian courts.]
In this case, the defendant was neither a national, nor a domicile. nor a resident of Pakistan on the
date of the commencement of the suit (which resulted in the judgment which is pending
adjudication before the Delhi High Court) or on the date of the decree. Moreover the defendant did
not submit also to the jurisdiction of the Pakistan Court and he was not served while present in
Pakistan with summons. Under these circumstances of the case the foreign decree was held to be a
nullity not enforceable in India under Section 13 of the Civil Procedure Code.
On 24th August, 1949, Bharat Nidhi Limited, the plaintiff appellant, filed a suit against Megh Raj
Mahajan, defendant respondent for recovery of Rs. 61,194/2/- being the debit balance in the cash
credit account with the plaintiff. On 20th December 1949, the Senior Subordinate Judge, Sialkot
(Pakistan), decreed the suit and the present suit for recovery of Rs. 63,004-15-0 was filed on 12th
June, 1954, on the basis of the judgment of the Senior Subordinate Judge, Sialkot. The judgment and
decree were passed ex parte and there is an observation in the decree that "a summon was duly
served upon the defendant, notwithstanding that he has not appeared to defend the suit." It is from
this observation that the trial Court concluded that the defendant had been properly served with a
notice issued by the Sialkot Court.
From this finding the learned counsel for the appellant wants the High Court, Delhi to deduce that
the defendant was physically in Pakistan when he was served the notice and when the action was
commenced. It must be presumed that the defendant was served with the summons in the Sialkot
suit when physically present in Pakistan and such presence was enough to render the foreign
decree and the judgment valid and binding on the defendant. Thus, the decree of the foreign Court
was enforceable in India.
The High Court observed: There appears to be no warrant for this contention because a defendant
may be duly served "even outside Pakistan." The answer will primarily depend on whether the
defendant was a non-resident foreigner qua the Sialkot Courts on the relevant date. It is not
disputed that the defendant never submitted to the jurisdiction of the Sialkot Court. It is denied that
the amount, if any, to the plaintiff was payable at Sialkot, or any other place in Pakistan on the 24th
August, 1949 when the defendant had since long before ceased to reside or carry on business in
Sialkot and had actually migrated to India and had become an Indian national. Both on the date of
the institution of the suit in Sialkot and on the date of the judgment the defendant was a domicile
and resident of India. The defendant not having submitted to the jurisdiction of the Sialkot Court in
a personal action against him, a decree pronounced in absentee (ex parte) would be an absolute
nullity.]

Narshimha Rao v. Venkata Lakshmi (1991) 2 SCR 821.

Where a foreign judgment is founded on a breach of any law in force in India, it would not be
enforced in India. Every case which comes before an Indian court must be decided in accordance
with Indian law. Thus, a foreign judgment for a claim which is barred under the Law of Limitation in
India is not conclusive. Similarly, a decree for divorce passed by a foreign court. cannot be
confirmed by an Indian court if under the Indian law the marriage is indissoluble.

Presumption as to foreign judgment (Sec. 14) -

The Court shall presume upon the production of any document purporting to be a certified copy of
a foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction,
unless the contrary appears on the record; but such presumption may be displaced by proving want
of jurisdiction. A conclusive foreign judgement which is conclusive can be claimed in India by
instituting suit to grant relief on the basis of such foreign judgment, or by enforcing the execution
proceeding in certain cases as defined in Sec. 44 and Sec. 44 A.
Place of Suing
Types of Jurisdictions -
Territorial Jurisdiction – Every court has certain geographical boundary lines decided by the state
government beyond which it cannot exercise its jurisdiction in India.
Jurisdiction regarding subject matter – In a certain geographical area there are various types of
courts deals with various types of subject matters. For example – Presidency small cause courts
cannot deal with the cases of performance of contract, partition of immovable property, mortgage,
lease etc. Family courts cannot deal with revenue matters, or partition of immovable property, civil
courts cannot deal with offence, criminal courts cannot deal with civil matters. ‘In its restricted
sense, cause of action’ means the immediate occasion for the cause of action. Where, the cause of
action is fraud, discovery of fraud is no part cause of action. The cause of action must be antecedent
to the institution of suit, and no cause of action can be founded on any allegations made in the
proceedings. However, a new claim made on a new basis constituted by new facts is also included in
the cause of action’. (A.K. Gupta & Sons Ltd. V. Damodar Valley Corporations, AIR 1967 SC 96).
Original & Appellate jurisdiction – By exercising original jurisdiction a court decides a suit which
has been originally instituted in its court, but while excising appellate jurisdiction a court decides
only appeals. An appeal can be made only after a matter has been decided by a court having original
jurisdiction on such subject matter. The court of civil junior civil judge, and of small causes court
have original jurisdiction. The court of District judge, High court and Supreme court have original as
well as appellate jurisdiction.
Pecuniary jurisdiction – A Court will only have jurisdiction over the suits the value of which does
not exceed to the pecuniary jurisdiction limits of such court. Sec. 6 of the act defines pecuniary
jurisdiction of the court as even if a court has all other jurisdictions to try a matter but does not
have pecuniary jurisdiction to try a subject matter then also it cannot try such a suit. Sec. 15 of the
act states that every suit shall be instituted into the court of lowest grade having pecuniary
jurisdiction to try such a suit.

Jurisdiction of the court depending upon the nature of the suit -

Suit as to immovable property – As per sec. 16 of the act subject to pecuniary and other jurisdiction
or limitations defined by Civil procedure code or any other laws following suits shall be instituted
in the court within the local geographical limits of whose such property is situated.
For the recovery of immovable property with or without rent or profits.
For the partition of immovable property.
For foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable
property.
The determination of any other right to or interest in immovable property.
For compensation for wrong to immovable property.
For the recovery of movable property actually under distraint or attachment.
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property
held by or on behalf of the defendant may, where the relief sought can be entirely obtained through
his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction
the property is situate, or in the Court within the local limits of whose jurisdiction the defendant
actually and voluntarily resides, or carries on business, or personally works for gain. As per sec. 17
of the act, where a property which is the subject matter of the suit is situated within the jurisdiction
of two or more courts then the suit can be instituted within any of such court, and the court in
which the suit has been instituted is empowered to pass an order or decree regarding whole of the
property irrespective of the fact that some portion of the property is not situated within the local
jurisdiction of such court. Where there is any confusion as to the property is situated within the
jurisdiction of which court out of two or more courts then the suit can be instituted in any of such
court, if there are reasonable grounds of uncertainty as to the property is situated within the
jurisdiction of which court. (Sec. 18)

Suits in the cases of wrong done to movable property or tort

As per sec. 19 of the act, a suit can be instituted at a place where a tort has been committed or
where the defendant resides or works for gain at the option of the defendant. If is important to
understand that in the cases of movable property under actual distraint or attachment, the place of
suing is the court within whose jurisdiction the property is situated, so it can be considered as an
exception to the cases of movable property.

Suits of other kinds

As per Sec. 20 of the act for all cases which are not covered from sec. 16 to 19 of the act, all such
suits can be filed at any of the following places at the choice of plaintiff -
the defendant, or each of the defendants where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or personally
works for gain; or
Any of the defendants, where there are more than one, at the time of the commencement of the suit,
actually and voluntarily resides, or carries on business, or personally works for gain, that in such
case either the leave of the Court is given, or the defendants who do not reside, or carry on
business, or personally works for gain, as aforesaid, acquiesce in such institution; or

The cause of action, wholly or in part, arises.

Here it is important to understand what is the meaning of the term Cause of action’. It means the
sole reason or set of reasons which gave rise to a suit. In the other words, it can be considered as all
set of facts which the plaintiff has to prove to get the decree operated in his favor. Here, the next
important term is ‘carrying on business’ which is used in the definition parts. In this terminology,
the term business is not only restricted to the place where a commercial activity takes place but it
also includes all other places which are directly or substantially associated with the term occupancy
of a person, so it is not necessary that a person should have an office to carry on a business at a
particular place which means that a business can be continued even at a place where a person has
no office.

Objections as to jurisdiction (Sec. 21)

Territorial jurisdiction is a case of inherent jurisdiction which a jurisdiction which has to be
necessarily applied while deciding a suit, so if a suit decided by the court without having such
territorial jurisdiction which means if the suit has been decided by a court within whose territorial
jurisdiction such cause of action hasn’t took place, or the property is not situated, or the defendant
does not reside or carries on work then such decree passed by the court will operate as nullity.
The object of sec. 21 is to protect the interest of honest plaintiff and to avoid the harassment of the
plaintiff who has Bonafide and in good faith initiated the suit proceeding in a court which is later
found to be wanting in jurisdiction. In the cases pecuniary jurisdiction as well, it is important that
no objection of pecuniary jurisdiction can be raised at the appellate or revisional courts. It means
that all the question regarding the jurisdiction of the court has to taken at the earliest opportunity
in the court of first instance.

Transfer of Suit(Sec. 22 & 23)

Where the plaintiff has the liberty to file a suit in more than one court and he has instituted the suit
in anyone of such courts and the defendant want to transfer such suit in another court then he can
do so after giving notice to the plaintiff at the earliest possible opportunity and in all cases where
issues are settled at or before such settlement, and the court in which such application for transfer
of suit is made after considering all the necessary objects decide whether the suit can be
transferred as requested by the defendant or not. Here it is also important that which court will be
having power to accept the application of transfer of suit and decide the matter. As per sec. 23 of
the act, following courts have powers to decide the application of transfer of suit in various cases -

Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an
application under section 22 shall be made to the Appellate Court.
Where such Courts are subordinate to different Appellate Courts but to the same High Court, the
application shall be made to the said High Court.
Where such Courts are subordinate to different High Courts, the application shall be made to the
High Court within the local limits of whose jurisdiction the Court in which the suit is brought is
situated.

General powers of the court to transfer and withdrawal of a suit

The general powers to transfer a suit are restricted to only high courts and district courts. The
general powers to transfer a suit is vested in the courts by their own motion (Suo Moto) or on the
application of the parties to the suit, but in both of the cases it is mandatory to give notice to the
parties to the suit and give them an opportunity of being heard before deciding the case of such
transfer. The High court or district court can transfer or withdraw a suit at any stage where a suit is
pending before such high court or district court or any other court subordinate to it. These courts
have powers to withdraw any appeal, suit or other proceeding and to dispose of the same, transfer
the same for trial or disposal to any other court subordinate to it and competent to dispose of the
same, retransfer the same for the trial or disposal to the court from which it was withdrawn. The
court while transferring or retransferring a suit, appeal or other proceeding may give direction to
such court to which it is going to be transferred either to retry
It as a fresh appeal or suit or to continue with the suit from the point at which it was withdrawn or
transferred.

Power of the Supreme court to transfer a suit (Sec. 25) -

On the application of the party and after giving notice to the parties, and after hearing such parties
supreme court can transfer a suit from any high court to another high court or any other court of
India. Supreme court follows this procedure only for the ends of justice and for the expedient
disposal of the suit. In this section when an application has been made by a party it has to be
supported by an affidavit. If the supreme court finds that an application made under this section is
frivolous or vexatious then it can dismiss the application and impose a fine up to Rs. 2000/- as a
compensation amount to any party who has opposed such application.

Institution of Suits
As per sec. 26 of the act every suit has to be instituted by the presentation of plaint or in any other
manner as prescribed by the law. In every plaint, the facts of the plaint have to be proved by an
affidavit. Here are certain essential elements of a suit -
The opposing party/parties - In every suit there has to be at least one plaintiff and one defendant.
There can be more than one plaintiff or defendant where the suit or the decree passed by the suit
can affect more than one person.
Cause of action – Every suit must contain a cause of action, which refers to the cause or set of
circumstances which leads to a suit. It should contain every necessary fact that has to be proved to
entitle plaintiff for the decree.
The subject matter – It is the right that has been claimed in a suit. The court adjudicate on such
right or in case of suit against property on such property with regards to the subject matter of the
dispute.
Prayer – Every plaint should disclose the specific relief claimed by a party in form of prayer. If a
person is entitled to more than one relief by the same cause of action then he can claim for all of
such relief in one prayer. For example, if A wrongfully took possession of B’s house without any
lawful justification, then A claim the relief of recovery of house as well as mesne profit earned by B
during such period of wrongful possession of property.
Parties to Suit (Order – I)
Order I deal with parties to the suit, the joinder of parties, non-joinder of necessary parties and
effects of-

Rule 1 – Joinder of plaintiffs

This rule deals with joinder of plaintiffs, I.e. who all can be joined as a plaintiff in a single suit.
Basically it states two conditions in which several people can be joined as plaintiff in a single suit.
All plaintiffs can be joined as joinder of parties in one suit against the defendant if there is a same
question of law & fact which means that all of the plaintiffs are seeking relief under a single law and
with a single series of facts.
Or if the plaintiff feels that there are same acts or transactions which means that all the plaintiffs
are having the feeling that the cause of action to suit arises due to the same facts. The object of
joinder of plaintiffs is to save time, money, speedy trial and avoid multiplicity of suits.

Rule 2 - Separate trial

Where is appears to the court that joinder of plaintiffs under rule 1 can affect the process adversely
or embarrass or delay the trial then the court may put the plaintiffs to go for separate suits.

Rule 3 – Joinder of defendants

In case where a person feels that his right has been violated by several persons in a single series of
transaction and the same question of law or fact will arise against all of them since the violation of
his right took place in a single transaction then he can file a single suit against all of such persons
stating all of them as defendants. While Rule 3 A empowers the court to order separate suit where
appears to the court that joinder of defendants can affect the process adversely or embarrass or
delay the trial.

Rule 9 – Non – joinder/ Misjoinder of parties

Where a party who is a necessary party to a suit has not been joined as a party to the suit, it will be
considered as non – joinder of necessary party. If the decree cannot be executed effectively without
the absent parties, the suit is liable to be dismissed. In the cases where joinder of a party is only a
matter on convivence then the absent party may be added or even the suit can be tried without him,
such parties are known as proper parties. It means that a suit without the joinder of a necessary
party will be fatal and the court cannot execute a decree, but without the joinder of proper party
suit will not be fatal. Rule 9 simply states that ‘No suit shall be defeated by reason of the misjoinder
or nonjoinder of parties,
and the Court may in every suit deal with the matter in controversy so far as regards the rights and
interests of the parties actually before it, provided that nothing in this rule shall apply to non-
joinder of a necessary party.’ It is clear by the language of the provision that non joinder of a party
is a rule and non-joinder of a necessary party is a proviso to such rules.

Rule 10 – Striking out, adding or substituting parties

It provides remedy when a suit is filed in the name of wrong plaintiff and empowers the court to
strike out any party improperly joined or to implead necessary party at any stage of proceedings.
This rule provides two grounds of striking out, adding or substituting parties I.e.
He ought to have been joined as plaintiff or defendant and is not so joined,
Without his presence the question involved in suit cannot be decided.
This rule also empowers court to substitute the plaintiff who is a wrong person by the right plaintiff
if the suit has been instituted by a Bonafide mistake and it is necessary for the real determination of
matter in controversy. The court can substitute a plaintiff whose presence is necessary to
adjudicate a matter and to settle all the questions of dispute.

Multifariousness of suit
Misjoinder of parties and causes of action in a suit is called multifariousness of suit. Where in a suit
there are two or more defendants and causes of action, the suit will be bad for misjoinder of
defendants and causes of actions.

Rule 8 – Representative Suit

Where there are numerous persons having the same interest in one suit,—
one or more of such persons may, with the permission of the Court, sue or be sued, or may defend
such suit, on behalf of, or for the benefit of, all persons so interested;
the Court may direct that one or more of such persons may sue or be sued, or may defend such suit,
on behalf of, or for the benefit of, all persons so interested.

This type of suit is known as representative suits.

2. The Court shall, in every case where a permission or direction is given under sub-rule (1), at the
plaintiff's expense, give notice of the institution of the suit to all persons so interested, either by
personal service, or, where, by reason of the number of persons or any other cause, such service is
not reasonably practicable, by public advertisement, as the Court in each case may direct.
3. Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule
(1), may apply to the Court to be made a party to such suit.
4. No part of the claim in any such suit shall be abandoned and no agreement, compromise or
satisfaction shall be recorded in any such suit, unless the Court has given, at the plaintiff's expense,
notice to all persons so interested in the manner specified in sub-rule (2).
5. Where any person suing or defending in any such suit does not proceed with due diligence in the
suit or defense, the Court may substitute in his place any other person having the same interest in
the suit.
6. A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for
whose benefit, the suit is instituted, or defended, as the case may be.
Explanation. — For the purpose of determining whether the persons who sue or are sued, or
defend, have the same interest in one suit, it is not necessary to establish that such persons have the
same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or
defend the suit, as the case may be.
Order I rule 8 provides for the representative suits I.e. suit by one or more person on behalf of
themselves and others having the same interest in the suit. This rule is an exception to the rule that
all interested persons shall be made the parties to the suit. The parties must be numerous in the
cases of representative suits, and one or more person may sue or may be sued on behalf of all other
parties. This rule avoids the multiplicity of suits. This provision is an enabling clause but it does not
compel an individual to represent body of persons having the same interest if his action is
otherwise maintainable without joining the rest in the suit.
Rule – 8A Power of Court to permit a person or body of persons to present opinion or to take part in
the proceedings.
While trying a suit, the Court may, if satisfied that a person or body of persons is interested in any
question of law which is directly and substantially in issue in the suit and that it is necessary in the
public interest to allow that person or body of persons to present his or its opinion on that question
of law, permit that person or body of persons to present such opinion and to take such part in the
proceedings of the suit as the Court may specify.

Institution of Suit (Order IV)

This order contains only 2 rules. Rule 1 states that every suit shall be instituted by presenting paint
in duplicate to the court and comply with the conditions of order VI & VII, while rule 2 states about
register the suit in the books kept for the purpose called the register of civil suits.

Frame of Suit (Order – II)

This order provides that all the possible cause of actions arising out of a single set of facts between
the same parties should be pleaded at once. The object of this order is to avoid the multiplicity of
suit on the same cause of action.

Rule 1 – All reliefs should be claimed at once

The suit should be filed in such a manner that all the matters relating to that single cause of action
between the parties to the suit can be resolved at once. This will also bar a party to raise any further
issues because of same cause of action.

Rule 2 – Voluntarily relinquishing the claim or relief gives rise to implied bar to sue for the same
again
Every suit should include whole claim which the plaintiff is entitled to raise under a single cause of
action, but the plaintiff under this rule can relinquish any part of claim to bring the suit within the
jurisdiction of the court. Here it is important to note that if the plaintiff relinquishes any claim to
bring the suit within in the jurisdiction of the court, then he will also end up with his right to sue for
the unclaimed amount. This rule also states that if a person is entitled to more than one relief in
respect of the same cause of action may sue for all or any of such relief but if he decides to leave
some of the claim without the leave of the court then he cannot sue afterwards for such reliefs. This
rule is also known as implied bar to sue.

Exceptions of Rule II
Rule II does not apply on the execution applications of a decree.
Failure to claim set off has no bar on the subsequent suit.
Rule II is not applicable in the cases of writ jurisdiction of a high court filed under Article 226.
Rule II does not apply in the cases of appeal from order or decree.
Rule II is not applicable in the cases of settlement outside the court under sec. 89 of the act.

Rule 4 – Only certain claim has to be joined for recovery of immovable property
No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of
immovable property, except—
(a) Claims for mesne profits or arrears of rent in respect of the property claimed or any part
thereof;
(b) Claims for damages for breach of any contract under which the property or any part thereof is
held'; and
(c) claims in which the relief sought is based on the same cause of action.
Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or
redemption from asking to be put into possession of the mortgaged property.
Pleadings in General (Order VI)
The term pleading includes a plaint and written statement, thus to sue as an indigent person is not a
pleading. It is important to note that a pleading should contain only factaprobandaI.e. is the main
fact which is in issue between the parties to the suit, not facta probantia I.e. circumstantial facts
which prove the fact in issue (facta Probanda).

Rule 1 – It simply states that pleading shall include plaint and written statement.

Rule 2 – Pleading in a suit should contain only the material facts which are the grounds of defence
and attack, but not the evidence to prove such facts. It means that the pleading has to be concise.

Rule 4 – Where any party pleads any misrepresentation, fraud, willful concealing of a fact, breach of
trust, or undue influence, it has to be pleaded especially in the pleadings.

Rule 6 – The party in the pleading should distinctly contain the condition precedent, the
performance of which has to be contested and, relied on such condition.

Rule 7 – No pleading except by the way of amendment in pleading, may give rise to a new ground of
claim or allegation of fact inconsistent with the previous pleading.
Rule 8 – A mere denial of a contract does not give rise to a valid pleading, the party has to
specifically deny the existence of such contract or else it will be considered only as a denial of a fact
of the express contract not as a denial of the legality or sufficiency of such contract in law.
Example – A pleads in this plaint that he has entered into a contract on 27th June 2021 to sell his
house to B at the cost of Rs. 50 Lacs. B promised A to deliver the money after 5 months I.e. on 28th
November 2021, and after relying on B’s statement A immediately delivered house to B, later on
when A went to B’s place after the ending of 5 months to collect the money B denies to pay the
money. Suppose B pleads in his written statement that he has not paid any money to A on 28th
November 2021 since he does not owe any money to A, then it is not sufficient to prove that there
was no existence of a contract between A & B. B has to plead that he has not entered into a contract
with A to sell his house to him so he is not liable to pay any amount to A.

Rule 10 – In the cases where a party wants to plead the malice, fraudulent intention or knowledge
of another party about a specific fact then it is sufficient to allege the same without stating the
material facts proving the same.
Rule 15 – Every pleading shall be varied at the foot by the party or by one of the parties pleading.
The person signing such pleading has to sign and verify each paragraph of the document and has to
confirm that the information is true upon information received and believed by him.

Rule 16 – The court has the power to amend or strike out any part of the pleading at any stage of
trial which the court finds to be frivolous, vexatious, scandalous or unnecessary in nature. The court
can strike out any part of the pleading if it embarrasses the suit or causes delay in the trial of suit.

Rule 17 – The Court may at any stage of the proceedings allow either party to alter or amend his
pleadings in such manner and on such terms as may be just, and all such amendments shall be
made as may be necessary for the purpose of determining the real questions in controversy
between the parties : Provided that no application for amendment shall be allowed after the trial
has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party
could not have raised the matter before the commencement of trial.
In the case of Kishan Das v. Rachappa Vithora, the court held that Order VI Rule 17 is an inclusive
clause, and the court can allow the amendment in the pleading to know the real matter of
controversy between the parties. There are certain cases in which leave to amend the pleadings
cannot be granted by court, as follows -
It cannot be used to give advantage or disadvantage to any party to the suit.
The court can deny to amend the plaint if the court feels that the amendment is not necessary to
understand the real controversy between the parties.
The court can reject amendments in the pleadings if the court feels that the party is trying to
incorporate another matter in the present suit which is barred by the limitation laws.
If the amendment proceeds are unlawfully affecting the right of another party to the suit, then also
the court can reject such amendments in the pleading.
Dalip Kaur v. Major Singh (AIR 1996 P & H 107)
In this case, the plaintiff filed an application under O.VI, R.17 of CPC, seeking amendment of the
plaint. The application of amendment was dismissed by the trial court on the ground that the same
has been filed without explaining the alleged inordinate delay and that the proposed amendment of
the plaint was likely to change the foundation of the suit by introducing the distinct cause of action.
The High Court held that the relief claimed is not barred by time and by the proposed amendment
no vested right of the respondent would be taken away. The amendment does not defeat any legal
right allegedly accrued to the opposite party and the delay in filing the petition for amendment can
property be compensated by costs. The plaintiff was permitted to amend the plaint subject to
payment of Rs.1000/- as costs.
The High Court observed that the purpose and object of O.VI, R.17, is to allow either party to alter
or amend his pleadings in such manner and on such terms as may be just. The object of the rule was
to decide the rights of the parties and not to punish them for their mistakes, by allowing the
amendment of pleadings in the appropriate cases. The exercise of such far-reaching discretionary
power is governed by judicial considerations and wider the discretion greater has to be the care
and circumspection on the part of the court.
It is true that amendment cannot be claimed as a matter of right and under all circumstances. The
circumstances under which the prayer for amendment of the pleadings is to be allowed, as
indicated hereinbelow, are general and not exhaustive. The circumstances may differ from case to
case and it would depend upon the facts of each individual case keeping in view the object that the
Courts are to do substantial justice and not to punish a party on technical grounds. If the result of
the application is only to force a party to start fresh litigation, such an approach must be
discouraged and the parties allowed to litigate in the same lis with respect to the subject matter of
the dispute without changing its basic character of the nature of the litigation.
On the basis of the different judgments it is settled that the following principles should be kept in
mind in dealing with the applications for amendments of the pleadings:-
(i) All amendments should be allowed which are necessary for determination of the real
controversies in the suit.
(ii) The proposed amendment should not alter and be a substitute of the cause of action on the
basis of which the original issue was raised.
(iii) Inconsistent and contradictory allegations in negation to the admitted position of facts or
mutually destructive allegations of facts would not be allowed to be incorporated by means of
amendment.
(iv) Proposed amendments should not cause prejudice to the other side which cannot be
compensated by means of costs.
(v) Amendment of a claim or relief barred by time should not be allowed.
(vi) No amendment should be allowed which amounts to or results in defeating a legal right to the
opposite party on account of lapse of time.
(vii) No party should suffer on account of the technicalities of law and the amendment should be
allowed to minimize the litigation between the parties.
(viii) The delay in filing the petitions for amendment of the pleadings should be property
compensated by costs.
(ix) Error or mistake which if not fraudulent should not be made a ground for rejecting the
application for amendments of pleadings.
Jai Jai Ram Manohar Lal v. National Building Company (AIR 1969 SC 1267)
The power to grant amendment of the pleadings is intended to serve the ends of justice and is not
governed by any such narrow or technical limitations. An amendment to the plaint for the purpose
of rectification of the mis-description of the name of the party is allowable.
The facts of the case are similar to as given in the case in question. The trial court allowed the
amendment, but the High Court disallowed it on the ground that the suit instituted by the Joint
Hindu Family business in the name of an assumed business title was a suit by a person who did not
exist and was therefore a nullity Hence there could be no amendment of the description of such a
plaintiff who did not exist in the eyes of law. The plaintiff had failed to aver in the amendment
application that action was instituted in the name of 'Jai Jai Ram Manohar Lal' on the account of
some bona fide mistake.
Further, the amendment could not take retrospective effect and was therefore barred by the law of
limitation. The substitution of the name of Manohar Lal as a plaintiff during the pendency of the
action took effect from July 18, 1952, and the action must be deemed to be instituted on that date:
the amendment could not take effect retrospectively and on the date of the amendment the action
was barred by the law of limitation.
The Supreme Court in appeal reversed the order and the reasoning of the High Court. The Court
referred to the decision in AmulakchandMewaram v Babulal Kanalal (AIR 1933 Bom 304): The
question whether there should be an amendment or not, really turns upon whether the name in
which the suit is brought is the name of a non-existent person or whether it is merely a mis
description of existing persons. If the former is the case, the suit is a nullity and no amendment can
cure it. If the latter is the case, prima facie there ought to be an amendment because the general
rule, subject no doubt to certain exceptions, is that the court should always allow an amendment
where any loss to the opposing party can be compensated for by costs.
The Supreme Court also referred to and relied upon another case, namely, Purushottam Umedilal&
Co. v Manilal & Sons4 (AIR 1961 SC 325), wherein a firm carrying on business outside India filed a
suit in the firm name in the High Court for a decree for compensation for breach of contract. Then
the plaintiff applied for an amendment of the plaint by describing the names of all the partners and
striking out the name of the firm as a mere mis description. The court allowed the amendment to
enable a proper description of the plaintiffs to appear in it in order to assist the court in
determining the real question or issue between the parties. The court observed that if under some
mis-apprehension, persons doing business as partners outside India file a plaint in the name of
their firm they are misdescribing themselves, as the suit instituted is by them being known
collectively as a firm. Such a plaint is not by itself a nullity. It is the plaint by all the partners of the
firm with a defective description of themselves for the purpose of the C.P.C.
The Supreme Court, in the present case, observed: The plaintiff was carrying on business as
commission agent in the name of "Jai Jai Ram Manohar Lal." The plaintiff was competent to sue in
his own name as Manager of the Hindu undivided family to which the business belonged; he says he
sued on behalf of the family in the business name. The observations made by the High Court that
the application for amendment of the plaint could not be granted because there was no averment
therein that the misdescription was on account of a bona fide mistake, and on that account the suit
must fail, cannot be accepted. In our view, there is no rule that unless in an application for
amendment of the plaint it is expressly averred that the error, omission or misdescription is due to
a bona fide mistake, the Court has no power to grant leave to amend the plaint. The power to grant
amendment of the pleadings is intended to serve the ends of justice and is not governed by any such
narrow or technical limitations.

The Supreme Court further observed: The rules of procedure are intended to be a hand-maid to the
administration of justice. A party cannot be refused just relief merely because of some mistake,
negligence, inadvertence or even infraction of the rules of procedure. However negligent or careless
may have been the first omission, and, however late the proposed amendment, the amendment may
be allowed if it can be made without injustice to the other side. All amendments should be
permitted as may be necessary for the purpose of determining the real question in controversy
between the parties, unless by permitting the amendment injustice may result to the other side.
The court held that the plaintiff was competent to sue in his own name as Karta of joint Hindu
family to which the business belonged. Since the name in which the action was instituted was
merely a misdescription of the original plaintiff, no question of limitation arises; the plaint must be
deemed an amendment to have been instituted in the name of the real plaintiff on the date on which
it was originally instituted. The court thus granted the amendment to the plaint for the purpose of
rectification of the mis-description of the name of the party.
M/S. Ganesh Trading Co. V. Moji Ram (AIR 1978 SC 484)
[Procedural law is intended to facilitate and not to obstruct the course of substantive justice.
Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of
the other so that it may be met, to enable Courts to determine what is really at issue between
parties, and to prevent deviations from the course which litigation on particular causes of action
must take.]
In this case, the appellant-plaintiff M/s. Ganesh Trading Co. had filed a suit "through Shri Jai
Prakash," a partner of that firm, based on a promissory note, dated 25 August, 1970, for recovery of
Rs. 68,000/-. The non-payment of money due under the promissory note was the real basis. The
suit was filed on 24th August, 1973, just before the expiry of the period of limitation for the claim
for payment. The written statement was filed on 5th June, 1974, denying the assertions made in the
plaint. On 31st August, 1974, the plaintiff filed an amendment application wherein it was stated that
the plaintiff had "inadvertently omitted certain material facts which are not (now?) necessary to
incorporate in the plaint so as to enable the Hon'ble Court to consider and decide the subject-
matter of the suit in its true perspective and which it is necessary to do in order to meet ends of
justice."
It was explained there that the omission consisted of a failure to mention that the plaintiff firm,
Ganesh Trading Co. had been actually dissolved on 15th July, 1973, on which date a deed of
dissolution of the firm was executed. The Trial Court had refused to allow the amendment by its
order dated 8th April, 1975, on the ground that it amounted to the introduction of a new cause of
action. The High Court, agreeing with the Trial Court, observed: The suit originally instituted was
filed on behalf of a firm through one of the partners in the amendment prayed for, a new claim is
being sought to be laid on the basis of new facts. The Supreme Court, however, allowed the
amendment.
The Apex Court observed: "It is true that if a plaintiff seeks to alter the cause of action itself and to
introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause
of action amounting virtually to the substitution of a new plaint or a new cause of action in place of
what was originally there, the Court will refuse to permit it if it amounts to depriving the party
against which a suit is pending of any right which may have accrued in its favour due to lapse of
time. But, mere failure to set out even an essential fact does not, by itself, constitute a new cause of
action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff
must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If
any essential fact is lacking from averment in the plaint the cause of action will be defective. In that
case, an attempt to supply the omission has been and could sometime be viewed as equivalent to an
introduction of a new cause of action which cured of its shortcomings, has really become a good
cause of action.
This, however, is not the only possible interpretation to be put on every defective state of pleadings.
Defective pleadings are generally curable if the cause of action sought to be brought out was not ab
initio completely absent. Even very defective pleadings may be permitted to be cured, so as to
constitute a cause of action where there was none, provided necessary conditions such as payment
of either any additional court fees, which may be payable, or of costs of the other side are complied
with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the
Courts should ordinarily, refuse prayers for amendment of pleadings.
The expression 'cause of action' in the present context does not mean 'every fact which it is
material to be proved to entitle the plaintiff to succeed' as was said in Cooke v Gill (1873) 8 CP 107
(116), in a different context, for if it were so, no material fact could ever be amended or added and,
of course, no one would want to change or add an immaterial allegation by amendment. That
expression for the present purpose only means a new claim made on a new basis constituted by
new facts. Such a view was taken in Robinson v Unicos Property Corporation Ltd., 1962-2 All ER 24
and it seems to us to be the only possible view to take. Any other view would make the rule futile.
The words 'new case' have been understood to mean 'new set of ideas,' Dornan v J.W. Ellis and Co.
Ltd. [1962-1 All ER 303]. This also means to us to be a reasonable view to take. No amendment will
be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by
lapse of time."
The Court held: In the case before us, the suit having been instituted by one of the partners of a
dissolved firm the mere specification of the capacity in which the suit was filed could not change the
character of the suit or the case. It made no difference to the rest of the pleadings or to the cause of
action. Indeed, the amendment only sought to give notice to the defendant of facts which the
plaintiff would and could have tried to prove in any case. This notice was being given, out of
abundant caution, so that no technical objection may be taken that what was sought to be proved
was outside the pleadings. Even if a firm has been dissolved, the effect of dissolution is not to
render the firm non-existent. It continues to exist for all purposes necessary for its winding up. One
of these is of course the recovery of moneys due to it by suit or otherwise.
The Court concluded: We think that the amendment sought does not alter the cause of action. It
only brings out correctly the capacity of the plaintiff suing. It does not change the identity of the
plaintiff who remains the same.
Where in a suit for recovery of dues filed against a partnership firm and its partner the plaintiff
sought leave to add a new defendant on the ground that the assets and liabilities of the defendants
on record were taken over by the new defendant firm, the rejection of the leave to amendment
could occasion an irreparable injury to the plaintiff (Kisan Co-op. Sugar Factory Ltd. v M/ s.
Rajendra Paper Mills AIR 1984 All 143).
B.K. N. Pillai v. P. Pillai (AIR 2000 SC 614)
The courts while deciding prayers for amendment should not adopt hyper technical approach.
Liberal approach should be the general rule particularly in cases where the other side can be
compensated with costs. Technicalities of law should not be permitted to hamper the courts in the
administration of justice between the parties.
Rule 18 – If a party has obtained the order to amend a pleading does not amend it accordingly
within the time limited or when no time limited for the purpose then within 14 days from the date
of such order then he shall not be permitted to amend the pleading after the expiration of such time.

Plaint (Order VII)

Sec. 26 of the act held that every suit has to be instituted by presentation of a plaint, or in such
other manner as prescribed. It is clear by the language of sec. 26 that plaint is an important
document for initiation of any proceeding in any civil court. In every plaint the facts are to be
proved on affidavit.

Rule 1 – This rule contains the important things that has to be incorporated in a plaint. These things
are as follows -
(a). The name of the court in which suit is brought;
(b) The name, description and place of residence of the plaintiff;
(c) The name, description and place of residence of the defendant, so far as they can be ascertained;
(d) Where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that
effect;
(e) The facts constituting the cause of action and when it arose;
(f) The facts showing that the Court has jurisdiction;
(g) The relief which the plaintiff claims;
(h) Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so
allowed or relinquished; and
(i) A statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of
court-fees, so far as the case admits.
Rule 2 & 3 – These rules deal with specific types of suits and the requirement of plaint as per the
nature of those suits. Rule 2 says that in the cases of money suit, the plaint shall disclose the precise
amount that has been claimed, but in the cases of mesne profits the plaint can discuss an estimated
amount decided by reasonable diligence. While rule 3 talks about essentials of plaints in the cases
of immovable property, in such suits the plaint shall contain sufficient description of property to
identify the property like boundaries or number of records of settlement survey.

Rule 4 – Where a plaint is of representative character the plaint should show that the party suing on
behalf of another parties has an actual interest in the suit and he has taken all the necessary step
which empowered him to sue on behalf of all other parties.
Rule 9 – This rules states that once a plaint has been admitted the court can order the plaintiff to
present as many copies of plaint on a plain paper as there are defendants within 7 days from the
date of such order along with the requisite fees for the service of such copies of plaint along with
summon to the defendants.

Rule 10 – This rule states the grounds of returning of plaint at any stage of suit for the presentation
of plaint in the proper court of law. Even a court of appeal or revisional court can also do the same
after setting aside the decree.
Judges must give the reasons behind returning such plaint. This rule is not applicable in the cases of
applications. Rule 10 A states that where the defendant appeared the court must, before returning
the plaint, must intimate its decision to the plaintiff. Then, the plaintiff can make an application to
the court specifying the court in which he desires to present the plaint; praying that the court may
fix a date for the appearance of the parties in the said court; and that the notice to such date may be
given to him and the defendant. It is important to note that Return of plaint is not a decree so is not
appealable in any appellate court.

Rule 11 – This rule states about rejection of plaint. Rejection of plaint is a deemed decree as per Sec.
2 (2) of the code. It states certain grounds of rejection of a plaint, I.e. -
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to
correct the valuation within a time to be fixed by the Court, fails to do so;
(c) Where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently
stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper
within a time to be fixed by the Court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law;
(e) Where it is not filed in duplicate;
(f) Where the plaintiff fails to comply with the provisions of rule 9.

These are expressly mentioned the grounds of rejection of a plaint, but this list in not exhaustive.
There can be other grounds also for the rejection of a plaint such as not disclosing the merit of the
case, the vexatious, or the party doesn't have a right to sue etc. In all such cases the court must
record the reason behind such rejection of plaint. A rejection of plaint does not bar a plaintiff to file
a suit on same cause of action again. The order of rejection of plaint is appealable in the superior
court. A plaint cannot be rejected in parts and retained in parts it has to be rejected or allowed as a
whole.
Saleem Bhai v. State of Maharasthra (2003) 1 SCC 557.
In this case, the question was whether an application w/O.7, R.11, CPC ought to be decided on the
allegation in the plaint and filing of the written statement by the contesting defendant is irrelevant
and unnecessary.
The appellant filed an application under Order 7, Rule 11 in the suits praying the court to dismiss
the suits on the ground stated therein. It is stated that the plaint is liable to be rejected under
Clauses (a) and (d) of Rule 11 of Order 7. The learned Judge, however, directed the appellant to file
his written statement. The High Court, while confirming the order of the learned Trial Judge
reiterated the direction given by the learned Trial Judge that the appellant should file his written
statement.
Learned senior counsel for the appellant contended that having regard to the very nature of the
relief claimed by the plaintiffs, the plaints are liable to be rejected under Order 7, Rule 11 and that
the court ought to have considered the said application or merits instead of giving direction to file
written statement which would amount to not exercising the jurisdiction vested in the court. It is
further contended that the High Court also did not appreciate that the plaints do not show any
cause of action and that the plaint ought to have been rejected as the suit is barred by the principles
of res judicata and lis pendens.
The Supreme Court observed: A perusal of O.7, R.11 makes it clear that the relevant facts which
need to be looked into for deciding an application thereunder are the averments in the plaint. The
trial court can exercise power under O.7, R.11 at any stage of suit -before registering the plaint or
after issuing summons to the defendant at any time before the conclusion of the trial. For the
purposes of deciding an application under clause (a) and (d) of R.11. of 0.7, the averments in the
plaint are germane, the pleas taken by defendant in the written statement would be wholly
irrelevant at that stage.
Therefore, a direction to file the written statement without deciding the application under O.7, R.11
cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court. The
order, therefore, suffers from non-exercising of the jurisdiction vested in the court as well as
procedural irregularity.
Rule 14 to 18 – Plaintiff shall submit all the supporting document which are in the possession of
plaintiff at the time of preparing the plaint along with a list of such documents (Rule 14). In case if
those documents are not in the possession of the plaintiff, then he has to state to the court then he
has to state that in whose possession such documents were at the time of drafting of plaint (Rule
15). If a suit is filed against any negotiable instrument and it is proved in the court that such
document is lost then the party has indemnified against all the claims arising out of such document
then the court will pass a decree that such document is in the possession of the party (Rule 16). In
the cases where the plaintiff sues on shop books then the court shall examine such shop books or
accounts at the time of presentation of plaint and keep a copy of such shop book with a recorded
reason (Rule 17). If the plaintiff does not produce any document in the list or does not produce any
document then it cannot be treated as an evidence without the leave of the court. The plaintiff need
not to present any document which he is going to use to cross examine a witness or handover to a
witness to refresh his memory (Rule 18).
As per sec. 27 of the code when a suit has been duly instituted, a summon has to be issued to the
defendant to appear and answer the claim and may be served in the manner prescribed by the high
court as per sec. 128 of the code, and the defendant has to appear and answer such questions of
plaint not beyond 30 days from the date of institution of suit in form of written statement, counter
claim or set off. Sec. 28 of the code states about the service of summon where the defendant resides
in another state. Sec. 28 states that the summon to a defendant residing in another state has to be
served in the manner prescribed by the high court of the state in which he is residing. The court
issuing the summon shall send it for the service to the court within which the defendant is residing.
In case if the language of the court issuing the summon is different from the court where it has sent
for service then if the court which is issuing the summon is having Hindi language, then in Hindi or
if the court issuing the summon does not follow Hindi then in either Hindi or in English language.
Sec. 29 of the act states about service of foreign summon. It states that if a court outside the
territory of India to which central government held that the provisions of this code are applicable
or a court within the territory of India to which the provisions of this code are not applicable, issue
a summon against a party residing in India then it has to send it to the court within whose
territorial jurisdiction such defendant is residing. Such court shall serve the summon as if it has
issued by such court.

Issue and Service of Summon (Order V)

This order states about the manner in which a summon issued by the court can be served to the
defendant. The main object of service of summon is to intimate a party that another party has
instituted a suit against him and he has to appear in the court which issued the summon to answer
such issues addressed by the plaintiff in the plaint, so the main object of service of summon is to
fulfill the condition of audi alterum partemI.e. hear the other party as well before deciding the suit.
Essentials of service of summon issued by the court -
A summon has to be signed by the presiding judge of a court issuing the summon or any other
person authorized by the judge to sign such summon. (Rule 10)
A summon has to be served to the defendant in a sealed packet of the court and shall be
accompanied by the copy of plaint. (Rule 2)
The defendant has to reply to the plaint in form of written statement within 30 days from the date
of service of summon and in exceptional cases it may go up to 90 days. (Rule 1)
The defendant can appear in the court issued the summon in person or through the duly instructed
pleader as per sec. 119 of the act. (Rule 1)
The court cannot serve the notice of personal appearance to the defendant if he is falling within sec.
132, 133, 135, 135 – A.
Sec. 132 states that if the defendant is a woman not allowed by her customs to appear in public then
she cannot be forced to appear in the court.
Sec. 133 states about a category of persons exempted from personal appearance in the court of law,
which includes the following people -
(i) The President of India;
(ii) The Vice-President of India;
(iii) The Speaker of the House of the People;
(iv) The Ministers of the Union;
(v) The Judges of the Supreme Court;
(vi) The Governors of States and the administrators of Union territories;
(vii) The Speakers of the State Legislative Assemblies;
(viii) The Chairman of the State Legislative Councils;
(ix) The Ministers of States;
(x) The Judges of the High Courts; and
(xi) The persons to whom section 87B applies. Sec. 87B of the act states about foreign ruler.

Sec. 135 of the act states about No Judge, Magistrate or other judicial officer shall be liable to arrest
under civil process while going to, presiding in, or returning from, his Court. In case of a person
appearance is necessary in front of a tribunal then the parties, their pleaders, mukhtars, revenue-
agents and recognized agents, and their witnesses acting in obedience to a summons, shall be
exempt from arrest under civil process other than process issued by such tribunal for contempt of
Court while going to or attending such tribunal for the purpose of such matter, and while returning
from such tribunal.

Sec. 135 A states about exemption of certain other legislative bodies members such as member of
either House of Parliament, or
(ii) the Legislative Assembly or Legislative Council of a State, or
(iii) a Legislative Assembly of a Union territory,
then their appearance cannot be enforced by the service of summon when such legislative body is
in session or in any meeting or in any joint sitting of two houses of such legislative body.
There is another category of people which cannot be enforced to appear by the service of summon
that is defined under Order V rule 4 of the act, which states that ‘No party shall be ordered to
appear in person unless he resides—
(a) Within the local limits of the Court's ordinary original jurisdiction, or
(b) Without such limits but at place less than fifty or (where there is railway or steamer
communication or other established public conveyance for five-sixths of the distance between the
place where he resides and the place where the Court is situated) less than two hundred miles
distance from the court-house.’

Contents of Summon
A summon should contain the intention of service of such summon. There can be two intentions to
serve a summon to the defendant, it can be either for the settlement or for final disposal of the suit.
If the summon is for settlement, then the defendant needs to produce all the documents through
which he is going to defend the case. In the cases of final disposal, the summon shall seek to the
presence of witness and in that case sufficient time will be given to the defendant to defend his case.
(Rule 5) There is no requirement of service of summon in the cases where the defendant appears in
the court at the time of filing of the plaint and accepts the claim made by the plaintiff. (Rule 1)
Court may order defendant or plaintiff to appear in person if the court feels that the personal
appearance of either plaintiff or defendant or both of them is necessary. The court can specify a day
for the appearance of such party. (Rule 6)
The court can order defendant to produce documents relied on by him as per rule 1A of order VIII
of the code. (Rule 7). In case where the court feels that the presence of witness is also necessary for
the final disposal of suit then the court can order the defendant to produce his witnesses as well.
(Rule 8)

Service of Summon
Where the defendant resides within the jurisdiction of the court in which the suit is instituted, or
any of his agent who is empowered to accept the summon on his behalf then the court can send
such summon to the proper officer of the court appointed for the service of summon or through any
courier service approved by the court. The service of summon can also be made by delivering or
transmitting a copy thereof by the registered post addressing to the defendant or his agent or by
any speed post as approved by the high court of the state for the service of summon. All the
expenses of service of summon have to be made at the expense of plaintiff. Where a summon has
been duly served to the defendant then the postal or courier service or the person appointed by the
court for the service of summon should come up with a receipt of such service of summon in the
court. In case where the defendant refuses to accept the summon then also the court will consider
that the summon has been duly served. (Rule 9)
Where on the application of the plaintiff, a summon has been given to the plaintiff to serve it to the
defendant personally it's called Dasti Summon. (Rule 9A)

Modes of Service of Summon

Direct Service of Summon (Rule 10 – 16 & 18)
A summon has to be signed by the judge of the court or a person appointed by the court for such
service of summon and sealed with the seal of court (Rule 10). Where, there are more than one
defendant, a copy of summon has to be served to each defendant (Rule 11). Wherever it is practical
summon has to be served to the defendant or his agent directly (Rule 12). In the cases of suit
relating to a business, a summon can be served to an agent of the defendant who is taking care of
the business of the defendant as an agent or manager, if the defendant does not reside within the
local jurisdiction of the court issuing such summon (Rule 13). In a suit relating to any business or
work against a person who does not reside within the local limits of the jurisdiction of the Court
from which the summons is issued, service on any manager or agent, who, at the time of service,
personally carries on such business or work for such person within such limits, shall be deemed
good service (Rule 14). In cases where the defendant is absent from his residence at the time when
the service of summon is sought to be affected on his at his residence and there is no likelihood of
his being found at the residence within a reasonable time and he has no agent to accept the service
of summon on his behalf then the summon can be served to any adult member of his family being it
male or female (Rule 15). Where the summon has been served to the defendant or his agent, they
have to sign the copy of acknowledgment of service endorsed on the original summon (Rule 16).
Whan a summon has been duly served then the serving officer shall endorse or annex a returning
statement stating the time, date and manner of service of summon, and the name and address of the
person to whom the summon has been served and if practicable attach the enclosure of a witness
witnessing the delivery of the summon (Rule 18).

Substituted Service of Summon (Rule 17 & 20)

Where the defendant or his agent or such other person as aforesaid refuses to sign the
acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot
find the defendant, 2 [who is absent from his residence at the time when service is sought to be
effected on him at his residence and there is no likelihood of his being found at the residence within
a reasonable time] and there is no agent empowered to accept service of the summons on his
behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of
the summons on the outer door or some other conspicuous part of the house in which the
defendant ordinarily resides or carries on business or personally works for gain, and shall then
return the original to the Court from which it was issued, with a report endorsed thereon or
annexed thereto stating that he has so affixed the copy, the circumstances under which he did so,
and the name and address of the person (if any) by whom the house was identified and in whose
presence the copy was affixed (Rule 17). Where the Court is satisfied that there is reason to believe
that the defendant is keeping out of the way for the purpose of avoiding service, or that for any
other reason the summons cannot be served in the ordinary way, the Court shall order the
summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and
also upon some conspicuous part of the house (if any) in which the defendant is known to have last
resided or carried on business or personally worked for gain, or in such other manner as the Court
thinks fit (Rule 20).

Special service of Summons (Rule 24 – 29)

Where there the defendant is confined in a prison, the summon shall be delivered or sent by the
post or any courier service authorized by the high court or through electronic message to the officer
in charge of the prison where such person is kept (Rule 24). If the defendant resides outside the
territory of India, then it has to be served by the registered courier service or through electronic
mail (Rule 25). The court can also make a service of summon through a political agent or court
appointed by the central government (Rule 26). Where the defendant is a public servant then the
summon can be served to the head of the department in which he is working as an employee (Rule
27). Where the defendant is a soldier, sailor or airman the court can serve the summon to the
commanding officer of such defendant (Rule 28). Where any summon has been served under rule
24, 27 & 28 the person to whom the summon is served or delivered or sent shall be bound to serve
it to the person to whom it is intended to be served.

Rule 1 B – This rule states that once a matter has been referred to an authority under sec. 89 (1) of
the code, the parties has to appear before such authority for the settlement of the dispute.

Rule 1 C – This rule states that when the authority is of the opinion that the process of alternate
dispute resolution mechanism will cause injustice then it can refer the matter to the court for
deciding.

Written statement, set off and Counter Claim (Order VIII)

This order prescribes the rules through which defendant can reply contention (fact in issue) raised
by plaintiff in his plant. Written statement is a document submitted by the defendant in reply of the
statement made by the plaintiff. Set off is a type of legal claim made by the defendant against the
plaintiff to recover his money. Generally, set off is filed with written statement. Let’s understand it
through an example suppose A files a suit against B for the debt of Rs. 2000/-. B in reply to A’s suit
decided to file another suit for the recovery of his 10,000/- which has paid to A on a previous
occasion, so here B’s claim for Rs. 10,000/- can be considered as set off. In case of counter claim, a
defendant in a suit may, in addition to his right of pleading a set-off under rule 6 A to G, by way of
counter-claim against the claim of the plaintiff, any right or 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 or before the time limited for delivering his defence has
expired, whether such counter-claim is in the nature of a claim for damages or not. Suppose, A filed
a suit against B for injunction on the property in which B is residing at present. B contents through
the counter claim that he had better title on the property as compared with A. The court allows B to
stay in the property and granted injunction to B against A who was originally the plaintiff, so it can
be considered as B has succeeded in his counter claim.
Rule 1 – This rule empowers the defendant to file a written statement of his defence in reply to the
summon served to him within 30 days of such service of summon. In case, where the defendant was
unable to file the written statement within 30 days, then the court can allow him to file the written
statement within 90 days of service of summon but in no case, it can go beyond 90 days.

Rule 1A – This rule states that the defendant has to produce all the necessary document on which
he is relying in his written statement.
Rule 2 – In case where the defendant feels that there is no fact in issue in the plaint or the suit is
expressly or implied bar by law or by limitation, he has to add such things in his written statement.

Rule 3 – This rule states that the defendant has to make specific denial of the facts which he does
not admit. Mere general denial will not be sufficient to the facts alleged in the plaint.

Rule 4 – This rule deals with evasive denial which means that suppose plaintiff alleges that
defendant took a certain sum of money from him, it shall not be sufficient to deny that he received
that particular amount, but he must deny that he received that sum or any part thereof, or else set
out how much he received.

Rule 5 – This rule states that if a particular fact hasn’t denied by the defendant in the written
statement, it can be considered as he has accepted such fact.

Rule 6 – This rule states about legal set off. Set off can be defined as the extinction of debts of which
two persons are reciprocally debtor to one another by the credits of which they are reciprocally
creditors to one another. Through this definition we can say that set off means that the defendant
can claim set off against the amount claimed by the plaintiff. Legal set off should be an ascertained
sum of money legally recoverable. Legal set off is a matter of right of the party, and does not require
that the claim should be from the same transaction. In cases where a legal set off has been claimed
it will have the same effect as of cross suit by the defendant which means that all the rules of a
plaint shall apply in the cases of legal set off and the plaintiff will be given the time to file the
answer of such legal set off and the rules of written statement shall apply on such answer of the
plaintiff.

Essentials of set off

Suit must be for the recovery of money.
The recoverable money should be legalized.
The amount should be an ascertained sum of money.
Set off amount should be within the pecuniary jurisdiction of the court.
Set off is treated as a plaint filed by the defendant but such set off does not get new suit number and
both set off and original claims are decided by a single suit.
Types of set off
Legal Set off (As defined under Order VIII Rule 6)
Equitable set off – This set off is for uncertain sum of money whether legally recoverable or not but
the court allows the same to avoid any discrimination or injustice with the defendant. It is purely on
court’s discretion to allow or reject the claim of equitable set off.
The explained the concept of equitable set off through a case, Harichand Dwarika Das Cloth Market
v. Firm Murlidhar. In this case, there was contract between plaintiff and defendant. The plaintiff
breached the contract due to which defendant stopped the remaining payment of Rs. 50,000/-.
Now plaintiff filed a suit against defendant for the recovery of Rs. 50,000/-. Defendant in written
statement contained that plaintiff himself breached the contract due to which the defendant hasn’t
made the remaining payment. The court allowed the contention of defendant considering it as
equitable set off.
Rule 6 A to G – These rules states about counter claim. These rules were no the part of Civil
procedure code originally and added in 1976. Counter claim empowers the defendant to file a suit
against the plaintiff and it does not require the same transaction which was challenged in the plaint
and ascertained sum of money recoverable. Counter claim can be made when the right to sue
accrues either before or after filing the suit. Here it is important to note that the counter claim
cannot exceed the pecuniary jurisdiction of the court. In this case, the court can pronounce
judgement at once against the original claim and counter claim.
Stages on which counter claim can be filed

Counter claim can be filed at 3 stages -

Counter claim can be filed with the written statement. (Order VIII, Rule 2)
Counter claim through the amendments in the pleading. (Order VIII, Rule 7 & 8) - In the cases
where cause of action of counter claim is generated after filing the written statement or in
exceptional cases where the court allows before the filing of written statement as well, counter
claim can be filed through the amendment in the pleading.
Counter claim through the subsequent suit (Order VIII Rule 9)

Difference between set off and counter claim

Set off is a statutory defence to a plaintiff’s action. Whereas a counter claim is a cross action. In
other words, we can say that set off is a shield while counter claim is a sword I.e. the claim of the
defendant in toto. In case of set off, the suit must be arising out of the same transaction while in
counter claim suit can be from same transaction and from different transaction too. The important
thing is it is empowering the defendant against the plaintiff. Where the defendant demands for the
amount up to the extent claimed in the plaint then it is a set off but if the amount goes larger then it
is a counter claim.
Appearance of parties and consequence of non – appearance (Order IX)
This order states about appearance of the parties to suit in the court personally or through their
pleaders. In case, where none of the parties appears in the court on the date fixed for hearing then
the court may dismiss the suit (Rule 3). However, there is no bar to file a suit on the same cause of
action (Rule 4).

Rule 1 – This rule states about the day fixed in the summons for the defendant to appear and
answer, both the plaintiff and the defendant has to appear in the court on such day by personal
attendance or through their representative.

Rule 2 – This rule states about the dismissal of suit in the cases where the plaintiff has not paid the
court fees or the postal charges required for the service of summon due to which the court was
unable to serve the summon to the defendant.

This rule also states that in the cases where the plaintiff has not submitted the copies of plaint
required under Order IX rule 7 of the code. In this rule no appeal can be filed, the only remedy is
revision under sec. 115 of the act.

Rule 3 – In case of non-appearance of both plaintiff and defendant will lead to dismissal of suit
under the code. (Under Rule 2 & # of Order IX a suit can be dismissed by the court but the plaintiff
is not barred to file a fresh suit on the same cause of action.)

Rule 4 – This rule empowers the plaintiff with two types of remedies when a suit has been
dismissed under rule 2 & 3. These remedies are as following -
The plaintiff may subject to law of limitation bring a fresh suit.
The plaintiff may apply for an order to set aside the dismissal if he may satisfy the court that he had
sufficient grounds for such non appearance.

Rule 5 – This rule states the procedure when a summon has been issued to the defendant but it
returned unserved then the plaintiff can within 7 days of returning of such summon can apply to
the court to issue a fresh summon against the same defendant and if he hasn’t applied for the same
then the court can order for dismissal of suit except the case where the plaintiff proves fault of the
defendant, or some other reasonable delay. In the case of Salem Bar Association, court held that
rule 5 is directory not mandatory in nature.
Rule 6 – This rule prescribes 3 cases where the plaintiff has appeared and the defendant hasn’t
appeared on a day fixed for hearing -
Non appearance of defendant after service of summon - Where on a day fixed for hearing only the
plaintiff appeared and the defendant does not appear and the summon has been duly served to the
defendant then the court can order ex parte hearing of suit.
Non appearance of defendant when the summon has not served - Where the summon has not
served to the defendant due to which he hasn’t appeared then the court can direct for the second
service of summon to the defendant.
Non appearance of defendant when the summon hasn’t served in due time - Where the summon
served to the defendant due not in sufficient time to enable him to appear in the court then the
court can order for a next date for the hearing of suit.

Rule 7 – This states about the case when the defendant appears in the court after the court issued
an ex parte order and the defendant appears and shows a good cause for his previous non –
appearance , the court can order defendant to pay the cost of execution of such decree passed by ex
parte hearing and order for the fresh hearing.

Rule 8 – This rule states that when only the defendant appeared on a day fixed for hearing and the
plaintiff does not appears then the court can order the suit to be dismissed, except the case where
the defendant accepts the whole or any part of claim made by the plaintiff.

Rule 9 – This rule precludes the plaintiff thereafter from filing a fresh suit on the same cause of
action when the suit has been dismissed under rule 8. The only remedy plaintiff has to apply for an
order to set aside the order of dismissal by showing sufficient cause for his non – appearance. In the
case of Raman v. Arunachalam, AIR 1936 Ran 335. The court held that if the sufficient cause is
shown then re opening is mandatory or else its decretory for the court. This rule becomes
important since it leaves only one remedy for the plaintiff I.e. to request for the order of set aside
the previous order and start fresh hearing, when the plaintiff brings another suit on the same
subject matter then court has to decide whether its based on same cause of action or not.
The court can decide it by applying the test prescribed in sec. 11 of the act, I.e. if two suits are
substantially and technically has the same cause of action or not. This rule also states that no order
shall be passed under this rule without giving notice to the opposite party, I.e. plaintiff.

Rule 10 - In the cases, where there are more than one plaintiff and anyone or more of them has not
appeared in the court then the court can continue with the suit considering all of them are present
and pass an order as deems fit for all of the plaintiffs.
Rule 11 – The same principles as stated in rule 10 shall apply in the cases of non – appearance of
the defendant as well.

Rule 12 – Where the plaintiff or the defendant has not appeared without showing sufficient cause
whose presence has announced mandatory by the court, then all the foregoing rules of order IX
shall apply on them.

Rule 13 – This rule defines an application by the defendant to set aside ex parte decree passed
against him if he shows any of these two grounds for his non – appearance.
The summon was not duly served to him.
He was prevented by any sufficient cause from appearing.
In these two cases, the court can pass an order to set aside ex parte order as it deems fit looking
into the application made by the defendant. It is also important that if a decree of such a nature that
it cannot be set aside against all the defendant, then it can be set aside against any of them against
whom it can be set aside.

Sangram Singh v. Election Tribunal, Kotah (AIR 1955 SC 425).

[No form or procedure should ever be permitted to exclude the presentation of a litigant's defence.
If a party does appear on "the day to which the hearing of the suit is adjourned', he cannot be
stopped from participating in the proceedings simply because he did not appear on the first or
some other hearing.]
In this case, the defendant and his counsel both fail to appear before the Election Tribunal, as a
consequence of which the Judge permits ex parte proceedings. On subsequent three hearings
several witnesses of the plaintiff were examined in the absence of the defendant and counsel. The
defendant and his counsel put an appearance on the fourth hearing and insist that not only the
order to proceed ex parte be reversed but the defendant should also be permitted to cross-examine
witnesses of the plaintiff who were examined in his absence.
The question, thus, was, whether ex parte proceedings means total debarring of the defendant to
appear before the court on any subsequent date or it merely means that the defendant may appear
on a future date, however, without any right to undo what prejudice has been caused to his interest
in the ex parte proceedings.

The Supreme Court observed as follows:

(i) Ex parte proceedings do not mean that the defendant cannot be allowed to appear at all in the
subsequent proceedings of the suit. It only relates to the particular day of hearing on which the
defendant remains absent. The rule merely authorizes the court to proceed ex parte on the day
when the defendant does not appear.
(ii) The right to proceed ex parte is a right which accrues from day to day because at each
adjourned hearing the court is thrown back to Order 9, Rule 6. It is not a mortgaging of the future,
but only applies to the particular hearing at which a party was afforded the chance to appear and
did not avail himself of it. Therefore, if a party does appear on "the day to which the hearing of the
suit is adjourned", he cannot be to stopped from participating in the proceedings simply because he
did not appear on the first or some other hearing.
(iii) The Code prescribes a procedure, something designed to facilitate justice and further its ends:
not a penal enactment for punishment and penalties, not a thing om designed to trip people up. An
omission to appear in response to a summons carries no penalty in the strict sense.
(iv) Our procedures are grounded on a principle of natural justice which requires that men should
not be condemned unheard; that decisions should not be reached behind their backs, that the
proceedings that affect their lives and property should not continue in their absence and that they
should not be precluded from participating in them.
(v) No form or procedure should ever be permitted to exclude the presentation of a litigant's
defence (T.M. Barret v African Products Ltd. AIR 1928 PC 261).
(vi) Our laws of procedure are based on the principle that, as far as possible, no proceeding in a
court of law should be conducted to the detriment of a person in his absence. There are of course
exceptions, and this is one of them. When the defendant has been served and has been afforded an
opportunity of appearing. then, if he does not appear, the court may proceed in his absence. But, be
it noted, the court is not directed to make an ex parte order. Of course the fact that it is proceeding
ex parte will be recorded in the minutes of its proceedings but that is merely a statement of the fact
and is not an order made against the defendant in the sense of an ex parte decree or other ex parte
order which the court is authorised to make. All that Rule 6(1)(a) does is to remove a bar and no
more. It merely authorises the court to do that which it could not have done without this authority,
namely, to proceed in the absence of one of the parties.
The Supreme Court referred to two opinions constituted in two different judgments. On one side is
the view propounded by Wallace, J. in Venkatasubbiah v Lakshminarasimham (1925) AM 1274, that
ex parte merely means in the absence of the other party and therefore whenever the other party is
present it should be allowed to present its case. Thus a party has a right to appear and plead his
cause on all occasions when that cause comes on for hearing and a party should not be deprived of
that right, unless the Code deprives him of it. On the other side is the view of O'Sullivan J., in
Hariram v Pribhdas, ILR 1945 Ker 1, saying that it means that the court is at liberty to proceed
without the defendant till the termination of the proceedings unless the defendant has a good cause
for his non-appearance.
The Supreme Court followed the former case, and held that though the appellant cannot be
relegated to the same position as he has failed to show good cause, he cannot be denied his right to
contest and be present on subsequent dates. Rules 7 provides that if at an adjourned hearing the
defendant appears and shows good cause for his "previous non-appearance", he can be heard in
answer to the suit "as if he had appeared on the day fixed for his appearance". This cannot be read
to mean, as it has been by some learned Judges, that he cannot be allowed to appear at all if he does
not show good cause. All it means is that he cannot be relegated to the position he would have
occupied if he had appeared.
Thus, what the consequences should be in a given case is for the court, in the exercise of its judicial
discretion, to determine. No hard and fast rule can be laid down. In some cases an order awarding
costs to the plaintiff would meet the ends of justice: an adjournment can be granted or a written
statement can be considered on the spot and issues framed. In other cases, the ends of justice may
call for more drastic action.
The court observed: "In the present case, we are satisfied that the Tribunal did not exercise its
discretion because it considered that it had none and thought that until the ex parte order was set
aside the defendant could not appear either personally or through counsel. We agree with the
Tribunal, and with the High Court, that no good cause was shown and so the defendant had no right
to be relegated to the position that he would have occupied if he had appeared on 17-3-1953, but
that he had a right to appear through counsel on 20-3-1953 and take part in the proceedings from
the stage at which they had then reached, subject to such terms and conditions as the Tribunal
might think fit to impose, is, we think, undoubted. Whether he should have been allowed to cross-
examine the three witnesses who were examined after the appearance of his counsel, or whether he
should have been allowed to adduce evidence, is a matter on which we express no opinion, for that
has to depend on whatever view the Tribunal in a sound exercise of judicial discretion will choose
to take of the circumstances of this particular case, but we can find no justification for not at least
allowing counsel to argue."

Rajni Kumar v. Suresh Kumar Malhotra (2003) 3 Scale 434.

[Provisions of Rule 13 of 0.11 (applicable to ordinary suits) will not apply to a 'summary suit' filed
under O. 37.]
In this case the question was whether the High Court committed jurisdictional error in declining to
set aside the ex-parte decree on the application of the appellant u/O.37, R.4, on the ground that he
failed to disclose facts sufficient to entitle him to defend the suit. The Supreme Court held that
though appellant has shown sufficient cause for his absence on the date of passing of ex-parte
decree, he failed to disclose facts which would entitle him to defend the case.
The Court observed: A careful reading of Rule 4 shows that it empowers, under special
circumstances, the court which passed an ex parte decree under Order 37 to set aside the decree
and grant one or both of the following reliefs, if it seems reasonable to the court so to do and on
such terms as the court thinks fit: (1) to stay or set aside execution, and (ii) to give leave to the
defendant (a) to appear to the summons, and (b) to defend the suit.
The expression special circumstances' is not defined in C.P.C. nor is it capable of any precise
definition by the court because problems of human beings are so varied and complex. In its
ordinary dictionary meaning it connotes something exceptional in character extraordinary,
significant, uncommon. It is neither practicable nor advisable to enumerate such circumstances.
Non-service of summons will undoubtedly be a special circumstance. In an application under O. 37,
Rule 4, the court has to determine the question, on the facts of each case, as to whether
circumstances pleaded are so unusual or extraordinary as to justify putting the clock back by
setting aside the decree; to grant further relief in regard to post-decree matters, namely, staying or
setting aside the execution and also in regard to pre decree matters viz. to give leave to the
defendant to appear to the summons and to defend the suit.
In considering an application to set aside ex parte decree, it is necessary to bear in mind the
distinction between suits instituted in the ordinary manner and 'summary suits' filed under Order
37, С.Р.С.:
(I) Rule 7 of 0.37 says that except as provided the procedure in suits under Order 37 shall be same
as the procedure in suits instituted in the ordinary manner.
(ii) Rule 4 of 0.37 specifically provides for setting aside decree, therefore provisions of Rule 13 of
0.11 (applicable to ordinary suits) will not apply to a suit filed under O.37.
(iii) In a suit filed in the ordinary manner a defendant has the right to contest the suit as a matter of
course. Nonetheless he may be declared ex parte if he does not appear in response before framing
issues; or during or after trial. In an application under O. 9 Rule 11, if a defendant is set ex parte and
that order is set aside. he would be entitled to participate in the proceedings from the stage he was
set ex parte. But an application under O. 9 Rule 13 could be filed on any of the grounds mentioned
thereunder only after a decree is passed ex parte against defendant. If the court is satisfied that (1)
summons was not duly served, or (2) he was prevented by sufficient cause from appearing when
the suit was called for hearing, it has to make an order setting aside the decree against him on such
terms as to cost or payment into court or otherwise as it thinks fit and thereafter on the day fixed
for on hearing by court, the suit would proceed as if no ex parte decree had been passed.

But in a suit under Order 37 the procedure for appearance of defendant is governed by provisions
of Rule 3 thereof. A defendant is not entitled to defend the suit unless he enters appearance within
tens days of service of summons either in person or by a pleader and files in court an address for
service of notices on him. In default of his entering an appearance, the plaintiff becomes entitled to
a decree for any sum not exceeding the sum mentioned in the summons together with interest at
the rate specified, if any, up to the date of the decree together with costs. The plaintiff will also be
entitled to judgment in terms of sub-rule (6) of Rule 3. If the defendant enters an appearance, the
plaintiff is required to serve on the defendant a summons for judgment in the prescribed form.
Within ten days from the service of such summons for judgment, the defendant may seek leave of
the court to defend the suit, which will be granted on disclosing such facts as may be deemed
sufficient to entitle him to defend and such leave may be granted to him either unconditionally or
on such terms as the court may deem fit. Normally the court will not refuse leave unless the court is
satisfied that facts disclosed by the defendant do not indicate substantial defence or that defence
intended to be put up is frivolous or vexatious. Where a part of the amount claimed by the plaintiff
is admitted by the defendant to be due from him, no leave to defend the suit can be granted unless
the admitted amount is deposited by him in Court.
(iv) O.37 does not speak of the procedure when leave to defend the suit is granted, the procedure
applicable to suits instituted in the ordinary manner, will apply.
(v) Power under 0.37, R.4 is not confined to setting aside the ex. parte decree, it extends to staying
or setting aside the execution and giving leave to appear to the summons and to defend the suit if
the court considers it reasonable so to do, on such terms as the court thinks fit (as the very purpose
of Order 37 is to ensure an expeditious hearing and disposal of the suit filed thereunder).
Where on an application, more than one among the specified reliefs may be granted by the Court all
such reliefs may be claimed in one application. It is not permissible to claim such reliefs in
successive petitions as it would be contrary to the letter and spirit of the provision. That is why
where an application under Rule 4 of O. 37 is filed to set aside a decree either because the
defendant did not appear in response to summons and limitation expired, or having appeared, did
not apply for leave to defend the suit in the prescribed period, the court is empowered to grant
leave to defendant to appear to the summons and to defend the suit in the same application. It is,
therefore, not enough for the defendant to show special circumstances which prevented him from
appearing or applying for leave to defend, he has also to show by affidavit or otherwise, facts which
would entitle him leave to defend the suit. In this respect, Rule 4 of Order 37 is different from Rule
13 of Order 9.
Bhanu Kumar Jain v. Archana Kumar (AIR 2005 Sc 626).
The remedies available to a defendant in the event of an ex parte decree being passed against him
in terms of Order 9 Rule 13 and the extent and limitation thereof is in question in this appeal which
arises out of a judgment and order passed by the High Court in First Appeal. It was argued that the
subject-matter of an application under Order 9 Rule 13 and the subject-matter of the appeal being
same, it is against public policy to allow two parallel proceedings to continue simultaneously.
The learned Senior Counsel appearing on behalf of the respondents, on the other hand, would
contend that the respondents were entitled to maintain an appeal against the ex parte decree in
terms of Sec. 96(2). The learned counsel would argue that the High Court in its impugned judgment
having arrived at a conclusion that the suit was directed to be proceeded ex parte only against
Respondent 1 and not against Respondent 2; he was entitled to raise a contention as regards the
legality or validity of the order dated 31-10-1985. It was further submitted that in any event, the
respondents herein were entitled to assail the judgment on merit of the matter.
The Court observed:
(i) An appeal against an ex parte decree in terms of Sec. 96(2) could be filed on the following
grounds: (1) the materials on record brought on record in the ex parte proceedings in the suit by
the plaintiff would not entail a decree in his favour, and (ii) the suit could not have been posted for
ex parte hearing. In an application under Order 9 Rule 13, however, apart from questioning the
correctness or otherwise of an order posting the case for ex parte hearing, it is open to the
defendant to contend that he had sufficient and cogent reasons for not being able to attend the
hearing of the suit on the relevant date.
(ii) When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit
for setting aside the ex parte decree or the ground of fraud) has two clear options, one, to file an
appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13. He
can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed
as a result whereof the ex parte decree passed by the trial court merges with the order passed by
the appellate court, having regard to Explanation appended to Order 9 Rule 13 a petition under
Order 9 Rule 13 would not be maintainable However, Explanation I appended to the said provision
does not suggest that the converse is also true.
(iii) It is true that although there may not be a statutory bar to avail two remedies simultaneously
and an appeal as also an application for setting aside the ex parte decree can be filed; one after the
other; on the ground of public policy the right of appeal conferred upon a suitor under a provision
of statute cannot be taken away if the same is not in derogation or contrary to any other statutory
provisions.
(iv) There is a distinction between "issue estoppel" and "res judicata". Res judicata debars a court
from exercising its jurisdiction to determine the lis if it has attained finality between the parties
whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against
him, he would be estopped from raising the same in the latter proceeding. The doctrine of res
judicata creates a different kind of estoppel viz. estoppel by accord.
(v) No case has been cited before us in which the question now under consideration, whether a
party against whom a decree has been passed ex parte can proceed in succession under Order 9
Rule 13, as well as by taking objection to the order placing him ex parte in his appeal against the
substantive decree has been dealt with. On principle it would appear that he could only do so at the
expense of the rules as to res judicata; and there can be no reason why the adjudication on his
application under Order 9 Rule 13, if there were one should not be conclusive against him for the
purpose of any subsequent appeal.
The Court concluded: "We have, however, no doubt in our mind that when an application under
Order 9 Rule 13 is dismissed, the defendant can only avail a remedy available there against viz. to
prefer an appeal in terms of Order 43 Rule 1. Once such an appeal is dismissed, the appellant cannot
raise the same contention in the first appeal. If it be held that such a contention can be raised both
in the first appeal as also in the proceedings arising from an application under Order 9 Rule 13, it
may lead to conflict of decisions which is not contemplated in law.
The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be
permitted to raise a contention as regards the correctness or otherwise of the order posting the suit
for ex parte hearing by the trial court and/or existence of a sufficient case for non-appearance of
the defendant before it, it would be open to him to argue in the first appeal filed by him under Sec.
96(2) on the merits of the suit so as to enable him to contend that the materials brought on record
by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not
maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal.
We, therefore, are of the opinion that although the judgment of the High Court cannot be sustained
on the premise on which the same is based, the respondents herein are entitled to raise their
contentions as regards merit of the plaintiff's case in the said appeal confining their contentions to
the materials which are on record of the case. The appeal is, therefore, allowed, the impugned
judgment is set aside and the case remitted to the High Court for consideration of the case of the
parties on merit of the matter."

Rule 14 – This rule states that no decree shall be set aside without giving notice to the opposite
party.
Examination of Parties (Order X)
Rule 1 – This rule states that in the first hearing of the suit, the court will ascertain that whether
each party accepts the allegation made against him or denies from the same. The court shall also
record such admissions and denials.

Rule 1 A – This rule states about settlement outside the court. In this rule the court after recording
such admissions and denials direct the parties to settle the dispute outside the court. Sec. 89 of the
act also states about the same.

Sec. 89 – Where after first hearing the court feels that there is a scope of settlement between the
parties then the court can order the parties to settle the dispute outside the court through any of
these modes -
Arbitration
Conciliation
Mediation
Judicial settlement including settlement through Lok Adalats

This section held that in the settlement of dispute outside the court will be considered as
compromise between the parties and such rules shall be applicable.

Section 89 came into being in its current form on account of the enforcement of the CPC
(Amendment) Act, 1999 with effect from 1/7/2002. At the commencement of the Code, a provision
was provided for Alternate Dispute Resolution. However, the same was repealed by the enactment
of the Arbitration Act (Act 10 of 1940) under Section 49 and Sch. 10. The old provision had
reference only to arbitration and its procedure under the Second Schedule of the Code. It was
believed after the enactment of the Arbitration Act, 1940, the law had been consolidated and there
was no need of Sec 89. However, the Section was revived with new alternatives and not only
restricted to arbitration. A new Section 89 came to be incorporated in the Code by Section 7 of the
CPC Amendment Act, 1999 to resolve disputes without going to trial and pursuant to the
recommendations of Law Commission of India and Malimath Committee report.
This provision of law which is presently the most often used mechanism in India to refer the parties
to mediation is also considered one of the most incorrectly drafted pieces of law in India. The
Supreme Court of India in Afcons Infrastructure Ltd. vs Cherian Varkey Construction Co. Pvt.
Ltd.[iv], a landmark judgment on Section 89 of CPC expressed this anguish of the bar and bench in
the following words:
“If Section 89 is to be read and required to be implemented in its literal sense, it will be a trial
judge’s nightmare. It puts the cart before the horse and lays down an impractical, if not impossible,
procedure in sub-section (1). It has mixed up the definitions in sub-section 92). In spite of these
defects, the object behind Section 89 is laudable and sound. Resort to ADR processes in necessary to
give speedy and effective relief to the litigants and to reduce the pendency in and burden upon the
courts. As ADR processes were not being resorted to with the desired frequency, the Parliament
thought it fit to introduce Section 89 and Rules 1A to 1C in Order X in the Code, to ensure that ADR
processes were preferred to commencement of trial in suits. In view of its laudable object, the
validity of Section 89, with all its imperfections, was upheld in Salem Advocate Bar Association case
reported in (2003) 1 SCC 49 – for short, Salem Bar (1) but referred to a Committee, as it was hoped
that Section 89 could be implemented by ironing the creases.”

Rule 2 – This rule states that at the first hearing of the suit, the court shall with a view to elucidating
the matters in controversy in the suit examine orally such of the parties to the suit appearing in
person or present in court as deems fit. The oral examination can be done regarding answer of any
material facts relating to suit.

Rule 3 – This rule states that the substances of any oral proceeding made by the court has to be
made in writing by the judge.

Rule 4 – Where the court feels that the answer of a question by a party is necessary for the suit and
the party is unable to answer such question, or refuses to answer such question then the court may
postpose the hearing of the suit not later than 7 days.
Sec. 30 – This section states that subject to the conditions and limitations, the court may either on
its own motion or by the application of any of the parties may order -

(a). Necessary or reasonable in all matters relating to delivery and answers of the interrogatories,
admission of facts, documents, and discovery, inspection or impounding of the documents or other
objects produced as evidence.
(b). Issue summons to the persons whose attendance is necessary either to give evidence or to
pronounce the judgement.
(C). Order any fact to be proved on affidavit.

Discovery and Inspection (Order XI)

This order states about the interrogatories and inspections. A party to a suit may require
information from his adversary to all material facts or as to documents in his possession or power
of such adversary relevant to the issue. This order is having the main object of maintaining own
case and for rebutting the case of adversary. When information to a fact is required, the party can
ask certain questions from the adverse party to determine the answers of such questions. These
questions are known as interrogatories. If such interrogatories submitted to the court has been
found proper by the court to determine the case of a party, the court can order another party to
answer such questions on oath which is known as ‘Discovery of facts’. In this order the party is
empowered to know the nature of the case of opposite party but he cannot determine the name of
his witnesses, or conclusive evidence of the opponent.

Rule 1 – This rule states that in any suit, any of the parties by the leave of court may delivery
interrogatories to the opposite party. Such interrogatory shall also state that the person to whom
such interrogatories are directed. No party is empowered to deliver more than one set of
interrogatories. The interrogatories not related with any matters in question in the suit shall be
deemed to be irrelevant.

Rule 2 – The particular interrogatories proposed to be delivered shall be submitted to the court and
the court shall decide within seven days from the day of filing that whether such interrogatories can
be delivered to the opposite party for the answer of any question or not. The court shall take into
account only the matters relevant to decide the suit fairly or to save costs.

Rule 3 – This rule states that if the interrogatories were vexatious, unreasonable or of improper
length then the cost occasioned by the interrogatories and the answer thereto shall be paid by the
party in fault.

Rule 6 - This rule deals with the objections as to interrogatories by answers. The adverse party,
who has to answer such interrogatories can on the ground that the interrogatories were
scandalous, irrelevant, not made with a bonafide purpose of the suit or on the grounds of privilege
can object such interrogatories.

Rule 7 – This rule deals with ‘Setting aside and striking out such interrogatories’. The party who has
to answer such interrogatories can make an application within 7 days after service of
interrogatories on the grounds that such interrogatories were unreasonable or vexatious.

Rule 8 – All the interrogatories which has not challenged shall be replied within 10 days of service
of interrogatories on affidavit.

Rule 11 – Under this rule when a person interrogated has omit to answer the interrogatories, the
other party who made an application for such interrogatories can make an application for further
answers either on affidavit or by examination as the court directs.
Rule 12 – This order deals with the application for discovery of documents. Any party to the suit
can apply to the court for an order directing to other party to any suit to make a discovery on oath,
of the documents which are or have been in possession or power relating to matter in question. The
court can either refuse to pass any such order for discovery of such document or adjourn the
process till the discovery of such document as it deems fit.

Rule 14 – It shall be lawful for the court, at any time during the pendency of a suit, to order the
production of document by any party.

Rule 15 – A party may request another party to produce any document in his possession or power
at or before the settlement of issues for the inspection of the document at sight. If the party, in
whose such document is, does not comply with the such order of inspection then he cannot use it as
an evidence afterwards at the later stage.

Rule 17 – This rule deals states that the party, in whose possession such document is, shall within
10 days from the notice delivery such document for inspection.

Rule 18 – This rule defines the modes of inspection of a document.

Rule 19 – Where the document is a business book then the court may, if it thinks fit instead of
ordering inspection of the original copy, order a copy of any entries therein to be furnished and
verified on affidavit by the same person who has the possession of such document.

Rule 20 – This rule deals with premature discovery. In this rule the court can order for the
discovery of a document despite the objection of the party having possession of such document and
before applying its mind in the objections, to determine the issue or question in dispute.

Rule 21 – This rule deals with non – compliance with the order for discovery. If a party fails to
comply with any order to answer interrogatories or for discovery or inspection of documents, the
court may dismiss the suit for the want of prosecution, if he is a plaintiff; the court may stuck down
the defence of the defendant. The plaintiff shall be precluded from bringing the fresh suit on the
same cause of action.
Production, impounding and return of document (Order XIII)
This order has the major object to ensure the originality of the document before final disposal of the
suit, when the copies of the document has been filed with the pleadings.

Rule 1 – This rule states that original documents have to be produced at or before the settlement of
issues. Nothing in this rule shall apply on the documents produced for the cross examination of the
parties; or handed over to a witness merely for the refresh of his memory.

Rule 3 – Under this rule, the court can reject any document which it considers irrelevant or
inadmissible and record the reasons for doing so.

Rule 4 – This rule states that on every admitted document, there shall be endorsed following
particulars -
(a) The number and title of the suit,
(b) The name of the person producing the document,
(c) The date on which it was produced, and
(d) A statement of its having been so admitted; and the endorsement shall be signed or initialed by
the Judge.

Rule 5 - This rule states about the entries in the books, accounts and records. In all such cases a
verified copy of such document can be produced as an evidence.

Rule 6 to 11 – These rules define the general provisions regarding the inadmissible documents, and
returning of documents. Under these rules, the court can reject the document when it finds the
document to be inadmissible or irrelevant. In such cases, the document shall be returned to the
party and if the document has been admitted, the original shall be kept in the court until the final
disposal of the suit, and passing of the time preferred for appeal in the cases of appellate suits.

If a document is kept in one court and required for inspection in another court, then the court
which has kept the original can send it for the inspection in another court. Rule 11 states that the
provisions of this order shall also apply on the material objects.

Admissions (Order XII)

Under order XII of the code, the parties to the suit can admit a particular fact, and such admission
can be a ground to pronounce the judgement. Sec. 58 of Indian Evidence Act, 1872 states that the
admission need not be proved. In Civil Procedure Code, 1908 admissions can be made through
various types and at various stages, which are as follows -

Admissions in pleadings – This admission can be of two types -

Express Admission – Order VII, Rule 11 (Rejection of plaint), Order XI, Rule 22 (Answers to
interrogatories).
Implied Admission – Order VIII, Rule 3 to 5 (Denial of the facts or fact in issue in the plaint), Order
XII, Rule 2 A (Documents deemed to be admitted if not denied after the service of notice to admit
documents).
Admissions by agreement of the parties (Order XXIII, Rule 3)
Admissions by oath (Order X, Rule 2) & (Order XVIII, Rule 3)
Admissions during examination by the court (Order X, Rule 1 & 2)
Admissions on notice (Order XII, Rule 4)

Rule 1 – This rule states that any party to the suit can give notice to another party to admit the truth
as a whole or in parts.

Rule 2 – This rule empowers all the parties to the suit to call upon the other party to admit within 7
days from the date of service of the notice of any document.

Rule 2A – This rule states that all the documents deemed to be admitted if not denied after the
service of notice to admit document. It can be considered as constructive admission. Provided that
the court has the power to prove a document to otherwise than by such admissions.

Rule 3 A – This rule empowers the court to record admissions of document made under rule 2. The
court is also empowered to neglect the admissions of a document or accept it on its discretion.

Rule 4 – This rule states that any party in writing at any time not later than 9 days before the day
fixed for the hearing, call any party to admit a fact.

Rule 6 – Where the admissions of the facts have been made by judgement or otherwise, either in
oral or in writing, the court can make such order or give such judgement as it thinks fit having
regards to such admissions, and draw up a decree based upon such judgement.
Rule 7 – An affidavit of the pleader or his clerk of the due signature of any admission made in
pursuant to the notice has to be made, and it shall be sufficient evidence to prove such admission.

Rule 9 – If a notice has been made to admit or produce has been given which were not necessary for
the suit, then the party who gives such notice shall bear the cost occasioned thereby.

Settlement of Issues and Determination of suit on Issues of law or on Issues agreed Upon (Order
XIV)

This order helps to determine the fact in issue on which the court has to adjudicate.
Rule 1 – Issues arise when one party affirms a fact and another party denies. Material propositions
are those propositions of law or fact which the plaintiff alleges in order to show his right to sue or a
defendant should show to defend himself. Each material proposition affirmed by the party shall
have a distinct subject of Issue –

Question of fact.
Question of law.
The court, after following the plaint and written statement, and after examining the parties on oath,
may frame the issues upon which it has to adjudicate. The court need not to frame the issues if the
defendant accepts the facts alleged by the plaintiff.

Rule 2 – The court will pronounce judgement on all the issues separately. The court cannot dispose
of any issue if it has both question of law and question of fact. The court firstly have to see that
whether such issue is barred by limitation or any other law or not, whether the court has the
jurisdiction to try such suit or not, and then the court may dispose of the suit by the settlement of
such question of law.

Rule 3 – The court may frame issues from 3 materials, as follows -

(a). Any allegation made by one party on another through an auth or even through his pleader.
(b). Allegation made in the pleading or the answer of the interrogatories.
(C). Allegation made by the contents of document produced in the court.

Rule 4 – If the court feels that the existence and examination of a party or a document is essential
for a party or a document is essential for the framing of issue, then the court may order any party
by summon or any other process to produce the document or to attend the court as the case may
be, and while following the process, the court may adjourn the process for 7 days.

Rule 5 – The court can, at any time before passing of a decree, can amend the issues or frame
additional issues on such terms as it thinks fit as it deems necessary for the final disposal of the suit,
frame the issues or to determine final controversy between the parties. The court also has the
power to strike out any issue before passing of final decree.

Rule 6 – If the parties to the suit agrees that they are unable to find the resolution of any issues,
then they can agree that the decision of the court shall be final and binding on them whether
affirmative or negative for any of the party. The party may agree on a sum of money as specified in
the agreement.

Rule 7 – If under rule 6, the court feels that the agreement was duly executed but still the parties
have substantial interest in the decision, then the court can record its reason and pronounce the
judgement.

Disposal of suit at the first hearing (Order XV)

This order has the object of speedy disposal of trial in the cases where the court determines the
issues between the parties. This order states that in such case, the court can dispose of the suit in
the first hearing itself.

Rule 1 – Where the court feels that the parties does not have any fact in issue or fact in question of
law in dispute, the court can dispose of the suit at the first hearing.

Rule 2 – When one defendant out of several other defendants has accepted the issued raised by the
plaintiff then the court may pronounce the judgement against such one defendant and draw up a
decree against such defendant and continue the suit against all other defendants in the ordinary
sense.

Rule 3 & 4 – After framing of issues, if the court feels that further evidence or arguments are not
required to adjudicate the fact or law in issue, the court may decide the same and may call the
parties through the summon for the settlement of issue by the parties or through their pleaders.
Where the court summons the parties for the settlement and the parties do not appear or after
appearance states for the production of some document and hasn’t produced the same then the
court can dispose of the case.
Sec. 31 – This section states that all the provisions of sec. 27, 28 & 29 shall apply in the cases of
service of summon to the witnesses.

Sec. 32 - —The Court may compel the attendance of any person to whom a summons has been
issued under section 30 and for that purpose may—
(a) issue a warrant for his arrest;
(b) attach and sell his property;
(c) impose a fine upon him 1 [not exceeding five thousand rupees];
(d) order him to furnish security for his appearance and in default commit him to the civil prison.

Summoning and attendance of witness (Order XVI)

This order deals with the summoning & attendance of witness. This order defines the mode through
which the attendance of witnesses can be compelled in the court. This order should be read with
Sec. 31 & 32 of the act.
Rule 1 – On any of the date appointed by the court, but not later than 15 days after the settlement of
issues, the parties to the suit can present a list of their witnesses whom they want to call to give
evidence or to produce document. The court may on discretion call a witness through the process of
service of summon or otherwise.

Rule 1 A – This rule states about calling of witness without service of summon.

Rule 2 – This rule states that when a witness has been called by a party, the travel expenses and
other expenses of such witness shall be submitted in the court within 7 days of making such an
application for the service of summon of such person.

Rule 3 – The amount submitted in the court as an expense of witness shall be paid to him at the
time of service of summon.

Rule 4 – In case of non-payment or less payment of expenses of the witness, the court can either
attach movable property of the party or can discharge such person to give evidence or can opt for
both of the modes depending upon the case.

Rule 5 – This rule states that the time, place and purpose of attendance of witness has to be
specified in the summon.
Rule 6 – When a person has been summoned to produce a document, it will be deemed that he has
complied with requisites of summon in case where he does not attend the court personally rather
than send the document for which he has summoned.

Rule 7 A – It can be considered as Dasti Summon for the witness. In this case, the court may on the
application of a party empower such party for the service of summon to the witness.

Rule 10 – This rule states that in the cases of non – compliance with the service of summon,
following powers can be exercised by the court for his presence -

An order of attachment of property of witness. (No order of attachment of immovable property by

the court of small causes).
Issuance of proclamation for the attendance of witness.
The court may issue a warrant with or without bail for the attendance of witness.

Rule 11 – This rule states that if the witness appears and gives a lawful excuse for his
nonappearance, then his property can be released from attachment.

Rule 12 – This rule states that if the witness does not appear after the attachment of property, then
the court can issue an order for the sale of the property attached, and the court may also impose a
fine upto Rs. 5000/- on such person.

Adjournment (Order XVII)

Rule 1 – The court may, if sufficient cause is shown, at any stage of the suit grant time to the parties
or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be
recorded in writing:
Provided that no such adjournment shall be granted more than three time to a party during hearing
of the suit.

This rule also defines the grounds on which adjournment can be issued.

The court shall not adjourn the process due to the engagement of pleader of a party in another case
or court.
No adjournment shall be granted except the cases, where the situation is out of the control of the
party.
Adjournment can be granted when the pleader shows any other reason except discussed in 1st
point.
Where the pleader of a party or a party is not ready for the hearing of the suit, the court shall not
grant adjournment on those bases. The court will continue with the suit and pass an order as deems
fit.

Rule 2 - Where the party does not appear without any adjournment, the court shall apply the
provisions of order IX.

Affidavit (Order XIX)

This order empowers the court at any time for sufficient reasons to be recorded that any particular
fact may be proved on affidavit. On the application of a party, the court may empower a party to
give evidence on affidavit but the court can also call the deponent of affidavit for the cross
examination.
Judgement and Decree (Sec. 33)
The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree
shall follow.
Interest (Sec. 34)
In the cases where the decree is for the payment of money, the court can order to pay an interest I.e.
reasonable along with the principal sum for any date prior to institution of suit. This section also
states that the interest rate shall not be more than 6 % per annum as the court deems reasonable
but in the cases of commercial transactions, the rate of interest can increase as to 6 % but in cannot
be more than the contractual interest rate. Where a decree is silent on the payment of interest along
with the principal sum then it will be deemed to be refused and separate suit shall lie upon it. It will
be type of res judicata under sec. 11 Explanation 5 of the act.

Cost (Sec. 35)

In the cases of any commercial transactions, the court is empowered to ascertain certain cost
payable by one party to another. The court can also decide the quantum of cost and when they are
payable. In this section cost includes the expenses made by a party in the fees and witnesses, legal
fees and expenses, any other expenses incurred by a party in the suit.
Compensatory costs in respect of false or vexatious claims or defences(Sec. 35 A)
If in any suit or other proceedings excluding an appeal or a revision any party objects to the claim
or defence on the ground that the claim or defence or any part of it is, as against the objector, false
or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, as
against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in
part, the Court may declare to be false or vexatious and may make an order for the payment to the
object or by the party by whom such claim or defence has been put forward, of cost by way of
compensation. In no case, the amount shall exceed to 3000/-.

Costs for causing delay (Sec. 35 B)

If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit—
(a) fails to take the step which he was required by or under this Code to take on that date, or
(b) obtains an adjournment for taking such step or for producing evidence or on any other ground,
the Court may, for reasons to be recorded, make an order requiring such party to pay to the other
party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the
other party to meet with his legal expenses to attend the court due to such delay.

Judgement and Order (Order XX)

This order states about the judgement and decree made from an adjudication of the court. This
order defines the general rules for a judgement and decree.

Rule 1 – This rule states that the court can pronounce judgment at once after the case has been
heard. If in case, it is not possible to pronounce the judgement at concluding the hearing, the court
can decide a future date (Not later than 30 days from the date of concluding the hearing) for the
pronouncing the judgement. This order also states that the judgement shall be pronounced in an
open court if practical. In exceptional and extra ordinary circumstances, the court can pronounce a
judgement within 60 days from the date of concluding the hearing not later than that. The
essentials of judgement are as follows -
The judgement is to be in writing.
The judgment shall include the finding of court on each issue. (Rule 5)
The judgement has to be signed by the judge and must contain the date on which it has pronounced
and form a part of record.
The judgement (except the cases of small cause court) shall contain the points of determination,
and reasons for such decision. (Rule 4)
Rule 2 – This rule empowers a successor judge to pronounce a judgement written by his
predecessor judge but has not pronounced it.

Rule 3 – This rule states that the judgement should be signed and bear the date of pronouncing and
it cannot be altered or added afterwards except the cases of sec. 152 or review.

Rule 5 A – In all the cases, where an appeal lies from a judgement, the court shall when the
judgement is pronounced inform the parties that they have a right to appeal and the period of
limitation for such right to appeal.

Rule 6 – This rule states the contents of decree. The essentials of a decree are as follows -
The decree shall agree with the judgment.
It shall contain the number of the suit, the names and descriptions of the parties, their registered
addresses,
It shall also contain particulars of the claim, and shall specify clearly the relief granted or other
determination of the suit.
The decree shall also state the amount of costs incurred in the suit, and by whom or out of what
property and in what proportions such costs are to be paid.
The Court may direct that the costs payable to one party by the other shall be set off against any
sum which is admitted or found to be due from the former to the latter.

Rule 6 A – The court shall make every endeavor to prepare a decree within 15 days of pronouncing
the judgement. Usually, the parties appeal a decree not the judgment, but in the cases where the
decree has not drawn up yet. An appeal can be preferred without getting a copy of decree and in
such case, the copy of decree made available to the parties by the court shall for the purpose of rule
1 of Order XLI be treated as decree.

Rule 6 B – The copies of judgment have to be made available to the parties immediately after
pronouncing the judgement for preferring an appeal.

Rule 7 – This order states that the decree shall bear the date on which the judgment was
pronounced.
Rule 8 – In the cases, where the judge left the office, or the court ceased to exist before passing a
decree but after pronouncing the judgement then the successor judge shall draw up a decree
according to judgement.

Rule 9 & 10 – In the cases where the decrees are for the delivery of any immovable property (Rule
9) or movable property (Rule 10). Decree shall contain the description of such property sufficient to
identify the property in case of immovable property, and in case of movable property the decree
shall contain the amount that has to be paid in alternative if delivery cannot be held.

Rule 11 – This rule states that in case where, the decree is for the payment of money, the court may
order for the postponement of payment of money under decree or can order installments with or
without interest for the payment of money under decree.

Rule 12 to 19 – These rules state about decree in the special cases. In the cases of rent and mesne
profit arising out of immovable property, the court can draw up a decree for the possession of
immovable property, rent arising during the period prior to institution of suit, or any other mesne
profit arising out of such immovable property (Rule 12). In the case of dissolution of a partnership
firm, the court can make a preliminary decree for shares of the partners in the firm and then pass a
final decree for partition of partnership firm (Rule 15). In the cases of a decree between principal
and agent, the court shall firstly entertain the liability of both parties on each other (Rule 16). In
cases of partition of property and separate shares in the property, the court shall declare the rights
of several parties interested in the property (Rule 18). In the cases of set off or counter claim, the
decree shall state what amount is due to the plaintiff and what amount is due to the defendant
(Rule 19).

Execution of Decree (Sec. 36 to Sec. 74) & Order XXIThe principles governing execution of decrees
are dealt under sec. 36 to 74 and under order XXI which contains 106 rules. The term ‘execution’
means enforcement of decree by the court, so it empowers decree holder or any other person on his
behalf to recover the rights of judgement passed in his favour.

Application to orders (Sec. 36)

This section states that the provisions of execution of decree shall be applicable on the execution
and payment made under any order as far as practicable.

Definition of courts which passed a decree (Sec. 37)

This section defines the courts which passed the decree should include which courts. This section
basically states about three category of court which can be covered under the term ‘Court which
passed Decree’.
Court of first instance which actually passed the decree.
Court of first instance in the cases of appellate decrees.
Where, the court of first instance has ceased to exist, or to have jurisdiction to execute the decrees,
then the court which would have jurisdiction to try the suit at the time of execution.
Here, it is important to note that the court which passed the decree does not lose the jurisdiction to
execute such decree only because the subject matter has been transferred to the jurisdiction of
another court.

Court by which decree may be executed (Sec. 38)

A decree can be passed by either by the court which has passed the decree, or by the court to which
it has sent for execution. It means that if a decree has been transferred to another court due to the
subject matter has moved in the jurisdiction of such court, then such court can execute a decree.

Transfer of decree (Sec. 39)

In the following circumstances, the court can send the decree for execution in another court of
competent jurisdiction either on the application of the decree holder or on its own motion -
The judgement debtor actually and voluntarily resides or carries on business or personally works
for gain, within the local limits of another court.
The judgement debtor has property sufficient to satisfy the decree within the local limits of another
court.
The decree can be executed by sale or delivery of immovable property situated outside the local
limits of the court which passed it.
For any other reason which seems to be reasonable for the court.
This section gives discretionary powers to the court to transfer a decree. The decree holder does
not have a conclusive right to get decree transferred, but he can make an application for the same.
This section also states that the court to which decree has been transferred should have the right to
execute such decree at the time of transferring of decree. This section also imposes a bar on the
court passed the decree to execute it outside the local limits of the court merely by the fact that it
has passed a decree, so the only option left for the court which passed a decree in such situation is
to transfer the decree.
Essentials for a transfer of decree (Order XXI, Rule 6)
This rule creates certain essentials for the court which is transferring a decree to another court for
the execution of decree. Such essentials are as follows -
The court which is transferring the decree must send a copy of decree to the court which has to
execute such decree.
A certification of non – satisfaction of decree or in case of part transfer of decree, certificate of part
non - satisfaction of decree.
A copy of an order of execution of such transferred decree.

Transfer of decree to court in another state (Sec. 40)

Where a decree has been sent for execution to a court in another state, it has to be executed in the
manner provided by rules of that state to which it has sent for execution.

Results of execution proceedings to be certified (Sec. 41)

The court to which a decree has been sent for execution shall certify the court which passed the
decree for such execution of decree, or in the cases where the executing court cannot execute the
decree then it has to provide the circumstances in which it is unable to execute such a decree.

Power of court in executing transferred decree (Sec. 42)

The court to which a decree has been sent for execution shall have the same powers as if the decree
has been passed by such court (As discussed under sec. 39). However, the court has no power to
order execution at the instance of the transferee of the decree. A court executing a decree cannot go
behind the decree, and must execute it as it is transferred to such court. The executing court also
does not have power to check the legal validity of decree. However, a decree by a court of
incompetent jurisdiction can lead to its invalidity in the court in which it has been sent for
execution. The executing court has power to mold relief according to the changed circumstances of
the case. Under sec. 42 of the act, the courts have following powers in execution of a decree -
Power to send the decree for execution to another Court under section 39.
Power to execute the decree against the legal representative of the deceased judgment-debtor
under section 50.
Power to order attachment of a decree.

Power to execute a decree passed by a court to which the provisions of this code does not extends
(Sec. 43 to 44A)
Where any decree passed by a civil court where the provisions of this code is not applicable and
such court is established in any part of India, then such court can transfer the decree for execution
to a court on which the provisions of this code are applicable and such executing court shall execute
the decree in the same manner as if it has been transferred by a court having jurisdiction to pass
such a decree and transferred it to the former court for execution (Sec. 43). Where, a decree passed
by a revenue court established in any part of India and the government of the state in which such
court sent the decree for execution has by notification of official gazette held that the decree passed
by any revenue court can be transferred within the state for execution, then decree passed by
revenue court shall have the same
effect as if it has been passed by a court of competent jurisdiction and sent it within the state for
execution (Sec. 44). Where, a decree passed by any reciprocating territory (any country or territory
outside India which the Central Government may, by notification in the Official Gazette, declare to
be a reciprocating territory for the purposes of this section) and sent it for execution in any district
court of a state for the execution then it will have the same effect as if a decree has been passed by a
court under and transferred for execution under sec. 39 of the code. (Sec. 44 A)

Application for execution of a decree (Order XXI)

All the proceeding of execution come into existence only when an application for the execution of a
decree has been made in the court which has passed a decree or in the court to which it has been
sent for execution. The following persons are empowered under Order XXI Rule 15 & 16 to make an
application for the execution of a decree.

The decree holder & in case of his death, the legal representative of such deceased decree holder.
(Rule 16)
Any person claiming his right under the decree holder. (Rule 16)
The transferee of the decree holder, in the cases where decree has been transferred to another
person either by operation of law or by an assignment in writing. (Rule 16)
Anyone or more than one or all decree holder in case of joint decree holder. (Rule 15)

Execution of money decree (Order XXI, Rule 11 & 17)

In the cases of execution of a money decree, every applicant should make an application in writing
containing important information such as suit number, name of the parties, date of passing of
decree, amount decreed, whether any appeal has preferred or not, etc (Rule 11). If in case, the
above requirement has not fulfilled then the court can reject the application of execution of decree
or can order for amending the application (Rule 17).

Issuance of notice for execution of a decree in certain cases. (Order XXI, Rule 22)
The general rule states that in the cases of execution of a decree, it does not require any notice to
the party against whom it has to be executed but order XXI, rule 22 is an exception of it. It defines
certain circumstances where the show cause notice has to be issued to a person against whom, the
decree has to be executed.

Where an application made after passing of two years from the date of drawing up the decree.
Where an application of execution has been made against the legal representative of judgement
debtor.
Where an application made for execution against an insolvent.
Where an application made against a person who has furnished security or given guarantee for the
execution of decree.
Where an application made to the assignee or transferee of the decree holder.

Under Order XXI rule 22, giving notice to the judgement debtor is mandatory in the above
circumstances or else it will be considered as null and void process of execution of decree. The main
object of giving notice is to protect the right of judgement debtor who is not acquainted with the
judgement and decree completely.

Questions to be determined by the Court executing decree (Sec. 47)

Sec. 47 is having the objective to avoid unreasonable litigation by giving executing court an
exclusive jurisdiction. This section empowers the court executing a decree to decide all the
questions regarding execution proceedings.

Question relating to discharge& execution of a decree includes following things -

Whether a decree is executable.
When the property is wrongly taken in execution by decree holder.
Whether the sale in execution proceeding has been warranted on the terms of decree.
To enforce payment of injunction granted by a decree.
Matters relating to decree on compromise of suit.

Questions not included in execution of decree & doesn’t empower the executing court to entertain
such questions are as follows -
Validity of decree.
A pre – decree arrangements between the parties.
False and fraudulent administration of the estate of judgement debtor.
Questions regarding compensation for wrongs committed by officers in execution of a decree.
A question regarding contribution amongst the judgment debtors, and partition of amount of
decree among such judgement debtor.

Transfer of Decree outside India (Sec. 45)

This section states that in case of execution of a decree outside India, the court can send the decree
for execution in the same way as if it has transferred for execution within the territory of India, if
such court to which the decree is sent for the execution is established outside the territory of India
but has been created by the authority of central government, and the state of the court transferring
such decree has by notification in the Official Gazette declared this section to apply.

Percept (Sec. 46)

Upon the application of the decree-holder the Court which passed the decree may. whenever it
thinks fit, issue a precept to any other Court which would be competent to execute such decree to
attach any property belonging to the judgment-debtor and specified in the precept.
The Court to which a precept is sent shall proceed to attach the property in the manner prescribed
in regard to the attachment of property in execution of a decree. Here it is important to note that no
percept shall remain in force after the expiry of two months from the date of its issuance.

Transferee (Sec. 49)

In case of transfer of a decree to another person by the decree holder, such person to whom such
decree has been legally transferred will be considered transferee. Transferee will not have more
rights as compared with the original decree holder against the judgement debtor.
Example – A has a decree against B for Rs. 50 Lacs. B has a decree against A for Rs. 20 Lacs. A
transfer his decree to C. Now, C cannot enforce a decree for than Rs. 30 Lacs against B since 20 Lacs
will be considered as set off against A. A has transferred his decree to C, so C will have to honour
such set off against A in case of transfer of decree in his favour.

Legal Representative (Sec. 50)

Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree
may apply to the Court which passed it to execute the same against the legal representative of the
deceased. Where the decree is executed against such legal representative, he shall be liable only to
the extent of the property of the deceased which has come to his hands and has not been duly
disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may,
of its own motion or on the application of the decree-holder, compel such legal representative to
produce such accounts as it thinks fit.
Payment of money under a Decree (Order XXI Rule 1 & 2)
Order XXI, Rule 1 prescribes three ways for the payment of money in a decree, as following -
By deposit into the court whose duty it is to execute the decree, or sent to that Court by postal
money order or through a bank; or
Out of Court, to the decree-holder by postal money order or through a bank or by any other mode
wherein payment is evidenced in writing; or
Otherwise, as the Court which made the decree, directs.

Rule 2 states that in case of payment outside the court, a certificate of payment or adjustment by
the decree holder and a record by the court is necessary. Where a payment has been made within
the court a notice should be given by the decree holder to the judgement debtor. Suppose, A has a
decree of Rs. 50 thousand against B. A made an outside court settlement with B for the payment of
Rs. 40 thousand for the complete satisfaction of decree.
B pays 40 thousand rupees for the complete satisfaction of decree. Later on, after taking such
money A went to the court for the satisfaction of remaining 10 thousand rupees. B states that he has
entered into an adjustment, but A has not issued a certificate of adjustment, and a certificate of
payment then B cannot enforce the same in the court.

Modes of execution of a Decree (Sec. 51 & Order XXI)

As per sec. 51 of the act, there are 5 ways through which the court can execute a decree except the
cases of money decree, as follows -
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by the sale without attachment of any property;
(c) by arrest and detention in prison for such period not exceeding the period specified in section
58, where arrest and detention is permissible under that section;
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may require

Provided that, where the decree is for the payment of money, execution by detention in prison shall
not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he
should not be committed to prison.
Under Order XXI rules 30 – 36, there are various modes for the execution of a decree. It is giving an
option for the judgment debtor to decide in which mode he wants to execute a decree out of several
modes. Rule 31 majorly prescribes 4 ways for the execution of a decree -

Seizure and delivery of property of decree holder.

Detention of judgement debtor.
Attachment of judgement debtor.
Both arrest and attachment.

Rule 35 states that if the immovable property is in the possession of judgement debtor, then the
actual possession must be delivered to the decree holder. Where a property is in joint possession or
in the possession of tenant or leasee, only the formal possession can be transferred (Rule 36). This
can be done by affixing a copy of warrant and proclaiming to the occupant of the property or by
beating a drum etc.

Attachment and sale of property (Rule 54)

The court can order attachment of sale of property without attachment. Attachment imposes
restriction on judgement debtor to no to transfer such property to another person.

Arrest and Detention (Sec. 55 - 59 & Order XXI Rule 30, 31)
A judgment-debtor may be arrested in execution of a decree at, any hour and on any day, and shall,
as soon as practicable, be brought before the Court, and his detention may be in the civil prison. Sec.
55 defines certain rules for the arrest and detention of a person.
For the purpose of making an arrest under this section, no dwelling-house shall be entered after
sunset and before sunrise.
That no outer door of a dwelling-house shall be broken open unless such dwelling house is in the
occupancy of the judgment-debtor and he refuses or in any way prevents access thereto.
If the room is in the actual occupancy of a woman who is not the judgment-debtor and who
according to the customs of the country does not appear in public, the officer authorized to make
the arrest shall give notice to her that she is at liberty to withdraw, and, after allowing a reasonable
time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for
the purpose of making the arrest.
Where the decree in execution of which a judgment-debtor is arrested, is a decree for the payment
of money and the judgment-debtor pays the amount of the decree and the costs of the arrest to the
officer arresting him, such officer shall at once release him.
Where a judgment-debtor is arrested in execution of a decree for the payment of money and
brought before the Court, the Court shall inform him that he may apply to be declared an insolvent,
and that he may be discharged, if he has not committed any act of bad faith regarding the subject of
the application and if he complies with the provisions of the law of insolvency for the time being in
force. Where a judgment-debtor expresses his intention to apply to be declared an insolvent and
furnishes security, to the satisfaction of the Court, that he will within one month so apply, and that
he will appear, when called upon, in any proceeding upon the application or upon the decree in
execution of which he was arrested, the Court may release him from arrest, and, if he fails so to
apply and to appear, the Court may either direct the security to be realized or commit him to the
civil prison in execution of the decree.
Sec. 56 of the act states about no arrest of women in any case in execution of a money decree.
Sec. 57 states that the person on whose application such arrest order has been issued shall pay the
subsisting allowance of the judgement debtor, and if he stops the payment, judgment debtor can be
released.
Sec. 58 states the term of detention of a person in execution of a decree, which is as following -
In the cases, where the decree is for the payment of a sum of money exceeding five thousand
rupees, for a period not exceeding three months, and,
Where the decree is for the payment of a sum of money exceeding two thousand rupees, but not
exceeding five thousand rupees, for a period not exceeding six weeks.
There shall be no detention in the cases, where execution of a decree is for less than Rs. Two
thousand.
Sec. 59 states in case of a judgement debtor is suffering from a contagious or infectious disease, or
he is suffering from a disease that he is not fit to stay in detention.

Order XXI, rule 30 states that in cases where the decree is for the payment of money, it can be
executed by sending judgement debtor to civil prison, or by attachment of property of judgement
debtor or by both ways. Order XXI, rule 31 states about decree for the specific movable property. It
states that a decree of specific movable property can be executed by attachment, seizure or
committing the judgment debtor in civil prison.

Other modes of execution of decree (Sec. 54, Order XXI, Rule 32,33)
As per sec. 54 of the act, where the decree is for the partition of an undivided estate assessed to the
payment of revenue to the Government, or for the separate possession of a share of such an estate,
the partition of the estate or the separation of the share shall be made by the Collector or any
gazette subordinate of the Collector deputed by him in this behalf, in accordance with the law (if
any) for the time being in force relating to the partition, or the separate possession of shares, of
such estates. As per rule 32, Order XXI, where a decree is for the specific performance of a contract
or for injunction, and the party against whom such decree is passed willfully disobeys it then such
decree can be executed by attaching the property of such person in cases of restitution of conjugal
rights and in the cases of injunction arrest and detention, and/or attachment of property. Here it is
important to note that there can be no arrest and detention in the cases of restitution of conjugal
rights. If a decree is against husband rule 32 and he does not comply with it in a fixed time, the
court may order him to make periodical payments to the decree holder (Rule 33).

Execution of document/endorsement of negotiable instrument (Order XXI, Rule 34)

Where a decree is for execution of document or for endorsement of negotiable instrument, the
judgement debtor neglects to obey the decree, the court may, after giving an opportunity to the him
and decree holder, prepare a draft as according to the terms of decree, and execute such a
document or endorse the negotiable instrument.

Attachment in the cases of decree for rent, mesne profit etc. (Rule 42)
Enforcement of liability of surety (Sec. 145)
Where a person furnishes security or guarantees for the performance of a decree, then in case of
non-execution a such decree, that guarantor shall be personally liable in cases where he renders
himself liable, or in case furnishing security, his property will be liable to the extent of he has
furnished security.

Decree against corporations (Rule 32)

Where a corporation is a judgment debtor, then such decree can be enforced by making arrest or
detention of the directors/officers of the corporation or by attaching the property of such
corporation or by both ways.

Decree against firm (Rule 49,50)

In the cases of a decree against the firm, it can be executed against the following -
Any partnership property.
Aby person who has appeared his own name as a partner.
Any person who has been individually served with a summon as partner of the firm and has failed
to appear.
Where a decree is sought to be executed against any person alleged to be partner, the decree holder
must obtain the permission of court to execute a decree against him. In rule 50, property belonging
to firm can be attached and sold in execution of a decree passed against the firm or partners.
Decree against legal representative (Sec. 52)
Refer sec. 52 in the document.
Execution of cross decrees (Order XXI, Rule 18 –20)
If the applications are made to a court for the execution of cross decrees in separate suits for the
payment of two different sums of money passed between the same parties, and capable of
execution at the time by such court, then following procedure shall be followed by the court -
When two sums are equal then both decrees shall satisfy each other and no execution shall take
place.
If two decrees are unequal then full satisfaction will be entered upon the decree for the smaller
amount, and part satisfaction for the decree of larger amount, and execution will be allowed for the
decree of larger amount only.

For enabling these rules, it is important that one decree must be favouring one decree holder, and
other decree should be favouring judgement debtor of the former decree, and each must be fill the
same character in both suits.
Stay of execution (Order XXI, Rule 26 & 29)

The Court to which a decree has been sent for execution shall, upon sufficient cause being shown,
stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to
the Court by which the decree was passed, or to any Court having appellate jurisdiction in respect
of the decree or the execution thereof, for an order to stay execution, or for any other order relating
to the decree or execution which might have been made by such Court of first instance or Appellate
Court if execution had been issued thereby, or if application for execution had been made thereto
(Rule 26). Where another suit is pending in the same court against the decree holder and judgment
debtor, such court
may on furnishing securities stay execution of decree until the suit has been disposed of. For the
application of this rule, there has to be two simultaneous proceedings in one court, I) execution
proceedings against the judgement debtor II) suit against the decree holder (Rule 29). This rule is
not mandatory but discretionary in nature.

Attachment of property under execution of Decree (Sec. 60 – 64, Order XXI Rules 41 - 59)
Sec. 60 of the act provides a list of property that are liable to attach, and the property which are
exempted from such attachment.
Things which are liable for attachment -
Land
House & other buildings
Movable property (Goods)
Money and bank notes
Cheques/bills of exchange/Hundies/promissory notes/government securities/bonds etc.
Debts
Shares in corporations
All other sealable property (whether movable or immovable)

Things exempted from attachment -

Necessary wearing apparel, cooking vessels, beddings, personal ornaments related with religious
usage.
Tools of artisans, implements of husbandry, cattle, seed grain.
Houses, other buildings of agriculturist, domestic servant.
Books of accounts.
Stipends and gratuities allowed to pensioners.
Wages and salaries, pay and allowance of air/naval/army men or any other allowance exempted by
Indian laws.
Compulsory deposits and insurance premiums, interest of a leasee in the residential building.
an expectancy of succession by survivorship or other merely contingent or possible right or interest
(Spes successionis).

A right to future maintenance.

where the judgment-debtor is a person liable for the payment of land-revenue, any movable
property which, under any law for the time being applicable to him, is exempt from sale for the
recovery of an arrear of such revenue.

Right to personal service

Sec. 61 of the act empowers the state government to exempt agricultural produce from attachment
or sale. As per sec. 60 of the act, as regards to salary, it is stated that only 1/3rd of salary can be
exempted in the cases of maintenance. In all other cases, first Rs. 1000/- of the salary and 2/3rd of
the remaining amount is exempted from attachment. If there are two or more decrees against the
same person and his salary got attached continuously for 24 months, then such portion of his salary
shall be exempted for another 12 months. Let’s understand it by an example suppose a person has
salary of Rs. 10,000/- per month, then his first 1000/- rupees will be exempted and only 1/3rd of
the remainder I.e. 1/3rd of Rs. 9000/- I.e. only Rs. 3000/- can be attached in execution of a general
cases of decree. While in the cases of maintenance, his 1/3rd portion of salary is exempted so Rs.
6,666/- I.e. 2/3rd of his salary can be attached in execution of a maintenance decree.

Private alienation of property after attachment to be void (Sec. 64)

Sec. 64 states that a private alienation of property (sale, mortgage, gift etc) after attachment is void
as against the claims enforceable under the attachment. It is immaterial whether an application of
sec. 64 whether the decree had or had not been passed before the time when the transfer was
affected or whether the transferee acted in good faith or not. But, if the sale deed was executed
prior to attachment and before judgement, it will prevail over attachment.

Modes of attachment (Order XXI, Rule 43 – 54)

All the movable property except the agricultural produce can be attached by actual seizure of
property, and if the property is subject to natural and speedy decay, it may be sold (Rule 43).
In the cases of agricultural produce, they can be attached by fixing a copy of warrant on the land or
house of the judgement debtor (Rule 44). Where agricultural produce is attached, the Court shall
make such arrangements for the custody thereof as it may deem sufficient and, for the purpose of
enabling the Court to make such arrangements, every application for the attachment of a growing
crop shall specify the time at which it is likely to be fit to be cut or gathered (Rule 45).
In the cases of movable property not in the possession of judgement debtor, by giving an order to
not to deliver the property to judgement debtor (Rule 46).
In the cases of immovable property in the possession of judgement debtor, by an order prohibiting
the judgement debtor from making transfer or charging it in any manner and all persons from
taking benefit out of such transfer or charge (Rule 54).
In the cases of negotiable instruments, it can be attached by actual seizure and bringing such
instrument to the court (Rule 51, 46 A to H).
In the cases of debt, the court can attach such debt by making an order prohibiting such judgement
debtor as creditor and recovering debt and debtor from paying such debt. It is important to note
that judgement debtor’s debtor is known as garnishee, and an order passed by court to stop such
payment to judgment debtor and pay such debt amount in the court is known as garnishee order
(Order 46 A).
In the cases of shares in company or share & interest in movable as a co – owner, the court can issue
an order prohibiting the judgement debtor to take any advantage out of the same (Rule 47).
In the cases of attachment of salary and allowance of government or private employees, the court
can issue an order that the amount of monthly payment for decree shall be withheld from the salary
or allowance either in one payment or monthly instalments (Rule 48 & 48 A).
In the cases of shares in the partnership, the court can appoint a receiver of the share of partner in
profit, and directing him to the accounts and inquiries, and order him to sale such interest (Rule
49).

Determination of Attachment (Order

XXI, Rule 55 – 58) These rules prescribe certain cases in which an order of attachment can be
determined as follows -
Where the decretal amount is paid or decree is otherwise satisfied, or is set aside, or reversed.
Where the court after hearing the objections against attachment, makes an order releasing the
property from attachment.
Where after the attachment, the application for execution is dismissed on default of decree holder.
Where there is an agreement or compromise between the parties regarding withdrawal of
attachment.

Adjudication of claims and objects regarding attachment (Order XXI, Rule 58 & 59)
Where the property is attached. There may be objections to it either by a party or his representative
or by a third party. Such objection has to be decided by the court executing the decree (Rule 58).
Rule 58 also states about a proviso that the court shall not entertain objections or claims if the
property has been sold before the attachment, or where the court feels that the objection has been
made for unnecessary delay to the suit. Rule 59 states that where before the claim was preferred or
the objection was raised, the property attached has already been advertised for sale, the court can
stay such sale.
Sale and delivery of property under execution of decree (Sec. 65 – 74 & Order XXI, Rule 64 – 106)

Purchase title (Sec. 65)

Where immovable property is sold in execution of a decree and such sale has become absolute, the
property shall be deemed to have vested in the purchaser from the time when the property is sold
and not from the time when the sale becomes absolute.

A court executing a decree may order that any property attached by it and liable to sale (or such
portion of property as may be sufficient to satisfy the decree) may be sold and proceeds of it to be
paid to the decree holder (Rule 64).
Every auction has to be conducted in public (Rule 65).
Before such auction, a proclamation of the intended sale is to be made by the court, after notice to
be the decree holder and the judgement debtor; the proclamation is to contain all material
information regarding the property to be sold (Rule 66).
Every proclamation shall be made by beat of drum or other customary mode and a copy of it must
be affixed on the conspicuous part of the property and of the courthouse and also in the collector’s
office/Gram panchayat if the property is land paying revenue. If the court directs, it should also be
published in the official gazette or a local newspaper (Rule 67).
Except the case of property subject to speedy and natural decay, or the property keeping of which is
expensive, no scale without the consent in writing of the judgement debtor can take place before 15
days in case of the immovable property and before 7 days in case of movable property from the
date of proclamation in the court house (Rule 68).
The court may adjourn a sale, but if it is adjourned for 30 days or more, a fresh proclamation is to
be issued, unless the judgement debtor consents to waive it. Every sale shall be stopped if before
the property is knocked down, the debts and costs are tendered to the officer conducting the sale,
or paid into the court (Rule 69).
A decree holder cannot, without the express permission of the court purchase the property sold in
execution of his own decree. If the court permits him, he is entitled to a set off; but if not so
permitted, the court may set aside the sale upon the application of the judgement debtor (Rule 72).
Thus, such a sale is not void ab initio but merely voidable.
A mortgagee of immovable property cannot, without the court’s leave, purchase the property sold
in execution of a decree on the mortgage (Rule 72 A). Any officer/person having any duty to
perform in connection with an execution sale, cannot bid for, acquire, etc. Any interest in the
property sold in execution (Rule 73).

Special provisions for sale of movable property (Rule 74 – 81)

Sale of all movable properties should ordinarily be held at some place within the jurisdiction of the
court ordering such sale. However, in case of agricultural produce, the sale shall be held on or near
the land on which the crop is standing/harvested/lying. The court shall postpone such sale if fair
price is not being offered, and the owner applies for such postponement (Rule 74). In case of a
negotiable instrument’ or a ‘share in a corporation’ the court has power to order sale through a
broker instead of by public auction (Rule 76). Price of the property shall be paid at the time of sale.
On payment of price, the sale becomes absolute (Rule 77). It may be noted that confirmation of such
sale is not necessary as in the case of sale of immovable property. Further, Rule 78 provides that a
sale of movable property in execution of a decree cannot be set aside on the grounds of irregularity
in publishing or conducting the sale. However, the injured party is entitled to compensation. It may
be noted that a material irregularity in a sale of immovable property enables a court to set aside
such a sale.
Special provisions in case of immovable property (Rule 82 – 96)
All courts (excepts small cause court) can order sale of immovable property in execution of a
decree. The court may postpone sale to enable the judgement debtor to raise the decretal amount
by private alienation (e.g. mortgage, charge, lease, etc.). A private sale has to be confirmed by the
court.
Rules 84 –87 provide for the deposit of 25 percent of purchase money by the purchaser,
immediately after the sale, and the payment of balance within 15 days of sale; upon non –
compliance with these provisions there is no sale at all, and the property is to be re – sold. The
defaulting purchaser will forfeit all claims to the property. In the case of immovable property jointly
owned by the judgment debtor and another co – owner(s), the co – owner's bid is to have
preference (right of pre – emption).

Setting aside of sale (Rule 89 – 92)

Rules 89 – 92 deals with setting aside of sale; an application to set aside sale cannot be made on any
other ground not covered by these rules. The grounds and the persons who may apply for setting
aside sale are -
On the deposit of the amount specified in the proclamation of sale, by the judgement debtor or
other person, and paying 5% of the purchase money to the purchaser (Rule 89).
On the ground of material irregularity or fraud in publishing or conducting the sale; the decree
holder/purchaser/any other interested person can apply for setting aside, if it is shown that such
irregularity, etc has substantially injured such a person (Rule 90). A judgement debtor can also
apply.
The expression ‘material irregularity’ refers to an irregularity on the part of the court or its officer
in
procedure to be followed before the property is put to sale, viz omission to issue notice under Rule
22, omission to publish sale proclamation, omission to hold sale at stated time and place, sale after
satisfaction of the decree, etc.

The following irregularities have been held not to be material irregularities, viz absence or defect in
attachment, omission to specify share of the judgement debtor in property, omission to issue a
fresh proclamation after sale is adjourned, mis – description of the property in sale proclamation
when the parties knew the property to be sold, etc.

A sale shall not be set aside merely on the ground that the judgement debtor had died between the
date of issuance of proclamation of sale and the date of sale and the legal representatives were not
brought on record (Rule 22 A). The court may, however, set aside a sale if the legal representatives
were prejudiced. ‘Fraud’ means that ‘which is dishonest and morally wrong’. It is sufficient if fraud
on the part of the decree holder is established. The applicant must also prove that he had sustained
substantial injury by means of an irregularity or fraud.
If an act/omission amounts to a material irregularity, the sale is not void but voidable. If the
judgement debtor, knowing of an irregularity, allows the sale to proceed, he will be estopped,
though substantial injury has been caused.

Rule 91 empowers the auctor purchaser to set aside the sale on the grounds that the judgement
debtor has no sealable interest in the property.

Rule 92 states that no sale of immovable property shall become absolute until it is confirmed by the
court (where no application to set aside the sale is made, or if such application is made then
disallowed). Where such application is allowed or the deposit required by Rule 89 is made within
60 days from the date of sale, the sale can be set aside.
Where a claim against the attachment in execution of a decree has been made but the property
attached has been sold pending the determination of such claim, such sale cannot be confirmed by
the court the final disposal of such claim, After the sale has become absolute, the court shall grant a
certificate of sale (Rule 94).

Resistance of delivery of property (Sec. 74, Order 21, Rule 97 – 103)

Sec. 74 of the act states that the person against whom a decree has to be executed or any other
person, has made any resistance or obstructed in obtaining the possession of such property, then
such person can be detained in civil prison for a term up to 30 days, and the court may direct the
decree holder or purchaser be put into possession of the property.

Rule 97 states that where a decree holder or auction purchaser has been resisted by a person then
he can make an application in the court regarding such possession of property.

The court shall inquire and determine all the rights of the parties so obstructed and decide title and
interest over such property (Rule 101). The court after adjudicating the issue, can pass an order for
giving possession to the decree holder/auction purchaser and then also if such person resisted, he
can be sent to civil prison up to 30 days (Sec. 74 & Rule 98). The order passed by such an inquiry is
treated as decree and is appealable (Rule 103). However, such above rules shall not apply on a
person to whom the judgement debtor sold the property after institution of suit and before passing
of decree (Rule 102).
Proceeds of execution sale to be rateably distributed among decree-holders (Sec. 73)
Where assets are held by a Court and more persons than one have, before the receipt of such assets,
made application to the Court for the execution of decrees for the payment of money passed against
the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting
the costs of realization, shall be rateably distributed among all such persons : Provided as follows
:—
(a) where any property is sold subject to a mortgage or charge, the mortgage or incumbrancer shall
not be entitled to share in any surplus arising from such sale;
(b) where any property liable to be sold in execution of a decree is subject to a mortgage or charge,
the Court may, with the consent of the mortgagee or incumbrancer, order that the property be sold
free from the mortgage or charge, giving to the mortgagee or incumbrancer the same interest in the
proceeds of the sale as he had in the property sold;
(c) where any immovable property is sold in execution of a decree ordering its sale for the
discharge of an incumbrance thereon, the proceeds of sale shall be applied—
First, in defraying the expenses of the sale;
Secondly, in discharging the amount due under the decree;
thirdly, in discharging the interest and principal monies due on subsequent incumbrances (if any);
and fourthly, rateably among the holders of decrees for the payment of money against the
judgement-debtor, who have, prior to the sale of the property, applied to the Court which passed
the decree ordering such sale for execution of such decrees, and have no obtained satisfaction
thereof. Nothing in this section affects any right of the Government.

An order passed under sec. 73 is not appealable as decree. A revision application can be filed
against such order.

Incidental proceedings Commissions (Sec. 75 – 78, Order XXVI)

Power of court to issue commission (Sec. 75)

Commission is issued in such cases where the court cannot perform a certain act by itself which is
necessary to adjudicate the matter. Commission can be issued for following things as per sec. 75 of
the act -

(a) To examine any person;

(b) To make a local investigation;
(c) To examine or adjust accounts; or
(d) To make a partition;
(e) To hold a scientific, technical, or expert investigation;
(f) To conduct sale of property which is subject to speedy and natural decay and which is in the
custody of the Court pending the determination of the suit;
(g) to perform any ministerial act.

Commission to another court (Sec. 76)

A court (Not being a high court) can issue commission for examination of a witness residing in a
state other than the state in which, the court is situated. Every court receiving a commission for the
examination of any person shall examine the person and shall return the commission along with the
evidences collected by such court.

Letter of request (Sec. 77)

In the cases, where a witness is not residing in India, the court can on the place of issuing a
commission can issue a letter of request to examine such witness.

Commission issued by foreign court (Sec. 78)

All the above provisions regarding issuance and returning of commission shall apply on a court
which is falling within any of these three categories -

Courts situate in any part of India to which the provisions of this Code do not extend; or
Courts established or continued by the authority of the Central Government outside India; or
Courts of any State or country outside India.

Commissions to examine the witnesses (Order XVI)

Commission is not a court so its function is to assist the court. In the case of Tushar Kanti v. Savitri
Devi, 1996, Supreme court held that the report of a commission is a prima facie evidence means the
data collected by the commission is a substantial piece of evidence.

Rule 1 – This states that any court can issue a commission for examination of a person residing in
any part of territory of India outside the state of the court which has to examine such person, or any
person who is exempted from his personal appearance in the court, residing within the limits of the
court which has to examine such person.

Rule 4 – This rule states about the person for whose examination commission can be issued are as
follows -

(a) Any person resident beyond the local limits of its jurisdiction;
(b) Any person who is about to leave such limits before the date on which he is required to be
examined in Court; and
(c) Any person in the service of the Government who cannot in the opinion of the Court, attend
without detriment to the public service.

Rule 9 – In any case where the court feels that a local investigation is required for the purpose of
elucidating the any matter in dispute, the court can issue commissions to make local investigations
like ascertaining the market value of a property; or the amount of mesne profit or actual profit etc.

Rule 10 A – This rule states that court can issue commission for scientific investigation which in the
opinion of the court cannot be conveniently conducted before the court, then the court can issue a
commission for such matter directing him into such questions and report as required by the court.

Rule 10 B – Commission for performance of ministerial act.

Rule 10 C – Commission for the sale of movable property subject to natural and speedy decay.

Rule 13 – The court can issue a Commission to make partition of immovable property for the
performance of an act in connection with partition or separation not provided in sec. 54 of the act.

Rule 15 – Before issuing a commission under this order, the court may order such sum as it thinks
reasonable for the expenses of the commission to be, within a period fixed, paid into the court by
the party for whose instances or for whose benefit the commission is issued.

Here, it is important to note that a court cannot issue a commission for the understanding of an
Indian law whether exiting or repealed, but it can issue a commission to understand a foreign law.
Suit by or against the government (Sec. 79 – 82, Order XXVII)

Suits by or against the government (Sec. 79)

This section defines that in a suit by or against the government, who shall sue or can be sued in
other words we can say who can be a plaintiff or defendant. This section states that in the cases of
suit by or against the central government, the plaintiff or defendant as the case may be will be
‘Union of India’, and in the cases of suit by or against the state government, as the case may be will
be ‘the state’.

Notice (Sec. 80)

This section states that no suit can be instituted against the government until the expiration of two
months after delivering the writing notice to the government. This section also states that in case of
a suit against a public officer for the act done in their official capacity can be sued by which names.
This section has a proviso that in case of urgent or immediate relief against the government or
against any public office a suit may be instituted without giving two months prior notice, but the
court shall not grant any relief without giving a reasonable opportunity to the government or such
public officer as the case may be. This section also states that no order can be declared irregular
merely because of non fulfilment of conditions of sec. 80 for passing such order.

Exemption from arrest and personal appearance (Sec. 81)

In a suit instituted against a public officer in respect of any act purporting to be done by him in his
official capacity—
(a) the defendant shall not be liable to arrest nor his property to attachment otherwise than in
execution of a decree, and,
(b) where the Court is satisfied that the defendant cannot absent himself from his duty without
detriment to the public service, it shall exempt him from appearing in person.

Execution of decree (Sec. 82)

No decree against the government or against a public officer acting in his public capacity shall be
executed unless it remains unsatisfied for a period of three months computed from the date of such
decree.
Suit by aliens or by or against foreign rulers, ambassadors and envoys (Sec. 83 – 87B)
When Aliens may sue (Sec. 83)
This section states that alien enemy may sue a person under civil procedure code, 1908 with the
prior permission of the central government, and alien friend may sue a person as if he is the citizen
of India. Let's understand meaning of the terms ‘Alien friend’ and ‘Alien enemy’. Every person
residing in a foreign country, the Government of which is at war with India and carrying on
business in that country without a licence in that behalf granted by the Central Government, shall,
for the purpose of this section, be deemed to be an alien enemy residing in a foreign country. Alien
friend is a person who is living in a country which has normal relations with the government of
India.

When foreign state may sue (Sec. 84)

A foreign state may sue in his person capacity only where it has to enforce its private right vested in
the ruler of such country.
Persons specially appointed by Government to prosecute or defend on behalf of foreign Rulers (Sec.
85)
The central government on the request of a foreign ruler can appoint any person to prosecute or
defend on behalf of such ruler. The person authorized will act as an agent of such foreign ruler for
application, appearance and acts under this code.

Suits against foreign Rulers, Ambassadors and Envoys (Sec. 86)

No foreign ruler shall be sued in any suit without the prior written permission of central
government, but it contains a certain exception in which a foreign ruler can be sued without such
permission, such person is suing as a tenant of a foreign state from whom he holds the property.
The central government shall not permit a person to sue a foreign ruler unless it finds any of the
following reasons behind institution of suit against such foreign ruler –

The foreign state has instituted a suit against a person who wants to sue such foreign state.
When the foreign state is involved in a trade within the local limits of the jurisdiction of the court, in
which suit has to be instituted.
When foreign state has possession of a property, a person wants to institute a suit claims to have
some money charges over such property.
Where a foreign state has expressly or impliedly waived of his privilege.

In all these cases as well the central government shall not execute a decree against a foreign state
without giving notice in writing to such foreign state.
This section also defines that the provisions of this code shall be applicable on the following
persons -

Any ruler of a foreign State;

Any Ambassador or Envoy of a foreign State;
Any High Commissioner of a Commonwealth country; and
Any such member of the staff of the foreign State or the staff or retinue of the Ambassador or Envoy
of a foreign State or of the High Commissioner of a Commonwealth country as the Central
Government may, by general or special order, specify in this behalf

This section also states that no such person as mentioned above shall be arrested without the prior
consent of the central government in writing.

Style of foreign rulers as parties to suits (Sec. 87)

The e foreign ruler may sue or may be sued in the name of his state, but the central government
may direct that the ruler may be sued in the name of any agent or in any other name.

Definition of foreign state and foreign rulers (Sec. 87 A)

Foreign state means a state outside the territory of India, and foreign ruler means a person
recognized a head of the state by central government.
Interpleader suits (Sec. 88 & Order XXXV)

Where interpleader suit may be instituted (Sec. 88)

Sec. 88 of the code defines about interpleader suit. Firstly, lets understand the meaning of
interpleader suit. Interpleader suit means a suit instituted by a person who has no interest in the
property which is in issue except some charges and cost and the person is ready to pay such
charges to rightful claimant. Such person can institute an interpleader suit against all the claimants
who are claiming that the property belongs to them for the purpose of obtaining a decision as to the
person to whom the payment or delivery shall be made.

Suppose A dropped a car in B’s garage for servicing of the car. Before, B could complete the service
of car, C comes to B and says that he is the actual owner of the car and A has committed theft of his
car. Here, B can file an interpleader suit to decide that the car belongs to whom (A or C). A has no
interest in the car except the cost of service which has incurred on the car.
Interpleader (Order XXXV)

Rule 1 – This rule states that in every plaint of an interpleader suit, the plaint shall contain certain
other things as following, along with the essential conditions of the plaint -

The plaintiff claims no interest in the subject matter of dispute except charges or costs.
The claims for the subject matter were made by defendants severally.
There is no collusion between the plaintiff and any of the defendant.

Rule 2 – Where the thing which is subject matter of dispute is of such nature that it can be placed in
the custody of court, then the plaintiff has to deposit such thing in the court.

Rule 3 – Where any of the defendant has already instituted a suit against the plaintiff, then the
plaintiff has to disclose such fact, and the proceedings of such suit shall be stayed.

Rule 5 – This rule states that agents and tenants cannot institute an interpleader suit against their
landlord or principals.

Rule 6 – This rule states that where a suit is properly instituted the court may provide for the costs
of the original plaintiff by giving him a charge on the thing claimed or in some other effectual way.

Settlement of disputes outside the Court (Sec. 89, Order X, Rule 1A, 1B, 1C)

Sec. 89 of the act provides for the alternative dispute resolution mechanism, I.e. settlement of
dispute outside the court. (Follow Order X Rule 1A, 1B & 1C).

Power of state case for opinion (Sec. 90) (Friendly Suit)

This type of suits is known as friendly suit in which two parties agrees for the opinion of the case,
the court shall determine the case in the manner prescribed.

Public nuisances and other wrongful acts affecting the public (Sec. 91)
This section empowers the persons who are not specially affected or suffered any damage can file a
suit against a person who is creating public nuisance or other committing any wrongful act which
may affect the public. This suit empowers two categories who can institute a suit against such
public nuisance or a wrong against public at large, as following -

By the Advocate-General, or
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.

Public charities (Sec. 92)

When a trust created for any religious or charitable purpose is in issue, and the court deems
necessary to direct the administration of trust, any of these two categories of people can institute a
suit -

Advocate general of the state

Two or more persons having interest in such trust and having obtained the leave of the court.
The court within whose local jurisdiction such suit has been instituted may pass a decree for the
following subject matters -

Removing any trustee;

Appointing a new trustee;
Vesting any property in a trustee;
Directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver
possession of any trust property in his possession to the person entitled to the possession of such
property];
Directing accounts and inquiries;
Declaring what proportion of the trust property or of the interest therein shall be allocated to any
particular object of the trust;
Authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
Settling a scheme; or
Granting such further or other relief as the nature of the case may require.
Further, this section also empowers the court to alter purpose of trust (Cy pres) in the following
cases -

Where the original purpose of trust has been fulfilled or cannot be carried out at all, or cannot be
carried out as per the instructions of the instrument of trust.
Where the original purpose of the trust only provides for use of a part of property.
Where the original purpose of the trust has become harmful for the community, or ceased by law to
be charitable.
Where the original purpose of the trust has been ceased in any other way to provide a suitable
method for using the property available for the trust.

Exercise of power of advocate general outside presidency town (Sec. 93)

The powers conferred to the advocate general for the purpose of sec. 91 and 92 can be exercised by
collector outside the presidency town with the previous sanction of the state.

Supplemental Proceedings (Sec. 94, 95 & Order XXXVIII, XXXIX, XL)

Supplemental Proceedings (Sec. 94)
This section is having the object to empowering the court to prevent the ends of justice. Under this
section the court can take up following measures, to prevent the ends of justice -
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 the order, he can be sent
to the civil prison.
The court can direct the defendant to furnish security to produce any property belonging to him or
order to attachment of such property.
Grant temporary injunction and in case of disobedience commit the person to civil prison, and
order the property to be attached and sold.
Appoint a receiver of any property and enforce performance of his duties by attaching and selling
his property.
Make any other interlocutory orders as appears to the court just and convenient for the ends of
justice.
Compensation for obtaining arrest, attachment or injunction on insufficient grounds (Sec. 95)
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 not exceeding fifty thousand
rupees, as it deems a reasonable compensation to the defendant for the expense or injury
(including injury to reputation) caused to him.

Arrest and attachment before judgment (Order XXXVIII)

Rule 1 – Where at any stage of trial the court is satisfied that the defendant with intent to cause
delay in any court proceeding or in execution of decree that may be passed against him, has
absconded or is about to abscond or removed or about to remove or dispose of his property from
the local limits of the court, or is about to leave India then the court can issue a warrant of arrest
against such defendant and bring him to the court to show cause why he should not be furnished to
give security. Provided that he shall not be arrested in the cases where the defendant paid the
amount entrusted with the warrant as to satisfy the plaintiff's claim.

Rule 2 – Where the defendant has brought to the court but he is unable to provide any appropriate
answer, the court can order him to pay the security for his appearance or any other property
sufficient for his presence in the court. Every surety made by the defendant under this rule is
binding on himself and in case of his non – appearance, the court can enforce him to pay such
surety.

Rule 4 – Where the defendant hasn’t paid security after noncompliance with term for which he was
liable to pay security, the court can send him to the civil prison, but he cannot be sent to the civil
prison for more than 6 weeks if the amount of surety is not more than 50 rupees and in no other
case more than 6 months.

Rule 5 – The court can order for the attachment of the property of defendant on the same
conditions as prescribed under rule 1.

Rule 7 – This rule states that the attachment shall be made in a manner provided by the code for the
execution of a decree for the purpose of this order.

Rule 9 – This rule states that when the defendant furnishes the security required by the court, or
dismisses the suit then such attachment of property made under this code shall be removed.
Rule 11 – This rule states that when a property has been attached for the appearance of a person,
there is no need to make a separate application for the re – attachment of such property in
execution of a decree.

Rule 11 A – In the cases where a suit has dismissed for default, and later on re-instated then the
attachment shall not revive only because of the order to set aside the suit for default has been set
aside.

Rule 12 – Nothing in this order shall authorize the plaintiff to apply for the attachment of
agricultural produces in the possession of the agriculturist.

Rule 13 – This rule states that no court of small cause is empowered to order the attachment of an
immovable property by the virtue of this order.

Temporary injunctions & interlocutory orders (Order XXXIX)

Under this order Rule 1 to 5 states about temporary injunctions, while rest other rules (Rule 6 – 10)
states about other interlocutory orders.

Rule 1 – This rule states that when a person proves through an affidavit or otherwise that a
property in dispute is being wasted, or damaged or alienated, or wrongfully sold in execution of a
decree, or the defendant threatens, or intends, to remove or dispose of property with a view to
defraud his creditors, or the defendant threatens to the plaintiff or otherwise cause injury to the
plaintiff in relation to any property in dispute in suit, the court may by order grant such temporary
injunction to restrain such act, or make any other order as it deems fit for the prevention of
property.

Rule 2 – This rules states about injunction to restrain repetition or continuance of breach from
defendant. This rule empowers the plaintiff to apply for injunction against such act of the
defendant, and the court may give injunction as it deems fit.

Rule 2 A – This rule states that if a person has made any disobedience to the order of injunction,
then he can be detained in the civil prison for a term up to three months or may attach his property.
This rule also states that no attachment made under this rule shall remain in force after the expiry
of one year from the date of attachment.
Rule 3 – In all cases except where it appears that the object of granting injunction would be
defeated by the delay, before granting injunction, the court shall notify another party about such
application of injunction.

Rule 3 A – Where an injunction has been granted without giving notice to another party, all such
applications must be finally disposed of within 30 days from the date of granting injunction.

Rule 4 – This rule states about order of set aside, varied the order of injunction.

Rule 6 – This rule states about interlocutory orders which means that the court can sell an attached
movable property which is subject to natural and speedy decay before the judgment.

Rule 7 – The court may on the application of any party or on any other terms as it thinks fit make an
order for detention, preservation, or inspection of any property which is subject matter of the suit.

Rule 9 – This rule states that in the cases where a party is in the possession of a land which is land
revenue paying land and such property is a subject matter of dispute, the court can order the land
to be sold immediately for the payment of such land revenue or any rent or tax due from the
previous sale.

Rule 10 – This rule states that where the subject matter of a suit is a money or any property capable
of being delivered and other party admits that he holds such property as a trustee of another or is
belonged to another party, the court can order for the delivery of such property to the last-named
party.
Manohar Lal v. Seth Hira Lal (AIR 1962 SC 527)
[When the case is not covered by O. 39, interim injunction can be granted by the court in exercise of
inherent powers under Sec. 151 of the Code.]
In this case, the question related to issuance of an order to a party restraining him from proceeding
with any other suit, when a suit was already pending in a court (the subject-matter of the two suits
being the same). The major issue was whether the court could not exercise its inherent powers
when there were specific provisions in the C.P.C. for issuance of injunctions viz. Sec. 94 and Order
39. Relevant portion of Sec. 94 reads: "In order to prevent the ends of justice from being defeated
the court may, if it is so prescribed, grant a temporary injunction".
The Supreme Court observed as follows:
(i) It is well-settled that the provisions of the Code are not exhaustive, for the simple reason that the
legislature is incapable of contemplating all the possible circumstances which may arise in future
litigation and consequently for providing the procedure for them.
(ii) No party has a right to insist on the court's exercising inherent jurisdiction and the court
exercises it only when it considers it absolutely necessary for the ends of justice to do so. The
powers are to be exercised in exceptional circumstances for which the Code lays down no
procedure.
(iii) There is no such expression in Sec. 94 which expressly prohibits the issue of a temporary
injunction in circumstances not covered by 0.39 or by any rules made under the Code. Likewise,
there is nothing in 0.39 which provides specifically that a temporary injunction is not to be issued
in cases which are not and to mentioned in those rules.
The effect of the expression "if it is so prescribed" in Sec. 94 is only this that when the rules in 0.39
prescribed the circumstances in which an injunction can be issued, ordinarily the court is not to use
its inherent powers to make the necessary orders in the interests of justice but is merely see
whether the circumstances of the case bring it within the prescribed rule. It is in the incidence of
the exercise of the power of the court to issue temporary injunction that the provisions of Sec. 94
have their effect and not in taking away the right of the court to exercise the inherent power.
(iv) Sec. 151, C.P.C., itself says that 'nothing in the Code shall be deemed to limit or otherwise affect
the inherent power of the court to make orders necessary for the ends of justice. In the face of such
a clear statement, it is not possible to hold that the provisions of the Code control the inherent
power by limiting it or otherwise affecting it.
(v) The inherent power has not been conferred upon the court; it is a power inherent in the court
by virtue of its duty to do justice between the parties before it. Further, when the Code itself
recognizes the existence of the inherent power of the Court there is no question of implying any
powers outside the limits of the Code.
(vi) The case would be different where the rights of an individual are affected. In such cases, the
specific provisions of Code are to be used without any intervention by way of inherent powers of
the court. Inherent powers are not the powers over the substantive rights which any
litigantpossesses but the same may definitely be used for the procedural matters such as a case of
grant of temporary injunction. Shah J. (Dissenting opinion) Civil courts do
not have inherent jurisdiction in cases not covered by 0.39. A temporary injunction may be issued if
it is so prescribed by the rules in the Code. Inherent powers are not to be exercised in a manner
different from the procedure expressly provided for in the Code.
Inherent jurisdiction of the court to make orders ex debito justitiae is undoubtedly affirmed by S.
151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code.
Where the Code deals expressly with a particular matter, the provision should normally be
regarded as exhaustive.
Dalpat Kaur v. Prahlad Singh (AIR 1993 SC 276)
[The phrases "prima facie case," "balance of convenience" and "irreparable loss" are not rhetoric
phrases for incantation, but words of wid.h and elasticity, to meet myriad situations presented by
man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of
judicial discretion to meet the ends of justice.]
In this case, the Supreme Court observed: It is settled law that the grant of injunction is a
discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious
disputed question to be tried in the suit and that an act, on the facts before the court, there is
probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the court's
interference is necessary to protect the party from the species of injury. In other words, irreparable
injury or damage would ensure before the legal right would be established at trial; and (3) that the
comparative hardship or mischief or inconvenience which is likely to occur from withholding the
injunction will be greater than that would be likely to arise from granting it.
Order 39, Rule 1(c) provides that temporary injunction may be granted where, in any suit, it is
proved by the affidavit or otherwise, that the defendant threatens to dispossess the plaintiff or
otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court
may by order grant a temporary injunction to restrain such act or make such other order for the
purpose of staying and preventing... or dispossession of the plaintiff or otherwise causing injury to
the plaintiff in relation to any property in dispute in the suit as the court thinks fit until the disposal
of the suit or until further orders. Rule 1 primarily concerns with the preservation of the property
in dispute till legal rights are adjudicated.
The Apex Court laid down the following principles:
(i) The burden is on the plaintiff by evidence adduced by affidavit or otherwise that there is "a
prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie
right and infraction of the enjoyment of his property or the right is a condition for the grant of
temporary injunction. Prima facie case is not to be confused with prima facie title which has to be
established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide,
which needs investigation and a decision on merits.
(ii) Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The
Court further has to satisfy that non-interference by the Court would result in "irreparable injury"
to the party seeking relief and that there is no other remedy available to the party except one to
grant injunction and he needs protection from the consequences of apprehended injury or
dispossession. "Irreparable injury," however, does not mean that there must be no physical
possibility of repairing the injury, but means only that the injury must be a material one, namely
one that cannot be adequately compensated by way of damages.
(iii) The third condition also is that "the balance of convenience" must be in favour of granting
injunction. The Court while granting or refusing to grant injunction should exercise sound judicial
discretion to find the amount of substantial mischief or injury which is likely to be caused to the
parties, if the injunction. is refused and compare it with that it is likely to be caused to the other side
if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of
injury and if the Court considers that pending the suit, the subject-matter should be maintained in
status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial
discretion in granting or refusing the relief of ad interim injunction pending the suit.
(iv) Undoubtedly, in a suit seeking to set aside the decree, the subject-matter in the earlier suit
though became final, the Court would in an appropriate case grant ad interim injunction when the
party seeks to set aside the decree on the ground of fraud pleaded in the suit or for want of
jurisdiction in the Court which passed the decree. But the Court would be circumspect before
granting the injunction and look to the "conduct of the party" and whether the plaintiff could be 401
adequately compensated if injunction is refused.

Appointment of Receivers (Order XL)

The major aim of appointment of receiver is to make the court proceeding convenient and
realization, protection, management and improvement of the property in dispute.
Rule 2 – The court may decide the amount to be paid as remuneration for the service of receiver.

Rule 3 – This rule defines the duties of the receiver, as following -

(a) Furnish such security (if any) as the Court thinks fit, duly to account for what he shall receive in
respect of the property;
(b) Submit his accounts at such periods and in such form as the Court directs;
(c) Pay the amount due from him as the Court directs; and
(d) Be responsible for any loss occasioned to the property by his willful default or gross negligence.

Rule 4 – Where a receiver is unable to fulfil the duty given by the court to him or willfully neglects
to perform his duty, the court can attach and sell the property and and may apply the proceeds to
make good any amount found to be due from him or any loss occasioned by him, and shall pay the
balance (if any) to the receiver.

Rule 5 - Where the property is land paying revenue to the Government, or land of which the
revenue has been assigned or redeemed, and the Court considers that the interests of those
concerned will be promoted by the management of the Collector, the Court may, with the consent of
the Collector, appoint him to be receiver of such property.
Appeals from Original Decrees (Sec. 96 – 99A & Order XLI)
Appeals from the original decrees (Sec. 96)
This section states that there can be an appeal from a decree passed by a court of original
jurisdiction to the court which has the power to hear such appeal. This section also states two
categories of cases, in which no appeal shall lie from an original decree passed by the court, as
follows -

No appeal shall lie from a decree passed by the Court with the consent of parties.
No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by
Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not
exceed ten thousand rupees.

Appeal from final decree where no appeal from preliminary decree (Sec. 97)
If a party aggrieved by a preliminary decree has not appealed against such decree, then he cannot
appeal in the same matter after passing of final decree while he is appealing against the final decree.

Decision where appeal heard by two or more Judges (Sec. 98)

Where an appeal has been heard by two or more judges then the majority judge’s opinion will
prevail to decide the matter. Provided that where the Bench hearing the appeal is composed of two
or other even number of Judges belonging to a Court consisting of more Judges than those
constituting the Bench, and the Judges composing the Bench differ in opinion on a point of law, they
may state the point of law upon which they differ and the appeal shall then be heard upon that
point only by one or more of the other Judges, and such point shall be decided according to the
opinion of the majority (if any) of the Judges who have heard the appeal, including those who first
heard it.

No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction
(Sec. 99)
This section states that no decree shall be reversed or modified for any irregularity not affecting the
merits or jurisdiction of the court, but nothing in this section shall apply on the non joinder of
necessary party. While sec. 99 A states that in the cases of sec. 47 I.e. to determine the question by
the court executing a decree shall be reversed or varied only when it is affecting the merits of the
case not the jurisdiction, so Sec. 99 A can be considered as proviso of sec. 99 which makes an
embargo on the reversal or modification of a decree in the cases of executed a court not having
jurisdiction.
Appeals from original Decrees (Order XLI)

Rule 1 - Every appeal shall be preferred in the form of a memorandum signed by the appellant or
his pleader and accompanied by the judgment.

Rule 2 – The memorandum shall distinctly and concisely discuss the grounds of objection to the
decree appealed from without any argument or narrative. The appellant shall not except by the
leave of court, urge or to be heard in support of grounds of objections not set forth in the
memorandum of appeal.

Rule 3 – Where an appeal has not preferred in the manner prescribed by the court, the court can
reject such memorandum of appeal, or return the appellant to draw up in the proper format.

Rule 3 A – This rule states that when an appeal has been preferred to the court after passing of the
limitation time period, it has to be accompanied with the cause of such delay, if the court doesn’t
find sufficient grounds for such delay court can reject it or if it finds the sufficient grounds then the
court can allow such appeal.

Rule 9 – The court from whose decree as an appeal shall lies shall entertain the memorandum and
shall endorse thereon the date of presentation and shall register the appeal in a book kept for that
purpose. Such book is called as register of appeal.

Rule 11 – The appellate court has power to dismiss the appeal an appeal in the first hearing after
hearing the arguments of the party preferred the appeal or his pleader.

Rule 11 A – The court shall make an endeavor to conclude the hearing within 60 days from the date
on which the appeal is preferred.

Rule 16 – This rule prescribes the mode in which, the hearing of an appeal can take place. The rule
states that the appellant shall be heard in support of appeal, and if the court does not dismiss the
appeal at once, then the court shall hear the respondent and give him the time to reply.

Rule 12 – This rule states that the court can hear an ex parte appeal if the respondent does not
appear.
Rule 23 – Where the Court from whose decree an appeal is preferred has disposed of the suit upon
a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by
order remand the case, and may further direct what issue or issues shall be tried in the case so
remanded, and shall send a copy of its judgment and order to the Court from whose decree the
appeal is preferred, which directions to re-admit the suit under its original number in the register
of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the
original trial shall subject to the exceptions, be evidence during trial after remand.

Rule 30 - The Appellate Court, after hearing the parties or their pleaders and referring to any part of
the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to
which reference may be considered necessary, shall pronounce judgment in open Court, either at
once or on some future day of which notice shall be given to the parties or their pleaders.

Rule 31 – This rule prescribes that the judgment should contain, the following things -

(a) The points for determination;

(b) The decision thereon;
(c) The reasons for the decision; and,
(d) Where the decree appealed from is reversed or varied, the relief to which the appellant is
entitled;
and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges
concurring therein.

Rule 33 - The Appellate Court shall have power to pass any decree and make any order which ought
to have been passed or made and to pass or make such further or other decree or order as the case
may require, and this power may be exercised by the Court.

Rule 36 - Certified copies of the judgment and decree in appeal shall be furnished to the parties on
application to the Appellate Court and at their expense.

Rule 37 - A copy of the judgment and of the decree, certified by the Appellate Court or such officer
as it appoints in this behalf, shall be sent to the Court which passed the decree appealed from and
shall be filed with the original proceedings in the suit, and an entry of the judgment of the Appellate
Court shall be made in the register of civil suits.
Appeals from appellate decrees (Sec. 100 – 103, Order XLII)
Second Appeal (Sec. 100, 101 & 102)
This section states that an appeal shall lie to the high court in each case where a decree passed by a
court in form of appeal by any court subordinate to high court and the high court is satisfied that
the matter involves a substantial question of law, and the appeal should preciously state the
substantial question of law involved in such matter. Sec. 101 states that no second appeal shall lie in
any other case except the grounds discussed in sec. 100, I.e. Involvement of substantial question of
law. Sec. 102 states that where the original suit is for the recovery of money not exceeding 20
thousand rupees then no second appeal shall lie from such matter, so it is imposing another bar on
second appeal. After following these three sections, we can conclude the essential ingredients of
second appeal as follows -
The judgment of lower court should involve a substantial question of law in the satisfaction of high
court.
In the cases of a matter of recovery of money, the matter should be more than Rs. twenty thousand.

Chunni Lal v. Mehta v. Century spinning & Mfg. Co. Ltd. AIR 1962 SC 1314.
In this case, much before the expiry of contractual period, the respondent company removed the
appellants as managing agents. The appellants filed a suit in the Bombay High Court claiming Rs. 50
lacs as damages. Clause 14 of the Agency contract provided for compensation to be paid to the
managing agents in case the agency terminated before the expiry of contract. The High Court
decided in favour of the respondent company. The appellants move to the Supreme Court by special
leave. They argued that there was a substantial question of law involved in interpretation of
contract. The Supreme Court observed that the High Court's decision of not granting the 'certificate
of fitness' (for filing an appeal to the Supreme Court) was wrong.
The Supreme Court held that the construction of a document of title which is foundation of the
rights of parties, necessarily raises a question of law. The next question is whether the
interpretation of such document raises a 'substantial question of law."
The Supreme Court referred to the decisions of Bombay, Nagpur and Madras High Courts. One of
the points which the Bombay High Court considered was whether the question of the construction
to be placed upon a 'decree' was a substantial question of law. The court observed that even though
a decree may be of a complicated character, what the court has to do is to look into its various
provisions and draw its inference therefrom. Thus, merely because the inference was to be drawn
from a complicated decree, no substantial question of law would be said to arise (Raghunath Prasad
Singh v Dy. Commr., Partapgarh AIR 1927 PC 110).
The Nagpur High Court in Dinkarrao v Rattansey (AIR 1949 Nag 300) has held that a question of
law is substantial as between the parties if the decision turns one way or the other on the particular
view taken of the law. If it does not affect the decision then it cannot be substantial as between the
parties. But if it substantially affect the decision then it is substantial as between the parties though
it may be wholly unimportant to others.
The Supreme Court, in the present case, observed that the view taken by the Bombay High Court
was narrow while the view taken by the Nagpur High Court a little too wide. The Supreme Court
said that the Nagpur High Court's decision and the interpretation was not wide to the extent to have
intended to say that where a question of law raised is palpably absurd, it would still be regarded as
a substantial question of law merely because it affects the decision of the case one way or the other.
The Madras High Court in R. Subba Rao v N. Veeraju (AIR 1951 Mad 969) said that when a question
of law is fairly arguable, where there is a room for difference of opinion or where the court thought
it necessary to deal with that question at some length and discuss alternative views, then the
question would be a substantial question of law. On the other hand, if the question was practically
covered by the decision of the highest court or if the general principles to be applied in determining
the question are well settled and the only question was of applying those principles to the
particular facts of the case, it would not be a substantial question of law. The Supreme Court, in the
present case, agreed with the view taken by the Madras High Court.
The Supreme Court, thus, laid down the following principles to determine whether a question of
law is a 'substantive question of law':
(i) If the question is of general public importance, or it directly and substantially affects the rights of
the parties. A substantial question of law is a substantial question of law as between the parties in
the case involved, and does not mean a question of general importance.
(ii) Whether it is either an open question in the sense that it is not finally settled by this court or by
the Privy Council or by the Federal Court, or is not free from difficulty (a doubt about the principle
of law involved) or calls for discussion of alternative views; then it is a substantial question of law.
(iii) If the question is settled by the highest court or the general principles to be applied in
determining the question are well settled and there is a mere question of applying those principles
(thus a misapplication of principle of law does not raise any substantial question) or that the plea
raised is palpably absurd, the question would not be a substantial question of law.
The court held that in the present case, the construction of agreement is not only one of law but also
it is neither simple nor free from doubt. Moreover, a claim of several lacs was involved... depending
upon the success or failure of contention of the parties. Thus, it is a substantial question of law.
Gill & Co. V. Bimla Kumari (1986) RLR 370.
[The jurisdiction of the High Court in second appeal is confined to determination of substantial
question of law and not to reverse the findings of fact. Hence, the High Court in second appeal
cannot re-appreciate the evidence and interfere with the findings of fact reached by the lower
appellant Court, unless of course, it arbitrary, can be shown that there was an error of law in
arriving at it or that it was based on no evidence at all or was unreasonable or perverse. The High
Court was incompetent to re assess the evidence afresh and it was bound by the decision of the
Tribunal on questions of fact.]
In this case, M/s. Gill and Co. (tenant) and his employee were the appellants No. 1 and 2
respectively. The respondent landlady. obtained an eviction order against appellant No. I on the
ground of sub-letting, assignment or parting with possession of the demised premises by appellant
No. I in favour of appellant No. 2. Appellant No. 2 had been occupying the premises in question in
his capacity as Manager of appellant No.1 from the very inception of the tenancy. The cause of
action for eviction allegedly arose because the service of appellant No. 2 was terminated on 31st
March 1972 but he was allowed to continue in occupation of the premises in question
unauthorisedly by appellant No. I even thereafter. The stand of the appellants, however, is that even
after the termination of service of appellant No. 2 as Manager of appellant No. 1, the former
continued to act as their local representative at Delhi and negotiated many a business deal on
behalf of appellant No. 1 with several parties and as such his occupation of the premises in question
was permissive and the legal possession thereof vested in and remained with appellant No. 1 at all
material times.
During the pendency of the first appeal, the appellants made application under Order XLI, Rule 27
read with Section 151, C.P.C. for permission to produce some additional evidence viz. an documents
and accounts books, etc. It was stated that the Trial Court had arrived at the finding that appellant
No. 1 had sub-let, assigned or otherwise parted with possession of the premises to appellant No. 2
primarily for the reason that the appellants did not produce the relevant records and documents
despite their having been served with a notice. The application for production of additional
evidence was opposed by the respondent who pointed out that reliance was never placed by the
appellants on any of the documents sought to be produced by them at the appellate stage. It was
further contended that whatever evidence was sought to be produced by the appellants was
allowed by the trial Court and they could not make any grievance with regard to the same. Thus,
according to them, the fault, if any, in not producing the said documents was of the appellants
themselves and they were simply adopting dilatory tactics and to fill up the gaps in their evidence
which they deliberately omitted to produce in the trial Court.
On a consideration of the matter the learned Rent Control Tribunal disallowed the said application
for reasons stated in the impugned order itself. The learned counsel for the appellants, has,
therefore, submitted at the very outset that the order of the learned Rent Control Tribunal rejecting
the application of the appellants for producing additional evidence is not sustainable, being bad at
law. The Rent Control Tribunal in its order pointed out that the appellants have not brought any
material on record to prove what were the terms and conditions on which appellant No. 2 was
functioning on behalf of appellant No. I subsequent to March 1972. The evidence produced by the
appellants does not even remotely indicate that the possession of appellant No. 2 over the premises
in question was pursuant to the terms and conditions on which he was working for appellant No. I
and that it was purely a personal privilege of appellant No. 2 for the better performance of the
duties on behalf of appellant No. 1. The appellants have failed to establish by preponderance of
probabilities that appellant No. I still retains and he has not divested itself of the legal possession of
the premises in question.
It was urged by the appellants that the Rent Control Tribunal ought to have allowed additional
evidence on the ground of substantial cause as postulated in Rule 27 (1)(b) of O. 41. The learned
counsel for the respondent chose to fall back upon the rule of best evidence and urged that even if
notice was not served on appellant No. 1, it was the bounden duty of the appellants to produce all
the relevant material in their power and possession irrespective of the abstract doctrine of onus of
proof. Even if the burden of proof does not lie on the party the Court may draw an adverse
inference if he withholds important document in his possession which can throw light on the facts
at issue. So, there is absolutely no justification for permitting the additional evidence, which was
admittedly in the possession of the appellants, on the flimsy ground that they did not realise their
importance till adverse finding was given by the trial Court.
The Apex Court held: The general rule is that an appellate court shall decide an appeal on the
evidence the parties produced before the lower court and shall not admit additional evidence for
the purpose of disposal of an appeal. O. 41, R. 27, however, empowers the appellate court to admit
additional evidence in appeal under certain circumstances specified therein: (i) where the lower
court has improperly refused to admit evidence, (ii) where such additional evidence was not within
the knowledge of the party or could not after the exercise of due diligence be produced by him at
the time when the lower court passed the decree, or (iii) where the appellate court itself requires
the evidence (a) to enable it to pronounce the judgment, or (b) for any other substantial cause.
The discretion given to the Appellate Court to receive and admit additional evidence is not arbitrary
but is judicial one circumscribed by the limitations specified in O. 41, Rule 27 itself. Evidently it is
not a case where the lower Court had improperly refused to admit evidence. It was never tendered.
Likewise, it is not the case of the appellants that the additional evidence sought to be produced by
them at the appellate stage was not within their knowledge or that the same could not be produced
after exercise of due diligence. Indeed, the learned counsel for the appellants frankly conceded that
they woke up to the need for producing additional evidence because of the finding of the trial Court
that they did not produce the same despite service of notice under Order XII Rule 8 of the Code on
them. The documents are being produced by the appellants from their own possession. So, the only
question which falls for consideration is whether the additional evidence was required by the
Appellate Court for enabling it to pronounce judgment or was there any other substantial cause for
allowing the same. In Parsotim Thakur v Lal Mohar Thakur (AIR 1931 PC 143), the Judicial
Committee observed: The provisions of Sec. 107 as elucidated by Order XLI, R. 27, are clearly not
intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak pans
of his case and fill up omissions in the Court of appeal. Under R. 27 (1)(b) it is only where, the
Appellate Court "requires" it (i.e. finds it needful) that additional evidence can be admitted. It may
be required to enable the Court to pronounce judgment, or for any other substantial cause, but in
either case it must be the Court that requires it. The legitimate occasion for the exercise of this
discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but
when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent.
In K. Venkataramiah v A. Seetharama Reddy (AIR 1963 SC 1526) the Supreme Court held that:
There may well be cases where even though the Court finds that it is able to pronounce judgment,
on the state of record as it is, and so it cannot strictly say that it requires additional evidence to
enable it to pronounce judgment, it still considers that in the interest of justice something which
remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory
manner. Such a case will be one for allowing additional evidence for any other substantial cause
under R. 27 (1)(b). Such requirement of the court is not likely to arise ordinarily unless some
inherent lacuna or defect becomes apparent on an examination of the evidence.
The Court concluded: The law as to the reception of evidence not produced before the trial court is
now settled. After taking into consideration the cases of Parsotim Thakur v Lal Mohar Thakur and
K. Venkataramiah v A. Seetharama Reddy, the requirement of law is not that the court should
readily permit a party to fill up the lacuna in the evidence which it deliberately chose not to
produce at the trial stage. In case the court feels that evidence already on record suffers from such
inherent obscurity or ambiguity that it should be cleared, by production of additional evidence it
may require production of such additional evidence. But it is not permissible to do so merely
because the additional evidence may help the appellate court to pronounce judgment in a particular
way. Thus, a mere difficulty in coming to a decision is not sufficient for admission of evidence under
R. 27. It is only for removing a lacuna in the evidence that the appellate Court is empowered to
admit additional evidence. Further, the new evidence sought to be adduced should have direct and
important bearing on the main issue in the case.
So, it was primarily for the Appellate Court to decide whether it required the additional evidence
for pronouncing the judgment in a more satisfactory way or not and it would not be just and proper
for this Court to examine for itself and come to its own conclusion whether the Appellate Court did
require additional evidence to steer clear of any ambiguity or obscurity from which the evidence
existing on record suffered, if at all. The plea, that the importance of the documents was not
realized by the appellants before the finding of the trial Court with regard to the withholding of
those documents despite service of notice under Order XII Rule 8 of the Code and the adverse
inference drawn against the appellants by the said Court would not bring the case within the
expression "other substantial cause" in O. 41, R. 27 (1)(b). Indeed, as shall be presently seen, the
evidence already on record is quite sufficient for recording a proper and satisfactory judgment.]
In N. Kamalam (Dead) v Ayyasamy (2001) 7 SCC 503, the court observed that Order 41 (XLI), Rule
27 prescribes specific situation where production of additional evidence may otherwise be had. The
provisions of O. 41, R 27 have not been engrafted in the Code so as to patch up the weak points in
the case and to fill up the omission in the court of appeal. It does not authorize any lacunae or gaps
in evidence by a party to be filled up when such party was unsuccessful in the lower court. The
authority and jurisdiction as conferred on the appellate court to allow fresh evidence is restricted.
This provision does not entitle the High Court to let in fresh evidence at the appellate stage where
even without such evidence it can pronounce judgment in a case (Municipal Corpn. of Greater
Bombay v Lala Pancham AIR 1965 SC 1008).

Shivaji Rao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi (AIR

1987 SC 294).
[Where the lower court has refused to admit evidence which was tendered and which ought to have
been admitted, the appellate court may admit such evidence at the appellate stage.]
The facts of the case in brief are: There was alleged involvement of the erstwhile Chief Minister of
Maharashtra (Shivaji Rao Nilangekar Patil) in the matter of selection of his daughter for the M.D.
examinations held by the University of Bombay. His daughter had failed in her previous three
attempts. Dr. Mahesh Madhav Gosavi, also a candidate for the aforesaid exam did not get selected,
but he filed a writ petition questioning the selection of the Chief Minister's daughter and the
integrity of the examination process as a whole. The petitioner claimed (on the basis of information
from reliable sources) that the Chief Minister exerted his influence in the selection of his daughter.
In the first appeal, the appellant Shri Shivajirao Patil filed an affidavit denying the allegations
stating that he had played no part in the said examination as alleged or otherwise. It was also stated
that the petitioner has not disclosed the so-called' reliable sources of information. No affidavit was
filed by the petitioner himself. The learned High Court Judge remarked against the appellant in his
judgment to the extent that manipulations in the grade-sheets of M.D. examination was done at the
behest of the appellant to help his daughter to pass the M.D. exam. The learned Single Judge,
however, held that the evidence of the petitioner was unsatisfactory and unreliable. The learned
Judge noted that the averments made in the petition were wholly unsatisfactory and insufficient
because the petitioner to the writ petition had not disclosed from whom he had learnt what he had
averred.
In the second appeal before the Division Bench (filed by the petitioner), the learned Judges pointed
out after discussing the evidence and the principles of law that there was no direct evidence that
the alterations in the grades of CM's daughter were made at the instance of the appellant CM.
According to the Division Bench the reasoning adopted by the learned trial Judge were too tenuous
(based on certain contingencies) for the conclusion based on such reasoning to amount to a positive
finding. The Division Bench observed that merely because CM had held a position of great power
and would have been happy to see that his daughter had passed the M.D. examination, it was little
difficult to conclude as a 'finding of fact' that he must have influenced examiner to alter the grades
of his daughter.
An affidavit was filed claiming the right to adduce certain additional evidence and introducing
certain writings from the magazine 'India Today', etc. Such additional evidence was sought to be
introduced as part of the claim of public interest litigation because it involved the conduct of the
Chief Minister in respect of the affairs of the University. Such claim for introduction of additional
evidence was, however, not entertained by the Division Bench. The Division Bench, however, in its
judgment noted that the appellant was party to the writ petition and had an opportunity of
explaining and defending himself. There were materials on record bearing on his conduct justifying
the remarks which the Division Bench characterised as 'comments' and not findings of fact.'"
Before the Supreme Court, the issues were: (i) whether the observations made by the Division
Bench of the Bombay High Court about the comments on the conduct of the Chief Minister were
justified or not or should be expunged; (ii) whether the Division Bench was right in upsetting the
finding that the tampering with the grade-sheets was done at the behest of the Chief Minister was a
finding based on no evidence; and (iii) whether, in the facts and circumstances of the case, the
Division Bench was justified in refusing to admit additional evidence and whether this court should
at this stage admit additional evidence.
The Apex Court observed: "The additional evidence sought to be introduced mainly consist of
alleged instances when the Chief Minister on previous occasions had in respect of some criminal
proceedings and other matters pending used his influence to drop those proceedings. Now about
these, these are controversial allegations. There is no satisfactory explanation that this so-called
material in the form of additional evidence could not have been obtained before the institution of
the petition in the High Court. To this, submission was that it was difficult to gather evidence
against a Chief Minister in office but as the case had gathered momentum, people had come in and
after decision of the learned trial Judge, the Chief Minister had resigned and there was an
atmosphere of belief for offering to adduce evidence which people were hesitant to give before that.
We are of the opinion that at this belated stage there was not sufficient material ground on which
additional evidence should be admitted for the determination of the issues involved in these
appeals.
In the appeal filed by the original petitioner Dr. Mahesh Madhav Gosavi, it was submitted that there
were sufficient materials upon which the conclusion arrived at by the learned trial Judge that the
tampering was done at the behest of the erstwhile Chief Minister and the Division Bench was in
error in deciding that that was not the finding of fact. It was conceded, and in our opinion rightly,
that the view of the Division Bench that the observation of the learned single Judge that tampering
of the grade-sheets in M.D. examination was done at the behest of the Chief Minister was in the
nature of a comment and not a finding was a distinction without any difference." (The petitioner's
counsel emphasized that these appeals arose out of exercise of extraordinary jurisdiction by the
civil court, not by trial on examination and cross-examination of evidence but an exercise of
extraordinary jurisdiction on the basis of the affidavit, and the court should insist that there should
be 'commensurate proof for judicial certitude and that the distinction between "finding' and
'adverse comment' was a distinction without any difference because it was throughout recognized
as a finding).
The court further observed that the basic principle of admission of additional evidence is that the
person seeking the admission of additional evidence should be able to establish that with the best
efforts such additional evidence could not have been adduced at the first instance. Secondly, the
party affected by the admission of additional evidence should have an opportunity to rebut such
additional evidence. Thirdly, that the additional evidence was relevant for the determination of
issue.
The court then observed: "In the present case, so far as admission of additional evidence is
concerned, we are unable to accept the position that such additional evidence should have been
admitted in order to show the nature of the conduct of the Chief Minister in other cases in similar
situations. The admissibility of evidence as to 'similar fact' has been considered by the courts. In
Mood Music Publishing Co. Ltd. v De Wolfe Ltd. [(1976) 1 All ER 763] Lord Denning observed: The
admissibility of evidence as to 'similar facts' has been much considered in the criminal law. Some of
them have reached the highest tribunal, the latest of them being Boardman v Director of Public
Prosecutions [(1974) 3 All ER 887). The criminal courts have been very careful not to admit such
evidence unless its probative value is so strong that it should be received in the interests of justice;
and its admission will not operate unfairly to the accused. In civil cases the courts have followed a
similar line but have not been so chary of admitting it. In civil cases the courts will admit evidence
of similar facts if it is logically probative, that is, if it is logically relevant in determining the matter
which is in issue: provided that it is not oppressive or unfair to the other side; and also that the
other side has fair notice of it and is able to deal with it.
Applying the aforesaid principles to the facts as we have mentioned hereinbefore, we are of the
opinion that the allegations of alleged conduct of the appellant in similar cases would not be a safe
basis upon which to admit additional evidence, in this case having regard to the issues involved and
nature of the issues involved in these matters and at the stage when these were sought to be
introduced."
The Apex Court concluded: The Division Bench was of the view that the circumstances relied before
the learned single Judge formed a reasonable and cogent basis for the adverse comments on the
conduct of the appellant herein in the first appeal. However, the Division Bench made it clear that it
was merely in the nature of an adverse comment based on the material on record and at the
hearing of a proceeding which involved the taking of evidence merely on affidavit. A fuller enquiry
might lead to a conclusion that the comment was not justified. In that view of the matter the
Division Bench asked the learned counsel whether the appellant in the first appeal (i.e. the Chief
Minister) desired that there should be a full-fledged factual enquiry into the charges. Such enquiry,
however, must be done by a body, the Division Bench suggested, nominated by the Chief Justice of
Bombay High Court. Counsel for the appellant in the first appeal before us made no request for such
an enquiry before the High Court. In other words, he was not willing to invite an enquiry to clear his
image.
There is no question in this case of giving any clean chit to the CM. It leaves us a great deal of
suspicion that tampering was done to please Shri Patil or at his behest. It is true that there is no
direct evidence. It is also true that there is no evidence to link him up with tampering. Tampering is
established. The relationship is established. The reluctance to face a public enquiry is also apparent.
The erstwhile Chief Minister in respect of his conduct did not wish or invite an enquiry to be
conducted by a body nominated by the Chief Justice of the High Court. The facts disclose a sorry
state of affairs. Though there is no distinction between comment and a finding and there is no legal
basis for such a comment, we substitute the observations made by the aforesaid observations as
herein.
This Court cannot be oblivious that there has been a steady decline of public standards or public
morals and public morale. It is necessary to cleanse public life in this country along with or even
before cleaning the physical atmosphere. The pollution in our values and standards is an equally
grave menace as the pollution of the environment. Where such situations cry out the Courts should
not and cannot remain mute and dumb.
No second appeal in certain cases (Sec. 100 A)
Where an appeal has heard and decided by a single judge bench of high court then no appeal shall
lie from such judgement or decree.

Power of high court to determine issue of fact (Sec. 103)

In the cases of second appeal, if the high court is satisfied that there is sufficient evidence to decide
the issue, it can determine any issue necessary for the disposal of appeal –
Which has not determined by the lower court from which the appeal is preferred or both the court
of first instance and the court from which appeal has preferred.
Which has been wrongly determined by such courts.

Appeals from appellate decrees (Order XLII)

This order states that all the provisions of order XLI shall be used to decide a matter in the cases of
appeal from appellate decrees.
Appeals from Orders (Sec. 104 – 106, Order XLIII)

Orders from which appeals lies (Sec. 104)

This section provides a list of orders from which an appeal may lie, as following -
An order under section 35A. (compensatory cost from false, vexatious claims)
An order under section 91 (Pubic nuisance) or section 92 (Public charity) refusing leave to institute
a suit of the nature referred to in section 91 or section 92, as the case may be.
An order under section 95 (Order of compensation in the cases of arrest, injunction or attachment
without sufficient grounds).
An order under any of the provisions of this Code imposing a fine or directing the arrest or
detention in the civil prison of any person except where such arrest or detention is in execution of a
decree. (Sec. 32 I.e. penalty for default, Order XXXVIII I.e. arrest and attachment before judgment).
It is important note that no appeal shall lie from any order passed in appeal under this section.

Other orders (Sec. 105)

No appeal shall lie from any order made by a Court in the exercise of its original or appellate
jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order,
affecting the decision of the case, may be set forth as a ground of objection in the memorandum of
appeal.

What courts to hear appeal (Sec. 106)

Where an appeal lies from an order, it would lie in the same court to which an appeal would lie
from a decree in the suit in which such order was made, and if the decree is passed by a court in
exercise of its appellate jurisdiction, then to the high court.
Appeal from Orders (XLIII)

Rule 1 – This rule states that in the following cases, appeal from orders under sec. 104 of the act -
An order under rule 10 of Order VII returning a plaint to be presented to the proper Court except
where the procedure specified in rule 10A of Order VII has been followed.
An order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to
set aside the dismissal of a suit.
An order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order
to set aside a decree passed ex parte.
An order under rule 21 of Order XI.
An order under rule 34 of Order XXI on an objection to the draft of a document or of an
endorsement.
An order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale.
An order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that
an order on the original application, that is to say, the application referred to in sub-rule (l) of rule
105 of that Order is appealable.
An order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit; (l) an
order under rule 10 of Order XXII giving or refusing to give leave
An order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order
to set aside the dismissal of a suit.
An order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an
indigent person;
orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV
An order under rule 2, rule 3 or rule 6 of Order XXVIII.
An order under rule 1, rule 2, 1 [rule 2A], rule 4 or rule 10 of Order XXXIX.
An order under rule 1 or rule 4 of Order XL.
An order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to rehear,
an appeal.
An order under rule 23 1 [or rule 23A] of Order XLI remanding a case, where an appeal would lie
from the decree of the Appellate court.
An order under rule 4 of Order XLVII granting an application for review.

Rule 2 – This rule states that the provisions of order XLI shall prevail in the cases of appeal under
this order.

General provisions relating to appeal (Sec. 107 – 108)

Powers of the appellate court (Sec. 107)
An Appellate Court shall have power—
(a) To determine a case finally;
(b) To remand a case;
(c) To frame issues and refer them for trial;
(d) To take additional evidence or to require such evidence to be taken.

Procedure in appeals from appellate decrees and orders (Sec. 108)

The provisions of this Part relating to appeals from original decrees shall, so far as may be, apply to
appeals—
(a) From appellate decrees, and
(b) From orders made under this Code or under any special or local law in which a different
procedure is not provided.

Appeals to Supreme court (Sec. 109 - 112 & Order XLV)

When appeals lies to Supreme Court (Sec. 109)
An appeal from a matter decided by the high court shall lie in supreme court in the cases, where
high court certifies any of the following grounds -
The case involves a substantial question of law of general importance.
The high court is of opinion that such question has to be decided by the supreme court.

Appeals to Supreme Court (Order XLV)

Reference (Sec. 113 & Order XLVI)
Reference to high court (Sec. 113)
Subject to such conditions and limitations as may be prescribed, any Court may state a case and
refer the same for the opinion of the High Court, and the High Court may make such order thereon
as it thinks fit.
Provided that where the Court is satisfied that a case pending before it involves a question as to the
validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or
Regulation, the determination of which is necessary for the disposal of the case, and is of opinion
that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so
declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court
shall state a case setting out its opinion and the reasons therefore, and refer the same for the
opinion of the High Court.
It is important to note that only high court has the power to decide the matter in the cases of
reference.

Reference (Order XLVI)

Order XLVI prescribes the conditions that has to be satisfied to enable a subordinate court to make
a reference to high court. The court can refer the matter to high court suo moto (its own motion) or
on the application of a party to the suit. Here, it is important to note that a tribunal cannot refer a
matter for reference to a high court. The case, in which the court can apply for reference are as
follows -

If a question of law arises before a court in such a case where no appeal lies.
There is a reasonable doubt to such question.
The court has already settled up a statement of fact and the point on which doubt is entertained.
The has to express its own opinion on such point of law.
So, we can say that the referring court should draw up a statement of fact of the case and formulate
a question of law on which opinion is sought and give its opinion on such point also. (Order XLVI,
Rule 1 && 4 A)
The reference must be made when the judgment of a case is pending. The court can meanwhile
decide such question can pass a decree contingent to the decision of high court on such point of law
or can stay the proceeding until, the court get the copy of high court judgment (Rule 2).
The high court after hearing the parties (only at the desire of parties) decide the point of law, and
transmit a copy of such judgment to the court while applied for such reference. The high court can
alter or cancel a decree passed by the subordinate court after deciding such point of law, and the
subordinate court has to dispose of the case in conformity with the high court (Rule 3, 5). Rule 5
empowers the high court to refuse the answer to such reference or even quash it.

Review (Sec. 114 & Order XLVII)

Review (Sec. 114)

A person considering himself to be aggrieved by the decision of the court can apply for the review
of case in the same court. This provision states that review can be made in certain cases where -
By a decree or order from which an appeal is allowed by this Code, but from which no appeal has
been preferred.
By a decree or order from which no appeal is allowed by this Code, or
By a decision on a reference from a Court of Small Causes.
The power of review is available to every court to avoid abuse of justice or to correct grave and
palpable errors committed by it. This concept has been copied from the court of equity. A person
who is aggrieved by the order of court can apply for review, even when a person was not the party
in the case and feels that he is becoming aggrieved party by the judgment of court can apply for
review. It is important to note that when a person was neither a party nor any decree or order is
binding upon him cannot apply for review merely by the reason that the order or decree is
adversely affecting him. It is also important to understand that the court cannot review its matter
suo motu rather than it requires an application from an aggrieved party regarding the same.
‘It is important to note that the court cannot exercise the power of review suo motu (I.e. on its own
motion). When a statute requires a particular thing to be done in a particular manner. The power of
review can be exercised by the court only on an application of the aggrieved party. The supreme
court may exercise power of review suo motu in an appropriate case. (A.R. Antulay v. R.S. Nayak,
AIR 1988 SC 1531).
Review (Order XLVII)
Rule 1 – This rule states the conditions that has to be satisfied before granting of an application for
review -
Discovery of a new and important matter or evidence which, after the exercise of due diligence, was
not within the knowledge or could not be produced at the time when decree or order has been
passed.
On account of some apparent mistake.
For any other sufficient reason.

Rule 4 – Where the court is satisfied that there are no sufficient grounds for the review of matter
the court can reject the matter. If there are sufficient grounds then the court can allow the same
after giving notice to opposite party and enable him to be heard.

Rule 7 – An order of the court rejecting the application of review is not appealable, but the order
granting application can be objected by an appeal from the decree or order finally passed or made
in the suit.

Rule 9 – No application to review an order made on an application for a review of a decree or order
passed or made on a review shall be entertained.

Hari Das v. Usha Rani Banik [2006 (3) SCALE 287]

In this case, according to the High Court it is a case where review was permissible on account of
some mistake or error apparent on the face of the record. However, the judgment of the High Court
in review application is set aside by the Supreme Court.
The Apex Court in Thungabhadra Industries Ltd. v The Government of Andhra Pradesh (AIR 1964
SC 1372) held as follows: There is a distinction which is real, though it might not always be capable
of exposition, between a mere erroneous decision and a decision which could be characterized as
vitiated by "error apparent." A review is by no means an appeal in disguise whereby an erroneous
decision is reheard and corrected, but lies only for patent error. Where without any elaborate
argument one could point to the error and say here is a substantial point of law which stares one in
the face and there could reasonably be no two opinions entertained about it, a clear case of error
apparent on the face of the record would be made out.
In Parsion Devi v Sumiri Devi it was observed: Under Order XLVII, Rule 1, CPC a judgment may be
open to review inter alia, if there is a mistake or an error apparent on the face of the record. An
error which is not self evident and has to be detected by any long drawn process of reasoning, can
hardly be said to be an error apparent on the face of the record justifying the Court to exercise its
power of review under Order XLVII, Rule 1, CPC.
In the present case, the Supreme Court held: The High Court had clearly fallen in error in accepting
the prayer for review. First, the crucial question which according to the High Court was necessary
to be adjudicated was the question whether the Title Suit No. 201 of 1985 was barred by the
provisions of Order II, Rule 2, CPC. This question arose in Title Suit No. 1 of 1986 and was irrelevant
so far as Title Suit No. 2 of 1987 is concerned. Additionally, the High Court erred in holding that no
prayer for leave under Order II, Rule 2, CPC was made in the plaint in Title Suit No. 201 of 1985. The
claim of oral agreement dated 19.8.1982 is mentioned in para 7 of the plaint, and at the end of the
plaint it has been noted that right to institute suit for specific performance was reserved. That being
so the High Court has erroneously held about infraction of Order II, Rule 2, CPC. This was not a case
where Order II of Rule 2 CPC has any application.]

Revision (Sec. 115)

The High Court may call for the record of any case which has been decided by any Court
subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court
appears—
(a) To have exercised a jurisdiction not vested in it by law, or
(b) To have failed to exercise a jurisdiction so vested, or
(c) To have acted in the exercise of its jurisdiction illegally or with material irregularity.

This section also empowers the high court to reverse or vary the order or decree passed by its
subordinate court only if, if it had been made in favour of the party applying for revision would
have finally disposed of the suit or other proceedings. The High Court shall not, under this section,
vary or reverse any decree or order against which an appeal lies either to the High Court or to any
Court subordinate thereto. A revision shall not operate as a stay of suit or other proceeding before
the Court except where such suit or other proceeding is stayed by the High Court
A single judge’s bench cannot be considered as subordinate to high court so no order of revision can
be made against such order of the court.

By following sec. 115 close, it is clear that there are three essentials for the establishment of
exercise of revisional jurisdiction -
Order impugned amounts to be a case decided.
Order impugned is not directly liable to be challenged by way of an appeal.
Order impugned suffers from jurisdictional error.

The jurisdiction under sec. 115 is a discretionary power of the court. It is limited in scope and
covers only jurisdictional errors. Further, restrictions have also been placed in the exercise of the
discretionary jurisdiction and even where the conditions for exercise of revisional powers are
fulfilled, the court in exercise of its discretion in a judicial manner may still refuse to interfere. An
applicant invoking revisional jurisdiction of the high court must show not only that there is a
jurisdictional error but also that the interest of justice calls for interference. Under sec. 115, the
high court can call for the record of the case suo moto and revise the same; thus, if the case is not
presented by a duly authorized person and the court finds that the impugned order falls within the
purview of sec. 115, it cannot suo moto revise it. As the remedy by the way of revision is
discretionary and not a matter of right, the court may, looking into the facts and circumstances of
each case, allow any new point or plea in the revision petition.
The ‘doctrine of merger’ applies to orders passed in revision and the order passed by a subordinate
court gets mergered in the order passed by the high court.

Inherent powers of the court (Sec. 151)

The word ‘inherent power of the court’ means the power which is not defined in the code. The court
can exercise such powers by its discretion for prevailing justice or to avoid unnecessary delay in the
suit. Sec. 148, 149 & Sec. 151 to 153 deals with inherent powers of the code. Sec. 148 states about
enlargement of time. Sec. 149 states about power of the court to make up deficiency and sec. 151
provides for all the powers not defined under this code. Sec. 152 & 153 empowers the court to
amend judgment, order and decree.
Since the laws have the general rule that cannot regulate for all the time to come so as to make
express provisions against all such inconveniences, which are infinite in number and cannot be
penned down. Sec. 151 follows up a convention principle that the court should be given inherent
power to do all necessary acts to prevent the justice. Even though sec. 151 provides for a wide
range of powers but all such powers are not unlimited and they cannot be used arbitrary. These are
the following limitations of the inherent power of court, decided by the courts through various
judicial precedents. ‘Whatever limitations are imposed by construction on the provisions of Sec.
151, they do not control the undoubted power of the court conferred under Sec. 151 to make a
suitable order to prevent the abuse of process of the court.’ (A.C. Estates v. Serajuddin& Co. AIR
1966 SC 935).

The court has no power to do whatever has been prohibited by this code so as to defeat a statutory
provision of the law of the land. Sec. 151 does not empower the court with the jurisdiction over
matters which are exclusively prohibited. Similarly, the court cannot entertain a suit in a place
where it has no jurisdiction. The court cannot implead the legal representative of a party once the
suit is abated. The court cannot decide a matter which is barred by res judicata.
Where there are specific provisions available under this code to deal with a particular issue then
the court cannot make its own procedure and leave the statutory provisions of this code
meaningless. Let's take an example, in the cases where application of a party is necessary to initiate
the proceedings the court cannot suo moto start the proceeding without the application of parties,
such as Order IX Rule 13, states that an application has to be made for deciding a suit ex partethe
court cannot do it by its own.
The inherent power cannot be exercised where the party has any remedy available anywhere in
this code but neglected to avail himself of it. Where, the applicant does not come up to the court
with clean hands and suppressed the facts then the court cannot exercise its inherent power to
decide the matter.

There is a list of inherent powers of the court as per sec. 151, decided through judicial precedents -
To consolidate suits and appeal, and to postpone the hearing of the suits pending the decision of a
selected action.
Where an appeal is filed against a dead person, then the court can allow the appellant to add the
legal representative of such deceased.
To rectify its own mistake I.e. the correction of error in decree.
To allow the amendments in pleading.
To set aside an ex prate order issued without giving notice to the other parties affected by it.
To stay a suit even if it does not fall within the ambit of sec. 10 of CPC.
To apply the principle of res judicata in the cases which are not falling within section 11 of the act.
To recall and cancel the invalid orders issued by the court, I.e. the review of the order.
To restore a suit which has been previously dismissed for the ends of justice.
To issue injunctions or to provide police help to implement such orders.
To hold trial in camera and avoid unreasonable publication.
To stay the carrying out of preliminary orders pending appeal.

Enlargement of time (Sec. 148)

This section states that where any period is fixed or granted by the Court for the doing of any act
prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such
period, not exceeding thirty days in total, even though the period originally fixed or granted may
have expired. This section empowers the civil court whereby the court can solve the crisis expiry of
time fixed by the code or as allowed by the court itself to prevent the ends of justice. Sec. 148 has no
application in the cases when the time is not fixed or granted by the court for a particular act has
not been prescribed or allowed by the code. It is also important to understand here that the court
does not have power to enlarge the time provided by the limitation act, 1963. The court can enlarge
the time when the case is still in the active control of the court I.e. the matter has not finally
disposed of. Enlargement of time is a procedure not a universal right so no party can claim the
enlargement of time under sec. 148 as a matter of right.
Power of the court to make up deficiency in the court fees (Sec. 149)
Section 149 states that Where the whole or any part of any fee prescribed for any document by the
law for the time being in force relating to court-fees has not been paid, the Court may, in its
discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as
the case may be, of such court-fee; and upon such payment the document, in respect of which fee is
payable, shall have the same force and effect as if such fee had been paid in the first instance.
Basically Sec. 149 empowers the court to allow a party to make up deficiency of the court fees
payable on plaint or memorandum of appeal. Sec. 149 is also giving an inherent power to the court.
Sometimes, it may happen that the court has to dismiss a suit due to non payment of court fees even
though the non payment was unintentional so in such situations court can apply sec. 149 of the
code and decide the matter by making up deficiency of court at the later stage to save the suit from
dismissal. The aid of this section can be taken only when the court fees hasn’t paid due to
unavoidable circumstances.

Sec. 152, 153 & 153 A

Sec. 152 enacts that the clerical or arithmetical mistakes in the judgment, decrees or orders arising
from any accidental slip or omission may at any time be corrected by the court either by its own
motion or by the application of any party. This section is based on two important principles -
An act of court should not prejudice any party.
It is the duty of court to see that their records are true and they represent the correct state of
affairs.

A file a suit against B for Rs. 1,00,000/-. The court passes a decree for Rs. 10,000/- ‘as prayed’. The
decree can be amended under sec. 152 of the code. Suppose A prayed for Rs. 1,00,000/- and
interest of the same, and the court passed a decree for Rs. 1,00,000/- only then the same cannot be
amended by the court under sec. 152 since it is a subject of an appeal or review.

However, sec. 153 gives the general powers to the court to amend the defects or errors in any
proceeding in the suit, and to make all necessary amendments for the purpose of determining the
real question at issue between the parties to the suit or other proceedings.

Sec. 153 A provides that where the appellate court dismisses an appeal summarily under order XLI,
Rule 11, the power of amendment can be exercised by the court of first instance.
Mahant Ram Das v. Mahant Ganga Das (AIR 1961 SC 882)
By virtue of exercise of its inherent powers, the courts could restore a suit or proceeding, even
though a final order had been passed. The court could extend the time for payment of the court fee
when it is already over.]
In this case, the appellant failed to pay the court fee in time. In fact, he could not find money for the
purpose nor was able to get any extension of time, because the court was closed for long vacation.
When after re-opening of the court, he applied for extension of time, the High Court judges rejected
by saying that the appeal stood dismissed by virtue of the order passed earlier (Earlier, the High
Court passed an order saying that if court-fee paid in time, the appeal will be allowed, otherwise
not).
The appellant stated that he was seriously ill and though he attempted to raise a loan he was unable
to get sufficient money as the grain market had slumped suddenly. His counsel contended that the
time could have been extended under Sec. 148 or Sec. 149. But, the judges held that these sections
applied only to the cases which were not finally disposed of, and that time under them could be
extended only before the final order actually made. The request to extend time under Sec. 151 also
rejected for the same reasons.
The Supreme Court held: The High Court was not powerless to grant enlargement of time under
Sec. 148, or it could take recourse to Sec. 151, if the learned judges did have some sympathy and
appreciated the difficulties expressed by the appellant. Sec. 148 allows extension of time even if the
original period fixed has expired and Sec. 149 is equally liberal. A fortiori these sections could be
invoked by the applicant, when the time had not actually expired. In the present case, the
application was presented in vacation before a vacation judge, and on the last date of the expiry of
period.
The court further held that it was undesirable to fix time pre emptorily (as the High Court had
done), for such an act leaves the court powerless to deal with events that might arise in between.
"Such procedural orders, though peremptory (conditional decrees apart) are in essence, in
terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not,
however, completely estop a Court from taking note of events and circumstances which happen
within the time fixed." For example, if the applicant had started with the full money to be paid and
came well in time but was robbed by the thieves the day previous. The court must take into
consideration such factors. The discretion of the court should not be fettered before-hand as was
done in this case. Such orders are not like the law of the Medes and the Persians. There are cases in
which courts have moulded their practice to meet a situation such as this and to have restored a
suit or proceeding, even though a final order had been passed (Lachmi Narain v Balmukand AIR
1924 PC 198).
Thus, it was held that 'sufficient cause' had been made out for the extension of time in the present
case. The order extending time for payment, though passed after the expiry of the time fixed, could
operate from the date on which the time fixed expired.
Samarendra Nath Sinha v. Krishna Kumar Nag (AIR 1967 SC 1440)
[The Trial Court had the power to correct the accidental slip which had crept in its judgment and
correct that error by passing the final decree in accordance with its true intention.]
In this case, the mortgage in question was one by conditional sale empowering the mortgagee to
take possession of the mortgage security if the monies due thereunder were not paid by the due
date. The suit filed by the mortgagee was also for a 'foreclosure decree. The tenor of the judgment
of the Trial Court shows that the court meant to pass such a foreclosure decree especially as the
plaint contained no prayer for a decree for sale or for a personal decree against the mortgagors. The
Trial Court, however, through an error passed a preliminary decree for sale. This mistake of the
Trial Court went un-noticed in the High Court which confirmed the decree of the Trial Court.
The Supreme Court observed: "This court, when it passed the final decree being apprised of the
apparent mistake in the form of the preliminary decree, corrected the initial mistake and did justice
by passing a final decree for foreclosure and for possession which was the only scope of the suit.
This being the position the Trial Court had the power under Secs. 151 and 152 of the Code to
correct its own error which had crept in the judgment and the preliminary decree and pass a
proper final decree for foreclosure as intended by it."
Now, it is well settled that there is an inherent power in the court which passed the judgment to
correct a clerical mistake or an error arising from an accidental slip or omission and to vary its
judgment so as to give effect to its meaning and intention. "Every Court," said Bowen L.J. in Mellor v
Swire [(1885) 30 Ch.D. 239], "has inherent power over its own records so long as those records are
within its power and that it can set right any mistake in them. An order even when passed and
entered may be amended by the Court so as to carry out its intention and express the meaning of
the court when the order was made."
In Janakirama Iyer v Nilakanta Iyer (AIR 1962 SC 633) the decree as drawn up in the High Court
had used the words "mesne profits" instead of "net profits". In fact the use of the words "mesne
profits" came to be made probably because while narrating the facts, these words were
inadvertently used in the judgment. This court held that the use of the words "mesne profits" in the
context was obviously the result of inadvertence in view of the fact that the decree of the Trial
Court had specifically used the words "net profits" and therefore the decretal order drawn up in the
High Court through mistake could be corrected under Secs. 151 and 152 even after the High Court
had granted certificate and appeals were admitted in this court before the date of the correction. It
is true that under O. 20, R. 3 of the Code once a judgment is signed by the Judge, it cannot be altered
or added to but the rule expressly provides that a correction can be made under Sec. 152. The Rule
does not also affect the court's inherent power under Sec. 151. Under Sec. 152, clerical or
arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental
slip or omission may at any time be corrected by the court. It is thus manifest that errors arising
from an accidental slip can be corrected subsequently not only in a decree drawn up by a
ministerial officer of the court but even in a judgment pronounced and signed by the court.
It was contended that a judgment or decree cannot be varied when it correctly represents what the
court decided though it may be wrong nor can the operative or substantive part of the judgment be
varied and a different one substituted. The Apex Court observed: "Considering the nature of the
mortgage, the cause of action and the prayers in the suit, the absence of any contest as regards that
cause of action and the prayers, and the tenor of the judgment until it came to its penultimate part,
there can be no doubt that the intention of the Trial Court was to pass a preliminary decree for
foreclosure' as prayed for and that was what the court had decided. It was therefore through an
accidental slip that in that final part of the judgment the Subordinate Judge used the phraseography
used in a preliminary decree for sale. Therefore, there is no question of a wrong judgment having
been passed by the Judge or the preliminary decree correctly representing that which was wrongly
decided by the Judge. If that had been so, neither the judgment nor the decree could be corrected
and the obvious remedy would be by way of an appeal."
Dwarka Das v. State of M.P [(1999) 3 SCC 500]
[No court can, under the cover of the Secs. 151 and 152, modify, alter or add to the terms of its
original judgment, decree, or order.]
In this case, the appellant had filed a suit for the recovery of amount as damages for breach of
contract. The suit was decreed in favour of appellant. After the decree of the trial court, the
appellant filed an application under Sec. 152 of the CPC praying for awarding of interest from the
date of the suit till the date of the decree by correcting the judgment and decree on the ground that
non-awarding of interest pendente lite was accidental omission. The Supreme Court held that the
omission in not granting the pendente lite interest could not be held to be accidental omission or
mistake done by the trial court.
The Supreme Court observed: Section 152 provides for correction of clerical or arithmetical
mistakes in judgments, decrees or orders of errors arising therein from any accidental slip or
omission. The exercise of this power contemplates the correction of mistakes by the court of its
ministerial actions and does not contemplate of passing effective judicial orders after the judgment,
decree or order. The settled position of law is that after the passing of the judgment/decree/order,
the court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the
judgments, decrees and orders passed earlier.
The corrections contemplated are of correcting only accidental omissions or mistakes and not all
omissions and mistakes which might have been committed by the court while passing the judgment
decree/order. No court can, under the cover of the Secs. 151 and 152, modify, alter or add to the
terms of its original judgment, decree, or order.
In the present case, the omission sought to be corrected, which goes to the merits of the case, is
beyond the scope of Sec. 152 for which the proper remedy for the aggrieved party is to file appeal
or review application. It implies that the section cannot be pressed into service to correct an
omission, which is intentional, however erroneous that may be. It has been noticed that the courts
below have been liberally construing and applying the province of Secs. 151 and 152 even after
passing of effective orders in the lis pending before them. In the instant case, the Trial Court had
specifically held the respondent-State liable to pay future interest only despite the prayer of the
appellant for grant of interest with effect from the date of alleged breach which impliedly meant
that the Court had rejected the claim of the appellant insofar as pendente lite interest was
concerned. The omission in not granting the pendente lite interest could not be held to be
accidental omission or mistake as was wrongly done by the trial court.
The Apex Court observed: "The Madras High Court in ThiruganavalliAmmal v P. Venugopala Pillai
(AIR 1940 Mad 29) held that where a mistake had occurred in the decree in spite of mention of the
future interest in the judgment, the Court had the power to rectify the mistake and if it occurred in
the decree because of omission of it in the judgment, the mistake could not be corrected. We agree
with the view taken by the Madras High Court."
In Maharaj Puttu Lal v Sripal Singh, the Court had awarded the mesne profits to the decree-holder
by correction upon satisfaction that the plaintiff had specifically claimed such profits and its
pleader was admitted to have made an oral statement requesting the Court to determine the
amount of mesne profits in the execution department which was accepted but not mentioned in the
decree sheet. Under the facts and circumstances of that case the Court held that such being an
accidental omission the same could be corrected in exercise of the powers vested in the Court
under Sec. 152.
Miscellaneous Provisions

Death, marriage and insolvency of parties (Order XXII)

This order is also known as ‘Abatement of Suit’. This order states the conditions in which a suit can
be abated. Abatement is considered as termination of proceeding for the want of proper parties to
the suit. This order states that a suit shall not abate in any case such as death, marriage or
insolvency or party unless the cause of action has not abated. This order states about creation,
assignment and devolution of interest of the parties to the suit when the suit is pending.
This order contains 12 rules which can be divided into four parts, as following -
Death of a party (Rule 1 – 6)
Marriage of a party (Rule 7)
Insolvency of a party (Rule 8)
Other cases in which interest can be assigned (Rule 10)

Rule 1 – This rule states that in case of death of the plaintiff or defendant shall not abate a suit if the
right to sue survives by or against the legal representatives of such party respectively. If a suit has a
sole defendant and the defendant dies then the suit shall not abate if it can be continued against the
legal representative of such defendant, but if a right to sue or to be sued was available only to the
party due to some exceptional circumstances such as ‘The suit was for specific performance of an
act which can be performed only by the defendant due to the skill involved in such performance
then such suit can be abated.’

Rule 2 – In the cases, where one out of several plaintiff dies and right to survive for all other
remaining plaintiffs then the court shall make an entry upon it and continue the suit as it is.

Rule 3 – If one out of the several plaintiffs dies and right to sue has ended by the death of such
plaintiff then the court will make a party to all other remaining plaintiffs as party to the suit and on
the place of that deceased plaintiff his legal representatives can be added as a party to the
proceedings on the basis of application submitted to the court. The legal representative has to make
an application within 90 days of the death of such plaintiff or else the suit will be deemed as abated.

Rule 4 – This rule states that if the sole plaintiff dies and right to sue survives against the legal
representative of such defendant then the court can continue the suit against the legal
representative of such deceased defendant.
Rule 5 – In case of several defendants only one defendant dies and right to sue survives against all
the living defendants then the court can continue with the suit after making an entry of it.

Rule 6 – This is an important rule which states that no suit shall be abated due to the death of any of
the party after the conclusion of hearing and before pronouncing the judgment, and the judgment
shall be pronounced in such a manner as if the death has taken place after final pronouncing of
judgment.

Rule 7 – This rule states that the marriage of a female plaintiff or defendant shall not cause the suit
to be abated, and notwithstanding with the fact of her marriage a decree can be executed against a
female alone, and where by laws, the husband is also liable for the debts of his wife then with the
permission of court a decree can be passed against the husband as well, and on the application of
husband, he can also be entitled to the subject matter of decree.

Rule 8 – The insolvency of a plaintiff in any suit which the assignee or receiver might maintain for
the benefit of his creditors, shall not be abated unless such assignee or receiver declines to continue
with the suit or to give cost of security as prescribed by the court.

Rule 9 – This rule states that when a suit has been abated or dismissed under this order, no fresh
suit shall be brought on the same cause of action.

Rule 10 - In other cases of an assignment, creation or devolution of any interest during the
pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or
upon whom such interest has come or devolved.

Rule 10 A – This rule states that it is a duty of the pleader to communicate about the death of the
party to the court once he comes to know about the same.

Rule 11 – This rule states that all the rules of this provisions shall be applicable on the appeals as
well.

Rule 12 – This rule states that nothing in rule 3, 4 & 8 of this order shall apply in the cases of
execution of a decree.
N. Khosla v. Rajlakshmi (Dead) (AIR 2006 SC 1249)
In this case, one Dewan Niranjan Prasad gifted a piece of land in favour of her three daughters,
Rajlakshmi being one of them. It was stated in the Gift Deed that which portion of the land belonged
to which of the daughter. Thus, each of the daughters had a distinct and separate share by metes
and bounds. The said gift was later revoked by Dewan Niranjan Prasad on account of non-
construction on the aforesaid land by the three daughters ('construction' on the plot of land was an
essential condition of the gift). Each of the three daughters received Rs. 10,000/- in lieu of the plots
of land.
A dispute arose between the sons of Dewan Niranjan Prasad (N. Khosla being one of them) and the
daughters. The sons (appellants) filed an appeal in the appellate court against the respondent
daughters. During the pendency of the appeal, Rajlakshmi died. An application was taken out for
substitution of respondent No. 1 - Smt. Rajlakshmi by her legal representatives. The court rejected
the substitution application on ground of delay. Accordingly, the appeal stood abated as far as
deceased respondent No. 1 is concerned. The question arose: Whether with abatement of appeal in
respect of deceased Smt. Rajlakshmi, the whole appeal qua other respondents abated or not?
Learned counsel appearing on behalf of the appellant strenuously contended that the Gift Deed in
respect of the daughters, which had been revoked, was distinct and separate and therefore, the
decree is distinctly and severally executable on the abatement of appeal in respect of Smt.
Rajlakshmi and, therefore, the appeal qua other respondents does not abate and is maintainable.
Per contra, learned counsel appearing on behalf of the respondents contended that the issue is
common and when the appeal against one of the respondents abated, the whole appeal qua other
respondents also abated. The Apex Court agreed with the appellants' view and held that the appeal
qua other respondents does not abate and is maintainable.
In Sardar Amarjit Singh Kalra (Dead) by LRs. v Pramod Gupta (Smt.)(Dead) by LRs., a Constitution
Bench of this Court, after considering various decisions held that whether an appeal partially abates
on account of the death of one or the other party on either side has to be considered depending
upon the fact as to whether the decree obtained is a joint decree or a severable one. It was further
held that in case of a joint and inseverable decree if the appeal abated against one or the other, the
same cannot be proceeded with further for or against the remaining parties as well. If otherwise,
the decree is a joint and several or separable one. being in substance and reality a combination of
many decrees, there can be no impediment for the proceedings being carried with among or against
those remaining parties other than the deceased.
The Apex Court held:
(I) Wherever the plaintiffs/appellants/petitioners are found to have distinct, separate and
independent rights of their own and for purpose of convenience or otherwise, joined together in a
single litigation to vindicate their rights the decree passed by the Court thereon is to be viewed in
substance as the combination of several decrees in favour of the one or the other parties and not as
a joint and inseverable decree. The same would be the position in the case of
defendants/respondents having similar rights contesting the claims against them.
(ii) Whenever different and distinct claims of more than one are sought to be vindicated in one
single proceedings as the one now before us, under the milo Land Acquisition Act or in similar
nature of proceedings and/or claims in assertion of individual rights of parties are clubbed,
consolidated and dealt with together by the Courts concerned and a single judgment or decree has
been passed, it should be treated as a mere combination of several decrees in favour of or against
one or more of the parties and not as joint and inseparable decrees.
(iii) The mere fact that the claims or rights asserted or sought to be vindicated by more than one
are similar or identical in nature or by joining together of more than one of such claimants of a
particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to
render the judgment or decree passed thereon a joint and inseverable one.
(iv) The question as to whether in a given case the decree is joint and inseverable or joint and
severable has to be decided, for the purposes of abatement/dismissal of the entire appeal as not
being properly and duly constituted or rendered incompetent for being further proceeded with,
requires to be determined only with reference to the fact as to whether the judgment/ decree
passed in the proceedings vis-à-vis the remaining parties would suffer the vice of contradictory or
inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with
another decree only when the two decrees are incapable of enforcement or would be mutually self-
destructive and that the enforcement of one would negate or render impossible the enforcement of
the other. In that case, it could be said that the decree is inseparable and abatement of proceedings
with respect to one respondent would result in abatement against other respondents as well.
In Shahazada Bi v Halimabi (since dead) By her LRs., during the pendency of the suit, defendant No.
4 had died. This Court held that O. 22, Rule 4 does not provide that by the omission to implead the
legal representatives of a defendant, the suit is abated as a whole. This Court further held that
whether the defendant represented the entire interest or only a specific part is a fact that would
depend on the circumstances of each case. If the interests. of the co-defendants are separate, as in
case of co-owners, the suit will abate only as regards the particular interest of the deceased party.
In that case the 4th defendant, who died on 8.5.87, was in possession of one of the seven rooms,
which were let out to defendant No. 5. The trial court found different rooms to be in possession of
different defendants who claimed to be tenants-in common in possession of each of the seven
rooms and therefore, in those circumstances, this Court held that the death of the 4th defendant
would not abate the suit qua the other defendants.

Withdrawal and adjustment (Order XXIII)

This order states about settlement of dispute between the parties after filing the suit, and this thing
empowers the plaintiff to withdraw all or any part of his claim.

Rule 1 – This rule states that any time after the institution of suit plaintiff can withdraw all or any
part of his claim against all or any of the defendants. In the cases of a minor, the next friend of a
minor can withdraw all or any part of the claim on behalf of minor with the prior permission of
court, and he has to submit an affidavit as well that such withdrawal is for the benefit of such minor.
If the plaintiff voluntarily withdraws any claim or any part of his claim, he shall be liable for such
costs as awarded by the court and he shall be precluded from filing another suit on the same cause
of action. In the cases of suit by several plaintiffs only one plaintiff cannot withdraw any claim or
part of claim without the permission of other plaintiffs.
Rule 2 – In any cases where the plaintiff withdraws suit and the court permitted him to file a fresh
suit then also, he shall be barred by limitation laws as if the previous suit has not been instituted.

Rule 3 – This rule states about compromise of suit. Where it is proved to the satisfaction of the
Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in
writing and signed by the parties or where the defendant satisfied the plaintiff in respect to the
whole or any part of the subject-matter of the suit, the Court shall order such agreement,
compromise or satisfaction to be recorded, and shall pass a decree in accordance there with so far
as it relates to the parties to the suit, whether or not the subject matter of the agreement,
compromise or satisfaction is the same as the subject-matter of the suit.

Rule 3 A – No suit shall lie to set aside the decree on the grounds that the compromise on which the
decree is based is not lawful.

Rule 3 B – This rule states that no compromise or agreement in the representative capacity shall be
made without the leave of the court. For the purpose of this rule, the suit of representative capacity
means any suit filed under sec. 91, Sec. 92, Order I Rule 8, a suit by the manager of Hindu Undivided
family representing other family members.

Rule 4 – This rule is the proviso of this order which states that nothing in this order shall apply in
the cases of execution of a decree or order.
Suits by or against Minors and persons of unsound mind (Order XXXII)

This order has been incorporated in Civil Procedure Code to protect the interest of minors and
persons of unsound mind and to ensure that they are represented in any suit or proceeding by a
person who is qualified to identity and protect their interest. It is important to understand that the
major object of this order is to ensure the proper representation to a minor or insane at the time of
suing. The scope of inquiry is limited to the procedural purpose I.e. to give proper representation.

The provisions of this order can be divided into two parts, as following -
Filing or defending of suit on behalf of minor.
Provisions when minor attains majority.
At last rule 15 states that all the provisions of rule 1 to 15 are applicable on the persons of unsound
mind as well except rule 2A.
Rule 1 – This rule states that in a proceeding or suit by a minor shall be instituted in his name by a
person who is representing such minor in the suit or proceeding and such person will be
considered as next friend of such minor. For the purpose of this rule, minor is a person who has not
attained majority as per sec. 3 of Indian Majority Act, 1875.

Rule 2 – This rule states that when a suit has been filed by or on behalf of minor without a next
friend, the defendant can apply to take off the file of the case and such cost shall be paid by the
pleader or the person who is so representing such minor in that case.
In the case of, Rajaram v. Naveen Chand, 1995 it was held that if a minor comes without a next
friend and the defendant does not request the court to take off the file then later on any decree
passed by the court in such case will not be challenged on such ground.

Rule 2 A – The court can order the next friend to deposit any security or on the application of
defendant may request the next friend to deposit the security money which had or may incur as a
cost of defendant to defend the case at any stage of proceeding.

Rule 3 – In the cases of a minor defendant, the court may appoint a proper person who has no
adverse interest in the suit as compared to the minor defendant as a guardian of the minor
defendant for his representation in the suit. The court may do so either on the application of the
plaintiff or on the application in the name or on behalf of such minor defendant. In such case, the
court shall take an affidavit from the guardian that he has no adverse interest in the suit. The court
shall not make any order in the proceedings without serving a notice to the authority who has
appointed or himself is the guardian of a minor or in the cases where there is no such guardian then
a notice has to be served to the natural guardian or father or mother to such minor defendant
before making any order in the proceeding. The information of appointment of such guardian can
be given to the minor as well through a notice, if the court deems fit. A person or authority
appointed as guardian of a minor shall continue to act as a same unless he has not retired, removed
or died under rule 12 of the order.

Ramchander v. Maharaja Man Singh (AIR 1968 SC 954)

This case states that down that no decree passed against a minor shall be set aside merely on the
ground that the next friend or guardian for the suit of the minor had an interest in the subject
matter of the suit adverse to that of minor. But if the minor is prejudiced by reason of such adverse
interest, it shall be a ground for setting aside the decree. The minor may also obtain appropriate
relief for misconduct or gross negligence on the part of his next friend or guardian. A decree passed
against a minor or a lunatic without appointment of a guardian is a nullity and is void and not
merely voidable.
Rule 4 – This rule states the essential conditions for the appointment of a person as a next friend or
guardian for the suit, as follows -
A person of sound mind and major can be appointed as a next friend or guardian when he does not
have any adverse interest in the case.
A defendant cannot be a next friend of a minor plaintiff, and a plaintiff cannot be a guardian of a
minor defendant.
If a person has been appointed as next friend or guardian of a minor he shall continue to act as next
friend or guardian unless he has not replaced by the court and the court shall record the reasons for
such replacement.
No person shall be appointed as next friend or guardian unless he is ready and consents for the
same.
In the cases where no one is interested to be a guardian of a minor, the court can appoint an officer
as a guardian of such minor, the cost of such officer shall be paid by both or any of the parties as
court directs or from any other funds in which minor has interest or through the property of minor.

Rule 5 – Any application made for the proceedings of the suit except under Order X rule 2 shall be
presented by the next friend or guardian of a minor. In case, where any order made by the court on
the basis of the application of the minor not being represented by his next friend or guardian, such
order shall be discharged and the cost of such order shall be imposed on the pleader who has come
up with such an application of minor.

Rule 6 – The guardian or next friend cannot accept any movable property or money in behalf of
such minor prior to or in the execution of decree without the leave of the court. If the court is
satisfied that the person who has been appointed as next friend or guardian of a minor is not to be
considered as guardian of the property of a minor by the competent authority then the court may
allow him to take such property or money as the case may be, by receiving a sum of security from
such person to protect the interest of minor.

Rule 7 – No next friend or guardian us allowed to make a compromise or agreement on behalf of

such minor without the leave of the court. The next friend or guardian shall attach a certificate that
the agreement or compromise is for the benefit of such minor. The pleader shall also attach his
affidavit that the compromise is for the benefit of such minor. Such certificate or affidavit shall not
prevent the court to examine the interest of minor in such agreement or compromise separately.

Rule 8 - A person cannot leave his duty to act as a next friend or guardian of a minor without the
leave of the court. When a person decides to retire himself as a next friend of a minor, he has to pay
the cost made by the defendant as a security and appoint another person on his behalf.
Rule 9 – This rule states about removal of next friend by the court. The court can remove a person
as a next friend of a minor and impose cost on him as it deems fit, in the following cases -
When the interest of next friend is adverse to the interest of minor, or the interest of next friend is
connected with the interest of defendant.
Where the next friend does not perform his duties as a next friend or willfully rescinds to prevent
himself from performing such duties.
When the next friend leaves the territory of India during the pendency of suit.
Any other reason which court finds sufficient for the removal of such next friend.

Rule 10 – On the retirement, removal or death of next friend the court shall stay the proceeding till
the next friend has not been appointed by the court. If the pleader is unable to find a next friend
within a sufficient time, then any person may voluntarily apply to be appointed as next friend.

Rule 11 – Retirement, removal or death of guardian.

This rule follows the same provisions as prescribed under rule 7, 8 & 9 of this order in the case of
minor defendant and guardian.

Rule 12 – Once the minor attains the majority, then he is having authority to decide whether he
wants to continue with the suit or wants to withdraw the suit. If he decides to continue with the suit
then he may request the court to discharge his next friend and shall continue the case on his own
name. He may also request the court that his name should be used in the suit. Where, minor was a
sole plaintiff or defendant and decided to end up the proceeding or suit then he may request the
court to end up the proceeding by paying the cost of suit to the opposite party.

Rule 13 – Where a minor co - plaintiff after attaining the majority wants to repudiate the suit and
court feels that he is not a necessary party to the suit, the court can stuck off his name by applying
proper cost on such minor as it deems fit. In the case of removal of the name of minor plaintiff, the
court shall give a notice to all other co – plaintiffs and next friend. If the court feels that the minor is
a necessary party to the suit, the court can appoint him as defendant to the suit.

Rule 14 – In the cases of sole minor plaintiff, after attaining the age of majority, the person claims
that the suit filed by the next friend was unreasonable, improper and he wants the dismissal of such
suit, then the court shall dismiss the suit after serving notice to all the parties including next friend
and if the court finds that the suit filed by the minor was improper or unreasonable then the court
can order him to pay cost to all the parties to the suit including minor.
Rule 15 – This rule states that all the provisions of this order except rule 2 A shall apply in the cases
of a person of unsound mind.

Rule 16 – Nothing in this order shall apply on a foreign ruler.

Suits relating to the matter concerning family (Order XXXII A)

Rule 1 – This order deals with the matters only relating to family. This order deals with the cases of
matrimonial relief, or declaring validity of a marriage, for declaring the legitimacy of a child,
guardianship and custody of a minor and person of unsound mind etc, suit for the validity of
adoption, suit relating to wills and succession.

Rule 2 – Every proceeding under this rule to be held in camera.

Rule 3 – The court shall try to come up with a settlement in the cases under this order, and if the
court feels that at any stage reasonably stay of proceeding is a must for the settlement purpose then
the court can also stay the proceedings.

Rule 5 – It is the duty of the court to inquire every matter of fact under this order.

Rule 6 – For the purpose of this order, family will be -

A man and wife living together.
Children, or wife or child or children.
Any child or children being maintained by husband or wife.
If a woman is living without her husband and having no children can be considered maintained by
herself.

Summary procedure (Order XXXVII)

This order provides for a summary proceeding in respect of certain suits. Under this order, the
defendant is not allowed to defend the case, unless he contains the leave of the court. In the cases
where, the leave of the court has not applied for, or if applied has not granted then the court can
pass a decree immediately after following plaint of plaintiff.
Rule 1 – This rule states about applicability of this order. The order is applicable to the high courts,
city civil court and courts of small cause in the following cases -

Suits upon bills of exchange, hundies and promissory notes.

Suits in which the plaintiff seek only to recover a debt or liquidated demand in money payable by
the defendant, with or without interest, arising on the basis of -
On a written contract, or
On an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of
debt other than a penalty, or

On a guarantee, where the claim against the principal is in respect of debt or liquidated
demand only.

Rule 2 – After the summons of the suit has been issued to the defendant, the defendant must appear
and after that plaintiff will serve summon for judgment on the defendant. The defendant is not
entitled to defend a summary suit unless he enters an appearance. In default of this, the plaintiff
will be entitled to a decree which will be executed forthwith.

Rule 3 – This rule states that in the cases where this order applies, the plaintiff shall, together with
the summons under rule 2, serve on the defendant a copy of plaint and the annexures thereto and
the defendant may at any time within 10 days of service of summon enter appearance in person or
through a pleader, in either case, he shall file in court an address for service of notice to him. The
defendant may, at any time within 10 days from the service of such summons for judgment, by
affidavit or otherwise disclosing such facts as deems to be sufficient to entitle him to defend. The
court shall not disallow the defendant to defend the case unless the court does not find sufficient
grounds for the defence of the case.

Rule 4 – After decree, the court may, under special circumstances, set aside the decree and, if
necessary, stay the execution and may grant leave to the defendant to appear and defend the suit.
Santosh Kumar v. Bhai Mool Singh (AIR 1958 S.C. 321).
The issue in Santosh Kumar v Bhai Mool Singh (AIR 1958 SC 321) related to the leave to defend the
suit under 0.37, R.3. The counsel for the plaintiff agues that the discretion conferred by R.3 (2) is
unfettered and that as the discretion has been exercised by the learned trial Judge, no appeal can lie
against it unless there is a grave miscarriage of justice or flagrant violation of law. In Jacobs v
Booth's Distillery Co. (1901) 85 LT 262, the House of Lords held that whenever the defence raises a
'triable issue', leave must be given. If it is not done, leave may become illusory. This test was
adopted in Sundaram Chettiar v Valli Ammal (AIR 1935 Mad. 43). Taken by and large, the object is
to see that defendant does not unnecessarily prolong the litigation and prevent the plaintiff from
obtaining an early decree by raising untenable and frivolous defences in a class of cases where
speedy decisions are desirable in the interests of trade and commerce. In general, the test is to see
whether the defence raises a real issue and not a sham one, if the facts alleged by the defendants are
established, there would be a good or even a plausible defence on those facts.
The court in Santosh Kumar Case also held: Care should be taken to see that the object of the rule to
assist the expeditious disposal of commercial causes should not be defeated. But it must also be
ensured that real and genuine triable issues are not shut out by unduly severe orders as to deposit.

M/S. Mechalec Engineers v M/S. Basic Equipment Coporation. (AIR 1977 SC 577)
[No hard and fast rule can be laid down as to in what cases leave to defend can be granted. Each
rule must be decided on its own facts and circumstances and the discretion must be exercised
judicially and in consonance with the principles of natural justice. The court or judge may, for
sufficient cause shown by the defendant, excuse the delay of the defendant in entering an
appearance or in applying for leave to defend the suit.]
In this case, the plaintiff, a partnership firm, filed a suit for the recovery of certain amount on the
strength of a cheque drawn by the defendant which, on presentation, was dishonoured. The plaintiff
alleged that the cheque was given as price of goods supplied. The defendant admitted the issue of
the cheque by its managing partner, but, it denied any privity of contract with the plaintiff firm. The
defendant had its own version as to the reasons and purposes for which the cheque was drawn. The
suit was instituted under 0.37, so that the defendant had to apply for leave to defend. This leave
was granted unconditionally by the trial court. However, the High Court found that defences were
not bona fide and thus set aside the order of the trial court. The matter came before the Supreme
Court.
The Supreme Court observed: Any decision on the question that the defences could be honest and
bona fide, even before evidence has been led by the two sides, is generally hazardous. Where the
only ground given for concluding that the defence is not bona fide is that the defendant did not
prove his assertions before he was allowed to put in his defence, there is an obvious failure of
justice if the judgment is entered against a man who, if he allowed to prove his case, cannot but
succeed. In the present case, the defendant had denied, inter alia, liability to pay anything to the
plaintiff for an alleged supply of goods. It is only in cases where the defence is patently dishonest or
so unreasonable that it could not reasonably be expected to succeed that the exercise of discretion
by the trial court to grant leave unconditionally may be questioned.
In Kiranmoyee Dassi v Chatterjee (AIR 1949 Cal 479), the Calcutta High Court has laid down the
following principles relating to suits of a summary nature:
(I) If the defendant satisfied the court that he has a good defence to the claim on its merits, the
plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave
to defend.
(ii) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable
defence (although not a positively good defence), the plaintiff is not entitled to sign judgment and
the defendant is entitled to unconditional leave to defend.
 (iii) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, i.e.,
although the affidavit does not positively and immediately make it clear that he has a defence, yet,
shows such a state of facts as leads to the inference that at the trial of the action he may be able to
establish a defence to the plaintiff's claim, the plaintiff is not entitled to judgment and the defendant
is entitled to leave to defend, but, conditionally. In such a case the court may impose conditions as
the time or mode of trial but not as to payment into court or furnishing security.
(iv) If the defendant has no defence or the defence set up is illusory or sham or practically
moonshine, then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is
not entitled to leave to defend.
(v) However, in the cases mentioned in point (iv), the court may protect the plaintiff by only
allowing the defence to proceed if the amount claimed is paid into court or otherwise secured and
give leave to the defendant on such condition, and thereby show mercy. to the defendant by
enabling him to try to prove a defence.
The Supreme Court, in the present case, held that the order passed by the trial court was correct
and the High Court wrongly interfered with it. In other words, an unconditional leave to defend to
be granted to the defendant.]
The principles laid down in the above case were reiterated by a Division Bench of the Delhi High
Court in Hiralal & Sons v Laxmi Commercial Bank (1984) 25 DLT (SN 33).
In Ajit Singh v Gurcharan Singh (AIR 1967 Del 35), the Delhi High Court observed: "The object of
0.37 is to see that the summary procedure suits instituted within the shorter period of prescribed
limitations are not unduly delayed by untenable pleas in defence because of the obvious legal
presumption arising from such documents. But at the same time, when the defence raises a triable
issue, trial must not be rendered prejudicial to the defendant by imposing unduly harsh conditions".
ONGC Ltd. V. State Bank of India (AIR 2000 SC 2548).
This appeal arises out of a suit filed to enforce a Bank Guarantee against the respondent under
Order 37, C.P.C. The respondent filed an application seeking leave to defend the suit
unconditionally. That application having been allowed this appeal is filed by special leave.
The appellant entered into a contract with a consortium of M/ s. Saipem SPA/Snamprogetti of Italy
for construction of a system of undersea pipelines. The contract provided for levy of liquidated
damages if the contractor failed to complete the entire works or any part thereof before the
respective scheduled completion date. The contractor was obliged to furnish a 'bank guarantee to
cover liquidated damages.' In case, the contractor fails to provide the guarantee for liquidated
damages within the time stipulated therein, the appellants shall be entitled to encash the
performance guarantee. In compliance with this requirement, the contractor had furnished a bank
guarantee from the State Bank of India, Overseas Branch, Bombay, to cover liquidated damages
claim.
In 1993, the contractor as well as the Bank not having honoured the terms of the Bank Guarantee,
the appellant asked the respondent Bank to credit the said guarantee along with interest. On
December 3, 1993 the respondent Bank stated that they have issued the guarantee in question in
favour of ONGC against the 'counter guarantee' of the Italian Bank Credito Italiano, Milan and the
contractor obtained an order of injunction from an Italian Court restraining Credito Italiano from
making any payment to the respondent Bank under the counter guarantee.
The appellant contended that the bank guarantee is autonomous, unconditional and they are bound
to honour the same irrespective of any counter guarantee they have from the Credito Italiano and
that any proceeding with regard to enforcement of any such counter guarantee should not obstruct
payment under the guarantee given by the respondent bank. The High Court by order dated April
27, 1998 granted unconditional leave to defend the suit.
The appellant contended that only in the event of fraud or irretrievable injustice the court would be
entitled to interfere in a transaction involving a bank guarantee and under no other circumstances
[Elian and Rabbath v Matsas and Matsas (1966) 2 Lloyd's Rep. 495, CA]. The same is the principle
stated by this Court in Hindustan Steelworks Construction Ltd. v Tarapore and Co. It is held therein
that encashment of an unconditional bank guarantee does not depend upon the adjudication of
disputes. No distinction can also be made between bank guarantee for due performance of a work
contract and a guarantee given towards security deposit for a contract or any other kind of
guarantee. Where the beneficiary shall be the sole judge on the question of breach of primary cor
tract the bank shall pay the amount covered by the guarantee on demand without a demur. In the
absence of a plea of fraud, guarantee had to be given effect to.
In the present case, the Apex Court observed: "In the light of what is stated above, in the absence of
a plea relating to fraud, much less of a finding thereto, we find that the High Court could not have
stated that the defence raised by the respondent Bank on the grounds set forth earlier is sufficient
to hold that unconditional leave should be granted to defend the suit. In the arbitration proceedings
that were pending it was certainly open to the parties concerned to adduce proper evidence and
establish as to what are the liquidated damages that are payable and if any excess amount had been
paid, the same would be recovered."
The Court held: When, in fact, there is no defence for suit filed merely to rely upon an injunction
granted or obtained in their favour does not carry the case of the respondent Bank any further. The
only basis upon which the respondent Bank sought for and obtained the injunction is that in event
the counter guarantee cannot be honoured by reason of the injunction granted by the Italian court
the respondent Bank should be extended the similar benefit. Therefore, in our view, the High Court
plainly erred in having granted leave to defend unconditionally.

Application for restitution (Sec. 144)

Restitution means an act of restoring a thing to its proper owner. In other words, it can be
considered as restoring to a party the benefit which the other party has received under a decree
substantially hold to be wrong. Under sec. 144, an application for restitution could be made by a
party when a decree or order has been varied or set aside in appeal or revision etc. It is the duty of
the court to restore to a party what has been lost to him in execution of a decree. The court can also
make the orders of refund under this section along with payment of interest, damages and
compensation or mesne profit.
This section is based on a Latin maxim I.e. ‘Actus curiae neminem gravabit’ which means that the
act of court shall no harm. Sec. 144 does not confer new substantive right; it merely regulates the
power of the court in that behalf. In this section, the court power is not discretionary but obligatory.
Under sec. 144 an application for restitution has to satisfy following conditions -
Restitution sought must be in respect of the decree/order (erroneous judgment) which had been
varied or reversed.
The party applying for restitution must be entitled to such benefits under the reversed order or
decree.
The relief claimed must be properly consequential to the reversal or variation of the decree/order.

Right to lodge Caveat (Sec. 148 A)

A caveat is a warning giving notice to the court not to take any step without notice being given to
the party lodging the caveat. It provides an opportunity to the opposite party to be heard before
passing ex parteorder. Sec. 148 A has been inserted by 1976 amendments states where an
application is expected to be made, or has been made, on a suit or proceeding instituted, or about to
be instituted, in a court, any person claiming a right to appear before the court on hearing of such
an application may lodge a caveat. It is important to note that any person who can be affected by
such order of court can lodge a caveat, it is not necessary that he should be a party to the suit. A
caveat shall not remain in force after expiry of 90 days from the date on which it is lodged, unless
another application is made before the expiry of that period. The provisions of caveat are applicable
on suits, proceeding, appeals.

Exemption from personal appearance/ Arrest (Sec. 132-133, 135 & 135 A)
Sec. 132 states that a woman who by her customs not allowed to appear in public is exempted from
personal appearance in the court. Sec. 133 provides an exhaustive list of persons who are exempted
from personal appearance in the court, as follows -
The President of India.
Vice president of India.
The Speaker of the House of the People.
The Ministers of the Union.
The Judges of the Supreme Court.
The Governors of States and the administrators of Union territories.
The Speakers of the State Legislative Assemblies.
The Chairman of the State Legislative Councils.
The Ministers of States.
The Judges of the High Courts.
The persons to whom section 87B applies (Foreign rulers).

Sec. 135 states that a judge, magistrate or any other judicial officer cannot be arrested under a civil
process whilst going to, presiding in, or returning from, his court. In the same manner when a
matter is pending before a tribunal, the parties, their pleaders, mukhtars, revenue agents, and
witnesses are exempted while going to attending such tribunal or returning from such tribunal. Sec.
135 A states that the member of parliament or legislative assemblies or councils, and the members
of committees of parliament/legislative assemblies or council are exempted from arrest under a
civil process, during continuance of any meeting and during 40 days before and after such meeting,
or sitting as the case may be.

Languages of the court (Sec. 137 & 138)

Sec. 137 states that the language which, on the commencement of this code, is the language of any
court subordinate to the high court, is to continue to be the language of such court, until otherwise
directed by the state government. Sec. 138 states that the language of each high court shall be
English.

Transfer of Court’s business (Sec. 150)

Under this section, where the business of any court has been transferred to any other court, the
transferee court shall have the same powers and duties as those of transferor court.

Other relevant cases caused major amendments in Code of Civil Procedure, 1908.
Salem Advocates Bar Assn., T.N. v. Union of India (AIR 2003 SC 189)
In this case, writ petitions have been filed seeking to challenge amendments made to the Code of
Civil Procedure by the Amendment Act 46 of 1999 and Amendment Act 22 of 2002. But the Apex
Court did not find that the said provisions are in any way ultra vires the Constitution.
(a) Summons to Defendants
It was contended that some of the amendments which have been made may face practical
difficulties in implementation. For instance, amendment has been made to Sec. 27 dealing with
summons to the defendant which, after the amendment, reads as follows: Summons to Defendants-
"Where a suit has been duly instituted, a summons may be issued to the defendant to appear and
answer the claim and may be served in the manner prescribed on such day not beyond thirty days
from the date of the institution of the suit." It was submitted that the words "on such day not
beyond thirty days from the date of the institution of the suit" seem to indicate that the summons
must be served within thirty days of the date of the institution of the suit.
The Court said: In our opinion, the said provisions read as a whole will not be susceptible to that
meaning. The words added by amendment, it appears, fix outer time frame, by providing that steps
must be taken within thirty days from the date of the institution of the suit, to issue summons. In
other words, if the suit is instituted, for example, on 1st January 2002, then the correct addresses of
the defendants and the process fee must be filed in the Court within thirty days so that summons be
issued by the Court not beyond So thirty days from the date of the institution of the suit. The object
is to avoid long delay in issue of summons for want of steps by the plaintiff. It is quite evident that if
all that is required to be done by a party, has been performed within the period of thirty days, then
no fault can be attributed to the party. If for any reason, the Court is not in a position or is unable to
or does not issue summons within thirty days, there will, in our opinion, compliance with the
provisions of Sec. 27 once within thirty days of the issue of the summons the party concerned has
taken steps to file the process fee along with completing the other formalities which are required to
enable the Court to issue the summons.
(b) Settlement of Disputes by Arbitration, Lok Adalats, Mediation, etc.
The Court's attention was then drawn to a new Sec. 89, which has been introduced in the Code of
Civil Procedure. This provides for "settlement of disputes," etc. The Court observed: It is quite
obvious that the reason why Sec. 89 has been inserted is to try and see that all the cases which are
filed in Court need not necessarily be decided by the Court itself. Keeping in mind the long delays
and the limited number of Judges which are available, it has now become imperative that resort
should be had to Alternative Dispute Resolution Mechanism with a view to bring to an end litigation
between the parties at an early date. The Alternative Dispute Resolution (ADR) Mechanism as
contemplated by Sec. 89 is arbitration or conciliation or judicial settlement including settlement
through Lok Adalat or mediation. Sec. 89(2) refers to different Acts in relation to Arbitration,
conciliation or settlement through Lok Adalat, but with regard to mediation, Sec. 89(2)(d) provides
that the parties shall follow the procedure as may o be prescribed. Sec. 89(2)(d), therefore,
contemplates appropriate rules being framed with regard to mediation. In certain countries of the
world where ADR has been successful to the extent that over 90 per cent of the cases are settled out
of Court, there is a requirement that the parties to the suit must indicate the form of ADR which
they would like to resort to during the pendency of the trial of the suit. If the parties agree to
arbitration, then the provisions of the Arbitration and Conciliation Act, 1996 will apply and that
case will go outside the stream of the Court but resorting to conciliation or judicial settlement or
mediation with a view to settle the dispute would not ipso facto take the case outside the judicial
system. All that this means is that effort has to be made to bring about an amicable settlement
between the parties but if conciliation or mediation or judicial settlement is not possible, despite
efforts being made, the case will ultimately go to trial.
Section 89 is a new provision and even though arbitration or conciliation has been in place as a
mode for settling the disputes, this has not really reduced the burden on the Courts. It does appear
to us that modalities have to be formulated for the manner in which Sec. 89 and, for that matter, any
other provisions which have been introduced by way of amendments, may have to be in operation.
All counsel are agreed that for this purpose, it will be appropriate if a Committee is constituted so
as to ensure that the amendments made become effective and result in quicker dispensation of
justice. This Committee may consider devising a model case management formula as well as rules
and regulations which should be followed while taking recourse to the ADR referred to in Sec. 89.
The model rules, with or without modification, which are formulated may be adopted by the High
Courts concerned for giving effect to Sec. 89(2)(d).
(c) Intra-Court Appeals
The Court's attention was then drawn Sec. 100-A which deals with intra-Court appeals. Sec. 100-A
deals with two types of cases, which are decided by a single Judge. One is where the single Judge
hears an appeal from an appellate decree or order. The question of there being any further appeal
in such a case cannot and should not be contemplated. Where, however, an appeal is filed before the
High Court against the decree of a trial Court, a question may arise whether any further appeal
should be permitted or not.
Even at present depending upon the value of the case, the appeal from the original decree is either
heard by a single Judge or by a Division Bench of the High Court. Where the regular first appeal so
filed is heard by a Division Bench, the question of there being an intra-Court appeal does not arise.
It is only in cases where the value is not substantial that the rules of the High Court may provide for
the regular first appeal to be heard by a single Judge, In such a case to give a further right of appeal
where the amount involved is nominal to a Division Bench will really be increasing the workload
unnecessarily. We do not find that any prejudice would be caused to the litigants by not providing
for intra-Court appeal, even where the value involved is large. In such a case, the High Court by
Rules, can provide that the Division Bench will hear the regular first appeal. No fault can, thus, be
found with the amended provision Sec. 100-A.
(d) Rejection of Plaint
The Court's attention has been drawn to Order 7, Rule 11 to which clauses (e) and (f) have been
added which enable the Court to reject the plaint where it is not filed in duplicate or where the
plaintiff fails to comply with the provisions of Rule 9 of Order 7.
The Court said: It appears to us that the said clauses being procedural would not require the
automatic rejection of the plaint at the first instance. If there is any defect as contemplated by Rule
11(e) or non-compliance as referred to in Rule 11(f), the Court should ordinarily give an
opportunity for rectifying the defects, and in the event of the same not being done the Court will
have the liberty or the right to reject the plaint.
(e) Registry of Memorandum of Appeal
Lastly, the Court's attention was drawn to Rule 9 which was inserted in Order 41 which reads as
follows: Registry of memorandum of appeal (1) The Court from whose decree an appeal lies shall
entertain the memorandum of appeal and shall endorse thereon the date of presentation and shall
register the appeal in a book of appeal kept for that purpose. (2) Such book shall be called the
register of appeal. The apprehension was that this rule requires the appeal to be filed in the Court
from whose decree the appeal is sought to be filed.
The Court said: In our opinion, this is not so. The appeal is to be filed under Order 41, Rule 9 in the
Court in which it is maintainable. All that Order 41, Rule 9 requires is that a copy of memorandum
of appeal which has been filed in the appellate Court should also be presented before the Court
against whose decree the appeal has been filed and endorsement thereof shall be made by the
decreeing Court in a book called the Register of Appeals. Perhaps, the intention of the Legislature
was that the Court against whose decree an appeal has been filed should be made aware of the
factum of the filing of the appeal which may or may not be relevant at a future date. Merely because
a memorandum of appeal is not filed under Order 41, Rule 9 will not, to our mind, make the appeal
filed in the appellate Court as a defective one.
Salem Advocates Bar Assn., T.N. v. Union of India (AIR 2005 SC 3353)
The challenge made to the constitutional validity of amendments made to the Code of Civil
Procedure by Amendment Acts of 1999 and 2002 was rejected by this Court in Salem Advocates Bar
Association, T.N. v Union of India (2003), but it was noticed in the judgment that modalities have to
be formulated for the manner in which Sec. 89 of the Code and, for that matter, the other provisions,
which have been introduced by way of amendments, may have to be operated. For this purpose, a
Committee headed by a former Judge of this Court and Chairman, Law Commission of India (Justice
M. Jagannadha Rao) was constituted so as to ensure that the amendments become effective and
result in quicker dispensation of justice. It was further observed that the Committee may consider
devising a model case management formula as well as rules and regulations which should be
followed while taking recourse to the Alternate Disputes Resolution (ADR) referred to in Sec. 89.

(a) Amendment inserting Sub-sec. (2) to Sec. 26 and Rule 15(4) to Order VI
Prior to insertion of aforesaid provisions, there was no requirement of filing affidavit with the
pleadings. These provisions now require the plaint to be accompanied by an affidavit as provided in
Sec. 26(2) and the person verifying the pleadings to furnish an affidavit in support of the pleading
[Order VI Rule 15(4)]. It was sought to be contended that the requirement of filing an affidavit is
illegal and unnecessary in view of the existing requirement of verification of the pleadings.
The Court said: We are unable to agree. The affidavit required to be filed under amended Sec. 26(2)
and Order VI Rule 15(4) of the Code has the effect of fixing additional responsibility on the
deponent as to the truth of the facts stated in the pleadings. It is, however, made clear that such an
affidavit would not be evidence for the purpose of the trial. Further, on amendment of the
pleadings, a fresh affidavit shall have to be filed in consonance thereof.

(b) Amendment of Order XVIII, Rule 4

The amendment provides that in every case, the examination-in-chief of a witness shall be on
affidavit. The Court has already been vested with power to permit affidavits to be filed as evidence
as provided in Order XIX Rules 1 and 2 of the Code. It has to be kept in view that the right of cross-
examination and re-examination in open court has not been disturbed by Order XVIII Rule 4
inserted by amendment. It is true that after the amendment cross-examination can be before a
Commissioner but we feel that no exception can be taken in regard to the power of the legislature
to amend the Code and provide for the examination-in-chief to be on affidavit or cross-examination
before a Commissioner. The trial court in appropriate cases can permit the examination-in-chief to
be recorded in the Court.
Proviso to Sub-rule (2) of Rule 4 of Order XVIII clearly suggests that the court has to apply its mind
to the facts of the case, nature of allegations, nature of evidence and importance of the particular
witness for determining whether the witness shall be examined in court or by the Commissioner
appointed by it. The power under Order XVIII Rule 4(2) is required to be exercised with great
circumspection having regard to the facts and circumstances of the case. For instance, a case may
involve complex question of title, complex question in partition or suits relating to partnership
business or suits involving serious allegations of fraud, forgery, serious disputes as to the execution
of the will etc. In such cases, as far as possible, the court may prefer to itself record the cross
examination of the material witnesses.
Another contention raised is that when evidence is recorded by the Commissioner, the Court would
be deprived of the benefit of watching the demeanor of witness. That may be so but, in our view; the
will of the legislature, which has by amending the Code provided for recording evidence by the
Commissioner for saving Court's time taken for the said purpose, cannot be defeated merely on the
ground that the Court would be deprived of watching the demeanour of the witnesses. Further, as
noticed above, in some cases, which are complex in nature, the prayer for recording evidence by the
Commissioner may be declined by the Court. It may also be noted that Order XVIII Rule 4,
specifically provides that the Commissioner may record such remarks as it thinks material in
respect of the demeanour of any witness while under examination. The Court would have the
benefit of the observations if made by the Commissioner.
(c) Additional Evidence
In Salem Advocates Bar Association's case (2003), it has been clarified that on deletion of Order
XVIII Rule 17-A which provided for leading of additional evidence, the law existing before the
introduction of the amendment i.e. 1st July, 2002, would stand restored. The Rule was deleted by
Amendment Act of 2002. Even before insertion of Order XVIII Rule 17-A, the Court had inbuilt
power to permit parties to produce evidence not known to them earlier or which could not be
produced in spite of due diligence. Order XVIII Rule 17-A did not create any new right but only
clarified the position. Therefore, deletion of Order XVIII Rule 17-A does not disentitle production of
evidence at a later stage. On a party satisfying the Court that after exercise of due diligence that
evidence was not within his knowledge or could not be produced at the time the party was leading
evidence, the Court may permit leading of such evidence at a later stage on such terms as may
appear to be just.
(d) Filing of Written Statement: Order VIII, Rule 1
Order VIII Rule 1, as amended by Act 46 of 1999 provides that the defendant shall within 30 days
from the date of service of summons on him, present a written statement of his defence. The rigour
of this provision was reduced by Amendment Act 22 of 2002 which enables the Court to extend
time for filing written statement, on recording sufficient reasons therefor, but the extension can be
maximum for 90 days. The point for consideration is whether the provision providing for maximum
period of ninety days is mandatory and, therefore, the Court is altogether powerless to extend the
time even in an exceptionally hard case.
The Court said: It has been common practice for the parties to take long adjournments for filing
written statements. The legislature with a view to curb this practice and to avoid unnecessary delay
and adjournments, has provided for the maximum period within which the written statement is
required to be filed. The mandatory or directory nature of Order VIII Rule 1 shall have to be
determined by having regard to the object sought to be achieved by the amendment. It is, thus,
necessary to find out the intention of the legislature.
The use of the word 'shall' is ordinarily indicative of mandatory nature of the provision but having
regard to the context in which it is used or having regard to the intention of the legislation, the same
can be construed as directory. The rule in question has to advance the cause of justice and not to
defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it.
Construction of the rule or procedure which promotes justice and prevents miscarriage has to be
preferred. The rules or procedure are hand-maid of justice and not its mistress. In the present
context, the strict interpretation would defeat justice.
The Court has wide power to make such order in relation to the suit as it thinks fit. Clearly,
therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written
statement is directory. Having said so, we wish to make it clear that the order extending time to file
written statement cannot be made in routine. The time can be extended only in exceptionally hard
cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time
limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and
routinely exercised so as to nullify the period fixed by Order VIII Rule 1.
(e) Section 39: Execution of Decree
Section 39(1) of the Code provides that the Court which passed a decree may, on the application of
the decree-holder send it for execution to another court of competent jurisdiction. By Act 22 of
2002, Section 39(4) has been inserted providing that nothing in the section shall be deemed to
authorise the Court which passed a decree to execute such decree against any person or property
outside the local limits of its jurisdiction. The question is whether this newly added provision
prohibits the executing court from executing a decree against a person or property outside its
jurisdiction and whether this provision overrides Order XXI Rule 3 and Order XXI Rule 48 or
whether these provisions continue to be an exception to Section 39(4) as was the legal position
before the amendment.
Order XXI Rule 3 provides that where immoveable property forms one estate or tenure situate
within the local limits of the jurisdiction of two or more courts, any one of such courts may attach
and sell the entire estate or tenure. Likewise, under Order XXI Rule 48, attachment of salary of a
Government servant, Railway servant or servant of local authority can be made by the court
whether the judgment-debtor or the disbursing officer is or is not within the local limits of the
court's jurisdiction. Sec. 39 does not. authorise the Court to execute the decree outside its
jurisdiction but it does not dilute the other provisions giving such power on compliance of
conditions stipulated in those provisions. Thus, the provisions, such as, Order XXI Rule 3 or Order
XXI Rule 48 which provide differently, would not be affected by Sec. 39(4).
(f) Amendment of Pleadings: Order VI Rule 17
Order VI Rule 17 deals with amendment of pleadings. By 1999 Amendment, this provision was
deleted. It has again been restored by 2002 Amendment, but with an added proviso to prevent
application for amendment being allowed 'after the trial has commenced, unless court comes to the
conclusion that in spite of due diligence, the party could not have raised the matter before the
commencement of trial. The proviso, to some extent, curtails absolute discretion to allow
amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown
that in spite of due diligence, such amendment could not have been sought earlier. The object is to
prevent frivolous applications which are filed to delay the trial. There is no illegality in the
provision.
(g) Service through Courier
Order V Rule 9, inter alia, permits service of summons by party or through courier. Order V Rule
9(3) and Order V Rule 9-A permit service of summons by courier or by the plaintiff. Order V Rule
9(5) requires the court to declare that the summons had been duly served on the defendant on the
contingencies mentioned in the provision. It is in the nature of 'deemed service. The apprehension
expressed is that service outside the normal procedure is likely to lead to false reports of service
and passing of ex-parte decrees. It is further urged that courier's report about defendant's refusal to
accept service is also likely to lead to serious malpractice and abuse.
The Court said: It has to be borne in mind that problem in respect of service of summons has been
one of the major causes of delay in the due progress of the case. It is common knowledge that the
defendants have been avoiding to accept summons. There have been serious problems in process
serving agencies in various courts. There can, thus, be no valid objection in giving opportunity to
the plaintiff to serve the summons on the defendant or get it served through courier. There is,
however, danger of false reports of service. It is required to be adequately guarded. The courts shall
have to be very careful while dealing with a case where orders for deemed service are required to
be made on the basis of endorsement of such service or refusal. The High Courts can make
appropriate rules and regulations or issue practice directions to ensure that such provisions of
service are not abused so as to obtain false endorsements. In this regard, the High Courts can
consider making a provision for filing of affidavit setting out details of events at the time of refusal
of service. For instance, it can be provided that the affidavit of person effecting service shall state as
to who all were present at that time and also that the affidavit shall be in the language known to the
deponent. It can also be provided that if affidavit or any endorsement as to service is found to be
false, the deponent can be summarily tried and punished for perjury and the courier company can
be black-listed.
(h) Adjournments
Order XVII of the Code relates to grant of adjournments. Two amendments have been made therein.
One that adjournment shall not be granted to a party more than three times during hearing of the
suit. The other relates to cost of adjournment. The awarding of cost has been made mandatory.
Costs that can be awarded are of two types. First, cost occasioned by the adjournment and second
such higher cost as the court deems fit.
Order XVII does not forbid grant of adjournment where the circumstances are beyond the control of
the party. In such a case, there is no restriction on number of adjournments to be granted. It cannot
be said that even if the circumstances are beyond the control of a party, after having obtained third
adjournment, no further adjournment would be granted. There may be cases beyond the control of
a party despite the party having obtained three adjournments. For instance, a party may be
suddenly hospitalized on account of some serious ailment or there may be serious accident or some
act of God leading to devastation.
The provision for costs and higher costs has been made because of practice having been developed
to award only a nominal cost even when adjournment on payment of costs is granted. Ordinarily,
where the costs or higher costs are awarded, the same should be realistic and as far as possible
actual cost that had to be incurred by the other party shall be awarded where the adjournment is
found to be avoidable but is being granted on account of either negligence or casual approach of a
party or is being sought to delay the progress of the case or on any such reason. Even in cases which
may not strictly come within the category of circumstances beyond the control of a party, the Court
by resorting to the provision of higher cost which can also include punitive cost in the discretion of
the Court, adjournment beyond three can be granted having regard to the injustice that may result
on refusal thereof, with reference to peculiar facts of a case. We may, however, add that grant of any
adjournment let alone first, second or third adjournment is not a right of a party. The grant of
adjournment by a court has to be on a party showing special and extraordinary circumstances.
(i) Order XVIII Rule 2
Order XVIII Rule 2(4), which was inserted by Act of 1976, has been omitted by Act of 1999. Under
the said Rule, the Court could direct or permit any party, to examine any party or any witness at any
stage. The effect of deletion is the restoration of the status quo ante. This means that law that was
prevalent prior to 1976 amendment, would govern.
The omission of Order XVIII Rule 2(4) by 1999 amendment does not take away Court's inherent
power to call for any witness at any stage either suo moto or on the prayer of a party invoking the
inherent powers of the Court.
(j) Filing Written Arguments or Fixing Time Limit of Oral Arguments
In Order XVIII Rule 2, Sub-rules (3A) to 3(D) have been inserted by Act of 2002. The object of filing
written arguments or fixing time limit of oral arguments is with a view to save time of court. The
adherence to the requirement of these rules is likely to help in administering fair and speedy
justice.
(k) Costs
Section 35 of the Code deals with the award of cost and Sec. 35A with award of compensatory costs
in respect of false or vexatious claims or defences. Sec. 95 deals with grant of compensation for
obtaining arrest, attachment or injunction on insufficient grounds. These three sections deal with
three different aspects of award of cost and compensation.
Under Sec. 95, cost can be awarded upto Rs. 50,000/- and under Sec. 35A, the costs awardable are
upto Rs. 3,000/-. Sec. 35B provides for award of cost for causing delay where a party fails to take
the step which he was required by or under the Code to take or obtains an adjournment for taking
such step or for producing evidence or on any other ground. In circumstances mentioned in Sec. 35-
B, an order may be made requiring the defaulting party to pay to other party such costs as would, in
the opinion of the court, be reasonably sufficient to reimburse the other party in respect of the
expenses incurred by him in attending the court on that date, and payment of such costs, on the
date next following the date of such order, shall be a condition precedent to the further prosecution
of the suit or the defence. The award of the cost of the suit is in the discretion of the Court. In Secs.
35 and 35B, there is no upper limit of amount of cost awardable.
Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact
that either the costs are not awarded or nominal costs are awarded on the unsuccessful party.
Unfortunately, it has become a practice to direct parties to bear their own costs. In large number of
cases, such an order is passed despite Sec. 35(2) of the Code. Such a practice also encourages filing
of frivolous suits. It also leads to taking up of frivolous defences. Further wherever costs are
awarded, ordinarily the same are not realistic and are nominal.
When Sec. 35(2) provides for cost to follow the event, it is implicit that the costs have to be those
which are reasonably incurred by a successful party except in those cases where the Court in its
discretion may direct otherwise by recording reasons thereof. The costs have to be actual
reasonable costs including the cost of the time spent by the successful party, the transportation and
lodging, if any, or any other incidental cost besides the payment of the court fee, lawyer's fee, typing
and other cost in relation to the litigation. It is for the High Courts to examine these aspects and
wherever necessary make requisite rules, regulations or practice direction so as to provide
appropriate guidelines for the subordinate courts to follow.
(l) Section 80
Section 80(1) requires prior notice of two months to be served on the Government as a condition
for filing a suit except when there is urgency for interim order in which case the Court may not
insist on the rigid rule of prior notice. The two months period has been provided for so that the
Government shall examine the claim put up in the notice and has sufficient time to send a suitable
reply. The underlying object is to curtail the litigation. The object also is to curtail the area of
dispute and controversy. Similar provisions also exist in various other legislations as well.
Wherever the statutory provision requires service of notice as a condition precedent for filing of
suit and prescribed period therefor, it is not only necessary for the Governments or departments or
other statutory bodies to send a reply to such a notice but it is further necessary to properly deal
with all material points and issues raised in the notice. The Governments, Government departments
or statutory authorities are defendants in large number of suits pending in various courts in the
country. Judicial notice can be taken of the fact that in large number of cases either the notice is not
replied or in few cases where reply is sent, it is generally vague and evasive. The result is that the
object underlying Sec. 80 of the Code and similar provisions gets defeated. It not only gives rise to
avoidable litigation but also results in heavy expense and cost to the exchequer as well.
Proper reply can result in reduction of litigation between State and the citizens. In case proper
reply is sent either the claim in the notice may be admitted or area of controversy curtailed or the
citizen may be satisfied on knowing the stand of the State.
There is no accountability in the Government, Central or State or the statutory authorities in
violating the spirit and object of Sec. 80.
The Court said: Having regard to the existing state of affairs, we direct all concerned Governments,
Central or State or other authorities, whenever any statute requires service of notice as a condition
precedent for filing of suit or other proceedings against it, to nominate, within a period of three
months, an officer who shall be made responsible to ensure that replies to notices under Sec. 80 are
sent within the period stipulated. The replies shall be sent after due application of mind. Despite
such nomination, if the Court finds that either the notice has not been replied or reply is evasive
and vague and has been sent without proper application of mind, the Court shall ordinarily award
'heavy cost against the Government' and direct it to take appropriate action against the concerned
Officer including recovery of costs from him.
(m) Section 148
The amendment made in Sec. 148 affects the power of the Court to enlarge time that may have been
fixed or granted by the Court for the doing of any act prescribed or allowed by the Code. The
amendment provides that the period shall not exceed 30 days in total. Before amendment, there
was no such restriction of time. Whether the Court has no inherent power to extend the time
beyond 30 days is the question.
The Court said: We have no doubt that the upper limit fixed in Sec. 148 cannot take away the
inherent power of the Court to pass orders as may be necessary for the ends of justice or to prevent
abuse of process of Court. The rigid operation of the section would lead to absurdity. Sec. 151 has,
therefore, to be allowed to fully operate. Extension beyond maximum of 30 days, thus, can be
permitted if the act could not be performed within 30 days for the reasons beyond the control of
the party. We are not dealing with a case where time for doing an act has been prescribed under the
provisions of the Limitation Act which cannot be extended either under Sec. 148 or Sec. 151. We are
dealing with a case where the time is fixed or granted by the Court for performance of an act
prescribed or allowed by the Court. There can be many cases where non-grant of extension beyond
30 days would amount to failure of justice. The object of the Code is not to promote failure of
justice. Sec. 148, therefore, deserves to be read down to mean that where sufficient cause exists or
events are beyond the control of a party, the Court would have inherent power to extend time
beyond 30 days.
(n) Sec. 89: Settlement of Disputes Outside the Court
(1) Where it appears to the Court that there exist elements of a settlement which may be acceptable
to the parties, the Court shall formulate the terms of settlement and give them to the parties for
their observations and after receiving the observations of the parties, the Court may reformulate
the terms of a possible settlement and refer the same for- (a) arbitration; (b) conciliation; (c)
judicial settlement including settlement through Lok Adalat; or (d) mediation.
(2) Where a dispute has been referred: (a) for arbitration or conciliation, the provisions of the
Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or
conciliation were referred for settlement under the provisions of that Act;
(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions
of the Legal Services Authority Act, 1987 and provisions of that Act shall apply in respect of the
dispute so referred to the Lok Adalat;
(c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such
institution or person shall be deemed to be a 'Lok Adalat' and all the provisions of the Legal
Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the
provisions of that Act;
(d) for mediation, the Court shall effect a compromise between the parties and shall follow such
procedure as may be prescribed.
As can be seen from Sec. 89, its first part uses the word 'shall' when it stipulates that the 'court shall
formulate terms of settlement'. The use of the word 'may' in latter part of Sec. 89 only relates to the
aspect of reformulating the terms of a possible settlement. The intention of the legislature behind
enacting Sec. 89 is that where it appears to the Court that there exists element of a settlement
which may be acceptable to the parties, they, at the instance of the court, shall be made to apply
their mind so as to opt for one or the other of the four ADR methods mentioned in the Section and if
the parties do not agree, the court shall refer them to one or other of the said modes.
One of the modes to which the dispute can be referred is 'Arbitration'. Sec. 89(2) provides that
where a dispute has been referred for Arbitration or Conciliation, the provisions of the Arbitration
and Conciliation Act, 1996 shall apply as if the proceedings for Arbitration or Conciliation were
referred for settlement under the provisions of 1996 Act. Sec. 8 of the 1996 Act deals with the
power to refer parties to Arbitration where there is arbitration agreement. As held in P. Anand
Gajapathi Raju v P.V.G. Raju (Dead), 1996 Act governs a case where arbitration is agreed upon
before or pending a suit by all the parties. The 1996 Act, however, does not contemplate a situation
as in Sec. 89 of the Code where the Court asks the parties to choose one or other ADRs including
Arbitration and the parties choose Arbitration as their option. Of course, the parties have to agree
for Arbitration. Sec. 82 of 1996 Act enables the High Court to make Rules consistent with this Act as
to all proceedings before the Court under 1996 Act. Sec. 84 enables the Central Government to
make rules for carrying out the provisions of the Act. The procedure for option to Arbitration
among four ADRs is not contemplated by the 1996 Act and, therefore, Sec. 82 or 84 has no
applicability where parties agree to go for arbitration under Sec. 89 of the Code. If reference is
made to Arbitration under Sec. 89 of the Code, 1996 Act would apply only from the stage after
reference and not before the stage of reference when options under Sec. 89 are given by the Court
and chosen by the parties. Thus, there is no impediment in the ADR rules being framed in relation
to Civil Court as contemplated in Sec. 89 upto the stage of reference to ADR. The 1996 Act comes
into play only after the stage of reference upto the award.
A doubt has been expressed in relation to Sec. 89 (2)(d) of the Code on the question as to
finalisation of the tertas of the compromise. The question is whether the terms of compromise are
to be finalised by or before the mediator or by or before the court. It is evident that all the four
alternatives, namely, Arbitration, Conciliation, Judicial Settlement including settlement through Lok
Adalat and Mediation are meant to be the action of persons or institutions outside the Court and not
before the Court. In fact, the court is not involved in the actual mediation/conciliation. Clause (d) of
section 89(2) only means that when mediation succeeds and parties agree to the terms of
settlement, the mediator will report to the court and the court, after giving notice and hearing the
parties, 'effect' the compromise and pass a decree in accordance with the terms of settlement
accepted by the parties. Further, in this view, there is no question of the Court which refers the
matter to mediation/ conciliation being debarred from hearing the matter where settlement is not
arrived at. The Judge who makes the reference only considers the limited question as to whether
there are reasonable grounds to expect that there will be settlement and, on that ground, he cannot
be treated to be disqualified to try the suit afterwards if no settlement is arrived at between the
parties.
Iridium India telecom Ltd. V. Motorola inc. (2005) 2 SCC 145.
In this case, the issue was whether the proceedings in the Chartered High Courts of Calcutta,
Bombay and Madras would be governed by the High Court Rules of the Presidency High Courts or
by th amended provisions of Order 8, Rule 1, CPC.
This appeal impugns the judgment of the Division Bench of the High Court of Judicature at Bombay
in a Letters Patent Appeal holding that the amended provision of Order 8, Rule 1 of CPC would not
apply to the suits on the Original Side of the High Court and that such suits would continue to be
governed by the High Court Original Side Rules. In this case, the High Court granted an extension of
time to file written statement even though the period prescribed by the O. 8, R.1 (as amended by
2002 Amendment) had expired. It was contended that since the written statement had not been
filed within the time prescribed therein, by reason of the amended provisions of Order 8, R. 1, the
plaintiff-appellant had a vested right to have his suit decided ex- parte. But, the High Court declined
to do so and granted an extension of time.
The learned counsel for the appellant contended that the view taken by the High Court that the
proceedings on the Original Side of the High Court would be governed by the Original Side Rules
and not by the amended provisions of O. 8, R.1, is contrary to the legislative intendment; the High
Court (Original Side) Rules were framed under the delegated rule making power under Sec. 129 of
the CPC and they could not override the provisions of the amended O. 8, R.1, which is a part and
parcel of the substantive Statute itself, this is particularly so, when the intention of Parliament in
making the amendment is clear, namely, to shorten the time period of endlessly long and protracted
course of litigation and to discourage dishonest defendants from interminably seeking
adjournments. Rules framed by the High Court under the delegated rule making power conferred
by Sec. 129 of the CPC could not be treated as "a stand alone body of rules outside the CPC", as
erroneously done by the High Court in the impugned judgment.
Section 129 reads as under: Power of High Courts to make rules as to their original civil procedure.
Notwithstanding anything in this Code, any High Court not being the Court of a Judicial
Commissioner, may make such rules not inconsistent with the Letters Patent or order or other law
establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall
think fit, and nothing herein contained shall affect the validity of any such rules in force at the
commencement of this Code.
The learned counsel for the appellant strenuously urged that the power of the High Court to frame
rules governing the procedure on its Original Side is a delegated legislative power, and can in no
event override or be independent of the parent legislation, namely, the CPC.
The Apex Court observed:
(1) The historical developments as to the application of the CPC to the proceedings in the Chartered
High Courts are illuminating. The Legislature recognized the special role assigned to the Chartered
High Courts and exempted them from the application of several provisions of the Code in the
exercise of their ordinary or extra ordinary civil jurisdiction for the simple reason that those
jurisdictions were governed by the procedure prescribed by the rules made in exercise of the
powers of the Chartered High Courts under the Letters Patent.
(ii) Sec. 129 begins with a non obstante clause and seems to suggest something to the contrary. At
least as far as Chartered High Courts are concerned, Sec. 129 seems to invest them with the power
to make rules with regard to the regulation of their own procedure, which may be inconsistent with
the CPC itself, as long as such rules are consistent with the Letters Patent establishing the High
Courts. The section also ends with the words: "nothing herein contained shall affect the validity of
any such rules in force at the commencement of this Code."
(iii) The learned counsel for the respondent justifiably contends that the purpose of retaining Sec.
129 in the present form is exactly the purpose for which it was inserted, in the first place, in the CPC
of 1882 by amending Act No. XIII of 1895, namely, "to recognize the practical expediency of leaving
such High Courts some latitude in the direction of adapting the provisions of the ordinary law to
meet their requirements", and further, "it had been found by experience that these provisions were
not in all respects convenient in the case of original proceedings in those Courts". The amendment,
therefore, became necessary "to bring the Code into perfect harmony with the provisions of the
Letters Patent and to enable the High Courts referred to regulate the exercise of their original civil
jurisdiction accordingly."
(iv) It appears to us that this was the real reason why a distinction was drawn between the
proceedings in Original Jurisdiction before the Chartered High Courts and those in other Courts. For
historical reasons this distinction was maintained right from the time the Letters Patent was issued,
and has not been disturbed by the Code of Civil Procedure, 1908, despite the amendments made in
the CPC from 1976 to 2002. It was thought necessary that the inherent powers of the Court to make
appropriate orders, as may be necessary for the ends of justice or to prevent abuse of the process of
the Court was retained for the purpose of greater elasticity.
(v) To submit that a Letters Patent is a subordinate piece of legislation is to not understand the true
nature of Letters patent. A Letters Patent is the charter of the High Court. A Letters Patent is the
specific law under which a High Court derives its powers. Further it is settled law that between a
special law and a general law the special law will always prevail. A Letters Patent is a special law for
the concerned High Court. Civil Procedure Code is a general law applicable to all courts. It is well
settled law, that in the event of a conflict between a special law and a general law, the special law
must always prevail.
(vii) If there was any conflict between a Letters Patent and the Civil Procedure Code then the
provisions of Letters Patent would always prevail unless there was a specific exclusion. This is also
clear from Sec. 4, C.P.C. which provides that nothing in the Code shall limit or affect any special law.
As set out in Sec. 4, C.P.C., only a specific provision to the contrary can exclude the special law. The
specific provision would be a provision like Sec. 100-A.
The Apex Court held: Far from doing away with the Letters Patent, the amending Act of 2002 has
left unscathed the provisions of Sec. 129 and what follows therefrom. There is no merit in the
appeal and it is hereby dismissed.
DREAM.
BELIEVE.
DO.
REPEAT.

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