Module 01: Preliminary, institution of suits, bar to jurisdiction,

Maintainability

1. Define and explain ‘Res judicata’ and distinguish Res judicata

and Res

subjudice (15 marks) (June 2023)

Doctrine Of Res-Sub Judice And Res-Judicata

Section: 10 deals with the doctrine of res sub-judice and section-11

deals with the doctrine of res:judicata. Section -10 provides the rule
with regard to stay of suits where things are under consideration or
pending adjudication by a court. On the other hand section-11 provides
the rule relates to a matter already adjudicated. It bars the trial of a suit
or an issue in which the matter directly and substantially in issue has
been adjudicated upon in a former suit. Sections 10 and 11 are
mandatory.

Res sub-judice

Subjudice in latin means 'under judgment'. It denotes that a matter or

case is being considered by court or judge. When two or more cases
are filed between the same parties on the same subject matter, the
competent court has power to stay proceeding. However, the doctrine
of res-subjudice means stay of suit. This Code provides rules for the
civil court in respect of the doctrine of res subjudice.This rule applies
to trial of a suit not the institution thereof.

Conditions of Res sub-judice

This section can only be applied if the following condition are satisfied.
These are:

 Two suits: Previously Instituted and Subsequently Instituted.

 Matter in issue in subsequent suit: directly and substantially in

issue in previous suit.

 Both suits between same parties or their representatives.

 Previous suit must be pending in same or in any other court.

 The court dealing with previously instituted suit competent to

grant relief claimed in subsequent suit

 Parties litigating under the same titles in both the suit.

Example
Wife A filed a suit for separation of conjugal life and custody of
minor child against husband B. Subsequently husband B claimed
custody of minor child by filling another suit against wife B. The
second suit liable to stay under section 10 of CPC,1908.

When not apply

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

Purposes of Res sub-judice

The section -10 intends to protect a person from multiplicity of

proceedings and to avoid a conflict of decisions. It also protect the
litigant people from unnecessary harassment. It also aims to avert
(avoid) inconvenience to the parties and gives effect to the rule of res
judicata.

Purpose in short

 Avoid wasting Court Resources.

 Avoid Conflicting decisions.

 Avoid multiplicity of suit.

What is res-judicata?

Under section 11 of the Code of Civil procedure 1908 , provision has

been made regarding res-judicata. According to this, no court will try
any suit or any issue in the suit in which that issue has been decided
between that parties to the suit or any other parties under them for
whose rights the suit has already been filed in any court of competent
jurisdiction, heard and decided by that court or any point has been
raised in the subsequent suit which has already been heard and
decided by any court of competent jurisdiction.

It means that when any suit on certain issues has been heard by the
court for this parties, then the same parties cannot bring the suit on the
same points which have been already heard and decided by the same
or any other court prior to the court.

Thus the doctrine attaches importance to one decision for one case
and prohibits another. (Narayanam Chettiyar Vs Annamlle Chettiyar,
A.I.R. 1959, SC 275).

The main objective of this doctrine is to avoid multiplicity of suits.

Had thus doctrine not been there, there would been no end to
litigation and no decision would have been final. One individual could
have filed suit on the same point many times.

Broadly, there are three objectives of this doctrine:

a. end of litigation;

b. security against double suits;

c. to give finality to the decision (Gulam Abbas Vs State of Uttar

Pradesh, A.I.R. 1981 SC 2198).

In Satya Charan Vs Dev Rajan (A.I.R. 1962, SC 941) the Supreme

Court has decided that the doctrine of res-judicata is based on the
need of giving final shape to judicial decisions. According to this, any
case decided once cannot be reopened for decision.

This doctrine can be clarified by an example. A brings a suit against B

in the capacity of owner on the basis of contract which is rejected.
Then A again brings suit against B on the basis of same contract in
the capacity of agent. This was prohibits on the principle of owner on
the basis of contract which is rejected. Then A again brings suit
against B on the basis of same contract in the capacity of agent. This
was prohibited on the principle of res-judicata.

The essential elements of Res judicata

There are five elements of res-judicata or we can say that for the
applicability of this doctrine, five conditions are to be fulfilled:

a. in the subsequent suit the same issue must be involved directly

and substantially which was involved directly and actually and
constructively in the earlier suit. In other words, for applicability
of resjudicata, the issue involved in the subsequent suit must have
been involved actually and constructively in the earlier suit.

In R.P. Gupta Vs Shri Krishna Poddar (A.I.R. 1965, SC 316),

the supreme court has said that in the subsequent suit the issue
involved was not that which was involved in the earlier suit. Then,
there the doctrine of res judicata will not be applicable.

This can be classified by an example. A brought a suit against B

for ousting on the basis of patta which was decreed. But the
decree could not have been executed in time. Then A brought a
suit against B for ousting on the basis of title. The Supreme Court
did not consider it prohibitory on the basis of res-judicata (Ajit
Chopra Vs Sadhu Ram, A.I.R. 2000, SC 212).

In Sardar Bai Vs Mathari Bai (A.I.R. 2005, NOC 251, Madhya

Pradesh) is a quotable case on this point. In this case, there was a
issue of completeness of title due to adverse possession which
was involved directly and substantially the parties, in the earlier
 case. Again, the suit relating to title was brought. It was
considered prohibitory on the basis of doctrine of res judicata.

b. The second condition of the applicability of the doctrine of res

judicata ia that the same parties must be involved in the later suit
which were involved in the earlier suit or the later suit some of
the parties of earlier suits are involved. If the parties in the later
suit are different from those who were parties in the earlier suit,
the doctrine of res judicata will not apply.

Example: A filed a suit against B for rent. B argues that the

owner of campus is not A but C, then A fails to establish his
title. Then A files a suit against B and C for establishing his
title. It was not considered as prohibited because the parties
were different in the second suit. (Dwarka Nath Vs Ram
Chandra, 29, Calcutta 428)

c. The third condition of the applicability of the doctrine of res

judicata is that the parties have claimed having the same title in
the earlier and the later suit. If in the later suit, in the title
changes, the doctrine of res judicata will not apply.

Example: A brings a suit against B in the capacity of a heir of a

Mahant (deceased) for acquiring the property of a math. The suit
 is rejected because A could not prove himself as heir of B.
again, A brings a suit against B for acquiring the property of
math in the capacity of the manager of math. It was not
considered as prohibitory by the doctrine of res judicata because
the capacity of A has been different in both the cases.

d. The fourth condition of the applicability of the doctrine fo res

judicata is that the court which has decided the earlier case must
be competent to decide the later case also.

Example: A suit wsa filed in the court of munsiff for the

vocation of premises and recovery of rent due. Later on, a
second suit was filed in another court for declaration of title for
which the court of munsiff did not have jurisdiction. It was not
considered as prohibitory by the doctrine of res judicata.

e. The fifth condition of the applicability of the doctrine of res

judicata is the finality of the decision of the case. If all other
conditions are fulfilled, the doctrine of res judicata will apply.

In Badami Lal Vs Harsha Vardhan (A.I.R. 1994, Rajasthan 9), the

High Court has decide that the earlier case must have been decide on
the basis of giving the opportunity of hearing to both the parties, for
the applicability of the doctrine of res judicata. In other words, it can
be said that the earlier case should have been decided on the baiss of
merits of the case.

If any case is rejected under order 9 Rule 8 on the basis of error then
the doctrine of res judicata will not apply to that case because it is not
disposal of the case on the basis of its merits (Gujarat Electricity
Board, Baroda Vs Saurashta Chemicals, Porbandar, A.I.R. 2004,
Gujarat 83).

In State of Maharashtra Vs M/S National Construction

Company (A.I.R. 1996, Sc 2364), the Supreme Court has decided
that the doctrine of res judicata will apply in a particular case only
when;

i. the issues in the earlier case were also involved in the later case
actually and substantially;

ii. such issues have been decide finally;

iii. such finalization was done by a competent court; and

iv. the parties have been given the opportunity of hearing before
deciding the case.

Thus for applicability of the doctrine of res judicata, all the above
conditions must be fulfilled.
Applicability to Compromise Decree:

The doctrine res judicata does not apply to compromise decree

because in such case there is no adjudication of the rights of parties
(Messers AA Associates Vs Prem Goya, A.I.R. 2002 Delhi 142).

Similarly, in Upaharas Lethasam Vs Asibel Lingdol, (A.I.R. 1986,

Guwahati 55), the Guwahati High Court has decided that the doctrine
of res judicata does not apply to compromise decree and orders
because the compromise is simply an agreement made between the
parties and the court does not make any decision.

Applicability to Arbitration Proceedings:

The doctrine of res judicata applies to the decrees based on award

provided the proceedings have been competed by:

a. giving the opportunity of hearing to the parties;

b. on the basis of merits of the case; and

c. the case has been finally decided.

Applicability of Execution Proceedings:

According to seventh explanation of section 11of Civil Procedure

Code 1908, the doctrine of res judicata applies to execution
proceedings:
In Mohan Goyanka Vs Vinay Kumar Mukharjee (A.I.R. 1954, SC
65), the same view expressed by the Supreme court.

Difference between Res- judicata and res-subjudice

I. Res subjudice relates to matter pending judicial enquiry or trial

sub judice. Res-judicata relates to a matter already adjudicated or
matter in which decision is already there.

II. Res subjudice bars to the trial of a suit. Res-judicata, bars to file
a suit.

III. Section 10 deals with res-subjudice Section 11 deals with res-

judicata

In Brief

Introduction

The judiciary always refers to certain principles, doctrines, and

precedents to pronounce judgment in any suit. These doctrines play an
immense role to make the judiciary work efficiently and pace the speed
of delivering judgment. In our country, the litigation process is very
time-consuming and expensive due to the large number of cases filed
every day. Hence, there are two doctrines, i.e., res judicata and res sub
judice, under the Code of Civil Procedure, 1908 (CPC), which aim to
provide efficiency and speedy process during proceedings.

‘Res judicata’ is a Latin maxim that says the ‘matter has been decided.
This doctrine states that when a suit has been heard by the court on
similar facts and issues, a final judgment is passed. If the issue is no
longer appealable, then this doctrine prohibits continuing the
proceedings on the same grounds and same parties.

On the other hand, ‘res sub judice’ is also a Latin maxim that means
‘under the judgment’. When parties file two or more suits on the same
matter, then the competent court has the authority to hold the parallel
proceedings of the suit. The doctrine ordains a stay of suit to avoid
duplication and contrary orders.

Difference between res judicata and res sub judice

Meaning and Definition

Res judicata

Res means a subject matter, and judicata means adjudged. The doctrine
of res judicata is adopted from ‘res judicata pro veritate
accipitur’ which states that once the decision has been made, it must be
accepted as true and final. It developed from English common law. The
common law system was developed from the fundamental idea of
judicial uniformity. Res judicata was initially adopted from common
law into the Code of Civil Procedure, and later it was adopted into the
Indian legal system. Section 11 of the CPC deals with the provision of
res judicata. According to this Section, a court can not entertain any
suit which has been settled on similar facts and issues as those that were
directly or subsequently dealt with in a former suit. The proceedings
took place in a competent court under a similar title.

The doctrine, which is also known as claim preclusion, prohibits a party

from starting new legal actions against the same parties over the same
facts and grounds.Several times, a party initiates the proceedings again
just to harass the other party. Hence, to prevent the repentance of filing
a similar suit, this doctrine is applicable.

In Satyadhyan Ghosal and Others v. Sm. Deorajin Debi and Another

(1960), the Supreme Court explained that the doctrine of res judicata
emphasizes the final settlement of the matter. No party will be
permitted to raise the same issue in a subsequent suit or proceeding
between the same parties when a matter, whether on a question of fact
or law, has been resolved between two parties in a single proceeding
and the decision is final, either because no appeal was filed with a
higher court or because the appeal was rejected, or because no appeal
is viable.

In Daryao and Others v. The State Of U. P. and Others(1961), the

Supreme Court observed that the principle of res judicata, which states
that litigation must conclude, is a fundamental principle shared by all
courts and does not merely apply to records.
In Lal Chand (Dead) By L.Rs. & Ors v. Radha Kishan(1976), the
Supreme Court stated that once the final decision is made earlier,
judges consider it as the res judicata in the present suit that is filed
between the same parties.

The doctrine of res judicata is based on certain maxims, which are the
following:

1. Nemo debet lis vexari pro eadem causa:

This maxim states that ‘no person is tried twice in a similar kind of
suit’. It is applicable in both types of suits, civil and criminal, to put an
end to the litigation process. Article 20(2) of the Indian
Constitution also says that no person shall be prosecuted and punished
twice.

2. Interest republicae ut sit finis litium:

The meaning of the maxim is that there should be an end to litigation

since it is in the interests of the nation.

3. Re judicata pro veritate occipitur:

It means a judicial decision must be accepted as it is.

Res sub judice

The term ‘res’ means matter, and ‘sub judice’ means under
consideration. Hence, the doctrine means a matter which is still under
consideration. Section 10 of the CPC says that no court can initiate
such proceedings between the same parties and the same issues which
were directly or subsequently in question in the previous suit if the
previous suit is still pending in the competent court. The doctrine of res
sub judice aims to stay the proceedings when two or more cases are
filed in the same court between the same parties. The objective of the
doctrine is to avoid wasting the time in court and avoid contradictory
decisions in the same suit. It also protects the parties from unnecessary
court proceedings and harassment by other parties. The doctrine is
applicable to a trial of the suit, appeals, and revision. It does not prevent
a court from issuing temporary orders for the granting of an injunction
or a stay.

In Escorts Const. Equipment Ltd v. Action Const. Equipments Ltd

(1998), the Delhi High Court observed that to invoke Section 10 of the
Code, there must be a matter at issue and the parties are the same in a
former and subsequent suit; a former lawsuit that was filed in a court
with the jurisdiction to grant the desired relief, whether it was in the
same court or another.

In Indian Bank v. Maharashtra State Co-Operative Marketing

Federation (1998), the Supreme Court stated that the purpose of the
doctrine of res sub judice is to avoid contradictory rulings on the subject
at hand by preventing courts with jurisdiction from trying two parallel
matters at once.
In the case of Arumugha Udayar Rep. by Power v. Lakshmi (2005), the
Madras High Court stated that to invoke Section 10 of the Code, there
must be four essential conditions:

1. The matter at issue in the second lawsuit is also, significantly

and directly at issue in the first lawsuit;

2. The parties involved in the second lawsuit are the same as the
parties under whom they claimed to act on their behalf or any
of them;

3. The second lawsuit’s relief is admissible in the court where the

initial lawsuit was filed;

4. The previous suit must be pending in the competent court, or

any court situated in India, or the Supreme Court, or any court,
or in any court established or formed by the Central
Government outside of India.

Purpose

Res judicata

The doctrine of res judicata applies to all civil and criminal cases and
is based on the principles of justice, equity, and good conscience. The
main aim of the doctrine is to restrict the process of re-litigation. The
other purpose of the doctrine is as follows:
 1. It prevents the time and resources of the court from being
misused.

2. It provides a safeguard for the defendant from damage.

3. It prevents the conflict between the parties in a matter that has

been officially resolved by bringing a verdict to an end and
barring any future claims.

4. It prevents the confusion that might be caused by multiple

judgments in a single suit.

Res sub judice

The doctrine of res sub judice also aims to save the judiciary time from
unnecessary suits. Apart from this, there are a few more objectives of
the doctrine which are as follows:

1. It allows the plaintiff to file one suit for all the issues and facts
against the same defendant.

2. Avoid contradictory decisions on a similar matter in issue.

3. Stop the courts with concurrent jurisdiction from concurrently

hearing and making decisions on two parallel lawsuits
involving the same claim, same issue, and similar remedy.

4. Protect the defendant from paying compensation or damages

twice.
 5. Prevent unnecessary confusion.

Essentials

Res judicata

The essentials of res judicata are as follows:

1. There should be one former and one subsequent suit filed.

2. The matter is directly and substantially related to the

subsequent suit.

3. The parties who filed suit must be similar to the parties who
filed the former suit also.

4. The titles of both suits are also the same.

5. The suit must be filed in the competent jurisdiction.

6. The court must have previously heard and decided the issue
that is directly and substantially in question in the subsequent
suit.

Res sub judice

The essentials of res sub judice are as follows:

1. There must be two civil suits between the same parties.

2. The former suit is pending before the competent court for final
decision and the subsequent suit is brought.
 3. The subsequent suit is also filed under a similar title to the
former suit.

4. Any suit that is pending in a foreign court does not invoke

Section 10 of the Code.

5. If the subsequent application is filed before the Tahsildar and

the suit is pending before the court, then it will fall under the
scope of the doctrine.

6. The date of the plaint presentation is considered for the

institution of the suit, and the appeal is also included in the
suit.

7. The court must have the inherent power to stay the

proceedings.

8. If a decree is passed for violation of Section 10 will be null and

void.

9. The parties can waive their right under Section 10.

10. The court has the power to pass interim orders.

In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth
Hiralal (1961), the Supreme Court stated that Section 10’s
requirements must be followed, and the court has no discretion.

In Dr. Guru Prasad Mohanty and Ors. v. Bijoy Kumar Das (1984), the
Orissa High Court stated that the objective of Section 10 is to prohibit
courts with concurrent jurisdiction from hearing and ruling on two
parallel lawsuits involving the same claim, same issue, and identical
relief at the same time.

Exceptions

Res judicata

The doctrine of res judicata restricts the parties from re-filing the
litigation procedure, but there are certain circumstances when this
doctrine is not applicable.

1. When the decree and order have been obtained by committing

fraud and misrepresentation of the facts or issues.

2. When the judgment is not pronounced on the merits.

3. When the special leave petition was dismissed without making

a proclamation or determination of the judgment.

4. When the subsequent lawsuits have a different cause of action.

If a later lawsuit has a separate cause of action, the court cannot
dismiss it.

5. When the court did not have competent jurisdiction in the

former suit.

6. When there is a question of law.

7. When an interlocutory order had been passed in a former suit.

 8. If there is any amendment to an existing law that grants new
rights to the party then the doctrine will not apply.

9. When the suit was dismissed by default.

10. If the party does not raise a plea for res judicata.

Res sub judice

There are certain cases where the doctrine of res sub judice is not
applicable. These are as follows:

1. When the claims in each suit are unique from one another.

2. When there are both common and unique issues, then this rule
does not apply.

3. When there are different issues between the same parties.

4. All of the issues from the earlier suit don’t have to be raised in
the later litigation for Section 10 to be applicable.

Key differences between res judicata and res sub judice

Grounds of
S.R.No. Res judicata Res sub judice
difference

It means a matter is It applies to the pending

1. Meaning already decided and can suit. It bars parallel
not be heard again. Res proceedings. Res sub
 judicata prevents a second judice prevents parallel
trial of the formerly proceedings on the same
settled disputes. matter.

2. Provisions Section 11 of CPC Section 10 of CPC

Res judicata is applicable Res sub judice is

3. Applicability to the suits and applicable to the suit and
applications. appeals.

The suit had been decided

There must be two suits
by the competent
and one must have
court.The issue must be
already commenced.The
the same in subsequent
matter in issue is the
and former suits.The suit
same.The suit was filed in
4. Essentials must be filed between the
a competent court.The
same parties.The court
suit must be pending in
must have
court.The title of the suit
jurisdiction.The former
and the parties are the
and subsequent suits have
same.
the same title.
 Prohibit parallel
The end of the litigation
5. Aim proceedings between the
proceedings.
same parties.

Conclusion

The judiciary is overburdened due to some unnecessary and repeated

suits. To ensure every person gets justice and for the smooth working
of the judiciary, these doctrines must be implemented efficiently. It
saves lots of time for the judiciary as several disputes are pending for
the final decision, and it also protects the defendant’s rights. If there is
no use of the doctrine, then there is no end to the litigation process. Res
judicata bars the parties from filing the suit, whereas sub judice bars
the trial between the parties. In res judicata, the suit must be decided in
the competent court, but in res sub, the suit must be pending before the
competent court. Hence, to make the judiciary process speedy and
effective, the implementation of these doctrines is necessary.

2. State the effect of death, marriage, of insolvency of a party to a

civil suit. (10 marks) (June 2023)

Death, Marriage and Insolvency of parties

Order 22 deals with the creation, assignment or devolution of interest
during the pendency of suits. It also applies to appeals, but not to
execution proceedings. The provisions of Order 22 are exhaustive.
They should, however, be liberally construed to serve the end of justice.

Such creation, assignment or devolution may arise in the following

circumstances:

i. Death of a party (rule 1 to 6, 10A)

ii. Marriage of a party (rule 7)

iii. Insolvency of a party (rule 8) or;

iv. Assignment of interest (rule 10)

(I) Death Of Party: Rules 1-6

Order 22, Rules 1-6,9 and 10-A relate to death of a party, i.e. plaintiff
or defendant and consequences of such death. Where a party to a suit
dies, the first question which requires consideration is: Whether the
right to sue survives? If the right does not survives, the matter is over.
But if it survives, the suit will not abate.
Let us consider the effect of death of parties to suit.

a. Death of plaintiff
 Where the sole plaintiff dies, the suit will not abate, if the right to
sue survives. It can be continued by the heirs and legal
representatives of the deceased plaintiff. If the right to sue does
not survive, the suit will come to an end.

Where one of the several plaintiff dies and the right to sue
survives to the surviving plaintiff or plaintiffs, the court will make
an entry to that effect and proceed with the suit by surviving
plaintiff or plaintiffs.

Where plaintiff dies after hearing and before pronouncement of

judgment, the suit shall not abate. The same principle will apply
in case of death of the plaintiff after passing of preliminary decree
and before final decree.

Once the final decree is passed, the rights of the parties are
adjudicated and the question is only of execution of the decree.
The provisions relating to abatement do not apply to execution
proceedings; they, however, apply to appeals.

b. Death of defendant

Where the sole defendant dies, the suit shall not abate if the right
to sue survives. It can be continued against the heirs and legal
representatives of the deceased defendant.
 Where one of the several defendants dies and the right to sue
survives against the surviving defendant or defendants, or where
the sole surviving defendant dies and the right to sue survives, the
court, on an application by the legal representative of the
deceased defendant, will make him a party and proceed with the
suit.

When no such application is made within the period of limitation

(ninety days), the suit shall abate as against the deceased
defendant.

Where the defendant dies after hearing and before the

pronouncement of judgment, the suit shall not abate. The suit also
does not abate on account of an unnecessary party.

c. Right to sue

As already noted, when a party to a suit dies, the first question

to be decided a weather the right to sue survives or not. If
doesn't, there is an end to the suit. If it does, the suit will not
abate. It can be continued by or against the heirs and legal
representative of the deceased party.

The expression right to sue has not been defined in the Code,
but it may be interpreted to mean right to seek to relief. In other
words, right to sue survives if the cause of action survives or
continues.

The general rule is that all rights of action all demands

whatsoever, existing in favour of or against a person at the time
of his death, survive to or against his representatives. But in case
of a personal actions, i.e. actions where the relief sought
personal to the deceased or the rights intimately connected with
the individuality of the deceased, the right to sue will not
survive to or against his representatives. In these case, the
maxim action personalis moritur cum persona (a personal action
dies with the person) applies.

This principle is found in Section 37 of the Indian Contract Act,

1872 and Section 306 of the Indian Succession Act, 1925.

Thus, it has been held that the right to sue survives in a suit by a
landlord against his tenant for the possession of the rented house
after the death of the landlord; or in a suit for accounts against a
trustee where the trustee died; or in a suit for partition of
ancestral property by a coparcener after his death; or in a suit for
pre-emption. On the other hand, it has been held that the right to
sue does not survive in the following cases; in a suit for a
damages for assault, personal injuries or for malicious
prosecution; or for defamation; or for breach of contract of
 betrothal; or for dissolution of marriage; or in a suit for specific
performance of a contract involving exercise of special skill like
a promise to paint a picture, or to sing a song.

d. Applicability to other proceedings : Rules 11-12

The maxim actio personalis mortiur cum persona (a personal

action dies with the person) does not apply only to suits in those
cases where the plaintiff dies during the pendency of a suit but
also to cases where the plaintiff dies during the pendency of
appeal or appeals. This is on the footing that by a reason of the
dismissal of the suit by the trial court or the first appellate court,
as the case may be, the plaintiff stands relegated to his original
position before the trail court.

e. Duty of pleader: Rule 10-A

Rule 10-A as inserted by the Amendment Act of 1976 imposes an

obligation on the pleader of the parties to communicate to the
court the fact to the death of the party represented by him.

As a general rule, on the death of the client , his contract with the
pleader comes to an end and so the authority of the pleader to act
on behalf of his client expires. Such a situation, however, creates
many complications. A provision is, therefore, made which
 imposes a duty on the part of the pleader to inform the court of
the death of his client. It also enacts that for the said purpose the
contract between the pleader and the party shall be deemed to
subsist.

f. Duty of Court: Rule 10-A

Rule 10-A also casts duty on the court to give notice of death of
party to the other party. The duty is statutory and must be
observed which is clear from the words the court shall thereupon
give notice of such death to the other party.

g. Effect of abatement: Rule 9

Where the suit abates or is dismissed due to failure of the

plaintiff to bring the legal representative or representatives of
the deceased party, no fresh suit will lie on the same cause of
action. The only remedy available to the plaintiff or the person
claiming to be the legal representative is to get the abetment set
aside.
Such abetment or dismissal of the suit, however, does not
operate as res judicata.

h. General Principles
With regard to the death of a party to a proceeding, from
the various judgments of the Supreme Court, the following
general principles emerge:

1. If an application is not made within the time allowed by law

to bring the legal representatives of the deceased defendant
is concerned. Such abatement is automatic and no specific
order is envisaged by the Code.

2. When once a suit or appeal is abated, a specific order setting

aside such abatement is necessary.

3. Where in a proceeding, a party dies and one of the legal

representatives is already on record in another capacity,
what is necessary is that he should be described also an heir
and legal representative of the deceased party. Failure to
describe him as such would not, however abate proceeding.

4. If there are two or more heirs and legal representatives of

the deceased party and one or more have been brought on
record within a time, a suit or appeal will not abate on the
ground that all the legal representatives have not been
brought on record in time.

5. If the legal representatives of the deceased plaintiff or the

deceased defendant are brought on record within the
 prescribed period at one stage of the suit, it will for the
benefit of the subsequent stage of the suit.

6. Where a plaintiff or an appellant after diligent and bona fide

inquiry ascertains who the legal representatives of deceased
defendant or respondent are, and brings them on record
within the prescribed period, there is no abatement of the
suit or appeal if the impleaded legal representatives
sufficiently represent the estate of the deceased. The decree
passed by the court in a such case will bind not only those
impleaded but the entire estate too.

7. The above rule however does not apply where the

impleading of a person as a legal representative is not found
too be bona fide or where there has been fraud or collusion
between the creditor and heir impleaded or there are other
circumstances which indicate that there has not been a fair
or real trial.

8. The doctrine of abatement applies to an appeal also.

9. No suit can be filled against a dead person. But if a suit is

filled against a dead man without a knowledge that he is
dead, it is non est. On an application by the plaintiff, the
court may permit to implead the right defendant in the place
of the deceased defendant. The court's satisfaction breaths
life into the suit.
10. Legal representatives of the deceased are entitled to
take all the contentions available to the deceased. But if they
intend to take personal or individual defences, they must get
themselves impleaded in their personal capacity.

11. On the death of the plaintiff, whether or not the

suit/appeal abates depends upon whether the suit/appeal is
founded entirely on torts or on contract.

12. No decree can be passed in favour of or against a dead

person. But such a decree is not necessarily a nullity. In a
certain circumstances, it is a permissible for the court to
reopen the proceedings or to remand the case after hearing
the parties likely to be affected thereby.

13. A suit or appeal does not abate on account of the death

of an unnecessary, non-material or pro forma defendant or
respondent.

14. A suit filed in a representative capacity does not abate

on the death of one of the plaintiff's nor a suit filed by a
karta of a Hindu undivided family abates on his death and
the succeeding karta can continue the proceedings.

15. Neither a suit nor an appeal abates where any party to

a suit or an appeal dies between the conclusion of hearing
and the pronouncement of the judgment.
16. If the parties proceed with the matter without raising
any objection regarding abatement of suit or appeal, no
objection can be allowed at a later stage.

17. Where no sufficient cause for condonation of delay for

setting aside an abatement is made out by the applicant, the
suit or appeal requires to be dismissed. A strong case on
merits is not a ground for condonation for delay.

18. Consideration for condonation for delay under Sec.5

of the Limitation Act and for bringing heirs on record for
setting aside abatement under Order 22 are distinct and
different.

19. The expression sufficient cause should be constructed

liberally to advance substantial justice. A strict and pedantic
approach should not be taken by the court.

20. A mere excuse about the plaintiff not knowing of the

death of the opposite party is not sufficient. He has to state
reasons, which, according to him, led to his not knowing of
the death of the defendant within a reasonable time and
satisfy the court about it.

21. Where a suit abates or dismissed for the non-

substitution of the legal representative or representatives of
the deceased party, no fresh suit can be filed on the same
 cause of action. However, the cause of action abated suit
may be invoked as a defence in a subsequent suit.

22. The court has no inherent power under Section 151 of

the Code to implead legal representatives of deceased
respondent if the suit had abated on account of the appellate
not taking appropriate steps within a time to bring the legal
representatives of the deceased party on record.

23. When a suit or appeal abates, a very valuable right

accrues to the other party and such a right cannot be ignored
or interfered with lightly. In the name of doing substantial
justice to one party, no injustice should be done to the other
party.

24. Laches or negligence furnish no good grounds for

setting aside abatement. A party guilty of negligence must
bear the consequences and must suffer. However, if there is
a sight negligence or minor laches which is not intentional
in a not making an application for setting aside abatement
can be granted for doing substantial justice. The rural
background of the parties can also be taken into account for
this purpose.

25. Where a joint and indivisible decree is passed by the

court below in favour of two or more plaintiffs and one of
them dies and the defendant fails to bring the heirs and the
 legal representatives of the deceased plaintiff on record in
time, the appeal against the other respondents also abates.

26. In cross-appeal arising from the same decree where

parties to a suit adopt rival positions, on the death of the
party if his legal representatives are impleaded in one appal
it will not be enure for the benefit of cross appeal and the
same would abate.

27. If an appeal as well as cross-objections in the appeal

are before the court and respondent dies, substitution of his
legal representatives in the cross-objections, being part of
the same record, would enure for the benefit of the appeal
and the failure of the appellant to implead the legal
representatives of the deceased respondent would not have
the effect of abating the appeal but not vice versa.

28. Though sufficient cause cannot be constructed

liberally merely because the defaulting party is the
Government, yet delay in official business requires a public
justice approach. Certain amount of the latitude within
reasonable limits is permissible having regard to impersonal
bureaucratic set-up involving red-tapism.

29. An order refusing to set aside abetment is not a decree

within the meaning of Section 2(2). The order, however, has
been made appealable. But neither second appeal nor
 Letters Patent Appeal is maintainable against such an order.

i. Nature of inquiry

A personal inquiry dies with the death of the person (acito

personalis moritur cum persona.) This doctrine, however,
operates in a limited class of actions ex delicto, discussed above.

A sues B for divorce. A dies. The cause of action does not

survive to his representatives.

See also Melepurath v. Evelyn Sequeria 1986 SCC 118 AIR

1986
In the other actions, where the right to sue survives in spite of
the death of the person, the suit does not abate. Hence, whenever
a party to suit dies, the first question to be decided is as to
whether the right to sue survives or not. If the right is held to be
a personal right which extinguishes with the death of the person
concerned and does not devolve on the legal representatives,
there is an end to the suit. But if the right to sue survives against
the legal representatives of the plaintiff, the suit can continue.

In M.Veerappa v. Evelyn Sequeria, the Supreme Court rightly

stated:
If the entire suit claim is founded on torts the suit would
 undoubtedly abate. If the action is founded partly on torts and
partly on contract then such part of the claim as founded entirely
on contract then the suit has to proceed to trail in its entirety and
be adjudicated upon.

In Melepurath Sankunni v. Thekittil Geopalankutty, the

Supreme Court held that where a suit for defamation is
dismissed and the plaintiff files an appeal, the plaintiff-appellant
seeks to enforce his right to sue for damages against the
defendant. The right to sue, therefore, does not survive on the
death of the plaintiff. But where such suit is decreed, even on
the death of the plaintiff, the legal representatives are entitled to
continue the appeal since the question relates to benefit or
determinant to the estate of the deceased. In such case, the cause
of action merges with the decree.

j. Interpretation

Provisions of Order 22 CPC are procedural and not penal in

nature. They are designated to advance justice. Substantive rights
of the parties cannot be defeated by strict adherence and rigid
interpretation. On sufficient cause being shown, delay in bringing
legal representatives of the deceased (plaintiff or defendant) can
be brought by conditioning delay or setting aside abatement.
k. Suit against dead person

No suit can be filled against a dead person. Such a suit is non est
and has no legal effect. Likewise, a decree passed against a dead
man is a nullity. But where a suit is filled against a dead person
by the plaintiff without knowledge of such death, on the
application by the plaintiff, the court may permit the legal
representatives of the defendant to be brought on record. On
such impleadment, the suit shall be deemed to have been
instituted on the day the plaint was presented. The court's
satisfaction breathes life into the suit.

l. Procedure where there is no legal representative

Rule 4-A has been added by the Amendment Act of 1976. It lays
down the procedure where there is no legal representative of a
party who has died during the pendency of the suit or a legal
representative is not found. The underlying object of this
provision is that the other side should not suffer because of the
absence of the legal representative of the deceased party.

m. Partial abatement

An abatement of suit may be total or partial. If the entire suit is

founded on tort or on personal action, the suit would debate as a
whole on the death of the plaintiff or the defendant, as the case
 may be. But if the action is founded partly on tort and partly on
contract, the claim relating to tort will abate whereas the claim
relating to contract will survive.

Thus, if A files a suit against B, a trustee under Section 92 of the

Code for his removal as also for settlement of scheme and B
dies during the pendency of the suit; the suit will abate as regard
his removal, but it can be continued as regard settlement of
scheme.

(II) Marriage Of The Party : Rule-7

The marriage of a female plaintiff or defendant shall not cause the suit
to abate. Where the decree is passed against a female defendant it may
be executed against her alone. A decree in a favour of or against a
wife, where the husband is legally entitled to the subject-matter of the
decree or is liable for the debt of his wife may, with the permission of
the court, be executed by or against him.

(III) Insolvency Of Party: Rule 8

a. Insolvency of plaintiff
 The insolvency of plaintiff shall not cause the suit to abate and
can be continued by his Assignee or Receiver for the benefit of
his creditors. But if the Assignee or Receiver declines to
continue the suit, or to give security for costs, as ordered by the
court, the court may, on the application of the defendant,
dismiss the suit on the ground of the plaintiff's insolvency. The
court may also award the defendant costs for defending the suit,
to be paid as a debt against the plaintiff's estate.

b. Insolvency of defendant

Rule 8 does not apply where the defendant becomes an insolvent.

In such cases, the court may stay the suit or proceeding pending
against the defendant who has been adjudged an insolvent. Rule
10 will also apply in those cases and a receiver will become a
representative of the defendant debtor.

(IV) Devolution Of Interest : Rule 10

Rule to enacts that if, during the pending of the suit, any interest in the
suit has passed from the plaintiff or defendant to any other person, the
suit may with the leave of the court be continued by or against the
person in who favour such interest is created.
Rule 10 is such is based on a principle that the trial of a suit cannot be
brought to an end merely because the interest of a party in the subject-
matter of the suit has devolved upon another during the pendency of
the suit, but the suit may be continued against the person acquiring
interest with the leave of the court.

3. Short note: Necessary party (05 marks) (June 2023)

Necessary and Proper Parties under CPC

Introduction:-

Under Order 1 of CPC, provisions regarding the necessary and

proper parties are provided Order 1 provide provisions about the party
to the suit. In this Order provisions are provided regarding the joining
of the parties as a plaintiff and defendants, representative suit, non-
joinder, and misjoinder, suit in name of the wrong plaintiff, the
appearance of one of several plaintiffs or defendant for others,
objection as to non- joinder or misjoinder, etc.

Necessary and proper party are the part of this order. It also provides
the provisions regarding the necessary and proper parties. There are
some distinctions between the necessary party and proper party, which
are discussed here.
There is essential distinction between 'Necessary Party' and 'Proper
Party'. A 'Necessary Party' is one whose presence is indispensable or
against whom relief is sought and without whom no effective order can
be passed. A 'Proper Party is one in whose absence an effective order
can be passed but whose presence is necessary for complete and final
decision on question involved in proceedings.

Order I, rule 9 of the Code of Civil Procedure, 1908 reads: No suit shall
be defeated by reason of the mis-joinder or non-joinder 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.

Therefore, general rule is that no suit can be decided without necessary

parties to it. However, rule 10 of Order I of the Code of Civil Procedure,
1908, provides for substitution or addition of parties to suit on either of
the following two grounds:

(i) He ought to have been joined as plaintiff or defendant and is

not so joined; or

(ii) without his presence, the question/issue involved in the suit

cannot be completely decided.

Distinction between necessary and proper party:-

There are some distinctions between the necessary party and proper
party, which are as follows:-

1. Necessary party is one whose presence is indispensable to the

constitution of the suit, whereas, in case of a proper party, it is not so.

2. A necessary party is without whom no effective order can be

passed, whereas, A proper party is one, in whose absence an effective
order can be passed.

However, like Necessary party, the presence of a proper party is

also necessary for complete and final decisions on the question
involved in the preceding. His presence, however, enables the Court to
adjudicate more “effectively and completely”.

In case of Kasturi versus Iyyamperumal, AIR 2005 SC

2813 the two test have been provided for determining the question
whether a particular party is a necessary party to the proceeding OR
not:-

1. There must be right to some relief against such party in respect of

the matter involved in the proceeding in question; and

2. It should not be possible to pass an effective degree in the absence

of such a party.

There are some example of the necessary party and proper party:-
Necessary parties:-

 In a suit for partition, all sharers are necessary party,

 In a suit for the declaration to set aside public auction, purchasor

of property in a public auction is a necessary party,

 In an action against selection and appointment by an authority,

candidates who are selected and appointed are directly affected
and, therefore, they are necessary parties.

Proper parties:-

 In a suit for possession, by a landlord against his tenant, a sub-

tenant is only a proper party,

 In a suit for partition, by a son against their father, grandsons are

proper parties to the suit,

 In a land acquisition proceedings, the local authority for whose

benefit land in sought to be acquired by the Government is a
proper party.

It may, however, be noted that where several persons are involved in a

suit, it is not always necessary that all of them should be joined as a
plaintiff or as a defendant. Rule 8 of order 1 applies to such suits and it
is sufficient if some of them are joined as defendants or plaintiffs, as
the case may be.
Conclusion

At last, we can say that, for determining a party, whether, it is a

necessary or proper party to the suit, then, first of all, we should see
that whose presence is indispensable for the constitution of the suit or
whose is not, second, we can say that without whom can, an effective
order, be passed or not, it is a test for determining a party whether it is
a necessary or proper party. There is also a common point for these two
parties, that is, the presence of both the party is necessary for complete
and final decision on the questions involved in the proceedings, it was
held in Vidur Impex and Traders(P) Limited versus Tosh
Apartments (P) Limited, (2012) 8 SCC 384,

4. Critically examine the doctrine of ‘res judicata’. What is a

former suit?

(15 marks) (January 2023) Already explained

Section 11 of the CPC

Section 11 of the CPC propounds upon the doctrine of Res Judicata. It

reads as follows:
“No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a
former suit between the same parties, or between parties under whom
they or any of them claim, litigating under the same title, in a Court
competent to try such subsequent suit or the suit in which such issue
has been subsequently raised, and has been heard and finally decided
by such Court”.

Explanation 1 of Section 11 clears the air around the meaning of

‘former suit’ as used in Section 11. Here, ‘former suits’ refer to those
suits which have been decided before the suit in question irrespective
of whether it was instituted prior thereto.

Explanation 2 talks about the determination of the competence of a

court.

Explanation 3, again, deals with the matter of former suit and states that
the former suit must be alleged by one party and denied by the other.

Explanation 4 talks about the subject matter and states that where any
matter has already been made a ground in the former suit, such a matter
can be said to be a matter in the former suit.

Explanation 5 states that relief claimed and not granted is deemed to

have been rejected/refused.
Explanation 6 states that where a person initiates a proceeding
pertaining to a public right, all such persons who have interest in the
said right would be deemed to claim under that person who initiated the
litigation.

Explanation 7 elucidates upon the applicability of the doctrine of Res

Judicata on the execution of a decree.

Explanation 8 states that where a former court becomes incompetent to

try a subsequent suit due to incompetency to try it due to limitation
pertaining to its jurisdiction, the doctrine of Res judicata will be
applied.

5. Every suit shall be instituted in the court of the lowest grade

competent to try it. Comment (15 marks) (January 2023)

Exercise of Jurisdiction by Civil Court, Provision under Civil

Procedure Code 1908

Jurisdiction of Civil Court & Place Of Suing

Ubi Jus Ibi Remedium - "Where there is a right, there is a

remedy"
The fundamental principle of English Law that wherever there is a
right, there is a remedy, has been adopted by the Indian legal system.
It means, whenever the rights of a person is infringed or curtailed or
the person is stopped by anyone in enjoying the rights so guaranteed
to him, there must be some judicial forum having authority to
adjudicate on the matter and the rights so guaranteed should be
restored or compensated as per the case.

To get the rights restored or claiming compensation or damage

sustained, person has to approach the appropriate forum, which has
the authority to adjudicate on the matter and award the relief so
sought. So, the forum must have jurisdiction to deal with that matter.

Jurisdiction generally means the power or authority of the court of

law to hear and determine a cause or a matter.In other words,
jurisdiction is meant the authority which a court has to decide matter
that are litigated before it or to take cognizance of matters presented
in a formal way for its decision.

The extent of jurisdiction will be determined with reference to the

subject-matter, pecuniary value and the local limits. So, while the
question of jurisdiction of a court is determined, the nature of the
case, the pecuniary value of the suit, and the territorial limitation of
the court need to be taken into consideration.
Not only that, there may be a situation wherein the forum approached
may have competency to deal with the subject-matter, the suit is
falling well within the pecuniary limitation and within the local limits
assigned with that court as well, but if the court is not competent to
grant the relief sought then also the court cannot be considered as the
court having jurisdiction as observed in Official Trustee V. Sachindra
Nath, AIR 1969 SC 823; the supreme court observed:

“That before a court can be held to have jurisdiction to decide a

particular matter it must not only have jurisdiction to try the suit
brought but must also have the authority to pass the order sought
for.”

Jurisdiction of A Civil Court:Sec-9

The Courts shall (subject to the provisions herein contained) have

jurisdiction to try all suits of a civil nature excepting suits of which
their cognizance is either expressly or impliedly barred.

[Explanation I].- A suit in which the right to property or to an office is

contested is a suit of a civil nature, notwithstanding that such right
may depend entirely on the decision of questions as to religious rites
or ceremonies.

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

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

As mentioned under sec-9 of the Code, the civil courts have

jurisdiction to deal with all matters provided it is a matter of civil
nature and it is not expressly or impliedly barred.

The word civil is not defined in the Code, however as per dictionary
meaning it pertains to the private rights and remedies as distinguished
from criminal and political. The word nature indicates the
fundamental quality of a thing or person, its identity or the essential
character. Hence, the suit of civil nature may be understood as a suit
in which the fundamental question for determination, the matters in
controversy primarily relating to the private rights and obligations,
not to be related to political or religious rights and obligations; and if
it is so the civil courts have the jurisdiction provided it is not
expressly or impliedly barred.

The concept of jurisdiction under section 9 was explained by

Supreme Court in Most Rev. P.M.A. Metropolitan V. Moran Mar
Marthoma, AIR 1995 SC 2001, the Court stated:
1. Phraseology used in the section is both positive and negative,
2. The earlier part opens the door widely and latter debars the entry of
those which are expressly or impliedly barred.
3. The two explanation, one from the inception and the second added
in 1976 reflects the legislative intentions.
4. That those religious matters in which rights of the property or the
office is involved irrespective of the fact whether any fee is attached
to the office or not is a matter of civil nature and the civil court is
competent to try such suit.
5. Each word and expression casts an obligation on the court to
exercise jurisdiction for enforcement of rights.
6. The word ‘shall’ makes it mandatory.
7. No Court can refuse to entertain a suit if it is of the description
mentioned in the section.

However, the court cannot try any suit if its cognizance is either
expressly or impliedly barred. A Suit is said to be expressly barred if
it is barred by any enactment for the time being in force. It is open to
the legislature to bar the jurisdiction of civil court with respect to a
particular class of suit keeping itself within the ambit of power
conferred on it by the Constitution of India.

The development of the tribunal has taken away the jurisdiction of the
civil court with respect to the subject matter allotted to that tribunal
on the first stage, however if any question of law so raised, or any
provision of the act which has so created the tribunal that can be
looked into by the civil court. Thus, matters falling within the
exclusive jurisdiction of the Revenue Courts or under the Code of
Criminal Procedure or matters dealt with by special tribunals under
the relevant statutes, e.g. by Industrial Tribunal, Cooperative
Tribunal, Income Tax Tribunal, Motor Accident Claims Tribunal,
etc., are expressly barred from the cognizance of the Civil Courts.

A suit is said to be impliedly barred when it is barred by the general

principle of law. In fact, certain suits, though of a civil nature, are
barred from the cognizance of a civil court on the ground of public
policy. The principle underlying is that a court ought not to
countenance matters which are injurious to and against the public
weal. Thus, no suit shall lie for recovery of costs incurred in a
criminal prosecution or for enforcement of a right upon a contract hit
by Section 23 of the Indian Contract Act, 1872; or against any judge
for acts done in the course of his duties, etc.

Kinds of Jurisdiction and Place of Suing: Sec-15 To Sec-20

There are basically three kinds of jurisdictions on the basis of which

the place of suing may be determined. These are

1. Pecuniary Jurisdiction
2. Territorial Jurisdictions, and
3. Subject Matter Jurisdictions

If the matter put forth by the litigant for adjudication in front of the
court, and the court have all these (pecuniary, territorial and Subject-
Matter) jurisdiction, then only that court can try the matters so
brought by the litigants. In case, the court does not have any of the
above mentioned jurisdiction and still try the suit, it will be either
termed as irregular exercise of jurisdiction or lack of jurisdiction
which may turn the decision void or voidable depending upon the
situations. The concept of Irregular Exercise of Jurisdiction and Lack
of Jurisdiction will be discussed separately at the end.

Pecuniary Jurisdiction: Sec-15

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

competent to try it.

The word competent to try indicate the competency of the court with
respect to the pecuniary jurisdiction. It means, the courts of lowest
grade who has the jurisdiction with respect to pecuniary value shall
try the suit at first.

Now, the biggest question is, who will determine the valuation of the
suit for the purpose of determining the pecuniary jurisdiction of the
court. In general, it is the valuation done by the plaintiff is considered
for the purpose of determining the pecuniary jurisdiction of the court,
unless the court from the very face of the suit find it incorrect. So, if
the court finds that the valuation done by the plaintiff is not correct,
that is either undervalued or overvalued, the court will do the
valuation and direct the party to approach the appropriate forum.
So, prima facie, it is the plaintiff’s valuation in the plaint that
determines the jurisdiction of the court and not the amount for which
ultimately decree may be passed. Thus, if the pecuniary jurisdiction of
the court of lowest grade is, say, Rs. 10,000/- and the plaintiff filed a
suit for accounts wherein the plaintiff valuation of the suit is well
within the pecuniary jurisdiction of the court but court latter finds on
taking the accounts that Rs. 15,000/- are due, the court is not deprived
of its jurisdiction to pass a decree for that amount.

Usually, a court will accept a valuation of the plaintiff in the plaint

and proceed to decide the matter on merits on that basis, however,
that does not mean that plaintiff in all cases are at liberty to assign any
arbitrary value to the suit, and to choose the court in which he wants
to file the suit.

If it appears to the court that the valuation is falsely made in the plaint
for the purpose of avoiding the jurisdiction of the proper court, the
court may require the plaintiff to prove that the valuation are proper.

Next important question is the status of decision given by the court

who does not have the pecuniary jurisdiction in the matter. That is,
what if the Court proceeded with the matter and later come to know
that it did not have the pecuniary jurisdiction. (The matter will be
dealt under heading – irregular exercise of jurisdiction).

Territorial Jurisdiction: Sec- 16 To Sec -20

Immovable Property: Sec- 16-18
Sections 16: Suits to be instituted where subject-matter situate Subject
to the pecuniary or other limitations prescribed by any law, suits-
(a) for the recovery of immovable property with or without rent or
profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or
charge upon immovable property,
(d) for the determination of any other right to or interest in immovable
property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or
attachment, shall be instituted in the Court within the local limits of
whose jurisdiction the property is situate :

Provided that a suit to obtain relief respecting, or compensation for

wrong to, immovable property held by or on behalf of the defendant,
may where the relief sought can be entirely obtained through his
personal obedience be instituted either in the Court within the local
limits of whose jurisdiction the property is situate, or in the Court
within the local limits of whose jurisdiction the defendant actually
and voluntarily resides, or carries on business, or personally works for
gain.

Explanation - In this section “property” means property situate in

India.

Section 17: Suits for immovable property situate within jurisdiction

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

Provided that, in respect of the value of the subject matter of the suit,
the entire claim is cognizable by such Court.

Section 18: Place of institution of suit where local limits of

jurisdiction of Courts are uncertain
(1) Where it is alleged to be uncertain within the local limits of the
jurisdiction of which of two or more Courts any immovable property
is situate, any one of those Courts may, if satisfied that there is ground
for the alleged uncertainty, record a statement to that effect and
thereupon proceed to entertain and dispose of any suit relating to that
property, and its decree in the suit shall have the same effect as if the
property were situate within the local limits of its jurisdiction:
Provided that the suit is one with respect to which the Court is
competent as regards the nature and value of the suit to exercise
jurisdiction.
(2) Where a statement has not been recorded under sub-section (1),
and objection is taken before an Appellate or Revisional Court that a
decree or order in a suit relating to such property was made by a
Court not having jurisdiction where the property is situate, the
Appellate or Revisional Court shall not allow the objection unless in
its opinion there was, at the time of the institution of the suit, no
reasonable ground for uncertainty as to the Court having jurisdiction
with respect thereto and there has been a consequent failure of justice.

Movable Property – Section 19

Section 19: Suits for compensation for wrongs to person or

movables

Where a suit is for compensation for wrong done to the person or to

movable property, if the wrong was done within the local limits of the
jurisdiction of one Court and the defendant resides, or carries on
business, or personally works for gain, within the local limits of the
jurisdiction of another Court, the suit may be instituted at the option
of the plaintiff in either of the said Courts.

Illustrations:-
(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in
Calcutta or in Delhi.

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

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

Other Suits: Section 20

Section 20: Other suits to be instituted where defendants reside or

cause of action arises
Subject to the limitations aforesaid, every suit shall be instituted in
Court within the local limits of whose jurisdiction-

(a) 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

(b) 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, provided 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 work for gain, as
aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

Explanation-A corporation shall be deemed to carry on business at its

sole or principal office in India or, in respect of any cause of action
arising at any place where it has also a subordinate office, at such
place.

Illustrations:-
(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by
his agent in Calcutta, buys goods of A and requests A to deliver them
to the East Indian Railway Company. A delivers the goods
accordingly in Calcutta. A may sue B for the price of the goods either
in Calcutta, where the cause of action has arisen or in Delhi, where B
carries on business.

(b) A resides at Simla, B at Calcutta and C at Delhi A, B and C being

together at Benaras, B and C make a joint promissory note payable on
demand, and deliver it to A. A may sue B and C at Benaras, where the
cause of action arose. He may also sue them at Calcutta, where B
resides, or at Delhi, where C resides; but in each of these cases, if the
non-resident defendant object, the suit cannot proceed without the
leave of the Court.

So, when a suit is related to immovable property, the court within

whose local jurisdiction property is situated have the jurisdiction to
try the matter. In case when a part of the property is situated in the
local limit of the other courts as well, I mean when the property is
situated in more than one territorial limits of the courts than in that
case the courts in whose territorial limit any portion of the property is
situated have the jurisdiction and in such situation it is the plaintiff
who will decide which court to approach. Where it is not possible to
say with certainty that the property is situated within the jurisdiction
of the one or the other of several courts, in such case one of these
several courts, if it is satisfied that there is such uncertainty, may after
recording a statement to that effect proceed to entertain and dispose of
the suit.

When suit is related to moveable property, as we know moveable

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

A suit for compensation for wrong (tort) to a person may be instituted

at the option of the plaintiff either where such wrong is committed, or
where defendant resides, carries on business or personally works for
gain.

Section 20 provides for all other cases not covered under any of the
foregoing rules.

Jurisdiction As To Subject-Matter
Different courts have been empowered to decide different types of
suits. Certain courts have no jurisdiction to entertain certain suits. For
examples, suits for testamentary succession, divorce cases, probate
proceedings, insolvency matters, etc. cannot be entertained by a Court
of Civil Judge (Junior Division). This is called jurisdiction as to
subject matter.

I mean, every courts have been allotted the subject over which the
court can entertain the matter, and the subject which is not within the
preview of the court, that court cannot deal with that matters at all.

In case, court took up the matter which is not been allotted to it, that is
the matter is beyond the subject matter competency, what will be the
status of the decision given by the court in such situations.

Objection As To Jurisdiction: Section 21

Section 21: Objections to jurisdiction

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

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

(2) No objection as to the competence of a Court with reference to the

pecuniary limits of its jurisdiction shall be allowed by any Appellate
or Revisional Court unless such objection was taken in the Court of
first instance at the earliest possible opportunity, and in all cases
where issues are settled, at or before such settlement, and unless there
has been a consequent failure of justice.

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

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

It is a fundamental rule that a decree of a court without jurisdiction is

nullity. Halsbury rightly states:

“where by reason of any limitation imposed by statute, charter or

commission, a court is without jurisdiction to entertain any particular
action or matter, neither the acquiesce nor the express consent of the
parties can confer jurisdiction upon the court nor can consent give a
court jurisdiction if a condition which goes to the root of the
jurisdiction has not been performed or fulfilled.”
However, this does not apply to territorial or pecuniary jurisdiction. In
case an error is committed by the court in exercising the jurisdiction
with respect to pecuniary or territorial jurisdiction, the decision so
given will not be void, it will be considered as irregular exercise of
jurisdiction. No doubt, party has a right to raise the issue but at the
earliest possible time and once the court proceeded with the matter
and given the decision the same cannot be raised at the appellate stage
at all as observed in the case of Kiran Singh V. Chaman Paswan,
AIR 1954 SC 340.

However, when the error is committed by the court with respect to

subject-matter jurisdiction, the decision so given by the court is null
and void as it falls within the ambit of lack of jurisdiction. And the
issue of such error can validly be raised at any stage of the
proceedings, even at the appellate level as well.

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

of suing

No suit shall lie challenging the validity of a decree passed in a former

suit between the same parties, or between the parties under whom they
or any of them claim, litigating under the same title, on any ground
based on an objection as to the place of suing. Explanation.-The
expression "former suit" means a suit which has been decided prior to
the decision in the suit in which the validity of the decree is questioned,
whether or not the previously decided suit was instituted prior to the
suit in which the validity of such decree is questioned.

6. State the effect of death, marriage or insolvency of a party to civil

suit

(10 marks) (July 2022)

Already explained

7. Explain the concept of res indicata in detail (15 marks)

(November

2019)

Already Explained

8. Explain the effect of death and insolvency of parties. (10 marks)

(November 2019)

Already explained