KAMKUS COLLEGE OF LAW

B.A., LL.B. IXTH SEM

CODE (BL-903)
CIVIL PROCEDURE CODE
UNIT-I

Suggested Important Questions-Answers

Q.1 Explain Decree, Order, and Judgment and distinguish between them.
What are the essential elements of a decree? What are the kinds of decree?

ANS. Decree (Section 2(2)

In a civil suit several facts might be alleged and the court may be required to rule on several
claims. In simple terms, a decree is the ruling of the court regarding the claims of the parties of
the suit. For example, in a suit between ‘A’ and ‘B’, ‘A’ may claim that a particular property
‘P’ belongs ‘A’. After hearing all the arguments, the court will rule in the favor of either A or B.
The final decision of the court regarding this claim i.e. whether the property belongs to A or B is
a decree.

As per Section 2(2), a decree is the formal expression of an adjudication which, so far as
regards the Court expressing it, conclusively determines the rights of the parties with regard to
all or any of the matters in controversy in the suit. It can be final or preliminary.

From the above definition we can see the following essential elements of a decree –

1. There must be an adjudication - Adjudication means Judicial Determination of the

matter in dispute. In other words, the court must have applied its mind on the facts of the case to
resolve the matter in dispute. For example, dismissing a suite because of default in appearance
of the plaintiff is not a decree. But dismissing a suite on merits of the case would be a decree.

2. There must be a suit - Decree can only be given in relation to a suit. Although CPC
does not define what suit means, in Hansraj vs Dehradun Mussoorie Tramways Co. Ltd. AIR
1933, the Privy Council defined the term suit as "a civil proceeding instituted by the
presentation of a plaint".

3. Rights of the parties - The adjudication must be about any or all of the matters in
controversy in the suit. The word right means substantive rights and not merely procedural
rights. For example, an order refusing leave to sue in forma pauperis (i.e. an order rejecting the
application of a poor plaintiff to waive court costs) is not a decree because it does not determine
the right of the party in regards to the matters alleged in the suit.
4. Conclusive Determination - The determination of the right must be conclusive. This
means that the court will not entertain any argument to change the decision. I.e. as far as the
court is concerned, the matter in issue stands resolved. For example, an order striking out
defence of a tenant under a relevant Rent Act, or an order refusing an adjournment is not a
decree as they do not determine the right of a party conclusively. On the other hand, out of
several properties in issue in a suit, the court may make a conclusive determination about the
ownership of a particular property. Such a conclusive determination would be a decree even
though it does not dispose off the suit completely.

5. Formal expression - To be a decree, the court must formally express its decision in the
manner provided by law. A mere comment of the judge cannot be a decree.

Examples of decisions which are Decrees –

Dismissal of appeal as time barred, Dismissal or a suit or appeal for want of evidence or proof,
Order holding appeal to be not maintainable.

Examples of decisions which are not Decrees - Dismissal of appeal for default, order of
remand, order granting interim relief.

Order (Section 2 (14)

As per Section 2 (14), the formal expression of any decision of a civil court which is not a
Decree is Order. In a suit, a court may take certain decisions on objective considerations and
those decisions must contain a discussion of the matters at issue in the suit and the reasons which
led the court to pass the order. However, if those decisions fall short of a decree, they are orders.

Thus, there are several common elements between an order and a decree - both related to matter
in controversy, both are decisions given by the court, both are adjudications, both are formal
expressions. However, there are substantial differences between them-

Decree - S. 2(2) Order S. 2(14)

Can only be passed in a suit originated by the
presentation of a plaint.
Contains Conclusive Determination of a right
May be final, preliminary, or partly preliminary -
partly final.
In general, there can only be one decree or at the
most one preliminary and one final decree in a suit.
Every decree is appealable unless an appeal is
expressly barred.
A second appeal may lie against a decree to a High
Court on certain grounds.
Can be passed in a suit originated by the
presentation of a plaint, application, or petition.
May or may not finally determine a right.
Cannot be a preliminary order.
There can be any number of orders in a suit.
Only those orders which are specified as appealable
in the code are appealable.
There is no second appeal for orders.
 Judgment (Section 2 (9)
As per Section 2 (9), "judgment" means the statement given by the judge of the
grounds of a decree or order.
Every judgment should contain - a concise statement of the case, the points for determination,
the decision thereon, the reasons for the decision. In the case of Balraj Taneja vs. Sunil
Madan, AIR 1999, SC held that a Judge cannot merely say "Suit decreed" or "Suit
dismissed". The whole process of reasoning has to be set out for deciding the case one way or
the other.

As per Rule 6-A of Order 20 the last part of the judgment should precisely state the relief
granted. Thus, a judgment is a state prior to the passing of a decree or an order. After
pronouncement of a judgment, a decree shall follow.

Kinds of Decree

1. Preliminary Decree–
Where an adjudication decides the rights of the parties with regard to all or any of the
matters in controversy in the suit but does not completely dispose of the suit, it is a preliminary
decree. It is passed when the court needs to adjudicate upon some matters before proceeding to
adjudicate upon the rest.

In Shankar vs. Chandrakant SCC 1995, SC stated that a preliminary decree is one which
declares the rights and liabilities of the parties leaving the actual result to be worked out in
further proceedings.

CPC provides for passing preliminary decrees in several suits such as - suit for possession and
mesne profits, administration suit, suits for pre-emption, dissolution of partnership, suits relating
to mortgage. In Narayanan vs. Laxmi Narayan AIR 1953, it was held that the list given in CPC
is not exhaustive and a court may pass a preliminary decree in cases not expressly provided for
in the code.

2. Final Decree –
When the decree disposes of the suit completely, so far as the court passing it is
concerned, it is a final decree. A final decree settles all the issues and controversies in the suit.

3. Party preliminary and partly final Decree–

When a decree resolves some issues but leaves the rest open for further decision, such a
decree is partly final and party preliminary. For example, in a suit for possession of immovable
property with mesne profits, where the court decrees possession of the property and directs an
enquiry into the mesne profits, the former part of the decree is final but the latter part is
preliminary.

Deemed Decree
The word "deemed" usually implies a fiction whereby a thing is assumed to be
something that it is ordinarily not. In this case, an adjudication that does not fulfill the requisites
of S. 2 (2) cannot be said to be a decree. However, certain orders and determinations are deemed
to be decrees under the code. For example, rejection of a plaint and the determination of
questions under S. 144 (Restitution) are deemed decrees.

Q.2 What is “Res-subjudice”? What is the object behind enacting the

provisions of “Res sub-judice”? Explain.

ANS. SECTION-10 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.

Section 10 of the Code of Civil Procedure, 1908 provides the rule with regard to stay of suits
where things are under consideration or pending adjudication by a court.
The Section reads as:

“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 India having jurisdiction to
grant the relief claimed, or in any Court beyond the limits of India established or
continued by the Central Government and having like jurisdiction, or before the Supreme
Court.”

A plain reading of section 10 of the Code of Civil Procedure makes clear that where the subject
matter of the suit is one and the same and the parties are also the same, under such
circumstances, if there are two suits between the parties, it is subsequent suit which has to be
stayed and not the previous one.
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.

But problem arises when part of the subject matter is common to previously instituted suit and
subsequently instituted suit. In a case the Appellate Division that only one plot was common in
two suits, but that was not considered as a ground for stay and it was held that the two suits
should be tried analogously

The purpose of the section is to bring finality in the judgment and to avoid the contradictory
decision by the two different court, as there is a very good possibility that in case when matter is
simultaneously being decided by different courts of concurrent jurisdiction, the courts may come
up with different decisions and then it will be very difficult to finalize which decisions to be
abided by.

The Section does not of course empower one court to stay the proceedings of another court. For
example, a district court exercising insolvency jurisdiction under the Provincial Insolvency Act,
1920, cannot under this section stay a suit pending against the insolvent in a subordinate court.
However, since the provisions of the section are mandatory, the court before which the
subsequent suit is pending ought to stay it where all the conditions laid down in the section exist.

The object underlying Sec.10 is to avoid parallel trials on the same issue by two courts and
to avoid recording of conflicting findings on issues which are directly and substantially in issue
in a previously instituted suit. It is to obviate conflict of decisions of two contradictory decrees
being passed in respect of the same subject-matter between the same parties that the present
section has been enacted.

Thus, the basic object of Sec. 10 is to protect a person from multiplicity of proceedings between
the same parties.
Hence, the three fold objects are:

 Avoid wasting court resources.

 Avoid conflicting decisions.
 Avoid multiplicity of suit.

Q.3 What are the objects and essential conditions of the doctrine of res
judicata? Illustrate the principle of constructive res judicata. Can an ex
parte decree act as constructive res judicata?

ANS. Res Judicata is the Latin term for "a matter already judged", and refers to the legal
doctrine meant to bar continued litigation of cases that have already been decided between the
same parties. The doctrine of res judicata is based on three maxims
 (a) Nemo debet lis vaxari pro eadem causa (no man should be vexed twice for the same
cause)
(b) Interest republicae ut sit finis litium ( it is in the interest of the state that there should
be an end to a litigation); and
(c) Re judicata pro veritate occipitur (a judicial decision must be accepted as correct)

The legal concept of RJ arose as a method of preventing injustice to the parties of a case
supposedly finished as well as to avoid unnecessary waste of resources in the court system. Res
iudicata does not merely prevent future judgments from contradicting earlier ones, but also
prevents litigants from multiplying judgments, so a prevailing plaintiff could not recover
damages from the defendant twice for the same injury.

Res Judicata is a rule of universal law pervading every well regulated system of jurisprudence
and is based upon a practical necessity that there should be an end to litigation and the hardship
to the individual if he is vexed twice for the same cause. Thus, this doctrine is a fundamental
concept based on public policy and private interest. It is conceived in the larger public interest,
which requires that every litigation must come to an end. It therefore, applies to all kinds of suits
such as civil suits, execution proceedings, arbitration proceedings, taxation matters, writ
petitions, administrative orders, interim orders, and criminal proceedings.

Res Judicata under Code of Civil Procedure, 1908

Section 11 of CPC embodies the doctrine of res judicata or the rule of conclusiveness of a
judgement, as to the points decided either of fact, or of law, or of fact and law, in every
subsequent suit between the same parties. It enacts that once a matter is finally decided by a
competent court, no party can be permitted to reopen it in a subsequent litigation. In the absence
of such a rule there will be no end to litigation and the parties would be put to constant trouble,
harassment and expenses.

Section 11 says thus:

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 I: The expression "former suit" shall denote a suit which has been decided prior
to the 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 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 reference in this section to any suit, issue or former suit shall be construed as
references, respectively, to proceedings 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 as 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.

The doctrine has been explained by Justice Das Gupta as follows -

The principle of Res Judicata is based on the need of giving a finality to the judicial decisions.
What it says is that once a case is res judicata, it shall not be adjudged again. Primarily it applies
as between past litigation and future litigation. When a matter- whether on a question of fact or a
question of law has been decided between two parties in one suit or proceeding and the decision
is final, either because no appeal was taken to a higher court or because the appeal was
dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between
the same parties to canvas the matter again.

Essential Elements for Res Judicata

1. The matter in issue in a subsequent suit must directly and substantially be same as in the
previous suit.

2. The former suit must have been between the same parties or between parties under whom they
or any of them claim.

3. Such parties must hae been litigating under the same title in the former suit.

4. The court which decided the former suit must be a court competent to try the subsequent suit
or the suit in which such issue is subsequently raised.
5. The matter directly and substantially in issue in the subsequent suit must have been heard and
finally decided by the court in the former suit.

Give Illustrations---

The onus of proof lies on the party relying on the theory of res judicata.

Exceptions to application
Res iudicata does not restrict the appeals process, which is considered a linear extension of the
same lawsuit as the suit travels up (and back down) the appellate court ladder. Appeals are
considered the appropriate manner by which to challenge a judgment rather than trying to start a
new trial. Once the appeals process is exhausted or waived, res iudicata will apply even to a
judgment that is contrary to law.

The provisions of section 11 of the Code are mandatory and the ordinary litigant who claims
under one of the parties to the former suit can only avoid its provisions by taking advantage of
section 44 of the Indian Evidence Act which defines with precision the grounds of such
evidence as fraud or collusion. It is not for the court to treat negligence or gross negligence as
fraud or collusion unless fraud or collusion is the proper inference from facts.

In Beliram & Brothers and Others v. Chaudari Mohammed Afzal and Others it was held that
where it is established that the minors suit was not brought by the guardian of the minors bona
fide but was brought in collusion with the defendants and the suit was a fictitious suit, a decree
obtained therein is one obtained by fraud and collusion within the meaning of section 44 of the
Indian Evidence Act, and does not operate res judicata. The principle of res judicata in section 11
CPC is modified by section 44 of the Indian Evidence Act, and the principles will not apply if
any of the three grounds mentioned in Section 44 exists.

Failure to apply
When a subsequent court fails to apply res iudicata and renders a contradictory verdict on the
same claim or issue, if a third court is faced with the same case, it will likely apply a "last in
time" rule, giving effect only to the later judgment, even though the result came out differently
the second time.

Constructive Res Judicata (Explanation IV of Section 11)

Rule of constructive res judicata is engrafted under Explanation IV of Section 11 of the Code. It
is artificial form of res judicata and provides that if a plea could have been taken by a party in a
proceeding between him and his opponent, he should not be permitted to take that plea against
the same party in a subsequent proceeding with reference to the same subject-matter. That
clearly is opposed to considerations of public policy on which the doctrine of res judicata is
based and would mean harassment and hardship to the opponent. Besides, if such a course is
allowed to be adopted, the doctrine of finality of judgments pronounced by the courts would also
be materially affected.

Thus, it helps in raising the bar of res judicata by suitably construing the general principle of
subduing a cantankerous litigant. That is why this rule is called constructive res judicata, which,
in reality, is an aspect or amplification of the general principle of res judicata.

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.

State of U.P. vs. Nawab Hussain, AIR 1977 SC 1680

A, a sub-inspector of police was dismissed from service by D.I.G. He challenged the order of
dismissal by filing a writ petition in the high court on the ground that he was not afforded a
reasonable opportunity of being heard before the passing of the order. The contention was,
however, negatived and the petition was dismissed. He then filed a suit and raised an additional
ground that science he was appointed by the I.G.P., the D.I.G. had no power to dismiss him. The
state contended that the suit was barred by constructive res judicata. The trial court, appellate
court and the high court held that suit was not barred, but the Supreme Court held that the suit
was barred by constructive res judicata as the plea was within the knowledge of the plaintiff and
could well have been taken in the earlier writ petition.

In the case of Kesar Das Rajan Singh v. Parma Nand Vishan Dass, AIR 1959, a peculiar
situation arose. In this case the plaintiff had filed a suit on the basis of a promissory note.
However, the plaintiff himself left the country and in subsequent proceedings since he was
unable to provide the promissory note to his advocate in the foreign country the suit got
dismissed. The plaintiff later on filed another suit in the local courts. The defendant took the plea
that the present suit was barred by res judicata. The Court held that the judgment on the previous
suit since it did not touch upon the merits of the case, therefore could not be held to be res
judicata for the present suit.

Ex parte decree as Res Judicata

An ex parte decree, unless it is set aside, is a valid and enforceable decree. However, the real
test for res judicata is whether the case was decided on merits. The real test for deciding whether
the judgment has been given on merits or not is to see whether it was merely formally passed as
a matter of course, or by way of penalty for any conduct of the defendant, or is based upon a
consideration of the truth or falsity of the plaintiff's claim, notwithstanding the fact that the
evidence was led by him in the absence of the defendant. Thus, a decree may not act as res
judicata merely because it was passed ex parte.
Q.4 "Every suit shall be instituted in court of lowest grade competent to try it",
Explain. Explain the provisions of CPC which are applied in determining
the forum for institution of a suit relating to immovable property. State
principles which guide a plaintiff in determining the place of filing a
suit. Explain.

ANS. In India, courts are hierarchically established. The lower courts have less powers than the
higher or superior courts. The Supreme Court of India is at the top of the hierarchy. There are
numerous lower courts but only one High Court per State and only one Supreme Court in the
Country. Thus, it is impractical to move superior courts for each and every trivial matter.
Further, the subject matter of a suit can also be of several kinds. It may be related to either
movable or immovable property, or it may be about marriage, or employment. Thus, speciality
Courts are set up to deal with the specific nature of the suit to deal with it efficiently. Similarly, it
would be inconvenient for the parties to approach a court that is too far or is in another state. All
these factors are considered to determine the court in which a particular suit can be filed. CPC
lays down the rules that determine whether a court has jurisdiction to hear a particular matter or
not.

These rules can be categorized as follows - Pecuniary Jurisdiction, Territorial Jurisdiction,

Subject matter jurisdiction, and Original Jurisdiction.

Pecuniary Jurisdiction:

As per Section 15, ‘every suit shall be instituted in the Court of the lowest grade
competent to try it’. This is a fundamental rule which means that if a remedy is available at a
lower court, the higher court must not be approached. More specifically, this rule refers to the
monetary value of the suit. Each court is deemed competent to hear matters having a monetary
value of only certain extent. A matter that involves a monetary value higher than what a court is
competent to hear, the parties must approach a higher court. At the same time, the parties must
approach the lowest grade court which is competent to hear the suit.

However, this rule is a rule of procedure, which is meant to avoid overburdening of higher
courts. It does not take away the jurisdiction of higher courts to hear matter of lesser monetary
value. Thus, a decree passed by a court, which is not the lowest grade court competent to try the
matter, is not a nullity. A higher court is always competent to try a matter for which a lower
court is competent. This rule applies to the parties as it bars the parties to approach a higher court
when a lower court is competent to hear the matter.

Example
Valuation

Territorial Jurisdiction:
Territorial Jurisdiction means the territory within a Court has jurisdiction. For example, if a
person ‘A’ is cheated in Indore, then it makes sense to try the matter in Indore instead of
Chennai. The object of this jurisdiction to organize the cases to provide convenient access to
justice to the parties. To determine whether a court has territorial jurisdiction, a matter may be
categorized into four types:-

1. Suits in respect of immovable property

Section 16 – Suits to be instituted where subject-matter is situated — 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 situated:

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 situated in India.

Section 17 - Suits for immovable property situated 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 my be instituted in any Court within the
local limits of whose jurisdiction any portion of the property is situated : 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.

2. Suits in respect of movable property –

It is said that the movables move with the person. Thus, a suit for a movable person lies
in the court, the territory of which the defendant resides.

Section 19 - Suits for compensation for wrongs to person or movable— 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.

3. Suits for compensation for wrong (tort) - Section 19 applies to this as well.

4. Other suits
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 objects, the
suit cannot proceed without the leave of the Court.

Objection as to Jurisdiction
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.

As held in Pathumma vs Kutty 1981, no objection as to the place of suing will be allowed by an
appellate or revisional court unless the following three conditions are satisfied –

(i) The objection was taken in first instance. (ii) The objection was taken at the earliest possible
opportunity and in cases where issues are settled at or before settlement of issues (iii) there has
been a consequent failure of justice.

All the three conditions must be satisfied simultaneously.

Very Short Question-Answer

Q.1 Define “Mesne Profits”.

ANS. DEFINITION OF MESNE PROFIT:

According to Section 2(12) of the C.P.C:

Mesne profits of property means "those profits which the person is wrongful possession of such
property actually received or might with ordinary diligence have received there from together
with interest on such profits but shall not include profits due to improvements made by the
person in wrongful possession".
Example:
Mesne profit can be claimed only regarding immovable property and not for movable property.

Relevant provision of law regarding to concerned topic are:

(i) Section 2 (12) of C.P.C.

(ii) Order 2, Rule 4 and order 20 Rule 12 of C.P.C.

Q.2 Who is legal representative?

ANS. “legal representative” under Section 2(11) of CPC 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 a party sues or is sued in a representative character the person
on whom the estate devolves on the death of the party so suing or sued defined under Section
2(11) of CPC.

In its broadest sense, one who stands in place of, and represents the interests of, another. A
person who oversees the legal affairs of another. Examples include the executor or
administrator of an estate and a court appointed guardian of a minor or incompetent person.
This term is almost always held to be synonymous with the term personal representative.
 UNIT-II

Essentials of a Suit, Parties to Suit, Non-joinder and Mis-joinder of

Parties, Representative Suits, Framing of Suits, Pleadings-Plaint and
Written Statement, Set-off, Amendment of Pleadings, Counter claims,
Suits by Indigent person, Inter-pleader Suit, Suits by or against the
Government or Public Offices

Q.1 What is “institution of suit”? Discuss the various essential ingredients of a

suit.
OR
Discuss in details fundamental principles as laid down in CPC regarding
essentials of a suit?

ANS. ‘Suit’: Meaning within the purview of the Civil Procedure Code,
1908:
The term ‘suit’ has not been defined in the Civil Procedure Code, 1908. According to
Chamber’s 20th Century Dictionary (1983), it is a generic term of comprehensive
signification referring to any proceeding by one person or persons against another or others in a
court of law wherein the plaintiff pursues the remedy which the law affords him for the redress of
any injury or enforcement of a right, whether at law or in equity. In the Black’s Law Dictionary
(7th Edition) this term is defined as the proceeding initiated by a party or parties against
another in the court of law. According to some other views, ‘suit’ includes appellate proceeding
also; but it does not include an execution proceeding. Ordinarily, suit under the CPC is a civil
proceeding instituted by the presentation of a plaint.

3. Institution of Suit: the Provisions under the Civil Procedure Code, 1908:
Section 26(1), CPC says that ‘every suit shall be instituted by the presentation of a plaint or
in such other manner as may be prescribed’. Sub-section (2) provides that in every plaint, facts
shall be proved by affidavit. The procedural framework relating to the institution of a suit is give
below:

i. Preparing the plaint

ii. Choosing the proper place of suing
iii. Presentation of the plaint

A brief concept of the relevant provisions of CPC 1908 regarding the essentials of institution of
suit is given under Figure 1.

Parties to the suit (Order 1)

 Framing of the Suit (Order 2)

Institution of Suit (Section 26 and Order 4)

Costs (Sections 35 -35B)

Institution of Suit: The Provisions under the CPC

1. Preparation of the Plaint:

‘Plaint’ is not defined in this Code. It may, however, be described as ‘a private memorial
tendered to a Court in which the person sets forth his cause of action, the exhibition of an action
in writing’. Order 7 is related to the ‘format of Plaint.’ According to Rule 1 the particulars to
be contained in a plaint are:

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

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

2. Choosing the proper place of suing:

A defect of jurisdiction goes to the root of the matter and strikes at the authority of a
court to pass a decree. A decree passed by the Court in such cases is a coram non judice. So
choosing the proper court is the next which depends on the contents of the pliant. Section 9 of
CPC has declared that the courts shall have jurisdiction to try all suits of a civil nature excepting
suits of which their cognizance is either expressly or impliedly barred. The jurisdiction of a court
is decided by the legislature; parties by the framing of the plaint cannot interfere into the extent
of this jurisdiction. They can choose one of some of the courts having same jurisdiction. In
Ananti v. Chhannu, the Court has laid down the correct law on this point:

The Plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts he
will get his relief from the forum chosen.

3. Presentation of the Plaint: Commencement of the Suit:

Section 26 and Order 4 contain the provisions relating to the institution of a suit. Rule 1 of
Order 4 goes as:

(1) Every suit shall be instituted by presenting a plaint in duplicate to the Court or such officer
as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Order VI and VII, so far as they are
applicable.
(3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements
specified in sub-rules (1) and (2).

Section 26 provides that every suit shall be instituted by the presentation of a plaint or in such
other manner as may be prescribed. Order 4 Rule 1 lays down the procedure for institution of
suit; but does not speak of any ‘other manner’ for the purpose. The amendment makes it clear
that unless the plaint is filed in duplicate it will be deemed to be incomplete. Sub-rule (3) has
been inserted in order to curtail unnecessary adjournments for due compliance of the provisions
of sub-rules (1) and (2) after the filing of the plaint.

The plaint may be presented either by the affected person himself, or by his advocate or by his
recognised agent or by any person duly authorized by him. A proceeding which does not
commence with a plaint is not a suit within the meaning of Section 26 and Rule 1 of Order 4.

I. Time and Place of Presentation:

Generally, the presentation of a plaint must be on a working day and during the office hours.
However, there is no rule that such presentation must be made either at a particular place or at a
particular time. A judge, therefore, may accept a plaint at his residence or at any other place even
after office hours, though h is not bound to accept it. But if not too convenient, the judge must
accept the plaint, if it is the last day of limitation. Thereafter, the particulars of a suit will be
entered by the court in a book kept for the said purpose, called the Register of Civil Suits. After
the presentation, the plaint will be scrutinized by the Stamp Reporter. If there are defects, the
plaintiff or his advocate will remove them. Thereafter the suit will be numbered.

II. Registration of Suits:

Rule 2 of Order 4 provides that the Court shall cause the particulars of every suit to be entered
in a book to be kept for the purpose and called the register of civil suits. Such entries shall be
numbered in every year according to the order in which the plaints are admitted.

Essentials of the Institution of Suits:

There are four essentials of a suit:
i. Opposing parties, i.e., parties to the suit;
ii. Subject-matter in dispute;
iii. Cause of action; and
iv. Relief
1. Parties to suit: Order 1:

In a civil suit, the presence of both the plaintiff, who files the suit, and the defendant, who is
sued, is necessary. In each case there are two categories; first one is the necessary party and the
other is proper party. A necessary party is one whose presence is indispensable to the
constitution of the suit, against whom the 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 a complete and final decision on the question involved in the
proceeding.

Where the number of plaintiff/defendant is one, no dispute arises regarding their representation;
but some uniform rules become mandatory if this number crosses this limit. Order 1 contains
these rules. These are enumerated below.

 Joinder of parties: Rules 1, 2, 3, 3A:

All persons may be joined in one suit as plaintiffs or defendants as the case may be, where-

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

(b). If such persons brought separate suits, any common question of law or fact would arise
(Rules 1, 3).

Example: Where ‘A’ assaults B, the latter may sue A for tort, as individually affects him. The
question of joinder of parties arises only when an act is done by two or more persons or it affects
two or more persons. Thus, if ‘A’ assaults ‘B’ and ‘C’, or A and B assaults C or A and B assaults
C and D, the question of joinder of parties arises.

The plaintiff may, at his option, join as parties to the same suit all or any of the persons severally,
or jointly and severally, liable on any one contract, including parties to bills of exchange, hundis
and promissory notes (Rule 6). When the plaintiff is in doubt regarding the joinder of persons
from whom he is entitled to obtain redress, he may join two or more such defendants (Rule 7). It
shall not be necessary that every defendant shall be interested as to all the relief claimed in any
suit against him (Rule 5). As per Rule 12(1), where there are more plaintiffs than one, any one
or more of them may be authorized by any other of them to appear, plead or act for such other in
any proceedings; and in like manner, where there are more defendants than one, any one or more
of them may be authorized by any other of them to appear, plead or act for such other in any
proceeding. Sub-rule (2) says, the authority shall be in writing signed by the party giving it and
shall be filed in court.

 Misjoinder and non-joinder: Rules 9 and 13:

As per Rule 9 no suit can be defeated by reason of the misjoinder and non-joinder of parties
unless such party is a necessary party. Rule 13 says that all objections regarding the misjoinder
and non-joinder of parties shall be taken at the earliest possible opportunity and, in all cases
where issues are settled, at or before such settlement.

 Representative Suits: Rule 8:

i. Meaning: In a suit if 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; such a suit is called the
‘representative suit’.

ii. Object: To facilitate the decision of questions in which a large number of persons are
interested without recourse to the ordinary procedure.

iii. Conditions: As per Rule 8(1), Where there are numerous persons having the same interest
in one suit,—

(a) 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;

(b) 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.

iv. Formalities to be followed:

(a). In such case, the permission of the Court must be obtained [sub-rule (1)].

(b). The plaint must show that the suit is representative in character.

(c). 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 [sub-rule (2)].

(d). 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 [sub-rule (3)].

(e). No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such
suit shall be withdrawn under sub-rule (3) of rule 1 of Order XXIII, and no agreement,
compromise or satisfaction shall be recorded in any such suit under Rule 3 of that Order,
unless the court has given, at the plaintiff’s expenses notice to all persons so interested in
the manner specified in sub-rule (2) [sub-rule (4)].
(f). Where any person suing or defending in any such suit does not proceed with due diligence
in the suit or defence, the court may substitute in his place any other person having the same
interest in the suit [sub-rule (5)].

(g). 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 [sub-rule (6)].

(h). 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 [Explanation].

 Power of the Court to order separate trials:

Where it appears to the Court that any such joinder may embarrass or delay the trial, the Court
may order separate trials or make such other order as may be expedient in the interest of justice
(Rules 2, 3A).

Power of the Court to give judgment in case of joinder of parties: Rule 4:

Judgment may be given without any amendment—

(a) for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief
as he or they may be entitled to;

(b) against such one or more of the defendants as may be found to be liable, according to their
respective liabilities.

Special Powers of the Court: Rule 10, 10A, 11:

i. 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 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 (Rule 8A).

ii. The Court may make corrections to the pleadings of both parties if it seems to be wrong
before the Court (rule 10).

iii. The court may, in its discretion, request any pleader to address it as to any interest which is
likely to be affected by its decision on any matter in issue in any suit or proceeding if the party
having interest which is likely to be so affected is not represented by any pleader (Rule 10A).

iv. The Court may give the conduct of a suit to such persons as it deems proper (Rule 11).

2. Subject-matter in dispute:
‘Subject-matter’ means the bundle of facts which have to be proved in order to entitle the
plaintiff to the relief claimed by him. This term includes the course of action. According to sub-
rules (4) and (5) of Rule 1, where the court is satisfied (a) that a suit must fail by reason of some
formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh
suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant
the plaintiff permission to withdraw from such suit or such part of the claim with liberty to
institute a fresh suit in respect of the subject matter of such suit or such part of the claim. Where
the plaintiff (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a
suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for
such costs as the court may award and shall be precluded from instituting any fresh suit in
respect of such subject matter or such part of the claim.

Examples: (a) Where the suit is instituted for the recovery of immovable property with or
without rent, the subject-matter is that immovable property.

(b) Where the suit is instituted for the compensation for wrong done to one movable property,
the subject-matter is that movable property.

More specifically on the basis of the subject-matter the jurisdiction of a Court is determined in
some cases. For example, a Presidency Small Causes Court has no jurisdiction to try suits for
specific performance of a contract, partition of immovable property, foreclosure or redemption of
a mortgage etc. Similarly, in respect of testamentary matters, divorce cases, probate proceedings,
insolvency proceedings etc. only the District Judge or Civil Judge (Senior Division) has
jurisdiction.

3. Cause of action: Order 2, Rules 3, 6 and 7:

Cause of action may be defined as ‘a bundle of essential facts, which is necessary for the
plaintiff to prove before he can succeed.’ A cause of action is the foundation of a suit. It must be
antecedent to the institution of a suit and on the basis of it the suit must have been filed. Every
fact constituting the cause of action should be set out in clear terms. A cause of action must
include some act done by the defendant since in the absence of such an act no cause of action can
possibly accrue. If a plaint does not disclose a cause of action, the Court will reject that plaint.

 Joinder of Causes of Action:

Order 2, Rule 3 provides for the joinder of cause of action. According to this Rule, save as
otherwise provided, a plaintiff may unite in the same suit several causes of action against the
same defendant, or the same defendants jointly; and any plaintiffs having causes of action in
which they are jointly interested against the same defendant(s), may jointly unite such causes of
action in the same suit.

 Power of the Court:

Where it appears to the Court that the joinder of causes of action in ne suit may embarrass or
delay the trial or is otherwise in convenient, the Court may order separate trials or make such
other order as may be expedient in the interests of justice (Rule 6).

 Objections as to misjoinder:
All objections on the ground of misjoinder of causes of action shall be taken at the earliest
possible opportunity and, in all cases where issues are settled, at or before such settlement unless
the ground of objection has subsequently arisen, and any such objection not so taken shall be
deemed to have been waived.

4. Relief: Order 2, Rules 1-2, 4-5:

Relief is the legal remedy for wrong. According to Rule 1 of Order 2 every suit shall as far as
practicable be framed so as to afford ground for final decision upon the subjects in dispute and to
prevent further litigation concerning them.

Rule 2 provides for the following conditions to be complied with:

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in
respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order
to bring the suit within the jurisdiction of any court.

(2) ...Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his
claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3)... A person entitled to more than one relief in respect of the same cause of action may sue for
all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such
reliefs, he shall not afterwards sue for any relief so omitted...

 Object of this Rule:

This rule is based on the cardinal principle that a defendant should not be vexed twice for the
same cause. The object of this salutary rule is doubtless to prevent multiplicity of suits.

 Conditions for the application of this Rule:

i. The second suit must be in respect of the same cause of action as that on which the previous
suit was based.

ii. In respect of that cause of action, the plaintiff was entitled to more than one relief.

iii. Being thus entitled to more than one relief, the plaintiff without the leave of the Court omitted
to sue for the relief for which the second suit has been filed. Such leave need not be express and
it may be inferred from the circumstances of the case. It can be obtained at any stage. The
question whether leave should be granted, depends on the circumstances of each case.

 Illustrations:
i. A lets a house to B at a yearly rent of Rs.1,200. The rent for the whole of the years 1905,
1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not
afterwards sue B for the rent due for 1905 or 1907.

ii. A advances loan of Rs.2200 to B. To bring the suit within the jurisdiction of Court X, A sues
B for Rs. 2000. A cannot afterwards sue for Rs. 200.

Rules 4 and 5 provide for the joinder of claims. Rule 4 states that 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 profit or arrear 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.

Rule 5 provides that no claim by or against an executor, administrator or heirs, as such, shall be
joined with claims by or against him personally, unless the last mentioned claims are alleged to
arise with reference to the estate in respect of which the plaintiff or the defendant sues or is sued
as executor, administrator or heirs or are such as he was entitled to or liable for jointly with the
deceased person whom he represents.

Q.2 What are the consequences of non appearance of parties?

ANS. Consequences of Non appearance of parties (Order 9)

The general provisions of CPC are based on the principle that both the parties must be
given an opportunity to be heard. The proceedings must not be held to the disadvantage of one
party. Order 9 lays down rules regarding the appearance and the consequences of non
appearance of a party in the hearing.

Rule 1 - Parties to appear on day fixed in summons for defendant to appear and answer— On
the day fixed in the summons for the defendant to appear and answer, the parties shall be in
attendance at the Court-house in person or by their respective pleaders, and the suit shall then be
heard unless the hearing is adjourned to a future day fixed by the Court.

Dismissal of Suit
Rule 2 –
Dismissal of suit where summons not served in consequence of plaintiffs failure to pay cost—
Where on the day so fixed it is found that the summons has not been served upon the defendant
in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any)
chargeable for such service, or to present copies of the plaint or concise statements, as required
by rule 9 of order VII, the Court may make an order that the suit be dismissed:
Provided that no such order shall be made, if, notwithstanding such failure the defendant attends
in person (or by agent when he is allowed to appear by agent) on the day fixed for him to appear
and answer.

Rule 3 - Where neither party appears, suit to be dismissed— Where neither party
appears when the suit is called on for hearing, the Court may make an order that the suit be
dismissed.

Rule 4 - Plaintiff may bring fresh suit or Court may restore suit to file—
Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of
limitation) bring a fresh suit, or he may apply for an order to set the dismissal aside, and if he
satisfies the Court that there was sufficient cause for such failure as is referred to in rule 2, or for
his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal
and shall appoint a day for proceeding with the suit.

Rule 5 - Dismissal of suit where plaintiff after summons returned unserved, fails for one month
to apply for fresh summons—

(1) Where after a summons has been issued to the defendant, or to one of several defendants,
and returned unserved the plaintiff fails, for a periods of one month from the date of the return
made to the Court by the officer ordinarily certifying to the Court returns made by the serving
officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be
dismissed as against such defendant, unless the plaintiff has within the said period satisfied the
Court that—

(a) he has failed after using his best endeavours to discover the residence of the defendant,
who has not been served, or
(b) such defendant is avoiding service of process, or
(c) there is any other sufficient cause for extending the time, in which case the Court may
extend the time for making such application for such period as it thinks fit.

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

Q.3 What is an ex parte decree? Discuss the remedies available to a defendant

against whom an ex parte decree has been passed.

ANS. Ex parte Proceedings

Rule 6 - Procedure when only plaintiff appears—
 (1) Where the plaintiff appears and the defendant does not appear when the suit is called on
for hearing, then—

(a) When summons duly served—if it is proved that the summons was duly served,
the Court may make an order that the suit shall be heard ex parte.

(b) When summons not duly served—if it is not proved that the summons was duly
serve, the Court shall direct a second summons to be issued and served on the
defendant;

(c) When summons served but not in due time—if it is proved that the summons
was served on the defendant, but not in sufficient time to enable him to appear and
answer on the day fixed in the summons, the Court shall postpone the hearing of the suit
to future day to be fixed by the Court, and shall direct notice of such day to be given to
the defendant.

(2) Where it is owing to the plaintiffs' default that the summons was not duly served or was not
served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the
postponement.

Rule 7 – Procedure where defendant appears on day of adjourned hearing and

assigns good cause for previous non-appearance— Where the Court has adjourned the
hearing of the suit ex-parte and the defendant, at or before such hearing, appears and assigns
good cause for his previous non-appearance, he may, upon such terms as the Court directs as to
costs or otherwise, be heard in answer to the suit as if he had appeared on the day, fixed for his
appearance.

Absence of Plaintiff
Rule 8 - Procedure where defendant only appears— Where the defendant appears
and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an
order that the suit be dismissed, unless the defendant admits the claim or part thereof, in which
case the Court shall pass a decree against the defendant upon such admission, and, where part
only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

Rule 9 - Decree against plaintiff by default bars fresh suit—

(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded
from bringing a fresh suit in respect of the same cause of action. But he may apply for an order
to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-
appearance when the suit was called on for hearing, the Court shall make an order setting aside
the dismissal upon such terms as to costs or otherwise as it thinks fit. and shall appoint a day for
proceeding with suit.
 (2) No order shall be made under this rule unless notice of the application has been served on
the opposite party.

Multiple plaintiffs and/or Defendants

Rule 10 - Procedure in case of non-attendance of one or more of several
plaintiffs— Where there are more plaintiffs than one, and one or more of them appear, and the
others do not appear, the Court may, at the instance of the plaintiff or plaintiffs appearing, permit
the suit to proceed in the same way as if all the plaintiffs had appeared, or make such order as it
thinks fit.

Rule 11 - Procedure in case of non-attendance of one or more of several

defendants— Where there are more defendants than one, and one or more of them appear, and
the others do not appear, the suit shall proceed, and the Court shall, at the time of pronouncing
judgment, make such order as it thinks fit with respect to the defendants who do not appear.

General Consequence of Non appearance

Rule 12 - Consequence of non-attendance, without sufficient cause shown, of
party ordered to appear in person— Where a plaintiff or defendant, who has been ordered
to appear in person, does not appear in person, or show sufficient cause to the satisfaction of the
Court for failing so to appear, he shall be subject to all the provisions of the foregoing rules
applicable to plaintiffs and defendants, respectively who do no appear.

This means either the suit will be dismissed or will be continued ex parte.

Ex parte Decree (Order 9)

As per Rule 6, if the defendant fails to appear before the court in spite of a proper service of the
summons, the court may proceed ex-parte and may pass a decree in favor of the plaintiff. This is
called an ex-parte decree. In the case of Hochest Company vs V. S. Chemical Company, SC
explained that an ex parte decree is such decree in which defendant did not appear before court
and the case is heard in the absence of the defendant from the very beginning.

Remedies available to the defendant against an ex parte decree

1. Application to set aside the ex parte decree - As per Order 9, Rule 13, a
defendant may apply before the court that passed the decree to set it aside. If he satisfies the
court that the summons was not duly served or he was prevented by any other sufficient cause
from attending the hearing, the court shall make an order setting aside the decree. For example,
bona fide mistake as to the date or hearing, late arrival of train, etc. are sufficient causes for
absence of the defendant. Such an application for setting aside may be made within 30 days from
the date of decree as per Section 123 of Limitation Act.

Setting aside decrees ex parte

Rule 13 - Setting aside decree ex parte against defendant— In any case in which a
decree is passed ex parte against a defendant, he may apply to the Court by which the decree was
passed for an order to set it aside; and if he satisfies the Court that the summons was not duly
served, or that he was prevented by any sufficient cause from appearing when the suit was called
on for hearing, the Court shall make an order setting aside the decree as against him upon such
terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit;
Provided that where the decree is of such a nature that it cannot be set aside as against such
defendant only it may be set aside as against all or any of the other defendants also:
Provided further that no Court shall set aside a decree passed ex parte merely on the ground that
there has been an irregularity in the service of summons, if it is satisfied that the defendant had
notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim

Explanation.—Where there has been an appeal against a decree passed ex parte under this
rule, and the appeal has been disposed of an any ground other than the ground that the appellant
has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte
decree.

Rule 14 - No decree to be set aside without notice to opposite party— No decree

shall be set aside on any such application as aforesaid unless notice thereof has been served on
the opposite party.

The court may impose conditions as it may deem fit on the defendant for setting aside the decree.
It may ask the defendant to pay costs.

When an ex parte decree is set aside, the court should proceed to decide the suit as it stood before
the decree. The trial should commence de novo and the evidence that had been recorded in the ex
parte proceeding should not be taken into account.

This remedy is specifically meant for an ex parte decree.

2. Prefer an appeal against the decree under Section 96(2).

3. Apply for review under Order 47 Rule 1.
4. File a suit on the ground of fraud.
All the above remedies are concurrent and can be pursued concurrently.
Q.4 What do you understand by Set Off and Counter Claim? Distinguish
between Legal and Equitable set off.

ANS. Set off (Order VIII, Rule 6]

Meaning of Set Off:

Set off is reciprocal acquittal of debts. “Set-off” means a claim set up against another. It
is a cross-claim which partly offsets the original claim. It is an extinction of debts of which two
persons are reciprocally debtors to one another by the credits of which they are reciprocally
creditors to one another. Where there are mutual debts between the plaintiff and the defendant,
one debt may be settled against the other. It is a plea in defence, available to the defendant. By
adjustment, set-off either wipes out or reduces the plaintiff’s claim in a suit for recovery of
money.
In a suit for recovery of money, a defendant can stake his claim to any ascertained sum of
money-legally recoverable by him from the plaintiff as a set-off against the plaintiff’s demand if:

(a) The ascertained sum does not exceed the pecuniary jurisdiction of the court; and
(b) both parties fill the same character as they fill in the plaintiff’s case at the first
hearing of the suit, but not afterwards unless permitted by the Court, present a
written statement containing the particulars of the debt sought to be set-off.

The written statement shall have the same effect as a plaint in a cross-suit so as to enable the
Court to pronounce a final judgment in respect of both the original claim and of the set-off.
(Order VIII, Rule 6).
In a suit for injunction, the counter claim for possession by defendant can be entertained under
Order VIII, Rule 6 (A) (1).

Where, the plaintiff institutes a suit for recovery of money against the defendant and the
defendant finds that he also has a claim of certain amount against the same plaintiff, he may pray
for a set-off in respect of that amount. The term “set-off’ denotes mutual discharge of debts. It is
reciprocal satisfaction of the claim of plaintiff and the defendant against each other. In simple
words, “set-off’ means that the amount claimed by the plaintiff from defendant is to be satisfied
against the amount that the plaintiff owes to the defendant. It is a cross-claim of plaintiff and
defendant to be reciprocally discharged. The claim of plaintiff relating to certain money from the
defendant may be discharged against the money due to the defendant from the plaintiff. For
instance, where ‘X’ files a suit against ‘Y’ for recovery of Rs. 15,000/- but ‘Y’ already holds a
decree of Rs. 20,000/- against ‘X’, the defendant ‘Y’ may plead for the set-off of the claim of
plaintiff ‘X’.

The purpose of set-off is to obviate the necessity of a fresh suit by the defendant. Therefore, the
defendant must specifically raise a plea of set-off in his written statement. Such claim must be
made after dealing with the allegations and accusations leveled against him in the plaint. The
written statement must contain full particulars of the amount claimed by way of set-off and how
and when it fell due.
Illustrations
(a) A bequeaths Rs. 2,000 to B and appoints C his executor and residuary legatee. B dies and D
takes out administration to B's effect, C pays Rs. 1,000 as surety for D: then D sues C for the
legacy. C cannot set-off the debt of Rs. 1,000 against the legacy, for neither C nor D fills the
same character with respect to the legacy as they fill with respect to the payment of Rs. 1,000.

(b) A dies intestate and in debt to B. C takes out administration to A's effects and B buys part of
the effects from C. In a suit for the purchase-money by C against B, the latter cannot set-off the
debt against the price, for C fills two different characters, one as the vendor to B, in which he
sues B, and the other as representative to A.

(c) A sues B on a bill of exchange. B alleges that A has wrongfully neglected to insure B's goods
and is liable to him in compensation which he claims to set-off. The amount not being
ascertained cannot be set-off.

(d) A sues B on a bill of exchange for Rs. 500. B holds a judgment against A for Rs. 1,000. The
two claims being both definite, pecuniary demands may be set-off.

(e) A sues B for compensation on account of trespass. B holds a promissory note for Rs. 1,000
from A and claims to set-off that amount against any sum that A may recover in the suit. B may
do so, for as soon as A recovers, both sums are definite pecuniary demands.

(f) A and B sue C for Rs. 1,000 C cannot set-off a debt due to him by A alone.

(g) A sues B and C for Rs. 1000. B cannot set-off a debt due to him alone by A.

(h) A owes the partnership firm of B and C Rs. 1,000 B dies, leaving C surviving. A sues C for a
debt of Rs. 1,500 due in his separate character. C may set-off the debt of Rs. 1,000.

Essential Conditions for Set Off –

1. The suit must be of recovery of money. Example - A sues B for 20,000/-. B cannot set off the
claim for damages for breach of contract for specific performance.
2. The sum of money must be ascertained. See Illustration c, d, e.
3. The sum claimed must be legally recoverable. For example, winnings in a wager cannot be
claimed in a set off.
4. The sum claimed must be recoverable by all the defendants against the plaintiff if there are
more than one defendants.
5. The sum claimed must be recoverable from all the plaintiffs by the defendant if there are
more than one plaintiffs.
6. In the defendant's claim for set off, both the parties must fill in the same character as they fill
in the plaintiff's suit. See illustrations a, b, h.

Equitable Set off

The provisions of Rule 6 given above are for Legal Set off. However, these provisions are not
exhaustive. This means that a set off is still possible in certain situations even when some of the
above conditions are not satisfied. For example, in a transaction where by goods are exchanged
for services as well as payment, the defendant may be allowed to claim a set off for an uncertain
amount for damaged goods. In a suit by a washerman for his wages, the defendant employer
should be able to set off the price of the clothes lost by the plaintiff. In such a case, driving the
plaintiff to file another suit would be unfair. A set off in such situations is called an Equitable
Set off.

SC illustrated equitable set off in the case of Harishchandra vs. Murlidhar AIR 1957 as follows
- Where A sues B to recover 50,000/- under a contract, B can claim set off towards damages
sustained by him due to the breach of the same contract by A.

However, there is still one condition that must be satisfied for equitable set off - the set off claim
must originate from the same transaction.

Legal Set Off Equitable Set Off

Sum must be ascertained.
Claim need not originate from the same
transaction.
Legal set off can be claimed as a right by the
defendant and the court is bound to adjudicate
upon the claim.
Court fee must be paid on set off amount.
The amount must not be time barred.
Sum need not be ascertained.
Claim must origination from the same
transaction
Equitable set off cannot be claimed as a right
but by court's discretion.
No court fee is required.
The amount may be time barred. However, if
the defendant's claim is time barred, he can
claim only as much amount as is given in the
plaintiff's claim.
Counter-claim [Order VIII, Rules 6-A to 6-G]

A Counter-claim is “a claim made by the defendant in a suit against the

plaintiff”.
It can be stated as follows:-

(1) It is an independent claim

(2) It is separable from the plaintiff’s claim, and
(3) It is enforceable by a cross-action in favour of the defendant

Before 1976, there was no provision regarding the counter-claim in the Code of Civil Procedure.
In order to prevent multiplicity of proceedings, the Law Commission of India favoured the
conceding of a right to make a counter claim to the defendant. This right was in addition to a
counter-claim in the same suit. Counter-claim result in the following advantages:-

(i) Saving the time of the courts, particularly in the context of huge pendency of cases
over a long period of time;
(ii) Eliminate the inconvenience of the parties to filing fresh litigation, on the issues
which could be well-resolved in the present suit itself;
This would also result in the avoidance of multiplicity of proceedings and
(iii) Help in the early disposal of cases which otherwise, would have been inordinately
delayed.

In view of the weighty reasons that prevailed with the then Govt., an Amendment Act of 1976
to CPC made a provision for counter-claims. Such a counter-claim may defeat the relief sought
by the plaintiff and thus this can be viewed as a “cross action”. Another factor that weighed with
the Government in enacting the Amendment of 1976 was the ruling of the apex court (In Re
Laxmidas AIR 1964 SC P.11) that right to make a counter-claim be made statutory. Though the
Government acted after a lapse of 12 years for acting on the ruling of the apex court, it has
served a landable purpose in achieving the objectives such as avoidance of multiplicity of
proceedings and to expedite the course of justice and give justice to both the parties to the suit,
though the counter-claims can be set up in respect of a claim for which the defendant can file a
separate suit. (Munshi Ram Vs. Radha Kishan, AIR 1975 Punjab P.113-114) The court, due to
liberal construction, considered the counter claim as a plaint in a cross suit and hear the original
suit and counter claim together and give its decision, provided the counter-claim is property
stamped.

The specific provision made for counter-claims can be discussed in detail:-

Rule 6A(1): This enables a defendant to set up by way of counter-claim against the claim of
the plaintiff any right or claim in respect of action accruing to the defendant against the plaintiff
either before or after filing of the suit but before the defendant has delivered his defence or
before the time fixed for delivery of his defence has expired.
The following limitations are imposed on the defendant:

I Counter-claim should not exceed the pecuniary limits of the jurisdiction.

(i) This is due to the reason that the pecuniary jurisdiction cannot be ousted;
(ii) The power of the court to try the suit already entertained cannot be taken away by
accepting the counter-claim beyond the pecuniary jurisdiction;
(iii) A counter-claim solely against co-defendants is not maintainable, though the
defendant along with plaintiff may claim relief against the co-defendants in the case;
(Rohit Singh Vs. State of Bihar, AIR 2007 SC P.10).
(iv) The defendant may set up a counter-claim against the plaintiff for a cause of action
either before or after filing of the suit. However, such claim should not be barred by
limitation. (Mahender Kumar Vs. State of MP, AIR 1987 SC P.1395).

The effect of a counter-claim may be as follows:-

(i) It has the effect of a cross-suit and the court can pronounce a final Judgment both on
the original claim and the counterclaim;
(ii) The counter-claim of the defendant will be treated as a plaint;
(iii) In answer to the counter-claim, the plaintiff has the right to file a written statement;
(iv) The counter-claim will be decided on merits, even if plaintiff’s suit is stayed,
dismissed, discontinued or withdrawn;
(v) The defendant’s right to get a decree in respect of a counterclaim claimed in the
written statement is in way effected by the suit of the plaintiff; (Rule 6-F)
(vi) in the event of the plaintiff not filing a reply to the counterclaim, the court may
pronounce Judgment against the plaintiff in respect of such counter-claim or make
such order in respect of counter-claim, as it thinks fit; (Rule 6-E).
(vii) counter-claim of the defendant shall be treated as a plaint (Rule 6 –A(4) and the
rules governing the plaints shall apply; and
(viii) reply filed by the plaintiff in answer to a counter-claim shall be treated as a written
statement.
The rules applicable for the written statement shall apply to such replies; (Rule 6-
G).
(ix) Counter-claim is substantially a cross-action;
(x) Counter-claim need not arise out of same transaction;
(xi) Counter-claim enables the defendant to enforce the claim against the plaintiff as an
independent action;
(xii) In a counter-claim, the amount need not be recoverable on the date of the suit filed
by the plaintiff but may be recoverable on the date of the written statement. For
this purpose the defendant may amend the written statement with the leave of the
court; (Ramesh Chand Vs. Anil Punjwani, AIR 2003 SCP.2508) and
(xiii) When the defendant claims an excess amount then the suit amount of the plaintiff,
the excess amount will be treated as a counter-claim and the rules relating to
counterclaim shall apply to the excess amount claimed by the defendant than the
suit amount claimed by plaintiff;
1. In conclusion, it may be stated that the Amendment CPC of 1976 conferred benefits on
the courts as well as the parties.

2. The courts are enabled to avoid delay and to prevent multiplicity of suits.

3. The court are enabled to decide the claims of the plaintiff and defendants on the footing of
equality and expeditiously.

4. The pecuniary jurisdiction of the courts and their power to try the case when the suit of the
plaintiff was filed is protected as thus the course of justice remains unaffected.

5. Time-barred counter-claims cannot be entertained. This is to ensure that barred claims under
Limitation Act shall not be allowed and therefore the counter-claims are confined to really and
legally enforceable rights.

6. The right of the defendant to secure his rights in a counterclaim is kept intact and in no way
affected by the dismissal, withdrawal or otherwise of plaintiff’s suit. In other words, counter-
claims are treated as independent and separate claims.

7. Counter-claim should satisfy the rules relating to filing of plaint.

8. Plaintiff failing to file a reply to the counter-claims will be fatal as the court will decide the
counter-claims on merits.

It is hoped that the courts will keep in mind the ruling of the apex as well as High Courts and
more specially Rules 6A to G introduced on the basis of Amendment Act 1976, to ensure fair
and substantial justice to the parties.

Q.5 What is Plaint? What are the necessary particulars to be given in a plaint?
On what grounds a plaint can be rejected?

ANS. Plaint is defined in order 7 of CPC. Rules 1to 8 of order relate to particulars in
a plaint. Rule 9 lays down procedure on plaint being admitted. Whereas rules 10 to 10-B
provide for the return of plaint, and appearance of parties, rules 11 to 13 deal with rejection
of plaint. Rules 14 to 17 contain provisions for the production of documents. Order-7 should
be read with section 26 of the code.

A plaint is a legal document which contains the written statement of the plaintiff’s claim. A
plaint is the first step towards the initiation of a suit. It can be said to be a statement of claim, a
document, by the presentation of which the suit is instituted. However, the expression
“plaint” has not been defined in the code. It is a pleading of the plaintiff.
 In plaint, the plaintiff should alleged facts about his cause of action. A plaint which is
presented to a civil court of appropriate jurisdiction contains everything, including facts to relief
that the plaintiff expects to obtain.

Particulars of the plaint:

 The name of the particular court where the suit is brought; [R.1(a)];
 The name, place, and description of the plaintiff’s residence; [R.1(b)];
 The name, place, and description of the defendant’s residence; [R.1(c)];
 A statement of unsoundness of mind or minority in case the plaintiff or the defendant
belongs to either of the categories; [R.1(d)];
 The facts that led to the cause of action and when it arose; [R.1(e)];
 That fact that point out to the jurisdiction of the court; [R.1(f)];
 A statement of the value of the subject-matter of the suit for the purpose of
jurisdiction and court fees; [R.1(i)];
 The relief claimed by the plaintiff, simply or on the alternative; [R.1(g)];
 Where the plaintiff files a suit in a representative capacity the facts showing that the
plaintiff has an actual existing interest in the subject-matter and the he has taken steps
that may be necessary to enable him to file such a suit; [R. 4];
 Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the
amount so allowed or relinquished; [R.1(h)];
 Where the suit is for recovery of money, the precise amount claimed; [R 2]
 Where the suit is for accounts or mesne profits or for movables in the possession of
the defendant or for debts which cannot be determined, the approximate amount or
value thereof; [R. 2]
 Where the subject-matter if the suit is immovable property description of the property
sufficient to identify it, e.g. boundaries, survey numbers, etc; [R.3]
 The interest and liability of the defendant in the subject-matter of the suit; [R. 5]
 Where the suit is time-barred, the ground upon which the exemption from the law of
limitation is claimed; [R. 6 ]

Admission of plaint:
Rules 9 lays down the procedure when the plaint is admitted by the court.
It provides for the filling of copies of the plaint by the plaintiff and also requires him to pay
requisite fees for the service of summons on the defendants within seven days.

FROM OF THE PLAINT:

As per the above-stated material we can say that the plaint should be
drafted in a particular form. So that a plaint can be divided into three important parts such
as heading and title, the body of the plaint, and relief claimed.

These all are discussed in detail below:

 Heading and Title:
1. Name of the court:
The name of the court should be written on the plaint as the heading. It is not
necessary to mention the name of the presiding officer of the court. The name of the is sufficient,
for example:- In the Court of the District Judge, Sirsa.

2. Parties to the suit:

There must be two parties in every suit, namely, the plaintiff and the defendant.
However, there may be more than one plaintiff, and defendant. All particulars of the parties such
as name, residence, father’s name, age, etc. which are necessary to identify the parties, must be
stated in the plaint.
In the case of more than one parties, all of their names have to be mentioned in the plaint
according to their pleadings.
In the case of minors, a minor cannot sue nor be sued. If one of the party is a minor or of
unsound mind, it will have to be mentioned in the cause title.

3. Title of the suit:

The title of the suit contains the reasons for approaching the court and the jurisdiction
before which the plaint is initiated.

Body of the plaint:

It is the body of the plaint wherein the plaintiff describes his\her concerns in an
elaborative manner. That should be divided into short paragraphs, which each contains one fact.
The body of the plaint is divided into two further parts which are as follows:

1. Formal part:
The formal part contains the following essentials:-

 A statement regarding the date of cause of action. It is necessary for every plaint to
contain the date when the cause of action arose. The primary objective behind this is to
determine the period of limitation.
 The plaint must state all the facts showing how the court has pecuniary and territorial
jurisdiction over the subject-matter of the suit.
 The value of the subject matter of the suit must be stated properly for the purpose
of pecuniary jurisdiction of the court and court fees.
 Statement regarding minority.
 The representative character of the plaintiff.
 The reasons why the plaintiff wants to claim exemptions under the law if the suit is
initiated after the period of limitation.

2. Substantial portion:
 In this portion, plaint must contain all the necessary and vital facts, which constitute the
suit. If the plaintiff wishes to pursue a course of action on any other grounds must be duly
mentioned.
 It should be shown in the plaint that the defendant is interested in the subject matter and
therefore must be called upon by the court.
 Where the defendants are more than one and if the liability is not joint, then the
individual liability of each and every defendant must be shown separately.
 In the same way, if there is more than one plaintiff and their cause of action is not joint,
then too, the same has to be mentioned separately.

Relief:
Every plaint must state specifically the relief claimed by the plaintiff either simply or in the
alternative. It is the last part of the plaint. It must be claimed properly and accurately. Every
plaint must state specifically the kind of relief asked for, be it in the form of damages, specific
performance or injunction or damages of any other kind. This must be done with utmost
carefulness because the claims in the plaint cannot be backed by oral pleadings.

Signature and verification:

The signature of the plaintiff put at the end of the plaint. In case the plaintiff is not present
due to any legitimate reason, then the signature of an authorized representative would suffice.

The plaint should also be duly verified by the plaintiff. Where the plaintiff is unable to do so,
his \her representative may do the same after informing the court.

The plaintiff has to specify against the paragraphs in the pleadings, what all he/she has verified
by his her own awareness of the facts, and what has been verified as per information received,
and subsequently believed to be true. The signature of the plaintiff/verifier, along with the date
and the place, at the end of the plaint is essential.
The verification can only be done before a competent court or in front of an Oath Commissioner.

Grounds of Rejection of Plaint:

Order 7 Rule 11 of the Code of Civil Procedure delineates the grounds on which a plaint
can be rejected. The grounds are:

1. The plaint does not disclose cause of action

2. The relief claimed is undervalued
 Where the relief claimed is properly valued, however the plaint is written upon paper
that is insufficiently stamped
Under Order 7, Rule 11(c) the Court is bound to grant some time to deposit the deficit court-fee
on a plaint that is insufficiently stamped. Under the statutory provision, the plaint is liable to be
rejected only when plaintiff has failed to supply the required stamp-paper within the time
required by the Court. Thus, in such cases the Court is under an obligation to require the party
to make good the deficiency in the case of a plaint.

1. Where any statement in the plaint is such that it is barred by law

2. Where the plaint is not filed in duplicate.

The circumstances for rejection of a plaint under Order 7, Rule 11 cannot be regarded as an
exhaustive one. In the case of Radakishen v. Wali Mohammed, AIR 1956 Hyd 133, the Court
opined that for rejection of plaint on any other ground other than the one specified under Order
7 Rule 11, the defect should be such that it effects the Court’s jurisdiction.

Prior to issuing summons under Order 7, it is the duty of the Court to examine the plaint. The
discovery of a patent defect cannot be deferred until the summons has been issued and written
statement has been filed.

Is dismissal of suit and rejection of plaint- a similar expression?

No, dismissal of suit and rejection of plaint do not imply a similar situation. In case of dismissal
of suit a decree is already passed whereas in case of rejection of plaint it is merely an appealable
order.

Does rejection of plaint bar the plaintiff from filing a fresh plaint?

No rejection of plaint under Order 7 does not bar the Plaintiff from filing a fresh plaint on the
same cause of action, provided the plaint is not barred by the Law of Limitation.

Q.6 What is pauper suit? Describe the procedure for filling a pauper suit?

ANS. Order XXXIII (O. 33) relates to be filled by the indigent persons. An
indigent person is defined in explanation one to Rule 1 according to which is a person is an
indigent person if he is not possessed of sufficient means other than property exempted from
attachment in execution of the degree, to enable him to pay prescribed fees. An application is
to be filled along with the suit for permission to allow the applicant to file the suit as an indigent
person. After due inquiry the court however may reject the application for permission to file the
suit as an indigent person on the ground mentioned in Rule 5. A person having been declared as
indigent person can be disappeared on the ground mentioned in Rule 9. Under Rule 18 the state
government can provide free legal service to indigent person.

Who Can File A Pauper Application?

It was held that pauper application should be filled by only natural person and into its ambit and
scope judicial person also include. This is a settled position in UOI v. Khaders International
Construction Ltd. It is well settled that the provisions of Order XXXIII, Rule 1 CODE OF
CIVIL PROCEDURE, 1908 have been enacted to enable poor persons to seek justice by filling
suits or appeals without court fee and in this context, the sufficient means would not be sufficient
property and includes such means on which the bare living of the person who are plaintiff and
their family members is dependent. In fact what is intended is capacity to raise funds by norm
and available means and not by any means whatsoever, illegal or improper. It cannot be the
purpose of this legislation that the indigent person should first deprive himself of the sole means
of livelihood or alienate all his assets and seek justice in penury.

If during the pendency of suit the applicant, who is an indigent person, is died, it cannot be said
that afterwards his legal heirs can get benefit.

Meaning And Scope: Indigent Person

The concept is well explained by the Orissa High Court in the case of Manglu Chattar v.
Maheshwar Bhoi as follows, the tools of artisans are exempted from the attachment. In the
instant case according to the findings of the trial court, the appellant possessed of tools and
weaving materials and they get daily wages. Both these items are covered under the Section
60(1) of CODE OF CIVIL PROCEDURE, 1908. There is no other evidence adduced from the
side of the defendant to show that the petitioners are possessed of any other property. Therefore
there is no dispute about the fact that the appellants are all weavers and their weaving materials
consist of tools of artisans. These properties are not to be taken into consideration to find out
whether they will be able to pay the court fee. So also the daily wages they get cannot be taken
into consideration for the aforesaid purpose. On the aforesaid analysis, it should be held that the
appellants are indigent persons and, therefore, they should be allowed to sue as indigent person.

The Supreme Court of India has settled the issue that, whether a public company can file a suit
as an indigent person while holding the judgment of UOI v. Khader International Construction,
held that, the word “person” has to be given its meaning in the context in which it is used. It
refers to a person who is capable of filling a suit and this being a benevolent provision; it is to be
given an extended meaning. Therefore, a public limited company, which is otherwise entitled to
maintain suit as a legal person, can every well maintain application under Order XXXIII, Rule
1, CODE OF CIVIL PROCEDURE, 1908.

The word “person” mentioned in Order XXXIII includes not only a natural person but other
judicial person also.

Inquiry into the means of an indigent person

Order 33 rule 1-A states that in the first instance, an inquiry into the means of the applicant
should be made by the Chief Ministerial Officer of the court. The court may adopt the report
submitted by such officer or may itself make an enquiry.

Order 33 rule 4 states that where the application submitted by the applicant is in proper form
and is duly represented, the court may examine the applicant regarding the merits of the claim
and the property of the applicant.

Order 33 rule 6 states that the court shall then issue notice to the opposite party and to the
Government pleader and fix a day for receiving evidence as the applicant may adduce in proof of
his indigency or in disproof thereof by the opposite party or by the Government Pleader. On the
day fixed, the court shall examine the witnesses (if any), produced by either party, hear their
arguments and either allow or reject the application.

Contents of application
As per Order 33 Rule 2, every application for permission to sue as an indigent person should
contain the following particulars:

1. The particulars required in regard to plaints to suits;

2. A schedule of any movable or immovable property belonging to the applicant with the
estimated value thereof; and
3. Signature and verification as provided in Order 6 Rules 14 and 15

The application should be presented by the applicant to the court in person unless exempted by
the court. Where there are two or more plaintiffs, it can be presented by any of them. The suit
commences from the moment an application to sue in forma pauperis is presented.

Rejection of application

As per Order 33 Rule 5, the court will reject an application for permission to sue as an indigent
person in the following cases:
1. Where the application is not framed and presented in the prescribed manner; or
2. Where the applicant is not an indigent person; or
3. Where the applicant has, within two months before the presentation of the application,
disposed of any property fraudulently or in order to get permission to sue as an indigent person;
or
4. Where there is no cause of action; or
5. Where the applicant has entered into an agreement with reference to the subject-matter of the
suit under which another person has obtained interest; or
6. Where the suit appears to be barred by law; or
7. Where any other person has entered into an agreement with the applicant to finance costs of
the litigation.
8. When permission is granted: Rules 8-9A
9. Where an application to sue as a indigent person is granted, it shall be deemed to be a plaint in
the suit and shall proceed in the ordinary manner, except that the plaintiff will not have to pay
court fees or process fees.
The court may assign a pleader to an indigent person if he is not represented by a pleader. The
central government or the State government may make provisions for rendering free legal aid
and services to indigent persons to prosecute their cases. A defendant can also plead set-off or
counter claim as an indigent person.

Where permission is rejected: Rules 15-15A

Where the court rejects an application to sue as an indigent person, it will grant time to the
applicant to pay court fees. An order refusing to allow an applicant to sue as an indigent person
shall be a bar to a subsequent similar application. However, this does not debar him from suing
in an ordinary manner, provided he pays the costs incurred by the Government pleader and the
opposite party in opposing the application.

Revocation of permission
Order 33 Rule 9 states that the court may, on an application by the defendant or by the
Government pleader, revoke permission granted to the plaintiff to sue as an indigent person in
the following cases:

1. Where he is in guilty of vexatious or improper conduct in the course of the suit; or

2. Where his means are such that he ought not to continue to sue as an indigent person; or
3. Where he has entered into an agreement under which another person has obtained an interest
in the subject-matter of the suit.

Costs
Order 33 Rule 16 states that the costs of an application to sue as an indigent person shall be
the costs in the suit.

1. Where indigent person succeeds. – As per Rule 10 where the plaintiff (indigent person)
succeeds in the suit, the court shall calculate the amount of court fees and costs and recover from
the party as ordered by the court.
2. Where indigent person fails. – As per Rule 11 and Rule 11-A where the plaintiff
(indigent person) fails or the suit abates, the court shall order him (plaintiff) to pay court fees and
costs.

Realization of court fees

Where an indigent person succeeds in a suit, the state government can recover court fees from
the party as per the direction in the decree and it will be the first charge on the subject-matter of
the suit. Where an indigent person fails in the suit, the court fees shall be paid by him. Where the
suit abates on account of the death of a plaintiff, such court fees would be recovered from the
estate of the deceased plaintiff.

Appeals by Indigent Persons

As per Order 44 Rule 1, any person entitled to prefer an appeal, who is unable to pay court fee
required for memorandum of appeal, may present an application accompanied by a
memorandum of appeal, and may be allowed to appeal as an indigent person.

The present position is that an indigent person may also file an appeal on all the grounds
available to an ordinary person. An indigent person can also file cross-objections.

Q.7 What do you mean by Inter-pleader suit? Discuss the conditions relating to
Inter-pleader suit. What is the test to determine its institution?

ANS. Section 88 and order XXXV of the Civil Procedure Code 1908 deals with the
provision of inter-pleader suit. The inter-pleader suit is a suit in which several claimants who are
claiming the property against each other. In such type of suit the matter in dispute is the title to
the movable or immovable property or money which is claimed by two or more persons against
each other. The main object of an interpleader suit is to get claims of revel dependent and
dedicated.

Meaning and definition of interpleader suit

Dictionary meaning of Interplead is to go to trial with each other in order to determine a right
on which the action of a third party depends. It is a civil procedure that allows a plaintiff or a
defendant to initiate a lawsuit in order to compel two or more other parties to litigate a dispute

Where interpleader suit may be reinstituted (Section 88 CPC)

Where two or more persons claim adversely to one another the same debts, sum of money or
other property, movable or immovable, from another person, who claims no interest therein other
than for charges or costs and who is ready to pay or deliver it to the rightful claimant such other
person may institute a suit of interpleader against all the claimants for the purpose of obtaining a
decision as to the person to whom the payment or delivery shall be made and of obtaining
indemnity for himself:

Provided that where any suit is pending in which the rights of all parties can properly be decided,
no such suit of interpleader shall be instituted.

Object of interpleader suit -

The main object of filing an interpleader suit is to get claims of rival dependents adjudicated.
Conditions:
a) There must be debt, sum of money or other movable or immovable property in
dispute.
b) There must be two or more persons claiming it adversely to one another.
c) The person from whom such debt, money or movable or immovable property is
claimed must not be claiming interest therein other than two charges and cost and
he must be ready and willing to pay or deliver it to the rightful claimant.
d) There must be no suit pending wherein the rights of rival claimants and can be
properly adjudged.

Who cannot file interpleader suit - (Order XXXV Rule 5)

An agent cannot sue his principal or a tenant his landlord for the purpose of compelling
them to interplead with persons other than persons claiming through such principles or landlords.

Q.8 What is notice? What is the purpose and object of notice U/S 80 of C.P.C.?
How can a suit be instituted against the government or its employees
acting in official capacity?

ANS. Section 80 of the CPC provides for sending a notice to the government or a public
officer if one wants to institute a suit against the government or against a public officer in
respect of any act purporting to be done by such public officer in his official capacity until the
expiration of two months. The object of the notice is to give Secretary of State or the public
officer an opportunity to reconsider his legal position and to make amends or afford restitution
without recourse to a court of law. (Ghanshyam Das v. Union of India, (1984) 3 SCC Del 298).

This section has been enacted as a measure of public policy and the underlying purpose is the
advancement of justice and securing of public good by avoidance of unnecessary litigation
Further, it has been intended to alert the Government or a public officer to negotiate just claims
and to settle them if well-founded without adopting an unreasonable attitude by inflicting
wasteful expenditure on the public exchequer.(State of Punjab v. Geeta Iron & Brass Works
Ltd., (1978) 1 SCC 68).
The Supreme Court, in the landmark case of Bihari Chowdhary v. State of Bihar, AIR 1984
SC 1043, has stated that “The object of the section is the advancement of justice and the securing
of public good by avoidance of unnecessary litigation.” This project analyses the position of the
section as it stands today and its applicability.

NOTICE UNDER SECTION 80(1)

Suits between individuals require no notice to be given to the defendant by the plaintiff before
the filing of a suit. However as per Section 80 of the Code of Civil Procedure, 1908, no suit will
be instituted against the Government or against a public officer with regards to any act done by
such an officer in his official capacity, until the expiration of two months after the notice in
writing has been delivered to, or left at the office of:

(a) in the case of a suit against the Central Government, except where it relates to a railway, a
Secretary to that Government;
b) in the case of a suit against the Central Government where it relates to a railway, the General
Manager of that railway;
(c) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief
Secretary to that Government or any other officer authorized by that Government in this behalf;
(d) in the case of a suit against any other State Government, a Secretary to that Government or
the Collector of the district;
(e) in the case of a public officer, delivered to him or left at his office, stating the cause of action,
the name, description and place of residence of the plaintiff and the relief which he claims.

AMENDMENT
The amendment to this section had made some changes in 1976. By the amending act of 1976
section 80 has been extensively amended. Main changes consist of in the insertion of subsection
(2) and (3) which are totally new. Sub-section (2) has been inserted to permit the institution of a
suit without notice but subject to the important restriction prohibiting the grant of ‘relief in the
suit whether interim or otherwise’ except after giving a reasonable opportunity of showing cause
in respect of the relief prayed for in the suit. Subsection (3) prohibits dismissal of a suit where
the notice, has been given but suffers from certain technical deficiencies.

It is expected from public authorities that they will let the plaintiff know their stand within the
statutory period or in any case if has chooses to take up litigation. In certain cases, the court may
be obliged to draw an adverse presumption if the notice is not acknowledged or telling the
plaintiff of its stand and if no stand is taken during the trial it may be considered as an
afterthought. (New India Assurance Co. Ltd v. Delhi Development authority A 1991 Del
298,301)

NATURE AND APPLICABILITY

Section 80 enumerates two types of cases i) suits against the government, and ii) suits against
public officers in respect of acts done or purporting to be done by such public officers in their
official capacity. Regarding the former, the notice is required to be given in all cases. Regarding
the latter, notice is necessary only when the suit is in respect of any act “Purporting to be
done” by the public officer in the discharge of his duty, not in any other cases, (State of
Maharashtra v. Chander Kant, (1977) 1 SCC 257). Although it has been said that substantive
rights are to be determined in accordance with the provision of the Constitution [Nirmal Chand
v. Union of India, AIR 1966 SC 1068), Section 80 of the Code is not a procedural provision, but
a substantive one.
A statutory body may be an instrumentality of the state within the meaning of Art. 12 of the
Constitution, (Sukhdev Singh v. Bhagat Ram, AIR 1975 SC 1331) nevertheless, it would not
answer the description of ‘government’ as it is understood in law and in the context of S. 80.

This section is explicit and mandatory and admits of no implications or exceptions;

(Ramabrahma v. Dominion of India AIR 1958 Cal 183).The language of this section is
imperative and absolutely debars a court from entertaining a suit instituted without compliance
with its provisions. If the provisions of the section are not complied with, the plaint must be
rejected under O. 7, r. 11(d) (Jagadish Chandra v. Debendraprasad AIR 1931 Cal 503).

Section 80 is mandatory and a suit filed before the expiry of the period of two months, which
does not necessarily mean 60 days but has to be calculated month-wise[xiv], after the serving of
notice as per S. 80(1) is not maintainable. (Bihari Chowdhry v. State of Bihar AIR 1984 SC
1043).

ESSENTIALS
A notice under S. 80 must contain
1. name, description, and place of residence of the person giving notice;
2. a statement of the cause of action; and
3. the relief claimed by him.

In considering whether the essential requirements of the section have been complied with, the
Court should ask the following questions: (State of A.P. v. Gundugola Venkata, AIR 1965 SC
11).
1. Whether the name, description, and residence of the plaintiff are given so as to enable the
authorities to identify the person giving the notice?
2. Whether the cause of action and the relief which the plaintiff claims have been set out
with sufficient particulars?
3. Whether such notice in writing has been delivered to or left at the office of the
appropriate authority mentioned in the section? ; and
4. Whether the suit has been instituted after the expiration of two months after notice has
been served, and the plaint contains a statement that such a notice has been so delivered
or left?

NOTICE WHETHER EMPTY FORMALITY?

The statutory notice served in pursuance of section 80, serves the objective of providing an
opportunity to the government or a public officer to take the matter in the reconsideration and
take an appropriate decision which is in accordance with law. The notice by itself was not
intended to be an empty formality but it has become one.
The administration is often unresponsive and shows no courtesy even to intimate the aggrieved
party why his claim is not accepted (Bihari Chowdhary v. State of Bihar ,(1984) 2 SCC 627).
The reason behind the enactment of this section was as a measure of public policy, the purpose
was the advancement of justice and securing of the good of the people by avoiding unnecessary
litigation.
Krishna Iyer J. has stated “We like to emphasize that Governments must be made
accountable by Parliamentary social audit for wasteful litigation expenditure inflicted on the
community by inaction. A statutory notice of the proposed action under S. 80 C.P.C. is intended
to alert the State to negotiate a just settlement or at least have the courtesy to tell the potential
outsider why the claim is being resisted.

Now S. 80 has become a ritual because the administration is often unresponsive and hardly lives
up to the Parliament’s expectation in continuing s. 80 in the Code despite the Central Law
Commission’s recommendations for its deletion”

The law commission was in fact against the provision of issuing a notice under section 80, before
more than fifty years it has noticed that the section had inflicted hardship in cases where
immediate relief was needed and in most of the cases the notice remained unanswered.

NOTICE WHETHER MANDATORY?

The provisions in section 80 are express and explicit by themselves and make the serving of
notice mandatory by not admitting any implications or exceptions. They are imperative in nature
and must be strictly complied with. Notice whether under section 80 is the first step in the
litigation. A court cannot entertain any suit unless the notice is duly served to the public official
under section 80(1). If a section had done injustice, it is a matter which can be rectified by the
legislature and not by a court.

A plaintiff filed a suit to stop the tax officer from selling the suit property he purchased from the
defendant, who was in arrears of income tax, it was held by the court that the central government
was a necessary party to the suit. Hence unless a notice has been served under Section 80, the
suit will not be maintainable.

The section is imperative and must undoubtedly be strictly construed; failure to serve a notice
complying with the requirements of the statute will entail dismissal of the suit. (Ghanshyam
Dass v.Dominion of India 1984 3 SCC 46).

Construction of Notice: As mentioned before the compliance with section 80 by serving a

notice is mandatory. But it is a procedural provision, a means by which the court impart justice.
A notice under this section must not be construed in a pedantic manner divorced from common
sense.

Pollock has stated that “we must import a little common sense into the notice of this kind. A
statutory notice must be reasonably construed, keeping in mind the ultimate objective that an
interpretation should not lead to injustice. Every venial defect or error not going to the root of
the matter cannot be allowed to defeat justice or to afford an excuse to the government or a
public officer to deny just claim of an aggrieved party”.

The question has to be decided by reading the whole notice in totality and in a reasonable
manner. If the notice on such a reading the court is satisfied that the information which was
necessary to be provided to the defendants by the plaintiff was in fact provided, inconsequential
defects or error is immaterial and will not vitiate the notice. The provisions of the section are not
intended to be used as booby-traps against ignorant and illiterate persons. (Raghunath Das v.
Union of India AIR 1969 SC 674)

ACT PURPORTING TO BE IN OFFICIAL CAPACITY

The expression “any act to be done by such public officer in his official capacity” takes within its
sweep acts as also illegal omission. Likewise, it also covers the past as well as future acts. All
acts done or which could have been done under the color or guise by an officer in the ordinary
course of his official duties would be included therein. If the allegations in the plaint relate to an
act which was purported to be done by a public officer in his official capacity means that the said
act must be such that it could be done ordinarily by a person in the ordinary course of his official
duties. It does not cover acts outside the sphere of his duties. There must be something in the
very nature of the act complained of which attaches to the official character of the person doing
it.
The test to be applied in these cases is whether the officer can reasonably claim protection for the
acts that he commits or that it was performed by him purely in his private or individual capacity.
In the case of him claiming protection notice under Section 80 is necessary, and in case it was
performed by him purely in his private or individual capacity it is not.

WAIVER OF NOTICE
Although, Under Section 80 of the civil procedure code mandates issuance of a notice for the
institution of notice, it is considered to be a mere procedural requirement and not a substantive
need. This is because the issuance of a notice does not necessarily affect the jurisdiction of the
court in question. In the case of Dhina Singh v. Union Of India, It was held that this notice is
for the benefit of the government or the public officer, it is the prerogative of the government to
choose to waive the right. Furthermore in the case, Commr. Of taxes v. Golak Nath, it was held
by the courts that the facts of the particular case were vital to see if the right could be waivered
or not.

FORM OF NOTICE
No particular has been prescribed under the code. Due to the above, there is no need to give it in
any particular form to give a notice under Section 80. The mere satisfaction of all conditions
prescribed in this section is sufficient. Also, in the Amar Nath v. Union of India, it was held that
the notice must merely inform the opposite party about the nature and the basis of the claim and
relief sought.
MODE OF SERVICE
A notice submitted under section 80 of the civil procedure code must be given to, or left at the
office of, the appropriate authority specified. This was held in the State of A.P V. Gundugola
Venkata. IT has been specified in the code as to who the appropriate authority is under section
80. As per the section, it must be given to the secretary of the department or the collector of the
district. Under this section, personal delivery of the notice is not necessary, thus making the
words “left at the office” redundant. The section, however, does not prohibit the personal
delivery of the notice. It further allows the notice to be sent through registered post.
 TECHNICAL DEFECT IN NOTICE: SECTION 80(3)
The Code of Civil Procedure (Amendment) Act, 1976 gives a lot of clarity on a suit issued
against the government if there is a defect in the notice issued. The Amendment added
Subsection 3 to section 80 whereby it has been explicitly stated that no suit against the
government has been dismissed merely on the ground of defective notice. It also adds that in
such a case the name, residence or the residence of the plaintiff is specified in the notice,
allowing for the identification of the plaintiff in the notice delivered or left at the authority or
public officer and the cause of action and the relief claimed by the plaintiff had been
substantially indicated therein. This means that if the notice contained basic details, it would be
sufficient.

The above amendment to the code was made with the intention that justice is not denied to the
aggravated parties on the grounds of technical defects. Therefore, a notice under section 80
cannot be held to be invalid and no suit can be dismissed on the grounds that there has been a
certain technical defect or error in the notice delivered or on the ground that such notice was
served in an improper way.

Also, the joint committee stated the following”

“The committee also feels that with a view to seeing that the just claims of many persons are not
defeated on technical grounds, the suit against the government or the public officer should not be
dismissed merely by reason of any technical defect or error in the notice or any irregularity in
the service of the notice if the name, description and residence of the plaintiff have been so given
in the notice as to enable the appropriate authority or public officer to identify the person
serving the notice, and the notice had been delivered or left in the appropriate authority, and the
cause of action and the relief claimed has been properly indicated in the notice.”
In copulating the period of limitation for instituting a suit against the government or public
officer, the period of notice has to be excluded.

LEAVE OF COURT: SECTION 80(2)

Through the amendment made to the civil procedure code in 1976, subsection 2 was added to
section 80. As per this, the aggrieved party can institute a suit against the government for
obtaining urgent or immediate relief with the leave of the court even without serving the notice
to the government or public office. This subsection, thus, engrafts an exception to the rule laid
down in subsection (1) of section 80 and allows the plaintiff to obtain urgent relief in grave cases
even without issuing the notice.
The main objective of this is to prevent any failure or miscarriage of injustice in urgent cases. It
is the urgency and immediate relief which would weigh with the court while dealing with a
prayer to dispense with the requirement of notice and not the merits of the case.Subsection (2)
however, is enacted in such a way that in this type of case, the court will not have any authority
to grant relief, interim or otherwise, unless a reasonable opportunity has been given to the
government to show cause in respect of the relief prayed for in the suit.

WRIT PETITION
As per Section 80 of the code, it can be stated that a writ petition filed under article 32 and article
226 of the constitution does not constitute a suit as per the definition and scope of this section.
Hence, prior notice to the government or public officer is not necessary before filing a petition in
the Supreme Court or in a high court.

Computation of Suit:
In computing the period of limitation for filing a suit, the period of notice should be excluded.

Premature Suit:
A suit instituted before the expiry of two months of notice as required by section 80 of the code
is liable to be dismissed only on that ground.

Appeal:
An order passed under section 80 is neither a decree nor an appealable order, and hence, no
appeal lies against the order.

Revision:
Under Section 115 of the code, an order given under Section 80 is revisable as it considered as a
“case decided”. If a court subordinate to the High Court makes an order which is patently illegal
and suffers from jurisdictional error, then it can be rectified by the High Court.

Title of Suit: Section 79:

In any suit filed against the Government, The Government or the authority against whom the
case is filed shall be named as a party in the following manner
1. In case of a suit by or against the central government, the Union of India
2. In the case of a suit by or against the state government, the State.

The statement in Plaint:

Even after the expiration of two months, a plaint can be presented before the court. This must
contain a statement which, under section 80 of the code, has a statutory notice which has been
delivered or left as per subsection (1) of section 80. An omission to make such a statement is
fatal, and in its absence, the plaint will be rejected by the court.

Parties:
Where a suit is filed against a public officer in respect of any act purporting to be done in his
official capacity, the government should be joined as a party to the suit.

PROCEDURE: RULE 27
In the case where there is a suit filed by or against the Government, then such a plaint will have
to be signed by any authorized person appointed by the Government. It is also necessary that this
person is well versed with facts of the case. If such a person is authorized by the government,
then he shall be deemed to be a recognized agent of the Government as per the Civil procedure
code. It has also been given in the code that multiple summons may be issued to a government
pleader.
There is no need for the state counsel to file a Vakalatnama. Reasonable time should be granted
to the government for filing a written statement. The courts, in all cases, must assist the
Government to arrive at a settlement in all cases where it is a party. This is considered as one of
the main duties of the court. There are instances where the suit filed may have a substantial
question of law or that it may require the interpretation of the law or the constitution.

In such cases, the court will need to send a notice to the Attorney General, if the question is
regarding a central law or it will need to send a notice to the advocate general if the suit deals
with state law. This has been given in Order 27-A of the Code.

OTHER PRIVILEGES
In the case where a suit has been brought up against any public officer, then it has been dictated
by Rule 5-A that the Government must be a joined party to the suit. An obligation has been
bestowed on the courts by Rule 5-B to assist the government or the public officer in question is
coming to a settlement. Whenever the public servant is the defendant, then rule 7 ensures that
there is a reasonable amount of time given to the public servant to make a reference to the
government. Rule 8-A protects all those official against whom suits have been filed when they
were discharging their duty or acting in an official capacity.

Section 81 is also considered as an important privilege given to a public servant. It allows the
court to exempt the public servant from appearing before the court. It can do this only if believes
that by making the person absenting himself from his duty, there is a loss caused to the public. It
has also been stated under section 82 that no execution will be entertained by any court against
any decree passed by the government is a public officer. The only condition that must be fulfilled
for seeking this is that it must be unsatisfied for three months since the date the decree was
passed.

CONCLUSION
This project has explained what suits against the government and public officials are. The project
starts off by saying what exactly is stated in Section 80(1) which explains how a suit must be
filed. After this, it was felt that there had to be a special emphasis given to the amendment and
how it changed the whole sections pertinent to the above topic.

There is also a mention about the nature and applicability of such suits with a mention about the
various essentials mentioned under Section 80. This project also tries to answer some of the
questions with respect to this topic such as whether notices in this matter is just a mere formality
or if they are mandatory. As this is with respect to government and public officers, this project
also speaks about what happens to acts that are conducted in an official capacity.

After concluding the above topics, this project attempts to elucidate the various aspects of these
types of suits. It speaks about whether rights granted under this can be waived, the forms in
which notices can be served and also the modes in which these have to be served. As Justice Sen
stated, “laws can survive only on a technicality.” Keeping in view with it, this project speaks
about some of the technicality of law, like what happens when there is a technical defection in
the notice, or about the exclusion period of the notice or when there is a need for a judgment on
an urgent basis.

UNIT-III
Q.1 Define Summon. What are the modes of service of summon on the
defendant? Discuss fully.

ANS. A summons is a legal document that is issued by a Court on a person involved in a

legal proceeding. When a legal action is taken against a person or when any person is required to
appear in the court as a witness in a court proceeding, to call upon such person and ensure his
presence on the given date of the proceedings, summons is served. If the summons is not duly
served then no action can be taken against the defendant. If defendant fails to attend court after
receiving summons, he will be ex-parte by the Court. Section 27 and Order V of the Code
of Civil Procedure, 1908 (In short ‘CPC’) deal with ‘Service of Summons’ on the defendant/
Respondent. Order 16 deals with summoning and attendance of witnesses.

Order V of CPC contains Rules 1 to 30. These provisions deal with issue and service of
summons. Under the Code of Civil Procedure, 1908, there are different modes of effecting
service of summons on defendant. It is needless to say that non-service of summons and notices
in a civil suit proceedings is a great hurdle for speedy disposal of a civil suit. There are several
reasons for non-service of summons to defendant in time. Furnishing correct address of the
defendant in the plaint would be helpful to avoid delay in service of summons. Recently, the
Courts have expanded the scope of service of summons through information technology. We
often across with the situations that in many civil cases, defendant takes plea that summons was
not duly served on him. Similarly, in general, court often uses the method of substitute of service
of summons by way of paper publication.

The prescribed modes of service of summons are as follows:

1. Personal or Direct Service:

Wherever it is practicable, service should be made on the defendant in person, unless he has an
agent empowered to accept service in which case service on such agent shall be sufficient.
Where there are two or more defendants, service should be made on each defendant. (O. 5, rr.
10, 11).

Where the defendant is absent from his residence at the time when the service of summons 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 he has no agent empowered to accept service of the
summons on his behalf, service may be made on any adult member or his family, whether male
or female, but not a servant. [O. 5, R. 15].
In a suit for immovable property service may be made on any agent in charge of the property if
the service cannot be made on the defendant personally and the defendant has no agent
empowered to accept the service.

Such personal service is also called direct service because service is made by delivering a copy
thereof to the defendant personally, or to an agent or other person on his behalf, and the signature
of the person to whom the copy is so delivered is obtained to an acknowledgment of service
endorsed on the original summons.

2. Service by affixing a copy of summons on defendant’s house

without an order of the court:
(a) Where the defendant or his agent or in their absence an adult member of the family refuses to
sign the acknowledgment, or
(b) where the serving officer, after using due diligence, cannot find the defendant who is absent
from his residence at the time when service is sought to be effected on him at his residence and
within a reasonable time and there is no such other person on whom service can be effected, 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 then shall return the original to the court from which it was issued, with a
report endorsed thereon 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. If the court is satisfied it declares the service to have been
duly effected. (O. 5, R. 17).

3. Service by registered post in addition to personal service:

The court shall, in addition to, and simultaneously with the issue of summons for service also
direct the summons to be served by registered post, acknowledgment due, addressed to the
defendant, or his agent empowered to accept the service, at the place where the defendant, or his
agent, actually and voluntarily resides or carries on business or personally works for gain. The
court, however, shall not issue a summons for service by registered post, where, in the
circumstances of the case, it considers it unnecessary.

When an acknowledgment purporting to be signed by the defendant or his agent is received by

the court, or the postal article containing the summons is received back by the court with an
endorsement purporting to have been made by a postal employee to the effect that the defendant
or his agent had refused to take delivery of the postal article containing the summons, when
tendered to him, the court Issuing the summons shall declare that the summons had been duly
served on the defendant: provided that where the summons was properly addressed, prepaid and
duly sent by registered post, acknowledgment due, the declaration referred to in this sub-rule
shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or
for any other reason, has not been received by the court within thirty days from the date of the
issue of the summons. (O. 5, R. 19-A).
 1. Delivery of summons by Court. (O. V, R. 9):

(1) Where the defendant resides within the jurisdiction of the court in which the suit is instituted,
or has an agent resident within the jurisdiction who is empowered to accept the service of the
summons, the summons shall, unless the court otherwise directs, be delivered or sent either to the
proper officer to be served by him or one of his subordinates or to such courier services as are
approved by the court.
(2) The proper officer may be an officer of a court other than that in which the suit is instituted
and, where he is such an officer, the summons may be sent to him in such manner as the court
may direct.
(3) The service of summons may be made by delivering or transmitting a copy thereof by
registered post acknowledgment due, addressed to the defendant or his agent empowered to
accept the service or by speed post or by such courier services as are approved by the High Court
or by the court referred to in sub-rule (1) or by any other means of transmission of documents
including fax message or electronic mail service provided by the rules made by the High Court :
Provided that the service of summons under this sub-rule shall be made at the expenses of the
plaintiff.
(4) Notwithstanding anything contained in sub-rule (1), where a defendant resides outside the
jurisdiction of the court in which the suit is instituted, and the court directs that the service of
summons on that defendant may be made by such mode of service of summons as is referred to
in sub-rule (3), (except by registered post acknowledgment due), the provisions of rule 21 shall
not apply.
(5) Where an acknowledgment or any other receipt purporting to be signed by the defendant or
his agent is received by the court a postal article containing the summons is received back by the
court with an endorsement purporting to have been made by a postal employee or by any person
authorised by the courier to the effect that the defendant or his agent had refused to take delivery
of the postal article containing the’ summons or had refused to accept the summons by any other
means specified in sub-rule (3) when tendered or transmitted to him, the court issuing the
summons shall declare that the summons had been duly served on the defendant:

Provided that where the summons was properly addressed, prepaid and duly sent by registered
post acknowledgment due, the declaration referred to in this sub-rule shall be made
notwithstanding that fact that the acknowledgment having been lost or mislaid, for any other
reason, had not been received by the court within thirty days from the date of issue of summons.

(6) The High Court or the District Judge as the case may be, shall prepare a panel of courier
agencies for the purposes of sub-rule (1).

2. Summons given to the plaintiff for service (O. V, R. 9-A):

(1) The court may, in addition to the service of summons under rule 9, on the application of the
plaintiff for the issue of a summons for the appearance of the defendant permit such plaintiff to
effect service of such summons on such defendant and shall, in such a case, deliver the summons
to such plaintiff for service.
(2) The service of such summons shall be effected by or on behalf of such plaintiff by delivering
or tending to the defendant personally a copy thereof signed by the Judge or such officer of the
court as he may approve in this behalf and sealed with the seal of the court or by such mode of
service as is referred to in sub-rule (3) of rule 9.

(3) The provisions of rule 18 shall apply to a summons personally served under this rule as if the
person effecting service were a serving officer.

(4) It such summons, when tendered, is refused or if the person served refuses to sign any
acknowledgment of service or for any reason such summons cannot be served personally, the
court shall on the application of the party, re-issue such summons to be served by the Court in
the same manner as a summons to a defendant.

3. Substituted service:

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 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. Service may be ordered to be
effected by publication in a local daily newspaper. Service substituted by order of the court shall
be as effectual as if it had been made on the defendant personally. (O. 5, R. 20).

4. Delivery of summons to the plaintiff or his agent. (O. V, R. 9):

(1) The court shall issue summons and deliver the same to the plaintiff or his agent, for service,
and direct the summons to be served by registered post, acknowledgment, due or by speed post
or by such courier service as may be approved by the High Court or by fax message or by
Electronic Mail Service by such other means as the High Court may prescribe by rules,
addressed to the defendant to accept the service at the place where the defendant or his agent
actually and voluntarily resides or carries on business or personally works for gain.

(2) The plaintiff or his agent shall send the summons by any means as directed by the court under
sub-rule (1) within two days from the delivery of summons to the plaintiff by the court under that
sub-rule.

(3) When an acknowledgment or any other receipt purporting to be signed by the defendant or
his agent received by the court or postal article containing the summons is received back by the
court with an endorsement purporting to have been made by a postal employee or by any
authorised person to the effect that the defendant or his agent had refused to take delivery of the
postal article containing the summons or refused to accept the summons by any other means
specified in sub-rule (1), when tendered or transmitted to him, the court issuing the summons
shall declare that the summons had been duly served on the defendant: Provided that summons
was properly addressed, pre-paid and duly send by registered post acknowledgment due, the
declaration referred to in this sub-rule shall be made notwithstanding the fact that the
acknowledgment having been lost or misled or for any other reasons has not been received by the
court on the date fixed by it.

8. Simultaneous issue of summons for service by the court-controlled

process. (O. V, R. 9-A):

(1) The court may, in addition to and simultaneously with the delivery of summons for service to
the plaintiff as provided in the manner provided in Rule 9, may also direct that summons to be
served on the defendant or his agent empowered to accept the service at the place where the
defendant or his agent actually and voluntarily resides or carries on business or personally works
for gain.

(2) The summons shall, unless the court otherwise directs, be delivered or sent to the proper
officer in such manner as may be prescribed by the High Court to be served by him or one of his
subordinates.

(3) The proper officer may be an officer of the Court other than that in which the suit is
instituted, and where he is such an officer, the summons may be sent to him in such manner as
the court may direct.

(4) The proper officer may serve the summons by registered post acknowledgment due, by speed
post, by such courier service as may be approved by the High Court, by fax message, by
Electronic Mail Service or by such other means as may be provided by the rules made by the
High Court.

9. Service of summons where defendant resides within the jurisdiction of another

court. (O. V, R. 21):
A summons may be sent by the court by which it is issued, whether within or without the state
either by one of its officers or by post or by such courier service as may be approved by the High
Court, by fax message or by Electronic Mail Service or by any other means as may be provided
by the rules made by the High Court, to any court (not being the High Court) having jurisdiction
in the place where the defendant resides.

10. Service within Presidency Towns of summons issued by Courts

outside (O. V, R. 22):
Where a summons issued by any court established beyond the limits of the towns of Calcutta,
Madras and Bombay is to be served within any such limits, it shall be sent to the court of small
causes within whose jurisdiction it is to be served.

11. Service on defendant in prison. (O. V, R. 29):

Where the defendant is confined in a prison, the summons shall be delivered or sent by post or
by such courier service as may be approved by the High Court, by fax message or by Electronic
Mail Service or by any other means as may be provided by the rules made by the High Court, to
the officer-in-charge of the prison for service on the defendant.

12. Service where defendant resides out of India and has no agent. (O.
V, R. 25):

Where the defendant resides out of India and has no agent in India empowered to accept service,
the summons shall be addressed to the defendant at the place where he 1s residing and sent to
him by post or by such courier service as may be approved by the High Court, by fax message or
by Electronic Mail Service or by any other means as may be provided by the rules made by the
High Court:

Provided that where any such defendant resides in Bangladesh or Pakistan, the summons
together with copy thereof, may be sent for service on the defendant, to any court in that country
(not being the High Court) having jurisdiction in the place where the defendant resides:

Provided further that where any such defendant is a public officer in Bangladesh or Pakistan (not
belonging to Bangladesh or, as the case may be, Pakistan Military, Naval or Air Forces) or is a
servant of a railway company or local authority in that country, the summons together with a
copy thereof, may be sent for service on the defendant to such officer or authority in that country
as the Central Government may, by notification in the Official Gazette, specify, in this behalf.

13. Service in foreign country through Political Agent or Court. (O. V.

R. 26).—Where:

(a) in the exercise of any foreign jurisdiction vested or a court has been established or contained,
with power to serve a summons, issued by a Court under this Code, in any foreign country in
which the defendant actually and voluntarily resides, carries on business or personally works for
gain, or

(b) the Central Government has, by notification in the Official Gazette, declared, in respect of
any court situate in any such territory and not established or continued in the exercise of any
such jurisdiction as aforesaid, that service by such court of any summons issued by a Court under
this Code shall be deemed to be valid service, the summons may be sent to such Political Agent
or court, by post or otherwise, or if so directed by the Central Government but the purpose of
being served upon the defendant, and, if the Political Agent or Court return the summons with an
endorsement purporting to have been made by such Political Agent or by the Judge or other
officer of the Court to the effect that the summons has been served on the defendant in the
manner hereinbefore directed, such endorsement shall be deemed to be evidence of service.

14. Summons to be sent to officers of foreign countries (O. V, R. 26-

A):
Where the Central Government has by notification in the Official Gazette, declared in respect of
any foreign territory that summons to be served on defendants actually and voluntarily residing
or carrying on business or personally working for gain in that foreign territory may be sent to an
officer of the Government of that foreign territory specified by the Central Government, the
summonses may be sent to such officer through the ministry of the Government of India dealing
with foreign affairs or in such other manner as may be specified by the Central Government; and
if such officer returns any such summons with an endorsement purporting to have been made by
him that the summons has been served on the defendant such endorsement shall be deemed to be
evidence of service.

15. Service on Civil Public Officer or on servant of Railway Company or local

authority (O. V, R. 27):
Where the defendant is a public officer, officer (not belonging to the Indian military, navel or, air
force) or is the servant of a railway company or local authority the Court may, if it appears to it
that the summons may be most conveniently so served, send it for service on the defendant to the
head of the office in which he is employed together with copy to be retained by the defendant.

16. Service on soldiers or sailors or airman (O. V, R. 28):

Where the defendant is a soldier, sailor or airman, the court shall send the summons for service
to his commanding officer together with a copy to be retained by the defendant.

17. Substitution of letters for summons (O. V, R. 30):

(1) The Court may, notwithstanding anything hereinbefore contained, substitute for a summons a
letter signed by a Judge or such officer as he may appoint in this behalf, where the defendant
is in the opinion of the Court, of a rank entitling him to such mark of consideration.
(2) A letter substituted under sub-rule (1) shall contain all the particulars required to be stated to
a summons, and subject to the provisions of sub-rule (3) shall be treated in all respect as a
summons.
(3) A letter so substituted may be sent to the defendant by post or by a special messenger
selected by the court, or in any other manner which the Court thinks fit, and where the defendant
has an agent empowered to accept service, the letter may be delivered or sent to such agent.

Q.2 Writes notes on the following:

(a) When and how the disposal of the suit can be made by the court before
framing of issues?
(b) Can an examination of witness be made by the court before framing of
issues, if so, when?
ANS. (a) When and how the disposal of the suit can be made by the
court before framing of issues?
Despite issue is not framed, court has power to go into that question and decide that aspect of the
subject matter in case of sufficient evidence is adduced by both parties on pleadings . At this
juncture, it is appropriate to refer ruling in Mohd.Kareemuddn Khan vs. Syed Aza, where it was
observed that Defendant pleading perfection of title by adverse possession. Issue not framed.
However, evidence adduced by both sides on the disputed matter. Court is not barred to go into
that question and decide that aspect of the matter. In another case, Sunyabasi Pikra vs.
Paramanand Rana singh, it was held that'' Both parties have laid evidence, both documentary
and oral touching that issue. Non-framing that particular issue is immaterial. ''

It is thus clear that if the there are pleadings and sufficient evidence is available on record, the
Court can go into that question, even if issue is not framed on that question, and decide that
aspect of the matter. However, in some of the cases, the matters will be remaded to the trial
courts for failure to frame issues. In Syed Mahmood vs. Dr.Manik Chandra 1998(3)
An.W.R.340, it was observed that issues were framed and therefore, the matter remitted back to
trial court no frame issues as indicated and give reasonable opportunity to the parties to lead
evidence etc.

(b) Can an examination of witness be made by the court before framing of

issues, if so, when?

ANS. Order 14 R. 4. Court may examine witnesses or documents before framing

issues:
Where the Court is of opinion that the issues cannot be correctly framed without the
examination of some person not before the Court or without the inspection of some document
not produced in the suit, it may adjourn the framing of the issues to a future day, and may
(subject to any law for the time being in force) compel the attendance of any person or the
production of any document by the person in whose possession or power it is by summons or
other process.

UNIT-IV
Q.1 All questions regarding execution of a decree shall be determined by the
court executing the decree and not by a separate suit. Explain.

ANS. Execution of a Decree

As per Section 38, a decree may be executed either by the court which passed it or the court
to which it is sent for execution. While executing a decree, several questions and objections may
arise as to the manner of execution. It would be impractical to institute new suits to resolves such
matters. Thus, Section 47 lays down the general principal that any questions that arise in relation
to the execution of the decree should be resolved in execution proceeding itself and not by a
separate suit. Section 47 says thus –

Section 47- Questions to be determined by the Court executing decree -

(1) All questions arising between the parties to the suit in which the decree was passed, or their
representatives, and relating to the execution, discharge or satisfaction of the decree, shall be
determined by the Court executing the decree and not by a separate suit.

(3) Where a question arises as to whether any person is or is not the representative of a party,
such question shall, for the purposes of this section, be determined by the Court.

Explanation-I: For the purposes of this section, a plaintiff whose suit has been dismissed and a
defendant against whom a suit has been dismissed are parties to the suit.

Explanation-II: (a) For the purposes of this section, a purchaser of property at a sale in
execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and
(b) all questions relating to the delivery of possession of such property to such purchaser or his
representative shall be deemed to be questions relating to the execution, discharge or satisfaction
of the decree within the meaning of this section.

The objective of this section is to provide cheap and fast remedy for the resolution of any
questions arising at the time of execution. Institution of new suits would only increase the
number of suits and would also be a burden on the parties.

The scope of this section is very wide. It confers exclusive jurisdiction to the court executing the
decree in all the matters regarding the execution. It does not matter whether the matter has arisen
before or after the execution of the decree. Thus, this section should be construed liberally.

Conditions –
1. The question must be one arising between the parties or their representatives to the suit in
which the decree is passed.
2. The question must relate to the execution, discharge, or satisfaction of the decree.

As held in the case of Arokiaswamy vs Margaret AIR 1982, both the conditions must be
satisfied cumulatively.

What is meant by execution, discharge and satisfaction of a decree –

This expression has not been defined in the code. However, the following questions are held to
be relating to the execution, discharge and satisfaction of the decree -

whether a decree is executable, whether a property is liable to be solde in execution of a decree,

whether the decree is fully satisfied, whether the execution of the decree was postponed.
The following questions have been held as not related - whether the decree is fraudulent or
collusive, whether the decree has become in executable because of a compromise between the
parties, a question about the territorial or pecuniary jurisdiction of the court passing the decree.

Appeal and Revision

Earlier, determination made under Section 47 was deemed to be a decree under Section 2(2).
However, after the amendment in 1976, this is not so. Any determination made under an
application under Section 47 is not considered a decree and is therefore not appealable under
Section 96 or Section 100. Since it is no more a decree, a revision application under Section
115 is therefore maintainable provided the conditions stipulated in Section 115 are satisfied.

Q.2 Which court can execute the decree? At whose instance the execution of
decree can be transferred? State the grounds upon which the decree
holder can ask for the transfer of decree. Can executing court go behind
the decree?

Execution is the last stage of any civil litigation. There are three stages in litigation:
1. Institution of litigation.
2. Adjudication of litigation.
3. Implementation of litigation.
Implementation of litigation is also known as execution. A decree will come into existence
where the civil litigation has been instituted with the presentment of the plaint. The decree means
operation or conclusiveness of judgment. Implementation of a decree will be done only when
parties have filed an application in that regard. A decree or order will be executed by the court as
facilitative and not an obligation. If a party is not approaching the court, then the court has no
obligation to implement it suo motu. A decree will be executed by the court which has passed the
judgment. In exceptional circumstances, the judgment will be implemented by another court
which is having competency in that regard.
Execution is the medium by which a decree-holder compels the judgment-debtor to carry out the
mandate of the decree or order as the case may be. It enables the decree-holder to recover the
fruits of the judgment. The execution is complete when the judgment-creditor or decree-holder
gets money or other thing awarded to him by judgment, decree or order.
As stated above, a decree may be executed either by the court which passed it or by the court to
which it is sent for execution. Section 39 provides for the transfer of a decree by the court which
has passed it and lays down the conditions therefore.
As a general rule, the court which passed the decree is primarily the court to execute it, but such
court may send the decree for execution to another court either suo motu (of its own motion) or
on the application of the decree-holder if any of the following grounds exists:

(i) The judgment-debtor actually and voluntarily resides or carries on business, or

personally works for gain, within the local limits of the jurisdiction of such
court; or
 (ii) The judgment-debtor does not have property sufficient to satisfy the decree
within the local limits of the jurisdiction of such court which passed the
decree but has property within the local limits of the jurisdiction of such court;
or
(iii) The decree directs the sale or delivery of immovable property situate outside
the local limits of the jurisdiction of such other court; or
(iv) The court which passed the decree considers it necessary for any other reason
to be recorded in writing that the decree should be executed by such other
court.

The provisions of Section 39 are, however, not mandatory and the court has discretion in the
matter which will be judicially exercised by it. The decree-holder has no vested or substantive
right to get the decree transferred to another court. The right of the decree-holder is to make an
application for transfer which is merely a procedural right. By the Amendment Act, of 1976,
sub-section (3) has been added to section 39. It clarifies that the transferee court must have
pecuniary jurisdiction to deal with the suit in which the decree was passed. Likewise, sub-section
(4) of section 39, as added by the Code of Civil Procedure (Amendment) Act, 2002 further
clarifies that the court passing the decree has no power to execute such decree against a person or
property outside the local limits of its territorial jurisdiction.

Duties of Executing Court:

An executing court cannot go behind the decree. It has to execute the decree as it is. It cannot
question correctness or otherwise of the decree. But where the terms of the decree are vague or
ambiguous, it is the duty of the executing court to interpret the decree with a view to find out and
ascertain the meaning of the terms used. Again, where there is inherent lack of jurisdiction on the
part of the court passing the decree, the executing court refuse to execute the decree.

Objection to Validity of Decree:

A court executing a decree cannot go beyond the decree. But an objection as to its validity can be
raised in execution proceedings if such objection appears on the face of the record. If the
objection requires examination or investigation of facts, the executing court cannot entertain
such objection.

Q.3 State and explain the principles governing the grant of interim
injunctions?

ANS. INTRODUCTION

An injunction is a prohibitive writ issued by a court of equity, at the suit of a

party complainant, directed to a party defendant in the action, or to a party made a defendant
for that purpose, forbidding the latter to do some act, or to permit his servants or agents to do
some act, which he is threatening or attempting to commit, or restraining him in the continuance
thereof, such act being unjust and inequitable, injurious to the plaintiff, and not such as can be
adequately redressed by an action fit law. (Black’s Law Dictionary)

For example, if it so happens that a person is demolishing a building you have possible claims
on, you may ask the competent court to order such person to not demolish the building until the
trial for the claim of the building is complete and judgment goes in his favour.

The law of injunction has been provided for by the Specific Relief Act, 1963 (hereinafter,
the Act), and is also regulated by the Code of Civil Procedure, 1908 in India.

Types of Injunctions in the Indian Law

Generally speaking, there are two types of injunctions under the Act (Sections 36 of the Specific
Relief Act, 1963), as mentioned below:

1. Temporary Injunction
2. Perpetual/Permanent Injunction.

Both the types of injunctions are discussed below.

Temporary Injunction:
Temporary injunctions, as the name suggests, are the injunctions that are given for a
specific period of time or until the court gives further order regarding the matter in concern.
They can be obtained during any stage of the trial and are regulated by the Code of Civil
Procedure (CPC), 1908 (Section 37(1) of the Specific Relief Act, 1963):

 Section 94: The section provides for supplemental proceedings, to enable the court
to prevent the ends of justice from being defeated. Section 94(c) states that a court
may grant temporary injunction and in case of disobedience commit the person guilty
thereof to the civil prison and order that his property be attached and sold. Section
94(e) of the Code enables the court to make interlocutory orders as may appear to it to
be just and convenient.

 Section 95: If it is found by the court that there were no sufficient grounds to grant
the injunction, or the plaintiff is defeated in the suit, the court may award reasonable
compensation to the defendant on his application claiming such compensation.

 Order XXXIX:

o Rule 1: It enlists the situations when a court may grant temporary

injunction. These are:
1. Any property in dispute in a suit is in danger of being wasted, damaged or alienated
by any party to the suit, or wrongfully sold in execution of a decree, or
 2. the defendant threatens, or intends, to remove or dispose of his property with a view to
defrauding his creditors,
3. the defendant threatens to dispossess the plaintiff or otherwise cause injury to the
plaintiff in relation to any property in dispute in the suit.

 Rule 2: It provides that an interim injunction may be granted for restraining the
defendant from committing a breach of contract or other injury of any kind to the
plaintiff.

 Rule 3: It states that a court shall direct a notice of application to the opposite party,
before granting the injunction to the plaintiff. However, if it seems to the court that the
purpose of the injunction would be defeated by the delay, it may not provide the
notice.

 Rule 4: It provides for vacation of already granted temporary injunction.

 Rule 5: It states that an injunction directed to a corporation is binding not only on

the corporation itself, but also on all members and officers of the corporation whose
personal action the injunction seeks to restrain.

In the M. Gurudas and Ors. case, AIR 2006 SC 3275, the Hon’ble Supreme Court of India has
opined, “while considering an application for injunction, the Court would pass an order
thereupon having regard to prima facie, balance of convenience and irreparable injury.”

1. Prima Facie Case:

Prima Facie literally means, on the face of it. In Martin Burn Ltd. vs. R.N. Banerjee, 1958
SCR 514, while discussing a the meaning of the ‘prima facie’ case, the court said:

“A prima facie case does not mean a case proved to the hilt but a case which can be said to be
established if the evidence which is led in support of the same were believed. While determining
whether a prima facie case had been made out the relevant consideration is whether on the
evidence led it was possible to arrive at the conclusion in question and not whether that was the
only conclusion which could be arrived at on that evidence.”

Prima facie case is a must to be eligible to obtain a temporary injunction. However, it is not
sufficient and temporary injunction cannot be granted if the damage that will be caused if the
injunction is not given is not irreparable.(M/S Best Sellers Retail(I) P.Ltd vs M/S Aditya Birla
Nuvo Ltd.& Ors (2012) 6 SCC 792)

2. Irreparable Injury:
‘Irreparable injury’ means such injury which cannot be adequately remedied by damages. The
remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff
in case of success in the suit would not place him in the position in which he was before
injunction was refused.

3. Balance of Convenience:
In the case of Anwar Elahi, (Anwar Elahi vs Vinod Misra And Anr. 1995 IVAD Delhi 576,
60) the court has clearly explained the meaning of ‘balance of convenience’. According to the
court:

“Balance of convenience means that comparative mischief or inconvenience which is likely to

issue from withholding the injunction will be greater than that which is likely to arise from
granting it. In applying this principle, the Court has to weigh the amount of substantial mischief
that is likely to be done to the applicant if the injunction is refused and compare it with that
which is likely to be caused to the other side if the injunction is granted.”

Permanent Injunction
A permanent injunction can be granted by the court by passing a decree made at the
hearing and upon the merits of the suit. Once such decree is passed, the defendant is
permanently prohibited from the assertion of a right, or from the commission of an act, which
would be contrary to the rights of the plaintiff. (Section 37 of the Specific Relief Act, 1963)

When can a permanent injunction be granted?

A permanent injunction may be granted:

a. To the plaintiff in a suit to prevent a breach of an obligation existing in his favour,

whether implicit or explicit. (Section 38(1) of the Specific Relief Act, 1963) However, in
a case where such an obligation arises out of a contract, the court follows the rules as
specified by Chapter II of the Act. (Section 38(2) of the Specific Relief Act,
1963) Chapter II, under Section 9 provides that a person may claim relief in respect to
a contract, by pleading in his defense, any of the ground available to him under any law
relating to contracts.

b. In a case where the plaintiff invades or threatens to invade the plaintiff’s right to, or
enjoyment of, property, the court may grant a permanent injunction where:

1. The defendant is trustee of the property for the plaintiff;

2. there exists no standard for ascertaining the actual damage caused, or likely to be
caused, by the invasion;
3. the invasion is such that compensation in money would not afford adequate relief;
4. the injunction is necessary to prevent a multiplicity of judicial proceedings. (Section
38 (3) of the Specific Relief Act, 1963)
Mandatory Injunction:
If the court finds it necessary and within its capability, to compel the performance of an act, to
prevent the breach of an obligation, it may do so granting a mandatory injunction to the plaintiff,
compelling the defendant to perform the requisite acts. (Section 39 of the Specific Relief Act,
1963)

Damages In Lieu of, or in Addition to Injunction

If the plaintiff claims for any additional damages along with the injunction sought for, either
perpetual or mandatory, or in substitution of the said injunction, the court may award him such
damages, if it thinks fit. (Section 40(1) of the Specific Relief Act, 1963) If no damages have
been claimed, the court may allow the plaintiff to make the required amendments to the plaint
and claim damages. (Section 40(2) of the Specific Relief Act, 1963)

However, it is highly recommended to claim damages in the plaint before submitting it, as
permission for further amendments rests solely at the discretion of the court.

The dismissal of a suit to prevent the breach of an obligation existing in favor of the plaintiff bars
his right to sue for damages for such breach. (Section 40(3) of the Specific Relief Act, 1963)

Injunction to Perform Negative Agreement

The court can grant an injunction to not do certain acts, which are prohibited by the contract to
do. The court may do so even if it is unable to compel the performance of the affirmative terms
of the contract, i.e. the terms that requires the defendant to do (perform) certain acts. However, it
is subject to the fact, whether the plaintiff has performed the terms of the contract binding on him
or not. Non performance by the plaintiff dis-entitles him from obtaining such an injunction.
(Section 41 of the Specific Relief Act, 1963)

Case Laws Regarding Permanent Injunction

In the case of Jujhar Singh vs. Giani Talok Singh, AIR 1987 P H 34, where a permanent
injunction was sought for by a son to prevent his father who happened to be the Karta of the
Hindu Undivided Family (HUF), from selling the HUF property was set aside. It was not
maintainable because the son, also a coparcener, had got the remedy of challenging the sale and
getting it set aside in a suit subsequent to the completion of the sale.

On the other hand, granting the injunction sought would allow the son to use the injunction to
prevent the father from selling the property even if he is compelled to do so, due to legal
necessities.

Where in the case of Cotton Corporation Of India vs. United Industrial Bank, an injunction
was sought for to restrain the defendants from presenting a winding-up petition under the
Companies Act, 1956 or under the Banking Regulation Act, 1949, the court dismissed the
petition as it was not competent to grant, as a relief, a temporary injunction restraining a person
from instituting a proceeding in a court not subordinate to it.

The court here was of the view that if a perpetual injunction cannot be granted for the subject
matter of the case under Section 41(b) of the act, ipso facto temporary injunction cannot be
granted.

Grounds for Rejection of an Application for Injunction:

On the following grounds, an injunction cannot be granted:

1. To restraint a person from prosecuting a pending judicial proceeding, unless it is to
prevent multiplicity of the proceeding.
2. To restraint a person from instituting or prosecuting a judicial proceeding in a court,
where the injunction is sought from a court subordinate to that court.
3. To restrain any person from applying to any legislative body.
4. To restrain any person from instituting or prosecuting any proceeding in a criminal
matter.
5. To prevent the breach of a contract the performance of which would not be
specifically enforced (Illustration: a contract between a master and servant, requiring
the servant to render personal services to the master cannot be specifically enforced by
the master or the servant. Hence, an injunction cannot be granted in this situation)
6. Where it is not reasonably clear that an act it nuisance, to prevent such an act on the
ground of nuisance.
7. To prevent a continuing breach in which the plaintiff has acquiesced, as the general
rule is that an acquiescence is an implied consent by remaining silent.
8. Where except in the case of breach of trust, equally efficacious relief can certainly be
obtained by any other usual mode of proceeding.
9. When the conduct of the plaintiff or his agents has been such as to dis-entitle him to
the assistance of the court.
10. When the plaintiff has no personal interest in the matter. (Section 41 of the Specific
Relief Act, 1963)

Short Question- Answer

Q.1 Which property is liable to attachment and sale in execution of a decree

Ans. Attachment of Property

A decree may also be executed on the application of the decree-holder by attachment and sale the
only sale without attachment of property. The code recognizes the right of the decree-holder to
attach the property of the judgment debtor in execution proceeding and lays down the procedure
to effect attachment. Sections 60 to 64 and Rules 41 to 57 of Order 21 deals with the subject of
attachment of property. The code enumerates properties which are liable to be attached and sold
in execution of a decree. It also specifies properties which are not liable to be attached or sold. It
also prescribes the procedure where the same property is attached in execution of decrees by
more than one court. The code also declares that a private alienation of property after attachment
is void.

Section 60(1) declares what properties are liable to attachment and sale in execution of a decree,
and what properties are exempt there from. All saleable property (movable or immovable)
belonging to the judgment-debtor or over which or the portion of which he has a disposing power
which he may exercise for his own benefit may be attached and sold in execution of a decree
against him.
Section 61 deals where the judgment-debtor is an agriculturalist. It states that judgment-debtor is
an agriculturalist. Any agriculturalist produce is subject matter of agriculturalist. The quantum of
attachment of agricultural product depends upon the quantum of decretal amount.

Section 63 where two different courts have attached the same property through different decree,
then it will be looked, that which court is superior. The value of the property will determine
whether further attachment can be done or not.

Percept
Section 46– “precept” means a command, an order, a writ or a warrant. A percept is an order or
direction given by court which passed the decree to a court which would be competent to execute
the decree to attach any property belonging to the judgment-debtor.

Section 46 provides that court which passed a decree may, upon an application by the decree-
holder, issue a percept to that court within whose jurisdiction the property of the judgment-
debtor is lying to attach any property specified in the percept.
A percept seeks to prevent alienation of property of the judgment-debtor not located within the
jurisdiction of the court which passed the decree so that interest of the decree-holder is
safeguarded and protected.

It is the interim attachment of the property which lies outside the jurisdiction of the court which
has passed the order. To protect the interest of the decree holder on his application will issue
percept to the court in whose jurisdiction property is situated to attach the property of the
judgment-debtor. The interim order for attachment is valid for the period of only 2 months.

Sale of the Property

A decree may be executed by attachment and sale or sale without attachment of any
property. Section 65 to 73 and Rules 64 to 94 of Order 21 deals with the subject relating to the
sale of movable and immovable property.

 Power of court: Rule 64-65

Rule 64: a court may sell the property, which he has taken into custody under an
attachment under Order 60.
 Rule 65: appointment of officer by the court who will be charged to sell the property.
Officer will be the representative of the court and will sell the property for execution of
decree.
 Proclamation of sale: Rule 66-67
It is a kind of order or declaration. It operates as a public notice regarding the sale. It’s
said that people can participate in auction and sale. The proclamation can be in writing or
by customary mode.

Contents of the proclamation:-

1. Time and place of sale
2. Property to be sold
3. Revenue, if any, assessed upon the property;
4. Encumbrance, if any, to which property is liable;
5. Amount to be recovered;
6. Details relating to property, such as title deed, length etc.
 Time of sale: Rule 68
No sale without the consent in writing of the judgment-debtor can take place before
fifteen days in case of immovable property and before 7 days in case of movable property
from the date of proclamation in the courthouse. A sell can be conducted immediately if
the property is of perishable nature.
 Adjournment of sale: Rule 69
If the judgment-debtor after the issue of proclamation and before sell has paid the amount
or has partly promised to pay on the given date before completion of public order, if there
is any justified reason, in those circumstances, court has discretionary power to postpone
the sell. If it has been postponed for a period of 30 days, the fresh proclamation has to be
issued and again the process of Rule 67, 68 and 69 will follow.
Sell cannot be postponed where judgment-debtor dies before the date of sell or after the
issue of proclamation, or on the date of the auction.

 Restriction to bid: Rule 72-73

A decree-holder cannot, without the express permission of the court, purchase the
property sold in execution of his own decree.
A mortgagee of immovable property cannot, without the leave of the court, purchase the
property sold in execution of the decree on the mortgage.
Any officer or other person having any duty to perform in connection with the execution
sale cannot either directly or indirectly, acquire or any attempt to acquire any interest in
the property sold in execution.
 sale of movable property: Rule 78-78
It relates to the sale of agricultural produce and growing crops. Rule 76 covers negotiable
instruments and shares. Sale of movable property should be held by public auction. A
sale of the movable property will not be said aside on the ground of irregularity in
publishing or conducting the sale (Rule 78).
 Sale of immovable property: Rule 82-94
Rule 83 enables the executing court to postpone sale to enable the judgment-debtor to
raise decretal dues by private alienation.
 Payment of purchase money by auction-purchaser: Rule 84-85.
 Rule 86 talks about cases of default by auction-purchaser in making requisite payment
and resale of the property. Rule 89-91 and 93 deals with setting aside sale and effect
thereof. Rules 92-94 provide confirmation of sale and issuance of sale-
certificate. Section 65 declares the effect of sale.

Q.2 Discuss in brief the process for execution of a decree?

ANS. Order 21 rule 24 and 25 talks about the process for execution.

Rule 24: Process for Execution

The court has inherent power to defer the issue of process as envisaged under Rule 24 and can
give time to judgment-debtor in appropriate cases.

Rule 24 prescribes the procedure in case of execution of decree. In these matters, the [xi]court
exercises judicial discretion, which cannot be interfered with by the district judge by issuing
administrative order.
According to 24(3), execution must be completed by the date specified on the process for the
purpose- Warrants for delivery of possession, therefore, ceased to be executable after the expiry
of the date appearing on the warrant.
After the process of execution is issued, Rule 17 of Order 21 cannot be invoked for amendment
of execution application. If the amendment seeks to change the nature of execution, the power
under Section 151 and 153, also cannot be invoked.

Execution proceeding on the death of the decree-holder:-

Possession certificate under Section 214 of Indian Succession Act 1925, will not be necessary
for the continuation of proceeding by his legal Heirs, even if legal Heirs are not brought on
record, the execution proceeding will not abate.

Delivery of possession to the decree-holder without notice to Judgment-debtor is not proper:

Application by judgment-debtor for re-delivery of the possession on the ground that he had no
notice of the execution proceedings, dismissed by the trial court, however, allowed by the High
Court in revision, held, re-delivery of possession to the judgment-debtor was not proper,
however, compensation of Rs, 2,000 was awarded to the judgment-debtor.

Execution of decree

Notice under Order 21 Rule 21 is necessary only when the decree holder files an execution of
decree for the first time against the legal representative of the deceased.

Rule 25: Endorsement on the process

The officer who entrusted with the execution of the process shall endorse upon the same date and
the manner in which it was executed and also endorsed upon in the reason of delay and in case
the process was not executed, will also state reasons thereof. However, a person cannot be re-
arrested on the ground of absence of endorsement.

MODE OF EXECUTION
The code lays down various mode of execution. After the decree-holder files an application for
execution of decree, the executing court can enforce execution.
A decree may be enforced by delivery of any property specified in the decree, by attachment and
sale or by sale without attachment of the property, or by arrest and detention, or by appointing a
receiver, or by effecting partition, or any such manner which the nature of relief requires.

Arrest and Detention

One of the modes of executing a decree is arrest and detention of the judgment-debtor in civil
imprisonment. Where the decree is for payment of money, it can be executed by arrest and
detention of the judgment-debtor.

A judgment-debtor may be arrested at any time on any day in the execution of a decree. After
this arrest, he must be brought before the court as soon as practicable. For the purpose of making
arrest, no dwelling house may be entered after sunset or before sunrise. Further, no outer door of
a dwelling house may be broken open unless such dwelling house is in the occupancy of the
judgment-debtor and he refuses or prevents access thereto.

No order of detention of the judgment-debtor shall be made where the decretal amount does not
exceed Rs.2000. Where the judgment-debtor pays the decretal amount and costs of arrest to the
officer, he should be released once. Women, judicial officers, the parties, their pleaders, member
of legislative bodies, a judgment-debtor where the decretal amount does not exceed Rs 2,000,
this person cannot be arrested and detained in civil imprisonment.

A decree for money cannot be executed by arrest and detention where the judgment-debtor is a
woman, or a minor, or a legal representative of a deceased judgment-debtor.

Attachment of Property
A decree may also be executed on the application of the decree-holder by attachment and sale the
only sale without attachment of property. The code recognizes the right of the decree-holder to
attach the property of the judgment debtor in execution proceeding and lays down the procedure
to effect attachment. Sections 60 to 64 and Rules 41 to 57 of Order 21 deals with the subject of
attachment of property. The code enumerates properties which are liable to be attached and sold
in execution of a decree. It also specifies properties which are not liable to be attached or sold. It
also prescribes the procedure where the same property is attached in execution of decrees by
more than one court. The code also declares that a private alienation of property after attachment
is void.
Section 60(1) declares what properties are liable to attachment and sale in execution of a decree,
and what properties are exempt therefrom. All saleable property (movable or immovable)
belonging to the judgment-debtor or over which or the portion of which he has a disposing power
which he may exercise for his own benefit may be attached and sold in execution of a decree
against him.
Section 61 deals where the judgment-debtor is an agriculturalist. It states that judgment-debtor is
an agriculturalist. Any agriculturalist produce is subject matter of agriculturalist. The quantum of
attachment of agricultural product depends upon the quantum of decretal amount.

Section 63 where two different courts have attached the same property through different decree,
then it will be looked, that which court is superior. The value of the property will determine
whether further attachment can be done or not.

Percept

Section 46– “precept” means a command, an order, a writ or a warrant. A percept is an order or
direction given by court which passed the decree to a court which would be competent to execute
the decree to attach any property belonging to the judgment-debtor.
Section 46 provides that court which passed a decree may, upon an application by the decree-
holder, issue a percept to that court within whose jurisdiction the property of the judgment-
debtor is lying to attach any property specified in the percept.
A percept seeks to prevent alienation of property of the judgment-debtor not located within the
jurisdiction of the court which passed the decree so that interest of the decree-holder is
safeguarded and protected.
It is the interim attachment of the property which lies outside the jurisdiction of the court which
has passed the order. To protect the interest of the decree holder on his application will issue
percept to the court in whose jurisdiction property is situated to attach the property of the
judgment-debtor. The interim order for attachment is valid for the period of only 2 months.

Garnishee Order

It is the proceeding by which the decree-holder seeks to reach money or property of the
judgment-debtor in the hands of a third party (debtor of judgment-debtor).
Suppose A owes Rs 1000 to B and B owes Rs 1000 to c. By a garnishee order, the court may
require A not to pay money owed by him to B, but instead to pay C, since B owes the said
amount to C, who has obtained the order.
“Garnishee order” is an order passed by a court ordering a garnishee not to pay money to the
judgment-debtor because the latter is indebted to the garnisher.
Sale of the Property
A decree may be executed by attachment and sale or sale without attachment of any
property. Section 65 to 73 and Rules 64 to 94 of Order 21 deals with the subject relating to the
sale of movable and immovable property.

 Power of court: Rule 64-65

 Rule 64: a court may sell the property, which he has taken into custody under an
attachment under Order 60.
Rule 65: appointment of officer by the court who will be charged to sell the property.
Officer will be the representative of the court and will sell the property for execution of
decree.
 Proclamation of sale: Rule 66-67
It is a kind of order or declaration. It operates as a public notice regarding the sale. It’s
said that people can participate in auction and sale. The proclamation can be in writing or
by customary mode.

Contents of the proclamation:-

7. Time and place of sale
8. Property to be sold
9. Revenue, if any, assessed upon the property;
10. Encumbrance, if any, to which property is liable;
11. Amount to be recovered;
12. Details relating to property, such as title deed, length etc.
 Time of sale: Rule 68
No sale without the consent in writing of the judgment-debtor can take place before
fifteen days in case of immovable property and before 7 days in case of movable property
from the date of proclamation in the courthouse. A sell can be conducted immediately if
the property is of perishable nature.
 Adjournment of sale: Rule 69
If the judgment-debtor after the issue of proclamation and before sell has paid the amount
or has partly promised to pay on the given date before completion of public order, if there
is any justified reason, in those circumstances, court has discretionary power to postpone
the sell. If it has been postponed for a period of 30 days, the fresh proclamation has to be
issued and again the process of Rule 67, 68 and 69 will follow.
Sell cannot be postponed where judgment-debtor dies before the date of sell or after the
issue of proclamation, or on the date of the auction.

 Restriction to bid: Rule 72-73

A decree-holder cannot, without the express permission of the court, purchase the
property sold in execution of his own decree.
A mortgagee of immovable property cannot, without the leave of the court, purchase the
property sold in execution of the decree on the mortgage.
Any officer or other person having any duty to perform in connection with the execution
sale cannot either directly or indirectly, acquire or any attempt to acquire any interest in
the property sold in execution.

 Sale of movable property: Rule 78-78

It relates to the sale of agricultural produce and growing crops. Rule 76 covers negotiable
instruments and shares. Sale of movable property should be held by public auction. A
sale of the movable property will not be said aside on the ground of irregularity in
publishing or conducting the sale (Rule 78).
  Sale of immovable property: Rule 82-94
Rule 83 enables the executing court to postpone sale to enable the judgment-debtor to
raise decretal dues by private alienation.
 Payment of purchase money by auction-purchaser: Rule 84-85.
Rule 86 talks about cases of default by auction-purchaser in making requisite payment
and resale of the property. Rule 89-91 and 93 deals with setting aside sale and effect
thereof. Rules 92-94 provide confirmation of sale and issuance of sale- ertificate. Section
65 declares the effect of sale.

CONCLUSION
From the above discussion, it clearly appears that execution is the enforcement of decrees and
orders by the process of court, so as to enable the decree-holder to realize the fruits of the decree.
The execution is complete when the judgment-creditor or decree-holder gets money or other
thing awarded to him by the judgment, decree or order.

Order 21 of the code contain elaborate and exhaustive provision for execution of decrees and
order, take care of the different type of situation and provide effective remedies not only to the
decree-holder and judgment-debtors but also to the objectors and third parties.
A decree can be executed by various modes which include delivery of possession, arrest, and
detention of the judgment-debtor, attachment of the property, by sale, by appointment of
receiver, partition, cross-decrees, and cross-claims, payment of money etc.
On exceptional situation, where provisions are rendered ineffective or incapable of giving relief
to an aggrieved party, he can file suit in civil court.

UNIT-V

Q.1 What is appeal? What do you understand by first appeal and second
appeal? Before which court the second appeal will lie? State the grounds
on the basis of which second appeal will lie?

ANS. The expression ‘Appeal’ is not defined the Code anywhere:

In Nagendra Nath vs. Suresh Chandra-1932, Sir Dinshaw Mulla stated:-
 “There is no definition of appeal in the code, but their Lordships have no doubt that
any application by a party to appellate court asking to set aside or reverse a decision of
a subordinate Court, is an appeal within the ordinary acceptation of the term…”

Section – 96 does not apply to appeals from decree passed by original side of High Court.
 It is governed by Letters Patent clauses.
 CPC- Section104 also governs the same.

Section- 96 Nature and Scope

 An appeal is maintainable against any decree from a Court exercising original
jurisdiction.
 Appeal also applicable for an ex- parte decree.
 Bars an appeal against consent decree.
 No appeal from a decree of petty cases unless a question of law arises.

Legislative Changes
 Section 96 corresponds to Section 540 of the Code of 1882.
 Subsection – 4 inserted in CPC in 1976 to reduce appeal on a question of facts in petty
cases.

Law Commission (54th Report): -

“ No first appeal should lie in any suit of the nature cognizable by Court of Small Causes
where the amount ….. Does not exceed three thousand”

S.96 expressly confers a right of appeal from every decree passed by any court exercising
original jurisdiction to the court authorized to hear appeals from the decision of such Court.

Deep Chand vs. Land Acquision Officer, the Apex Court held: -
“…where a legal right of a party to dispute has to be adjudicated by a Court exercising
ordinary civil jurisdiction, ordinary rule of civil procedure applies and an appeal lies, if
not otherwise provided by such rules.”

Essential Elements
 A decision from which an appeal is made.
 A person or person aggrieved.
 Reviewing body ready to review the appeal.

In Shankar Ramachandran vs. Krishnaji SC stated: -

“Two things required to constitute appellate jurisdiction were the existence of the relation
of superior and inferior court and the power on the part of the dormer to review.”
 Right to Appeal
 A right to appeal is not natural or Inherent right.
 It is only conferred by statute.
 It is not an fundamental or a constitutional right.

In Attorney General vs. Sillem:- “the creation of new right is plainly an act which requires
legislative authority… ”

Who May Appeal

 The subject matter of an appeal must be a decree where a conclusive determination of the
rights of a party is done.
 The party appearing must have been adversely affected by such determination.

Meaning of First Appeal

As stated above appeals from original decrees are known as first appeal. The expression “appeal”
has not been defined in the Code of Civil Procedure. Right of appeal is the right of entering a
superior court and invoking its aid and interposition to redress the error of the court below. Thus,
appeal is “the judicial examination of the decision by a higher court of the decision of an
inferior court”. Explaining the concept of appeal in Bhil Kanji Bhagwan v. Bhil Karsan
Bijal, the Gujarat High Court observed:

“Appeal is an application or petition to a higher authority or a Court of law for

reconsideration of the decision of a lower authority or an inferior Court of law. It is an
application or a proceeding for review to be carried out by a higher tribunal of a
decision given by a lower one. An appeal is one in which the question is. whether the
order of the Court from which an appeal is brought was right on the materials which that
Court had before it.”
The provisions relating to First Appeal are provided in section 96 and rules governing appeals
from original decrees are mentioned in Order 41.

1. Provisions under which First Appeals are preferred:

Against decree, as defined under Section 2(2), regular First Appeal is provided under Section 96,
C.P.C. Normally suit concludes by pronouncement of (final) judgment under Order 20 Rule 1.
(Such judgment in view of its definition given under Section 2(10) means the statement given by
the Judge on the grounds of the decree.) Thereafter, by virtue of Order 20 Rules 6 and 7 the
decree shall be drawn which shall agree and be in accordance with the judgment and shall be
signed by the judge on being satisfied about its correctness as such. The decree shall bear date,
the day on which the judgment was pronounced (even though its preparation and drawing up
may take some time, within 15 days as per Order 20 Rule 6-A). The main ingredient of the
decree is operative portion of the judgment. According to Order 20 Rule 6 decree shall contain
particulars of the claim and shall specify clearly the relief granted or other determination of the
suit. Amount of costs are also to be stated therein. (Rules 6, 6-A and 7 of order 20 quoted at
the end)

Section-96. Appeal from original decree. - (1) Save where otherwise expressly
provided in the body of this Code or by any other law for the time being in force, an appeal shall
lie from every decree passed by any Court exercising original jurisdiction to the Court authorized
to hear appeals from the decisions of such Court. (2) An appeal may lie form an original decree
passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of
parties. (4) No appeal shall lie, except on a question of law, from a decree in any suit of the
nature cognizable by Court of Small Causes, when the amount or value of the subject-matter of
the original suit does not exceed (ten) thousand rupees.”

First Appeal is maintainable and against certain adjudications it is not. Both are given below:- A.
Appeal maintainable
a. Against a decree
b. Against preliminary decree
c. Against final decree
d. Rejection of plaint under Order 7 Rule 11 C.P.C.
e. Determination of any question within Section 144 (restitution)
f. Original decree passed ex-parte.

B. Adjudication against which regular first appeal does not lie:

a. Dismissal of suit in default
b. Determination of any question within Section 47 [prior to the amendment of 1976-
77 against such determination regular first appeal was maintainable as it was included in
the definition of decree under Section 2(2)]
c. Decree passed by the Court with the consent of the parties.
d. From a decree in any suit of the nature cognizable by JSCC when the amount or
valuation of the subject matter of the suit does not exceed Rs. 10,000/ - except on a
question of law.
e. Against decree passed by the JSCC in view of Section 7, through which Section 96
relating to appeal is not extended to courts constituted under Provincial Small Causes
Courts Act, 1887. Section 25 of the PSCC Act provides revision against decree passed
by the JSCCs on a question of law.

Against certain orders passed in a suit before its final decision also appeal is provided under
Section 104 read with Order 43, Rule 1 C.P.C. These appeals in the District Courts are called
Miscellaneous Appeals and in Allahabad High Court as First Appeals from Orders (F AFO).
Section 104 specifically provides Miscellaneous Appeals against orders granting compensatory
costs in respect of false or vexatious claims or defences (Section 35-A), an order under Section
91 or 92 of C.P.C. refusing leave to institute a suit in respect of public nuisance and other
wrongful acts affecting public; and public charities, an order under Section 95 C.P.C regarding
compensation for obtaining arrest, attachment or injunction on insufficient grounds or against
certain orders imposing fine or directing the arrest or detention in civil prison. Thereafter, under
Section 104 (l) (i) C.P.C. it is provided that miscellaneous appeals may also be filed against
those order which under the rules are made appealable. This refers to Order 43, Rule 1 C.P.C.
under which 18 types of orders are made appealable (some orders which were earlier appealable,
were deleted from Order 43 Rule

1 C.P.C. through amendment by Act No. 104 of 1976 w.e.f. 1.2.1977, hereinafter referred to as
amendment of 1976-77). Under C.P.C. third type of appeal is provided under Order 21, Rule 103
by virtue of which orders passed on the applications for dispossession of third party in execution
of decree have been conferred the status of decree and made appealable. The rule is quoted
below:- 0.21, R. 103 “Where any application has been adjudicated upon under Rule 98 or Rule
100, the order made thereon shall have the same force and be subject to the same condition as to
an appeal or otherwise as if it were a decree". Rules 98 to 103 were substituted through
amendment of 1976- 77, prior to that such types of orders were not appealable but subject to the
result of the suit. Similar is the position under O. 21 R. 58 (4) in respect of attachment.

On what grounds does a second appeal lie?

Section 100- Second appeal

(1) Save as otherwise expressly provided in the body of this Code or by any other law for the
time being in force, an appeal shall lie to the High Court from every decree passed in appeal by
any Court subordinate to the High Court, if the High Court is satisfied that the case involves a
substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it
shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the
hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of
the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law,
not formulated by it, if it is satisfied that the case involves such question.

Section 100A - No further appeal in certain cases— Notwithstanding anything

contained in any Letters Patent for any High Court or in any other instrument having the force of
law or in any other law for the time being in force, where any appeal from an appellate decree or
order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the
judgment, decision or order or such single Judge in such appeal or from any decree passed in
such appeal.

Section 101 - Second appeal on no other grounds— No second appeal shall lie except on the
ground mentioned in section 100.
Section 102 - No second appeal in certain suits— No second appeal shall lie 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 three thousand rupees.

Section 103 - Power of High Court to determine issues of fact— In any second appeal, the High
Court may, if the evidence on the record is sufficient, determine any issue necessary for the
disposal of the appeal,—

(a) which has not been determined by the lower Appellate Court or both by the Court of
first instance and the lower Appellate Court, or

(b) which has been wrongly determined by such Court or Courts reason of a decision on
such question of law as is referred to in section 100.

Substantial question of law –

The expression substantial question of law has not been defined anywhere in the code. However,
SC interpreted it in the case of Sir Chuni Lal Mehta & Sons Ltd vs Century Spg & Mfg Co
Ltd (AIR 1962 SC 1314) as follows –

"The proper test for determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general public importance or
whether it directly and substantially affects the rights of the parties and if so 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 or call for discussion
of alternative views. 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 or that the plea raised is palpably absurd the
question would not be a substantial question of law."

To be "substantial" a question of law must be debatable, not previously settled by law of the land
or a binding precedent, and must have a material bearing on the decision of the case, if answered
either way, insofar as the rights of the parties before it are concerned. To be a question of law
"involving in the case" there must be first a foundation for it laid in the pleadings and the
question should emerge from the sustainable findings of fact arrived at by court of facts and it
must be necessary to decide that question of law for a just and proper decision of the case. An
entirely new point raised for the first time before the High Court is not a question involved in the
case unless it goes to the root of the matter. It will, therefore, depend on the facts and
circumstance of each case whether a question of law his a substantial one and involved in the
case or not, the paramount overall consideration being the need for striking a judicious balance
between the indispensable obligation to do justice at all stages and impelling necessity of
avoiding prolongation in the life of any lis.
Q.2 Discuss the powers of High Court to transfer a suit. What different
grounds have been evolved by the court for the transfer of suit? Does this
power also vest in the District Court?

ANS. Constitution has established institutions to take care of any disputes that arise in
the society; one such institution is the Code of Civil Procedure, 1908. Civil procedure is the set
of directions that one must follow when they turn towards the justice system in order to settle a
dispute that is not criminal in nature.

A forum must be approached in order to resolve every dispute. In each civil dispute, the offended
party has the privilege to choose the forum where he/she wishes to establish the suit given it has
the jurisdiction to try the suit. When a suit has been filed by one party that is plaintiff of his
choice, the other party that is the defendant has couple of choices either to accept the place of
suing and file the written statement or to file the application for the transfer of the suit in case if
he is not satisfied with the place of suing. Without the acceptance of the defendant the court
cannot start with the proceedings however, the court may reject the application for the same and
the defendant has to accept it. Apart from the parties the courts at its discretion have the power to
transfer the suit. Sections 22 and 23 deal with the rights of the defendant to apply for the transfer
of a suit, while Sections 24 and 25 authorize certain courts to transfer the suit.

Section 22:
Power to transfer suits which may be instituted in more than one court:
In Section 22 of Code of Civil Procedure the plaintiff gets right to institute the suit in any
competent court and after this the defendant gets the right to apply for the transfer of the suit at
the earliest of the time after notifying about the purpose of the application to the plaintiff. The
court may also consider the objection, if there any, of the plaintiff in matter of transfer of the suit
from the court where the suit has been instituted to another court. And so further after clearance
of the objection the suit will be transferred to that court only which has jurisdiction to proceed
with that case.

Section 22 and 23 are complementary to each other, as section 22 confers a power on the
defendant to apply for the transfer to the conditions mentioned therein and section 23 dictates
where the application for transfer of suits be made. There must be suitable conditions mentioned
in the application as it may be, further, liable for the dismissal of the application and this
application must be made before the settlement of the issue.

Section 22 of the Civil Procedure Code applies where the issues are framed at or determined or
before the settlement of the issue. If the issues have already been determined and the applicant
cannot come before the Court for transfer of case, the applicant will have no remedy under the
provisions of Civil Procedure Code.

A plaintiff as arbiter it is has right to select a forum on his own choice. This right is controlled by
the power of transfer; but this is a right which should not lightly to be interfered with. Wife’s
application for custody was pending as the husband instituted the suit in a court at another place.
The transfer application was made by the wife in the same court as the nature of both the
proceedings was same. No suggestion was made by the husband that due to financial difficulties
the prosecution of the proceeding was prevented at the place where wife’s application was
pending. The prejudice to husband could not be assumed from the mere fact that he would have
to undertake the journey. So considering the fact of this case, suit filed by the husband will get
transferred. In Mst. Basanti Devi v. Mst. Sahodra, AIR 1935 All 979, a case in which Section 22
of the CPC, was construed, it has been laid down that in an application for transfer under Section
22 of the CPC the convenience of the parties alone should not be considered, but the totality of
circumstances should indicate that a suit should proceed in a Court different from the Court
chosen by the plaintiff. Also, mere convenience of the party is not enough for transfer of a case
from one Court to another.

Notice: -
According to section 22 of Civil Procedure Code, it is mandatory to mention the time and give
the notice of the application. Notice should be given to all those parties pleaded in the suit,
whether as plaintiff or defendant and merely to the opposite parties only. Under the provisions of
this section, notice of the application must be given to each and every party of the suit and the
court before it is made. But, it has been held that the defect could be cured by notice on the
application itself. But an order of transfer without notice is without jurisdiction.

Stay of Suit:
Section 20 of the Code, provided for stay of proceeding to compel the plaintiff to take case to
other court. This provision is further omitted and sufficient provisions have been added in
sections 22 to 24. But the court can stay on a suit if there is abuse of this process. In a suit filed
in the Bombay High Court, the fact that both the parties and the witnesses of the defendants were
residents of Wardha in Central Provinces (Now Madhya Pradesh ) was held not to justify an
order for the stay of the suit.

Section 23:
To what court application lies:
·Where the several courts having the jurisdiction subordinate to the same appellate court then an
application, u/s 22, shall be made to the appellate court.
·Where such courts are subordinate to different appellate courts but to the same High Court then
the application shall be made to the 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.

In Mamta Gupta v. Mukund Kumar Gupta, 2003 (3) ALD 285, both the suits filed by the
respondent husband were pending in the file of Family Court at Hyderabad which is subordinate
to the High Court of Andhra Pradesh and the petitioner wife seeks both the suits to be transferred
to a subordinate Court i.e., Family Court, Indore which is subordinate to the High Court of
Madhya Pradesh. In the case before the Supreme Court in Western Uttar Pradesh Electronic's
case, AIR 1970 SC 21, the Western Uttar Pradesh Electric & Power Supply Company Limited
filed a suit against the Hind Lamps Ltd. in the civil Court at Mainpuri claiming amounts towards
charges for the electricity consumed during February and March, 1962 and the minimum
guarantee charges from 1st April to 30lh September 1962.

Subordinate Court:
A subordinate judge is subordinate to the district court no matter what forum of appeal may be in
particular case for the transfer of which application is made.
A full bench of Rangoon High Court has held that for transfer of a suit pending in a High Court,
an application should be made to that court that has power to transfer u/s 151 of Civil Procedure
Code.

Different High Courts:

If a suit between the same parties is filed in courts subordinate to different High Courts then
either High Court may transfer the suit from the court subordinate to it or transfer can be made to
court subordinate to another High Court. In a case where the plaintiff in abuse his power as
dominus litis and in disregard of the convenience of both parties filed his suit in a court
subordinate to the High Court at Allahabad, the High Court in its inherent jurisdiction transferred
the suit to the chief court at Oudh. In State Bank of India v. M/s. Sakow Industries Faridabad
(Pvt) Ltd., New Delhi, AIR 1976 P.H. 321, the learned single Judge of Punjab and Haryana High
Court held that the High Court could examine the powers of transfer under Section23(3) to meet
the ends of justice and to prevent abuse of the process of the Court.

Section 24:
Withdrawal and Transfer of suits:
Section 24, without specifying any grounds in provisions, empowers High Court and District
court to transfer or withdraw or transfer at any stage any pending suit, appeal or any proceeding
from any sub-ordinate court upon the aggrieved party.

Scope of Section 24:

Sub-section (1) of Section 24 vests general power to transfer or withdraw a suit in High court
and District court, on application of any of the parties after notice to the parties. This suit may be
at any stage like pending suit or appeal or any proceeding. The suit can be transferred from one
court to another but that should be equally competent to the previous one. This section also
empowers the High Court to exercise its power keeping the justice and convenience of the
parties. Under this section the High Court also gets power to suo moto to withdraw any case from
sub-ordinate court and to adjudicate on it or to transfer it to any other competent court. Some
different reasons looking for the transfer of suit are the biased methodology of the Court from
which transfer is looked for. In any case, this apprehension of partiality must be reasonable.
Barely assumptions or possible apprehension can't and ought not to be the premise of
transferring a case from one Court to the next. The power of transfer of a case from one Court to
the next must be practiced in light of due consideration and alert bearing that there ought to be no
unnecessary, dishonourable or unjustifiable disgrace or slur on the Court from which the case is
transferred. Sometimes a transfer is looked for when two or more related suits, with similar
parties and subject matter are being attempted exclusively so they are clubbed together and
attempted or adjudicated upon in one Court. However, the power of the High Court under section
24 does not confer the power to transfer suits from courts of one state to another. This limits the
power to transfer the suits within its jurisdiction. When an appeal is filed against the order passed
under Section 24 by a learned single Judge of the High Court, Division Bench must be reluctant
to interfere in the matter unless it is manifestly illegal and erroneous or carrying grave and
substantial injustice.

In Alia Subbareddi v. Lanki Reddi Narayanaswatni Reddi and Ors,AIR 1949 Mad. 283,the
Court held that when an application for transfer of a suit to the High Court is made under Section
24CPC and notice is ordered, it is in the nature of an original proceedings within the meaning
ofSection141 CPC and procedure provided under the Code in regard to suits becomes applicable.
The above view that proceedings under Section 24 CPC is an original proceedings is confirmed
by a Division Bench of Madras High Court consisting of Rajamannar, C.J., and Viswanatha
Sastri, J. in Srirangam Municipality represented by its Executive Authority the Commissioner
v. R.V. Palaniswami Pillai, AIR 1951 Mad.807. In Ouseph v. Pylee, 1957, a Division Bench of
this Court held that no appeal will lie against the order of a single Judge in appointing a
Receiver. But, that order was passed in an appeal using appellate jurisdiction.

Convenience of parties
The convenience of parties is to be viewed as an adequate ground for making a move under
Section 24, especially when parties are required to approach particular diverse forums. Where
both suits raise regular defence and issues the case ought to be transferred to the same court.

Three suits in respect of assertion of rights of distribution of one film were pending in Madras
and Bombay High Courts. The Supreme Court directed to stay further procedures in Bombay suit
and to dispose suit of Madras quickly and in the conditions the Bombay suit was not transferred
to Madras.

Suo Motu Transfer or Withdrawal of cases by court:

Under section 24 of Civil Procedure Code, the jurisdiction is exercised in matter of transfer of
suits, appeal or proceeding by the High Court or the District Court is independent or controlled
by an application being produced by any of the parties and the power of transfer can be practiced
by the High Court or the District Judge even with no such application being proceeded onward
his movement suo motu?

Under section 24 of the CPC the High Court may, on the application of any of the parties or of
its own movement, not just transfer a suit for trial from one court to the next subordinate court,
yet may likewise to withdraw any pending suit in any of its subordinate court and attempt or
dispose the same. The power of suit can be practiced on an application of any of the parties
furthermore, suo motu.

Section 24 does not endorse any grounds on which the transfer of a case might be ordered from
one court to another. However, certain principles have been advanced by choices, when a case
might be transferred to the use of a party. There is, in any case, no confinement at all on the
power of the High Court to transfer a case or withdraw it Suo moto.

The resultant position emerging on an analysis of facts and law involved is thatSection24of the
CPC empowering the superior courts for transfer and withdrawal of the cases from the
subordinate courts is applicable to the civil courts which have been notified as the appropriate
courts on satisfaction of the grounds for such transfer.

In Appukuttan v. Z. Thomas Zakaria, AIR 2014 Mad.-

The Madurai Bench of Madras High Court held that Session Judge has no right to withdraw or
transfer the trail to any other court of another Additional Judge or Session Judge once the trail
has commenced but before the start of the trail, Session court has all power to withdraw the
session case and it can be done either through application or suo motu and so can transfer the
case to any other court.
As laid down by the Allahabad High Court in the case of Dr. Rajnath v. L. Vidya Ram & Ors.,
AIR 1953, All. 772, the issues since already framed and the application has been made after five
months of the framing of the issues no prior notice is given as contemplated under Section
22which is mandatory in nature, hence, this application underSection24 of Civil Procedure Code
is not maintainable.

General Power of Transfer

This section provides general power of transfer of all the suits, appeals or any other proceedings
pending before any subordinate court to High Court or District court for trail. This section is
broader than that of Section 22. It may be exercised at any stage of the proceedings and even suo
motu without any application. Andhra Pradesh recommended the government to transfer some
areas of jurisdiction of courts to another courts where the cases were low in number just because
to lessen the number of pending cases. It was held that there was nothing arbitrary and illegal in
the notification of the government.

Transfer of suits from Additional District Judge to D.R.T.

Tribunal like D.R.T. won't come under the provisions of section 24, particularly in the light of
specific provisions of special enactment, section 24 of C.P.C. was not relevant and the
proceeding was changed over to one under Article 227 of Constitution on request.

The Code of Civil Procedure (Amendment) Act, 1975, has included sub-section (5) which gives
that a suit or proceeding might be transferred under this section from a court which has no ward
to attempt it.
In Murarilalv. Ramanlal, AIR 1978, All. 106
Section 24(5) will empower a court to pass orders transferring notwithstanding pending
procedures. When the retrospective operation of a procedural law is discussed, it just implies that
even pending proceedings will be represented by the changed law of system. However, the
principle of retrospective does not reach out to imply that if an order has as of now been passed
which had no legitimate viability when it was passed, it will get such lawful acceptance in
perspective of the consequent amendment of the law.

Obviously, if the amending legislation, explicitly or by clear implication, recommends that even
orders which have as of now been passed previously will be influenced ex-post facto by the
amending provision, the Lawmaking body is equipped to do as such.
But the recently included section 24(5) has no such express or suggested intendment. Looking to
its phraseology, which is clearly made operative later on, it sets out that a suit or proceeding
might be transferred under this section. It is not equipped for leading itself to an elucidation that
the orders which were so passed before, which needed legitimacy when they were so passed, will
get legitimacy in the light of this section.

‘Court’ Meaning:
It was held that Court of a Rent Controller is not a court under this section as; it is not
subordinate to District Court or High Court.

The District Judge while acting under Act XIII of 1972, U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972, functions as persona designata and not as a Court. Once
the District Judge is observed to be a Court, then it is not open to the High Court to transfer a
case from his record to the document of some other Court of competent jurisdiction.

"A Court of Small Causes" in Section 24(4) Civil Procedure Code refer to Court of Small Causes
constituted under the Provincial Small Cause Courts Act, 1887, and not to a Court exercising the
jurisdiction of a Court of Small Causes under the said Act. Section 24, Civil Procedure Code,
enables the District Court of its own motion even without giving notice to the parties or hearing
the parties to transfer any suit pending in any Court subordinate to it to another Court
subordinate to it.

The Full Bench of the Allahabad High Court in Bhagwati Pande v. Badri Pande and Another,
AIR 1931, All.574 (FB) explained Section 24 Civil Procedure Code as follows:-

"Obviously Section 24 contemplates the transfer of a case from one existing Court. If therefore a
Court of Small causes has ceased to exist or the officer invested with Small Cause Court powers
has been transferred from the district and there is no other officer possessing such powers, there
would be no Court from which the District Court can Under Section 24 Civil Procedure Code
transfer the case to an ordinary civil court."

If there is no convenience- No transfer

Transfer of succession application is a bit much when the other party was prepared to endure
bear of travel and stay of petitioner for going to the court.
Transfer on a ground that no lawyer was available at spot where succession application was
pending is not valid particularly when applicant was permitted to have costs for engaging for
advocate from other party.

Section 25:
An Application for transfer of Suit under Section 25:
Section 25 of the Code of Civil Procedure empowers the Supreme Court to transfer any Case,
appeal or other proceedings from High Court or another civil court in one State to a High Court
or other civil court in any other State. This power might be practiced by the Supreme Court if it
thinks that it is fulfilled of the order under this Section is convenient for the end of the justice.
Therefore the wide powers are given to the Supreme Court to order a transfer if the court thinks
the end of the justice is so required.
The vital thought for the transfer of a case under Section 25 of CPC must be the prerequisite of
justice. The insignificant comfort of the parties or anybody of them may not be sufficient for
exercising the power, but rather it ought to try and be demonstrated that trial inside the chosen
forum can prompt denial of justice. The Court held that if the ends of justice so demanded and
the transfer of the suit are basic, there ought to be no delay to transfer the case. The privilege of
the dominus litis to pick the forum and consideration of plaintiff's convenience and so on can't
obscure the prerequisite of justice. Justice must be done no matter what; if essential by the
transfer of the case from" one court to another.

This provision has been frequently invoked in marital matters, and for the most part at the
occurrence of the spouse. At the point when the couple are living independently and the husband
records - an petition for separation or brings different procedures under the law identifying the
marriage and separation at the place where he is residing, which is normally the spot where the
parties last lived together, the wife, who has regularly come back to her parental home, moves
for transfer either on the ground that she can't stand to travel or that she can't leave her child or
that she confronts dangers when she goes to defend the proceedings. The Court perpetually takes
a thoughtful perspective towards the wife's request for transfer, yet this is net dependable case.
Court dismisses the plea of the wife for the transfer of the matrimonial proceedings from
Mumbai to Palanpur.

In Shiv Kumari Devendra Ojha v. Ramajor Shitla Prasad Ojha case, 1997:
The court dismissed the transfer of an application for grant of a succession certificate, from
Gujarat to U.P, on a ground that the respondent was ready to pay the expenses of the travel. The
Court further stated that if the petitioner is facing any difficulty in managing in any counsel due
to economical problem then she can file an application to recover the amount paid for the same
from the respondent.

Jurisdiction of the Supreme Court to withdraw and transfer cases under Article
139-A of the Indian Constitution:
Where cases including the same or considerably the same questions of law are pending in the
Supreme Court and one or more High Courts or, before two more High Courts, and the Supreme
Court is satisfied on its own motion or on an application made by the Attorney General for India
or by a party to any such case, that such questions are significant questions of general importance
Article 139-A(1) of the Constitution empowers the Supreme Court to "withdraw" the cases
pending before the High Courts to itself and discard all the cases without anyone else's
interference. This provision is regularly invoked when the constitutional validity of a central
enactment is tested. Article 139-A (2) empowers the Supreme Court if it seems that it is
convenient so to accomplish the ends of the justice, to transfer any case, appeal or different
proceedings pending before of any High Court to whatever other High Court.

In Union Carbide Corporation v. Union of India, AIR 1989 SC 674

The withdrawal of the primary civil suit and criminal proceedings to the Supreme Court was
tested on the ground that the requirements of Article 139 (A) of the Constitution were not
fulfilled. In dismissing the request that the case couldn't have been so withdrawn, the Supreme
Court held that Article-139 did not deplete its power of withdrawal and transfer and that its
power under Article 136 and 142(1) were additionally accessible for the reason.
Grounds:
Right of the Plaintiff:
Plaintiff is Dominus Litis. Dominus Litis is a person to whom the suit belongs and has the actual
and direct interest in the suit. He has the right to choose his own forum and normally this right of
the plaintiff cannot be curtailed either by the court or by the court. It has been mentioned under
section 22. The court in Indian Overseas Bank v. Chemical Construction Co., (1979) held that
plaintiff is the dominus litis and as such entitled to institute his suit in any forum which the court
allows. The forum should not be lightly changed and the person cannot be compelled to go to
another court with consequential expand in inconvenience and expense of prosecuting his suit.

Balance of Convenience:
There is unanimity of opinion that balance of convenience is of prime consideration for transfer
of suit. The expression “balance of convenience” has inspired deep legal concept and has obtain
the gloss many judicial interpretations. Restated in simple terms it is a question of fact in case.
Balance of convenience is neither the convenience of the plaintiff alone nor of the defendant
alone but of both. In determining the balance of convenience for the trail of a suit, the court has
to take into consideration five issues-

1. Convenience or inconvenience of the plaintiff and right of the plaintiff to choose his
own forum. The inconvenience that could have caused to the defendant if the suit would
have taken place in the forum chosen by the plaintiff may now be caused to the plaintiff
if the suit will get transferred to other forum.
2. Convenience and inconvenience of the defendant.
3. Convenience and inconvenience of the witness that is required for the proper
institution of the suit.
4. Convenience and inconvenience of a particular place of trail having regard to the
nature of the evidence on the main points involved in the suit and also having regard to
the doctrine of “forum convenience”.
5. Nature of issue in the suit.

In case of Guda Vijayalakshmi v. Guda Ramchandra Sekhara Sastry, AIR 1981 SC 1143,
where the petitioner (wife) recorded a suit in forma pauper is seeking for maintenance from the
respondent (husband) in the court of, Eluru (Andhra Pradesh). On the receipt of the notification
of the case, the respondent filed a divorce case against the petitioner under section 13 of the
Hindu Marriage Act, 1955 in the court of the, Udaipur (Rajasthan). By the moment transfer
petition filed under section 25 C.P.C., 1908, the petitioner tried to get the suit at Udaipur
exchanged to Eluru. It was held that, on merits, it is convenient for the ends of justice to
exchange the respondent's suit pending in the District Court. Udaipur (Rajasthan) to the District
Court at Eluru (Andhra Pradesh), where both the suits could be attempted together.

Justice:
There should be a search for justice and the respective Court must be content that justice could
more likely be done between the parties by not permitting the party to continue his case in the
forum of his own choice. A mere balance of convenience in favour of the trails in other forum,
though a material consideration, may not always be a sure criterion justifying transfer. In
“Indian Overseas Bank v. Chemical Construction Co. (1979)” the court held that only balance
of convenience for proceedings in another Court yet a material consideration may not generally
be a genuine criterion legitimizing the transfer. The power of transfer of a civil proceedings to
another Court gave under Section 25 C.P.C. on the Supreme Court is far more extensive as is the
sufficiency of the expression "convenient in the interests of justice" which outfits a general rule
for the exercise of the power.

Thus the plaintiff as arbiter litis has the right to choose any forum that allows him. And it has
been held that it is a substantive right like a right to appeal. But it subject to control under
sections 22-24. The burden lies on the applicant to make out a strong case for a transfer. As mere
balance of convenience, in support of the trials in another forum, is not an adequate ground
though it is a significant consideration. As a general rule, the court should not interfere unless the
expenses and difficulties of the trial would be so considerate as to lead to injustice or the case has
been filed in a particular court for the purpose of working injustice.

Transfer allowed:
Transfer of cases from one court to another is a serious matter, because it indirectly casts doubt
on the integrity or competence of the judge from whom the matter gets transferred. This should
not be done without a proper or sufficient cause. If there are sufficient causes for transferring a
case from one court to another, they must be clearly set out.

1. Reasonable apprehension in the sense of the party that he might not get justice in
the forum where the suit is pending – it was held by the court in Raghunandan v.
G. H. Chawla, 1963 MPLJ 117, that a case must be exchanged if there is sensible
realization of a party to a suit that he won't not get justice in the forum where the
case is pending. This might be on the grounds that the Judge is biased or on the
grounds that there in the" surcharged atmosphere no just trial is feasible.

2. Where balance of Convenience - In a suit of Jotendro nath v. Raj Kristo, (1890)

where in a suit for partition instituted in the court, the parties were residents of
Calcutta and the major portion of immovable property was also situated in
Calcutta, the suit was transferred to the original side of the High Court of Calcutta
on the ground principally, of convenience.

3. To avoid multiplicity of proceedings and conflict of interests – in case of Rajulu

v. Govindan, (1938) ILR Mad. 745, where two persons filed suit against each
other in different courts on the same cause of action, the court held desirable that
the suits should be tried by one and the same court.

4. Where common questions of fact and law arises between the party – in case of
Purna Chandra v. Samantha, the court held that where there are suits in different
courts which raise common questions of fact and law, the decisions in which are
interdependent, it is desirable that they should be tried together by the same judge.

5. Where the judge is interested in one party –it was held in Gujarat Electricity
Board & Anr. v. Atmaram Sungomal Poshani, AIR 1989 SC 1433, neither of the
 parties are qualified for get a case transferred from one Bench to another, unless
the Bench is prejudiced or there are some reasonable justification for the same.

Transfer not allowed:

1. Mere balance of convenience to the applicant – in “Indian Overseas Bank v. Chemical
Construction Co., AIR 1979, SC 1514, it was held by the court that the mere balance of
convenience for the trail in another Court though a material thought, may not generally
be a genuine criterion legitimizing the transfer.

2. Judge making adverse remarks regarding merits of the case – in case of Gujarat
Electricity Board & Anr vs Atmaram Sungomal Poshani, the court held that no
privilege to get a suit transferred to some other Bench, can legitimately be asserted
simply in light of the fact that the Judges express conclusion on the merits of the suit on
the conclusion of hearing.

3. If the judge making an erroneous order – in case of Madan lal v. Babul lal the court held
that the mere fact an erroneous order has been passed is not in itself a ground for transfer
as it does not necessarily lead to an inference of bias.

4. Mere fact that the opposite party is a man of influence in the locality – in case of Dr.
Subramaniam Swamy v. Ramakrishna Hegde the court held that No prejudice, much
less substantial prejudice would be caused to the respondent if the suit is transferred as
prayed.

5. Mere fact that the court is situated at a long distance from the residence of the applicant -
in case of Arvee Industries v. Rata Lal, the court held that Since the cause of action has
emerged out of the civil proceedings initiated by the respondents in the Delhi Court, it
will add to the convenience of the parties so far as the creation of records.

Conclusion
The power of transfer must be practiced with great caution and attentiveness and in light of a
legitimate concern for justice. The court while looking at the question must remember three
clashing interests, the offended party has the privilege to pick his own forum, the power and the
obligation of the court to guarantee a reasonable trial and the last agreement of justice. The
principal thought is necessity of justice. And, if the ends of the justice request transfer of a suit,
the court ought not to hesitate to act. At the same instant, simple burden of the party or exposed
or ambiguous affirmations by an interested party about insecurity or even a risk to his life are not
adequate to transfer a case. Need of territorial jurisdiction of the court to which the suit is
transferred, however an applicable element is not definitive and won't obstacle to the power of
the court ordering the transfer.

Q.3 Special Suits - State the procedure for institution of suits by and against
minors or persons of unsound mind.
ANS. Order XXXII
As per Rule 1, the definition of minor given in Majority Act, 1875 applies - a person who has
not attained the age of 18 yrs or for a minor for whose person or property a guardian or next
friend has been appointed by the court or court of wards, the age of majority is 21 yrs.

Ram Chandra vs Ram Singh AIR 1968 - SC held that a decree passed against a minor or a
lunatic without appointment of a guardian is a nullity and is void and not merely voidable.

Very Short Question-Answers

Q.1 Define reference.

ANS. Reference under Section 113 and Order 46 of the CPC

Meaning of Reference:-

Reference means where the subordinate Court refers the case involving the questions
of law to the High Court for the opinion on that matter. Reference is made to the High Court
where it has a reasonable doubt during any suit appeal execution proceeding etc.
Here the reference means that the referring a case to High Court for the opinion on
a question of law.

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