6.

4Civil Procedure Code and Limitation

(Assignment Submission, in lieu of Semester End Examination)

Faculty in charge
Dr. S.C. Singh
(Professor of Law)

Submitted by-

UDITANSHU MISRA

(SM0117057)

Third Year, Sixth Semester

National Law University and Judicial Academy, Assam

15th October, 2020

 ANSWER TO QUESTION 4

In order to rectify the discrepancies arising in the justice delivery system caused due to mistakes and
errors by human beings (judges and other authorities), provisions have been introduced in the Civil
Procedure Code, 1908 regarding reference, review, revision and appeal.

 REFERENCE

Each case has distinct circumstances. The inferior court, which needs the help of the High Court, faces
several questions. If the subordinate court refers the case to the High Court in order to obtain
assistance, it is called as a reference. The opinion of the High Court can also be sought when the
subordinate court has some doubts about the question of law. Reference is always made to the High
Court. Section 113 of the Code of Civil Procedure empowers a subordinate court to state a case and
refer it to the High Court for its opinion.

Object

In non-appealable cases where there is a question of law, the object behind the provisions of the
Reference is to allow the subordinate court to obtain the opinion of the High Court so that any
commission of error which could not be remedied later could be prevented. As held in the case
of Diwali Bai v. Sadashivdas, (1912) 14 BOMLR 89, the reference must be made before passing of the
judgment of the case.

Conditions for Seeking Reference

Only in a suit, appeal or execution case which is pending before the court may reference be obtained.
In order to receive a reference from the High Court, Order 46 Rule 1 of the Code of Civil Procedure
prescribes certain requirements which must be fulfilled. The criteria required for the High Court to
receive a reference are as follows:

1. The suit or appeal must be pending in which the decree is non-appealable or the execution of such
decree is still pending.

2. There must arise a question of law of such proceeding, suit or appeal.

3. There must be a reasonable doubt on such question by the court trying the suit or appeal or, by the court
executing the decree.

There are two classes of the question of law on which the subordinate court may entertain the doubt
1. Questions related to the validity of any Act, Ordinance or Regulations.

2. Any other questions.

Under the second condition, reference is optional but in the first condition i.e., a question related to any
Act, Ordinance or Regulations, reference is obligatory. Reference is obligatory in such condition when
the following conditions are fulfilled:

1. In order to dispose of the case, the decision of such question is necessary.

2. The subordinate court seeking reference is of the view that the Act, Ordinance or regulation is ultra
vires.

3. There is no determination that such Act is ultra vires either by the Supreme Court or the High Court to
which the court is subordinate to.

A reference can be made by the judge only in the case when the judge who is dealing with that case has
a reasonable doubt about it. When any matter is already decided by the High Court to which the court
seeking reference is subordinate to then it is not considered as a reasonable question of doubt.

Who can apply for Reference?

The court of civil judicature can refer the case to the High Court either on an application made by a
party or suo moto.  As held in the case of Ramakant Bindal v. State of U.P, AIR 1973 All 23, no
reference can be made by a tribunal.

Duties and Powers of the Referring Court

And where there is a question of law will a reference shall be made in a suit, appeal or execution case
pending before the court. As laid down in Banarasi Yadav v. Krishna Chandra AIR 1972 Pat 49 case,
it was held that the question of law on which the subordinate court is uncertain must indeed have been
referred to in the adjudication case and should not be a hypothetical issue.

Duties and Powers of the High Court

The High has consultative jurisdiction in this context. When reference is sought from the High Court
and while dealing it the High Court is not bound to decide only the question of law in doubt. As held in
the case of S.K. Roy v. Board of Revenue, the High Court can consider the new aspects of law also if
any new aspect arises.

To answer the question for which reference is sought totally upon the discretion of the High Court as
discussed under Order 46 of the Code. The High Court may answer the question and send the case
back to the referring court to dispose of it in accordance with the law. It is also upon the discretion of
the High Court to refuse to answer the question and it has even power to quash it.

Reference: Effects

With respect to the case of L.S Sherlekar v. D.L. Agarwal, AIR 1968 Bom 439, concluded that if a
reference is obtained from the High Court and the decree is confirmed, the High Court would address
the question in favor of the plaintiff. If the High Court’s reply is against him, the case is dismissed.

Rule 3 of Order 46 provides that, after hearing the parties, the High Court, if it so wishes, shall
determine the points referred for a preliminary ruling and shall send a copy of its judgment to the
subordinate court, which shall decide the case in relation to those decisions.

 REVIEW

A substantive right to review is provided to be exercised in certain circumstances under section 114 of

the Code of Civil Procedure and the procedure to be followed for review procedure is laid down
under Order 47 of the Code. The general rule laid down by Order 20 R. 3 of the Code which is
followed in a legal procedure is that once a judgment is signed and pronounced by the court, that court
ceases to have control over the matter. The court passing judgment or order cannot later alter its
pronouncement. But, the power of review is an exception to this general rule.

The meaning of “review” is “the process of judicial re-examination of a case by the same court and by
the same judge who has passed the judgment or order earlier”.

Review of an order once passed by the Court is a serious step and it cannot be taken lightly. This
power requires to be applied with great care and seriousness.

Object

Any human being can make a mistake or error and so do the judges. So, the procedure of Review has
been embedded in the legal system to correct the mistakes and prevent any miscarriage of justice as
held in the case of S.Nagraj v. State of Karnataka, JT 1993 (4) SC 27.  The review application is not
an appeal or revision made to the superior court, but it is a request to recall and reconsider the decision
made before the same court.

Circumstances When a Review Petition is Maintainable

A review petition is maintainable before the court under the following circumstances:

When no appeal lies in the case

According to section 114 of the code, when no appeal lies from an order or a decree then it can be
reviewed by the Court. In the case of Ganeshi Lal v. Seth Mool Chand, AIR 1935 All 435, it was held
that taking into consideration sub-clause(c) of Section 114, the application of review against a decree
passed by a Small Causes Court is eligible.

Even if an appeal is dismissed on the ground of being incompetent or time-barred, the party can go for
review procedure as held in the case of Ram Baksh v. Rajeshwari Kunwar,  AIR 1948 All 213.

When appeal lies in a case but not preferred

When the provision of appeal is available but it is not preferred by the aggrieved party then also a
review petition is maintainable. As held in the case of Sitaramasastry v. Sunderamma, AIR 1959 AP
20, an application for review can be presented before the court only till no appeal is preferred against
that order. The court cannot entertain an application for review when an appeal is already instituted
before making an application for review.

Reference from Small Causes Court

The court may review the judgment on a reference made by the Small Causes Court.

Grounds of Review

There are certain grounds laid down under Rule 1 of Order 47 on which an application made for the
review of a judgment is maintainable:

 On the discovery of new and important matter or evidence

A court can review its judgment when some new and important matter or evidence is discovered by the
applicant which couldn’t be produced or was not available at the time of passing the decree.

 When the mistakes or errors are apparent on the face of the record
When there is an apparent error on the face of record then the court may review its judgment or decree.
As decided in the case of Karutha Kritya v. R. Ramalinga Raju AIR 1960 AP 17, the error includes an
error of fact as well as an error of law.

 Other sufficient reason

The last ground for review is any sufficient reason. Any sufficient ground considered for review by the
court comes under this ground. It could be any reason which the court feels sufficient to review its
judgment in order to avoid a miscarriage of justice.

In the case of Bank of Bihar v. Mahabir Lal 1964 AIR 377, the Supreme Court laid down certain
reasons which can be considered as a sufficient reason for review such as- when there has been any
misapprehension of the true state of circumstances, or when the party has not been given fair chance to
produce any statement or evidence, or no notice was sent to the party, or the court has failed to
consider a material fact or evidence, or the court has omitted any statutory provisions. 

Who can make a review?

As discussed till now, a review is the reconsideration of the same matter by the same judge who has
decided the matter. If the judge who decided is present in the court, then he alone has jurisdiction to
review the matter decided by him. He is considered to be the best to reconsider the case as only he will
be able to remember what arguments were done and what reason he used to decide that case.

However, if there is a situation that the same “judicial officer” cannot be available and any unavoidable
reason might prevent the judge who decided the case to review it, then in such exceptional
circumstances any judge or court of the concurrent jurisdiction can review it and give decision as held
in the case of Reliance Industries Ltd. v. Pravinbhai.

 REVISION

If we go to the literal meaning, “to revise” stands for “to look again” or “to look repeatedly at” or “to
go through a matter carefully and correct where necessary”. The High Court has been empowered with
the revision jurisdiction under section 115 of the Code of Civil Procedure,1908.

Object

The object behind empowering the High Court with revision jurisdiction is to prevent arbitrary illegal
or irregular exercise of jurisdiction by the subordinate court. Under section 115 the High Court is
empowered to keep an eye on the proceedings of subordinate courts that the proceedings are being
conducted in accordance with the law, under its jurisdiction for which it is bound for and in furtherance
of justice as held in the case of Major S.S Khanna v. Brig. F.J. Dillion 1964 AIR 497. 

But, the judges of the subordinate court have absolute jurisdiction to decide a case and even when they
have wrongfully decided a case, they do not commit any “jurisdictional error”. With the power of
revision, the High Court can correct the jurisdictional error when committed by the subordinate court.
The provision of revision provides an opportunity to the aggrieved party to get their non-appealable
orders rectified.

Conditions

Section 115  of the Code of Civil Procedure Code lays down all the conditions when the High Court
can exercise its revisional jurisdiction:

1. The case must be decided.

2. The revisional jurisdiction is exercised when no appeal lies in the case decided by the
subordinate court.

The subordinate court has decided such case by:

1. Exercise of jurisdiction which is not vested to that court by law., or

2. It has failed to exercise the vested jurisdiction, or

3. Illegal exercise of the vested power or with immaterial irregularity.

The High Court is not entitled to vary or reverse the order or decision of the subordinate court unless
such order is in favor of the party who has applied for revision. Also, the revisional jurisdiction is not
to be exercised if in that matter appeal lies to the High Court.

So, by analyzing section 115, we can observe that the revision is done mainly on jurisdictional errors
by the subordinate Court.

Can the power of Revision be exercised if an alternative remedy is available?

The exercise of revisional jurisdiction is upon the discretion of the court and the parties cannot claim it
as a right. In the leading case of Major. S.S. Khanna v. Brig. F.J. Dillion 1964 AIR 497, it was held
by the Supreme Court that the court has to take into consideration several factors before exercising the
revisional jurisdiction. One of the facts that are considered is the availability of an alternative
remedy. When an alternative and efficacious remedy is available to the aggrieved party, then the court
may not exercise its revisional power under section 115 of the Code.

 APPEAL

An appeal is a remedial concept determined as an individual’s right to seek justice against an unjust
decree/order via referring it to a Superior Court. Sections 96 to 99A; 107 to 108 & Order 41 of
the  Code of Civil Procedure, 1908 deal with appeals from original decrees known as First appeals.

An appeal is a proceeding where a higher forum reconsiders the decision of a lower forum, on
questions of law & fact with jurisdiction to confirm, reverse, modify the decision or remand the matter
to the lower forum for fresh decision in compliance of its directions. The essentials of appealing cases
can be narrowed down to 3 elements:

 A decree passed by a judicial/administrative authority;

 An aggrieved person, not necessarily a party to the original proceeding; and

 A reviewing body instituted for the purposes of entertaining such appeals.

Section 96 of the CPC provides that an aggrieved party to any decree, which was passed by a Court
while exercising its original jurisdiction, is conferred with at least one right to appeal to a higher
authority designated for this purpose, unless the provisions of any statute make an exception for
it. Section 97, 98 and 102 of the CPC enumerate certain conditions under which no further appeal is
permitted, hence attributing to a single right of appeal.

First appeal

Section 96 of the CPC provides that an appeal shall lie from a decree passed by any Court exercising
original jurisdiction to the authorized appellate Courts, except where expressly prohibited. A combined
reading of Sections 2(2), 2(9), & 96 of the CPC indicates that a regular First appeal may/may not be
maintainable against certain adjudications. 

Second appeal

Section 100 provides for a second appeal under this code. It states that an appeal shall lie to the High
Court from a decree passed in the first appeal by a subordinate Court, excepting the provisions
speaking to the contrary. The scope of exercise of jurisdiction under this section is limited to a
substantial question of law framed at the time of admission of appeal or otherwise. 
Who may Appeal

A regular first appeal may be preferred by one of the following:

 Any party to the suit adversely affected by a decree, or if such party is dead, by his legal
representatives under Section 146;

 A transferee of the interest of such party, who so far as such interest is concerned, is bound by
the decree, provided his name is entered on the record of the suit;

 An auction purchaser may appeal against an order in execution setting aside the sale on the
ground of fraud;

 No other person, unless he is a party to the suit, is entitled to appeal under Section 96.

A person, who is not a party to the suit, may prefer an appeal from a decree/order if he’s
bound/aggrieved/prejudicially affected by it via special leave of the appellate Court.

 WHEN A SECOND APPEAL CAN BE FILED UNDER THE CODE OF CIVIL

PROCEDURE?

Section 101 reads as “Second appeal on no other grounds— No second appeal shall lie except on the
ground mentioned in section 100.” therefore, it specifically bars the second appeal on any ground
other than grounds mentioned in Section 100. The grounds on which a Second Appeal shall lie are:

(i) that the appeal should involve a substantial question of law that may either be presented by the party
in a memorandum of appeal or the court may itself formulate such question;

(ii) that the second appeal may be brought forth where the decree was passed ex parte;

Substantial Question of Law:

A Second Appeal can only be entertained if it involves a substantial question of law. The expression is
not defined in the Code, however, the Supreme Court in Sir Chunilal V. Mehta And Sons, Ltd. vs The
Century Spinning And Manufacturing Co., Ltd. laid down that “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.”

Question of Fact

Furthermore, Section 103 lays down two situations when a question of fact can be dealt with by the
court in a second appeal. Firstly, when a necessary issue has not been determined by either the Lower
Court or the Court of the first instance, the second appeal can be ordered. Secondly, when the
necessary issue has been wrongly determined by the Courts on the substantial question of law which
can properly be the subject matter of the second appeal under Section 100, the second appeal can be
considered.

ANSWER TO QUESTION 1

Res judicata literally means “a thing which has been decided”. Res means ‘thing’ and judicata means
‘already decided’. The doctrine operates as a 'bar to the trial of a subsequent suit on the same cause of
action between the same parties’. In other words, "things once decided by competent courts should be
taken as conclusive truths until they are reversed by any higher court."
The doctrine is not merely a technical doctrine. It is a fundamental doctrine based on the principle of
conclusiveness of the judgment and the finality of litigation“One suit and one decision are enough for
any single dispute”. The doctrine has been accepted in all civilized legal system.

The doctrine of res judicata is based on three theories:

1. The finality and conclusiveness of judicial decisions for the final termination of disputes in the
general interest of community as a matter of public policy (Lal Chand v Radha Krishan)
2. The interests of the individual that he should be protected from multiplication of litigation.
Thus, the doctrine is also founded on justice, equity and good conscience (Lal Chand v Radha
Krishan).
3. A judicial decision must be accepted as correct.

According to Sir Lawrence Jenkins, "the rule of res judicata, while founded on account of precedent, is
dictated by a wisdom which is for all times." But for this rule there would be no end to litigation and
no security for any person, the rights of persons would be involved in endless confusion and great
injustice done under the cover of law (Kunjan Nair v Narayanan
Nair).

The rule of res judicata is not a technical rule; it is a rule of public policy. It is well settled that Sec. 11
is not exhaustive of the general doctrine of res judicata. In Daryao v State of U.P, the Supreme Court
observed: "The rule of res judicata as indicated in Sec. 11 of the Code has no doubt some technical
aspects, for instance, the rule of constructive res judicata may be said to be technical; but the basis on
which the said rule rests is founded on consideration of public policy." The principle is founded on
justice, equity and good conscience. The binding character of judgments pronounced by courts of
competent jurisdiction is itself an essential part of the rule of law.

In Supreme Court Employees Welfare Association v Union of India, it was observed that the rule of res
judicata is a universal doctrine laying down the finality of litigation between the parties. When a
particular decision has become final and binding between the parties, it cannot be set at naught on the
ground that such a decision is violative of Art. 14 (Equality clause) of the Constitution.

Rule of res judicata would apply to all judicial proceedings whether civil (including arbitration,
taxation, and industrial adjudication) or criminal. It equally applies to all quasi-judicial proceedings of
the tribunals e.g. administrative orders Sulochana Amma v Narayana Nair. It also applies to interim
orders.

The doctrine should be interpreted and applied liberally. In many decided cases, the rule of res judicata
has always been accepted as a plea of defence. The onus to prove that particular issue raised in a
subsequent suit is res judicata is always upon the defendant who takes the plea.

The following conditions must be satisfied in order to constitute res judicata:

1. The matter must be directly and substantially in issue in the two suits. The matter directly and
substantially in issue in the latter suit must be the ‘same matter’. Matter would be substantially
and directly in issue if the issue was decided and the judgment was, in fact based upon the
decision. Thus, according to the case of Pandurang v Shantibai a matter in respect of which no
relief is claimed cannot become ‘directly and substantially in issue’ even if a decree is passed
by a competent court.
2. The second essential condition to constitute the bar of res judicata is that the former suit must
have been between the same parties or between parties under whom they or any of them claim.
Res judicata not only affects the parties to the suit but their privies i.e. persons claiming under
them. A judgment not inter partes or in rem is not res judicata.
3. The third essential condition to constitute the bar of res judicata is that the parties must have
litigated under the same title in the former suit. Thus, a suit brought by a person to recover
possession from a stranger of math property claiming it as heir of the deceased mahant is no bar
to a suit by him as manager of the math, if the first suit is dismissed on his failure to produce
the succession certificate for the two suits arise under different capacities.
4. The fourth condition is that the court which decided the former suit must have been a court
competent to try the subsequent suit or the suit in which such issue is subsequently raised.
“Competent to try” means competent to try the subsequent suit if brought at the time the first
suit was brought.
5. The last condition is that the matter directly and subsequently in issue in the subsequent suit
must have been heard and finally decided notwithstanding that the former suit was disposed of
exparte or dismissed for failure to produce evidence when time was allowed to do so. There
should be a final decision on which the court has exercised it judicial mind. But it is necessary
that the decision in the former suit must have been on the merits and so the matter cannot be
said to have been finally decided when the former suit was dismissed by the trial court for want
of jurisdiction, or for default of plaintiff’s appearance, etc.
Difference between Res judicata and Res sub-judice are as follows:
The rule of res judicata in Sec. 11 is clearly distinguishable from the rule of res sub-judice enshrined in
Sec. 10. The former relates to a matter already adjudicated upon, while the latter relates to a matter
which is pending judicial enquiry. The rule in Sec. 10 bars the trial of a suit in which the matter
directly and substantially in issue in pending judicial decision in a previously instituted suit by staying
the trial of the later suit; Sec. 11 bars altogether the trial of a suit in which the matter directly and
substantially in issue has already been adjudicated upon in a previous suit.

Difference between Res judicata and Estoppel are as follows:

Res judicata stops the parties from proving the previous decision to be incorrect. Res judicata
corresponds to that part of the doctrine of estoppel which is known in English law as 'estoppel by
record.' Thus, even though res judicata may be said to be included in the doctrine of estoppel, it must
be distinguished from estoppel.
(i) The rule of res judicata is based on public policy i.e. it is to the interest of the State that
there should be an end to litigation, Estoppel is part of the law of evidence and proceeds on
the equitable principle of altered situation viz. that he who, by his conduct, has induced
another to alter his position to his disadvantage, cannot turn round and take advantage of
such alteration of the other's position.
(ii) Res judicata precludes a man from avowing the same thing in successive litigations, while
estoppel prevents a party from saying two contradictory things at different times. Res
judicata prohibits an inquiry in limine, and bars the trial of a suit, while estoppel is only a
piece of evidence and prohibits a party, after the inquiry had already been entered upon,
from proving which would contradict his own previous declaration
(iii) Res judicata ousts the jurisdiction of the court to try the case, while estoppel shuts the
mouth of a party, being a rule of evidence.
(iv) The doctrine of res judicata results from a decision of the court, while estoppel results from
the facts of the parties themselves.
(v) The theory of res judicata is to presume conclusively the truth of the former decision, while
the rule of estoppel prevents a person from setting up what he calls the truth.
ANSWER TO QUESTION 2
Answer: ‘Jurisdiction’ may be defined to be the power or authority of a court to hear and determine a
cause, to adjudicate and exercise any judicial power in relation to it. In other words, Jurisdiction means
the authority which a court has to decide matters that are litigated before it or to take cognizance of
matters presented in a formal way for its decision (Hriday Nath v Ram Chandra). Thus, jurisdiction of
a court means the extent of the authority of a court to administer justice prescribed with reference to
the subject matter, pecuniary value and local limits.

If the court has no jurisdiction, consent of the parties or their inaction, cannot confer that jurisdiction,
nor by consent jurisdiction can be ousted. Where the court has jurisdiction to decide a dispute, the
same cannot be taken away or ousted by consent of parties. But if two or more courts have jurisdiction
to try the suit, it is open to the parties select a particular forum. Such an agreement would be legal,
valid and enforceable (Hakam Singh v Gammon).
If there is inherent lack of jurisdiction, the decree passed by a civil court is a nullity. However, if the
court has jurisdiction, but it is irregularly exercised, the defect does not go to the root of the matter, and
the error can be remedied in appeal, etc.

Whether a court has jurisdiction or not has to be decided with reference to the initial assumption of
jurisdiction by that court. The question is determinable "at the commencement, not at the conclusion of
the inquiry." Whenever the jurisdiction of the court is challenged, the court has inherent jurisdiction to
decide the said question. Every court or tribunal is not only entitled but bound to determine whether
the matter in which it is asked to exercise its jurisdiction comes within its jurisdiction or not (M.S.
Hasnuddin v State of Maharashtra).

The Supreme Court in Vankamamidi V. Subba Rao v Chatlapalli S. Ranganayakamma observed that it
is a settled legal position that if a Tribunal with limited jurisdiction cannot assume jurisdiction and
decide for itself the dispute conclusively, in such a situation, it is the court that is required to decide
whether the tribunal with limited jurisdiction has correctly assumed jurisdiction and decided the
dispute within its limits. It is also equally settled that when jurisdiction is conferred on a tribunal, the
courts examine whether the essential principles of jurisdiction have been followed and decided by
tribunals leaving the decision on merits to the tribunals.
The jurisdiction of the court has to be decided on the allegations made by the plaintiff in the plaint and
not on the allegations made by the defendant in the written statement Abdulla Bin Ali v Galappa.
Likewise, it is well established that in deciding the question of jurisdiction, what is important is the
substance of the matter and not the form.

Kinds of Jurisdiction
Jurisdiction in a wide sense means the extent of the power of the court to entertain suits, appeals and
applications. It relates to the subject matter of the suitor application. For instance, a consumer court
forum has jurisdiction only to entertain complaints relating to consumers; a civil court has no
jurisdiction to entertain a criminal complaint; the Presidency Small Causes Court has no jurisdiction to
try suits for specific performance of a contract; for dissolution of partnership, etc; in respect of
testamentary matters, divorce cases, probate proceedings, insolvency proceedings, etc., only the
District of Civil Judge has jurisdiction. Thus, different courts have been empowered to decide different
types of suits. Certain courts are precluded from entertaining certain suits. In recent times, Special
Courts have been set up in view of the ever-increasing technicalities and complexities of law, viz.,
Electricity Courts, Corporation Courts, Consumer Courts, etc.
When a court of limited jurisdiction (Rent Controller) has jurisdiction to decide only a particular
dispute (fixation of standard rent), it has jurisdiction to consider collateral issue (title of the landlord to
the property) only prima facie and the jurisdiction of a Civil Court to decide such issue finally is not
taken away.

Original and appellate jurisdiction - In the exercise of original jurisdiction, a court entertains and
decides suits and in its appellate jurisdiction, it entertains and decides appeals. Thus, a court dealing
with the case for the first time after institution, is acting in original jurisdiction. Munsif's Courts,
Courts of Civil Judge and Small Causes Courts are having original jurisdiction only, while District
Courts and High Courts are having original as well as appellate jurisdiction. The Supreme Court is
mainly a forum of appellate jurisdiction, and it exercises original jurisdiction only in specified or
exceptional cases.

Writ jurisdiction - When a High Court or the Supreme Court deals with any of the writs under the
Constitution for the purposes they are meant for the Court is known as writ court.

Territorial or local jurisdiction - Every court has its own limits, fixed by the Government beyond
which it cannot exercise its jurisdiction. Thus, the District Judge is in the charge of the district and
cannot exercise his powers beyond a district. The High Court has jurisdiction over the whole territory
of the State with in which it is situate. The Supreme Court has jurisdiction
were whole territory of India. Again, a court has no jurisdiction to try suit for immovable property
situated beyond its local limits.
Pecuniary jurisdiction - Throughout India there are a large number of civil courts of different grades
having jurisdiction to try suits or hear appeals of different amount or value. The Code provides that a
court will have jurisdiction only over those suits, the amount or value of the subject matter of which
does not end the pecuniary limits of its jurisdiction (Sec 6).
Some courts have unlimited pecuniary jurisdiction e.g. High Courts and District Courts have no
pecuniary limitations. But there are other courts having jurisdiction to try suits up to a particular
amount. Thus, where a court is empowered deal with the matters where the value of the suit of the
subject matter in question is less than 5 lacs, the court is not entitled to entertain the suit above that
pecuniary limit and if it does so, the adjudication would be void. A Presidency Small Causes Court
cannot entertain a suit in which the amount claimed exceeds Rs. 1,000

Sec. 9 states that "The Court shall (subject to the provisions herein contained) have jurisdictions to try
all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly
barred
Proviso I states that “A suit in which the right to property or to an office is contested is a suit of a civil
nature, notwithstanding that such right may depend entirely on the decision of question as to religious
rites or ceremonies.
Proviso II- For the purpose of this section, it is immaterial whether or not any fees are attached to the
office referred to in proviso I or whether or not such office is attached to a particular place.
One of the basic principles of law is that every right has a remedy i.e. Ubi jus ibi remedium. Every
civil suit is cognizable unless it is barred. Where statutory enactments only create rights or liabilities
without providing for remedies, any person having a grievance can approach the ordinary civil court on
the principle of law that where there is a right there is remedy Shiv
Kumar v Municipal Corporation.
Sec. 9 is structured on the basic principle of civilized jurisprudence that absence of machinery for
enforcement of right renders the right nugatory. Each word and expression in Sec. 9 casts an obligation
on the court to exercise jurisdiction for enforcement of right. The word 'shall' make it mandatory.
Suits of Civil Nature
The words 'civil nature' are wider than the words 'civil proceedings'. The section would, therefore, be
available in every case where the dispute has the characteristic of affecting one's rights which are not
only civil but of civil nature Most Rev. PMA, Metropolitan v Moran Mar Marthom.
A suit is of 'civil nature if the principal question therein relates to the determination of a civil right and
enforcement thereof. It is not the status of the parties to the suit, but the subject matter of it which
determines whether or not the suit is of a civil nature. The expression "suits of a civil nature" will cover
private rights and obligations of a citizen. Political, social and religious questions are not covered by
that expression.
A suit in which principal question relates to caste or religion is not a suit of a civil nature. But if the
principal question in the suit is of a civil nature (the right to property or to an office) and the
adjudication incidentally involves the determination relating to a caste question or to religious rights
and ceremonies, it does not cease to be a suit of a civil nature.

Suits Expressly/Impliedly Barred

A litigant having a grievance of a civil nature has a right to institute a civil suit unless its cognizance is
barred, either expressly or impliedly. A suit is said to be "expressly barred" when it is barred by any
enactment for the time being in force. It is open to a competent legislature to bar jurisdiction of civil
courts with respect to a particular class of suits of a civil nature. Thus, the matters falling within the
exclusive jurisdiction of Revenue Courts or under the Code of Criminal Procedure or the matters dealt
with by special tribunals under the relevant statutes are expressly barred from the cognizance of a civil
court. But if the remedy provided by a statute is not adequate and all questions cannot be decided by a
special tribunal, the jurisdiction of a civil court is not ousted.
Where a statute gives finality to the orders of the special tribunal, the civil court's jurisdiction must be
held to be excluded, if there is adequate remedy to do what the civil court would normally do in a suit.
Therefore, each case requires examination whether the statute provides rights and remedies and
whether the scheme of the Acts is that the procedure provided will be
of the civil court in respect thereof Vankamamidi V. Subba Rao v Chatlapalli S. Ranganayakamma.
A suit is said to be "impliedly barred" when it is barred by general principles of law. Where a specific
remedy is given by a statute, it thereby deprives the person who insists upon a remedy of any other
form than that given by the statute Jitendra Nath v Empire India and Ceylone Tea Co. Similarly,
certain suits though of a civil nature are barred on the ground of public policy. Thus, suits by a witness
to recover money agreed to be paid to him in consideration of his giving evidence, suits on agreements
void on grounds of public policy, suits for damages against a judicial officer for acts done in the course
of his duties, etc.
In Laxmi Chand v Gram Panchayat, Kararia, it was held that the scheme of the Land Acquisition Act
is complete in itself and thereby the jurisdiction of the civil court to take cognizance of the cases
arising under the said Act, by necessary implication, stood barred.
Exclusion of Jurisdiction (Limitation): In dealing with the question whether a civil court's jurisdiction
to entertain a suit is barred or not, it is necessary to bear in mind that every presumption should be
made in favour of the jurisdiction of a civil court. The exclusion of jurisdiction of a civil court to
entertain civil causes should not be readily inferred unless the relevant statute contains an express
provision to that effect, or leads to a necessary and inevitable implication of that nature Dhulabhai v
State of M.P.; Gurbax Singh v Financial Commr., Such exclusion must either be explicitly expressed
or clearly implied (Secretary of State v Mask.
A statute ousting the jurisdiction of a civil court should be strictly construed. In case of doubt as to the
jurisdiction, the court should lean towards assumption of jurisdiction Kamala Mills v State of Bombay.
"The jurisdiction of civil courts is all-embracing except to the extent it is excluded by law or by clear
intendment arising from such law.
The Supreme Court in State of AP v Manjeti Laxmi Kantha Rao observed that the normal rule of law is
that civil courts have jurisdiction to try all suits of civil nature except those of which cognizance by
them is either expressly or impliedly excluded as provided under Sec. 9 of CPC but such exclusion is
not readily inferred and the presumption to be drawn must be in favour of the existence rather than
exclusion of jurisdiction of the civil courts, to try civil suit.
The test adopted in examining such a question is:
(1) Whether the legislature intent to exclude arises explicitly or by necessary implication, and,
(ii) Whether the statute in question provides for adequate and satisfactory alternative remedy to a party
aggrieved by an order made under it.
The Apex Court further laid down: Where a statute gives finality to the orders of the special tribunals,
jurisdiction of the civil courts must be held to be excluded if there is adequate remedy to do what the
civil courts would normally do in a suit. Such provision does not exclude those cases where the
provisions of the particular Act have not been complied with or the statutory tribunal has not acted in
conformity with the fundamental principles of judicial procedure i.e. whether an order was passed by
the tribunal dehors the provisions of law - it is not mala fide, ultra vires, perverse, arbitrary, etc.
ANSWER TO QUESTION 5

Every court is constituted for the purpose of administering justice between the parties and, therefore,
must be deemed to possess, as a necessary corollary, all such powers as may be necessary to do the
right and to undo the wrong in the course of administration of justice [Manohar Lal Chopra v. Seth
Hiralal, AIR 1962 SC 527: 1962 Supp (1) SCR 450].

The inherent powers of the court are in addition to the powers specifically conferred on the court by
the Code. They are complementary to those powers and the court is free to exercise them for the ends
of justice or to prevent the abuse of the process of the court. The reason is obvious. The provisions of
the Code are not exhaustive for the simple reason that the legislature is incapable of contemplating all
the possible circumstances which may arise in future litigation [Manohar Lal Chopra v. Seth
Hiralal, AIR 1962 SC 527: 1962 Supp (1) SCR 450]. Inherent powers come to the rescue in such
unforeseen circumstances. They can be exercised ex debito justitiae in absence of express provisions in
the Code [Mahendra Lal Chopra v. Seth Hiralal, AIR 1962 SC 527: 1962 Supp (I) SCR 450].

According to dictionary meaning, “inherent” means “natural”, “existing and inseparable from
something”, “a permanent attribute or quality”, “an essential element, something intrinsic, or essential,
vested in or attached to a person or office as a right of privilege.”Inherent powers are thus powers
which may be exercised by a court to do full and complete justice between the parties before it.

Section 148 to 153(B) of the Code deal with inherent powers of courts. Section 148 and 149 provide
for grant and enlargement of time while Section 151 preserves inherent powers of courts. Sections 152,
153 and 153-A deal with amendments in judgments, decrees orders and in other proceedings. Section
153-B declares a place of trial to be an open court. Section 150, however, provides for transfer of
business.

Enlargement of Time: Section 148

Section 148 provides that where any period is fixed or granted by the court for the doing of any act, the
court has power to enlarge the said period even if the original period fixed has expired. Where a court
in the exercise of its jurisdiction can grant time to do a thing, in the absence of a specific provision to
the contrary curtailing, denying or withholding such jurisdiction, the jurisdiction to grant time would
include in its ambit the jurisdiction to extend time initially fixed by it.

Before extension of time is granted by a court, two conditions must be fulfilled:

(i) A period must have been fixed or granted by the court; and

(ii) Such period must be for doing an act prescribed or allowed by the Code.

The section has no application when the time has not been fixed or granted by the court or a particular
act has not been prescribed or allowed by the Code. The power conferred by the Code on the court is
discretionary. The court “may” use it for securing the ends of justice. It cannot be claimed by the party
as of right. Before exercising the power, therefore, the court may take into account all the facts and
circumstances including the conduct of the applicant.

Payment of Court Fees: Section 149

Section 149 empowers the court to allow a party to make up the deficiency of court fees payable on a
plaint, memorandum of appeal, etc. even after the expiry of the period of limitation prescribed for the
filing of such suit, appeal etc. Section 4 of the Court Fees Act, 1870 provides that no document
chargeable with court fee under the Act shall be filed or recorded in any court of justice, unless the
requisite court fee is paid.

Section 149 of the Code is a of proviso to that rule by allowing the deficiency to be made good within
a period fixed by it. If the proper court fee is not paid at the time of filing of a memorandum of appeal,
but the deficit court fee is paid within the time fixed by the court, it cannot be treated as time barred
[Mannan Lal v. Chhotaka Bibi, (1970) 1 SCC 159: AIR 1982 SC 137]. The power however, is
discretionary and should be exercised, judiciously and in the interests of justice [Scheduled Caste
Coop. Land Owning Society Ltd. v. Union of India, (1991) 1 SCC 174: AIR 1991 SC 730].

Transfer of Business: Section 150

Section 150 of the Code declares that where the business of any court is transferred to any other court,
the transferee court will exercise same powers and discharge same duties conferred or imposed by the
Code upon the transfer court.

Ends of Justice: Section 151

The inherent powers saved by Section 151 can be used to secure the ends of justice. thus, the court can
recall its own orders and correct mistakes [Keshardeo v. Radha Kissen, AIR 1953 SC 23]; can set
aside an ex parte order passed against the party [Martin Burn Ltd. v. R.N. Banerjee, AIR 1958 SC
79]; can issue temporary injunctions in cases not covered by the provisions of Order 39 [Manohar Lal
Chopra v. Seth Hiralal, AIR 1962 SC 527: 1962 Supp (1) SCR 450]; can add, delete or transpose
any party to a suit [Saila Bala Dassi v. Nirmala Sundara Dassi, AIR 1958 SC 394]; can set aside
illegal orders or orders passed without jurisdiction [Keshardeo v. Radha Kissen, AIR 1953 SC 23];
can revive execution applications [Kumar Daulat Singh v. Prahlad Rai, (1979) 4 SCC 326: AIR
1979 SC 1818]; can take notice of subsequent events [Nair Service Society Ltd. v. K.C. Alexander,
AIR 1968 SC 1165]; can hold trial in camera or prohibit excessive publication of its proceedings
[Naresh Sridhar v. State of Maharashtra, AIR 1967 SC 1]; can allow amendment of pleadings; can
correct errors and mistakes; can expunge remarks made against a judge [State of Assam v. Ranga
Muhammad, AIR 1967 SC 903]; can extend time for payment of court fees [Mahanth Ram Das v.
Ganga Das, AIR 1961 SC 882: (1961) 3 SCR 763]; can extend time to pay arrears of rent; can restore
the suit and rehear it on merits [Jaipur Mineral Development Syndicate v. CIT, (1977) 1 SCC 508:
AIR 1977 SC 1348]; can review its orders [Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909]
etc.

What would meet the ends of justice would always depend upon the facts and circumstances of each
case and the requirements of justice.

Abuse of Process of Court: Section 151

The inherent powers under Section 151 can also be exercised to prevent the abuse of the process of a
court. Such abuse may be committed by a court or by a party. Where a court employs a procedure in
doing something which it never intended to do and there is miscarriage of justice, there is an abuse of
process by the court itself. The injustice so done to the party must be remedied on the basis of the
doctrine actus curiae meminem gravabit (an act of the court shall prejudice no one). Similarly, a party
to litigation may also be guilty of an abuse of the process of the court, e.g., by obtaining benefits by
practicing fraud on the court or upon a party to the proceedings or by circumventing the statutory
provisions [Dadu Dayal v. Sukhdev Arya, (1990) 1 SCC 189] etc.

Amendment of Judgments, Decrees, Orders and other Records: Section 152, 153-153(A):

Section 152 enacts that clerical or arithmetical mistakes in judgments, decrees or orders arising from
any accidental slip or omission may at any time be corrected by the court either of its own motion (suo
moto) or on the application of any of the parties [Master Construction Co. (P) Ltd., v. State of
Orissa, AIR 1966 SC 1047]. The section is based on two important principles :

(i) an act of court should not prejudice any party; and

(ii) it is the duty of courts to see that their records are true and they represent the correct state of affairs
[Samarendra Nath v. Krishna Kumar, AIR 1967 SC 1440].

Section 153-A as inserted by the Amending Act of 1976 provides that where the appellate court
dismisses an appeal summarily under Order 41 Rule 11, the power of amendment under Section 152
can be exercised by the court of first instance. Section 152 is confined to amendments of judgments,
orders or decrees. Order 6 Rule 17 deals with amendments of pleadings. Section 153 however confers
a general power on the court to amend defects or errors in “any proceeding in a suit” and to make all
necessary amendments for the purpose of determining the real question at issue between the parties to
the suit or other proceeding.

ANSWER TO QUESTION 6 (A)

An ‘Ex parte decree’ is a decree passed against a defendant in absentia. Despite service of summons,
where on the date of hearing only plaintiff does and a defendant does not appear the Court may hear
the suit ex parte and pass a decree against the defendant. The legal validity, enforceability and
operation of such decree is similar to any bi-parte decree.

The answer analyses various provisions in the Code of Civil Procedure, 1908 pertaining to ex parte
decree. Part I of the answer enumerates the nature of an ex parte decree and cause of an ex parte
decree. Part II titled Relief available against an ex parte deals with various remedies available to the
person against whom an ex parte decree is passed and the abuse of such remedies. Part III titled
Sufficient Cause for Non-appearance analyses various instances and circumstances where non-
appearance of the party is excusable. Part IV titled Ex Parte Decree obtained by Fraud deals
extensively with one of the remedy available against an ex parte decree.

Part I

Hearing the Suit Ex- Parte

I. (A) Decree When Ex Parte:

Ascertaining the nature of the decree whether it is an ex parte decree is a mixed question of law and
fact. Records of the Court and circumstances under which decree was passed show the absence of the
particular defendant at the time of hearing, the decree must be taken as ex parte in spite of the fact that
decree mentions his presence.  A decree based on a compromise cannot be treated as an ex parte decree
and consequently Rule 13 Order IX does not apply.

I. (B) Passing An Ex Parte Decree:

As per Rule 1 of Order VIII C.P.C the defendant has to submit a written statement in 30 days from the
date of service of summons. However, in exception circumstance not more than 90 days from the date
of service of summons. If the defendant fails to submit in such period the Court on the basis of facts
can adjudge the matter. A decree passed under Rule 10 of Order VIII for the defendant’s default in
filing a written statement is nevertheless an ex parte decree, which is subject to Rule 13 of Order IX. If
as a result ex parte decree is passed by the competent Court despite due notice to the party, there no
failure of natural justice.

Non-appearance of one of the party on the date of hearing does not necessarily entail that an ex parte
decree would follow. If the evidence adduced does not support the claim of the plaintiff, the Court
cannot pass an ex parte decree. However, this is qualified as there is an obligation on the Court to
weigh the merits of the case and consider whether it is a fit case for granting such decree.

Part II

Reliefs Available Against An Ex Parte Decree

A party against whom an ex parte decree is passed can seek relief by the following ways: 

Set Aside: Applying to the Court which has passed such decree to set aside the decree. 

Appeal: Preferring an appeal against the decree. 

Review: Applying for revision; and

Fraud: Suit on fraudulent grounds.

All the remedies are concurrent and can be prosecuted concurrently.

Setting Aside of the Ex Parte Decree: Application under Order IX Rule 13 of Code of Civil Procedure
dealing with Setting aside of decree ex parte against the defendant can be entertained only the
following two grounds:
Where summons were not duly served

Where defendant was prevented from sufficient cause from appearing where the fact called for
hearing. 

However, this rule is available only if the person against whom the ex parte decree is passed on
grounds of default of appearance as per Rule 6 Order IX. Under this rule only the defendant-petitioner
can avail this remedy. Non- party to the suit cannot apply through this rule unless if he proves that his
interest is affected by such decree.

Conditional Relief:

The Court on satisfaction of the grounds may impose conditions for setting aside the decree. It may
order for payment of costs or may ask the defendant to deposit the total amount or a part of it, or may
direct him to furnish security or any other condition as the Court deems fit and appoint a day for
proceedings of the suit.

The Courts have wide discretion for imposing terms and conditions on the defendant. However,
conditions imposed be reasonable and should not be harshly excessive. They should exercise discretion
reasonably and judicially and not arbitrarily or capriciously. Superior courts can set aside such terms
and conditions if are onerous or unreasonable. Non-compliance with any of the conditions would result
in dismissal of the application for the restoration of a case. 

The Supreme Court held that the terms imposed should not be onerous or vague nor should they have
the effect of prejudging the controversy involved and of practically decreeing the suit even though the
ex parte order is set aside. The terms should be based on facts and circumstances of that particular
case. The terms should not be such that defendant ends up in a worse position than if he had not
approached the Court for setting aside the decree. The trial court set aside ex parte order on a suit
involving eviction and recovery of arrears condition that the tenants deposit monthly lease amount in
the Court. On facts the Supreme Court held that the conditions imposed were too onerous, vague and
lack clarity.

Limitation on Filing the Application for Setting Aside an Ex Parte Decree

Limitation period for filing an application for setting aside an ex parte decree is 30 days from the date
of knowledge of the decree. In Gauhati University v. Niharalal Bhattacharjee JT 1995 (8)
206, summon was served to the petitioner on May 28th, 1990 for appearance on the next day. As per
Rule 6 of Order V as there was lack of sufficient time for appearance the suit was adjourned to July
19th, 1990 but the date was not communicated to the other party. The SC held that as the summons
was not duly served the limitation began to run only when the petitioner had the knowledge of the
order. Hence, as the applicant filed within the 30 day period the decree was set aside.

Effect of Setting Aside an Ex Parte Decree:

After an ex parte order is set aside the suit is restored to file and parties are relegated to the position
they occupied before the non-appearance of the defendant, and the court will proceed with the suit de
novo and decide on merits. If an application for setting aside is rejected an appeal lies against such
order.

Appeal: As per Section 96 (2) a person against whom an ex parte decree is passed can appeal and has
not exhausted his remedy under Rule 13 Order IX.

If an appeal under Order XLIII filed against ex parte decree under section 96.

If an application for setting aside an ex parte decree is rejected then the defendant cannot appeal
against the decree grievance about proceedings ex parte cannot be put forward.

Review: Rule 1 Order XLVII CPC provides for review against a judgement. If the petitioner on
fulfilling the requisite grounds can apply for review of the decree.

As explained above, the party against whom an ex parte decree is passed apart from review petition
and a suit for setting aside on fraudulent ground has two remedies i.e. application under Order IX Rule
13 or appeal. The party can avail both the remedies simultaneously. In Bhanu Kumar Jain v. Archana
Kumar ILR (2005) MP 1, the Supreme Court on the ground of public policy observed that there is no
statutory bar to avail both remedies simultaneously because the defendant’s right of appeal under a
statute cannot be taken away unless it is not contrary to any other statutory provisions. The Court said:

A right to question the correctness of a decree in a first appeal is a statutory right. Such right shall not
be curtailed nor shall any embargo be fixed thereupon unless the statue expressly or by necessary
implication says so. 

In the appeal, however, is dismissed then the party as per the explanation appended to Order IX Rule
13, the party cannot apply for setting aside under this rule.
Under Order IX Rule 13 the defendant can

Question the soundness of the decree posting the case for ex parte hearing

Contend that he had sufficient grounds for non appearance on the date of hearing.

If an appeal is carried on under § 96 (2) after the dismissal of application under Order IX Rule 13, the
above grounds cannot be raised. The defendant can thus take the following grounds in such appeal:

The material brought on record by the plaintiff were not sufficient for passing a decree in his favour; or

The suit could not have been posted for ex parte hearing; or

The suit is not maintainable.

Abuse of the Remedies:

The Supreme Court in Vijay Kumar v. Kamlabai (1995) 6 SCC 148 held that sufficient reasons for
non-appearance in the proceedings and subsequent application for setting aside the ex parte decree for
the purpose of causing delay in the proceedings should not be encouraged.

Section 115 CPC deals with revision powers of the High Court. In Ariyur Mohammad Habeebur v.
Ansuri Varamma AIR 1974 AP 113, it was held that it would not be appropriate for the High Court in
exercising its revisional powers to disturb the ex parte award even if it faulty.

Part III

Sufficient Cause for Non-Appearance

III. (A) Sufficient Cause for Non- Appearance on the Date of Hearing:

Rule 13 of Order IX of Code of Civil Procedure reads as under:

“Setting aside decree ex parte against defendant – In any case in which a decree is passed 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 there was sufficient for his failure
to appear 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 (sic) as it thinks fit,
and shall appoint a day for proceeding with the suit.
The petitioner has to satisfy the court that he had sufficient cause for his absence on the date of hearing
and when the evidence was called for hearing. An application under this rule cannot be entertained on
moral or humanitarian grounds however; the Courts cannot be deaf toward the realities of life.

III. (B) Proviso to the Rule:

Proviso to Rule 13 of Order IX read as follows;

“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.”

III. (B) (1) Date of Hearing:

Ex parte decree cannot be set aside if the party against whom the decree is passed if he had knowledge
of the date of hearing. Even if irregularity in the service of summons is established if the defendant had
the notice of the date of hearing the Court cannot set aside the ex parte decree. In R.S. Bhatnagar v.
Bakt Sajjan 1978 AIR All 139, the Court noticed the difference between irregularity and illegality in
service of summon. Illegality in service of summons is when the process is in contravention of some
statutory provision which renders it void and whereas irregularity is a defect in following the procedure
laid down thereof and may not render it void.

In Prateek Sharma v. Vimal Chand Agarwal S.B. (Civil) Misc. Appeal No. 364 of 1998, the Court
held that notwithstanding any irregularity in service of summons deliberate inaction of the applicant
despite of knowledge of the proceedings cannot be justified in his claim for setting aside the ex parte
decree.

III. (B) (2) Reasonable Time to appear for hearing:

Sufficient time is to be given for the defendant to appear and answer the plaintiff’s claim. However, the
knowledge of pendency of suit does not any infer his knowledge about the date of hearing. 

The connector “and” in the proviso signifies that both the elements i.e. knowledge of the date of
hearing and reasonable time to appear before the Court should be present. The objective of the proviso
is to prevent delaying tactics of the defendants and nature of the proviso is on an exception to the
general rule.
III. (C) Burden of Proof:

Burden of proof is on the applicant who prays for setting aside the ex parte decree to establish that
summons in the suit was not duly served on him or that there was sufficient cause for non-appearance.
With respect to Proviso 2, the burden is on the person taking advantage of the exception.

III. (D) Prior Conduct of the Applicant:

In G.P. Srivastava v. R.K. Raizada AIR 2000 SC 1221, the Supreme Court held that the sufficient
cause for non-appearance refers to the date on which the ex parte decree was passed due to his absence
and this cannot be stretched to rely upon other circumstances anterior to in time. The defendant cannot
be penalised for previous negligence which had been overlooked and subsequently condoned. In the
absence of any mala fide intention and remedy sought not barred by limitation, the Courts should
favour the defendant unless there are sufficient grounds to the contrary. The Court opined that the
provision for setting aside the decree should be given a broad construction and no hard-and-fast
guidelines can be prescribed.

III. (E) Irregularity in Serving Summons:

The Supreme Court in Sushil Kumar Sabharwal v. Gurpeet Singh AIR 2002 SC 2370 held that non-
service of summons is a ground for setting aside an ex parte decree. The service of summons to the
party cannot be a mere formality but should, in fact, be reality. In Naresh Chandra Agarwal v. Bank
of Baroda 2001 INSC 1762, the appellant application for setting aside an ex parte decree was rejected
by Trial Court and subsequently by the High Court as it considered the validity of notice of substitution
sent to the permanent residential address rather than his actual present residence. The plaintiff admitted
in his affidavit that the appellant was working in some other place at the relevant time. In appeal the
Supreme Court has set aside the decree as it considered that summon was not served in reality.

In Rabindra Singh v. Financial Commr. Coop. (2004) 8 SCC 729, an ex parte decree was passed
against the defendant who was residing in foreign country for the past 25 years and has never received
any notice though the plaintiff had knowledge of his correct address. Summons were affected to the
village address. The Court held that ex parte decree passed in the event of non-appearance of the
defendant without providing an opportunity of hearing to him caused prejudice to defendant and it is
against the principles of natural justice.
When seeking remedy against an ex parte decree the Court before exercising its discretion should
satisfied that summons were not proved to be served duly.

III. (F) Refusal to Accept Summons:

If the applicant refuses to accept the notice and pleads for setting aside the ex parte decree on the
ground of absence of notice cannot be entertained. However, if the defendant did not accept summons
bona fide on the grounds of wrong description, even though the service is held to be good, the ex parte
decree passed as a result can be set aside.

Part IV

Ex Parte Decree Obtained by Fraud

A regular suit can be instituted against an ex parte decree allegedly obtained by fraudulent means. To
maintain such action, it should be proved that the fraud alleged must be actual, positive fraud, a
meditated and intentional contrivance so as to keep the parties and the Court under the dark so as to
obtain a decree by that contrivance. The suit is maintainable despite unsuccessful application made
under Rule 13 Order IX or rejection of application for appeal. 

IV. (A) Non- Service of Summons:

Mere non-service of summons is not a ground in itself to set aside an ex parte decree on the grounds of
fraud but fraudulent suppression of summons is. In A.C. Ananthaswamy v. Boriah 2004 (5) ALL MR
1096, there was a bare allegation of fraud. Moreover, no allegation of fraud was made in the two
proceedings prior to this appeal. The question before the Court was whether non –service of summons
amount to fraud. The court said a suit for setting aside an ex parte decree on mere non-service of
summons is not maintainable.

If the Court rejects the defendant application for setting aside the decree under Order IX Rule 13 on the
grounds of fraud in case of non-service of summons upon him subsequent regular suit for setting aside
on the same fraud is barred due to application of res judicata. 

IV. (B) Standard of Proof:

To establish an allegation of fraud it must be demonstrated that the representation made was false to
the knowledge of the party making such representation or lack of reasonable grounds for the party to
belief that it was false. The standard of proof is extremely high.

Non-service of summons or falsity of claim as a ground for fraud cannot alone be sufficient for
maintaining a suit, however, once non-service of summons is established, falsity of the claim would be
an element from which fraud could be inferred and a decree could be passed setting aside the ex parte
decree when both these elements co-exists. 

Conclusion

The Right to be heard in a suit is one of the tenets of principles of natural justice and our Civil
procedure duly provides for such right to the party. Despite the sufficient opportunity provided if the
party does not avail this to explain himself, in court hears the suit ex parte. In order for the justice
system to be efficient and to not prejudice the rights of the plaintiff this is justified.

However, owing to unavoidable reasons the party might not appear for the hearing. In such cases the
Code is sensitive those genuine cases. On careful reading of Order IX Rule 13 it is obvious that the
applicant for setting aside the ex parte decree should satisfy the Court that there was sufficient cause
for its non- appearance on the date of hearing.

ANSWER TO QUESTION 6 (C)

In order that a civil court may have jurisdiction to try a suit, the first condition which must be satisfied
is that the suit must be of a civil nature? The word ‘civil’ has not been defined in the code. But
according to the dictionary meaning, it pertains to private rights and remedies of a citizen as
distinguished from criminal, political, etc. the word ‘nature’ has been defined as “the fundamental
qualities of a person or thing; identity or essential character; sort, kind, character”. It is thus wider in
content. The expression ‘civil nature’ is wider than the expression ‘civil proceedings’. Thus, a suit is of
a civil is of a nature if the principal question therein relates to the determination of a civil right and
enforcement thereof. It is not the status of the parties to the suit, but the subject matter of it which
determines whether or not the suit is of a civil nature.

Nature and scope - The expression “suit of a civil nature” will cover private rights and obligations of a
citizen. Political and religious questions are not covered by that expression. A suit in which the
principal question relates to caste or religion is not a suit of a civil nature. But if the principal question
in a suit is of a civil nature (the right to property or to an office) and the adjudication incidentally
involves the determination relating to a caste question or to religious rights and ceremonies, it does not
cease to be a suit of a civil nature and the jurisdiction of a civil court is not barred. The court has
jurisdiction to adjudicate upon those questions also in order to decide the principal question which is of
a civil nature.

Explaining the concept of jurisdiction of civil courts under Section 9, in PMA Metropolitan v. M.M.
Marthoma 1995 Supp (4) SCC 286, the Supreme Court stated:

“The expansive nature of the section is demonstrated by use of phraseology both positive and negative.
The earlier part opens the door widely and latter debars entry to only those which are expressly or
impliedly barred. The two explanations, one existing from inception and later added in 1976, bring out
clearly the legislative intention of extending operation of the section to religious matters where right to
property or office is involved irrespective of whether any fee is attached to the office or not. The
language used is simple but explicit and clear. It is structured on the basic of a civilized jurisprudence
that absence of machinery for enforcement of right renders it nugatory. The heading which is normally
a key to the section brings out unequivocally that all civil suits are cognizable unless bared. What is
meant by it is explained further by widening the ambit of the section by use of the word ‘shall’ and the
expression ‘all suits of a civil nature unless expressly or impliedly barred”.

Each word and expression casts an obligation on the court to exercise jurisdiction for enforcement of
rights. The word shall make it mandatory. No court can refuse to entertain a suit if it is of the
description mentioned in the section. That is amplified by the use of the expression, “all suits of civil
nature’. The word civil according to the dictionary means, relating to the citizen as an individual; civil
rights. In Black’s Legal Dictionary, the word “civil” is defined as, ‘relating to provide rights and
remedies sought by civil actions as contrasted with criminal proceedings. In law it is understood as an
antonym of criminal. Historically the two broad classifications were civil and criminal. Revenue, tax
and company etc. were added to it later. But they too pertain to the larger family of civil. There is thus
no doubt about the width of the word “civil”.

Its width has been stretched further by using the word nature along with it. That is even those suits are
cognizable which are not only civil but are even of civil nature. The word ‘nature’ has defined as ‘the
fundamental qualities of a person or thing; identity or essential character, sort; kind; character’. It is
thus wider in content. The word ‘civil nature’ is wider that the word ‘civil proceeding’. The section
would, therefore, be available in every case where the dispute was of the characteristics of affecting
one’s rights which are not only civil but of civil nature.”

The following are suits of a civil nature:

• suits relating to rights to property;

• suits relating to rights of worship;

• suits relating to taking out of religious procession;

• suits relating to right to share in offerings;

• suits for damages for civil wrongs;

• suits for specific performance of contracts or for damages for breach of contracts;

• suits for specific reliefs;

• suits for restitution of conjugal rights;

• suits for dissolution of marriages;

• suits for rent;

• suits for or on account;

• suits for rights of franchise;

• suits for rights to hereditary offices;

• suits for rights to Yajmanvritis;

• suits against wrongful dismissal from service and for salaries, etc.

The following are not suits of a civil nature:

• suits involving principally caste questions;

• suits involving purely religious rites or ceremonies;

• suits for upholding mere dignity or honour;