Cpc Lectures

Cpc Lectures

PAHUJA LAW ACADEMY
THE CODE OF CIVIL PROCEDURE, 1908
introduction

Q. What do you mean by code?
Q. What is civil?
Q. What is the nature of CPC?

HISTORICAL BACKGROUND

1859
1877
1882
1908

Amendments of the code 1908
1951…………………………….1956………………1976…………….………….1999…………………………….…2002

CODE & AMENDMENTS                                                                  DATE OF ENFORCEMENT
1908                                                                                                             1 JANUARY 1909
1976                                                                                                             1 FEBRUARY 1977
1999                                                                                                             1 JULY 2002
2002                                                                                                             1 JULY 2002

Q. What are the important changes introduced by Amendment of 1976?
Q. What are the important changes introduced by Amendment of 1999 and 2002?
Q. What is the object of the code and rule of interpretation while interpreting the provisions of the code?
Q. Whether the code is exhaustive or not?
Q. What is the extent and applicability of the code?
Q. whether the code is retrospective in operation or not?
Q. what is the scheme of the code?

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

JUDGMENT, DECREE AND ORDER

MAINS QUESTION FOR JUDICIAL SERVICES

 

Q.1. A files a suit against B for the breach of contract by B. The suit is
dismissed for default of appearance. Decide if the decision of the court
dismissing the suit qualifies as a decree? Give reasons for your answer.

Q.2. Distinction between the following.

1. Decree and judgment

2. Decree and order

3. Decree and deemed decree

Q.3. Whether the following decisions of the court are decree or not.

i. Return of plaint for presentation of proper court.

ii. Dismissal of suit under O. 23. R.1.

iii. Rejection of application for condonation of delay.

iv. Order refusing one of the several reliefs.

v. Dismissal of appeal as time barred.

vi. Order of abatement of suit.

Q.4 Whether an order rejecting a plaint amounts to decree.

Q.5 Define the court which passed the decree and explain the provision for
transfer of decree?

Class Notes

DECREE (S.2 (2))

According to S. 2(2), C.P.C, 1908, the essential elements of decree are as
follows:-

(I) Adjudication

(II) Suit

(III) Rights of parties in controversy

(IV) Formal expression

(V) Conclusive determination

(I) Adjudication:-

– Adjudication = judicial determination of the matter in dispute.

– Judicial determination must be by a court.

– e.g. dismissal of a suit for default of appearance of parties

or a decision on a matter of an administrative nature…….. are not decree

(II) Suit:-

– Not defined in the Code.

– Hansraj Gupta v Official Liquidators of the Dehradun-Mussoorie Electric
Tramways Co. Ltd

“a civil proceeding instituted by presentation of plaint”.

– No Civil Suit = No Decree

– E.g. rejection of an application for leave to sue in forma pauperis is
not a decree, as there is no plaint till the application is granted.

– Statutory suits:- Under certain enactments specific provisions have been
made to treat applications as suits, they are called Statutory Suits e.g.
Proceedings under

Indian Succession Act,

Hindu Marriage Act.

The Land Acquisition Act.

The Arbitration and conciliation Act.

– What is the difference between Court and tribunal?

(III) Right of Parties in controversy:-

– Rights = Substantive rights

Not the Procedural rights

– E.g. an order for dismissal of a suit for default of appearance etc.

– Parties = Plaintiff and Defendant

– E.g. In interpleader suit, the contesting defendants will be deemed to be
parties to the suit.

– “Matters in controversy” refers to the subject matter of the suit with
reference to which some relief is sought.

– E.g. interlocutory orders on matters of procedure which do not decide the
substantive rights of the parties are not decrees.

(IV) Conclusive determination:-

– The determination must be final and conclusive as regards the court which
passes it.

– E.g. an order dismissing an appeal summarily under order 41 of the Code –
Decree

– An order refusing an adjournment, or

– An order passed by the appellate Court deciding some issues and remitting
other issues to the trial court for determination under Order 41 Rule
23…..NO DECREE

(V) Formal expression:-

– All the requirements of form must be complied with.

– The formal expression must be deliberate and given in the manner provided
by law.

– The decree follows the judgment and must be drawn up separately.

img

(1) Preliminary decree:-

 

– Preliminary decree is only a stage in working out the rights of parties
which are to be finally adjudicated by a final decree.

– O.20 R.12-16, 18 and O 34 R 2-3, 4-5, 7-8 are the provisions under the
Code which provides for passing of preliminary decree

– But the list is not exhaustive.

– Whether there can be more than one preliminary decree in the same suit.

– What will be the consequence if any aggrieved partly does not appeal
against the preliminary decree?

(2) Final decree:-

A decree may be said to be final in two ways:

(a) When within prescribed period no appeal is filed against the decree or
it has been decided by the decree of the highest court.

(b) When the decree so far as regards the court passing it, completely
disposes of the suit.

– E.g. a suit for the recovery of money, past mesne profit, future mesne
profits at a particular rate, without directing any future proceeding.

– Can there be more than one preliminary and one final decree?

· Gulusam Biwi v Ahamadasa Rowther

· Kasi v Ramanathan Chettiar

· Shankar v Chandrarant

(3) Partly preliminary and partly final decree
:-

e.g. A suit for possession of immovable property with mesne profits.

Deemed decree:-

The term “deemed” is generally used to create a – statutory fiction for the
purpose of extending the meaning which it does not expressly cover.

An adjudication not fulfilling the requisite of S. 2(2) of the Code cannot
be said to be a decree.

But by legal fiction, certain orders and determinations are deemed to be
decrees under the Code.

According to S. 2(2), C.P.C, deemed decree are as follows:-

1. Rejection of plaint [O 7 R 11]

– Fresh suit not barred [O 7 R 13]

– Appealable

– Must be under the Code

– Returning of plaint or memorandum of appeal to be presented to the proper
court is not a decree.

– See the substance not the form.

2. Restitution [S. 144]

– S. 144 deals with restitution and determination of a question under that
section.

– It is included in the definition of decree for the purpose of giving a
right of appeal.

– It is necessary that such order must have decided the rights of parties
with regard to matters in controversy in proceedings under that section.

– It must be a final decision either granting a relief or refusing an
application.

 

  • Not a Decree:-

1. Dismissal for default:

– E.g. default for non appearance.

2. Appealable orders: [S. 104 & O.43 R. 1]

– E.g. order returning a plaint for presentation to the proper court.

Order rejecting an application for an order to set aside an ex parte
decree.

Similarities between Order and Decree

1.) Both relate to matter in controversy

2.) Both are decision given by court

3.) Both are adjudication of court of law

4.) Both are the formal expression of a decision

Distinction between order and decree

1.) A decree can only be passed in a suit which commenced by presentation
of plaint.

An order may originate from a suit by presentation of plaint or may arise
from a proceeding commenced by a petition or an application.

2.) A decree conclusively determines the rights of the parties with regard
to all or any of the matters in controversy.

An order may or may not finally determine such rights.

3.) A decree can be preliminary or final or partly preliminary and partly
final.

An order cannot be preliminary order.

4.) Generally in every suit there can be only one decree except in certain
suits.

But in case of suit or proceeding, a number of orders may be passed.

5.) Every decree is appealable unless otherwise expressly provided.

Every order is not appealable. Only those orders are appealable as
specified under S. 104 and O.43 . R.1

6.) A Second appeal lies to High Court on certain grounds from the decree
passed in first appeal. {S.100}

No Second appeal lies in the case of appealable orders

Distinction between Judgment and Decree

 

1) It is necessary in Judgment to give Statement by a JUDGE.

It is not necessary for a judge to give statement in a decree.

2) It is not necessary that judgment should be a formal expression.

A decree must be a formal expression of a decision.

3) A judgment contemplates a stage prior to the passing of a decree or an
order.

A decree follows the judgment.

Preliminary Exam Questions for Judicial Services

THE CODE OF
CIVIL
PROCEDURE, 1908

DECREE, JUDGMENT AND ORDER

1. A decree becomes final under explanation to S 2(2), C.P.C, 1908

(a) When it completely disposes of the suit

(b) When no appeal has been preferred against the decree

(c) Both (a) and (b)

(d) None of the above

2. In which case court held that there can be more than one final decree

(a) Daryao v State of U.P

(b) Shankar v Chandrakant

(c) Kiran Singh v Chaman Paswan

(d) None of the above

3. Returning of plaint for presentation to the proper court is

(a) Decree

(b) Order

(c) Both decree and order

(d) None of the above

4. Suit ordinarily means

(a) Civil proceeding instituted by the presentation of plaint

(b) Any proceeding either civil or criminal

(c) What the code defines

(d) None of the above

5. A Judgment contains

(a) Concise statement of the facts

(b) The points of determination

(c) The decision on the points and the reason thereof

(d) All of the above

6. The decree shall bear the date

(a) The day on which judge signed the decree

(b) The on which judgment was pronounced

(c) The day on which decree was obtained

(d) The day on which suit was filed.

7. What is the time limit to draw up the decree after pronouncement of
judgment

 

(a) 10 days

(b) 30 days

(c) 15 days

(d) 90 days

8. A preliminary decree can be passed in a suit

(a) For partition

(b) Of partnership

(c) For possession and mesne profit

(d) All of the above

9. A decree becomes final

(a) When it conclusively determines the right of the parties

(b) When no appeal has preferred against the decree

(c) Both (a) and (b)

(d) None of the above

10. Which of the following is not decree

(a) Dismissal in default

(b) Rejection of plaint

(c) Both (a) and (b)

(d) Neither (a) nor (b)

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

Decree, Judgment and Order

Class notes

 

Rules 1 to 5 of O.20 deal with judgment

Rules 6 to 19 of O.20 deal with Decree

Rules 6-B and Rule 20 of O.20 provide for furnishing of copies of judgment and decree to the parties on application made by them on payment of specified charges

Section 34 relates with interest

Section 35 relates with costs

Sections 35-A and 35-B relates with compensatory costs and costs for causing delay respectively.

What is the definition of judgment?

What are the contents of judgment?

What is the procedure to pronounce the judgment?

Whether the alteration in judgment is allowed or not.

When the copies of judgment will be provided?

DECREE

What is the necessity of decree?

What are the contents of decree?

What is the duration to draw up decree after judgment?

What is the form of decree?

Whether the decree can be amended or altered.

Name the courts by which decree may be executed.

What is compromise decree and what are the conditions to pass a compromise decree or consent decree?

What are the courts by which compromise may be recorded?

Who can challenge the compromise decree?

Whether the compromise is allowed on behalf of minor.

Whether the compromise is allowed by pleader.

Whether the compromise is allowed in representative suit.

Whether the res judicata applies on compromise decree.

Whether the compromise decree create an estoppel between the parties.

Can a fresh suit is allowed to set aside a compromise decree on the ground that it is not lawful?

What is the procedure of execution of compromise decree?

Whether the appeal is allowed against a compromise decree.

Whether the revision is allowed against compromise decree

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE,1908

Decree, Judgment And Order

Important sections

S.1

S.2(1)

S.2(2)

S.2(3)

S.2(8)

S.2(9)

S.2(10)

S.2(12)

S.2(14)

S.2(18)

S.9

S.33

S.34

S.35

S.35-A

S.35-B

S.38

S.47

S.88

S.96

S.97

S.104

S.114

S.144

S.152

S.153-A

S.153-B

O.7.R.11

O.7.R.13

O.9.R.2, 3,4

O.9.R.8,9

O.20.R.1 to 5

O.20.R.6 to 19

O.20.R.6-B,20

O.23.R.3

O.23.R.3-A

O.23.R.3-B

O.23.R.4

O.41.R.11

O.41.R.11-A

THE CODE OF CIVIL PROCEDURE,1908

EX PARTE DECREE                            

MAINS QUESTIONS

  1. Where an application under O.9.R.7 C.P.C is dismissed and ex-parte decision follows, what remedies are open to the defendant?

 

  1. Write a short note on ex-parte decree.

 

  1. In an eviction proceedings, 27-5-1989 was fixed for evidence of landlord and 2-6-1989 for evidence of tenant. On 27-5-1989 neither tenant nor his counsel appeared at hearing. The court recorded evidence of the landlord and passed ex-parte eviction order. Same day tenant applied for setting aside the ex-parte order alleging that he was ill and his counsel had forgotten mentioning case in his diary. He filed his affidavit but did not file medical certificate, diary and affidavit of the counsel. The landlord rebutted his allegation on affidavit.

Decide the application.

 

  1. What is sufficient cause in setting aside ex-parte decree under O.9.R.13 . Discuss.

 

  1. What is the effect of dismissal of appeal against ex-parte?

 

THE CODE OF CIVIL PROCEDURE,1908

Decree, Judgment And Order

Class notes

EX PARTE DECREE [O.9.R.6]

An ex parte decree is a decree passed in the absence of the defendant.

Plaintiff appears and defendant does not appear when the suit is called out for hearing.

Defendant is duly served.

Ex parte decree is neither null and void nor inoperative but is merely voidable and unless and until it is annulled on legal and valid grounds, it is proper,lawful,operative and enforceable like a bi parte decree and it has all the force of valid decree.

REMEDIES AGAINST EX PARTE DECREE

  • Set aside(O.9.R.13)
  • Appeal
  • Revision
  • Review
  • Suit

SETTIND ASIDE EX PARTE DECREE[O.9.R.13]

  • Who may apply to set aside an ex parte decree?
  • In which court the application lies?
  • The grounds to set aside an ex parte decree are as follows:-
  1. if the defendant satisfies the court that the summons was not duly served; or
  2. he was prevented by any sufficient cause from appearing when the suit was called out for hearing.
  • whether the grounds mentioned in O.9.R.13 is exhaustive or not.
  • What is the material date for deciding sufficient cause for non-appearance by the defendant?
  • What is the test to set aside an ex parte decree?
  • Sufficient cause is a question of fact. Each case has to be decided on the facts and circumstances before the court and not on precedents.
  • What is the impact of irregularity in service of summons on ex parte decree?
  • The burden of proof that there was sufficient cause for non appearance is on the defendant.
  • What is the period of limitation to file an application to set aside ex parte decree?
  • Notice to opposite party.
  • An order setting aside an ex parte decree is a judicial act; it must be supported by reasons.
  • What it the procedure to set aside an ex parte decree under O.9.R.13?
  • Inherent power
  • Discretion to the court
  • Res judicata
  • Execution of decree
  • What is the effect of setting aside an ex parte decree?
  • Dismissal of appeal against ex parte decree
  • Extent of setting aside an ex parte decree.

APPEAL

  • An ex parte decree is a decree under section 2(2).
  • An aggrieved party can file an appeal under s.96(2).

REVISION

  • An order setting aside an ex parte decree is a case decided within the meaning of section 115 of the code,therefore,revisable.
  • A High court may also exercise supervisory jurisdiction under Article 227 of the constitution in appropriate cases.

REVIEW

  • An aggrieved party can also file an application for review if the conditions laid down under order 47 Rule 1 are satisfied.

 

SUIT

  • A suit to set aside an ex parte decree is not maintainable.
  • But if an ex parte decree is alleged to have been obtained by the plaintiff by fraud, the defendant can file a regular suit to set aside such decree.

 

THE CODE OF CIVIL PROCEDURE,1908

     EX PARTE DECREE  

     PRELIMINARY

  1. AN ex-parte decree can be set aside
  • Under O.9.R.1
  • Under O.9.R.11
  • Under O.12.R.9
  • Under O.9.R.13
  1. An ex-parte decree can be set aside on the ground of
  • Summons not duly served
  • Being prevented by any sufficient cause from appearance
  • Non-appearance due to non-availability of documents with the palint
  • Both (a) and (b)
  1. Remedies available against ex-parte decree include
  • Appeal
  • Review
  • Application for setting aside the decree
  • All the above
  1. An application under O.9.R.13 of the CPC can be made within
  • 30 days of the decree
  • 60 days of the decree
  • 90 days of the decree
  • 6 months of the decree
  1. Order 9, Rule 6 provides for procedure when only the plaintiff appears and defendant does not appear on the date of hearing in the contingency
  • When summons served on the defendant
  • When summons on the defendant but not within sufficient time
  • When summons not duly served
  • All of the above
  1. An application under Order 9, Rule 7 of the CPC can be made
  • Within 30 days of the order
  • Within 60 days of the order
  • Any time during the pendency of the suit
  • At any time on or before the next date of hearing
  1. After being proceeded against ex-parte , the defendant is
  • Precluded absolutely from participating in any proceeding in the suit
  • At liberty to join the proceedings at the stage where the proceedings are pending
  • At liberty to join the proceedings and do all the things which it could have done, had he not been proceeded against ex-parte , without getting the ex-parte order set aside
  • Either (a) or (c)
  1. Sufficient cause under O.9.R.13 is a
  • Question of law
  • Question of fact
  • Mixed question of law and fact
  • All of the above
  1. Which of the following is sufficient cause in setting aside an ex parte decree
  • Counsel busy in other court
  • Negligence of party
  • Death of relative of party
  • None of the above
  1. An ex-parte decree is appealable under
  • 97
  • 99
  • 96(2)
  • 96(3)

PAHUJA LAW ACDEMY

INTEREST

MAINS QUESTION

 

  1. How interest is awarded in a money-decree?

 

  1. How costs are imposed for causing delay?

 

  1. Costs shall follow the event. Explain.

 

 

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

INTEREST: S.34 AND COSTS: 35, 35-A, 35-B, O.20-A

 

The term interest is not defined in the code. According to dictionary meaning it is thus a compensation allowed by law to the person who has been prevented to use the amount to which he was entitled.

Interest awarded by the court may be divided under three heads:

  1. Interest prior to filing of suit

Interest antecedent to suit is not a matter of procedure. The law on the subject may be considered under two heads:

  1. Stipulation to pay interest

If there is a stipulation for the rate of interest , the court must allow that rate up to the date of the suit, however high it may be, subject to the two following exceptions

  • If the rate is penal , the court may award interest at such rate as if deems reasonable.
  • Even if the rate is not penal, the court may reduce it if the interest is excessive and the transaction was substantially unfair.

For the period prior to the institution of the suit , contractual rate of interest is mandatory. Court has no discretion in the matter.

  1. No Stipulation to pay interest.

If there is no express stipulation for the payment of interest , the plaintiff is not entitled to interest except in the following cases:

  • Where it is allowed by mercantile usage but such usage must be pleaded and proved.
  • Interest is payable where a right to it ,or an authority for its allowance or payment , is conferred by statute. e.g; s.61(2)(a) Sale of Goods Act.
  • The supreme court in Mahavir Prasad v. Durga Dutto held that interest for a period prior to the commencement of the suit is claimable either under an agreement or usage of trade or under a statutory provision or under the interest act, for a sum certain where notice is given. Interest is also awarded in some cases by courts by courts of equity.
  1. Interest pendente lite
  • Discretion of the court
  • Discretion must be exercised on the sound judicial principles.
  • As a general rule , the court should award interest at the contractual rate except where it would be inequitable to do so.
  1. Interest from the date of decree till payment
  • The award of interest from the date of decree to the date of payment is also at the discretion of the court.
  • Not exceeding 6% per annum.
  • The proviso added by the Amendment Act of 1976 empowers the court to grant further interest at a rate exceeding six per cent per annum but not exceeding the contractual rate of interest and in the absence of a contract to that effect, at the rate at which moneys are lent or advanced by nationalized bank in relation to commercial transactions provided that liability arises out of a contractual transaction.

 

GENERAL PRINCIPLES:

This section applies only where the decree is for the payment of money.

The expression decree for the payment of money as used in this section includes a claim to unliquidated damages.

This section does not apply where the decree is for the enforcement of a mortgage or charge.

 

Whether recording of reasons mandatory or not .

Which type of interest is allowed by court under section 34 of the code?

What is the effect if the decree is silent as to interest?

Rule of DAMDUPAT and interest under section 34.

 COSTS:35,35-A,35-B,;O.20-A

                The general rule relating to costs is that costs shall follow the event,i.e. a successful party must get the costs and the loosing party should pay to the other side.

Section 35 deals with general costs .

What is the object of awarding costs?

Kinds of costs:

  1. General costs- S.35
  2. Miscellaneous costs-O.20-A
  3. Compensatory costs for false and vexatious claims or defences-S.35-A
  4. Costs for causing delay-S.35-B

 

PAHUJA LAW ACADEMY

INTEREST

PRELIMINARY QUESTION

 

  1. The expression “Each party shall bear his own costs” implies:

 

  • Both the parties are to not to be deprived of costs.
  • Both the parties are entitled to costs from each other
  • Both the parties are to be deprived of costs.
  • None of the above

 

  1. Mark the incorrect statement:

 

  • If the court directs that costs shall not follow the event, it must state in writing reasons for doing so.
  • The power as to payment of costs is vested in the court even if it has no jurisdiction to try the suit
  • Where the court has jurisdiction to pass an order as to costs and it makes no such order, a subsequent suit to recover the costs incurred but not awarded will be barred on the principle of res judicata
  • An appeal does not lie on the question of costs.

 

  1. An appeal may lie for costs if:

 

  • The order as to costs proceeds upon a misapprehension of fact or law.
  • A formal party to a suit against whom no relief is claimed is made to pay the costs.
  • No discretion is exercised by the court in making such an order
  • All of the above

 

  1. Which section of the C.P.C. provides for the payment of compensatory costs

 

  • 35
  • 35 A
  • 35 B
  • 36

 

 

  1. Compensatory costs can be imposed:

 

  • If the claim (or offence) is false or vexatious and subsequently disallowed or withdrawn
  • If objection to the false or vexatious claim or defence has been taken by the party at the earliest opportunity.
  • Both (a) and (b) are correct
  • Both (a) and (b) are incorrect

 

  1. Compensatory costs can be imposed on:

 

  • Plaintiff
  • Defendant
  • Any party to the suit
  • None of the above

 

  1. Costs imposed under sec. 35 B

 

  • If paid, cannot be included again in the costs awarded in the decree passed in the suit
  • If not paid, be executable against the person on whom the costs has been imposed.
  • Both (a) and (b) are correct
  • Both (a) and (b) are incorrect

 

  1. In which of the following cases, the court can order as to costs:

 

  • Cost incurred on a legal notice before the institution of a suit
  • Costs incurred on summoning of witnesses
  • Costs incurred on pleadings
  • All of the above

 

  1. Which order of the CPC lays down rules as to security for payment of costs to be furnished by the plaintiff?

 

  • Order 23
  • Order 25
  • Order 27
  • Order 20

 

  1. 34 of the C.PC makes provision for payment of interest

 

  • In any decree
  • In a money-decree only
  • In a money-decree passed by the High Court only
  • In a money-decree passed by the Supreme Court only

 

  1. The court can grant interest:

 

  • From the date of the suit till the date of the decree
  • From the date of the decree till realization i.e. date of payment
  • Prior to the institution of the suit
  • All of the above

 

  1. Under sec. 34, the court can award interest from the date of decree to the date of payment or such earlier date as the court thinks fit. The rate of such interest shall not exceed:

 

  • Nine per cent per annum
  • Ten per cent per annum
  • Six per cent per annum
  • Twelve per cent per annum]

 

  1. The general object of awarding costs is:

 

  • To secure to a litigant the expenses incurred by him in litigation
  • To enable a litigant to get money by way of penalty or punishment on the opposite party
  • Both (a) and (b)
  • Only (b)

 

  1. Costs can be imposed:

 

  • In a suit
  • In a suit as well as execution proceedings
  • Against a person who is not a party to the suit
  • All of the above

 

  1. The expression “costs shall follow the “event” implies:

 

  • The successful party is entitled to his costs.
  • Each party shall bear his own costs.
  • The successful party is not entitled to his costs.
  • Each party shall not bear his own costs.

THE CODE OF CIVIL PROCEDURE,1908
Some of the important definitions

(1) Affidavit
An affidavit is a declaration of facts, reduced to writing and affirmed or sworn before an officer
having authority to administer oaths. It should be drawn up in the first person and contain
statements and not inferences.
(2) Appeal
The expression “Appeal” may be defined as ‘the judicial examination of the decision by higher
court of the decision of an inferior court”. It is a complaint made to a higher court that the
decree passed by a lower court is wrong. It is a remedy provided by law for getting the decree of
a lower court set aside. The right of appeal is a creature of a statute and unless it is granted
clearly and expressly it cannot be claimed by a person. Again, it is a vested right and can be
taken away only by a statutory provision, either expressly or by necessary implication.
(3) Cause of action
Cause of action may be described as “a bundle of essential facts, which it 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. If a
plaint does not disclose a cause of action, a court will reject such plaint.
(4) Caveat
According to its dictionary meaning, a “caveat is an official request that a court should not take a
particular action without issuing notice to the party lodging the caveat and without affording an
opportunity of hearing him.
(5) Court
“Court” is a place where justice is administered. To be a court, the person constituting it must
have been entrusted with judicial functions.
(6) Defendant
Defendant means a person who defends or a person sued in a court of law by a plaintiff. In
every suit there must be twp parties, namely, the plaintiff and the defendant. A defendant is a
person against whom a relief is claimed by a plaintiff.
(7) Execution
Stated simply, “execution” means “the process of enforcing or giving effect to the judgment,
decree or order of a court”.
(8) Issue
According to the Concise Oxford Dictionary, “issue” means “a point in question, an important
subject of debate or litigation”. Issues are of three kinds: (i) issues of fact; (ii) Issues of law; and
(iii) Mixed issues of fact and law. Issues arise when a material proposition of fact or law is
affirmed by one party and denied by the other.
(9) Jurisdiction
State simply, “Jurisdiction” means authority to decide. “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. Jurisdiction means the extent of the authority of a court to
administer justice prescribed with reference to subject‐matter, pecuniary value and territorial
limits. Consent can neither confer nor take away jurisdiction of a court.
(10) Plaint
A “Plaint” is a statement of claim, a document, or a memorial by the presentation of which a suit
is instituted. It contains the grounds on which the assistance of a court is sought by a plaintiff. It
is a pleading of the plaintiff.
(11) Plaintiff
Plaintiff is a person who brings a suit or commences an action against a defendant. It is the
plaintiff who approaches a court of law by filing a suit for reliefs clamed in the plaint.
(12) Suit
The word “Suit” ordinarily means a civil proceeding instituted by the presentation of a plaint. In
its comprehensive sense, the word “Suit” is understood to apply to any proceeding in a court of
justice by which an individual pursues that remedy which the law permits.
(13) Summons
A summons is a document issued from an offence of a court of justice, calling upon the person
to whom it directed to attend before a judge or an officer of the court for a certain purpose. It is
a written order that legally obligates someone to attend a court of law at a specified date.
When a plaintiff files a suit, the defendant must be informed about it. The intimation which is
sent to the defendant by the court is technically known as “Summons”. A summons can also be
issued to witnesses. Service of summons can be effected in any of the modes recognized by the
Code.
(14) Written statement
Written statement may be defined as a reply of a defendant to the plaint filed by a plaintiff.
Thus, it is a pleading of a defendant dealing with every material; fact of a plaint. It may also
contain new facts in favour of a defendant or legal objections against the claim of a plaintiff. It is
a pleading of a defendant.
(15) Legal representative
“Legal representative” means a person who in law represents the estate of a deceased person,
and includes any person who intermeddles with the estate of the deceased and where 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.
The expression “legal representative” is inclusive in character, its scope is very wide and thus,
over and above a person who in law represents the estate of a deceased, it includes a person
who intermeddles with the estate of a deceased, it includes a person who intermeddles with the
estate of a deceased and also a person on whom the estate devolves on the death of the party
suing or sued, where a party sues or is sued in a representative character.
Legal Representative No Legal Representative
Executors Trespasser
Administrators Creditors
Coparceners Executor de son tort
Residuary legatee Receivers
Reversioners Official assignee

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

Mesne profits [s.2(12)]

Class Notes

What is the meaning of mesne profits?

What is the object of mesne profits?

Against whom mesne profits can be claimed?

What is the test to ascertain mesne profits?

What are the principles that ordinarily guide the court in determining the amount of mesne profits?

Whether the interest is allowed in the computation of mesne profits.

Whether the deductions can be allowed while awarding mesne profits.

 

  • Some of the important definitions

 

1.legal representative

2.public officer

3.cause of action

4.civil

5.court

6.Plaintiff

7.defendant

8.plaint

9.written statement

10.suit

11.summons

12.jurisdiction

13.caveat

14.execution

15.Issue

THE CODE OF CIVIL PROCEDURE,1908

MESNE PROFITS: S.2(12)

  1. Mesne profits is concerned with
  • Illegal possession
  • Wrongful possession
  • Without possession
  • None of the above
  1. Mesne profits can be claimed with regard to
  • Immovable property
  • Movable property
  • Intellectual property
  • Both (a) and (b)
  1. In which of the following provisions , mesne profits has been defined in the code
  • 2(11)
  • 2(12)
  • 2(13)
  • 2(14)
  1. Mesne profits of property includes
  • Those profits by which the person in wrongful possession of such property actually received or might have received there from, together with interest in such profits
  • The profits due to improvements made by person in wrongful possession
  • Both (a) and (b)
  • only (b)
  1. whether the interest is allowed in the computation of mesne profits
  • yes
  • no
  • partly allowed
  • both (b) and (c)
  1. The test to ascertain mesne profits is
  • What the plaintiff has lost by being out of the possession
  • What the defendant gained or might reasonably and with ordinary prudence have gained by such wrongful possession
  • Both (a) and (b)
  • None of the above
  1. Where the plaintiff is dispossessed by several persons
  • All the persons are jointly liable
  • All the persons are severally liable
  • All persons are jointly and severally liable
  • No one is liable

PAHUJA LAW ACADEMY

CODE OF CIVIL PROCEDURE, 1908

Mains Questions

  1. What do you understand by pecuniary jurisdiction of a court. Will a court be competent to hear the suit exceeding its limit if the parties to the suit have given their consent?

 

  1. Discuss with the help of decided cases that every kind of dispute is not entertainable by civil court?

Or

What is a suit of civil nature? Give few examples.

 

  1. What do you understand by the term “Jurisdiction of a court”?

 

  1. Define and write short notes on:
  • Mesne profits
  • Foreign Judgment
  • Judgment Debtor
  • Decree Holder
  • Ex parte decree
  • Legal representative

 

  1. What is the effect of reversal of the Preliminary decree on the final decree passed by the lower Court during the pendency of appeal against final decree.

 

  1. Determine the place of suing in the following cases:
  • ‘A’, a resident of Delhi, ‘B’ a resident of Bangalore and ‘C’ of Calcutta, meet at Kurukshetra. There ‘B’ and ‘C’ borrowed Rs. 10,000/- from ‘A’ and jointly executed a pronote and handed it over to ‘A’. All of them went back to their respective places but the money was not returned. ‘A’ wants to file a suit for recovery of his money.
  • Father of ‘A’ and ‘B’ had a banglow at Gurgaon, one house at Rohtak and Delhi each and two big mango-groves in the district of Hissar. After the death of the father, ‘A’ took over the management of the entire property and began appropriating the income. ‘b’ wants to sue for partition of the property.

  

Jurisdiction Notes

 

  1. Every suit should be instituted in the court of the lowest grade competent to try it.
  2. The court of the higher grade is not deprived of the jurisdiction to try such suit.
  3. Once the suit is properly instituted, the court has power to pass a decree exceeding its pecuniary jurisdiction.
  4. Suits relating to immovable property should be instituted where the property is situated.
  5. Suits relating to movable property or wrong to a person may be instituted where such wrong is committed or where the defendant resides, carries on business or works for gain.
  6. Other suits may be instituted (a) where the cause of action, wholly or partly arises; or (b) where the defendant resides, carries on business or works for gain; or (c) where there are two or more defendants and some of them reside outside the jurisdiction of the court, carries on business or works for gain, a suit may be instituted at the place where one of them resides, carries on business or personally works for gain gain, provided that the leave of the court is obtained.
  7. Consent can neither confer nor take away jurisdiction of a competent court.
  8. Where two or more courts have jurisdiction to entertain a suit, and the parties agree to submit to jurisdiction of one of such courts, the agreement is legal, valid binding and enforceable
  9. No objection as to territorial or pecuniary jurisdiction can be entertained by appellate or revisional court unless (a) such objection has been taken at the earliest possible opportunity; and (b) there has been a consequent failure of justice.
  10. No objection as to territorial for (or pecuniary) jurisdiction can be entertained by executing court unless (a) such objection has been taken at the earliest possible opportunity; and (b) there has been a consequent failure of justice.
  11. No suit would lie to set aside a decree on objection as to territorial (or pecuniary) jurisdiction of a court

 

GENERAL PRINCIPLES

 

From various decisions of the Supreme Court, the following general principles relating to jurisdiction of a civil court emerge:

  • A civil court has jurisdiction to try all suits of a civil mature unless their cognizance is barred either expressly or impliedly.
  • Consent can neither confer nor take away jurisdiction of a court.
  • A decree passed by a court without jurisdiction is a nullity and the validity thereof can be challenged at any stage of the proceedings, in execution proceedings or even in collateral proceedings.

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 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 word ‘civil nature’ is wider than the word ‘civil proceeding’. The section would, therefore, be available in every case where the dispute was of the characteristic of affecting one’s rights which are not only civil but of civil nature.

 

 

Doctrine explained:-  Explainting the concept of jurisdiction of civil courts under section 9, in most Rev. P.M.A. Metropolitan v. Moran mar arthoma, 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 latter added in 1976 bring out clearly the legislative intention of extending operation of the section to such 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 principle of a civilized jurisprudence that absence of machinery for enforcement of right renders it nugatory. The heading which is normally key to the section brings out unequivocally that all civil suits are cognizable unless barred. 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 acts an obligation on the court to exercise jurisdiction for enforcement of right. The word ‘shall’ makes 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 Law Dictionary it is defined as ‘relating to provide rights and remedies sought by civil actions.

 

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE,1908

JURISDICTION

  • The term “jurisdiction” has not been defined in the Code. The word (jurisdiction) is derived from Latin terms “juris” and “dicta” which means “I speak by the law.”
  • 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.

Jurisdiction and consent

It is well settled that consent cannot confer nor take away jurisdiction of a court. In the leading case of A. R. Antulay v. R.S Nayak, the supreme court held that

“The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away right of appeal. Parliament alone can do it by law and no court, whether superior or inferior or both combined, can enlarge the jurisdiction of a court or divest a person of his rights of revision and appeal.”

A defect of jurisdiction goes to the root of the matter and strikes at the authority of a court to pass a decree. Such judgment or order passed by a court, is null and void and the validity thereof can be challenged at any stage. In short, a decree passed by a court without jurisdiction is a coram non judice.

In the case of Kiran Singh v. Chaman Paswan, the Supreme Court observed:

“It is a fundamental principle well-established that a decree passed by a court without jurisdiction is a nullity; and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction…..strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties.”

Conversely, where a court has jurisdiction to decide a dispute, the same cannot be taken away or ousted by consent of parties. An agreement to oust absolutely the jurisdiction of the court would be unlawful and void, being against public policy. But if two or more courts have jurisdiction to try the suit, it is open to the parties to select a Particular forum and exclude the other forums, and therefore, the parties may agree among themselves that the suit should be brought in one of those courts and not in the other, since there is no inherent lack of jurisdiction in the court. Such an agreement would be legal, valid and enforceable.

 

Lack of jurisdiction and irregular exercise of jurisdiction

There is always a distinction between want of jurisdiction and irregular exercise of it. Once it is held that a court has jurisdiction to entertain and decide a matter, the correctness of the decision given cannot be said to be without jurisdiction inasmuch as the power to decide necessarily carries with it the power to decide wrongly as well as rightly.

In the words of Lord Hobhouse, “A court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken, the decision, however wrong, cannot be disturbed.

After the landmark decision in Anisminic Ltd v. Foreign Compensation Commission, the legal position is considerably changed. It virtually assimilated the distinction in M. L. Sethi v. R. P. Kapur, the difference between jurisdictional error and error of law within jurisdiction has been reduced almost to a vanishing point.

“After Anisminic every error of law is a jurisdictional error…..The distinction between jurisdictional and non-jurisdictional and non-jurisdictional error is an ultimately based upon a foundation of sand. Much of the superstructure has already crumbled. What remains is likely quickly to fall away as the courts rightly insist that all administrative actions should be simply lawful whether or not jurisdictionally lawful.”

Basis to determine jurisdiction

It is well settled that for deciding the jurisdiction of a civil court, the averments made in the plaint are material. To put it differently, the jurisdiction of a court should normally be decided on the basis of the case put forward by the plaintiff in his plaint and not by the defendant in his written statement.

Thus, in Abdulla Bin Ali v. galappa, the plaintiff filed a suit in the civil court for declaration of title and for possession and mesne profits treating the defendants as trespasser. The defendant contended that the civil court had no jurisdiction since he was a tenant.

Negativing the contention of the defendants, the Supreme Court observed, “There is no denying the fact that the allegations made in plaint decide the forum. The jurisdiction does not depend upon the defence taken by the defendants in the written statement. On a reading of the plaint as a whole it is evident that the plaintiffs-appellants had filed the suit giving rise to the present appeal treating the defendants as trespassers as they denied the title of the plaintiffs-appellants. Now a suit against the trespasser would lie only in the civil court and not in the Revenue Court…. We are, therefore, of the considered opinion that on the allegations made in the plaint the suit was cognizable by the civil court.”

It is also well established that in deciding the question of jurisdiction, what is important is the substance of the matter and not the form.

Bank of Baroda v. Moti Bhai

On the question of jurisdiction, one must always have regard to the substance of the matter and not to the form of the suit.

It is submitted that the following observations of the Full bench of the Allahabad High Court in Ananti v. Chhannu, and approved by the Supreme Court, lay down the correct law on the point:

“The plaintiff chooses his forum and files his suit. If he establish the correctness of his facts he will get his relief from the forum chosen. If……he frames his suit in manner not warranted by the facts, and goes for his relief to a court, which cannot grant him relief on the true facts, he will have his suit dismissed. Then there will be no question of returning the have his suit dismissed. Then there will be no question of returning the plaint for presentation to the proper court, for the plaint, as framed, would not justify the other kind of court to grant him the relief….. If it is found on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff are not true and the facts alleged by the defendants are true, and that the case is not cognizable by the court, there will be two kinds of orders to be passed. If the jurisdiction is only one relating to territorial limits or pecuniary limits, the plaint will be ordered to e returned for presentation to the proper court. If, on the other hand, it is found that, having regard to the nature of the suit, it is not cognizable by the class of court to which the court belongs, the plaintiff’s suit will have to be dismissed in its entirely.”

If the authority wrongly assumes existence of such fact, a writ of certiorari can be issued.

KINDS OF JURISDICTION

  1. Territorial or local jurisdiction

Every court has its own local or territorial limits beyond which it cannot exercise its jurisdiction. These limits are fixed by the Government. The District Judge has to exercise jurisdiction within his district and not outside it. The High Court has jurisdiction over the territory of a State within which it is situate and not beyond it. Again, a court has no jurisdiction to try a suit for immovable property situated beyond its local limits.

  1. Pecuniary jurisdiction

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 exceed the pecuniary limits of its jurisdiction. 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, a presidency Small Causes Court cannot entertain a suit in which the amount claimed exceeds Rs 1000.

 

 

  1. Jurisdiction as to subject matter

Different courts have been empowered to decide different types of suits. Certain courts are precluded from entertaining certain suits. Thus, a Presidency Small Causes Court has no jurisdiction to try the 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.

 

GENERAL PRINCIPLES:

 

  • There is a distinction between want of jurisdiction and irregular exercise thereof.
  • Every court has inherent power to decide the question of its own jurisdiction.
  • Jurisdiction of a court depends upon the averments made in a plaint and not upon the defence in a written statement.
  • For deciding jurisdiction of a court, the substance of a matter and not its form is important.
  • Every presumption should be made in favour of jurisdiction of a civil court.
  • A statute ousting jurisdiction of a court must be strictly construed.
  • Burden of proof of exclusion of jurisdiction of a court is on the party who asserts it.
  • Even where jurisdiction of a civil court is barred, it can still decide whether the provisions of an Act have been complied with or whether an order was passed dehors (outside the scope of) the provisions of law. 

 

 

PRELIMINARY QUESTION

  1. Where the local limits of the jurisdiction of courts are uncertain, the place of institution of suit shall be decided according to the provision of:

 

  • 17
  • 18
  • 19
  • 20

 

  1. According to sec. 16 a suit in respect of immovable property may be instituted:

 

  • Within the local limits of the court where the property is situate.
  • In the court within whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain
  • Both (a) and (b)
  • Only (b)

 

  1. Which of the following suits is not a relating to immovable property:

 

  • Suit for rent in respect of immovable property
  • Suit for recovery of immovable property.
  • Suit for partition of immovable property
  • Suit for redemption of mortgaged property.

 

  1. According to sec. 15 of CPC., every suit shall be instituted in the

 

  • Court of lowest grade
  • Court of highest grade
  • District Court.
  • None of the above

 

  1. In which of the following cases, the plaint will be ordered to be returned for prosecution to the proper court:

 

  • The plaintiff frames his suit in a manner not warranted by the facts and goes for his relief to a court which cannot grant him.
  • The plaintiff chooses a wrong court in respect of territorial limits.
  • The plaintiff chooses a wrong court in respect of pecuniary limits.
  • Both (b) and (c)

 

  1. Mark the incorrect statement:

 

  • A consumer court/forum has jurisdiction only to entertain complaints relating to consumers
  • A civil courts has no jurisdiction to entertain a criminal complaint
  • Presidency small causes court has jurisdiction to try suits for specific performance of a contract.
  • In respect of testamentary matters, divorce cases, probate proceedings, insolvency proceedings, etc, only the District or Civil Judge has jurisdiction.

 

 

 

  1. Which of the following courts cannot entertain and decide an appeal:

 

  • Courts of civil judge
  • District Court
  • High Court
  • Both (a) and (b)

 

  1. Which of the following is a basis of the jurisdiction of a court:

 

  • Subject matter
  • Pecuniary value
  • Local limits
  • All of the above

 

  1. Mark the incorrect statement:

 

  • A decree passed by a court without jurisdiction institution is a Coram non judice.
  • If there is inherent lack of jurisdiction, the decree passed by a civil court is a nullity.
  • If the court has jurisdiction, but it is irregularly exercised, the error can be remedied in appeal
  • The question as to jurisdiction of a court is determinable at the commencement or at the conclusion of the inquiry.

 

  1. If two or more courts have jurisdiction to try the suit, it is open to the parties to select a particular forum. Such an agreement would be legal, valid and enforceable, in which of the following cases it was held so:

 

  • Mathura Prasad v. Dossibai
  • Ram kumar v. State of Haryana
  • Hakam Singh v. Gammon (India Ltd)
  • S. Hasnuddin v. State of Maharashtra

 

PAHUJA LAW ACADEMY

CODE OF CIVIL PROCEDURE, 1908

PLACE OF SUING

MAINS QUESTION

 

  1. What do you understand by pecuniary jurisdiction of a court. Will a court be competent to hear the suit exceeding its limit if the parties to the suit have given their consent?

 

  1. Determine the place of suing in the following cases:
  • ‘A’, a resident of Delhi, ‘B’ a resident of Bangalore and ‘C’ of Calcutta, meet at Kurukshetra. There ‘B’ and ‘C’ borrowed Rs. 10,000/- from ‘A’ and jointly executed a pronote and handed it over to ‘A’. All of them went back to their respective places but the money was not returned. ‘A’ wants to file a suit for recovery of his money.
  • Father of ‘A’ and ‘B’ had a banglow at Gurgaon, one house at Rohtak and Delhi each and two big mango-groves in the district of Hissar. After the death of the father, ‘A’ took over the management of the entire property and began appropriating the income. ‘b’ wants to sue for partition of the property.

 

  1. What do you understand by the term “Jurisdiction of a court”? 

 

THE CODE OF CIVIL PROCEDURE, 1908

PLACE OF SUING:-

Section 15 of the code refers to the pecuniary jurisprudence of a court. It says that every suit shall be instituted in the court of lowest grade competent to try it. But a decree passed by a court of higher grade cannot be said to be without jurisdiction. It is merely an irregularity covered by S. 99 of the Code and decree passed by the court is not nullity.

OBJECT

  • The courts of higher grade shall not be over burdened
  • To afford convenience to the parties and witness who may be examined in such suits.

 

HOW JURISDICTION OF THE COURT IS TO BE DECIDED:-

Prima facie, it is the valuation made by the plaintiff in the plaint which determines the jurisdiction of the court and not the amount for which ultimately the decree may be passed by the court

But the plaintiff cannot be allowed to put an authority value upon his claim nor can be allowed to put an arbitrary value upon his claim nor can be allowed to overvalue or undervalue his claim with a view to choose his forum.

Usually, a court accept the valuation of a plaintiff in the plaint and proceed to decide the suit on merits on that basis but in case of improper valuation, the court may require the plaintiff to prove that the valuation for the purpose of jurisdiction must be determined on the basis of the allegation made and relief claimed in the suit.

Defence in written statement is of no value for such determination.

In Nandita Bose v. Ratanlal Nahata,  the SC held that ordinarily the valuation of a suit depends upon the relief claimed therein and plaintiff’s valuation determines the court in which the plaint should be presented. But he can’t invoke the jurisdiction of the court either by gross over-valuing and undervaluing of the relief. In such a case, the court in order to prevent abused of the process of law, has the jurisdiction under O7 R 10 to order the return of the plaint at any stage of the suit for presentation to the proper court.

Note:- objection as to territorial or pecuniary jurisdiction are regarded by the code as merely technical and unless raised at the earliest possible opportunity and they wil not be entertained in appeal or revision for the first time.

OBJECTION AS TO PECUNIARY JURISDICTION

The following three conditions must be exist

  • The objection was taken in the court of first existence
  • It was taken in the earliest possible opportunity and in cases where issues are settled at or before settlement of issues.
  • There has been a consequent failure of justice

 

TERRITORIAL JURISDICTION

For the purpose of territorial jurisdiction of a court, suits may be divided into four classes

  • Suits in respect of immovable property (S. 16-18)
  • Suits for movable property (S. 19)
  • Suits for compensation for wrong (tort) (S.19)
  • Other suits (S.20)

JURISDICTION AS TO SUBJECT MATTER

Certain courts have no jurisdiction to entertain certain suits. For instance, presidency small cause courts have no jurisdiction to try a suit for specific performance of contract. Likewise, suits for testamentary succession, divorce cases, probate proceeding insolvency proceedings etc. cannot be entertained by a court of civil judge (junior division). This is called jurisdiction as to the subject matter of the suit.

  • Place of suing: General Provisions:-
NATURE OF SUIT PLACE OF SUING
1.       Every suit

 

 

 

2.       Suits for

 

(i)                  Recovery of:

(ii)                Partition of:

(iii)               Foreclosure, sale or redemption of mortgage of or charge upon

(iv)              Determination of any other right to or intersection.

(v)                Compensation for wrong to immovable property

 

3.       Recovery of movable property under actual destraint or attachment

 

–          Court to the lowest grade competent to try it (S. 15).

 

 

–          Court within whose jurisdiction the immovable property is situate (S. 16 (9) to (e))

 

 

 

 

 

 

 

 

–          Court within whose jurisdiction the immovable property is situate.

 

4.       i.       Relief respecting or

ii.                   Compensation for wrong to-

-immovable Prop. Held by or on behalf of the def. where the relief sought can be entirely obtained through his personal obedience.

 

 

 

 

 

5.       i. Relief respecting; or

ii. Compensation for wrong to-

-immovable prop. Situate within the jurisdiction of different courts

 

 

 

 

6.       Where it is uncertain within the jurisdiction of which of two or more courts any immovable prop. Is situate

 

 

7.        Compensation for wrong to-

(i)                  Person, or

(ii)                Movable prop

–          Court within whose

Jurisdiction-

(i)                  The prop is

Situate; or

(ii)                The defendant

Resides, or carries

On business or personally

Works for gain

(Proviso to S.16)

 

 

–          Court within

Whose jurisdiction

Any portion of the

Property is situate

Provided that the entire claim is within the pecuniary jurisdiction of such courts S.19)

 

 

Any of those courts, provided that the court has pecuniary jurisdiction on regards to subject matter (S.18)

 

 

-if the wrong is done within the jurisdiction of one court and the defendant resides or carries on business or personally works for gain within the jurisdiction of another court.

 

8. Any other suit:-

-in either of the court at the option of the plaintiff (S.19)

 

 

 

(i)                  Where the cause of action wholly or partly arises; or

(ii)                The defendant resides, carries on business or personally works for gain;

(iii)               Where there are two or more defendants, where any of them resides, carries on business or personally works for gain, provided that-

 

(a)    Either the leave of the court is obtained; or

(b)   The defendants, who do not reside, carry on business or personally work for gain acquiesce (S.20)

 

OBJECTION AS TO JURISDICTION: SECTION 21.

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

OBJECTION AS TO TERRITORIAL JURISDICTION:-

In Hira Lal v. kali Nath, where the suit which ought to have been filed in an Agra court was filed in the Bombay High Court with the leave of the court, it was held that the objection to such jurisdiction falls within S. 21.

Under S. 21(1), no objection as to the place of suing will be allowed by an appellate of revisional court unless the following three conditions are satisfied.

  • The objection was taken in the court of first existence
  • It was taken at the earliest possible opportunity and in cases where the issues are settled at or before the settlement of issues and
  • There has been a consequent failure of justice.

All these three conditions must co-exist.

It is well settled that neither consent nor-waiver nor acquiescence can confer jurisdiction upon a court otherwise incompetent to try suit. It is equally well settled that the objection as to the local jurisdiction of court does not stand on the same fooling as an objection to the competence of a court to try a case.

  • The lack of competence of a court to try a case =       inherent lack of jurisdiction
  • Objection as to local jurisdiction of a court =       waived

Section 21 is a statutory recognition of the said principle and provides that the defect of peace of suing under S.15 to 20 may be waived.

The policy underlying S.21 has been explained by the Supreme Court is Kiran Singh v Chaman Paswan

Note:- this section does not preclude objection as to the place of suing being taken in the appellate court or provisional court if the trial court has not decided the suit on merits

Objection as the subject matter of jurisdiction:-

A jurisdiction as to subject matter of the suit is a fine quo non. If the, court

Does not possess that jurisdiction, a judgment given, order made or decree passed is null and void which may be set aside in appeal, review or revision. Its validity can be challenged even in collateral proceedings. 

OBJECTION IN EXECUTION PROCEEDINGS

Before 1976 Amendment Act, S.21 did not apply to execution proceeding but new by the amendment Act of 1976 an express provision has been introduced which makes it clear that objection as to jurisdiction will also apply to execution proceeding.

BAR OF SUIT

According to S. 21, no objection to the place of suing can be taken at an appellate or revisional stage of proceedings.

Now, a question arises whatever a decision can be challenged by filing a new suit.

Section 21-A specifically provides that no substantive suit can be filed to set aside a decree passed by a court on an objection as to the place of suing

Although the provision is ambiguous, defective and incomplete. It only talks about place of seeing i.e.; territorial limits only and does not deal with pecuniary limits or defects. It is however submitted that principle applicable to territorial defects will pro fanto apply to pecuniary defects as well.

PAHUJA LAW ACADEMY

CODE OF CIVIL PROCEDURE, 1908

PLACE OF SUING

PRELIMINARY

  1. Under section 15 of CPC, every suit shall be instituted in

 

(a) The district court

(b) The court of the lowest grade

(c) The court of higher grade

(d) All the above.

 

  1. Section 15 of CPC lays down

 

(a) A rule of procedure

(b) A rule of jurisdiction

(c) A rule of evidence

(d) All the above.

 

  1. Under section 16 of CPC, a suit relating to immoveable property can be filed in a court within whose local jurisdiction

 

(a) The property is situate

(b) The defendant voluntarily resides or personally works for gain

(c) The defendant voluntarily resides or carries on business

(d) Either (a) or (b) or (c).

 

  1. Suit in respect of immoveable property, where the entire relief sought can be obtained-through the personal obedience of the defendant, can be instituted in a court within whose local jurisdiction

 

(a) The property is situate

(b) The defendant voluntarily resides or carries on business

(c) The defendant voluntarily resides or personally works for gain

(d) All the above.

 

  1. Place of institution of suit in respect of immoveable property, situated within the jurisdiction of different courts, has been provided

 

(a) Under section 17 of CPC

(b) Under section 18 of CPC

(c) Under section 19 of CPC

(d) Under section 20 of CPC.

 

  1. Section 18 of CPC provides for

 

(a) Place of institution of suit in respect of immoveable property where the property is situate in the jurisdiction of one court

(b) place of institution of suit in respect of immoveable property where the property is situate in the jurisdiction of different court

(c) place of institution of suit in respect of immoveable property where the local limits of jurisdiction of courts are uncertain

(d) all the above.

 

  1. Place of suing in respect of suits for compensation for wrongs to persons or moveable property has been dealt with

 

(a) under section 18 of CPC

(b) under section 19 of CPC

(c) under section 20 of CPC

(d) under section 21 of CPC.

 

  1. A suit for compensation for wrong done to the person or to moveable property, where the wrong was done within the local jurisdiction of one court and the defendant resides within the local limits of another court

 

(a) can be instituted in the court within whose local jurisdiction the wrong has been committed

(b) can be instituted in the court within whose local jurisdiction the defendant resides

(c) either (a) or (b) at the option of the plaintiff

(d) anywhere in India.

 

  1. ‘X’ residing in Delhi, publishes statements defamatory to ‘Y’ in Calcutta. ‘Y’ can sue ‘X’ at

 

(a) Delhi

(b) Calcutta

(c) Anywhere in India

(d) Either in Delhi or in Calcutta.

 

  1. Suits under section 20 of CPC can be instituted where the cause of action arises

 

(a) Wholly

(b) Partly

(c) Either wholly or in part

(d) Only (a) and not (b) or (c).

 

 

 

  1. In cases where there are more than one defendant, a suit can be instituted in a court within whose local jurisdiction

 

  • each of the defendant at the time of commencement of the suit, actually & voluntarily resides or carries on business or personally works for gain
  • any of the defendant, at the time of the commencement of the suit, actually & voluntarily resides, or carries on business, or personally works for gain and the defendant(s) not so residing etc. acquiesce
  • both (a) & (b) are correct
  • only (a) not (b).

 

  1. A suit for damages for breach of contract can be filed, at a place

 

(a) Where the contract was made

(b) Where the contract was to be performed or breach occurred

(c) Anywhere in India

(d) Both (a) and (b).

 

  1. A suit relating to partnership may be instituted at a place

 

(a) Where the partnership was constituted

(b) Where the partnership business was carried on

(c) Where partnership accounts are maintained

(d) All the above.

 

  1. A suit relating to partnership dissolved in a foreign country can be filed at a place

 

(a) In foreign country

(b) Where the parties to the suit reside in India

(c) Both (a) & (b)

(d) all over India.

 

  1. Objection as to the place of suiting

 

(a) Can only be taken before the court of first instance at the earliest possible opportunity

(b) Can be taken before the appellate court for the first time

(c) can be taken before the court of revision for the first time

(d) all the above.

 

  1. Section 21 of CPC cures

 

(a) Want of subject-matter jurisdiction

(b) Want of pecuniary jurisdiction

(c) Want of territorial jurisdiction

(d) Both (b) and (c).

 

  1. A suit to set aside a decree on the ground of lack of territorial jurisdiction is barred

 

(a) Under section 21 of CPC

(b) Under section 21A of CPC

(c) Under section 22 of CPC

(d) Under section 23 of CPC.

 

  1. Parties by their consent/agreement

 

(a) Can confer jurisdiction on a court, where there is none in law

(b) Can oust the jurisdiction of the court where there is one in law

(c) Can oust the jurisdiction of one of the courts when there are two courts simultaneously having jurisdiction in law

(d) All the above.

 

  1. Section 20 of CPC does not apply to

 

(a) Arbitration proceedings

(b) Civil proceedings

(c) Both (a) & (b)

(d) Neither (a) nor (b).

 

  1. Agreement between the parties to institute the suit relating to disputes in a particular court

 

(a) Does not oust the jurisdiction of other courts

(b) May operate as estoppel between the parties

(c) Both (a) and (b)

(d) Neither (a) nor (b)

 

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

RES SUB JUDICE AND RES JUDICATA

Mains Questions

 

Q.1. Does the code of civil procedure make any provision from preventing courts of concurrent jurisdiction from trying at the same time two parallel suits in respect of same cause of action? If so what? Discuss.

Q.2. A suit for partition of premise has filled by one of the heirs. Subsequently another suit for eviction of tenant from their premises was filled by another heir? Can the subsequent suit be stayed in view of section 10 of C.P.C?

Q.3. B residing in Calcutta has an agent at Calicut employed to sell his goods there. A sues B in Calicut claiming a balance due an account in respect of dealing between him and B. During the pendency of the suit in Calicut court competent to grant relief B institute a suit against A in Calcutta for an account and damages caused by A’s alleged negligence. Can Calcutta court proceed with trial of B’s suit?

Q.4. what is the difference between res sub judice and res judicata?

Q.5. what is the effect of contravention of doctrine of res sub judice?

 

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

RES SUB JUDICE AND RES JUDICATA

CLASS NOTES

Res sub judice: Stay of suit

According to s.10 the conditions for the application of this section are as follows:

  1. Two suits
  2. Matter Directly and substantially in issue
  3. Same parties
  4. Pending in the court
  5. Competent court
  6. Same title

 

  • Two suits

 

  • One previously instituted and other subsequently instituted
  • What is suit?
  • When the suit is said to be instituted.
  • Whether the suit includes pending appeal.
  • Whether the suit includes an application to leave to appeal to the Supreme Court.
  • Whether the suit includes an application under s.47.

 

  • Directly and substantially in issue

 

  • The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit. .
  • Directly means at once, immediately, without intervention.
  • Substantially means essentially, materially or in a substantial manner.
  • A collateral or incidental issue.
  • It is something short of certainty but indeed more than suspicion.
  • A matter is said to be substantially in issue if it of importance for the decision of the case.
  • A matter cannot be said to have been directly and substantially in issue in a suit unless it was alleged by one party and denied or admitted by other party.
  • The question whether or not a matter is directly and substantially in issue would depend upon whether a decision on such issue would materially affect the decision of the suit,
  • What is the criterion to determine this question?
  • g. A sues B for rent due. The defence of B is that no rent is due. Here the claim for rent is the matter in respect of which the relief is claimed. The claim of rent is, therefore, a matter directly and substantially in issue.
  • A sues B (i) for a declaration of title to certain lands-and (ii) for the rent of those lands. B denies A’s title to the lands and also contends that no rent is due. in this case, there are two matters in respect of which relief is claimed ,viz (i) the title to the lands and (ii) the claim for rent. Both these matters are, therefore, directly and substantially in issue.

 

  • Same Parties

 

  • A party is a person whose name appears on the record at the time of the decision.
  • A party may be a plaintiff or a defendant.
  • Whether the following are parties to the suit

 

  • A party to the suit whose name is struck off
  • Privies
  • Representative suit
  • Who dies pending the suit but whose name continues on record erroneously
  • Pro forma defendant
  • Interveners
  • Minors

 

  • Pending in the court

 

  • The previously institute suit must be pending

 

  • In the same court in which subsequent suit is brought; or
  • In any other court in India; or
  • In any court beyond the limits of India established or continued by the Central Government; or
  • Before the supreme court of India

 

  • Competent court

 

  • Competent to try means competent to try the subsequent suit if brought at time the first suit was brought.
  • The court in which the first suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit.

 

  • Same title

 

  • Same title means same capacity ‘
  • It has nothing to do with the cause of action or with the subject matter on which he sues or is sued.
  • The test is identity of title in the two litigations and not the identity of the subject
  • matter involved in two cases

 

  • Object

 

  • It intends to protect a person from multiplicity of proceedings.
  • It also avoids conflict of decisions.
  • It also aims to avert inconvenience to the parties.
  • It gives effect to the rule of res judicata.

 

POINTS TO BE REMEMBERED

  1. The section does not bar the institution of the suit but only bars a trial
  2. The subsequent suit cannot be dismissed by a court but is required to be stayed
  3. Provisions contained in section 10 are mandatory (Manohar Lal Chopra v. Seth Hiralal).
  4. What is the test for applicability of section10?
  5. Whether section 10 bars an Indian court to try a subsequently instituted suit if the previously instituted suit is pending in a foreign court.
  6. A decree passed in contravention of section 10 is not a nullity and, therefore, cannot be disregarded in execution proceedings.
  7. Whether it can be waived by the parties.
  8. Inherent power of the court.
  9. Consolidation of the suits.
  10. interim orders
  11. If the court is satisfied that subsequent suit can be decided purely on legal point, it is open to the court to decide such suit.

 

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

RES SUB JUDICE AND RES JUDICATA

Preliminary

  1. Principle of res-subjudice is contained in

 

  • Section 10 of CPC
  • Section 11 of CPC
  • Section 13 of CPC
  • Section 14 of CPC

 

  1. Under Section 10 of CPC, a suit is liable to be

 

  • Stayed
  • Dismissed
  • Rejected
  • Either (a) or (b) or (c)

 

  1. For the application of the principle of res-subjudice which of the following is essential

 

  • Suits between the same parties or litigating under the same title
  • The two suits must be pending disposal in a court
  • The matters in issue in the two suits must be directly and substantially the same
  • All the above.

 

  1. Section 10 of CPC does not apply

 

  • When the previous suit is pending in the same court
  • When the previous suit is pending in a foreign court
  • When the previous suit is pending in any other court
  • When the previous suit is pending in a court outside India established or contained by the Central Government

 

  1. Under the principle of res-judice

 

  • The second suit has to be stayed
  • The previous suit has to be stayed
  • Either (a) or (b) depending on the facts & circumstances of the case
  • Either (a) or (b) depending on the valuation of the suit for the purpose of jurisdiction.

 

  1. Provisions of section 10 of CPC are

 

  • Directory
  • Mandatory
  • Non mandatory

 

  1. Section 10 can come into operation

 

  • Before filing of written statement in the subsequent suit
  • Before settlement of issues in subsequent suit
  • After settlement of issues in subsequent suit
  • All the above.

 

  1. Res subjudice means

 

  • Matter under control
  • Matter under judgment
  • Matter without any control
  • None of the above

 

  1. Daryao v state of U.P relates to

 

  • Res sub judice
  • Res judicata
  • Lis pendens
  • Restitution

 

  1. Which of the following is not true of res sub judice

 

  • It bars the trial of a suit
  • it applies when the appeal against the first suit is pending
  • It is a rule of procedure.
  • It cannot be waived by the parties.

 

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

FOREIGN JUDGMENT

  • Sections 13 and 14 enact a rule of res judicata in case of foreign judgments.
  • These provisions embody the principle of private international law that a judgment delivered by a foreign court of competent jurisdiction can be enforced by an Indian court and will operate as res judicata between the parties thereto except in the cases mentioned in Section 13.
  • “Foreign court” is defined as a court situate outside India and not established or continued by the authority of the Central Government.[ S.2(5)]
  • Foreign judgment” means a judgment of a foreign court [S.2(6)]. In other words, a foreign judgment means adjudication by a foreign court upon a matter before it. Thus judgments delivered by courts in England, France, Germany, USA, etc. are foreign judgments.
  • Section 13 embodies the principle of res judicata in foreign judgments. This provision embodies the principle of private international law that a judgment delivered by a foreign court of competent jurisdiction can be enforced in India. The rule laid down in Section 13 is substantive law and not merely a rule of procedure. The section is not confined in its application to plaintiffs. A defendant is equally entitled to non-suit the plaintiff on the basis of a foreign judgment.
  • The judgment of a foreign court is enforced on the principle that where a court of competent jurisdiction has adjudicated upon a claim, a legal obligation arises to satisfy that claim. The rules of private international law of each State must in the very nature of things differ, but by the comity of nations certain rules are recognised as common to civilized jurisdictions.
  • An awareness of foreign law in a parallel jurisdiction would be a useful guideline in determining our notions of justice and public policy. We are sovereign within our territory but “it is no derogation of sovereignty to take account of foreign law”.
  • Let us see some illustrations to understand the principle:
  • A sues Bin a foreign court. The suit is dismissed. The judgment will operate as a bar to a fresh suit by A against B in India on the same cause of action.
  • A sues B in a foreign court. The suit is decreed. A then sues B on that

judgment in India. B will be precluded from putting in issue the matters which were directly and substantially in issue before the foreign court and adjudicated upon by the court.

  • A sues B in a foreign court and obtains a decree. He then sues B on that judgment in India. B is not precluded from raising a plea that the judgment of the foreign court is not conclusive and does not operate as res judicata since it was obtained by fraud or was not given on merits; or was contrary to law; or was opposed to natural justice, etc.

 

 

JURISDICTION OF FOREIGN COURT

It is well-settled proposition in private international law that unless a foreign court has jurisdiction in the international sense, a judgment delivered by that court would not be recognised or enforced in India. But the jurisdiction which is important in such matters is only the competence of the court, i.e. territorial competence over the subject-matter and over the defendant. Its competence or jurisdiction in any other sense is not regarded as material by the courts in this country. The material date to decide the jurisdiction of the court is the time when the suit is instituted.

 BINDING NATURE OF FOREIGN JUDGMENT: PRINCIPLES

The Code of Civil Procedure provides that a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except:

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

(b) Where it has not been given on the merits of the case;

(c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;

(d) Where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) Where it has been obtained by fraud;

(I) where it sustains a claim founded on a breach of any law in force in India.

 FOREIGN JUDGMENT WHEN NOT BINDING: CIRCUMSTANCES: SECTION 13

Under Section 13 of the Code, a foreign judgment is conclusive and will operate as res judicata between the parties thereto except in the cases mentioned therein. In other words, a foreign judgment is not conclusive as to any matter directly adjudicated upon, if one of the conditions specified in clauses (a) to (j) of Section 13 is satisfied and it will then be open to a collateral attack.

In the following six cases, a foreign judgment shall not be conclusive:

(1) Foreign judgment not by a competent court;

(2) Foreign judgment not on merits;

(3) Foreign judgment against International or Indian Law;

(4) Foreign judgment opposed to natural justice;

(5) Foreign judgment obtained by fraud; and

(6) Foreign judgment founded on a breach of Indian Law.

 

(1) Foreign judgment not by a competent court

  • It is a fundamental principle of law that the judgment or order passed by the court which has no jurisdiction is null and void. Thus, a judgment of a foreign court to be conclusive between the parties must be a judgment pronounced by a court of competent jurisdiction.
  • Such judgment must be by a court competent both by the law of the State which has constituted it and in an international sense and it must have directly adjudicated upon the “matter” which is pleaded as res judicata. But what is conclusive is the judgment, i.e., the final adjudication and not the reasons for the judgment given by the foreign court.
  • Thus, if A sues B in a foreign court, and if the suit is dismissed, the decision will operate as a bar to a fresh suit by A in India on the same cause of action. On the other hand, if a decree is passed in favour of A by a foreign court against B and he sues B on the judgment in India, B will be precluded from putting in issue the same matters that were directly and substantially in issue in the suit and adjudicated upon by the foreign court.

 (2) Foreign judgment not on merits

  • In order to operate as res judicata, a foreign judgment must have been given on merits of the case.
  • A judgment is said to have been given on merits when, after taking evidence and after applying his mind regarding the truth or falsity of the plaintiff’s case, the judge decides the case one way or the other. Thus, when the suit is dismissed for default of appearance of the plaintiff; or for non-production of the document by the plaintiff even before the written statement was filed by the defendant, or where the decree was passed in consequence of default of defendant in furnishing security, or after refusing leave to defend, such judgments are not on merits.
  • However, the mere fact of a decree being ex parte will not necessarily justify a finding that it was not 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.

(3) Foreign judgment against International or Indian law

  • A judgment based upon an incorrect view of international law or a refusal to recognise the law of India where such law is applicable is not conclusive.
  • But the mistake must be apparent on the face of the proceedings.
  • Thus, wherein a suit instituted in England on the basis of a contract made in India, the English court erroneously applied English Law, the judgment of the court is covered by this clause inasmuch as it is a general principle of Private International Law that the rights and liabilities of the parties to a contract are governed by the place where the contract is made (lex loci contractus).
  • When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognised by Indian law or International law, it is a judgment which is in defiance of the law. Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforceable in this country.

(4) Foreign judgment opposed to natural justice

  • It is the essence of a judgment of a court that it must be obtained after due observance of the judicial process i.e., the court rendering the judgment must observe the minimum requirements of natural justice.
  • It must be composed of impartial persons, act fairly, without bias, and in good faith.
  • it must give reasonable notice to the parties to the dispute and afford each party adequate opportunity of presenting his case. A judgment which is the result of bias or want of impartiality on the part of a judge will be regarded as a nullity and the trial “coram non judice”.
  • But the expression “natural justice” in clause (d) of Section 13 relates to the irregularities in procedure rather than to the merits of the case.
  • A foreign judgment of a competent court, therefore, is conclusive even if it proceeds on an erroneous view of the evidence or the law, if the minimum requirements of the judicial process are assured; correctness of the judgment in law or on evidence is not predicated as a condition for recognition of its conclusiveness by the municipal court.

(5) Foreign judgment obtained by fraud

  • It is a well-established principle of Private International Law that if a foreign judgment is obtained by fraud, it will not operate as res judicata.
  • It has been said, Fraud and justice never dwell together” (fraus et jus nunquam cohabitant); or Fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent).
  • Lord Denning observed, ”No judgment of a court, no order of a Minister, can be allowed to stand, if it has been obtained by fraud.

 

  • In other words, though it is not permissible to show that the court was “mistaken”, it might be shown that it was “misled”. There is an essential distinction between mistake and trickery; The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside if the court was imposed upon or tricked into giving the judgment.
  • In A.V. Papayya Sastry v. Govt. of A.P. the Supreme Court observed:

Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the cost of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of ’finality of litigation’ cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants.

  • In the leading case of Satya v. Teja Singh, a husband obtained a decree of divorce against his wife from an American court averring that he was domiciled in America. Observing that the husband was not a bona fide resident or domicile of America, and he had played fraud on a foreign court falsely representing to it incorrect jurisdictional fact, the Supreme Court held that the decree was without jurisdiction and a nullity.
  • Again, in Narasimha Rao v. Venkata Lakshmi“, A (husband) obtained a decree of divorce against B (wife) again from an American court on the ground that he was a resident of America. Then he remarried C. B filed a criminal complaint against A and C for bigamy. A and C filed an application for discharge. Dismissing the application, the Supreme Court held that the decree of dissolution of marriage was without jurisdiction inasmuch as neither the marriage was solemnized nor the parties last resided together in America. It was, therefore, unenforceable in India.
  • In S.P. Chengalvaraya Naidu v. Iagannath, the Supreme Court stated,

It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eye of the law. Such a judgment/decree—by the first court or by the highest court—has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.

  • The fraud may be either fraud on the part of the party invalidating a foreign judgment in whose favour the judgment is given or fraud on the court pronouncing the judgment.“ Such fraud, however, should not be merely constructive, but must be actual fraud consisting of representations designed and intended to mislead; a mere concealment of fact is not sufficient to avoid a foreign judgment.

 

(6) Foreign judgment founded on breach of Indian law

 

  • Where a foreign judgment is founded on a breach of any law in force in India, it would not be enforced in India. The rules of Private International Law cannot be adopted mechanically and blindly.
  • Every case which comes before an Indian court must be decided in accordance with Indian law. It is implicit that the foreign law must not offend our public policy.
  • Thus, a foreign judgment under the Law of Limitation in India is not conclusive. Similarly, a decree for divorce passed by a foreign court cannot be confirmed by an Indian court if under the Indian law the marriage is indissoluble. It is implicit that the foreign law and foreign judgment would not offend against our public policy.

 PRESUMPTION AS TO FOREIGN JUDGMENT: SECTION 14

Section 14 of the Code declares that the court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a court of competent jurisdiction, unless the contrary appears on the record, or is proved. However, if for admissibility of such copy any further condition is required to be fulfilled, it can be admitted in evidence only if that condition is satisfied.

Thus, in Narasimha Rao v. Venkata Lakshmi, the Supreme Court held that mere production of a photostat copy of a decree of a foreign court is not sufficient. It is required to be certified by a representative of the Central Government in America.

SUBMISSION TO JURISDICTION OF FOREIGN COURT

  • It is well-established that one of the principles on which foreign courts are recognised to be internationally competent is voluntary submission of the party to the jurisdiction of such foreign court. The reason behind this principle is that having taken a chance of judgment in his favour by submitting to the jurisdiction of the court, it is not open to the party to turn round when the judgment is against him and to contend that the court had no jurisdiction.
  • Submission to jurisdiction of a foreign court may be express or implied. Whether the defendant has or has not submitted to the jurisdiction of a foreign court is a question of fact which must be decided in the light of the facts and circumstances of each case.“

 FOREIGN JUDGMENT AND RES JUDICATA

  • A foreign judgment is conclusive as to any matter adjudicated upon by a competent foreign court. Section 13 of the Code in essence enacts a rule of res judicata in relation to foreign judgments. Hence, if a foreign judgment is delivered by a court having jurisdiction in the matter, it would operate as res judicata.

 CONCLUSIVENESS OF FOREIGN JUDGMENT

  • As stated above, a foreign judgment is conclusive and will operate as res judicata between the parties and privies though not strangers. It is firmly established that a foreign judgment can be examined from the point of view of competence but not of errors. In considering whether a judgment of a foreign court is conclusive, the courts in India will not require whether conclusions recorded by a foreign court are correct or findings otherwise tenable. In other words, the court cannot go into the merits of the original claim and it shall be conclusive as to any matter thereby directly adjudicated upon between the same parties subject to the exceptions enumerated in clauses (a) to (I) of Section 13.5.

 IRREGULARITIES NOT AFFECTING FOREIGN JUDGMENT

  • There is distinction between want of jurisdiction and irregular exercise of jurisdiction. In the former case, a decree passed by the court is nullity and non est. In the latter case, the decree is merely irregular or wrong but not without jurisdiction and cannot be ignored. Once a foreign court has jurisdiction in the matter, the decree passed by it cannot be held to be without jurisdiction.
  • In R. Viswanathan v. Rukn-ul-Mulk Syed Abdul, Shah, the supreme court stated:

In considering whether a judgment of a foreign court is conclusive, the court in India will not inquire whether conclusions recorded thereby are supported by the evidence, or are otherwise correct, because the binding character of the judgment may be displaced only by establishing that the case falls within one or more of the six clauses of Section 13, and not otherwise.

 

 JUDGMENT AND REASONS

A foreign judgment is conclusive under Section 13 of the Code, but it does not include reasons in support of the judgment recorded by a foreign court. It cannot, therefore, be held that a foreign judgment would mean reasons recorded by a foreign judge in support of the order passed by him. If that were the meaning of “judgment”, the section would not apply to an order where no reasons are recorded. But as observed by the Supreme Court,“ Section 13 speaks not only of “judgment” but “any matter thereby directly adjudicated upon”. The word “any” clearly shows that all the adjudicative parts of the judgment are equally conclusive.

 EFFECT OF FOREIGN JUDGMENT

A foreign judgment is conclusive as to any matter adjudicated upon between the parties. Such judgment is conclusive, binding and would create res judicata between the same parties or between the parties under whom they or any of them claim.

 DOCTRINE OF MERGER

The doctrine of merger does not apply to foreign judgments. It is, therefore, open to the plaintiff despite of foreign judgment in his favour to sue the defendant on the original cause of action and to obtain a decree in his favour.

 ENFORCEMENT OF FOREIGN JUDGMENT

A foreign judgment which is conclusive under Section 13 of the Code can be enforced in India in the following ways:

(1) By instituting a suit on such foreign judgment, or

(2) By instituting execution proceedings.

 

(1) Suit on foreign judgment

A foreign judgment may be enforced by instituting a suit on such foreign judgment. The general principle of law is that any decision by a foreign court, tribunal or quasi-judicial authority is not enforceable in a country unless such decision is embodied in a decree of a court of that country.“ In such suit, the court cannot go into the merits of the original claim and it shall be conclusive as to any matter thereby directly adjudicated upon between the same parties. Such a suit must be filed within a period of three years from the date of the judgment.

(2) Execution proceedings

A foreign judgment may also be enforced by proceedings in execution in certain specified cases mentioned in Section 44-A of the Code. The said section provides that where a certified copy of a decree of any of the superior courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court. When a foreign judgment is sought to be executed under Section 44-A, it will be open to the judgment-debtor to take all objections which would have been open to him under Section 13 if a suit had been filed on such judgment.“ The fact that out of six exceptions there has been due compliance with some of the conditions and there has been no violation of some of the exceptions is of no avail. The decree can be executed under Section 44-A only if all the conditions of Section 13(a) to (f) are satisfied.

 

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

FOREIGN JUDGMENT

                                                                        PRELIMINARY

 

  1. Foreign judgment includes:
  • A judgment of a foreign court
  • A judgment of a foreign court including Jammu & Kashmir
  • A judgment of the State of Jammu & Kashmir.
  • A judgment of the Court of England only.

 

  1. A foreign judgment is recognized in India on considerations of justice, enquity and good conscience. In which of the following cases, it was held so:
  • Satya v Teja Singh
  • Shri Inacio Martins v Narayan Hari Naik
  • Sarju Pershad v Jwaleshwari.
  • Meera Bhanja v Nirmala Kumar Chaudhary.

 

  1. 13 of C.P.C. provides that a foreign judgment may operate as res judicata except in the six cases. Which of the following is not such a case:
  2. Competency of the court pronouncing the judgment.
  3. Decision not given on merits.
  • Judgment against International or Indian law.
  1. Judgment opposed to natural justice.
  2. Judgment obtained by fraud.
  3. Judgment founded on breach of Indian law.

Codes:

  • I only.
  • II only.
  • IV and VI
  • None of the above.

 

  1. A judgment of a foreign court to be conclusive between the parties must be a judgment pronounced by a court of competent jurisdiction. In an action in personam in respect of any cause of action, the courts of a foreign country have jurisdiction in which of the following cases:
  • where the defendant is personally within the jurisdiction (viz a national, a domicile, or a resident).
  • Where the defendant submits to the jurisdiction.
  • Where the defendant though outside the jurisdiction may be reached by an order of the court.
  • All of the above.

 

  1. Mark the incorrect statement:
  • on the ground of jurisdiction under Sec. 13 of C.P.C. both judgment in rem and judgment in personam cab ne challenged.
  • A court has no jurisdiction to pass a decree in respect of an immovable property situated in a foreign State.
  • A judgment of a court which was a foreign court at the time of its pronouncement would not cease to be a foreign judgment by reason of the fact that subsequently the foreign territory has become part of the Union of India.
  • A person who institutes a suit in foreign court and claims a decree in personam, after the judgment is pronounced against him, can challenge the judgment on the ground of competency.

 

  1. In a suit instituted in England on the basis of a contract made in India, the English Court applied English law. The judgment of the court is:
  • Not conclusive.
  • Not conclusive because the rights and liabilities of the parties to a contract are governed by the place where the contract is made.
  • Conclusive because the rights and liabilities of the parties to a contract are governed by the place where a suit is filed for a breach of the contract.

 

  1. In which of the following cases, a foreign judgment is not conclusive?
  2. Where a decree is pronounced in the absence of a party.
  3. Where the judge is biased.
  • Where a party is not properly represented in the proceedings.
  1. The foreign court did not follow the procedure of the Indian courts or did not observe the Indian rules of evidence.
  2. The court disagrees with the conclusion of the foreign court.

Codes:

  • I, II and III.
  • II, III and V.
  • III, IV and V.
  • All of the above.

  

  1. Mark the correct statement:
  • A foreign judgment for a claim which is barred under the Law of Limitation in India is not conclusive.
  • A decree for divorce passed by a foreign court cannot be confirmed by an Indian court if under the Indian law the marriage is indissoluble.
  • Validity of a foreign judgment can be challenged under Sec. 13 of C.P.C. in both civil and criminal court.
  • All are correct.

 

  1. 14 of C.P.C. enacts that the court shall presume, upon the production of a certified copy of a foreign judgment, that such judgment was pronounced by a court of competent jurisdiction. This presumption is:
  • rebuttable presumption of fact.
  • irrebuttable presumption of fact.
  • rebuttable presumption of law.
  • irrebuttable presumption of law.

 

  1. Foreign court is defined under section
    • 2(4)
    • 2(5)
    • 2(6)
    • 2(8)

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

INSTITUTION OF SUIT

MAINS QUESTIONS

 

  1. Explain and illustrate the rules relating to joinder of plaintiffs and defendants in a civil suit.

 

  1. A publishes a series of books under the title “ The Oxford and Cambridge Publications “ so as to induce the belief that the books are publications of the Oxford and Cambridge Universities or either of them. The two Universities join as plaintiffs in one suit to restrain A from using the title. Discuss with reasons whether both the Universities can jointly sue A or not.

 

  1. A, B, and C , three persons were chosen by a community to represent them in a suit against K, but X,Y, and Z other members of the same community supported the defendant K. Does it affect the representative character of the suit?

 THE CODE OF CIVIL PROCEDURE,1908

INSTITUTION OF SUITS

The term suit is not defined in the code.

In Hansraj Gupta v. official liquidators of the Dehra Dun-Mussoorie Electric Tramway Co. Ltd., the Privy Council held that ordinarily, suit is a civil proceeding instituted by the presentation of plaint.

ESSENTIALS OF SUIT

  1. Opposing parties
  2. Subject matter in dispute
  3. Cause of action
  4. Relief

PARTIES TO THE SUIT (ORDER 1)

  • Order 1 deals with the parties to the suit.
  • It contains provisions for addition, deletion, and substitution of parties, joinder, misjoinder, non-joinder and representative suit.
  • Plaint is not defined.
  • What is the definition of plaint?
  • What are the conditions of joinder of plaintiffs?
  • The primary object of Rule 1 is to avoid multiplicity of proceedings and unnecessary expenses.
  • What are the conditions of joinder of defendants?
  • What is the distinction between necessary party and proper party?
  • Two tests have been laid down for determining the question whether a particular party is necessary party to a proceeding.
  • i) There must be some right to relief against such party in respect of the matter involved in the proceeding in question; and
  1. ii) it should not be possible to pass an effective decree in absence of such a party.
  • What is non joinder and mis joinder of parties?
  • Objection as mis joinder and non joinder of parties: Rule 13

STRIKING OUT , ADDING OR SUBSTITUTING PARTIES: RULE 10

  1. If after filing of the suit , the plaintiff discovers that he cannot get the relief he seeks without joining some other person also as a plaintiff or where it is found that some other person and not the original plaintiff is entitled to the relief ,an application for addition or substitution of the plaintiff can be made.
  2. To bring the case within R.10(1) the following three conditions must be satisfied.

 

  1. The suit has been filed in the name of a wrong person as plaintiff or it is doubtful whether it has been instituted in the name of right plaintiff.
  2. Such mistake must be bona fide
  • The substitution or addition of the plaintiff is necessary for the determination of the real matter in dispute
  1. No person can be added as a plaintiff without his consent.
  2. Rule 10(2) empowers the court to strike out the name of any party improperly joined ( whether as plaintiff or defendant)
  3. Rule 10(2) empowers the court to add any person as a party to the suit on either of the two grounds
  4. Such person ought to have been joined as a plaintiff or a defendant and is not so joined; or
  5. Without his presence, the question involved in the suit cannot be completely decided.
  6. The purpose of this provision is to bring before the court, at the same time, all the persons interested in the dispute so that the dispute may be finally determined at the same time in the presence of all the parties without the delay, inconvenience and expenses of several actions and trials and inconclusive adjudications.
  7. This gives the wide discretion on the court to add the parties but it must be exercised judiciously.
  8. Power and duty of court

The provisions of Rule 10(2) of Order 1 confer very wide powers on the court regarding joining of parties. Such powers have to be exercised on sound judicial; principles keeping in kind all the facts and circumstances of the case.

Two considerations especially will have to be kept in mind before exercising powers, namely, (i) the plaintiff is a dominus litis. He is the best judge of his interest. It is therefore, for him to choose his opponent from whom he claims relief and, normally, the court should not compel him to fight against a person whom he does not want to fight and from whom he claims no relief, (ii) if the court is satisfied that the presence of a particular person is necessary to effectively and completely adjudicate all the disputes between the parties, irrespective of the wishes of the plaintiff, the court may exercise the power and join a person as party to the suit.

The power may be exercised by the court at any stage of the proceedings either upon an application of the parties or even suo motu (of its own motion) and on such terms and conditions as may appear to the court to be just.

In Anil Kumar v. Shivnath, considering the provisions of Order 1 Rule 10(2), the Supreme Court observed, “Though the court may have power to strike out the name of a party improperly joined or add a  party either on application or without application of either party but the condition precedent is that the court must be satisfied that the presence of such party to be added, would be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit…… the object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity.

Thus, if a special statute makes a person a necessary party to the proceedings and also provides that non-joinder thereof will result in dismissal of the petition, the court cannot use the curative powers of Order 1 Rule 10 as to avoid consequences of non-joinder of such party.

 

  1. Test

The test is not whether the plaintiff agrees or objects to the addition of the party to the suit, but whether presence of such party is required for full and complete adjudication of the dispute.

  1. Principles

Suffice it to say that in the leading case of Razia Begum v. Sahebzadi Anwar Begum, the Supreme Court has laid down the following principles regarding the power of the court to add the parties under Rule 10(2) of the Code.

  • That the question of addition of parties under Rule 10 Order 1 of the Code of Civil procedure, is generally not one of initial jurisdiction of the court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case; but in some cases, it may raise controversies as to the power of the court, in contradiction to its inherent jurisdiction, or in other words of jurisdiction in the limited sense in which it is used in section 115 of the Code.
  • That in a suit relating to property, in order that a person may be added as a party, he should have direct interest as distinguished from a commercial interest in the subject matter of the litigation.
  • Where the subject-matter of a litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy;
  • The cases contemplated in the last proposition have to be determined in accordance with the statutory provisions of Section 42 and 43 of the Specific Relief Act.
  1. In Razia Begum v. Anwar Begum, the court held that the test is not whether the plaintiff agrees to adding a party as a defendant or not, but whether the relief claimed by the plaintiff will directly affect the intervener in the enjoyment of his rights.
  2. The court must in every case record reasons in support of its order impleading or refusing to implead a party.
  3. The party cannot be added as to introduce a new cause of action or to alter the nature of the suit.
  4. Where any person is added as defendant in the suit, as regards him, the suit shall be deemed to have been instituted from the date he is joined as a party.[R.10(5)]
  5. Where a defendant is added , the plaint shall be amended and the amended copies of the summons and the plaint must be served on the new defendant.[R.10(4)]
  6. Transposition of the parties: a person who is already on record as a plaintiff or a defendant seeks his transposition from one capacity to another capacity; i.e, from plaintiff to defendant or vice versa. Since primary object of O.1.R.10 of the code is to avoid multiplicity of proceedings, there is no reason why the doctrine of addition or striking out parties does not apply to transferring the parties from one side to the other side. This can be done either on the application by a party or by a court suo motu. No such transposition can be allowed if it alters the character of the suit or causes prejudice to the opposite party.

 

  1. GENERAL PRINCIPLES

 

  1. A question of joinder of parties is a matter of procedure and not of substantive right.
  2. The Code of Civil Procedure confers very wide and extensive discretionary powers on a court in the matter of joinder of parties.
  3. The primary object of joinder of parties is to ensure that all suits are decided finally and conclusively on merits in the presence of all parties.
  4. The provisions relating to joinder of parties, therefore, should be construed liberally.
  5. A plaintiff is a dominus litis and has a right to choose his adversary against whom he wants to fight and from whom he seeks relief. It is not province of a court of law to interfere with that right.
  6. But it is also the duty of the court to do justice and to achieve that end, the court may add, delete, substitute or transpose any party notwithstanding objection of the plaintiff.
  7. No person can be joined as plaintiff without his consent.
  8. An order of addition, deletion, substitution or transposition of a party can be made at any stage of the suit irrespective of the law of limitation.
  9. Such an order can be passed on such terms as the court deems fit.
  10. An order of addition, deletion, substitution or transposition can be made either on an application by a party suo motu.
  11. Where a defendant is added, the plaint should be amended.
  12. Where a defendant is added, the proceedings against him shall be deemed to have concerned from the date of service of summons upon him.
  13. Objection as to mis-joinder or non-joinder of parties should be taken at the earliest possible opportunity.
  14. A court may not add, delete, substitute or transpose a party, if it changes the nature or character of the suit, or alters cause of action, or results in de novo trial; or seeks to defeat a valuable right acquired by any person by passage of time or otherwise.
  15. If mis-joinder of plaintiffs or defendants embarrass or delay the trial of the suit, the court may order separate trials.
  16. A court dealing with an application for adding, deleting, substituting or transporting a party must have jurisdiction to try the suit.
  17. A suit cannot be dismissed on the ground of misjojnder or non-joinder of parties.
  18. If the necessary party is not joined, a suit can be dismissed that ground alone.
  19. A suit cannot be dismissed on the ground of misjoinder or non joinder of parties.
  20. If the necessary party is not joined , a suit can be dismissed on that ground alone.

 

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

INSTITUTION OF SUIT

PRELIMINARY QUESTIONS

 

  1. Which of the following is not an essential of a suit?
  • At least one plaintiff and one defendant
  • Cause of action
  • Subject matter in dispute
  • No relief claimed
  1. Mark the incorrect statement
  • The relief claimed should be stated specifically in the plaint
  • The relief cannot be stated in the alternative.
  • The relief claimed must be one which the court is able to grant
  • When a person is entitled to more than one relief in respect of the same cause of action, he must sue for all reliefs.
  1. Under O.1.R.1 all persons may be joined in one suit as plaintiffs where
  • Any right to relief arises out of the same act in favour of such persons
  • Any common question of law or fact is involved
  • All persons have a common cause of action
  • All are correct
  1. Under O.1.R.3 all persons may be joined in one suit as defendants where
  • Any right to relief arises out of the same act against such persons
  • Any common question of law or fact is involved
  • Only (b) is correct
  1. When does a court may order separate trials of several plaintiffs/defendants/
  • Any joinder of plaintiffs / defendants may embarrass the trial of the suit.
  • Any joinder of plaintiffs / defendants may delay the trial of the suit
  • Both (a)and (b)
  • None of the above
  1. Where a person is necessary party to am suit has not been joined as a party to the suit it is a case of
  • Non joinder
  • Mis joinder
  • Both (a) and (b)
  • None of the above
  1. Mark the correct statement
  • Where a person who is a necessary party to the suit has not been joined as a party to the suit is liable to be dismissed.
  • Where a person who is a proper party to a suit has not been joined as a party to the suit, the suit is liable to be dismissed
  • Both (a) and (b)
  • Only (b)
  1. In a suit for possession by landlord against his tenant, which of the following is a proper party only?
  • Landlord
  • Tenant
  • Sub-tenant
  • None of the above
  1. Mark the incorrect statement
  • Parties cannot be added so as to introduce a totally new cause of action
  • No person can be added as a plaintiff without his consent
  • No person can be added as a defendant without his consent
  • If any person who ought to have been joinded as plaintiff does not consent to join as plaintiff, he may be made a defendant in the suit
  1. Which of the following is a formal defendant
  • A defendant against whom no relief is claimed
  • A defendant against whom relief is claimed
  • A defendant who is a public official
  • None of the above 

Cont

PAHUJA LAW ACADEMY

GOVERNMENT SUITS

MAINS QUESTIONS

 

  1. A plaintiff gives notice under section 80 of the Civil Procedure Code and instituted a suit before two months but is allowed to withdraw the same with liberty to file a fresh suit. Is he entitled to file a fresh suit without a fresh notice?

 

  1. Notice is given by A under section 80 of the Civil Procedure Code of a proposed suit. A dies before the institution of the suit. Does the notice by A ensure for the benefit of his legal representative?

 

  1. Discuss the procedure to be adopted by the Court in suit by or against Government or public officer?

 

  1. What facts are essential in a notice under sec. 80? What will be the effect upon the suits against Central Government, the State Government or their officers, if the said notice is not given? 

THE CODE OF CIVIL PROCEDURE,1908                

 SUITS BY OR AGAINST GOVT. OR PUBLIC OFFICERS              

 

Sections 79 to 82 and order 27 of the code lay down where suits are brought by or against the government or public officers. The provisions, however, prescribe procedure and machinery and do not deal with rights and liabilities enforceable by or against the government. Substantive rights are to be determined in accordance with the provisions of the constitution.

Statutory of notice:

In ordinary suits notice need not be given to the defendant by the plaintiff before filing a suit. Section 80 of the code, however, declares that no suit shall be instituted 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 next after notice in writing has been delivered to , or left at the office of:

  1. Central government = secretary of that government
  2. Railway = General Manager of that railway
  • Government of J & K = chief secretary of that government or any

Other officer authorized by that Govt.

  1. State government     =   secretary of that Govt. or the collector of

District

  1. Public officer        =  such public officer

Nature and scope:

The section 80 enumerates two types of cases:

  1. Suits against the government
  2. Suits against public officers

Regarding the first class of cases, the notice must be given in all cases.

Regarding the second class of cases, however, notice is necessary only

Where the suit is in respect of any act purporting to be done by such public Officer in the discharge of his duty and to otherwise.

What is the object of notice?

Essentials:

A notice under section 80 must contain

  1. name, description and place of residence of the persons giving notice
  2. a statement of the cause of action
  • relief claimed by him
  • Notice under section 80 is the first step in the litigation. No court can entertain a suit unless the notice is duly served under S.80(1).
  • The Supreme Court held that 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.

Waiver of notice:

The provision is merely procedural in nature and not a substantive one. It does not affect the jurisdiction of the court. A notice under section is for the benefit of the Government of public officer. It is , therefore , open to the Government or Public officer to waive such benefit. The question whether, in fact, there is waiver or not would necessarily depend on the facts of each case and is liable to be tried by the same court if raised.

Form of notice:

A notice under section 80 need not be in a particular form as no form has been prescribed by the code for the purpose.

Mode of service:

A notice under section 80 of the code should be delivered to , or left at the office of , the appropriate authority specified in the section. Personal delivery of the notice is not necessary. If such interpretation is adopted, the words ‘or left at his office’ will become nugatory.

Whether the suit instituted against the government or public officer shall be dismissed merely on the ground of error or defect in the notice.

Whether the period of notice shall be excluded in computation of period of limitation.

URGENT RELIEF:S.80(2)

A suit to obtain an urgent relief against the government or public officer may be instituted with the leave the court, without serving any notice as required by sub section(1); but the court shall not grant any relief in the suit except after giving to the Government or Public officer a reasonable opportunity of showing cause in respect of the relief prayed for in the suit.

Provided that the court shall, if it is satisfied , after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of S.80(1).

WRIT PETITION:

A writ petition under Art.226 or Art.32 of the constitution cannot be said to be a suit within the meaning of section 80 of the code. Hence, prior notice is not necessary to file writ petition.

What is premature suit?

Whether an order passed under section 80 appealable or not.

Whether the revision is allowed.

What is the title of the suit?

NOTE:  A plaint can be presented after the expiration of two months of notice, which must contain statement that statutory notice under section 80 of the code has been delivered or left as required by sub section 1 of the said section. An omission to make such statement is fatal and, in its absence, the plaint will be rejected by the court.

 

PARTIES:

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

PROCEDURE:O.27

In a suit by or against the government, the plaint or written statement shall be signed by any person appointed by the government who is acquainted with facts of the case. Persons authorized to act for the government shall be deemed to be recognized agents under the code. A government pleader can receive summons on behalf of the government. A counsel for the state need not file a vakalatnama. Reasonable time should be granted to the government for filing a written statement in all suit against the government or public officer, it is duty of the court to assist in arriving at a settlement.

O.27-A provides that in suit (or appeal) in which substantial question of law relating to the interpretation of the constitution is involved, the court must issue notice to the attorney general of India. If the question of law concerned the central government and to the advocate general of the state if the question concerns the state government.

OTHER PRIVILEGES:

Rule 5-A provides that when a suit is filed against a public officer in respect of any act alleged to have been done by him in his official capacity, the government should be joined as a party to the suit.

Rule 5-B casts a duty on the court in suits against government or public officers to assist in arriving at a settlement.

Rule 7 provides for extension of time to enable public officer to make a reference to the government where he is the defendant.

Rule 8-A  provides that no security shall be required from the government or from public officer sued in respect of an act alleged to have been done by him in his official capacity.

Section 81 provides that in a suit filed against a public officer in respect of any act purporting to be done by him in his official capacity, the court shall exempt him from appearing in person if it is satisfied that he cannot absent himself from his duty without detriment to the public service. He shall not be liable to arrest nor his property shall be liable to be attached otherwise than in execution of a decree.

Section 82 enacts that no execution shall be issued on any decree passed against the government or a public officer unless it remains unsatisfied for three months from the date of the decree.

 

PAHUJA LAW ACADEMY

GOVERNMENT SUITS

PRELIMINARY QUESTIONS

 

  1. A notice under sec. 80 is given for the benefit of the:

 

  • Defendant
  • Plaintiff
  • Defendant but he can waive it
  • Plaintiff but he can waive it

 

  1. Where a suit has been instituted against several defendants, one of whom is a Government or a public officer, and notice under sec. 80 has not been given:

 

  • The whole suit is bad
  • The suit is bad only with reference to the Government or public officer
  • Depends on the court’s discretion
  • None of the above

 

  1. Mark the incorrect statement:

 

  • Failure to comply with the requirements of sec. 80 will not entail dismissal of the suit
  • The issue of notice under sec. 80 is not a pre-condition for the filing of suit against semi-government organizations
  • A suit may be instituted with the leave of the court for obtaining an urgent or immediate relief against the government/public officer, without serving a statutory notice.
  • In cases of urgent or immediate relief against the government/public officer where no notice has been served, an interim or ex parte relief cannot be granted.

 

  1. Under sec. 80 of civil procedure code, a notice of how many days is required to be delivered before institution of suit against the Government:

 

  • Ninety days
  • Sixty days
  • Three months
  • Two months
  1. The notice under sec. 80 need not contain:

 

  • Name, description and place of residence of the plaintiff
  • Relief claimed by the plaintiff
  • Cause of action
  • Quantum of damages

 

  1. In the case of a suit against the Central Government, the notice has to served on:

 

  • President of India
  • Prime minister of India
  • Secretary to the Government
  • Any one of the above

 

  1. Mark the incorrect matching

 

  • Suits by or against the government: Order 27
  • Suits involving interpretation of the Constitution: Order 27-A
  • Suits by or against a corporation: Order 28
  • Suits by or against a firm: Order 30

 

 

  1. No execution shall be issued on any decree passed against the government or a public officer unless it remained unsatisfied for how many months from the date of decree:

 

  • One month
  • Two months
  • Three months
  • Four months

 

  1. Mark the incorrect statement:

 

  • A suit cannot be instituted against a foreign State without the consent of the Central Government
  • Alien enemies residing in India with the permission of the Central government may sue in a court in India
  • A suit can be filed against a ruler of former Indian State without the consent of the Central government
  • A soldier, sailor or airman may authorize any person to sue or defend on his behalf.
  1. 80 applies to:

 

  • All suits except writs
  • All suits except suits for injunctions/declarations
  • All suits except suits for damages
  • None of the above

 

PAHUJA LAW ACADEMY

INTERPLEADER

Mains questions

 

  1. What is an interpleader suit? When and by whom can it be instituted? 

 

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE,1908

INTERPLEADER SUIT [S.88 AND O.35]

  • An interpleader suit is a suit in which the real dispute is between a plaintiff and defendant but between the defendants who interplead against each other , unlike an ordinary suit.
  • In interpleader suit ,the plaintiff is not really interested in the subject matter of the suit.
  • 88 of the code enacts that two or more persons claiming adversely to one another the same debt , sum of money or other property movable or immovable,from a person who does not claim any interest therein except the charges and costs incurred by him and is ready to pay or deliver the same to the rightful claimant , may file an interpleader suit.

OBJECT:

  • The primary object of filing an interpleader suit is to get claims of rival defendants adjudicated.

 

CONDITIONS:

  1. There must be some debt, some of money or other property movable or immovable in dispute.
  2. Two or more persons claiming adversely to one another.
  • The person from whom such debt , money or property is claimed must not be claiming interest therein other than the charges and costs and he must be ready and willing to pay or deliver it to the rightful claimant; and
  1. There must be no suit pending wherein the rights of rival claimants can be properly adjudicated.

e.g;  A is in possession of property claimed by B and C adversely. A does not claim any interest in the property and is ready to deliver it to the rightful owner . A can institute an interpleader suit.

Who may file an interleader suit?

Who cannot file an interpleader suit?

What is the test to decide whether the suit is interpleader suit or not.

PROCEDURE: O.35.R.1-4

Order 35 lays down the procedure for interpleader suits.

O.35.R.1 lays down that in every suit of interpleader , in addition to other statements , the plaint also must state

  1. i) that the plaintiff claim no interest in the subject matter in dispute other than the charges and costs
  2. ii) the claims have been made by the defendants severally and

iii) there is no collusion between the plaintiff and any of the defendants.

  • Rule 2 : the court may order the plaintiff to deposit the amount or place the property in the custody of the court and provide costs incurred by him by giving him a charge on the thing claimed.
  • Rule 4: At the first hearing the court may
  • Declare that the plaintiff is discharged from all liability to the defendants in respect of the thing claimed, award him his costs, and dismiss him from the suit; or
  • If it thinks that justice or inconvenience so require , retain all parties until the final disposal of the suit.
  • On the basis of evidence or admission available, the court may also adjudicate the title to the thing claimed.
  • Where it not possible , the court may direct that an issue or issues between the parties be framed and tried, one of the claimants be made a plaintiff in lieu of or in addition to the original plaintiff and the suit shall proceed in an ordinary manner.

 

Discuss the provisions of appeal with regard to interpleader suit.

 

PAHUJA LAW ACADEMY

INTERPLEADER

PRELIMINARY QUESTIONS

 

  1. Provisions relating to interpleader suits are contained in:

 

  • 87
  • 88
  • 89
  • 90

 

  1. An interpleader suit is one in which the real dispute is between the

 

  • Plaintiffs
  • Defendants
  • Neither plaintiffs nor defendant but a third party and the plaintiffs
  • Neither plaintiffs nor defendants but a third party and the defendants

 

  1. In an interpleader suit:

 

  • There are several claimants of the same property claiming it adverse to one another
  • The plaintiff also has an interest in the subject matter of the suit
  • Both (a) and (b) are correct
  • Only (a) is correct

 

  1. In which of the following cases, an interpleader suit will be:

 

  • P is an possession of a jewel box, wherein he claims no interest himself, and is ready and willing to hand over to the rightful owner. The box is claimed by A and B. p wants to file an interpleader suit against A and B.
  • X has a sum of Rs. 10,000, which sum is claimed from him both by Y and Z, adversely to each other. X entered into an agreement with Y, before the institution of suit, that if Y succeeded in the suit, he should accept the X Rs. 7,500, in full satisfaction of his claim.
  • Both (a) and (b)
  • Only (b)
  1. Who cannot file an interpleader suit?

 

  • An agent against his principal
  • A tenant against his landlord
  • Both (a) and (b)
  • None of the above
  1. Mark the incorrect statement:

 

  • In every interpleader suit, the plaint must state that the plaintiff claims no interest in the subject matter in dispute, other than for charges or costs.
  • In every interpleader suit, the plaint must state that there is no collusion between the plaintiff and any of the defendants
  • The court may order the plaintiff to place the thing claimed in the custody of the court and provide his costs by giving him a charge on the thing claimed.
  • Where any of the defendants in an interpleader suit files a suit against the plaintiff in another court in respect of the subject matter of the suit, that court shall not stay the proceedings.

 

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

SUITS BY OR AGAINST MINORS AND LUNATICS: O.32

MAINS QUESTIONS

 

  1. Who is minor under the Indian Law, state the procedure to be adopted for a suit by or against a minor and persons of unsound mind. A compromise decree is passed in a suit involving interest of minor, can the minor challenge such decree? If so, on what grounds?

 

 

  1. Discuss the validity of the following
  • Decree against a person of unsound mind supposing him to be of sound mind.
  • Decree passed against a minor in a suit in which he is not represented by a guardian ad litem
  • A person who was minor on the date of the institution of suit with a property appointed guardian ad litem , attains majority during the pendency of suit but no steps are taken to remove the guardian ad litem and a decree is passed against him as a minor.

 

  1. What are the course to be followed by minor plaintiff or applicant on attaining majority?

 

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE,1908

SUITS BY OR AGAINST MINORS AND LUNATICS:O.32

  • Minor means a person who has not attained his majority within the meaning of section 3 of the Indian Majority Act, 1875.

OBJECT:

  • Order 32 has been specially enacted to protect the interests of minors and persons of unsound mind and to ensure that they are represented in suits or proceedings by persons who are qualified to act as such.
  • The laws will, as general principle, treat all acts of an infant which are for his benefit on then same footing as those of an adult, but will not permit him to do anything prejudicial to his own interests. Thus a decree against a minor or a lunatic without appointment of guardian is a nullity and void and not merely voidable.

SUITS BY MINORS: RULES 1-2-A

  • Every suit by a minor should be instituted in his name through his guardian or next friend.
  • Where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented.
  • Notice of application shall be given………
  • When the suit has been instituted on behalf of the minor by his next friend, the court may at any stage of the suit, either suo moto or on the application of the defendant, to furnish security  for the costs of the defendant. This provision seeks to discourage vexatious litigation by next friends of minors.

MINOR AS DEFENDANT: RULE 3

  • Where a suit is instituted against a minor, the court should appoint a guardian ad litem to defend the suit. Such appointment should continue throughout all the proceedings including an appeal or revision and in execution of decree unless it is terminated by retirement, removal or death of such guardian.
  • An order for appointment of guardian for the suit may be obtained upon an application in the name and on behalf of the minor or by the plaintiff.
  • Such application must be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.
  • Who may be appointed as guardian or next friend?

 

  • Major
  • Sound mind
  • No adverse interest
  • Not a opposite party
  • Consent in writing
  • In the absence of the fit and willing person to act as a guardian, the court may appoint any of its officers to be such guardian
  • What are the powers and duties of guardian or next friend ?

An application for leave of the court should be accompanied by an affidavit of the next friend or guardian, and if the minor is represented by a pleader, with the certificate of the pleader that such compromise is, in opinion, for the benefit of the minor.

An agreement or compromise entered into without the leave of the court is voidable at the instance of the minor. Once such an agreement or compromise is avoided by a minor, it has no effect at all.

Rules 6 and 7 provides that no next friend or guardian of a minor for the suit shall, without the leave of the court, (a) receive any money or other movable property on behalf of a minor either by way of compromise into any agreement or compromise on behalf of a minor with reference to the suit, unless such leave is expressly recorded in the proceedings.

 

RETIREMENT, REMOVAL OR DEATH OF GUARDIAN OR NEXT FRIEND: RULES 8-11

  • A next friend or guardian of a minor cannot retire without first procuring a fit person for substituting him and giving security for the costs already incurred by him.
  • The court may remove a next friend or guardian of a minor, if it satisfied that (i) his interest is adverse to that of the minor; or (ii) he is so connected with the opposite party that it is unlikely that the interest of the minor will be properly protected by him; or (iii) he does not discharge his duty; or (iv) he ceases to stay in India during the pendency of the suit; or (v) there is any other sufficiently justifiable cause.
  • Where the guardian or next friend of a minor desires to retire or fails to discharge his duty or where there are other sufficiently justifiable grounds, the court may permit such guardian or next friend to retire or may remove him and may also make such order as to costs as it thinks fit. It should also appoint a new next friend or guardian.
  • On retirement, removal or death of a guardian or next friend, further proceedings in the suit shall remain until another guardian or next friend is appointed.

 

DECREE AGAINST MINORS: RULE 3-A

  • Generally , a decree passed against a minor without appointment of next friend or guardian is null and void.
  • No decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject matter of the suit adverse to that of the minor.
  • But if by reason of such adverse interest, prejudice has been caused to the interests of the minor shall be ground for setting aside the decree.
  • The minor may also appropriate relief for misconduct or gross negligence on the part of his next friend or guardian.

MINOR ATTAINING MAJORITY:RULES 12-14

On attaining the age of majority, a minor plaintiff may adopt any of the following courses:

  • He may proceed with the suit. In that case he shall apply for an order discharging the next friend or guardian and for leave to proceed in his own name.
  • He may abandon the suit and apply for its dismissal on repayment of costs to the defendant or to his guardian or next friend.
  • He may apply for dismissal of the suit on the ground that it was unreasonable or improper
  • Where he is a co-plaintiff, he may repudiate the suit and may apply to have his name struck off as co-plaintiff. If the court finds that he is not a necessary party, it may dismiss him from the suit. But if he is necessary party, the court may make him a defendant.

 

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

SUITS BY OR AGAINST MINORS AND LUNATICS: O.32

PRELIMINARY

  1. A suit through next friend can be filed by
  • A minor
  • A lunatic
  • Both (a) and (b)
  • Only (b) not (a)
  1. Next friend is
  • Local commissioner
  • A receiver
  • A person defending a suit on behalf of the minor
  • A person filing a suit on behalf of a minor
  1. A guardian at litem
  • Is a person defending a suit on behalf of a minor
  • A receiver
  • A local commissioner
  • All of the above
  1. A suit instituted by a minor or a lunatic without a next friend, under order 32 rule 2 of CPC, the same is liable to be
  • Stuck of
  • Stayed
  • Proceeded with in ordinary course
  • Proceeded with if the defendant consents
  1. A person can act as a next friend if he is
  • Major
  • Sound mind
  • Not having any interest adverse to that of a minor or lunatic residing in india
  • Fulfilling all the three requirements
  1. Provisions relating to suit by or against a minor , are contained in
  • 32
  • 33
  • 36
  • 45
  1. On the retirement ,removal or death of a next friend under order 32,rule 10 of CPC , the suit is liable to be
  • Stayed
  • Dismissed
  • Rejected
  • Either (a)or(b)or (c)
  1. A person can be appointed as a guardian under order 32, rule 4 of CPC
  • On his oral consent
  • On his consent in writing
  • Either (a) or (b)
  • Neither (a) nor (b)
  1. A next friend or guardian under order 32 , rule 7 of CPC
  • Can enter into an agreement without the leave of the court but cannot compromise a suit
  • Can neither enter into an agreement nor compromise the suit on behalf of the minor without the leave of the court
  • Cannot enter into an agreement without leave of the court but enter into a compromise
  • Can enter into an agreement and also compromise in a suit on behalf of a minor without the leave of the court
  1. An agreement entered into or compromise on behalf of a minor without the leave of the court ,under order 32, rule 7 of CPC is
  • Valid
  • Void
  • Voidable against all the parties other than the minor
  • Voidable against all the parties including minor

 

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

SUIT BY INDIGENT PERSONS: O.33

MAINS QUESTIONS

 

  1. Who is entitled to file a pauper suit? State the procedure for filing such suits. Can a defendant be allowed to defend in forma pauperis. Give reasons.

 

  1. When the court shall reject an application for permission to sue as pauper? Discuss fully.

 

  1. ‘A’ disposed his property worth Rs. 1000 in August, 1980 to enable himself to sue as pauper and applies for leave in September, 1980. Will the application of ‘A’ be accepted or rejected by the court? Give reasons.

 

  1. ‘A’ after filing an application plaint as pauper sold his property worth Rs. 15,000. Will A’s application be accepted?

 

  1. Give brief description of rules contained in order 33 of the CPC?

 

 

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

SUIT BY INDIGENT PERSONS: O.33

 

Suits by indigent persons: Order 33

  • Order 33 provides for filing of suits by indigent persons. It enables persons who are too poor to pay court fees and allows them to institute suits without payment of requisite court fees.

 Object

  • The provisions of Order 33 are intended to enable indigent persons to institute and prosecute suits without payment of any court fees.
  • Generally, a plaintiff suing in a court of law is bound to pay court fees prescribed under the Court Fees Act at the time of presentation of plaint.
  • But a person may be too poor to pay the requisite court fee.
  • This order exempts such person from paying the court fee at the first instance and allows him to prosecute his suit in forma pauperis, provided he satisfies certain conditions laid down in this order.

Order 33 has been enacted to serve a triple purpose:-

(i) to protect bona fide claims of an indigent person;

(ii) to safeguard interest of revenue; and

(iii) to protect defendant from harassment.

Indigent person: Meaning: Order 33 Rule 1

A person is an ‘indigent person”.

  • if he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit; or
  • Where no such fee is prescribed, when he is not entitled to property worth one thousand rupees.

In both the cases, the property exempt from attachment in execution of a decree and the subject-matter of the suit should be excluded.

  • Any property acquired by the applicant after the presentation of the application for permission to sue as an indigent person and the decisions thereon should also be taken into consideration for deciding the question whether the applicant is an indigent person.
  • The word “person” includes juristic person.

 Contents of application: 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 in 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: Rule 5

The court will reject an application for permission to sue as an indigent person in the following cases:

(i) Where the application is not framed and presented in the prescribed manner; or

(ii) Where the applicant is not an indigent person; or

(iii) 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

(iv) Where there is no cause of action; or

(v) 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

(vi) Where the suit appears to be barred by law; or

(vii) Where any other person has entered into an agreement with the applicant to finance costs of the litigation.

 Inquiry: Rule 1-A

  • 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 inquiry. 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.
  • 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

 Where permission is granted: Rules 8-9-A

  • 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 counterclaim as an indigent person.“

 Where permission is rejected: Rules 15-15-A

  • 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: Rule 9

  • 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.

(i) Where he is guilty of vexatious or improper conduct in the course of the suit; or

(ii) Where his means are such that he ought not to continue to sue as an indigent person; or

(iii)Where he has entered into an agreement under which another person has obtained an

interest in the subject-matter of the suit.

Costs

The costs of an application to sue as an indigent person shall be the costs in the suit. 

 

Recovery of court fees and costs

(A) Where indigent person succeeds.—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.

(B) Where indigent person fails.—Where the plaintiff (indigent person) fails or the suit abates, the court shall order him (plaintiff) to pay court fees and costs.

 Right of State Government

The State Government has right to recover court fees. For that purpose, it is deemed to be a party to the suit.

 Realization of court fees: Rule 14

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.

Set-off or counter claim

An indigent person may also plead set-off or file counter claim without paying court fees.

Appeal

An order rejecting an application to sue as an indigent person is appealable.

Appeals by indigent persons: Order 44

A person unable to pay court fees on memorandum of appeal may apply to allow him to appeal as an indigent person. The necessary inquiry as prescribed in Order 33 will be made before granting or refusing the prayer. But where the appellant was allowed to sue as an indigent person in the trial court, no fresh inquiry will be necessary if he files an affidavit that he continues to be an indigent person.

 

PAHUJA LAW ACADEMY

INDIGENT PERSON

PRELIMINARY QUESTIONS

 

  1. A permission to sue as pauper can be withdrawn, under O. 33, R. 9, if:

 

 

  • The pauper person is guilty of vexatious/improper conduct in the course of the suit
  • The pauper person has paid the court fee
  • The pauper person has withdrawn the suit
  • All of the above

 

  1. Mark the incorrect statement:

 

  • The applicant (pauper) has to appear in the court, unless exempted by the court
  • Application to sue as a pauper if granted by the court is deemed to be the plaint
  • The court can assign a pleader to an indigent person who is not represented by any pleader
  • None of the above

 

  1. If the indigent person succeeds in the suit, the amount of court fees shall be recovered:

 

  • From the plaintiff
  • From the defendant
  • Any party ordered by the decree to pay the same]
  • From the state Government.
  1. When does a pauper shall pay the court for:

 

  • If he fails in the suit
  • He is dispaupered
  • The suit is withdrawn or dismissed
  • All of the above
  1. Mark the incorrect statement:

 

  • If a pauper suit abates on the death of the plaintiff, the fee payable on the plaint shall be recoverable from the estate of the deceased plaintiff
  • If the court refuses an application to sue in forma pauperis, this operates asa a bar to subsequent similar application, but the applicant may sue in the ordinary manner.
  • An order rejecting an application for permission to sue in forma pauperis is not appealable under O. 43
  • The defendant who is an indigent person can plead a set-off or counter-claim in that capacity.

 

  1. Mark the incorrect statement:

 

  • If the application for permission to sue as pauper is allowed, the suit is deemed to have been instituted on the date of t presentation of the application for permission to sue as a pauper
  • If the application for permission to sue as a pauper is rejected, the suit is deemed to have been instituted (when the applicant has paid the requisite court fees) on the date of presentation of the application for permission to sue as a pauper.;
  • Both (a) and (b)
  • Only (a)

 

  1. Under O. 33, an indigent person is allowed to prosecute any suit is forma pauperis provided he satisfies certain conditions. Which of the following is not such a condition:

 

  • He is not possessed of sufficient means to enable him to pay the prescribed fee for the plaint in such suit
  • He is not entitled to property worth Rs. 1,000
  • He has no sufficient means for his livelihood
  • He may present the application for permission to sue as a pauper either himself or through an authorized agent.

 

  1. The plaintiff (pauper) is not liable to pay:

 

  • Any court-fees
  • Fees for service of any process
  • Fees for appointment of a pleader
  • All of the above

 

  1. In which of the following cases, the application for permission to sue as an indigent person is to be rejected:

 

  • Where it contains the particulars required in regard to plaint
  • Where it is presented to the court by the applicant in person
  • Where applicant’s allegations show a cause of action
  • Where any other person has entered into an agreement with the applicant to finance the litigation.

 

  1. Mark the incorrect statement:

 

  • While determining sufficient means of a person, the property exempt from attachment in execution of a decree and the subject matter of the suit should be excluded
  • Any property acquired by a person after the presentation of his application is to be taken I to account in considering his status as a pauper
  • Both (a) and (b) are incorrect
  • Both (a) and (b) are correct

THE CODE OF CIVIL PROCEDURE,1908

Summary Suits O.37

Order 37 provides summary procedure in suits based on negotiable instruments or where the plaintiff seeks to recover debts or liquidated amount. The essence of summary suit is that the defendant is not, as in ordinary suit entitled as of right to defend the suit. He must apply for leave to defend within the stipulated period of 10 days. Such leave will be granted only if the affidavit filed by the defendant discloses such facts as will make it incumbent on the plaintiff to prove consideration or such other facts as the court may deem sufficient. The provisions of O.37 are merely rules of procedure. They do not alter the nature of suit or the jurisdiction of courts.

Object:

  1. It is to prevent unreasonable obstruction by the defendant who has no defence and to assist expeditious disposal of cases
  2. Trading and commercial operations will be seriously impeaded if money disputes between the parties are not adjudicated upon immediately.
  3. The defendant does not unnecessarily prolong the litigation and prevent the plaintiff from obtaining a decree by raising untenable and frivolous defences in a class of cases where speedy decision are desirable in the interest of commercial transactions.

Discretionary Power:

The discretionary power should be exercised judicially, judiciously and on well setteled principles of natural justice. Whenever defence raises a triable issue, leave should be granted unconditionally.

Care should be taken to see that the object of the rule to assist the expeditious disposal of commercial causes should not be defeated. But it also must be ensured that the real and genuine triable issues are not shut out by unduly severe orders as to deposit.

Extent and Applicability:

The provisions of O.37 apply to high courts, city civil courts, the courts of small causes and other superior courts.

It applies to:

  1. suits based upon bill of exchange hundies and promissory notes
  2. suits in which the plaintiff seeks to recover a debt or liquidated amount payable by the defendant with or without interest arising
  • on a written contract; or
  • on an enactment where the sum sought to be recovered is a fixed sum of money or a debt other than a penalty;
  • on a guarantee ,where the claim against the principal is in respect of a debt or liquidated amount.

What is the procedure of summary suits?

What is the right test to determine whether leave to defend should be granted or not?

What is the difference between summary suit and an ordinary suit?

Whether a court while granting conditional leave should record reasons?

Appeal:

No appeal lies against an order granting or refusing leave to defend under rule 3. But where a decree is passed in a summary suit, an appeal lies.

Whether the revision is allowed under sec.115 of the code or not.

Note:- In appropriate cases, a high court may interfere with an ordre passed granting or refusing leave under rule.3.

In Kiranmoyee Dassi v. J.Chatterjee, the high court of Calcutta laid down the following principals relating to suits of a summary nature.

  1. If the defendant satisfies the court that he has a good defence to claim on its merits, the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend .
  2. If the defendant raises a triable issue indicating that he has a fair or bonafide or reasonable defence although not positively good defence, the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.
  3. If the defendant discloses such facts as may  be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiffs claim, the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the court may in its discretion impose conditions as to the time of mode of trial but not as to payment into the court or furnishing security.
  4. If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to to leave to defend.
  5. If the defendant has no defence or the defence is illusionary or sham or practically  moonshine then although ordinarily, the plaintiff is entitled to leave to sign judgment , the coprt may protect the plaintiff by only allowing the defence to proceed the amount claimed is paid into cpurt or otherwise secured and give and leave to the defendant on such condition, and thereby show mercy to defendant by enabling him to try to prove a defence.

 

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE,1908

PLEADINGS: ORDER 6

MAINS

  1. A filed a suit for recovery of rent against B on the ground that B was his tenant and has not paid rent for the last 2 years. In the written statement filed by B, he admitted that he was tenant of A but he pleaded that he has paid the rent without a receipt having been issued?

During the trial B filed an application seeking permission to amend written statement and instead pleaded that he was not a tenant of A. decide?

 

  1. A tenant’s against his ejectment was struck off. The landlord claimed an eviction decree straight away. The tenant asserted the right to participate in the proceedings. Cross examine the landlord’s witness, lead evidence in defence and rebuttal and address arguments. Decide the controversy.

 

  1. What is meant by pleadings? Briefly state the object and fundamental rules regarding pleadings.

 

  1. What are the powers of the court to allow amendment of pleadings. 

 

THE CODE OF CIVIL PROCEDURE,1908

PLEADINGS: ORDER 6

Order 6 deals with pleadings in general.

Rule 1 = defines pleading

Rule 2 = fundamental principles of pleadings.

Rules 3 to 13 = requires the parties to supply necessary particulars

Rules 14 and 15 = signing and verification of pleadings

Rule 16 = strike out unnecessary pleadings.

Rules 17 and 18 = amendment of pleadings.

Pleading is defined as plaint or written statement. According to Mogha, Pleadings are statements in writing drawn up and filed by each party to a case, stating what his contentions will be the trial and giving all such details as his opponent needs to know in order to prepare his case in answer.

OBJECT

The sole object of pleadings is to ascertain the real dispute the parties, to narrow down the area of conflict and to see where the two sides differ, to preclude one party from taking the other by surprise and to prevent miscarriage of justice.

In leading case of Throp v. Holdsworth, the court held that the whole meaning of the system is to narrow the parties to definite issues, and thereby to diminish expense and delay especially as regards the amount of testimony required on either side at hearing.

In Sayad Muhammad v. Fateh Muhhammad, the court held that the sole object of the pleading is that each side may be fully alive to the questions that are about to be argued in order that they may have opportunity of bringing forward such evidence as may be appropriate to the issues.

Ganesh Trading Co. v. Moji Ram, the supreme court observed, provisions relating to pleadings in civil case are meant to give to each side intimation of the case of the other so that it may met to enable to courts to determine what is really at issue between the parties and to prevent deviation from the course which litigation on particular causes of action must take.

In Virendra Kashinath v. Vinayak N. Joshi, the supreme court stated , the object of the rule two folds . First is to afford the other side the intimation regarding the particular fact of his case so that they may be met by the other side . Second is to enable the court to determine what is really the issue between the parties.

BASIC RULES OF PLEADINGS: RULE 2

On the analysis Rule 2(1)  the following general principles emerge:

  • Pleadings should state facts and not law;
  • The facts stated should be material facts;
  • Pleadings should not state the evidence; and
  • The facts should be stated in a concise form.

 

  1. Facts not law

The first principle of pleading is that they should state only facts and not law. It is the duty of the parties to state only the facts on which they rely upon for their claims. It is for the court to apply the law to the facts pleaded.

The existence of a custom or usage is a question of fact and it must be pleaded. Similarly, intention is also a question of fact and it must be pleaded.

A mixed question of law and fact, however, should be specifically pleaded. Similarly, a point of law which is required to be substantiated by facts, should be

  1. Material facts

Material facts has not been defined in the code. In Udhav Singh v Madhav Rao Scindia, the Supreme Court has defined the expression material facts in the following words

All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence are material facts.

In Virender Nath v. Satpal Singh,

“The phrase ‘material facts, may be said to be those facts upon which a party relies for his claim or defence. In other words, ‘material facts’ are facts upon which the plaintiff’s cause of action or the defendant’s defence depends. What particulars could be said to be ‘material facts’ would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely that all basic and primary facts which must be proceed at the trial to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party.

 

In, Virender Nath v. Satpal Singh, the Supreme Court said:

“A distinction between ‘material facts’ and ’particulars’, however, must not be overlooked. ‘Material facts’ are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. ‘Particulars’, on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. ‘Particulars’ thus ensure conduct of fair trial and would not take the opposite party by surprise.

Whether a particular fact is or is not a material fact which is required to be pleaded by a party depends on the facts and circumstances of each case.

  1. Facts and not evidence

The third principle of pleadings is that the evidence of facts, as distinguishes from the facts themselves, need not be pleaded.

The facts are of two types:

  • Facta probanda:- the facts required to be proved (material facts); and
  • Facta probantia:- the facts by means of which they are to be proved (particulars or evidence)

 

The pleadings should contain only facts probanda and not facts probantia.

In Virender Nath v. Satpal Singh, after referring the leading English and Indian decisions on the point, the Supreme Court observed:

“There is distinction between facta probanda (the facts required to be proved i.e. material fact) and facta propbantia) (the facts by means of which they are proved i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the fact or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not ‘fact in issue’, but only relevant facts required to be proved at the trial in order to establish the fact in issue.

  1. Concise form

The fourth and the last general principle of pleadings is that the pleadings should be drafted with sufficient brevity and precision. The material facts should be stated precisely succinctly and coherently.

The words “in a concise form” are definitely suggestive of the fact that brevity should be adhered to while drafting pleadings. Of course, brevity should not be at the cost of excluding necessary facts, but it does not mean niggling in the pleadings. If care is taken in syntactic process, pleadings can be saved from tautology.

Forms of pleadings

Averments in pleadings should conform with the forms in Appendix A to the (First) Schedule. But the forms in Appendix A are not statutory. Non-compliance thereof, hence, would not result in dismissal of the suit. A party will not be non-suited on that ground.

Pleading in writ petitions

There is essential distinction between pleading under the Code and a pleading under Article 32 or 226 of the Constitution.

Under the Code, every pleading (Plaint or written statement) should state only material facts and not evidence. In a writ petition, on the other hand, the petitioner, or in a counter-affidavit, the respondent should not only state material facts but also the evidence in support and proof of such facts by annexing necessary orders and documents.

Signing and verification of pleadings: Rules 14-15

As a general rule, every pleading must be signed by the party or by one of the parties or by his pleader. But if the party is unable to sign the pleading, it can be signed by any person authorised by him, similarly, every pleading must be verified by the party or by one of the parties pleadings or by some other person acquainted with the facts of the case. The person verifying the pleadings must specify what paragraphs he verifies upon his knowledge and what paragraphs he verifies upon information received by him and believed by him to be true. The verification must be signed on an affidavit by the person verifying and must contain the date on which and the place at which it was signed. The verifying the pleading should also furnish an affidavit in support of his pleadings.

A defect in the matter of signing and verification of pleadings is merely an irregularity and can be corrected at a later stage of the suit with the leave of the court and a suit cannot be dismissed nor an order be passed against a party on the ground of defect or irregularity in signing or verification of plaint or written statement. Similarly, if the affidavit foiled by the party is defective, a court, instead of rejecting it, may give an opportunity to the party to file a proper affidavit.

Striking out pleadings: Rule 16

In Sathi Vijay Kumar v. Tota Singh, the Supreme Court observed that bare reading of Rule 16 of order 6 of the Code makes it clear that a court may order striking of pleading ion the following cases:

  • Where such pleading in unnecessary, scandalous, frivolous or vexatious; or
  • Where such pleading tends to prejudice, embarrass or delay fair trial of the suit; or
  • Where such pleading is otherwise an abuse of the process of the court.

 

Recently in Sathi Vijay Kumar v. Tota Singh, considering English and Indian decisions on the point, the Supreme Court stated:

“It cannot be overlooked that normally, a court cannot direct parties as to how they should prepare their pleadings. If the parties have not offended the rules of pleadings by making averments or raising arguable issues, the court would not order striking out pleadings. The power to strike out pleadings is extraordinary in nature and must be exercised by the court sparingly and with extreme care, and caution and circumspection.

Amendment of pleadings: Rule 17-18

  1. What are the provisions under CPC which deal with amendment of pleadings ?
  2. What is the object of amendment of pleadings ?
  3. Whether O.6.R.17 confers discretion to the court.
  4. Whether Rule 17 is exhaustive.
  5. When leave to amend can be granted by the court?
  6. When leave to amend can be refused by the court?
  7. Who may apply for leave to amend the pleading?
  8. Who may grant amendment?
  9. Whether notice should be given to opposite party before granting the amendment.
  10. Whether the recording of reasons is necessary for allowing or not allowing the amendment.
  11. Whether the amendment after commencement of trial is allowed or not.
  12. Whether the doctrine of relation back is allowed on the amendment of the pleadings.
  13. Whether the successive application for amendment of pleadings is allowed or not.
  14. Whether the court can impose terms while granting the amendment of pleadings.
  15. Whether an order allowing or disallowing for amendment is appealable or not.
  16. Whether the revision is allowed or not to an order granting or refusing amendment.
  17. What are the consequences if pleading is not amended within the specified time?

 

THE CODE OF CIVIL PROCEDURE,1908

PLEADINGS: ORDER 6

PRELIMINARY

  1. The term pleading includes
  • Statements contained in the plaintiff’s plaint
  • Statements contained in defendant’s written statement
  • Statement made by witnesses
  • Statements contained in plaint or written statement
  1. Every pleading must state
  • Material facts as the basis of defence or claim
  • Law or legal pleas as the basis of claim or defence
  • Evidence of alleged facts
  • All of the above
  1. Which order of the CPC lays down the general rules governing pleadings in a court
  • Order 6
  • Order7
  • Order8
  • Order9
  1. A pleading need not contain
  • Presumption of law
  • Performance of condition precedent
  • Circumstances from which the intention may be inferred
  • All of the above
  1. Pleading must be signed
  • By the party only
  • By the pleader only
  • By the party or his agent only
  • By the party or his agent and pleader ,if any
  1. Where an agreement is alleged , the pleading should state
  • Date of the agreement
  • Written or oral agreement
  • If implied agreement , the facts or circumstances from which it is to be implied
  • All of the above
  1. 6.R.16 empowers the court at any stage of the pleadings to strike out any matter contained in it
  • If it is unnecessary , scandalous, frivolous or vexatious
  • If it ends to prejudice, embrass or delay the fair trial of the suit
  • If it is an abuse of the process of the court
  1. A party may approach the court for an amendment of his opponent’s pleading. Also known as compulsory amendment, it is provided under
  • 6.R.14
  • 6.R.15
  • 6.R.17
  • 6.R.18
  1. Amending one’s pleading i.e; voluntary amendment is provided for under
  • 6.R.14
  • 6.R.15
  • 6.R.17
  • 6.R.18
  1. Who said: pleadings are statements which are written and prepared in every case by a plaintiff. These contain all those facts on the basis of which case is to be decided and the defendant is to file his written statement.
  • Lord Denning
  • C.Mogha
  • Justice Bhagwati
  • Lord Halsbury

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

PLAINT

MAINS QUESTIONS

 

  1. What are the grounds of rejection of plaint? Whether the rejection of plaint preclude the plaintiff to institute fresh plaint. Discuss.

 

  1. Write a short note on return of plaint?

 

  1. Distinction between return of plaint and rejection of plaint?

 

 

THE CODE OF CIVIL PROCEDURE, 1908

PLAINT

REJECTION OF PLAINT: O.7.R.11

  • What is plaint?
  • Where plaint does not disclose cause of action.
  • What is cause of action?
  • To reject the plaint on this ground the court must look at the plaint and nothing else.
  • Whether the plaint discloses cause of action or not , averments in the plaint alone are relevant and material.
  • The power to reject a plaint on this ground should be exercised only if the court comes to the conclusion that even if all the allegations set out in the plaint are proved, the plaintiff would not be entitled to any relief.
  • The reading of the plaint should be meaningful and not formal.
  • Difference between a plea that the plaint does not disclose a cause of action and a plea that there is no cause of action for instituting a suit.
  • The plaint can be rejected in toto if it does not disclose the cause of action. A part of it cannot be rejected.
  1. where the relief calaimed is undervalued
  • where the relief claimed by the plaintiff is undervalued and the valuation is not corrected within the time fixed or extended by the court, the plaint will be rejected.
  • The court must look into the plaint only and should not look any other circumstances.
  • The time fixed by the court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the court, for reasons to be recorded , is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers within the time fixed by the court and that the refusal to extend such would cause grave injustice to the plaintiff.
  1. Where the plaint is insufficiently stamped
  • Relief claimed by the plaintiff is properly valued but the plaint is written upon a paper insufficiently stamped and the plaintiff fails to supply the requisite stamp- paper within the time fixed or extended by the court = rejection
  • If the requisite stamp paper is supplied within the time extended by the court, the suit must be treated as instituted from the date of the presentation of plaint for the purpose of limitation as well as payment of court fee.
  1. Where the suit is barred by law
  • If the plaint does not state that a notice as required by section 80 of the code has been given, the plaint will be rejected under this clause.
  • But where waiver of such notice is pleaded, the court cannot reject the plaint without giving the plaintiff an opportunity to establish the fact.
  1. where the plaint is not in duplicate
  • According to O.4.R.1 (1), the plaint has to filed in duplicate. If this requirement is not fulfilled, the plaint will be rejected.
  1. Where there is non-compliance with statutory provisions
  • If the plaintiff fails to comply with the provision of Rule 9.
  • 5.R.9
  • Seven days
  1. Other grounds
  • 7.R.11 not exhaustive
  • Where the plaint is found to be vexatious and meritless, not disclosing a clear right to sue, the court may reject the plaint under this rule.
  • Where the plaint is signed by the person not authorized by the plaintiff and the defect is not cured within the time granted by the court.

PROCEDURE ON REJECTION OF PLAINT: RULE 12

  • The judge will pass an order to that effect and will record reasons for such rejection.

EFFECT OF REJECTION OF PLAINT: RULE 13

  • If the plaint is rejected under this rule, the plaintiff is not precluded from presenting a fresh plaint in respect of the same cause of action.

APPEAL

  • Whether rejection of plaint is appealable or not.

 

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

PLAINT

PRELIMINARY QUESTIONS

 

  1. Which order of CPC lays down the detailed provision regarding the plaint
  • 4
  • 6
  • 7
  • 8
  1. A plaint need not contain
  • Name , description and place of residence of the defendant
  • Cause of action
  • Prayer clause
  • Name of the pleader
  1. 7.R.10 provides for
  • Return of the plaint
  • Rejection of the plaint
  • Both (a) and (b)
  • Admission of the plaint
  1. In which of the following cases, a plaint is liable to be returned?
  • Plaint filed in a court having no jurisdiction
  • Relief undervalued in the plaint
  • Plaint not filed in duplicate
  • Plaint on an insufficiently stamped paper
  1. Where a plaint is not filed in duplicate , it is liable to be
  • Returned
  • Rejected
  • Dismissed
  • None of the above
  1. Where the plaint has been rejected , the plaintiff on the same cause of action
  • May present a fresh plaint
  • Cannot present fresh plaint
  • May present a fresh plaint with the leave of the court
  • None of the above
  1. If the plaint fails to fulfill the requirements of O.7.R.9, the plaint is liable to be
  • Dismissed
  • Rejected
  • Returned
  • None of the above
  1. Which of the following is newly added ground for rejection of a plaint under O.7.R.11
  • Non disclosure of cause of action
  • Suit barred by law
  • Relief undervalued in the plaint
  • Plaint not filed in duplicate
  1. Rejection of the plaint is
  • Deemed decree
  • Order only
  • Non appealable order
  • None of the above
  1. Power of the appellate court to transfer to the proper court has been dealt under
  • Rule 11
  • Rule 10
  • Rule 10-A
  • Rule 10-B

PAHUJA LAW ACADEMY

Principle

Ordinarily the following principles should be borne in mind in dealing with applications for amendment of pleadings:

  • All amendments should be allowed which are necessary for determination of the real controversies in the suit;
  • The proposed amendment should not alter and be a substitute for the cause of action on the basis of which the original lis was raised;
  • Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts would not be allowed o be incorporated by means of amendment;
  • Proposed amendments should not cause prejudice to the other side which cannot be compensated by means of costs;
  • Amendment of a claim or relief barred by time should not be allowed;
  • No amendment should be allowed which amounts to or results in defeating a legal right to the opposite party on account of lapse of time;
  • No party should suffer on account of technicalities of law and the amendment should be allowed to minimize the litigation between the parties.
  • The delay in filing petitions for amendments of pleadings should be properly compensated for by costs;
  • Error or mistake which if not fraudulent should not be made a ground for rejecting the application for amendments for pleadings;
  • The above principles are illustrative and not exhaustive.

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

SET-OFF AND COUNTER-CLAIM

MAINS QUESTIONS

 

 

  1. Write a short note on the followings

 

  • Set-off
  • Counter-claim

 

  1. What is the difference between

 

  • Set-off and counter-claim
  • Legal set-off and equitable set-off

 

  1. A files a suit for recovery of one lakh Rupees against B. Can B claim a set-off against A and C jointly in his written statement? 

 

THE CODE OF CIVIL PROCEDURE, 1908

SET-OFF AND COUNTER CLAIM

‘Set-off means a claim set against another. It is a cross claim which partly offsets the original claim. It is an execution of the debts of which two persons are reciprocally debtors to one another by the credits of which they are reciprocally creditors for one another. It is a reciprocal acquittal of debts between two persons and when a defendant pleads set-off, he is in the position of a plaintiff to the extent of the amount claimed by him. According to its original and strict sense, set-off is a plea in defence pure and simple. Which by adjustment would wipe off or reduce the plaintiff’s claim. In its enlarged sense, and that is of statutory creations as in this rule, it is a defence and a counter-claim combined defence to the extent of the plaintiff’s claim and a claim by the defendant in the suit itself for the balance.

A counter claim is a claim made by the defendant in excess of the right claimed by the plaintiff. A set-off is a right to adjust the claim of the plaintiff against certain rights or dues of the person entitled to set-off. If a set-off is claimed, the whole of it must be claimed, or else, a suit for the balance will be hit by O. 2, r.2. a plea of set-off can be preferred even against the company in liquidation. In a suit for the balance due on an account which is open and current but not mutual, the claim of the defendant for credit for certain amounts alleged to be due to him and wrongly omitted to be credited, is not a counter-claim or set-off. Nor a claim by the defendant in a suit for mesne profit that the decree in favour of the plaintiff should be conditional on payment of compensation to him for the value of improvements effected by him.

The decision in Cofex Exports Ltd v. Canara Bank enumerates the features common to set off and counter-claim as follows:

  • None should exceed the pecuniary limits of jurisdiction of the court.
  • Both are pleaded in the written statement, if the law governing the court permits such plea being raised by the defendant in the written statement.
  • The plaintiff is expected to file written statement in answer to a claim for set off or counter claims.
  • Even if permitted to be raised, the court may in appropriate cases direct a set off or counter claim being tried separately.
  • A defendant cannot be compelled to plead a set off or a counter claim; he may well maintain an independent action for enforcing the claim forming the subject-matter of set off or counter claim.
  • Both are liable to payment of court fee under the Court Fees Act, 1870.
  • Dismissal of suit or its withdrawal would not debar a set off or counter claim, being tried, may be followed by a decree against the plaintiff.

 

 

Conditions of Applicability of the Rule

A defendant may claim a set-off under this rule if the following conditions are satisfied, but not otherwise:

  1. The suit must be one for the recovery of money
  2. As regards the amount claimed to be set-off—

 

  • It must be an ascertained sum of money [see illustrations (c), (d) and (e)];
  • Such sum must be legally recoverable;
  • It must be recoverable by the defendant or by all the defendants if more than one [see illustration (g)];
  • It must be recoverable by the defendant from the plaintiff or all the plaintiffs if more than one [see illustration (t)]. Thus, where the defendant is sued by the agent he cannot set off what is due to him from the principal as the principal is not the plaintiff;
  • It must not exceed the pecuniary limits of the jurisdiction of the court in which the suit is brought; and
  • Both parties must fill, in the defendant’s claim to set-off, the same character as they fill in the plaintiff’s suit [see illustrations (a), (b) and (h)].
  • Sui must be one for Recovery of Money

This rule applies only when the suit is of recovery of money and has no application to a suit in ejectment against a tenant, though it is based on default in the payment of rent suit for redemption is not a suit for money. In Nan Karay v. Ko Htaw, their Lordship of the Privy Council observed that it was doubtful whether a suit for an account was a suit for money. In a subsequent Allahabad case, it was held that a. suit for the dissolution of a partnership and for the partnership accounts, with a prayer that such balance as may be found due to the plaintiff upon taking the partnership accounts, may be paid, to him, was a suit for money and that a plea of set-off might, therefore, be raised by the defendant in suit.

  • Amount Claimed to be Set of must be Ascertained sum of money, not unliquidated Damages

The expression ‘ascertained sum’ does not mean a sum admitted by the plaintiff. It is used in contradistinction to unliquidated damages. “In illustrations (d) and (e),.the claim is for an ascertained sum; not so in illustration (c) where the amount claimed to be set off is for unliquidated damages. In the case mentioned in illustration. (c), the defendant may bring a cross-suit against the plaintiff. In-illustration (d), the amount claimed to be set off by B is the amount of a decree, and this may be set off against Ai’s claim. It is not necessary that B should have taken any steps to enforce the decree.” But if B’s decree had been a decree for sale on a mortgage, there could have been no set-off, for such a decree is not for an ascertained sum but for an account to be taken of what is due on the mortgage for principal and interest and costs.

A, a clerk, sues B, his employer, for arrears of wages due to him. B alleges that A left his employment without notice and that A is, therefore, liable to pay damages which he. Claims to set off. The amount not being ascertained cannot be set off.

Equitable Set-off 

The Code contains provisions dealing with legal set-off and their application is limited to ascertained sums of money only. There are cases in which the defendant may be allowed a set-off even in respect of an unascertained sum which sounds in damages. There can also be an equitable set-off in respect of an ascertained sum of money.“ Where cross-claims arise out of the one and the same transaction or are connected with each other in such a manner that they can be considered as one transaction. The defendant can be allowed to plead set-off although the amount may not be ascertained. “ The essence of such a claim is that there must be some connection between the plaintiff’s claim for a debt and the defendant’s claim to set-off which will make it inequitable to drive the defendant to a separate suit, as for instance when they arise out of the same transaction or transactions which can be, regarded as one transaction or where there is knowledge on both sides of an existing debt due to one party and a credit by the other party and set-off is claimed as a means of discharging it.” These are principally cases where the cross-demands arise out of the same transaction, or are so connected in their nature and circumstances that they can be looked upon as part of one transaction. In such cases, Courts of Equity in England have

 

COUNTER CLAIM: RULES 6-A to 6-G

 Meaning

”Counterclaim” may be defined as “a claim made by the defendant in a suit against the plaintiff”. It is a claim independent of, and separable from, the plaintiff’s claim which can be enforced by a cross-action in favour of the defendant against the plaintiff.

One of the pleas open to a defendant to defeat the relief sought by the plaintiff against him is a counterclaim. Counterclaim may be defined as “a Claim made by the defendant in a suit against the plaintiff”. Therefore, a defendant in a suit may, in addition to his right to plead a Set off, setup a counterclaim. It may be set up only in respect of a claim for which the defendant can file a separate suit. Thus, a counterclaim is substantial a cross-action.

Before the Amendment Act of 1976, there was no specific provision for counterclaim in the Code. The Supreme Court, however, held the right to make a counterclgainlstgtuptgry.245 It was held that the court has power to treat the counterclaim as a cross suit and hear the original suit and counterclaim as a cross-suit and hear the original suit and counterclaim together if the counterclaim is properly stamped.

In the leading case of Laxmidas v. Nanabhai,, the Supreme Court observed, “The question has therefore to be considered on principle as to whether there is anything in law—statutory or otherwise—;which precludes a court from treating a counterclaim as a plaint in a cross-suit it is difficult to see any. No doubt, the Code of Civil Procedure prescribes the contents of a plaint and it might very well be that a counterclaim which is to be treated as a cross-suit might not conform to all these requirements but this by itself is not sufficient to deny to the court the power and the jurisdiction to read and construe the pleadings in a reasonable manner. If, for instance, what is really a plaint in a cross-suit is made part of a written statement either by being made an annexure to it or as part and parcel thereof, though described as a counterclaim, where could be no legal objection to the counter treating the same as a plaint and granting such relief to the defendant as would have been open if the pleading had taken the, form of a plaint………. To hold otherwise would be to erect what in substance is a mere defect in a form of pleading into an instrument for denying what justice manifestly demands.

Object

The provisions relating to counterclaim thus seek to save time of courts, exclude inconvenience to the parties to litigation, decide all disputes between the same parties avoiding unnecessary multiplicity of judicial proceedings and prolong trials.

 Nature and scope

By the Amendment Act of 1976, a specific provision has been made for counterclaims by inserting Rules 6-A to 6-G. Under sub-rule (1) of Rule 6-A, the defendant may set up by way of counterclaim 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 the filing of the suit but before the defendant has delivered his defence or before the time fixed for delivery of his defence has expired. Such counter- claim, however, should not exceed the pecuniary limits of the jurisdiction of the court. In other words, by laying the counterclaim, pecuniary jurisdiction of the court cannot be ousted and the power to try the suit already entertained cannot be taken away by accepting the counter- claim beyond its pecuniary jurisdiction.

When A has a claim of any land against B and brings an action to enforce that claim, and B has a cross-claim of any kind against A which by the law he is entitled to raise and have disposed of in the action brought by A, then B is said to have a right of counterclaim?” Similarly, in a suit for injunction, a counterclaim for possession can be allowed.

Modes of setting up counterclaim

There are three modes of pleading or setting up a counterclaim in a civil suit:

  • In the written statement filed under Order 8 Rule 1;
  • by amending written statement with the leave of the court and setting up counterclaim; and
  • In a subsequent pleading under Order 8 Rule 9.

 

 Who may file counterclaim?

Normally, it is the defendant who may file a counterclaim against the plaintiff. But incidentally and along with the plaintiff, the defendant may also claim relief against the co-defendants in the suit. But a counterclaim solely against co-defendants is not maintainable.

 

 When counterclaim may be set up?

A counterclaim may be set up by a defendant against a plaintiff in respect of cause of action accruing either before or after filing of the suit, provided such claim is not barred by limitation.

 Effect of counterclaim

Such counterclaim has the effect of a cross-suit and the court can pronounce a final judgment both on the original; claim and the counterclaim. The counterclaim of the defendant will be treated as a plaint and the plaintiff has a right to file a written statement in answer to the counterclaim of the defendant?

The effect of the counterclaim is that even if the suit of the plaintiff is stayed, discontinued, dismissed or withdrawn, the counterclaim will be decided on merits)“ and the defendant will have a right to get a decree for a counterclaim as claimed in the written statement?” If the plaintiff does not file any reply to the counterclaim made by the defendant, the court may pronounce the judgment against the plaintiff in relation to the counterclaim made against him or make such order in relation to the counterclaim as it thinks fit. The counterclaim shall be treated as a plaint and will be governed by the rules applicable to plaints. “Similarly, a reply filed in answer to a counterclaim shall be treated as a written statement and governed by rules applicable to written statements”.

Set-off and counterclaim: Distinction

The distinction between a set-off and a counterclaim is very important and, therefore, must be carefully considered:

 

  • Set-off is a statutory defence to a plaintiff’s action, whereas a counterclaim is substantially a cross-action.
  • Set-off must be for an ascertained s m or it must arise out of the same transaction’ a counterclaim need not arise out of the same transaction.
  • Set-off is a ground of defence to the plaintiff’s action. In other words, the former is a ground of defence, a shield, which if established, would afford an answer to the plaintiff’s claim in toto (as a whole) or pro tanto (in proportion); the latter is a weapon of offence, a sword, which enables the defendant to enforce the c ‘m against the plaintiff effectually as an independent action.
  • In the case of a legal set-off, the amount must be recoverable at the date of the suit, while in the case of a counterclaim the amount must be recoverable at the date of the written statement.
  • When the defendant demands in a plaintiff’s suit an amount below or up to the suit claim, it is a set-off strict sensu, but when it is for a larger amount, the claim for excess amount is really a counterclaim.

 

 

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

PRELIMINARY QUESTIONS

 

  1. Mark the incorrect statement:

 

  • The court may at any time require a written statement or additional written statement from any of the parties within 30 days from the date of the order.
  • The court can pronounce a decree straightway on the basis of the plaint.
  • No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the court’s leave and terms.
  • It is mandatory for the court to pass a decree in plaintiff’s favour when a written statement has not been filed.

 

  1. Which rules of the order 8 enable the court to pronounce a decree straightway on the basis of the plaint?

 

  • Rule 4 and 5
  • Rules 5 and 10
  • Rules 4 and 10
  • Rules 3 and 10

 

  1. In a written statement, the defendant can claim:

 

  • Set-off only
  • Counter-claim only
  • Both (a) and (b)
  • None of the above

 

  1. A written statement is

 

  • A reply to the plaint filed by the plaintiff
  • The pleading of the defendant or of the plaintiff in certain cases.
  • Both (a) and (b)
  • Only (a)

 

  1. The period of limitation within which defendant shall submit his written statement is:

 

  • 30 days from the service of summons
  • 40 days from the service of summons
  • 60 days from the service of summons
  • 90 days from the service of summons

 

  1. Within how many days of service of summons the defendant shall present a written statement of his defence, as a laid down under the 2002 Amendment?

 

  • 30 days
  • 90 days
  • 30 days, in special cases, 90 days
  • 60 days

 

  1. Which of the following could be taken up at a later stage by the defendant after filing a written statement:

 

  • A plea of limitation or other pure questions of law.
  • Any new ground of defence claiming a set-off or counter claim
  • Both (a) and (b)
  • None of the above

 

  1. If the defendant has not filed a pleading at all:

 

  • The court can pronounce a judgment on the basis of facts in the plaint of the plaintiff
  • The court can pronounce a judgment on the basis of facts in the plaint except against a person under disability.
  • The court can pronounce a judgment on the basis of facts in the plaint in the plaintiff’s favour except against a person under disability.
  • The court cannot pronounce a judgment.

 

  1. Under O. 8, R. 10, where any party from whom a written statement is required fails to present the same within the time permitted by the court:

 

  • The court shall pronounce judgment against him
  • The court shall make such order in relation to the suits as it thinks fit
  • The court cannot pronounce a judgment
  • Both (a) and (b)
  1. A set-off (O. 8, R. 6) is a:

 

  • Major part of a plaint or written statement
  • A compromise between the plaintiff and the defendant
  • Reciprocal acquittal of debts between the plaintiff and the defendant
  • All of the above

 

  1. Which of the following is not a necessary condition for a defendant to claim a set-off:

 

  • The suit must be for the recovery of money
  • The amount claimed must be an ascertained sum of money
  • The amount claimed must not exceed the pecuniary jurisdiction of the court in which the suit is brought.
  • The amount claimed may or may not be legally recoverable.

 

  1. In which of the following cases, can C set-off the claim?

 

  • A sues C on a Bill of exchange. C alleges that A has wrongfully neglected to insure C’s goods and is liable to pay compensation.
  • A sues C on a Bill of Exchange for Rs. 500. C holds a judgment against A for recovery of debt of Rs. 1000.
  • A sues B and C for Rs. 1000. The debt is due to C alone by A.
  • A and B sues C for Rs. 1000. The debt is due to C by A alone.

 

  1. Which of the following is not essential in a written statement:

 

  • Prayer
  • Verification
  • Names and addresses of the plaintiffs and defendants
  • Answers of the defendant

 

  1. Mark the incorrect statement in relation to a written statement:

 

  • The defendant is required to deal with every material fact alleged by the plaintiff
  • The defendant cannot state new facts in his favour or take legal objections against the plaintiff’s claim
  • The defendant will not be entitled, as of right, to rely on any ground of defence which he has not taken in his written statement.
  • None of the above

 

 

  1. Under O. 8, R.1A, if a document is not filed along with the pleadings, such document shall not without the leave of the court, be allowed to be received in evidence:

 

  • On behalf of the defendant
  • On behalf of the plaintiff
  • On behalf of the either party
  • None of the above

 

  1. In which of the following cases, set-off can be claimed?

 

  • A owes the partnership firm of B and C Rs. 1000. B dies leaving C, surviving. A sues C for debt of Rs. 1500 due in his separate character. C wants to set-off the debt of Rs. 1000.
  • A sues B for Rs. 20,000. B wants to set-off the claim for damages for breach of contract for specific performance.
  • Both (a) and (b)
  • Only (a)

 

  1. Mark the incorrect statement:

 

  • In set-off court-fee is payable by the defendant
  • A defendant cannot claim a set-off if the plaintiff suit is dismissed
  • 8, R. 6 deals with legal set-off
  • Legal set-off can be claimed as of right, the equitable set-off is dependent on the court’s discretion.

 

  1. A claim made by the defendant in a suit against the plaintiff is called:

 

  • Counter-claim
  • Cross-action
  • Cross-suit
  • All of the above

PAHUJA LAW ACADEMY

INTERIM

MAINS QUESTIONS

 

  1. Discuss the principles governing the appointments OF Receivers. What are their powers and duties? Can a collector be appointed as a Receiver?

 

  1. When can a temporary injunction be granted by a court?

 

 

  1. Can an injunction be issued without giving notice of application to the opposite party?

 

  1. What do you understand by an ‘interlocutory order’?

 

 

  1. In what circumstances can the property of defendant be attached before judgment? What will be the procedure for such attachment?

 

  1. ‘B’ filed a suit for declaration of partnership and accounts against ‘A’. In order to deprive ‘B’ of the benefits, ‘A’ began to shift the goods and assets of the business establishment in hurry. Advise ‘B’ as to what should he do in the circumstances.

 

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

INTERIM ORDERS

  • According to the dictionary meaning, “interim” means “for the time being”, “in the meantime”, “meanwhile”, ”temporary”, “provisional”, “not final”, ”intervening”.
  • Interim or interlocutory orders are those orders passed by a court during the pendency of a suit or proceeding which do not determine finally the substantive rights and liabilities of the parties in respect of the subject-matter of the suit or proceeding. “Interlocutory” means, not that which decides the cause, but that which only settles some intervening matter relating to the cause.
  • After the suit is instituted by the plaintiff and before it is finally disposed of, the court may make interlocutory orders as may appear to the court to be just and convenient.
  • They are made in order to assist the parties to the suit in the prosecution of their case or for the purpose of protection of the subject-matter of the suit.
  • Courts are constituted for the purpose of doing justice and must be deemed to possess all such powers as may be necessary to do the right and undo the wrong in the course of administration of justice.
  • Interim orders are necessary to deal with and protect rights of the parties in the interval between the commencement of the proceedings and final adjudication. They enable the court to grant such relief or to pass such order as may be necessary, just or equitable. They also prevent any abuse of process during the pendency of proceedings. Hence, interim or interlocutory proceedings play a crucial role in the conduct of litigation between parties.

Such interim orders under CPC may be summarised thus:

(i) Payment in Court: Order 24

(ii) Security for Costs: Order 25

(iii) Commissions: Order 26

(iv) Arrest before Judgment: Order 38

(v) Attachment before Judgment: Order 38

(vi) Temporary Injunctions: Order 39

(vii) Interlocutory Orders: Order 39

(viii) Receiver: Order 40

 

PAYMENT IN COURT: ORDER 24

As it is open to the plaintiff to abandon his suit, so also it is open to the defendant in a suit for debt or damages to deposit in court at any stage of the suit such sum of money as he considers a satisfaction in full of the plaintiff’s claim.’ The deposited amount shall be paid to the plaintiff on his application unless the court otherwise directs.

Such deposit, however, must be unconditional. No interest shall be allowed to the plaintiff on the sum deposited by the defendant. If such amount is deposited at the stage of final arguments only to save payment of interest, the application can be rejected.

If the plaintiff accepts such sum as payment in full satisfaction of his claim, the court shall record his statement to that effect and pronounce the judgment accordingly. On the other hand, if the plaintiff accepts such payment as satisfaction in part of his claim, he is entitled to prosecute the suit for the balance. But, if ultimately it is found that the deposit was in full satisfaction of the plaintiff’s claim, the plaintiff shall pay all costs incurred after such deposit.

Illustration

A sues B to recover Rs 15,000. B deposits Rs 10,000 in full satisfaction of the plaintiff’s claim. If A accepts the amount as satisfaction in full of his claim, the Court shall pronounce the judgment to that effect. If, on the other hand, A accepts the amount as satisfaction in part only of his claim, he may prosecute his suit for the balance. But if the Court ultimately decides that A is entitled only to Rs 10,000, he will have to pay the costs incurred by B after depositing Rs 10,000 in the Court.

 

SECURITY FOR COSTS: ORDER 25

Rule 1 of Order 25 provides for the taking of security for the costs of the suit. It states that the court may, at any stage of the suit, order the plaintiff to give security for the payment of the costs of the defendant. This is at the discretion of the court. This power may be exercised by the court on an application by a defendant or suo motu (on its own motion).

In the following circumstances, however, the court shall make such order

(i) where the plaintiff resides outside India or where there are two or more plaintiffs and all of them reside outside India; and

(ii) where the sole plaintiff or none of the plaintiffs has sufficient immovable property within India other than the suit property.

 

 

 

Rule 10 of Order 41 provides for taking of security for costs of appeal.

 Object:

The object of the rule is to provide for the protection of the defendants in certain cases where, in the event of success, they may have difficulty in realizing their costs from the plaintiff.” It is a discretionary power which can be exercised only in exceptional circumstances, where it is shown that the exercise of power is necessary for the reasonable protection of the interests of the defendant. An order for security of costs may be passed by the court either suo motu (of its own motion) or on application of the defendant and must be a reasoned one. The provisions of this order apply even to a minor plaintiff.”

Failure to furnish security: Rule 2

If the security is not furnished within the time fixed or extended, the court shall dismiss the suit unless the plaintiff or plaintiffs are permitted to withdraw therefrom. Sub-rule (2) of Rule 1 empowers the court to restore the suit dismissed under sub-rule (1). The dismissal shall not, however, be set aside without giving notice to the defendant.

 

 

COMMISSIONS: ORDER 26

Issue of commissions: Section 75

Sections 75 to 78 deal with the powers of the court to issue commissions and detailed provisions have been made in Order 26 of the Code. The power of the court to issue commission is discretionary and can be exercised by the court for doing full and complete justice between the parties.  It can be exercised by the court either on an application by a party to the suit or of its own motion (suo motu).

Purposes: Section 75

Section 75 enacts that a court may issue a commission for any of the following purposes: .

(i) to examine witnesses;

(ii) to make local investigation;

(iii) to adjust accounts;

(iv) to make partition;

(v) to hold investigation;

(vi) to conduct sale; or

(vii) to perform ministerial act.

(a) To examine witnesses: Sections 76-78; Order 26 Rules 1-8

  • As a general rule, the evidence of a witness in an action, whether he is a party to the suit or not, should be taken in open court and tested by cross-examination.
  • Inability to attend the court on grounds of sickness or infirmity or detriment to the public interest may justify issue of a commission. The court has a discretion to relax the rule of attendance in court where the person sought to be examined as a witness resides beyond the local limits of the jurisdiction of the court” or on any other ground which the court thinks sufficient“, e.g., a witness, who being a paramhansa, always remained in naked condition, can be examined on commission.” Similarly, if a party or a witness apprehends danger to his life if he appears before the court, he can be examined on commission.”
  • On the other hand, where a party accused of fraud seeks to examine himself on commission, the court may refuse the prayer since the opportunity of noting his demeanour would be lost.” The power, also, should not be exercised on the ground that the witness is a man of rank or having social status and it will be derogatory for him to appear in person in court.
  • The court may issue a commission for the examination on interrogatories or otherwise of any person in the following circumstances:

(1) if the person to be examined as a witness resides within the local limits of the court’s jurisdiction, and (i) is exempted under the Code from attending court; or (ii) is from sickness or infirmity unable to attend court, or (iii) in the interest of justice, or for expeditious disposal of the case, or for any other reason, his examination on commission will be proper; or (ii) if he resides beyond the local limits of the jurisdiction of the court, or

(iii) If he is about to leave the jurisdiction of the court; or

(iv) If he is a government servant and cannot, in the opinion of the court, attend without detriment to the public service. or

(v) If he is residing out of India and the court is satisfied that his evidence is necessary.

The court may issue such a commission either suo motu (of its own motion) or on the application of any party to the suit or of the witness to be examined. The evidence taken on commission shall form part of the record. It shall, however, not be read in evidence in the suit with- out the consent of the party against whom it is offered, unless (a) the person, who gave the evidence, is beyond the jurisdiction of the court, or dead or unable from sickness or infirmity to attend to be personally examined, or exempted from personal appearance in court, or is a person in the service of the government who cannot, in the opinion of the court, attend without detriment to the public service, or (b) the court in its discretion dispenses with the “proof of any of such circumstances.”

(b) To make local investigation: Rules 9 and 10. The court may, in any suit, issue a commission to such person as it thinks fit directing him to make local investigation and to report thereon for the purpose of (a) elucidating or clarifying any matter in dispute, or (b) ascertaining the market value of any property or the amount of any mesne profits or damages or annual net profits.

The object of local investigation is not to collect evidence which can be taken in court but to obtain evidence which from its very peculiar nature can be had only on the spot. Such evidence enables the court to properly and correctly understand and assess the evidence on record and clarify any point which is left doubtful. It also helps the court in deciding the question in controversy pending before it, e.g., whether the suit premises is really occupied by the tenant or by strangers.“

To adjust accounts: Rules 11 and 12

In any suit in which an examination or adjustment of accounts is necessary, the court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment.“ The court, for this purpose, shall issue necessary instructions to the Commissioner. The proceedings and the report (if any) of the Commissioner shall be evidence in the suit.“

To make partition: Rules 13 and 14

Where a preliminary decree for partition of immovable property has been passed, the court may issue a commission to such person as it thinks fit to make a partition or separation according to the rights declared in such,decree.“5 The Commissioner shall, after such inquiry as may be necessary, divide the property into the required number of shares and allot them to the parties. He will then prepare a report appointing the share of each party and distinguishing the same by metes and bounds and transmit it to the court. The court shall, after hearing the objections of different parties, make the final allotment.“

To hold investigation: Rule 10-A

Where any question arising in a suit involves scientific investigation which cannot, in the opinion of the court, be conveniently conducted before the court, the court may, if it thinks it necessary or expedient in the interest of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the court.

To sell property: Rule 10-C

Where, in any suit, it becomes necessary to sell any movable property which is in the custody of the court pending the determination of the suit and which cannot be conveniently preserved, the court may, if, for reasons to be recorded, is of opinion that it is necessary or expedient in the interest of justice so to do, issue a commission to such person as it thinks fit, directing him to conduct such sale and report thereon to the court.

To perform ministerial act: Rule 10-B

Where any question arising in a suit involves the performance of any ministerial act which cannot, in the opinion of the court, be conveniently performed before the court, the court may, if, for reasons to be recorded, is of opinion that it is necessary or expedient in the interest of justice so to do, issue a commission to such person as it thinks fit, directing him to perform that ministerial act and report thereon to the court.

By the Amendment Act of 1976, Rules 10-A to 10-C have been inserted to provide for issue of commissions for scientific investigation, sale of movable property or performance of a ministerial act. Ministerial work means not the office work of the court but work like accounting, calculation and other work of a like nature which courts are not likely to take up without unnecessary waste of time. The Commissioner appointed by the court does not perform any judicial function.

The provisions to issue commissions under the Code of Civil Procedure are exhaustive and, hence, the court cannot exercise inherent powers under Section 151 for the purpose. The Supreme Court or High Courts under the Constitution can exercise plenary powers to issue a commission for any purpose.

Powers: Rules 16-18

The Commissioner may (i) summon and procure the attendance of parties and their witnesses and examine them; (ii) call for and examine documents. (m) enter into any land or building mentioned in the order;55 (iv) proceed ex parte if the parties do not appear before him inspite of the order of the court.“ Rule 18-B empowers the court to fix the date for return of a commission.

Expenses: Rule 15

Rule-15 provides that the court may, if it thinks fit, order the party requiring the commission to deposit the necessary expenses within the fixed period.

Commissions for foreign tribunals: Rules 19-22

Rules 19 to 22 provide that if a High Court is satisfied that a foreign court wishes to obtain the evidence of a witness residing within its appellate jurisdiction in a proceeding of a civil nature, it may issue a commission for the examination of such witness.

Limitations

A judicial function of a court cannot be delegated to a commission.” Thus, no commission can be issued to value the property in dispute as it is the function of the court. But commission can be appointed to gather data to help such determination by court.” Similarly, commission cannot be appointed to scrutinize votes at the election, but it can be entrusted work of separating undisputed votes from disputed votes or of counting votes as it is merely a ministerial work. Again, it is not the business of the court to collect evidence for a party nor to protect the rival party from the evil consequences. A civil court, hence, cannot appoint a commission to seize account books in possession of any party on the ground that an opposite party has an apprehension that they would be tempered with.

Report of Commissioner: Evidentiary value . The report of the Commissioner would furnish prima facie evidence of the facts and data collected by the Commissioner. It will constitute an important piece of evidence and cannot be rejected except on sufficient grounds. It would, however, be open to the court to consider what weight to be attached to the data collected by the Commissioner and reflected in the report and to what extent act upon them.

Issuance of commission by Supreme Court and High Courts

The limitations for the issue of commission set out in Section 79 and Order 26 of the Code do not apply to issuance of commission by the Supreme Court or by High Courts in exercise of powers under the Constitution of India.

 

ARREST BEFORE JUDGMENT:

ORDER 38 RULES 1-4

Nature and scope Generally, a creditor having a claim against his debtor has first to obtain a decree against him and then execute the said decree by having him arrested or his property attached in execution under the provisions of Order 21. Under special circumstances, however, the creditor can move for the arrest of the debtor or for the attachment of his property even before the judgment.

Object

The object underlying these provisions is to enable the plaintiff to realise the amount of decree if one is eventually passed in his favour and to prevent any attempt on the part of the defendant to defeat the execution of such decree passed against him.

Grounds: Rule 1

Where at any stage of the suit, the court is satisfied, either by affidavit or otherwise,

(a) That the defendant, with intent to delay the plaintiff, or to avoid any process of the court, or to obstruct or delay the execution of any decree that may be passed against him,

  • has absconded or left the local limits of the jurisdiction of the court, or
  • is about to abscond or leave the local limits of the jurisdiction of the court, or
  • has disposed of or removed from the local limits of the jurisdiction of the court his property or any part thereof, or

(b) that the defendant is about to leave India under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,

The court may issue a warrant to arrest the defendant and bring him before the court to show cause why he should not furnish security for his appearance. The defendant shall not, however, be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff’s claim.

 

Discretion of court

The power to arrest the defendant and that too before a decree in favour of the plaintiff is a drastic action and must be taken after due care, caution and circumspection. Before a court acts under this rule, it must have reason to believe on adequate material that unless the power is exercised, there is a real danger that the defendant will remove himself or his property from the jurisdiction of the court. The power of arrest before judgment can neither be used as lever for the plaintiff to coerce or compel the defendant to come to terms, nor to secure easy execution of decree.

Conditions

An application for arrest may be made by the plaintiff at any time after the plaint is presented, even before the service of summons is effected on the defendant. However, before this extraordinary power can be exercised, the court must be satisfied about the following two conditions:

(a) The plaintiff’s suit must be bona fide and his cause of action must be prima facie unimpeachable subject to his proving the allegations in the plaint; and

(b) The court must have reason to believe on adequate materials that unless this extraordinary power is exercised there is a real danger that the defendant will remove himself or his property from the ambit of the powers of the court.

Security: Rules 2-4

Where the defendant fails to show cause why he should not furnish security for his appearance, the court shall order him either to deposit in court money or other property sufficient to answer the claim against him, or to furnish security for his appearance at any time when called upon. The court has discretion as to the manner as also the amount of security. Every surety for the appearance of a defendant shall bind himself, in default of such appearance, to pay any sum of money which the defend- and may be ordered to pay in the suit.

Rule 3 lays down procedure to be adopted on an application by the surety for discharge of liability.

  1. The surety may apply at any time in the court in which he became surety to be discharged from his obligation.
  2. The court shall summon the defendant to appear or may issue a warrant for his arrest in first instance.
  3. On the appearance of the defendant, the court shall direct the surety to be discharged from his obligation and shall call upon the defendant to find fresh security.

Where arrest before judgment not allowed?

An order for arrest of a defendant before judgment cannot be obtained in any suit for land or immovable property specified in clauses (a) to (d) of Section 16 of the Code.

Arrest before judgment also cannot be allowed to convert unsecured debt into a secured debt or to ensure easy execution of decree.

 

Appeal

An order passed under Rule 2, 3 or 6 of Order 38 is appealable.

Revision

An order of arrest made under Rule 1 of Order 38 can be said to be case decided under Section 115 of the Code and is revisable.

Arrest on insufficient grounds: Section 95

Where in any suit in which an order of arrest of the defendant has been obtained on insufficient grounds by the plaintiff, or where the suit of the plaintiff fails and it appears to the court that there was no reasonable or probable ground for instituting it, on application being made by the defendant, the court may order the plaintiff to pay as compensation such amount, not exceeding fifty thousand rupees, as seems reasonable to the defendant for the expense or injury including injury to reputation caused to him.

ATTACHMENT BEFORE JUDGMENT:

ORDER 38 RULES 5-13

 Nature and scope

Like arrest before judgment, in certain circumstances, an attachment before judgment may be ordered by the court. Rules 5-13 of Order 38 deal with attachment before judgment.

 Object

  • The primary object of attachment before judgment is to prevent any attempt on the part of the defendant to defeat the realisation of the decree that may be passed against him.
  • It thus prevents any attempt on the part of the defendant to defeat realisation of the decree passed in favour of the plaintiff.
  • In Sardar Govindrao v. Devi Sakai, the Supreme Court observed:

Attachment before judgment is levied where the court on an application of the plaintiff is satisfied that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court. The sole object behind the order levying attachment before judgment is to give an assurance to the plaintiff that his decree if made would be satisfied. It is a sort of a guarantee against the decree becoming infructuous for want of property available from which the plaintiff can satisfy the decree.

Grounds: Rule 5

Where, at any stage of a suit, the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court;

the court may direct the defendant, within a time to be fixed by it, either to furnish security, of such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the court, the court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached.

The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof. The court may also in the order direct conditional attachment of the whole or any portion of the property. If an order of attachment is made without complying with the provisions of Rule 5(1), such attachment shall be void. The provisions of Order 21 (execution proceedings) will also apply to attachment before judgment.

Principles

The remedy of attachment before judgment is an extraordinary remedy and must be exercised sparingly and strictly in accordance with law and with utmost care and caution so that it may not become an engine of oppression. Before an order of attachment can be made, the court must be satisfied about the following two conditions:

(i) That the defendant is about to dispose of the whole or any part of his property; and

(ii) that the disposal is with the intention of obstructing or delaying the execution of any decree that may be passed against him.

In Raman Tech. Process Engg. C0. v. Solanki Traders, the Supreme Court stated:

The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.

Suffice to say that in the leading case of Premraj Mundra v. Mohd. Maneck Gazi”, after referring to several authorities, Justice Sinha had deduced the following principles relating to passing of an order of attachment before judgment:

(1) That an order under Order 38, Rules 5 and 6 can only be issued if circumstances exist as are stated therein.

(2) Whether such circumstances exist is a question of fact which must be proved to the satisfaction of the court.

(3) That the court would not be justified in issuing an order for attachment before judgment, or for security, merely because it thinks that no harm would be done thereby or that the defendants would not be prejudiced.

(4) That the affidavits in support of the contentions of the applicant must not be vague, and must be properly verified. Where it is affirmed as true to knowledge or information or belief, it must be stated as to which portion is true to knowledge, the source of information should be disclosed, and the grounds for belief should be stated.

(5) That a mere allegation that the defendant was selling off his properties is not sufficient. Particulars must be stated.

(6) There is no rule that transactions before a suit cannot be taken into consideration, but the object of attachment before judgment must be to prevent future transfer or alienation. ,

(7) Where only a small portion of the property belonging to the defendant is being disposed of, no inference can be drawn in the absence of other circumstances that the alienation is necessarily to defraud or delay the plaintiff’s claim.

(8) That the mere fact of transfer is not enough, since nobody can be prevented from dealing with his properties simply because a suit has been filed. There must be additional circumstances to show that the transfer is with an intention to delay or defeat the plaintiff’s claim. It is open to the court to look to the conduct of the parties immediately before the suit and to examine the surrounding circumstances and to draw an inference as to whether the defendant is about to dispose of the property, and if so, with what intention. The court is entitled to consider the nature of the claim and the defence put forward.

(9)The fact that the defendant is in insolvent circumstances or in acute financial embarrassment is a relevant circumstance, but not by itself sufficient.

(10)That in the case of running businesses, the strictest caution is necessary and the mere fact that a business has been closed, or that its turnover has diminished, is not enough.

(11) Where, however, the defendant starts disposing of his properties one by one, immediately upon getting notice of the plaintiff’s claim, and/or where he had transferred the major portion of his properties shortly prior to the institution of the suit, and was in an embarrassed financial condition, these were grounds from which an inference could legitimately be drawn that the object of the defendant was to delay and defeat the plaintiff’s claim.

(12)Mere removal of properties outside the jurisdiction of the court concerned is not enough, but where the defendant, with notice of the plaintiff’s claim, suddenly begins removal of his properties outside the jurisdiction of the appropriate court, and without any satisfactory reason, an adverse inference may be drawn against the defendant. Where the removal is to a foreign country, the inference is greatly strengthened.

(13)The defendant in a suit is under no liability to take any special care in administering his affairs, simply because there is a claim pending against him. Mere neglect or suffering execution by other creditors is not a sufficient reason for an order under Order 38 of the Code.

(14)The sale of properties at a gross undervalue, or benami transfers, are always good indications of an intention to defeat the plaintiff’s claim. The court must, however, be very cautious about the evidence on these points and not rely on vague allegations.

Conditional attachment

The court has ample power to direct conditional attachment. No prior notice is necessary in such cases. It is, however, open to the defendant and his right to show cause against attachment has not been affected. Final order of attachment should be passed only after affording an opportunity of hearing to the defendant. Conditional order of attachment, however is not by itself attachment. Unless the property is actually attached in accordance with the procedure prescribed by the Code, the order is ineffective and no attachment can be made of property.

Mode of attachment: Rule 7

Rule 7 enacts that attachment shall be made in the manner provided for attachment of property in execution of a decree.

Exemption from attachment: Rule 12

The court cannot order attachment or production of any agricultural produce in possession of an agriculturist.

Rights of third party: Rule 10

An attachment before judgment does not affect the rights of persons, existing prior to the attachment, if they are not parties to the suit.

Adjudication of claims: Rule 8

Rule 8 provides that any claim preferred to the property, attached before judgment, shall be adjudicated upon in the manner provided for adjudication of claims to property attached in execution of a decree for the payment of money.

Reattachment in execution: Rules 11-11-A

Where the property is under attachment, and a decree is subsequently passed in favour of the plaintiff, it is not necessary to apply for fresh attachment of the property in execution. The provisions of Order 21 applicable to an attachment made in execution of a decree will also apply to an attachment before judgment.

Effect of attachment

An order of attachment before judgment is a sort of guarantee against decree becoming infructuous for want of property available for satisfaction of such decree. The plaintiff, however, does not get title by effecting attachment before judgment.

Withdrawal of attachment

Where the defendant furnishes security, the court must withdraw the attachment.

Removal of attachment: Rule 9

An order of attachment will be withdrawn if the defendant furnishes security or the suit is dismissed.

Determination of attachment

An attachment under the Code will be determined in the following circumstances:

(i) Where the defendant furnishes security;

(ii) Where attaching creditor abandons/withdraws attachment;

(iii) Where the suit is dismissed;

(iv) Where the decree is satisfied;

(v) Where the decree is reversed/set aside;

(vi) Where the court releases the property;

(vii) Where after the attachment, application for execution is dismissed;

(viii) where the decree-holders fails to do what he is required to do under the decree.

 

Appeal

An order passed under Order 38 Rule 6 is appealable.

Revision

An order granting or refusing attachment before judgment is a case decided within the meaning of Section 115 of the Code and is revisable by the High Court.

Wrongful attachment

A suit for damages is maintainable for wrongful attachment of property.

Attachment on insufficient grounds: Section 95

Where in any suit in which an order of attachment of the property of a defendant has been obtained on insufficient grounds by the plaintiff, or where the suit of the plaintiff fails and it appears to the court that there was no reasonable or probable ground for instituting it, on application being made by the defendant, the court may order the plaintiff to pay as compensation such amount, not exceeding fifty thousand rupees, as it deems reasonable to the defendant for the expense or injury including injury to reputation caused to him

TEMPORARY INJUNCTIONS: ORDER 39 RULES 1-5

  • Every court is constituted for the purpose of administering justice among parties and, therefore, must be deemed to possess all such powers as may be necessary to do full and complete justice to the parties before it.
  • An injunction is a judicial process whereby a party is required to do, or to refrain from doing, any particular act. It is a remedy in the form of an order of the court addressed to a particular person that either prohibits him from doing or continuing to do a particular act (prohibitory injunction); or orders him to carry out a certain act (mandatory injunction).

 Stay and injunction

There is difference between stay and injunction. “Stay” means stop- page, arrest or suspension of judicial proceeding, while “injunction” means restraining or preventing a person from commencing or continuing action. Order of stay is addressed to court while order of injunction is issued to party. Injunction becomes effective as soon as it is issued whereas stay operates only when it is communicated to the court to which it is issued.

 Doctrine explained

It is well-settled principle of law that interim order can always be granted in the aid of and as ancillary to the main relief available to the party on final determination of his rights in a suit or any other proceeding. Therefore, a court undoubtedly possesses the power to grant interim relief during the pendency of the suit. Temporary injunctions are thus injunctions issued during the pendency of proceedings.

 Object

The primary purpose of granting interim relief is the preservation of property in dispute till legal rights and conflicting claims of the parties before the court are adjudicated. In other words, the object of making an order regarding interim relief is to evolve a workable formula to the extent called for by the demands of the situation, keeping in mind the pros and cons of the matter and striking a delicate balance between two conflicting interests, i.e., injury and prejudice, likely to be caused to the plaintiff if the relief is refused; and injury and prejudice likely to be caused to the defendant if the relief is granted. The court in the exercise of sound judicial discretion can grant or refuse to grant interim relief. The underlying object of granting temporary injunction is to maintain and preserve status quo at the time of institution of the proceedings and to prevent any change in it until the final determination of the suit. It is in the nature of protective relief granted in favour of a party to prevent future possible injury.

Types

Injunctions are of various types; they are: (i) temporary; and (ii) permanent.

Perpetual or permanent injunction restrains a party forever from doing the specified act and can be granted only on merits at the conclusion of the trial after hearing both the parties to the suit. It is governed by Sections 38 to 42 of the Specific Relief Act, 1963.

Temporary or interim injunction, on the other hand, restrains a party temporarily from doing the specified act and can be granted only until the disposal of the suit or until the further orders of the court. It is regulated by the provisions of Order 39 of the Code of Civil Procedure, 1908 and may be granted at any stage of the suit.

Injunctions are (i) preventive, prohibitive or restrictive, i.e. when they prevent, prohibit or restrain someone from doing something; or (ii) mandatory, i.e. when they compel, command or order some person to do something. Again, an injunction may be (i) ad interim; or (ii) interim. Ad-interim injunction is granted without finally deciding an application for injunction and operates till the disposal of the application. Interim injunction is normally granted while finally deciding main application and operates till the disposal of the suit.

Who may apply?

It is not the plaintiff alone who can apply for an interim injunction. A defendant may also make an application for grant of an injunction against the plaintiff.

  

Against whom injunction may be issued

An injunction may be issued only against a party and not against a stranger or a third party. It also cannot be issued against a court or judicial officer.  Normally, injunction can be granted against persons within the jurisdiction of the court concerned.

 Grounds: Rule 1

Temporary injunction may be granted by a court in the following cases:

(a) where 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

(b) Where a defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors, or

(c) Where a defendant threatens to dispossess the plaintiff or other- wise cause injury to the plaintiff in relation to any property in dispute in the suit. or

(d) Where a defendant is about to commit a breach of contract, or other injury of any kind; or

(e) Where a court is of the opinion that the interest of justice so requires.

 Principles

The power to grant a temporary injunction is at the discretion of the court. This discretion, however, should be exercised reasonably, judiciously and on sound legal principles. Injunction should not be lightly granted as it adversely affects the other side. The grant of injunction is in the nature of equitable relief, and the court has undoubtedly power to impose such terms and conditions as it thinks fit. Such conditions, however, must be reasonable so as not to make it impossible for the party to comply with the same and thereby virtually denying the relief which he would otherwise be ordinarily entitled to.

Generally, before granting the injunction, the court must be satisfied about the following factors

(i) Whether the plaintiff has a prima facie case.

(ii) Whether the plaintiff would suffer irreparable injury if his prayer for temporary injunction is not granted.

(iii) Whether the balance of (in)convenience is in favour of the plaintiff.

The above three rules are described as “three pillars” on which foundation of every order of injunction rests. It is also known as ”Tripple test” for grant of interim injunction. All these three elements are of extreme importance.

  

(a) Prima facie case

The first rule is that the applicant must make out a prima facie case in support of the right claimed by him. The court must be satisfied that there is a bona fide dispute raised by the applicant, that there is an arguable case for trial which needs investigation and a decision on merits and on the facts before the court there is a probability of the applicant being entitled to the relief claimed by him. The existence of a prima facie right and infraction of such right is a condition precedent for grant of temporary injunction. The burden is on the plaintiff to satisfy the court by leading evidence or otherwise that he has a prima facie case in his favour.

Explaining the ambit and scope of the connotation “prima facie” case, in Martin Burn Ltd. v. R.N. Bannerjee, the Supreme Court observed:

“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. It may be that the tribunal considering this question may itself have arrived at a different conclusion.

It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record.

But prima facie case, should not be confused with a case proved to the hilt. It is no part of the court’s function at that stage to try to resolve a conflict of evidence nor to decide complicated questions of fact and of law which call for detailed arguments and mature considerations. These are matters to be dealt with at the trial. In other words, the court should not examine the merits of the case closely at that stage because it is not expected to decide the suit finally. In deciding a prima facie case, the court is to be guided by the plaintiff’s case as revealed in the plaint, affidavits or other materials produced by him.

Prima facie case must precede an order of injunction. Only when prima facie case is established that the court will consider other factors. If applicant fails to prove prima facie case, he is not entitled to temporary Injunction.

(b) Irreparable injury

The existence of the prima facie case alone does not entitle the applicant for a temporary injunction?” The applicant must further satisfy the court about the second condition by showing that he will suffer irreparable injury if the injunction as prayed is not granted, and that there is no other remedy open to him by which he can protect himself from the consequences of apprehended injury. In other words, the court must be satisfied that refusal to grant injunction would result in “irreparable injury” to the party seeking relief and he needs to be protected from the consequences of apprehended injury. Granting of injunction is an equitable relief and such a power can be exercised when judicial intervention is absolutely necessary to protect rights and interests of the applicant.

In the leading case of American Cyanamid C0. v. Ethicon Ltd, the House of Lords has rightly pronounced the principle thus: [T]he governing principle is that the court should first consider whether, if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff’s claim appeared to be at that stage. If, on the other hand, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff’s undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recover- able under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason upon this ground to refuse an interlocutory injunction.

The expression irreparable injury, however, does not mean that there should be no possibility of repairing the injury. It only means that the injury must be a material one, i.e. which cannot be adequately compensated by damages. An injury will be regarded as irreparable where there exists no specific or fixed pecuniary standards for measuring damages. Where both sides are exposed to irreparable injury pending trial, the court has to strike a just balance?“

(c) Balance of (in)convenience

The third condition for granting interim injunction is that the balance of convenience must be in favour of the applicant. In other words, the court must be satisfied that the comparative mischief, hardship or inconvenience which is likely to be caused to the applicant by refusing the injunction will be greater than that which is likely to be caused to the opposite party by granting it.

The court while exercising discretion in granting or refusing injunction should exercise sound judicial discretion and should attempt to weigh substantial mischief or injury likely to be caused to the parties, if the injunction is refused, and compare it with that which is likely to be caused to the opposite party if the injunction is granted. If on weighing conflicting probabilities, the court is of the opinion that the balance of convenience is in favour of the applicant, it would grant injunction, otherwise refuse to grant it.

Again, to quote the remarkable observations of Lord Diplock in American Cyanamid Co. v. Ethicon Ltd.

“The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where ‘the balance of convenience’ lie.

Though English and Indian Courts have used the phrase “balance of convenience”, the authors are of the view that proper expression should be “balance of inconvenience”. It is submitted that once the plaintiff establishes prima facie case, the court will consider the question of granting or refusing interim injunction. Inconvenience, in the circumstances, is bound to be caused to one of the parties to the suit. Hence, it is the duty of the court to consider inconvenience of the plaintiff as against inconvenience of the defendant. If the court thinks that by refusing interim injunction, more or greater inconvenience will be caused to the plaintiff, it will grant injunction. If, on the other hand, it finds that by granting interim injunction, greater inconvenience will be caused to the defendant, it will refuse the relief. It is by considering comparative inconvenience that the court will exercise the discretion.

In the opinion of the authors, the concept is similar to “greater hardship” under Rent Laws. Several Rent Acts allow eviction decree against a tenant if the tenanted property is required by the landlord for bona fide use and occupation. Those Acts, however, require Rent Court to consider the question of ”greater hardship”. Once the landlord proves his bona fide requirement, the court will consider whether greater hardship will be caused to the landlord by refusing to pass decree or to the tenant by passing such decree. And on the basis of such consideration (greater hardship) and finding thereon, the court will make an appropriate order evicting or refusing to evict tenant. The same principle applies in granting or refusing to grant temporary or interim injunction.

Burden of proof that the inconvenience which the plaintiff will suffer by refusal of injunction is greater than that which the defendant will suffer if it is granted lies on the plaintiff.

(d) Other factors

The above principles and guidelines are merely illustrative and neither exhaustive nor absolute rules. It should not be forgotten that grant of injunction is discretionary and equitable remedy and power to grant injunction must be exercised in accordance with sound judicial principles. It is an equitable relief and even if all the above conditions are satisfied there may be other circumstances leading to a refusal to grant such a relief.

As Lord Diplock stated, “I would reiterate that, in addition to those to which I have referred, there may be many other special factors to be taken into consideration in particular circumstances of individual cases.

Thus a relief of injunction may be refused on the ground of delay, laches  or acquiescence, or where the applicant has not come with clean hands, or has suppressed material facts or where monetary compensation is adequate relief.

  

 Discretion of court

Power to grant injunction is extraordinary in nature and it can be exercised cautiously and with circumspection. A party is not entitled to this relief as a matter of right of course. Grant of injunction being equitable remedy, it is in the discretion of the court and such discretion must be exercised in favour of the plaintiff only if the court is satisfied that, unless the defendant is restrained by an order of injunction, irreparable loss or damage will be caused to the plaintiff. The Court grants such relief ex debito justitiae, i.e., to meet the ends of justice.

It is a matter of common knowledge that on many occasions even public interest suffers in view of such interim orders of injunction, because persons in whose favour such orders are passed are interested in perpetuating the contraventions made by them by delaying the final disposal of such applications. The court should be always willing to extend its hand to protect a citizen who is being wronged or is being deprived of property without any authority of law or without following procedures which are fundamental and vital in nature. But at the same time, judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the court.

In Dalpat Kumar v. Prahlad Singhl“, the Supreme Court stated, “The court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused, and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that, pending the suit, the subject-matter should be maintained in status qua, an injunction would be issued. Thus the court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.

The same considerations apply to the defendant seeking vacation of interim relief. In Gujarat Bottling Co. Ltd. v. Coca Cola Co. the defendant committed a breach of agreement by transferring shares of the plaintiff to a third party without obtaining consent or even without informing the plaintiff. The plaintiff, therefore, terminated the agreement and obtained interim injunction against the defendant restraining him from entering into an agreement with the third party. The defendant applied for vacating the interim injunction.

Rejecting the prayer, the Supreme Court observed:

“Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction under Order 39 Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad interim or temporary injunction order already granted in the pending suit or proceedings.

 Injunction which may be granted

In accordance with the above principles, interim injunction of maintaining status quo, against transfer of property, disposal of goods, making construction, effecting recovery of dues, attachment of property, appointment of receiver or commission, against prosecution, etc., can be granted by a court.

 Injunction which may not be granted

Since the power can be exercised judicially and in the public interest, no interim injunction causing administrative inconvenience or resulting in public mischief should be granted. Thus, ordinarily no injunction should be granted against recovery of tax or octroi, enforcement of contractual rights and liabilities, transfer or suspension of employees, delaying election process, interfering with inquiry or investigation, etc.

 Inherent power to grant injunction

Rule 1 of Order 39, no doubt, enumerates circumstances in which a court may grant interim injunction. It, however, nowhere provides that no temporary injunction can be granted by the court unless the case falls within the said provision. Hence, where the case is not covered by Order 39, interim injunction can be granted by the court in exercise of inherent powers under Section 151 of the Code.

 Notice: Rule 3

The court shall, before granting an injunction, give notice to the opposite party, except where it appears that the object of granting the injunction would be defeated by delay. But the proviso added by the Amendment Act of 1976 lays down that when an ex parte injunction is proposed to be given, the court has to record reasons for coming to the conclusion that the object of granting injunction would be defeated by delay. In such a situation, the court shall order the applicant to send a copy of the application and other documents immediately to the opposite party. In such a case, the court shall make an endeavour to finally dispose of the application within 30 days from the date on which the ex parte injunction was granted. Where the court finds it difficult to dispose of the application within the period of 30 days, reasons are required to be Recorded.

An order of injunction may be discharged, varied or set aside by the court on an application being made by any party dissatisfied with such order, or where such discharge, variation or setting aside has been necessitated by a change in circumstances, or where the court is satisfied that such order has caused undue hardship to the other side.

 Ex parte injunction

Rule 3 of Order 39 requires the applicant to issue a notice to the opposite party before an injunction is granted. Though the Court has the power to grant an ex parte injunction without issuing a notice or granting a hearing to the party, who will be affected by such order, the said power is to be exercised sparingly and under exceptional circumstances.

In Morgan Stanley Mutual Fund v. Kartick Dasl“, the Supreme Court indicated the factors which should weigh with a court in the grant of an ex parte injunction:

(i) whether irreparable or serious mischief will ensue to the plaintiff;

(ii) whether the refusal of ex parte injunction would involve greater injustice than grant of it would involve;

(iii) the court will also consider the time at which the plaintiff first had notice of the act complained of so that the making of an improper order against a party in his absence is prevented;

(iv) the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;

(v) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application;

(vi) even if granted, the ex parte injunction would be for a limited period of time;

(vii) general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court?“

 Recording of reasons

When the court purposes to grant ex parte injunction without issuing notice to the opposite party, proviso to Rule 3 enjoins the court to record reasons. The requirement of recording reasons is not a mere formality but a mandatory requirement. Dealing with this aspect, in Shiv Kumar v. MCD, the Supreme Court stated, The requirement for recording the reasons for grant of ex parte injunction cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why, instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and the court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far-reaching effect, as such a condition has been imposed that court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by Parliament shall be a futile exercise and that part of Rule 3 will be a surplus age for all practical purposes. Proviso to Rule 3 of Order 39 of the Code attracts the principle that, if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all.

 Imposition of conditions

Even when the court is satisfied with the case of the applicant, and is inclined to grant interim relief, it must consider the interest of the other side. The party at whose instance interim order is passed, should be made accountable for the consequences of such order. In appropriate cases, the applicant may be asked to furnish security for any increase in cost as a result of delay or damage suffered due to such interim relief. “Stay order or injunction order, if issued, must be moulded to provide for restitution.

 Doctrine of precedent

Interim orders have no precedential value and an applicant cannot claim grant of interim relief on the ground that in similar matters interim relief has been granted by the court. Judicial comity, however, requires that in similar matters, similar interim orders should normally be made.

 Trespassers

While exercising discretionary and equitable power under Order 39 or under Section 151 of the Code, the court would not grant interim injunction in favour of a trespasser as against true owner of the property. In Dalpat Kumar v. Prahlad Singhm, the Supreme Court stated, “It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession”.

 Public projects

In many cases, injunction is sought to prevent public authorities from implementing public projects. In such cases, public interest is one of the material and relevant considerations in granting or refusing the prayer for injunction. The court must consider this aspect, and even if a case is made out to grant equitable relief of granting injunction, it must adequately protect the public authority by imposing appropriate conditions on the plaintiff, including payment of compensation by him in the event of his failure in the suit.

The need of such protection has, however, to be weighed against the corresponding need of the defendant to be protected against an injunction resulting from the exercise of his own legal rights. The court must weigh one need against another and determine where the balance of convenience lies and may pass an appropriate order in exercise of its discretionary power. Public detriment should not outweigh public interest and public benefit in granting interim orders.

  

Status quo

“Status quo” means ”existing condition” or “existing state of things” at any given point of time?” The relief of status quo is as good as an injunction. Hence, principles relating to grant of injunction apply to grant of status quo also.

But the expression status quo is a term of ambiguity and at times gives rise to doubts and difficulties. Hence, it is proper for the court ordering status quo to clarify the conditions in which or subject to which the order is passed; such as, ”status quo” as in the trial court, appellate court, High Court, or on a particular day, at a particular time, etc.

 Mandatory injunction

In appropriate cases, temporary mandatory injunction can be granted by a court but such relief can be granted only in exceptional and compelling circumstances where injury complained of is immediate and is likely to cause serious prejudice to the applicant which cannot be compensated in terms of money. In other words, mandatory injunction at an interlocutory stage can be granted in rarest of rare cases. Again, mandatory induction can be granted only to restore statue quo and not to establish a new state of things.

 Scope of inquiry

While dealing with an application for interim injunction, the court is bound to consider the merits of the case. But the scope of inquiry is limited to look at and consider the case generally and to decide whether a case has been made out by the applicant for the grant of such relief. It is certainly open to the court to consider affidavits and other documents and to draw proper inferences. The court, however, is not expected to hold “mini-trial” at that stage.

 Res judicata

The doctrine of res judicata applies to different stages of the same suit or proceeding?” Hence, if interim injunction is once granted or refused by the court, the said order will operate till the disposal of the suit or throughout the proceeding. An application for granting or vacating injunction will lie if there are changed circumstances.

 Temporary injunction: Duration

Temporary injunction granted by the court pendente lite (till the disposal of the suit) comes to an end when the suit is fin ally decided. If the suit is dismissed, injunction is vacated. But even if the suit is decreed, temporary injunction comes to an end. If the suit is for permanent injunction, temporary injunction granted by the court is made perpetual or permanent as a part of decree passed by the court.

 

 

 Interim relief for limited period: Effect

Where a court grants interim injunction or relief for a limited period, it comes to an end on the expiry of that period. Normally, in such cases, the plaintiff or his advocate requests the court for extension or continuation of such relief. But in absence of specific order, it expires.

 Continuation of interim relief to approach higher court

If the object of granting interim injunction or relief is to maintain and preserve status quo of the position which was there at the time of institution of suit, there is no reason why such position should not be allowed to be continued if the aggrieved party wants to approach higher or superior court after the matter is decided by the lower court. The court at the time of deciding the matter has power to continue interim relief till the party aggrieved gets an opportunity to approach higher forum?“

 Restoration of benefits

Where a court grants interim injunction which results in injustice to the opposite party, it is not only the right but the duty of the court at the time of passing a final order to undo injustice and to restore the status quo ante.

In Director of Inspection (Intelligence) v. Vinod Kumar Didwanial, against the prohibitory orders, issued by the Income Tax Authorities, the petitioner filed a writ petition and obtained an ex parte interim order prohibiting the authorities from enforcing the orders. The petitioner then ‘removed his goods under the ex parte order and withdrew the petition.

Holding that the process of law was completely abused for the purpose of gaining an undeserved benefit, the Supreme Court held that the petitioner could not be allowed to derive an undue advantage from the situation.  Restoration of benefits, in appropriate cases, may include payment of costs, difference of price, damages, etc?”

 Non-compliance with interim order

An order passed by a competent court—interim or Final—has to be obeyed without any reservation. If the party against whom such order is passed feels that it is not according to law, he can take appropriate steps to get it vacated modified or set aside. He, however, cannot refuse to obey such order. Intentional disobedience of the direction of the court would constitute contempt of court. If a person has not obeyed the order of the court, the court may also refuse to hear him on merits.

 Appeal

An order granting or refusing to grant injunction is subject to appeal. Where ex parte relief is granted by the court and the application is not decided within thirty days, the aggrieved party may prefer an appeal against such an order.

 

Revision

An order granting or refusing an injunction is a “case decided” within the meaning of Section 115 of the Code and, hence, a revision lies against such an order.

 Writ petition

In case where no appeal or revision lies against an order granting or refusing temporary injunction, a writ petition under Article 226 or 227 is always maintainable

 Supreme Court

Normally, in exercise of power under Article 136 of the Constitution, the Supreme Court does not interfere with interim “orders passed by the High Courts unless there is manifest injustice or justice, equity and good conscience require interference by the Apex Court.

 Breach of injunction: Rule 2-A

Section 94(c) and Rule 2-A of Order 39 provide for the consequences resulting from a disobedience or breach of an order of injunction issued by the court. The penalty may be either arrest of the opponent or attachment of his property or both. However, the detention in civil prison shall not exceed three months and the attachment of property shall not remain in force for more than one year.‘°5 If the disobedience or breach continues, the property attached may be sold and, out of the proceeds, the court may award such compensation as it thinks fit to the injured party. The transferee court can also exercise this power and can punish for breach of injunction granted by the transferor court.

 Injunction on insufficient grounds: Section 95

Where in any suit in which an order of temporary injunction has been obtained by the plaintiff on insufficient grounds, or where the suit of the plaintiff fails and it appears to the court that there was no reasonable or probable ground for instituting it, on application being made by the defendant, the court may order the plaintiff to pay such amount, not exceeding fifty thousand rupees, as it deems to be a reasonable compensation to the defendant for the expense or injury including injury to reputation caused to him.

 INTERLOCUTORY ORDERS: ORDER 39 RULES 6-10

Rules 6 to 10 of Order 39 provide for making certain interlocutory orders. The court has power to order sale of perishable property in certain circumstances.

It can also order for detention, preservation or inspection of any property which is the subject-matter of such suit. For that purpose it can authorise any person to enter upon or into any land or building in the possession of any party for taking, samples or making observations or trying experiments. However, before making such orders the court shall give notice to the opposite party except where it appears that the object of making such orders would be defeated by the delay.

Where the suit land is liable to payment of revenue to government and the party in possession of such land neglects to pay revenue, any other party to the suit claiming an interest in such land may, on payment of the revenue, be put in immediate possession of the property. The court may award in the decree the amount so paid with interest thereon against the default

Where a party to a suit admits that he holds money as a trustee for another party, the court may order him to deposit such amount in court.

 RECEIVER: ORDER 40

  • The term “receiver” is not defined in the Code of Civil Procedure.
  • According to Kerr, he is an impartial person “appointed by the court to collect and receive, pending the proceedings, the rents, issues and profits of land, or personal estate, which it does not seem reasonable to the court that either party should collect or receive, or for enabling the same to be distributed among the persons entitled”.
  • In other words, he is an independent person between the parties to a cause, appointed by the court to receive and preserve the property or fund in litigation pendente lite, when it does not seem reasonable to the court that either party should hold it.

 Object

  • The primary object of appointment of receiver is to protect, preserve and manage the property during the pendency of the litigation.
  • A receiver is an officer and is an extended arm and hand of the court, a part of court machinery by which the rights of the parties are protected.
  • The purpose of appointment of receiver is to preserve the suit property and safeguard interests of both the parties to the suit.

 Discretion of court

Appointment of receiver is in the discretion of the court. But the mode of appointment of receiver is recognised as one of the harshest remedies for the protection and enforcement of rights of the parties and it should be allowed in extreme cases and in the circumstances where the interests of justice require such power to be exercised.

Appointment: Rule 1(a)

Where it appears to the court to be just and convenient, it may appoint a receiver. The principles followed by the Chancery Courts in England for the appointment of receivers are adopted by Indian courts also. Courts in India have very wide jurisdiction to appoint as well as to remove a receiver in the exercise of their discretion. The discretion, however, is not absolute, arbitrary and unregulated.

It is a sound and judicial discretion and must be exercised cautiously, judicially and after taking into account all the circumstances of the case for the purpose of serving the ends of justice and protecting the rights of all the parties interested in the controversy.

 Principles

The following principles must be borne in mind before a receiver is appointed by a court.

(i) The appointment of a receiver is a discretionary power of the court.

(ii) It is a protective relief. The object is preservation of the property in dispute pending a judicial determination of the rights of the parties to it.

(iii) A receiver should not be appointed unless the plaintiff prima facie proves that he has very excellent chance of succeeding in the suit.

(iv) It is one of the harshest remedies which the law provides for the enforcement of rights, and therefore, should not be lightly resorted to. Since it deprives the opposite party possession of property before a final judgment is pronounced, it should only be granted for the prevention of a manifest wrong or, injury. A court will never appoint a receiver merely on the ground that it will do no harm.

(v) Generally, an order appointing a receiver will not be made where it has the effect of depriving the defendant of ,a de facto possession, since that might cause irreparable loss to him. But if the property is shown to be in media, that is to say, in enjoyment of no one, it will be in the common interest of all the parties to appoint a receiver.

(vi) The court should look at the conduct of the party who makes an application for appointment of a receiver. He must come with clean hands and should not have disentitled himself to this equitable relief by laches, delay or acquiescence.

 Who may apply?

Generally, an application for appointment of receiver is made by the plaintiff in a properly constituted suit. But a defendant may also apply for appointment of receiver if it is just and convenient”. Normally, a stranger or a third party cannot apply for appointment of receiver. But if he is interested in realization, management, protection, preservation or improvement of property, he may also make such application. A court may also exercise suo motu power to appoint a receiver, “though a contrary view has also been taken.

 Who may appoint receiver?

A receiver may be appointed by the court before which the proceedings are pending. Thus, in case of a suit, receiver can be appointed by the trial court. Where an appeal is preferred against the decree passed by the trial court, it is the appellate court which has power to appoint receiver. A court, however, cannot appoint a receiver suo motu.

Who may be appointed as receiver?

A person who is independent, impartial and totally disinterested should normally be appointed as receiver. Generally, a party to the suit (plaintiff or defendant) should not be appointed as receiver by the court. But the rule is not rigid or inflexible. In exceptional circumstances or for special reasons, a party to a suit or proceeding can also be appointed as receiver.

Notice

The Code does not provide for issue of notice before appointment of receiver by the court. On principles also, notice to opposite party cannot be held to be indispensable. In some cases, the very object of appointment of receiver may be defeated if notice to opposite party is insisted upon.

It has, therefore, been held that in urgent cases or emergent situations, ex parte order of appointment of receiver can be made, but final order can only be passed after hearing the parties?” This is also in consonance with the doctrine of audi alteram partem (“hear the other side”).

 Duration

The Code does not prescribe any time limit or duration for receivership. It may, however, be stated that where a receiver is appointed for a limited period, his appointment comes to an end on expiration of that period. If the appointment is until judgment or decree, it is brought to an end by judgment or decree. The court has ample power to continue the receiver even after final decree if the exigencies of the case so require.

Powers: Rule 1(d)

A receiver is an officer or representative of the court and he functions under its directions. The court may confer upon the receiver any of the following powers:

(i) To institute and defend suits;

(ii) To realize, manage, protect, preserve and improve the property;

(iii) To collect, apply and dispose of the rents and profits;

(iv) to execute documents; or

(v) such of these powers as it thinks fit.

But he has no power except such as are conferred upon him by the order by which he was appointed. It is open to a court not to confer all of the above powers. They are conditioned by the terms of his appointment. But even when full powers are conferred on him, he should take the advice of the court in all important matters if he wants to protect himself.

A receiver cannot sue or be sued without the leave of the court. However, grant of leave is the rule and refusal an exception?” But if the suit is filed without such leave, it is liable to be dismissed. If the decree is passed in such suit, it can be set aside. No such sanction is, how- ever, necessary to prosecute the receiver for a criminal offence alleged to have been committed by him by abusing his authority as receiver.

Since he is custodia legis, any obstruction or interference by anyone with his possession without the leave of the court is interference with the court’s proceedings and is liable for contempt of court?” Property in the hands of a receiver cannot be attached without the leave of the court.

A receiver is entitled to the remuneration fixed by the court for the services rendered by him?” A receiver is entitled to be indemnified for the debts incurred or contracts entered into by him in the course of management of the estate. The status of a receiver has been appropriately explained in the leading case of Iagat Tarini Dasi v. Naba Gopal Chakiw in the following words:

“The receiver is appointed for the benefit of all concerned; he is the representative of the court, and of all parties interested in the litigation, wherein he is appointed. He is the right arm of the court in exercising the jurisdiction invoked in such cases for administering the property; the court can only administer through a receiver. For this reason, all suits to collect or obtain possession of the property must be prosecuted by the receiver, and the proceeds received and controlled by him alone.

 Duties: Rule 3

A receiver has to furnish such security, as the court thinks fit, duly to account for what he shall receive in respect of the property. He has to submit accounts for such period and in such forms as the court directs. He has to pay the amount due from him as per the direction of the court.  Being a representative of the court, he is bound to discharge his duties personally and cannot delegate or assign any of his rights or duties entrusted to him by the court.

 Liabilities: Rule 4

If the receiver fails to submit accounts, or fails to pay the amount due, or occasions loss to the property by his willful default or negligence, the court may direct his property to be attached and sold and make good any amount found to be due from him?” A receiver is bound to exercise the same diligence in keeping down expenses and in caring for the estate in his possession as a prudent man would observe in connection with his own property under similar circumstances. Thus, he is not only responsible for sums actually received by him but also for all sums which he might have received but for his default or negligence. Where he fails to pay the amount ordered by the court, the court would be justified in directing the attachment and sale of his property. The court has also an inherent power to remove the receiver appointed by it, when he does not comply with the orders of the court or abuses his powers or authority.

 Appeal

An order appointing or refusing to appoint a receiver is appealable.

 Revision

An order passed on an application for appointment of receiver by allowing the application or rejecting such application is a “case decided” within the meaning of Section 115 of the Code. Hence, where no appeal lies, a revision is competent and maintainable.

PAHUJA LAW ACADEMY

INTERIM

PRELIMINARY QUESTIONS

 

  1. Attachment before judgment can be ordered

(a) under Order XXXVIII, Rule 1 of CPC

(b) under Order XXXVIII, Rule 3 of CPC

(c) under Order XXXVIII, Rule 5 of CPC

(d) under Order XXXVIII, Rule 7 of CPC.

 

  1. Attachment before judgment can be removed under Order XXXVIII, Rule 9 of CPC

(a) on dismissal of the suit

(b) on furnishing of security required by the defendant

(c) on (a) and (b) both

(d) only (a) & not (b).

 

  1. Attachment before judgment, in a suit dismissed in default

(a) revives automatically on the restoration of the suit

(b) does not revive automatically on the restoration of the suit

(c) may or may not revive depending on the facts & circumstances of the case

(d) neither (a) nor (b).

 

  1. Civil Procedure Code provides for

(a) temporary injunction

(b) permanent injunction

(c) mandatory injunction

(d) all the above

 

  1. Temporary injunction can be granted

(a) under Order XXXIX, Rule 1 of CPC

(b) under Order XXXIX, Rule 2 of CPC

(c) under Order XXXIX, Rule 3 of CPC

(d) under Order XXXIX, Rule 4 of CPC

 

  1. Injunction to restrain repetition or continuance of breach is provided

(a) under Order XXXIX, Rule 1 of CPC

(b) under Order XXXIX, Rule 2 of CPC

(c) under Order XXXIX, Rule 3 of CPC

(d) under Order XXXIX, Rule 5 of CPC.

 

  1. A temporary injunction can be granted to a party establishing

(a) a prima facie case in his favour

(b) balance of convenience in his favour

(c) irreparable injury to him in the event of non-grant of injunction

(d) all the above.

 

  1. Temporary injunction can be granted

(a) ex parte

(b) only after service of notice to the other party

(c) only after hearing both the parties

(d) all the above.

 

  1. Consequences of disobedience or breach of injunction have been provided

(a) Under Order XXXIX, Rule 2A of CPC

(b) Under Order XXXIX, Rule 2 of CPC

(c) Under Order XXXIX, Rule 3 of CPC

(d) Under Order XXXIX, Rule 5 of CPC.

 

  1. Under Order XXXIX, Rule 2A, a person guilty of disobedience or breach can be penalized by

(a) attachment of property

(b) detention in civil imprisonment

(c) either (a) or (b) or both

(d) only (a) & not (b).

 

  1. Appointment of a receiver

(a) Can be claimed as a matter of right

(b) is mandatory

(c) is discretionary

(d) is prohibitory.

 

  1. A receiver

(a) Can be sued generally for acts done in his official capacity by a third party.

(b) Cannot be sued at all for acts done in his official capacity by a third party.

(c) Can sue and can be sued or acts done in his official capacity by a third party only with the leave of the court appointing him.

(d) Can sue without the leave of the court but cannot be sued without the leave of the court appointing him.

 

  1. Which of the following is incorrect

(a) Property in the hands of the receiver cannot be attached without the permission of the court appointing him

(b) Receiver can purchase the property in respect of which he has been appointed as receiver

(c) if the receiver fails to account for the gain & loss and loss ensued by his conduct, the loss so occasioned can be made good by attaching and sale of receivers’ personal property

(d) All the above.

 

  1. If anyone interferes with the possession of the receiver appointed under Order XL of CPC, contempt proceedings against such a person can be initiated by

(a) The court

(b) The receiver or a party to the suit

(c) The receiver only

(d) Either (a) or (c).

 

  1. A receiver can be appointed for better custody or management of

(a) Movable property

(b) Immovable property

(c) Both (a) and (b)

(d) Only (b) & not (a).

PAHUJA LAW ACADEMY

FRAME OF SUIT

Inclusion of whole claim: Rules 1-2

Every suit must include the whole of the plaintiff’s claim in respect of the cause of action, and, as far as practicable, all matters in dispute between the parties be disposed of finally. The intention of the legislature underlying the provisions appears to be that as far as possible all matters in dispute between the parties relating to the same cause of action should be disposed of in the same suit ‘so as to prevent further litigation.

“As far as practicable”

The words “as far as practicable” indicate that each case the court will have to see whether it was practicable for the plaintiff so to frame his suit as to include a cause of action which he had omitted or intentionally relinquished. Thus, this provision is more in the nature of a general policy statement than a mandatory requirement.

Splitting of claim

Order 2 Rule 2 lays down that every suit must include the whole of the claim to which the plaintiff is entitled in respect of the cause of action and where the plaintiff omits to sue for or intentionally relinquishes any portion of his claim, he shall not afterwards be allowed to sue; in respect of the portion so omitted or relinquished.

 Object

The provision of Order 2 Rule 2 is based on the cardinal principle of law that a defendant should not be vexed twice for the same cause.

The principle contained in this provision is designed to counteract two evils, (i) splitting up of claims and (ii) splitting up of remedies.

In Naba Kumar v. Rudhashyam, the Privy Council stated, “The rule in question is intended to deal with the vice of splitting a cause of action. It provides that a suit must include the whole of any claim which the plaintiff is entitled to make in respect of the cause of action on which he sues, and that if he omits (except with the leave of the court) to sue for any relief to which his cause of action would entitle him, he cannot” claim it in a subsequent suit. The object of this salutary rule is doubtless to prevent multiplicity of suits.”

(emphasis supplied)

The Supreme Court has also stated that Order 2 Rule 2 is based on cardinal principal that the defendant should not be vexed twice for the same cause

 

Order 2 Rule 2 and res judicata

Interpretation

The provisions of Order 2 Rule 2 are penal in nature and divestive in effect. They should, therefore, be construed strictly. A plea of Order 2 Rule 2 is highly technical and deprives a party to a legitimate right otherwise available to him. Hence, it should not be lightly upheld.” Such plea should be raised at the earliest opportunity.”

Illustrations

Let us consider few illustrative cases to understand the principle.

(1) A lets a house to B at a yearly rent of Rs 1200. 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 the year 1906. A shall not afterwards sue B for the rent due for 1905 or 1907.

(2) A advances loan of Rs 2200 to B. To bring the suit within the jurisdiction of court X, A sues B for Rs 2000 only. A cannot afterwards sue for Rs 200.

(3) A sues B for Rs 200. Against this claim, B claims set-off for Rs 200

Being part of Rs. 1200 due to B by A but omits to counterclaim the balance of Rs. 1000. B cannot afterwards sue A for Rs 1000

(4) A sues B for possession alleging that B is tenant in arrears. The suit is dismissed on the ground that B is mortgagee in possession. A subsequent suit by A against B for redemption is not barred.

Conditions

To make the rule applicable, the following three conditions must be satisfied, namely:

  • The second suit must be in respect of the same cause of action as that on which the previous suit was based;
  • In respect of that cause of action, the plaintiff was entitled to more than one relief; and
  • In being thus entitled to more than one relief, the plaintiff without leave of the court omitted to sue for the relief for which the second suit has been filed.

In other words, before the bar of Order 2 Rule 2 is invoked, the following three questions should be asked:

  • Whether the cause of action in the previous suit and the subsequent suit is identical?
  • Whether the relief claimed in the subsequent suit could have been given in the previous suit on the basis of the pleadings made in the plaint?
  • Whether the plaintiff omitted to sue for a particular relief on the cause of action which has been disclosed in the previous suit?

Same cause of action

In order to apply the provisions of Order 2 Rule 2 to bar the second suit, it must be proved that the second suit must have been based on the same cause of action on which the previous suit was based. Unless this condition is fulfilled, there could be no bar to the subsequent suit. Unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based, there would be no scope for the application of the bar of Order 2 Rule 23. The cause of action should not merely be similar, but it must be the same.

As Mulla states, “This rule does not require that when several causes of action arise from one transaction, the plaintiff should sue for all of them in one suit. What the rule lays down is that there is one entire cause of action, the plaintiff cannot split the cause of action into parts so as to bring separate suits in respect of those parts.” When the subsequent suit is based on a cause of action different from that in the first suit, the subsequent suit is not barred. The rough test, although not a conclusive one, as to whether the cause of action in a subsequent suit is the same as that in the former suit, is to see whether the same evidence will sustain both the suits.

What the rule requires is the unity of all claims based on the same cause of action in one suit. It does not contemplate unity of distinct and separate causes of action. If the subsequent suit is based on a different cause of action, the rule will not operate. The rule is directed to securing the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action of different causes of action, even though they arise from the same transaction.

One of the tests is whether the claim in the subsequent suit is in fact founded upon a cause of action distinct from that which was the foundation of the former suit. If the answer is in the affirmative, the bar does not apply.

Thus, where the rent of several years is in arrears and the plaintiff claims the rent of only one year, he cannot subsequently sue for the rent of other years. Similarly, a suit for specific performance of a contract bars a subsequent suit for damages for failure to perform the said contract. But the dismissal of a suit for specific performance of a contract to transfer land is no bar to a suit for the return of the consideration money. So also, a suit to eject the defendant on the basis of a lease is no bar to a suit based on title. The dismissal of a suit for enhancement of rent is no bar to a suit for recovery of rent originally fixed.

Like res judicata, a plea of bar of Order 2 Rule 2 must be established by the defendant by placing before the court, the plaint of the previous suit and other evidence for proving the identity of cause of action in both the suits. The court cannot take cognizance of such plea suo motu.

One of several reliefs

The rule applies only where the plaintiff is entitled to more than one relief in respect of the same cause of action and he omits to sue for all such reliefs.

Thus, where the plaintiff files a suit for damages for breach of contract and omits to claim a portion of damages for which he is entitled, a subsequent suit for such portion is barred. Similarly, a suit by a coparcener challenging the mortgage of certain coparcenary properties is a bar to a subsequent suit in respect of other properties included in the same mortgage transaction. Such relinquishment of claim need not be express. It may be implied in the conduct of the plaintiff.”°

This rule, however, does not apply when the right to relief in respect of which a subsequent suit is brought, did not exist at the time of the previous suit, or in the earlier suit the petitioner could not have claimed the relief which he sought in the subsequent suit?

As stated by the Privy Council“, if a particular cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he is precluded from claiming the balance by instituting independent proceedings. ”The crux of the matter is presence or lack of awareness of the right at the time of the first suit.” A right which a litigant did not know or a right which was not in existence at the time of the first suit, could hardly be regarded as a “portion of his claim” within the meaning of Order 2 Rule 2.1”

Leave of court

The rule applies only when leave of the court is not obtained. Therefore, If the omission has been with the permission of the court, the subsequent suit for the same relief in respect of the same cause of action is not barred. 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 power to grant leave is discretionary, and, normally, exercise of such discretion will not be interfered with by a superior court. The question whether leave should be granted or not will depend upon the facts and circumstances of each case and no rule of universal application can be laid down.“

Test

The test for finding out whether a subsequent suit be barred because of the previous suit is whether the claim in the second suit is in fact, founded on a cause of action which was the foundation of the former suit. If the answer is in the affirmative, the bar of Order 2 Rule 2 would apply. But if it is in the negative, it would not be attracted?

Principles

In Mohd. Khalil v. Mahbub Ali,” after considering several cases on the point, the Privy Council laid down the following principles governing bar to a subsequent suit under this rule:

(1) The correct test in cases falling under Order 2 Rule 2, is ”whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation of the former suit”.

(2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment.

(3) If the evidence to support the two claims is different, then the causes of action are also different.

(4) The causes of action in the two suits may be considered to be the same if in substance they are identical.

(5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers  to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour?”

Applicability to other proceedings

The provisions of Order 2 Rule 2 apply only to suits and not to appeals, execution proceedings, arbitration proceedings or to a petition under Article 226 of the Constitution of India?”

Joinder of claims: Rules 4-5

Rules 4 and 5 provide for joinder of claims. Rule 4 lays down that in a suit for the recovery of immovable property, a plaintiff is not entitled, without the leave of the court, to join any claim, except:

(a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof;

(b) claims for damages for breach of any contract under which the property or any part thereof is held; and

(c) claims in which the relief sought is based on the same cause of action.

Rule 5 deals with suits by or against three classes of persons, viz., executors, administrators and heirs. It provides that no claim by or against the aforesaid persons in their representative capacity shall be joined with claims by or against them personally in the same suit, except:

(a) where the personal claims arise with reference to the estate he represents; or

(b) where he was entitled to or liable for, those claims jointly with the deceased whom he represents.

The primary object of these provisions is to prevent a representative from intermingling the assets of his testator with his own estates.

Joinder of causes of action: Rules 3, 6

Rule 3 deals with joinder of causes of action. This rule enables joinder of several causes of action in one suit in certain circumstances subject to the provisions of the Code. (Rules 4 and 5 of Order 2 and Rules 1 and 3 of Order 1.) It contemplates the following four types of situations:

  • One plaintiff, one defendant and several causes of action

Where there is only one plaintiff and one defendant, the plaintiff is at liberty to unite in the same suit several causes of action. But if it appears to the court that the joinder of causes of action may embarrass or delay the trial or is otherwise inconvenient, the court may order separate trials?

(ii) Joinder of plaintiffs and causes of action

Where there are two or more plaintiffs and several causes of action, the plaintiffs may unite such causes of action in one suit against the same defendant if they all are jointly interested. But this provision must be 124. R. 6. read with Order 1 Rule 1. Thus, where there are two or more plaintiffs and two or more causes of action, they may be joined in one suit only if the following two conditions are fulfilled:

(1) The causes of action must have arisen from the same act or transaction; and

(2) Common questions of law or fact must have been involved.

Therefore, where the plaintiffs are not jointly interested in several causes of action which have been joined in one suit and the right to relief does not arise from the same act or transaction or where common questions of law or fact are not involved, the suit will be bad for mis-joinder of plaintiffs and causes of action.

Joinder of defendants and causes of action

Where there is one plaintiff and two or more defendants and several causes of action, the plaintiff may unite in the same suit several causes of action against those defendants, if the defendants are jointly interested in the causes of action. But this provision also must be read subject to Order 1 Rule 3, and therefore, two or more defendants can be joined in one suit, provided the following two conditions are fulfilled:

(1) The relief claimed must have been based on the same act or transaction; and

(2) Common questions of law or fact must have been involved.

Where, in one suit, two or more defendants have been joined against whom the causes of action are separate and therefore they are not jointly liable to the plaintiff in respect of those causes of action and the right to relief claimed is not based on the same act or transaction or where common questions of fact or law are not involved, the suit will be bad for mis-joinder of defendants and causes of action, technically called as multifariousness.

Joinder of plaintiffs, defendants and causes of action

Where there are two or more plaintiffs, two or more defendants and several causes of action, the plaintiffs may unite the causes of action against the defendants in the same suit only when all the plaintiffs are jointly interested in the causes of action and the defendants are also jointly interested in the causes of action. If the plaintiffs are not jointly interested in the causes of action, the suit will be bad for mis-joinder of plaintiffs and causes of action. On the other hand, if the defendants are not jointly interested in the causes of action, the suit will be bad for multifariousness. And if neither the plaintiffs nor the defendants are jointly interested in the causes of action, the suit will be bad for double mis- joinder, i.e. mis-joinder of plaintiffs and causes of action and mis-joinder of defendants and causes of action.

Objections as to mis-joinder of causes of action: Rule 7

All objections on the ground of mis-joinder of causes of action must be taken at the earliest opportunity, otherwise they will be deemed to have been waived?” Similarly, no decree or order under Section 47 of the Code can be reversed or substantially varied in appeal, inter alia, on account of any mis-joinder or non-joinder of causes of action not affecting the merits of the case or the jurisdiction of the court.

INSTITUTION OF SUIT: ORDER 4

General

Section 26 and Order 4 provide for institution of suits. Order 1 deals with parties to a suit. It also contains provisions for addition, deletion and substitution of parties, joinder, non-joinder and mis-joinder of parties and objection as to non-joinder and mis-joinder. Order 2 lays down rules relating to frame of suit, splitting and joinder of claims, joinder of causes of action and objections as to mis-joinder.

Plaint: Meaning

The expression “plaint” has not been defined in the Code, but it means a private memorial tendered to a court in which a person sets forth his cause of action; the exhibition of an action in writing.

Presentation of plaint: Section 26; Order 4 Rule 1

Every suit must be instituted by the presentation of a plaint in duplicate or in such other manner as may be prescribed by the Codem by the plaintiff himself or by his advocate or by his recognized agent or by any person duly authorised by him. Therefore, generally, a proceeding which does not commence with a plaint is not a “suit”.

Time and place of presentation

A plaint must be presented to the court or such officer as it appoints in that behalf? 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 he is not bound to accept it. But if not too inconvenient, 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?

Particulars in plaint

Every plaint must contain necessary particulars.

  

Register of suits

Particulars of every suit will be entered in the register of civil suits? After the plaint is presented, it will be scrutinized by the Stamp Reporter. If there are defects, they will be removed by the plaintiff or his advocate. The suit will thereafter be numbered?”

Suit by indigent persons

Order 33 of the Code deals with suits by indigent persons (paupers).

Suit against minor

A suit against a minor can be said to have been instituted when a plaint is presented and not when a guardian ad litem is appointed?”

Suit against dead person

According to one view, a suit against a person who is dead at the time of institution thereof is non est and of no legal effect. According to the other view, however, such suit is not void ab initio and can be continued against legal representatives of deceased defendant if they have been brought on record in accordance with law. Thus, if a suit is filed against a dead person by the plaintiff without the knowledge about the death of the defendant and takes prompt action as soon as he comes to know about such death, then he cannot be deprived of his remedy against the legal representatives of the deceased defendant?“

 

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

First Hearing

Mains questions

  1. Write short notes on the following
  • Premature discovery
  • Interrogatories
  • Discovery

 

  1. What is an issue?

 

  1. Write the procedure to frame the issues?

 

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

First Hearing

GENERAL

The plaint and written statement constitute “pleadings”. The dispute between the parties thus becomes clear. The court thereafter in the light of pleadings of the parties will frame “issues”. Order 10 enjoins the court to examine parties with a view to ascertaining matters in controversy in the suit. Order 14 deals with issues. It is the third important stage after presentation of the plaint by the plaintiff and filing of written statement by the defendant. It is known as the “first hearing”. Order 15 enables the court to pronounce judgment at the “first hearing” in certain cases.

FIRST HEARING: MEANING

  • The expression first hearing” has not been defined in the Code. The first hearing of a suit means the day on which the court goes into the pleadings of the parties in order to understand their contentions.
  • In cases in which no issues need be framed, e.g., a small cause suit, the first hearing would be the day on which the trial starts.
  • Thus, the day on which the court applies its mind to the case either for framing issues or for taking evidence can be said to be “the first day of hearing of the suit. To put it differently, “first hearing” is the date when, for the first time, the case is called out for hearing and really gone into” and not the date when the case was fixed for hearing but was not gone into.
  • In Siraj Ahmad v. Prem Naths, the Supreme Court stated, The date of first hearing of a suit under the Code is ordinarily understood to be the date on which the court proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in the documents filed by them for the purpose of framing the issues to be decided in the suit.
  • Order 10 Rule 1 provides that the court shall, at the first hearing of the suit, ascertain from each party or his pleader whether he admits or denies such allegations or facts as are made in the plaint or in the written statement, if any, of the opposite party.
  • After recording admissions and denials, the court shall direct the parties to the suit to settle the matter out of court through conciliation, arbitration, mediation or Lok Adalat. If there is no settlement, the case will again be referred to the court.
  • Rule 2 provides for oral examination of the parties to the suit with a view to elucidating matters in controversy in the suit.

ISSUE: MEANING

  • According to the dictionary meaning, “issue” means a point in question; an important subject of debate, disagreement, discussion, argument or litigation.
  • In other words, an issue is that which, if decided in favour of the plaintiff, will in itself give a right to relief; and if decided in favour of the defendant, will in itself be a defence. The point or points on which pleadings contests or contradicts averments or assertions of the other party, which needs determination of a question by a court for one side or the other is an “issue”.

FRAMING OF ISSUES: ORDER 14 RULE 1

Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence . Each material proposition affirmed by one party and denied by the other shall form the subject matter of a distinct issue.

KINDS OF ISSUES: RULES 1-2

Rule 1(4) enacts that issues are of two kinds: (a) issues of fact and (b) issues of law. Issues, however, may be mixed issues of fact and law.

Rule 2(1) of Order 14 provides that where issues both of law and fact arise in the same suit, notwithstanding that a case may be disposed of on a preliminary issue, the court should pronounce judgment on all issues. But if the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first, if that issue relates to (i) the jurisdiction of the court; or (ii) a bar to the suit created by any law for the time being in force. For that purpose, the court may, if it thinks fit, postpone the settlement of the other issues until the issues of law have been decided.

IMPORTANCE OF ISSUES

Issues are the backbone of a suit. The framing of issues, therefore, has a very important bearing on the trial and decision of a case.

Firstly, it is the issues framed and not the pleadings that guide the parties in the matter of leading evidence.

Secondly, the court cannot refuse to decide the point on which an issue has been framed and evidence led by the parties, even if the point involved is not mentioned in the pleadings.

Thirdly, the court should not frame an issue which does not arise in the pleadings.

Fourthly, the issues must be confined to the material questions of fact or law (facta probanda) and not on subordinate facts or evidence by which material questions of fact or law are proved or disproved (facta probantia).“

Fifthly, one issue should cover only one fact or law in dispute between the parties.

Finally, if the case goes in appeal, it must be dealt with by the appellate court on the issues settled for trial. After the amendment in the Code in 1976, all issues should normally be tried at the suit and decided at one and the same time.” It is, therefore, essential to the right decision of a case that appropriate issues should be framed.

 

 

COURT’S POWER AND DUTY AS TO ISSUES

  • The duty to frame proper issues rests primarily on the court. The judge must apply his mind and understand the facts of the case before framing issues. But the pleaders appearing for both the parties also should assist the court in framing issues.
  • If proper issues are not framed, the parties may move the court to get the proper issues framed.
  • Issues must be specific and clear and not vague or evasive. The court may examine witnesses or inspect documents before framing issues, to amend the issues, to frame additional issues or to strike out issues that may appear to it to be wrongly framed. Where the parties to a suit agree as to the question of fact or law to be decided between them, they may, by agreement state the same in the form of an issue. If the court is satisfied that the agreement is executed in good faith, it may pronounce the judgment on such issue according to the terms of the agreement.”
  • In framing issues a great deal depends upon literary skill of the Presiding Officer. Many of them do not possess such skill is a matter of fact and a ground reality. Hence, if on a fair reading, it is possible to ascertain what was intended to be conveyed, appellate court should not interfere with the decision.

MATERIALS FOR FRAMING ISSUES: RULE 3

The court may frame issues from all or any of the following materials:

  • Allegations made on oath by the parties, or by any persons present on their behalf, or statements made by the pleaders appearing for the parties;

(b) Allegations made in the pleadings or in answers to interrogatories; and

(c) Documents produced by the parties.

OMISSION TO FRAME ISSUES

Even though it is the duty of the court to frame proper issues, mere omission to frame an issue is not necessarily fatal to the suit. Omission to frame an issue is an irregularity which may or may not be a material one. If such omission affects the disposal of the suit on merits, the case must be remanded to the trial court for a fresh trial. On the other hand, where the parties went to trial with full knowledge that a particular point was at issue, they have not been prejudiced and substantial justice has been done, absence of an issue is not fatal to the case so as to vitiate the proceedings.

DISPOSAL OF SUIT: ORDER 15

The court may at once pronounce a judgment in the following cases:

(1) Where the parties are not at issue on any question of law or fact.

(2) Where there are two or more defendants and any one of them admits the claim of the plaintiff, the court may pronounce judgment against such defendant. (On such pronouncement of judgment, a decree shall follow.) A suit will then proceed against other defendants.

(3) Where the summons has been issued for the final disposal of the suit and either party fails without sufficient cause to produce the evidence on which he relies.

(4) Where a party or his pleader makes certain admissions of facts which are sufficient to dispose of the case.

(5) Where after the issues have been framed, the court is satisfied that no further argument or evidence is required.

 

DISCOVERY, INSPECTION AND PRODUCTION OF DOCUMENTS

After the plaint has been presented by the plaintiff and the written statement by the defendant in court, it may appear either to the plaintiff or to the defendant that the nature of his opponent’s case is not sufficiently disclosed in his pleadings. He is entitled to know beforehand all material facts constituting the case of the opposite party and all documents in his possession or power relevant to the issue in the suit with a view to maintain his case or to meet with, impeach or destroy the case of his adversary at the hearing. This does not, however, mean that a party to a suit has a right to know beforehand the evidence of his opponent, for if it were allowed, an unscrupulous litigant may try to destroy it so as to defeat the ends of justice.

As stated above, every suit contemplates two sets of facts, namely,

  • the facts which constitute a party’s case (facta probanda) and
  • the facts by which the said case is to be proved (facta probantia).

The first set of facts discloses the nature of a party’s case and the second set forms the evidence of his case. A party is entitled to know beforehand only the first set of facts.

The following provisions have been made in the Code for the said purpose:

(1) Discovery and inspection: Order 11.

(2) Admissions: Order 12.

(3) Production, impounding and return of documents: Order 13; and

(4) Affidavits: Order 19.

 

DISCOVERY AND INSPECTION: ORDER 11

  • “Discovery” means to compel the opposite party to disclose what he has in his possession or power. It is thus a compulsory disclosure by a party to an action of facts or documents on which the other side wishes to rely.
  • After the settlement of issues, a party to a suit may require information from his adversary as to facts or as to documents in possession or power of such party, relevant to the issue in the suit.
  • Where information as to facts is required, the party is allowed to put a series of questions to his adversary. These questions are called interrogatories.
  • The judge will go through the proposed questions and, if he considers them proper, he will compel the other side to answer them on oath before trial. This is called discovery of facts.
  • On the other hand, if information as to documents is required, the party may apply for an order compelling the other party to submit a list of the relevant documents in his possession or power, and, in certain circumstances, for permission to inspect and take copies of those documents. This is known as discovery of documents.

Interrogatories: Rules 1-11

”Interrogatory” means to ask questions or to make inquiry closely or thoroughly.’ Where a party to a suit requires information as to facts from the opposite party, he may administer to his adversary a series of questions. Those questions are called interrogatories. They are delivered in order to ascertain the nature of his opponent’s case either for the purpose of proving or supporting his case or for impeaching or destroying the case of the other side.

Object

The object of interrogatories is twofold:

  • firstly, to know the nature of the case of the opponent; and
  • secondly, to support his own case, either

(a) directly, by obtaining admissions; or

(b) indirectly, by impeaching or destructing the case of his opponent.‘

In other words, the primary object underlying this procedure is to narrow the points in issue, to save expense by enabling a party to obtain from his opponent information as to material facts and to get his admissions on any matters in question in the suit which otherwise would have to be proved by evidence. The power to allow interrogatories should be exercised liberally without being restricted by technicalities.

Who may administer interrogatories?

Interrogatories may be administered by one party to a suit to the other party. Thus, a plaintiff may administer interrogatories to a defendant. Likewise, a defendant may administer interrogatories to a plaintiff. In exceptional cases, a plaintiff may administer interrogatories to a co-plaintiff or a defendant may administer interrogatories to a co-defendant.

Against whom interrogatories may be allowed?

Generally, interrogatories may be delivered to a party to a suit. Hence, interrogatories may be allowed against plaintiff or defendant. It may, however, happen that a person may not be arrayed as a party to a suit, but in substance and in reality, he may be a party; e.g. in a suit by an agent, a principal is really the plaintiff. An order of interrogatories, hence, may be obtained against him. An order of interrogatories may be made against the Government. Where a party to a suit is a minor, lunatic or of unsound mind, interrogatories may be served on his next friend or guardian ad litem.

Form of interrogatories

Interrogatories should be in Form Nos. 1 and 2 of Appendix ‘C’ with necessary variations and modifications as the circumstances may require. An affidavit should be in Form No. 3 of Appendix ’C’.

Objections to interrogatories

A party may object to answer an interrogatory if it is scandalous, irrelevant, malafide, immaterial, privileged, etc.”

(vii) Rules as to interrogatories

Reading the relevant provisions of law and leading decisions on the point, the following rules as to discovery by interrogatories emerge:

(viii)Interrogatories may be administered in writing with the leave of the court and subject to such conditions and limitations as may be prescribed by it.

(ix)The particulars of interrogatories proposed to be delivered should be submitted to the court, which shall be decided by the court within seven days from filing of the application.

(x)Interrogatories may be administered either by the plaintiff to the defendant or by the defendant to the plaintiff.

(xi)Interrogatories may also be administered by one plaintiff to another plaintiff or by one defendant to another defendant, provided there is some question or issue between them in the suit, action or proceeding.“

(xii) No party can deliver more than one set of interrogatories to the same party without an order by the court.

(xiii) In exceptional cases, a court may allow more than one set of interrogatories to one and the same party.

(xiv)Generally, no leave can be granted to the plaintiff for administering interrogatories until the written statement is filed by the defendant or the time to file the written statement has expired.

(xv)Similarly, no such leave can be granted to the defendant until he files the written statement.

(xvi)Where a party to a suit is a corporation or a body of persons empowered to sue or be sued, interrogatories may be administered to an officer or member of such corporation or body.

(xvii)Where a party to a suit is a minor or a lunatic, interrogatories may be administered to his next friend or guardian ad litem. Interrogatories and an affidavit in answer to interrogatories should be delivered in the prescribed form. Interrogatories shall be answered by affidavit to be filed within ten days after the service of the interrogatories or within such period as the court may allow.

(xix)Interrogatories must relate to or have reasonable nexus with any matter in question in the suit.

(xx)Interrogatories must be as to question of fact and not as to conclusions of law, inferences of facts or construction of documents.

Interrogatories which do not relate to any matter in question in the suit should be deemed to be irrelevant. Interrogatories cannot be allowed at a premature stage. Interrogatories may be objected inter alia on the ground that they are vexatious, scandalous, irrelevant, unreasonable, not bonafide to the questions raised in the suit, injurious to public interest, “fishing” in nature, etc.

Interrogatories may be set aside on the ground that they have been administered unreasonably or vexatiously, or struck off on the ground that they are prolix, oppressive, unnecessary or scandalous.

Generally, the costs of the interrogatories shall be borne by the party administering the interrogatories. But the court may direct the party at fault to pay the costs of the interrogatories irrespective of the result of the suit. Any party may, at the trial of the suit, use in evidence any on or more of the answers or any part of an answer of the opposite party to interrogatories.

Where any person fails to comply with an order to answer interrogatories, his suit can be dismissed if he is a plaintiff, or his defence can be struck off if he is a defendant.”

(viii) Interrogatories which may be allowed

As a general rule, interrogatories can be allowed whenever the answers to them will serve either to prove the case of the party administering the interrogatories or to destroy the case of his adversary. The right is a valuable one and the party should not lightly be deprived of that right.” The power of interrogatories, therefore, should not be confined within narrow technical limits and must be exercised liberally so as to shorten litigation, save expenses and serve the ends of justice.“ Interrogatories must be directed to facts relevant to any matters in issue. They need not be directed to the facts directly in issue. It is sufficient if they are relevant to the matters in question in the suit.“

Thus, the author of an article published in a newspaper may be asked to answer an interrogatory like, Was not the article published in the newspaper and set out in the plaint intended to apply to the plaintiff.” Similarly, if a defendant denies that he wrote a material document, he may be asked if other documents produced by him were in his handwriting even though such documents had nothing to do with the question involved in the suit, but will be used for comparison of hand- writing of the defendant. Interrogatories cannot be disallowed on the ground that the party interrogating has other means of proving the facts in question, since one of the purposes of interrogatories is to obtain admissions from the opposite party.”

(ix) Interrogatories which may not be allowed

The procedure for interrogatories, however, in a given case is likely to be abused. Hence, there must be certain limits to the exercise of the said right. As a rule, the power must be exercised with considerable care and caution so that it may not become oppressive and be used for an improper purpose by the other side.

Interrogatories may not be allowed in the following circumstances:

(i) Interrogatories for obtaining discovery of facts which constitute exclusively the evidence of the case of his adversary. “The purpose of interrogatories is not to enable a litigant to come into court knowing how his opponent is going to prove his case. Thus, where in a suit for damages, the defendant wanted the plaintiff to state as to how he estimated the damages to the amount of Rs 13,000 mentioned in the plaint, it was held that the plaintiff was not bound to answer it.

(ii) Interrogatories as to any confidential and privileged communications between a party and his legal advisers.

(iii) Interrogatories which would involve disclosures injurious to public interest.

(iv) Interrogatories which are scandalous, irrelevant or not bona fide for the purpose of the suit or not sufficiently material at that stage.

(v) Interrogatories which are really in the nature of cross-examination.

(vi) Interrogatories on questions of law.

(vii) lnterrogatories which are “fishing” in nature. In other words, the interrogatories must refer to some definite and existing state of circumstances and should not be put merely in the hope of dis- covering something which may help the party interrogating to make out some case or with the object of plugging a loophole.

(viii) Any interrogatories may be set aside on the ground that they have been administered unreasonably or vexatiously, or struck off on the ground that they are prolix, oppressive, unnecessary or scandalous.

(x) Non-compliance: Effect

Where any person omits to answer interrogatories, the party administering interrogatory may obtain an order from the court requiring him to answer by affidavit or by oral examination (viva voice).

(xi) Appeal

An order granting or rejecting prayer for interrogatories is neither a “decree” nor an appealable order. No appeal, therefore, lies against such order.

(xii) Revision

Though an order granting or refusing interrogatories may be said to be a “case decided” under Section 115 of the Code, since it is in the discretion of the court to allow or disallow interrogatories, the High Court normally does not interfere with such order unless it is clearly wrong or illegal.

 Discovery of documents: Rules 12-14

Discovery is of two kinds, namely:

(i) discovery by interrogatories; and

(ii) discovery of documents.

Generally speaking, a party is entitled to inspection of all documents which do not themselves constitute exclusively the other party’s evidence of his case or title. If a party wants inspection of documents in the possession of the opposite party, he cannot inspect them unless the other party produces them. The party wanting inspection must, therefore, call upon the opposite party to produce the document. And how can a party do this unless he knows what documents are in the possession or power of the opposite party.

In other words, unless the party seeking discovery knows what are the documents in the possession or custody of the opposite party which would throw light upon the question in controversy, how is it possible for him to ask for discovery of specific documents. Rule 12, therefore, enables a party without filing an affidavit to apply to the court for the purpose of compelling his opponent to disclose the documents in the possession or power, relating to any matter in question in the suit. If the court makes an order for discovery, the opposite party is bound to make an affidavit of documents and, if he fails to do so, he will be subject to the penalties specified in Rule 21. An affidavit of documents shall set forth all the documents which are, or have been, in his possession or power relating to the matter in question in the proceedings. And as to the documents which are not, but have been in his possession or power, he must state what has become of them and in whose possession they are, in order that the opposite party may be enabled to get production from the persons who have possession of them.

After he has disclosed the documents by affidavit, he may be required to produce for inspection such of the documents as he is in possession of and as are relevant. The documents sought to be discovered need not be admissible in evidence in the enquiry or proceedings. It is sufficient if the documents would be relevant for the purpose of throwing light on the matter in controversy. Every document which will throw any light on the case is a document relating to a matter in dispute in the proceedings, though it might not be admissible in evidence. In other words, a document might be inadmissible in evidence yet it may contain information which may either directly or indirectly enable the party seeking discovery either to advance his case or damage the adversary’s case or which may lead to a trial of enquiry which may have either of these two consequences. But if the documents are irrelevant or immaterial to the question in controversy or the prayer is made with a view to delay the proceedings, the application will be rejected.“

The word “document” in this context includes anything that is written or printed, no matter what the material may be, upon which the writing or printing is inserted or imprinted.

(ii) Object

The object of this procedure is twofold: (i) firstly, to secure, as far as possible, the disclosure on oath of all material documents in possession or power of the opposite party under the sanction of penalties attached to a false oath; and (ii) secondly, to put an end to what might otherwise lead to a protracted enquiry as to the material documents actually in possession or power of the opposite party.

Thus, this procedure (a) elicits admissions; (b) obviates necessity of leading lengthy evidence; and (c) expedites trial of suits and thereby assists courts in administration of justice.“

(iii) Who may seek discovery

A party to a suit may apply to the court for an order of discovery. This can be done either by filing an affidavit or otherwise. If the court makes an order of discovery, the opposite party must in an affidavit set forth all the documents which are or have been in his possession, custody or power.

(iv) Against whom discovery may be ordered?

An order of discovery may be made against a person who is a party to the suit.” Where a suit is instituted by a nominal plaintiff, e.g. benamidar, the person or persons actually interested may be ordered to give discovery.

(v) Conditions

Discovery of documents may be ordered by a court if the following conditions are satisfied:

(i) It is necessary for fair disposal of suit; or

(ii) For saving costs.

(vi) Objection against discovery

Discovery may be objected on the ground that it is not necessary or not necessary at that stage of the suit.“ An objection or reason against discovery should be taken clearly and expressly in the affidavit. It is not enough to state that the documents are privileged. It must also be stated how they are privileged so as to enable the court to decide the claim.”

(vii) Admissibility of document

Discovery may be ordered for a document which is relevant and which may have some bearing on the matter in issue. Such document need to be admissible in evidence.

(viii) Documents disclosing evidence

Documents constituting evidence of the party cannot be ordered to be produced. The provision relating to discovery cannot be utilized by the party “to come into court knowing how his opponent is going to prove his case”.

(ix) Privileged documents

English law recognizes “Crown Privilege”. It is based on the well- known doctrine that “public welfare is the highest law” (salus populi est suprema lex). Public interest, no doubt, requires justice to be done. But it also requires withholding of documents in certain circumstances. It may, however, be noted that in case of claim of privilege, it is open to the court to inspect the document for deciding the sustainability of the claim. Mere assertion by the opposite party is not final.“

(x) Oppressive discovery

Discovery may also be resisted on the ground that it is “unduly oppressive” to the party giving discovery. In dealing with the question, the court will bear in mind two conflicting considerations;

(i) importance of discovery to the person seeking it; and

(ii) burden imposed on the opposite party giving discovery.

Whether the discovery is oppressive or not is a question of fact and depends upon the circumstances of each case.

(xi) Non-compliance: Effect

If a party ordered to produce documents fails to comply with the order, a court may draw an adverse inference that had he produced them, they would have gone against him.

(xii) Rules as to discovery

The general rules as to discovery of documents may be summarised as under:

(i) Any party to a suit may apply to the court for an order directing the other party to make discovery on oath of the documents which are or were in possession, (custody) or power, relating to

any matter in question in the suit.

(ii) Normally, it is at the discretion of the court to grant or refuse discovery of documents.

(iii) The court may exercise this power at any stage, either of its own motion or on an application of any party and subject to such conditions and limitations as may be prescribed by it.

(iv) The court may either refuse or adjourn such application if satisfied that such discovery is not necessary or not necessary at that stage of the suit or make such order as it thinks fit.

(v) Generally, no order of discovery, inspection or production of documents will be passed by the court on the application of the plaintiff until the written statement is filed by the defendant or the time to file written statement has expired. And no such order will be passed on the application of the defendant until he has filed his written statement.

(vi) Discovery cannot be ordered by the court if it is of the opinion that it is not necessary either for the fair disposal of the suit or for saving costs.

(vii) A party against whom an order for discovery of documents has been made by the court is, as a general rule, bound to produce all the documents in his possession or power.”

(viii) A party against whom discovery of documents has been ordered considers that he is entitled to legal protection in respect of a particular document which he has been ordered to produce by the court, he is at liberty to take such objection, or claim privilege.

(ix) When such privilege is claimed for any document, the court will inspect such document for the purpose of deciding the validity of the claim of privilege, unless the document relates to matters of State.

(x) Failure to comply with the order of discovery, inspection or production of documents may result in adverse inference against the defaulting party.

Inspection of documents: Rules 15-19 Rules 15 to 19 deal with inspection of documents. For the purpose of inspection, documents may be divided into two classes:

(i) documents referred to in the pleadings or affidavits of parties; and

(ii) other documents in the possession or power of the party but not referred to in the pleadings of the parties. As regards the first class of documents, a party to a suit is entitled to inspection. And without intervention of the court every party may give notice in the prescribed form to the other party in whose pleadings they are referred to, to produce such documents for his inspection.” The party to whom such notice is given should, within ten days from the receipt of such notice, give notice to the party claiming such inspection, stating the time and place at which the documents may be inspected and stating his objections, if any, to the production of any of the documents.“ If he fails to do so, the court may make an order of inspection.”

As regards the second class of documents, the party desiring the inspection can only proceed by way of an application to the court along with an affidavit satisfying the court that the document is relevant to the case.

The primary object of Rules 15 to 19 of Order 11 is to place the opposite party in the same position as if the documents had been fully set out in his pleading or in the affidavit.

Privileged documents

The following classes of documents have been recognised as privileged documents and they are, therefore, protected from production:

(i) Documents which “of themselves evidence exclusively the party’s own case or title.

(ii) Confidential communications between a client and his legal adviser.

(iii) Public official records relating to affairs of the State and confidential official communications, if their production would be injurious to public interest.

It may, however, be noted that where, in an application for an order for inspection, privilege is claimed for any document, the court may inspect the document for the purpose of deciding the validity of the claim of privilege, unless the document relates to matters of State.”

Premature discovery: Rule 20

The court is empowered to postpone a premature discovery or inspection.” A discovery is premature when the right to discovery depends upon the determination of any issue or question in dispute, or for any other reason it is desirable that any issue or question in dispute in a suit should be determined before deciding upon the right to discovery.“ In such a case, the court may order that  issue or question be determined first and reserve the question as to discovery thereafter.

The object behind this provision is to enable the court to decide an issue in a suit, as distinguished from the suit itself. The rule, however, does not apply where discovery is necessary for the determination of such issue or question.

Non-compliance with order of discovery or inspection: Rule 21

Where any party fails to comply with any order to answer interrogatories or for discovery or production of documents, if such party happens to be a plaintiff, his suit may be dismissed for want of prosecution, and if he happens to be a defendant, his defence will be struck off and will be placed in the same position as if he had not defended.” Such order, however, can be passed only after giving notice and a reasonable opportunity of being heard to the plaintiff or the defendant, as the case may be.” If the suit of the plaintiff is dismissed on this ground, he cannot file a fresh suit on the same cause of action.”

A reference may be made to an important decision of the Supreme Court in Babbar Sewing Machine Co. v. Triloki Nath Mahajan”. In that case, the court ordered the defendant to produce certain documents. The defendant did not comply with that order and his defence was, therefore, struck off. At the trial, he was not allowed to cross-examine the witnesses of the plaintiff. The defendant challenged that action.

Before the Supreme Court, two important questions of law were raised: (1′) whether the court was justified in striking out the defence of the defendant; and (ii) whether the defendant had no right to cross-examine witnesses of the plaintiff.

Setting aside the decision, the court held that the stringent provisions of Order 11 Rule 21 should not be lightly invoked and must be applied only in extreme cases as a last resort. Referring to a number of English and Indian decisions, A.P. Sen. made the following observations, which, it is submitted lay down correct law on the point:

”Even assuming that in certain circumstances, the provisions of Order 21 Rule 21 must be strictly enforced, it does not follow that a suit can be lightly thrown out or a defence struck out, without adequate reasons. The test laid down is whether the default is willful. In the case of a plaintiff, it entails in the dismissal of the suit and, therefore, an order for dismissal ought not be made under Order 21 Rule 21, unless the court is satisfied that the plaintiff was willfully withholding information by refusing to answer interrogatories or by withholding the documents which he ought to discover. In such an event, the plaintiff must take the consequence of having his claim dismissed due to his default, i.e. by suppression of information which he was bound to give. In the case of the defendant, he is visited with the penalty that his defence is liable to be struck out and to be placed in the same position as if he had not defended the suit. The power for dismissal of a suit or striking out of the defence under Order 12 Rule 21, should be exercised only where the defaulting party fails to attend the hearing or is guilty of prolonged or inordinate and inexcusable delay which may cause substantial or serious prejudice to the opposite party.”

ADMISSIONS: ORDER 12

Section 58 of the Evidence Act declares that the facts admitted need not be proved. Admissions may be made before the suit or after the filing of the suit. The object of obtaining admissions is to do away with the necessity of proving facts that are admitted; and the judgment and decree may be passed on such admissions.” As it has been said, “What a party himself admits to be true may reasonably be presumed to be so.

The adoption of the procedure laid down in Order 12 (Admissions by Notice) results in saving the costs of such proof and in cheapening and shortening litigation.

 Object

As seen above, the primary object of admission is to dispense with proof. The Select Committee stated:

“The Committee think the practice of admission may with advantage be extended to facts as well as to documents. The procedure is not compulsory but its adoption would result in cheapening and expediting litigation, and it is hoped that its use will be encouraged by the courts.”

 Importance

The importance of admission cannot be underestimated. It is the best and the strongest piece of evidence since the facts admitted need not be proved. It saves time, expenses and expedites trial. What a party admits to be true should be presumed to be true. No exception can be taken to this proposition.

 Kinds of admissions

Admissions are of different kinds. The following table shows various kinds of admissions that may be made after the suit is filed:

 Conclusiveness of admission

An admission is not conclusive as to the truth of the matter stated therein. It is only a piece of evidence, the weight to be attached to such admission should depend upon circumstances under which it was made. It can be shown to be erroneous or untrue.

 Admission should be taken as a whole

It is well-settled that an admission must be taken as a whole or not at all. It is not open to a court to accept a part of it and reject the rest. But where one portion of the claim was admitted and the other portion was denied, and both the portions were severable, it was held that the -plaintiff could ask for a judgment on the portion admitted by the defendant.

 Notice to admit case: Rule 1

Any party to a suit may give notice in writing that he admits the whole or any part of the case of the other side.

 Notice to admit documents: Rules 2-3-A, 8

After discovery and inspection, either party may call upon the other party to admit within seven days from the date of the service of the notice in the prescribed form, the genuineness of any document.‘°‘ In case of refusal or neglect to admit any document even after notice, the costs of proving them shall be paid by the party so neglecting or refusing, whatever may be the result of the suit, unless the court otherwise directs.

Every document which a party is called upon to admit, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of that party or in reply to the notice to admit documents, shall be deemed to be admitted except as against a person underdisability. The court may, however, in its discretion and after recording reasons, require any document so admitted to be proved otherwise than by such admission.

A person unreasonably neglecting or refusing to admit a document may be ordered to pay penal costs to the other side.‘°” The court may also call upon any party, on its own motion suo motu, to admit any document at any stage of the proceedings. Admission of documents means admission of facts contained in the documents. But if any document is admitted only for a limited purpose, as, for instance, for dispensing with formal proof of it, it cannot be said that the party thereby accepts the facts stated in the document.

Notice to admit facts: Rules 4-5

Rules 4 and 5 provide for notice to admit facts. Any party may, by notice in writing, at any time not later than nine days before the day fixed for the hearing, call upon any other party to admit, for the purpose of the suit only, any specific fact or facts, mentioned in such notice. The costs of proving such fact or facts shall be paid by the party refusing or neglecting to admit the same within six days after service of such notice, whatever may be the result of the suit, unless the court other- wise directs. Such admission, however, should be accepted or rejected as a whole and it is not permissible to rely on one part, ignoring the other. Likewise, if admission is made subject to a condition, it must be accepted only with that condition.”

 Judgment on admissions: Rule 6

Rule 6 empowers the court to pronounce a judgment upon the admissions made by the parties, without waiting for determination of any other question between the parties. The object of the rule is to enable a party to obtain a speedy judgment, at least to the extent of the relief to which, according to the admission of the opposite party, he is entitled to. A party can, under this rule, move for a judgment upon the admission made by the opposite party and thus get rid of the portion of the action in which there is no dispute.

In the leading case of Throp v. Holdsworthm, Iessel, M.R. stated, “This rule enables the plaintiff or the defendant to get rid of so much of the action, as to which there is no controversy.”

In Uttam Singh Duggal 8 Co. Ltd. v. United Bank of Indium, the Supreme Court held that where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The scope of Rule 6 of Order 12 should not be narrowed down where a party applying for judgment is entitled to succeed on a plain admission of the opposite party. The power to give judgment under this rule is discretionary and enabling in nature and the party cannot claim it as of right. The court is also not bound to pass a judgment upon admission. If the court is of the opinion that it is not safe to pass a judgment on admissions, or that a case involves questions which cannot be appropriately dealt with and decided on the basis of admission, it may, in the exercise of its discretion, refuse to pass a judgment and may insist upon clear proof of even admitted facts. Moreover, before pronouncing a judgment on admission, the court must be satisfied that the admission is definite and unequivocal in appropriate cases, a court may also allow a party to explain previous admission.

 PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS: ORDER 13

The plaintiff must produce in court with the plaint the documents on which he is suing the defendant. He must deliver a list of documents in support of his claim. A summons to a defendant should contain a direction asking him to produce all the documents in his possession or power upon which he intends to rely in support of his claim. Order 13 deals with production, admission, impounding, rejection and return of documents.

 Production of documents: Rule 1

Rule 1 of Order 13 requires the parties or their pleaders to produce the documentary evidence on or before the settlement of issues. The object underlying this provision is to secure a fair trial of cases, obviate the chances for the parties to adduce forged or manufactured evidence and produce their documents before the court at the earliest opportunity. “It also seeks to prevent belated production of documents which may cause prejudice to the other side.”

As stated above, the plaintiff must produce in court with the plaint the documents on which he sues and upon which he relies in support of his claim. Similarly, the summons should also contain an order to the defendant to produce all the documents upon which he intends to rely in support of his claim.

Rule 1(1) of Order 13 directs the parties or their pleaders to produce all documentary evidence in original, on or before settlement of issues.

Rule 1(2) requires the court to receive those documents. The object of the rule, however, was not to penalise the parties but merely to prevent belated production of documents so that it might not work injustice to the other side. The power, therefore, clearly clothed the court with discretion to allow production of documents if it was satisfied that good cause was shown. The explanation of delay was not as rigorous as one required under Section 5 of the Limitation Act.

Where the documents were not in the possession of the party and they were produced after obtaining certified copies from Revenue Authorities, refusal of production was held to be unjustified?” The court has power to receive any document at a later stage if the genuineness of a document is beyond doubt and it is relevant or material to decide the real issue in controversy.” No documents whether public or private which are above suspicion should be excluded if they are necessary for the just decision of a case.” The discretion must be exercised judicially and considering the facts and circumstances of each case. The rule must be liberally construed so as to advance the cause of justice.”

In Babbar Sewing Machine C0. v. Triloki Nath Mahajanm, the Supreme Court stated, “The power for dismissal of a suit or striking out of the defence under Order 11 Rule 21, should be exercised only where the defaulting party fails to attend the hearing or is guilty of prolonged or inordinate and inexcusable delay which may cause substantial or serious prejudice to the opposite party.” This provision, however, does not apply to documents (a) produced for cross-examination of witnesses of the other side; or (b) handed over to a witness merely to refresh his memory.’

 Admission of documents: Rules 4-7

Rule 4 provides that on every document admitted in evidence in the suit, the following particulars shall be endorsed: (a) the number and title of the suit; (b) the name of the person producing the document;

(c) the date on which it was produced; and (d) a statement of its having been so admitted. The endorsement should be signed by the judge. The rule as to endorsement must be observed in letter and spirit. In Sadik Husain Khan v. Hashim Ali Khanm, the Privy Council said, “Their Lordships, with a view to insisting on the observance of the whole-some provisions of these statutes, will, in order to prevent injustice, be obliged in future on the hearing of Indian appeals to refuse to read or permit to be used any document not endorsed in the manner required.” Where a document admitted in evidence in the suit is an entry in a letter-book or a shop-book or other account in current use or an entry in a public record produced from a public office or by a public officer, or an entry in a book or account belonging to a third party, a copy of the entry may be furnished?” The documents admitted in evidence shall form part of the record of the suit.”

 Return of documents: Rules 7, 9

Documents not admitted in evidence shall be returned to the person producing them.

Rule 9 provides for return of a document to a party producing it after the disposal of the suit or appeal or even during the pendency of the suit provided that the necessary undertaking to produce the original in case it is required is filed, though ordinarily it is not allowed without notice to the other side and without producing certified copy of such document.”

 Rejection of documents: Rules 3, 6

The court may, after recording reasons, reject, at any stage of the suit, any document which it considers irrelevant or inadmissible. The endorsement on the rejected document should show the particulars mentioned in clauses (a) to (c) of Rule 4(1) above together with the statement of its having been rejected. The said endorsement shall be signed by the judge. The document, thereafter, shall be returned to the person producing it.

 Impounding of documents: Rule 8

Rule 8 enables a court to impound a document. It states that the court may for sufficient cause direct any document, book or exhibit produced before it in any suit to be impounded and kept in the custody of an officer of the court for such period and subject to such conditions as it thinks fit.‘35 Whereas Rule 7 provides for return of documents not admitted in evidence Rule 8 deals with documents admitted in evidence. This power may be exercised by the court in case of forgery or apprehension that the document may be destroyed or altered.

AFFIDAVITS: ORDER 19

 Meaning

Though the expression “affidavit” has not been defined in the Code, it has been commonly understood to mean ”a sworn statement in writing made especially under oath or on affirmation before an authorised officer or Magistrate.

Stated simply, an affidavit is a declaration of facts, made in writing and sworn before a person having authority to administer oath. Every affidavit should be drawn up in the first person and should contain only facts and not inferences.

 Essentials

The essential attributes of an affidavit are:

(i) It must be a declaration made by a person; –

(ii) It must relate to facts;

(iii) It must be in writing;

(iv) It must be in the first person; and

(v) It must have been sworn or affirmed before a Magistrate or any other authorised officer.

(c) Contents of affidavit

An affidavit should be confined to such facts as the deponent is able to prove to his personal knowledge. Rule 3(1) of Order 19, however, allows the deponent to state such facts in interlocutory applications which are based on belief.

Evidence on affidavit: Rules 1-3

A court may order that any fact may be proved by affidavit.” Ordinarily, a fact has to be proved by oral evidence” since affidavits are not included in the definition of “evidence” under Section 3 of the Evidence Act. They can be used as an evidence only if, for sufficient reason, the court invokes the provisions of Order 19 of the Code. Order 19 Rule 1 is a sort of exception to this rule) and empowers the court to make an order that any particular fact may be proved by affidavit, subject, how- ever, to the right of the opposite party to have the deponent produced for cross-examination. If a party desires to controvert the averments contained in the affidavit of the opposite party, he must either file an affidavit-in-reply or cross-examine the deponent. In the absence of this, the court is entitled to come to its own finding. Affidavits should be confined to such facts as the deponent is able to prove to his personal knowledge, except on interlocutory applications, on which statements of his belief may be admitted.” Where an averment is not based on personal knowledge, the source of information should be clearly disclosed.” There is always a duty on the part of the counsel to advise his client as to the verification of the affidavit. The client should be told to swear only to what he knows to be true. What he believes to be true should be mentioned separately.

Unless affidavits are properly verified and are in conformity with the rules, they will be rejected by the court.” But, instead of rejecting an affidavit, a court may give an opportunity to a party to file a proper affidavit.

Ordinarily, interlocutory applications, which do not determine any right finally and conclusively, such as, application for attachment before judgment)” interim injunction)“ appointment of receiver)“ etc. can be decided on affidavits.

False affidavit

Swearing of false affidavit is an offence of perjury punishable under the Indian Penal Code. It is a grave and serious matter and lenient view is not warranted?” Where such affidavit is filed by an officer of the Government very strict action should be taken.

 

PAHUJA LAW ACADEMY

THE CODE OF CIVIL PROCEDURE, 1908

First Hearing

                                                                                        Preliminary

  1. For the purpose of Order XIV, Rule 4 of CPC the Court may adjourn the framing of issues to a date not later than

(a), 7days

(b) 10 days

(c) 14 days

(d) 30 days.

  1. Under Order XVI, Rule 1, sub-rule (4) summons may be obtained by the parties within ___ of presenting the list of witnesses

(a) 5 days

(b) 7 days

(c) 9 days

(d) 10 days.

  1. Under Order XVI, Rule 2 of CPC, the expenses, of a witness for whom the summons have to be obtained, shall be deposited by the party applying for the summons within

(a) 5 days of making the application

(b) 7 days of making the application

(c) 21 days of making the application

(d) 10 days of making the application.

  1. The court instead of examining witnesses in open court direct their statements to be recorded on commission by virtue of

(a) Rule 19 of Order XVIII of CPC

(b) Rule 4 of Order XVIII of CPC

(c) Rule 2 of Order XVIII of CPC

(d) Rule 3A of Order XVIII of CPC.

  1. Discovery by interrogatories , inspection has been provided

(a) under Order X of CPC

(b) under Order XI of CPC

(c) under Order XV of CPC

(d) under Order XVI of CPC.

  1. Interrogatories shall be answered as provided under Order XI, Rule 8 of CPC

(a) on a simple application

(b) on an affidavit

(c) by filing the documents

(d) all the above.

  1. Affidavit in answer to interrogatories shall be filed

(a) within 7 days of the order

(b) within 10 days of the order

(c) within 14 days of the order

(d) within 15 days of the order.

  1. Interrogatories can be set aside or struck off, on an application under Order XI, Rule 7 of CPC, made within

(a) 7 days of service of interrogatories

(b) 10 days of service of interrogatories

(c) 14 days of service of interrogatories

(d) 15 days of service of interrogatories.

  1. Objections to interrogatories under Order XI, Rule 6 of CPC can be made if it is

(a) scandalous

(b) irrelevant

(c) not bonafide

(d) all the above.

  1. Grounds for setting aside interrogatories contained in Order XI, Rule 7 of CPC are

(a) prolix

(b) oppressive

(c) unnecessary

(d) all the above.

 

THE CODE OF CIVIL PROCEDURE, 1908

 EXECUTION

  Mains

  1. Comment on the statement that an execution court cannot go behind the decree.

 

  1. What remedy is available to a person whose land has been wrongfully attached in the execution of decree?

 

  1. Discuss the provision relating to arrest and detention in civil prison in execution of decree?

 

  1. Write a short note on the execution of decree? 

 

THE CODE OF CIVIL PROCEDURE, 1908

EXECUTION

EXECUTION: MEANING

  • The term “execution” has not been defined in the Code.
  • In its widest sense, the expression “execution” signifies the enforcement or giving effect to a judgment or order of a court of justice.
  • Stated simply,”execution” means the process for enforcing or giving effect to the judgment of the Court.

NATURE AND SCOPE

A files a suit against B for Rs 1o, ooo and obtains a decree against ‘m. Here A is the judgment-creditor or decree-holder. B is the judgment-debtor, and the amount of Rs 10,000 is the decretal amount Since the decree is passed against B, he is to pay Rs 10,000 to A. Suppose in spite of the decree, B refuses to the decretal amount to A, A can recover the said amount from B executing the decree through judicial process The principles execution of decrees and orders are dealt with in Sections 36 to 74 (substantive law) and Order 21 of the Code (procedural provisions). Order 21 contains 106 Rules and is the longest of all Orders in the Code.

EXECUTION PROCEEDINGS UNDER CPC

In Ghan Shyam Das v. Anant Kumar Sinha, dealing with the of the Code relating to execution of decrees and orders, the Court stated, “So far as the question of executability of a decree is concerned, the Civil Procedure Code contains elaborate and provisions for dealing with it in all its aspects. The numerous Order 21 of the Code take care of different situations providing effective remedies not only to Judgment-debtors and decree-holders but to claimant objectors, as the case may be. In an exceptional case provisions are rendered incapable of giving relief to an aggrieved in a equate measure and appropriate time, the answer is a regular in the civil court. The remedy under the Civil Procedure Code is of judicial quality than what is generally available under other statutes and judge, being entrusted exclusively with administration of justice, is expected to do better.

The subject of execution of decrees and orders may be discussed under the following heads:

(1) Courts which may execute decrees.

(2) Application for execution.

(3) Stay of execution.

(4) Mode of execution.

(5) Arrest and detention.

(6) Attachment of property.

(7) Questions to be determined by executing court.

(8) Adjudication of claims

(9) Sale of property

(10) Delivery of possession, and

(11) Distribution of assets.

COURT WHICH MAY EXECUTE DECREES

  • Section 38 of the Code enacts that a decree may be executed either by the court which passed it or by the court to which it is sent for execution.
  • Section 37 defines the expression court which passed a decree.
  • Sections 39 to 45 provide for the transfer for execution of a decree by the court which passed the decree to another court, lay down conditions for such transfer and also deal with powers of executing court. All these sections, therefore, need to be read together.
  • Section 37 defines the expression court which passed a decree section enlarges the scope of the expression “court which passed a decree with the object of giving greater facilities to a holder to realise the fruits of the decree passed in his favour. The following courts fall within the said expression:

(i) The court of first instance which actually passed the decree.

(ii) The court of first instance in case of appellate decrees.

(iii) Where the court of first instance has ceased to exist, the court which would have jurisdiction to

try the suit at the time of execution; and

(iv) Where the court of first instance has ceased to have jurisdiction to execute the decree, the court

which at the time of execution would have had jurisdiction to try the suit.’

COURTS BY WHICH DECREES MAY BE EXECUTED: SECTION 38

A decree may be executed either by the court which passed it, or by the court to which it is sent for execution. A court which has neither passed a decree, nor a decree is transferred for execution, cannot execute it.

Where the court of first instance has ceased to exist or ceased to have jurisdiction to execute the decree, the decree can be executed by the court which at the time of making the execution application would have jurisdiction in the matter. Sometimes a peculiar situation arises. Suppose court A passed a decree, and thereafter a part of the area within the jurisdiction of court A is transferred to court B. In such a situation the following two questions arise:

(a) Whether court A continues to have jurisdiction to entertain an application for execution and

(b) Whether court B (to which the area is transferred) can also entertain an application for execution without a formal transmission of the decree from court A to court B.

The first question must now be answered in the affirmative after the pronouncement of the Supreme Court in the case of Merla Ramanna v.Nallaparaju wherein the court held:

It is settled law that the court which actually passed the decree does not lose its jurisdiction to execute it, by reason of the subject-matter thereof being transferred subsequently to the jurisdiction of another court.

But with regard to the second question, there were conflicting decisions. The High Court of Calcutta, on the one hand, had taken the view that in his situation both the courts (A and B) would be competent to entertain an application for execution; the High Court of Madras, on the other hand,  had taken in a contrary view by holding that in the absence of an order of transfer by the court which passed the decree (court A), that court alone can entertain an application for execution and not the court to whose jurisdiction the subject-matter has been transferred (court B). The Supreme Court in Merla Ramanna” referred to the above conflict of decisions but left the point open and did not express any final opinion as to which of the two views is correct by observing thus, ”It is not necessary in this case to decide which of these two views is correct”; because according to the Supreme Court even assuming that the opinion expressed in the Madras case” was correct since the transferee court had no inherent lack of jurisdiction, the objection to it ought to have been taken at the earliest opportunity and as it was not taken at that stage, it must be deemed to have been waived and cannot be raised at any later stage of the proceedings.

The Explanation added to Section 37 by the Amendment Act of 1976 gives effect to the Calcutta view and makes it clear that both the courts would be competent to entertain an application for execution a decree.

  1. TRANSFER OF DECREE FOR EXECUTION:

SECTIONS 39-42; ORDER 21 RULES 3-9

  • 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:
  • 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
  • The judgment-debtor does not have property sufficient to satisfy the decree within the local limits of the jurisdiction of the court which passed the decree but has property within the local limits of the jurisdiction of such other court; or
  • The decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of such other court; or
  • 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.

 EXECUTION OF FOREIGN DECREES IN INDIA: SECTIONS 43-44-A

A combined reading of Sections 43, 44 and 44-A shows that Indian courts have power to execute the decrees passed by

(1) Indian courts to which the provisions of the Code do not apply.

(2) The courts situate outside India which are established by the authority of the Central Government

(3) Revenue courts in India to which the provisions of the Code do not apply and

(4) Superior courts of any reciprocating territory.

EXECUTION OF INDIAN DECREES IN FOREIGN TERRITORY: SECTION 45

Section 45 deals with a converse case. It provides for the execution in foreign territory of the decrees passed by Indian courts in certain circumstances.

 EXECUTION OF DECREE AT MORE THAN ONE PLACE

The Code does not prevent a decree-holder from executing a decree simultaneously at more than one place against the property of the judgment-debtor. Such power, however, should be exercised sparingly and in exceptional cases after issuing notice to the judgment-debtor.

 PROCEDURE IN EXECUTION

Where a decree is sent for execution to another court, the court which passed the decree shall send a decree to such court with (i) a copy of the decree; (ii) a certificate of non-satisfaction or part-satisfaction of the decree; and (iii) a copy of an order for the execution of the decree, or if no such order is passed, a certificate to that effect. The court executing the decree, on receiving the copies of the decree and other certificates shall cause the same to be filed without further proof. Such court shall have the same powers in executing the decree as if it had been passed by itself. Such court shall certify to the court which passed the decree the fact of such execution or the circumstances attending its failure to execute it. Where the court to which the decree is sent for execution is a district court, it may be executed by itself or transferred by it to any subordinate court of competent jurisdiction. Where such court is a High Court, the decree shall be executed as if it had been passed by that court (High Court) in the exercise of its original jurisdiction. Where a decree is sent for execution in another State, it shall be executed by such court and in such manner as may be prescribed by rules in force in that State. Where immovable property forms one estate or tenure and is situate within the territorial jurisdiction of two or more courts, any of such courts has jurisdiction to attach and sell the whole of such estate or tenure.

POWERS OF TRANSFEROR COURT

Once a court which has passed a decree transfers it to another competent court, it would cease to have jurisdiction and cannot execute the decree. It is only a transferee court to which an application for execution would lie. The limitation, however, is to the extent of the transfer and not in respect of other matters.

 POWERS OF TRANSFEREE COURT

Once a decree is transferred for execution to another court, the transferee court shall have all powers to execute the decree as if it had been passed by the transferee court itself. After the transfer of a decree, it is the transferee court which will decide all questions arising in execution proceedings. Its jurisdiction remains till it certifies to the transferor court of the execution of the decree.

 POWERS OF EXECUTING COURT

Section 42 of the Code expressly confers upon the court executing a decree sent to it the same powers as if it had been passed by itself. It is thus power and duty of the executing court to ensure that the defendant gives the plaintiff the very thing the decree directs and nothing more or nothing less.

At the same time, the Code requires that the court executing the decree does not exercise power in respect of the matters which could be determined only by the court which passed the decree.“ To put it differently, the powers to be exercised by the executing court relate to procedure to be followed in execution of a decree and do not extend to substantive rights of the parties. The executing court cannot convert itself into the court passing the decree.

With regard to the powers and duties of executing courts, the following fundamental principles should be borne in mind:

  • As a general rule, territorial jurisdiction is a condition precedent to a court executing a decree, and, therefore, no court can execute a decree in respect of property situate entirely outside its local jurisdiction.
  • An executing court cannot go behind the decree. It must take the decree as it stands and execute it according to its terms. It has no power to vary or modify the terms. It has no power to question its legality or correctness. This is based on the principle that a proceeding to enforce a judgment is collateral to the judgment and, therefore, no inquiry into its regularity or correctness can be permitted in such a proceeding.
  • In case of inherent lack of jurisdiction, the decree passed by the court is a nullity and its invalidity could be set up wherever and whenever it is sought to be enforced, whether in execution or in collateral proceedings. In such a case, there is no question of going behind the decree, for really in the eye of the law there is no decree at all.
  • Inherent lack of jurisdiction, however, must appear on the face of the record. Hence, if the decree on the face of it discloses some material on the basis of which the court could have passed the decree, it would be valid. In such a case, the executing court must accept and execute the decree as it stands and cannot go behind it. To allow the executing court to go behind that limit would be to exalt it to the status of a superior court sitting in appeal over the decision of the court which has passed the decree.
  • A decree which is otherwise valid and executable, does not become inexecutable on the death of the decree-holder or of the judgment-debtor and can be executed against his legal representatives.
  • When the terms of a decree are vague or ambiguous, an executing court can construe the decree to ascertain its precise meaning. For this purpose, the executing court may refer not only to the judgment, but also the pleadings of the case.
  • An executing court can go into the question of the executability or otherwise of the decree and consider whether, by any subsequent developments, the decree has ceased to be executable according to its terms.
  • A decree which becomes inexecutable by operation of law, may become executable by virtue of a subsequent amendment in the statute and can be executed after such amendment.
  • The executing court has power to mould the relief granted to the plaintiff in accordance with the changed circumstances.
  • The court executing the decree transferred to it has the same powers in executing such decree as if it had been passed by itself.

 

LIMITATION

The period of limitation for the execution of a decree (other than a decree granting a mandatory injunction) is twelve years from the date of the decree. The period of limitation for the execution of a decree for mandatory injunction is three years from the date of the decree.

 EXECUTION APPLICATION AND RES JUDICATA

As stated above, even before the Amendment Act of 1976, the doctrine of res judicata was judicially held applicable to execution proceedings.

Explanation VII to Section 11 as added by the Amendment Act of 1976 now specifically provides that the provisions of res judicata will apply to execution proceedings also. ,

But before an earlier decision can operate as res judicata, the execution application must have been heard and finally decided by the Court on merits. Hence, if an execution application is dismissed for default of appearance, or for non-prosecution, or as being premature, or as being belated, or on the ground that it is not pressed, or is not maintainable, the order will not operate as res judicata and a fresh execution application on the same ground for the same prayer is not barred.

STAY OF EXECUTION

 

 WHEN COURT MAY STAY EXECUTION: RULE 26

Provisions for stay of execution of a decree are made in Rule 26 of Order 21. This rule lays down that the executing court shall, on sufficient cause being shown and on the judgment-debtor furnishing security or fulfilling such conditions, as may be imposed on him, stay execution of a decree for a reasonable time to enable the judgment-debtor to apply to the court which has passed the decree or to the appellate court for an order to stay execution.

The power to stay execution of a decree by a transferee court is not similar to the power of the court which passes a decree. Whereas the transferor court can grant absolute stay, the transferee court can stay execution for a reasonable time to enable the judgment-debtor to apply to the transferor court or to the appellate court to grant stay against the execution. Such order can be made on the application of the judgment-debtor. A transferee court cannot invoke inherent powers to grant stay.

Where the judgment-debtor applies for stay of execution, the transferee court must obtain security from the judgment-debtor or impose such conditions as it may think fit. The provision is thus mandatory and imperative.

The transferee court is bound by an order made by the court which passed the decree or by an appellate court in relation to execution of such decree.

 STAYING OF ORDER AND QUASHING OF ORDER: DISTINCTION

There is distinction between staying of an order and quashing of an order. Quashing of an order means that no such order had ever been passed and there is restoration of position as it stood prior to the passing of the order. Stay of order, however, means that the order is very much there, but its operation is stayed.

 REVIVAL OF EXECUTION PROCEEDINGS: RULE 27

An order of restitution of property or the discharge of the judgment- debtor made under Rule 26 shall not prevent the court from restarting the execution proceedings.

 STAY OF EXECUTION PENDING SUIT: RULE 29

Rule 29 provides for stay of execution pending suit between the holder and the judgment—debtor. It enacts that where a suit by judgment-debtor is pending in a court against the decree-holder court may, on the judgment—debtor furnishing security or it thinks fit, stay execution of the decree until the disposal of such suit.

The underlying object of this provision is twofold, namely, (i) to enable the judgment—debtor and the decree-holder to adjust claims against each other; and (ii) secondly, to prevent execution proceedings.

For this rule to apply, there must be two simultaneous in one and the same court: (1) A proceeding in execution of the the instance of the decree-holder against the judgment-debtor; and (2) a suit at the instance of the judgment—debtor against the decree-holder.

For the application of this rule, it is not enough that there is a suit pending by the judgment-debtor. Such suit must be against the decree- holder in such court. The words “such court” are important and would mean that the suit must be pending in the same court?’

The provisions of Rule 29 are not peremptory but discretionary. The discretion, however, must be exercised judicially and in the interests of justice and not mechanically and as a matter of course. No hard and fast rule can be laid down in what cases stay would be granted or refused. This rule is based on the principle that a judgment—debtor may not be harassed if he has a substantial claim against the decree- holder which is pending for the decision of the court executing the decree. If the court is of the view that there is some substance in the claim, it may order for the stay of execution filed by the defendant in that case but not otherwise.

While exercising the discretion conferred under Rule 29, the court should duly consider that a party who has obtained a lawful decree is not deprived of the fruits of that decree except for good and cogent reasons. So long as the decree is not set aside by a competent court, it stands good and effective and it should not be lightly dealt with so as to deprive the holder of the lawful decree of its fruits.“ A party should not be deprived of the fruits of the decree obtained by him from a competent court merely because a suit has subsequently been filed for setting aside that decree. A decree passed by a competent court should be allowed to be executed and unless a strong case is made out on cogent grounds no stay should be granted.

Even if stay is granted it must be on such terms as to security, etc., so that the earlier decree is not made ineffective due to lapse of time. The discretion of the court under Rule 29 has to be exercised with “very great care” and only in “special cases”. It cannot be exercised so as to allow a party to abuse the process of law.

Prior to the amendment in the Code in 1976, the jurisdiction to stay execution of a decree vested only in the court which passed the decree. Hence, when the decree was transferred by the court which passed it to another court, the transferee court had no power to stay its execution.

By virtue of the amendment of 1976, now the executing court is also competent to stay not only the decree passed by it, but also a decree passed by another court transferred to it for execution.

It is submitted that the following observations of Misra, J. (as he then was) in the case of Judhistir v. Surendra lay down correct law on the point:

“The fundamental consideration is that the decree has been obtained by a party and he should not be deprived of the fruits of that decree except for good reasons. Until that decree is set aside, it stands good and it should not be lightly dealt with on the off-chance that another suit to set aside the decree might succeed. The decree must be allowed to be executed, and unless an extraordinary case is made out, no stay should be granted. Even stay is granted, it must be on suitable terms so that the earlier decree is not stifled.

The proviso has been added by the Amendment Act of 1976. It enacts that if the decree is for payment of money and if the court grants stay without requiring security, it shall record its reasons for doing so.”

  1. ORDER OF INJUNCTION AND ORDER OF STAY: DISTINCTION

There is distinction between an order of injunction and an order of stay. The former is an order against a person or an individual restraining him from doing something. The latter is a direction or an order to a court not to do something. Proceedings taken in contravention injunction-order are not null and void being without jurisdiction. Effect of non-compliance of an order of injunction may make the liable to punishment. Proceedings in contravention of an order of on the other hand are a nullity and of no effect whatsoever.

 

 

THE CODE OF CIVIL PROCEDURE,1908

EXECUTION

Preliminary

  1. Provision relating to execution of decrees are contained in
    • Order XXI
    • Order XXV
    • Order XXXIII
    • Order XXXVI.

 

  1. Money under a decree can be paid
    • in the court
    • out of the court
    • either in the court or out of the court
    • only in the court and not out of the court.

 

  1. Application for execution of a decree is to be made
    • to the court which passed the decree
    • to the court of small causes
    • to the district court
    • to the High Court.

 

  1. An executing court
    • can modify the terms of the decree
    • can vary the term of the decree
    • can modify and vary the terms of the decree
    • can neither modify nor vary the terms of the decree.

 

  1. A decree for execution
    • cannot be transferred to another court
    • can be transferred to another court
    • may or may not be transferred
    • either (a) or (c).

 

  1. Transfer of a decree for execution to another court has been dealt with
    • under section 37 of CPC
    • under section 38 of CPC
    • under section 39 of CPC
    • under section 40 of CPC.
  2. A decree can be transferred for execution to another court
    • if the judgment debtor actually & voluntarily resides or carries on business, or personally works for gain, within the local limits of that other court
    • if the judgment debtor does not have sufficient property to satisfy the decree within the local limits of the court, passing the decree and has property within the local limits of that other court
    • if the decree directs sale or delivery of immovable property situate outside the jurisdiction of the court passing the decree
    • all the above.

 

  1. Law does not require issuance of notice of the application for execution of a decree, to the judgment debtor, where the execution is applied
    • within four years of the decree
    • within two years of the decree
    • within three years of the decree
    • within five years of the decree.

 

  1. In which of the following cases, notice of the execution application has to be issued to the judgment debtor
    • where the execution is applied for beyond two years after the date of the decree
    • where the execution application is made against the legal representatives of the judgment debtor even it made within two years of the decree
    • where the execution application has been made by the assignee of the interests of the decree holder even if made within two years of the decree
    • all the above.

 

  1. Provisions of section 39 of CPC are
    • permissive & not mandatory
    • mandatory & not permissive
    • mandatory & discretionary
    • none of the above.

 

     PAHUJA LAW ACADEMY

     Code of Civil Procedure

   MISCELLANEOUS

                                                                                         MAINS

 

  1. Write a short note on the followings
  • Caveat
  • Inherent powers of the court
  • Transfer of cases

 

 

PAHUJA LAW ACADEMY

MISCELLANEOUS

INHERENT POWERS OF COURT

  • Every court is constituted for the purpose of administering justice.
  • The inferent powers of the court are in addition to the powers specifically conferred on the court by the code.
  • They are complementary
  • Ends of justice or to prevent the abuse the process of the court.
  • What is the reason behind conferring the inherent powers to the court?
  • Not defined in CPC
  • It means natural,existing and inseparable from something, a permanent attribute or quality .
  • Sections 148 to 153-B deal with inherent power of the courts.
  • hat are the conditions when the court can enlarge the time?
  • Whether court can allow the party to make up the deficiency of court fees even after the expiry of period of limitation.
  • Whether the transferee court enjoys the same powers and discharges the same duties conferred or imposed by the code upon the transferor court.
  • The inherent power saved by section 151 can be used to secure the ends of justice.
  • g; recalls its own orders , add,delete or transpose any party to a suit, set aside illegal orders or orders passed without jurisdiction, can hold trial in camera etc
  • The inherent powers under section 151 can also be exercised to prevent the abuse of the process of the court
  • Such abuse may be committed by a court or by a party.
  • An act of the court shall prejudice no one (actus curiae neminem gravabit)
  • g; obtaining benefits by practicing fraud on the court,or, upon party to the proceedings etc

 

  • Whether the judgments, decrees orders may be amended after once it has been passed by the competent court.

 

  • what are the limitations upon the inherent powers of the court?
  • Subha Rao J. in the case of Ram Chand & sons Sugar Mills (P) Ltd. V. Kanhayalal Bhargav lay down the correct principle regarding the ambit and scope od the inferent powers of a court under section 151 of the code :

The inherent power of a court is in addition to and complimentary to the powers expressly conferred under the code. But that power will not be exercised if its exercise is inconsistent with or comes into conflict with any of the powers expressly or by necessary implication conferred by the other provisions of the code. If there are express provisions exhaustively covering a particular topic , they give rise to necessary implication that no power shall be exercised in respect of said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of sections 151 of the code, they do not control the undoubted power of the court conferred under section 151 of the code to make a suitable order to prevent the abuse the process of the court.

CAVEAT

  • The term is not defined in the code.
  • It means beware
  • A caveat is caution or warning given by a party to the court not to take any action or grant any relief to the applicant without notice or intimation being given to the party lodging thecaveat and interested in appearing and objecting to such relief.
  • What is the object of caveat?
  • Who may lodge a caveat?
  • When it can be lodged?
  • When caveat does not lie?
  • Whether any form has been prescribe under CPC for caveat.
  • Sub sections (2),(3)and(4) of S.148-A prescribe the rights and duties of caveator who lodges the caveat , of applicant who intends to obtain an interim order and of the court.
  • Caveator
  • 148-A(2)
  • Notice
  • Directory not mandatory
  • The court may at its discretion dispense with the service of notice of a caveat and permit a party to lodge the caveat without naming the party respondent.
  1. Applicant[S.148-A(4)]

–      to furnish to the caveator forthwith at the caveator’s expense a copy of the application

made by him along with the copies of papers and documents on which he relies.

  1. Court [S.148-A(3)]

–     duty of the court to issue notice of that application on the caveator.

  • What is the effect of failure to hear caveator?
  • What is the time period till the caveat remains in force?

 

 

PAHUJA LAW ACADEMY

MISCELLANEOUS

                                                                                    PRELIMINARY

  1. The court can enlarge the time under section 148 of CPC for doing any act prescribed or allowed under the Code of Civil Procedure, not exceeding in total
    • 90 days
    • 60 days
    • 45 days
    • 30 days.

 

  1. Right to lodge a caveat has been provided under
    • section 148 of CPC
    • section 148A of CPC
    • section 148B of CPC
    • section 147 of CPC.

 

  1. A caveat shall not remain in force after the expiry of
    • 30 days
    • 60 days
    • 90 days
    • 180 days.

 

  1. Lodging of caveat under section 148A of CPC
    • entitles the caveator to receive notice of the application
    • makes the caveator a party to the suit
    • both (a) & (b)
    • neither (a) nor (b).

 

  1. Court fee on a plaint can be permitted to be paid on a subsequent date
    • under section 148 of CPC
    • under section 149 of CPC
    • under section 151 of CPC
    • under section 153 of CPC.

 

  1. Under section 149 of CPC on payment of court fee on a subsequent date
    • the document shall have the same effect on if the court fee were paid at the first instance
    • the document shall not have the same effect on if the court fee were paid at the first instance
    • the document shall have the effect as directed by the court
    • either (a) or (b).

 

  1. Inherent powers of the court are contained in
    • section 151 of CPC
    • section 152 of CPC
    • section 153 of CPC
    • section 150 of CPC.

 

  1. Inherent powers under section 151 of CPC are
    • discretionary in nature
    • in addition to the power conferred under the other provision of the Code
    • both (a) & (b)
    • only (a) & not (b).

 

  1. which section deals with power of supreme court to transfer suits-
    • 22
    • 23
    • 24
    • 25

 

  1. Which court/courts are empowered to have general power to transfer and withdrawal—
    • High court
    • District court
    • Both (a) and (b)
    • Only supreme court.

APPEAL

MAINS

  1. Distinction between Appeal, Reference, Review and Revision?

 

  1. Unless a right of appeal is clearly given by statute, it does not exist. Comment

  

  1. What is the difference between first appeal and second appeal?

PAHUJA LAW ACADEMY

APPEAL

  • The expression “appeal” has not been defined in the Code. According to dictionary meaning, “appeal” is “the judicial examination of the decision by a higher court of the decision of an inferior court”.
  • In Nagendra Nath Dey v. Suresh Chandra Dey, speaking for the Judicial Committee of Privy Council, Sir Dinsha Mulla stated:
  • There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an appellate court, asking to set aside or reverse a decision of a subordinate court, is an appeal within the ordinary acceptation of the term.”

ESSENTIALS

  • Every appeal has three basic elements:
  • A decision (usually a judgment of a court or the ruling of an administrative authority);
  • A person aggrieved (who is often, though not necessarily, a party to the original proceeding); and
  • A reviewing body ready and willing to entertain an appeal.

 

RIGHT OF APPEAL

  • A right of appeal is not a natural or inherent right. It is well-settled that an appeal is a creature of statute and there is no right of appeal unless it is given clearly and in express terms by a statute.
  • ’ Whereas sometimes an appeal is a matter of right, sometimes it depends upon discretion of the court to which such appeal lies.
  • The right of appeal is a substantive right and not merely a matter of procedure.
  • It is a vested fight and accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when he adverse judgment is pronounced.
  • This vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary implication, and not otherwise.
  • In Anant Mills Co. Ltd. v. State of Gujarat, speaking for the Supreme Court, Khanna, J. said:

It is well-settled by several decisions of this court that the right of appeal is a creature of a statute and there is no reason why the legislature while granting the right cannot impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory.

ONE RIGHT OF APPEAL

  • A single right of appeal is more or less a universal requirement. It is based on the principle that all men are fallible and judges are human beings who may commit a mistake. A Judge who has not committed an error is yet to be born. This dictum applies to all Judges from lowest to highest courts.” Absence of even one right of appeal must be considered to be a glaring lacuna in a legal system governed by the Rule of Law.

 SUIT AND APPEAL

  • There is a fundamental distinction between the right to file a suit and the right to file an appeal. The said distinction has been appropriately explained by Chandrachud, J. (as he then was) in the case of Ganga Bai v. Vijay Kumar in the following words:
  • There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one’s peril, bring a suit of one’s choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law.”

APPEAL IS CONTINUATION OF SUIT

  • An appeal is a continuation of a suit.
  • In Dayawati v. Inderjit, speaking for the Supreme Court, Hidayatullah, j. (as he then was) stated:

An appeal has been said to be ‘the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below’. The only difference between a suit and an appeal is that an appeal only reviews and corrects the proceedings in a cause already constituted but does not create the cause.

  • It is obvious that when an appeal is made, the appellate authority can do one of the three things, namely:
  • (i) it may reverse the order under appeal;
  • (ii) it may modify that order; and
  • (iii) it may merely dismiss the appeal and thus confirm the order without any modification.

In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. [I]t is the appellate decision alone which subsists and is operative and capable of enforcement.

  • In GarikapatiVeeraya v. N. SubbiahChaudhry, referring to various leading decisions on the subject, the Supreme Court laid down the following principles relating to a right of appeal:

 

  • That the legal pursuit of a remedy, suit, appeal and secondappeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
  • The right of appeal is not a mere matter of procedure but is a substantive right.
  • The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties there to till the rest of the career of the suit.
  • The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists on and from the date the lis commences and, although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
  • This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.

CONVERSION OF APPEAL INTO REVISION

  • If an appeal is preferred in a case in which no appeal lies, the court may treat the memorandum of appeal as a revision or vice versa. Since there is no specific provision for such conversion, the court would be justified in invoking the inherent powers under Section 151 and in passing appropriate orders as may be necessary in the interests of justice. There is no period of limitation for making an application of conversion. But while exercising this power, the court should see if the appeal of the revision, as the case may be, has been filed within the time prescribed for filing such a proceeding.

RIGHT OF APPEAL: MATERIAL DATE

  • The right of appeal is a substantive and vested right and accrues in favour of the litigant on the day the lis commences and although it may be actually exercised only after an adverse judgment is pronounced, such a right is governed by the law prevailing at the date of the institution of the suit and not by the law in force at the time when the judgment is rendered or an appeal is preferred.

APPEAL BY ONE PLAINTIFF AGAINSTANOTHER PLAINTIFF

  • As a general rule, one plaintiff cannot file an appeal against a co-plaintiff. But where the matter in controversy in the suit forms subject matter of dispute between plaintiffs inter se an appeal can be filed by one plaintiff against another plaintiff.

 APPEAL BY ONE DEFENDANT AGAINSTANOTHER DEFENDANT

  • The principle which applies to filing of appeal by one plaintiff against another plaintiff equally applies to an appeal by one defendant against another defendant. It is only where the dispute is not only between the plaintiffs and the defendants but between defendants inter se and such decision adversely affects one defendant against the other that such appeal would be competent.

APPEAL AGAINST PRELIMINARY DECREE

  • An appeal lies against a preliminary decree. A preliminary decree is as much a final decree. In fact, a final decree is but a machinery for the implementation of a preliminary decree. Failure to appeal against a preliminary decree, hence, precludes the aggrieved party from challenging the final decree. Where an appeal is filed against a preliminary decree and is allowed and the decree is set aside, the final decree falls to the ground as ineffective since there is no preliminary decree to support the final decree.

NO APPEAL AGAINST FINAL DEGREE WHERE NO APPEAL AGAINST PRELIMINARY DEGREE

  • An appeal lies against a preliminary decree since a preliminary decree is as much a decree as a final decree. A final decree may be said to be but a machinery for the implementation of the preliminary decree. In fact, a final decree owes its existence to the preliminary decree. Therefore, a failure to appeal against a preliminary decree precludes the aggrieved party from disputing its correctness or raising any objection to it in the appeal against the final decree. The whole object of enacting Section 97 is to make it clear that any party being aggrieved by a preliminary decree must appeal against that decree and if he fails to appeal against such a decree, the correctness of such a decree cannot be challenged by way of an appeal against the final decree, which means that the preliminary decree would be taken to have been correctly passed.

APPEAL  AGAINST  JUDGMENT

  • The Code provides an appeal from a decree and not from a judgment. An aggrieved party, however, may file an appeal against the judgment, if a decree is not drawn up by the court.

LIMITATION

  • The Code of Civil Procedure confers a right of appeal, but does not prescribe a period of limitation for filing an appeal. The Limitation Act,1963, however, provides the period for filing appeals. It states that an appeal against a decree or order can be filed in a High Court within ninety days and in any other court within thirty days from the date of the decree or order appealed against.

CONDONATION OF DELAY: RULE 3-A

  • Rule 3-A has been inserted by the Amendment Act of 1976. It provides that where an appeal has been presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application that the applicant had sufficient cause for not preferring the appeals within time.
  • Prior to insertion of Rule 3-A, the practice was to admit such an appeal subject to the objection regarding limitation. This practice was disapproved by the Privy Council, and it stressed the expediency of adopting a procedure for securing the final determination of the question as to limitation before admission of the appeal. This rule is added to give effect to the recommendation of the Privy Council.
  • As observed by the Supreme Court in State of M.P. v. Pradeep Kumar, the object of this provision is twofold; firstly, to inform the appellant that the delayed appeal will not be entertained unless it is accompanied by an application explaining the delay; and secondly, to communicate to the respondent that it may not be necessary for him to get ready on merits as the court has to first deal with an application for condonation of the delay as a condition precedent. The provision is, however, directory and not mandatory. If the memorandum of appeal is filed without an accompanying application for condonation of delay, the consequence is not necessarily fatal. The defect is curable.
  • Interpreting the provision in its proper perspective, the Court stated:

It is true that the pristine maxim vigilantibus, non dormientibus, jurasubeni-unt (law assists those who are vigilant and not those who sleep over their rights). But even a vigilant litigant is prone to commit mistakes. As the aphorism “to err is human” is more a practical notion of human behavior than an abstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. The effort of the court should not be one finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine.”

STAY OF PROCEEDINGS: RULES 5-8

  • Rule 5 provides for stay of an execution of a decree or an order. After an appeal has been filed, the appellate court may order stay of proceedings under the decree or the execution of such decree. But mere filing of an appeal does not suspend the operation of a decree. Stay may be granted if sufficient grounds are established.
  • The object underlying Rule 5 is to safeguard the interests of both, the decree-holder and the judgment-debtor. It is the right of the decree holder to reap the fruits of his decree. Similarly, it is the right of the judgment-debtor not merely to get barren success in case his appeal is allowed by the appellate court. This rule thus strikes a just and reasonable balance between these two opposing rights.
  • The following conditions must, therefore, be satisfied before stay is granted by the court:
  • The application has been made without unreasonable delay;
  • Substantial loss will result to the applicant unless such order is made; and
  • Security for the due performance of the decree or order has been given by the applicant.
  • The court may also make an ex parte order for stay of execution pending the hearing of the application if the above conditions are satisfied.
  • Rule 3-A(3), however, lays down that the court shall not grant stay of the execution of a decree against which an appeal is proposed to befiled so long as the court does not, after hearing under Rule 11, decide to hear the appeal on merits.
  • In case of money decree, sub-rule (3) of Rule 1 as inserted by the Amendment Act, 1976 provides for the deposit of the decretal amount or for the furnishing of security. This provision has been made for the benefit of the decree-holder and with a view to lessen his hardship. Deposit of the decretal amount, however, is not a condition precedent for the presentation of an appeal.
  • Sub-rule (5) of Rule 5 as added in 1976 mandates that no stay of execution of a decree shall be granted unless the deposit is made or security is furnished.
  • Explanation to Rule 5(1) clarifies that the order of stay becomes effective from the date of communication to the court of first instance and not prior thereto.
  • Where an order has been made for the execution of a decree from which an appeal is pending, on sufficient cause being shown by the appellant, the court which passed the decree shall take security from the decree-holder for the restitution of any property which may be or has been taken in execution and for due performance of the decree or order of the appellate court. If such an application is made to the appellate court, it may direct the trial court to take such security.
  • Where an order for sale of immovable property in execution of a decree has been passed and the appeal has been pending against such decree, on an application being made by the judgment-debtor, the court must stay the sale of immovable property on giving security or otherwise as it thinks fit.

SUMMARY DISMISSAL: RULES 11 – 11-A

  • Rule 11 deals the power of the appellate court to dismiss an appeal summarily. This rule refers to a stage after the memorandum of appeal has been filed and the appeal has been registered under Rule9. Rule 11 embodies a general principle that whenever an appeal is preferred, the appellate court is entitled, after hearing the appellant or his advocate, to reject the appeal summarily if prima facie there is no substance in it.
  • The discretion, however, must be exercised judiciously and not arbitrarily. Such power should be used very sparingly and only in exceptional cases. When an appeal raises triable issues, it should not be summarily dismissed.
  • Where the appellate court which dismisses an appeal summarily is other than a High Court, it must record reasons for doing so. However, in matters involving construction of documents, even a High Court should record reasons.
  • The same principle applies to Second Appeals, Letters Patent Appeals arising out of First Appeals since in such appeal (LPA), all questions of fact and law are open to challenge.
  • Again, when the first appellate court affirms the findings of the trial court, it is its duty to record reasons in brief for doing so. It is all the more necessary in a case where such court is a final court of finding of fact and where the judgment of the trial court is based on appreciation of oral and documentary evidence which is seriously challenged by the contesting party.
  • But once an appeal is admitted, the court cannot dismiss it on technical grounds or without hearing the appellant. Similarly, an appeal cannot be admitted partly. It can be admitted or dismissed wholly. If the appellant or his pleader does not appear when the appeal is called on for hearing, the court may dismiss it for default. The word may show that the court has discretion in the matter and is not bound to dismiss the appeal for default of appearance. The court may adjourn the hearing of the appeal to a future date or even admit it. Where an appeal is dismissed for default, it may be restored if it is proved that the appellant was prevented by any sufficient cause from appearing when the appeal was called on for hearing.

ABATEMENT OF APPEAL

  • The provisions relating to abatement of suits apply to appeals also.

ADMISSION OF APPEAL: RULES 12, 14

  • If the appeal is not summarily dismissed, the appellate court shall fix a day for hearing of the appeal, and the notice of such date of hearing shall be served upon the respondent with a copy of the memorandum of appeal.

 DOCTRINE OF MERGER

  • Where an appeal is provided against a decree passed by the trial court and such appeal is preferred, it is the decree of the appellate court which is operative in law, which can be enforced.
  • The doctrine of merger is based on the principle that there cannot be at one and the same time, more than one operative decree governing the same subject-matter. Hence, as soon as an appeal is decided by an appellate court, the decree of the trial court ceases to have existence in the eyes of the law and is superseded by a decree by an appellate court. In other words, the decree passed by the trial court merges with the decree of the appellate court.

PROCEDURE AT HEARING: RULES 16-21

(a) Right to begin: Rule 16

The appellant has a right to begin. After hearing the appellant in support of the appeal, if the court finds no substance in the appeal, it may dismiss the appeal at once without calling upon the respondent to reply. But if the appellate court does not dismiss the appeal at once, it will hear the respondent against the appeal and the appellant shall then be entitled to reply.

(b) Dismissal for default and restoration: Rules 17-19

If the appellant does not appear when the appeal is called on for hearing, the court may dismiss the appeal in default. The court, however, cannot dismiss it on merits.

Where the appeal has been dismissed for default or for non-payment of process fees, the appellant may apply to the appellate court for the restoration of the appeal. On sufficient cause being shown, the appellate court shall restore the appeal on such terms as to costs or otherwise as it thinks fit. The court may require the counsel to go on for hearing after restoration and may refuse to restore the matter for further adjournment. Appearance of a party or his advocate and prayer for recalling of an order of dismissal for default may be a good ground for restoring a matter but it cannot be said to be a good ground for restoration of the matter for hearing in future. In other words, a matter maybe restored for hearing and not for adjournment”.

(c) Ex parte hearing and rehearing: Rules 17, 21

Where the appellant appears and the respondent does not appear when the appeal is called on for hearing, the appeal shall be heard ex parte. If the judgment is pronounced against the respondent, he may apply to the appellate court for rehearing of the appeal. If he satisfies the court that the notice of appeal was not duly served upon him or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the court shall rehear the appeal on such terms as to costs or otherwise as it thinks fit.

However, ordinarily, no ex parte decree should be passed by a court except on reliable evidence.

(d) Addition of respondent: Rule 20

Where it appears to the appellate court at the hearing of the appeal that any person who was a party to the suit in the trial court but who has not been made a party to the appeal is interested in the result of the appeal, the court may adjourn the hearing of the appeal and direct that such person be joined as a respondent. Such addition of a respondent cannot be ordered after the expiry of the period of limitation for appeal, unless the reasons are recorded for doing so. The Court can also make an order as to costs.

The object of Rule 20 is to protect parties to the suit who have not been made respondents in the appeal from being prejudiced by modifications being made behind their back in the decree under appeal. Over and above Rule 20, the appellate court has inherent power to add a party respondent or to transpose a party from one category to another.

JUDGMENT: SECTION 98, RULES 30-34

  • After hearing the parties or their pleaders, the appellate court shall pronounce the judgment in open court, either at once or on some future date after giving notice to the parties or their pleaders. It is not necessary for the court to read out the whole judgment and it can read out only the final order but a copy of the whole judgment should be made available for the perusal of the parties or their pleaders after the judgment is pronounced.
  • The judgment of the appellate court shall be in writing and shall state(i) the points for determination; (ii) the decision thereon; (iii) the reasons for the decision; and (iv) where the appeal is allowed and the decree of the lower court is reversed or varied, the relief to which the appellant is entitled. It shall be signed and dated by the judge or judges concurring therein.
  • Any judge dissenting from the judgment of the court shall state in writing the decision or order which he thinks should be passed on the appeal and state his reasons for the same.
  • As stated above, the appellate court is required to record reasons for its decision, but where the appellate court agrees with the view of the trial court on the evidence, it need not restate the effect of evidence and restate the reasons given by the trial court. Expression of general agreement with the reasons given by the trial court would ordinarily suffice.

DECREE: RULES 35-37

  • The decree of an appellate court shall contain (i) the date and the day on which the judgment was pronounced; (ii) number of the appeal, names and description of the parties and a clear specification of the relief granted or other adjudication made; (m) the costs of the appeal and of the suit and by whom they are to be paid; and (iv) the date and signature of the judge or judges who passed it. A dissenting judge need not sign the decree.
  • Certified copies of the judgment and decree shall be sent to the lower court and shall be furnished to the parties at their expense on an application being made to the appellate court.

LETTERS PATENT APPEAL

  • The Code of Civil Procedure makes no provision for an appeal within the High Court. Therefore, the question whether an appeal would lie against an order passed by a Single Judge to a Division Bench of the same court would depend upon the provisions of the Letters Patent of the High Court concerned. Under the relevant clause of the Letters Patent of the Chartered High Courts, from a “judgment” of a Single judge of the High Court, an appeal lies to the Division Bench of that High Court provided that such an appeal is not barred by any statute(e.g. Section 100-A of the Code) and provided that the other conditions are satisfied. Such an appeal can be filed within 30 days from the date of the order passed by the Single Judge. The procedure laid down in Order 41 applies to Letters Patent Appeals also.
  • It may, however, be stated that Section 100-A, as amended by the Code of Civil Procedure (Amendment) Act, 2002 states that notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, no further appeal shall lie from a judgment and decree by a Single Judge in a first appeal.
  • In this connection, it may be noted that Justice Malimath Committee had examined the issue of further appeal against a judgment of a Single judge exercising first appellate jurisdiction, i.e. under Section 96 of the Code and also exercising jurisdiction under Article 226 or 227 of the Constitution and recommended to suitably amend Section 1oo-Aof the Code abolishing intra-court appeal in those cases.
  • The recommendations were accepted and by the Code of Civil Procedure (Amendment) Act, 1999, Section 100-A was amended abolishing Letters Patent Appeal against the decision of a Single Judge in a first appeal as also in a petition under Article 226/227 of the Constitution of India. The Amendment Act of 1999 received assent of the President on 30 December 1999 but was not brought into force. Meanwhile by the Amendment Act of 2002, Section 100-A was further amended and a Letters Patent Appeal was barred against a decision by a Single judge in a First Appeal only. The amendment has been brought into force from1 July 2002.

 

SECOND APPEALS

Sections 100 to 103, 107-108 and Order 42 deal with second appeals. As already stated, a right of appeal is not a natural or inherent right attaching to litigation and it does not exist unless expressly conferred by a statute. Section 100 of the Code allows filing of second appeals in the High Court, if the High Court is satisfied that “the case involves a substantial question of law” but not on any other ground.

SECTION 100

Section 100 of the Code provides filing of second appeal in the High Court. It reads as under:

“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 passedex 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.

NATURE AND SCOPE

Section 100 of the Code as amended by the Amendment Act of 1976declares that 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. Such appeal lies also against an appellate decree passed ex parte. The appellant has to precisely state in the memorandum of appeal the substantial question of law involved in the appeal. Where the High Court is satisfied that a substantial question of law is involved in the case, it shall formulate such question. The High Court can hear the appeal on the question so formulated. It, however, permits the respondent (opposite party) to argue at the hearing of the appeal that the question formulated by the court as a substantial question of law does not involve such question. But the High Court has power to hear the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. The High Court, however, is required to record reasons for such satisfaction.

The amendment made in Section 100 has drastically changed and considerably curtailed the scope of a second appeal. Under the old section, a second appeal was maintainable on any of the three grounds set out in clauses (a), (b) or (c) of Section 100, which were liberally interpreted by High Courts, resulting in a plethora of conflicting judgments. The Law Commission rightly observed, “It appears that the wide language of Section 100 and the somewhat liberal interpretation placed judicially on it have practically resulted in giving a goodbye to the basic principle that on questions of fact decisions of courts of first instance would be final subject to one appeal.”

After the amendment in Section 100, the following consequences ensued:

  • The High Court must be satisfied that the case involves a substantial question of law;
  • The memorandum of appeal must precisely state such question;
  • The High Court at the time of admitting the appeal should formulate such question;
  • The appeal shall be heard only on that question;
  • At the hearing of the appeal, the respondent can argue that the case does not involve such question;
  • The High Court is, however, empowered to hear the second appeal on any other substantial question of law, not formulated by it, if it is satisfied that the appeal involves such question. The High Court, however, has to record reasons for doing so.

OBJECT

  • Before the Amendment Act, 1976, the scope of second appeals was very wide. It has been rightly observed, “In dealing with second appeals, the courts had devised and successfully adopted several concepts, such as, a mixed question of fact and law, a legal inference to be drawn from the facts proved, and even the point that the case has not been properly approached by the courts below. This had created confusion in the minds of the public as to the legitimate scope of the second appeal under Section 100 and had burdened the High Courts with an unnecessary large number of second appeals.”
  • The Shah Committee which dealt with the arrears of cases in High Courts observed:

“It is necessary to provide for a stricter and better scrutiny of second appeals and they should be made subject to special leave, instead of giving an absolute right of appeal limiting it to a question of law.”

  • The Law Commission in its Fifty-fourth Report reviewed the position and recommended that the right of second appeal should be confined to cases where (i) a question of law was involved; and (ii) the question of law so involved was substantial.
  • The phraseology used in the amended section (substantial question of law) indicates legislative intent for the change. There is no doubt that it has been done deliberately and intentionally with the avowed object of ensuring that the second appeal may not become a “third trial on facts” or “one more dice in the gamble”.
  • Considering the above recommendations, Section 100 has been drastically amended. By this amendment, the scope and ambit of the jurisdiction of the High Court to interfere with the decision of the inferior courts is very much narrowed down. The right of appeal is confined to cases where a question of law is involved and such question of law is a substantial one. Now the High Court can interfere with the decisions of inferior courts only when it is satisfied that a point involves a substantial question of law. With this, a large number of cases decided under the old Section 100 have become more or less academic.

SUBSTANTIAL QUESTION OF LAW

(a) Meaning 

The Legislature has not defined the term “substantial question of law”, though the expression has been used in the Constitution as well as in other statutes. The phrase, however, cannot be confined to a straitjacket and no rule of universal application can be formulated as to when it can be said that a substantial question of law has arisen.

(b) Nature and scope

A High Court can entertain a second appeal provided that it is satisfied that the case “involves” a substantial question of law. The term “involves” suggests that such a question must arise in the case and it is necessary to decide it. The mere fact that the question is raised by the appellant in the appeal is not enough and the High Court is not justified in entertaining the appeal. The term ‘involves’ implies a considerable element of necessity.

(c) Test

Though the expression substantial question of law has not been defined in the Code, in Chunilal V. Mehta and sons v. Century Spg. & Mfg. Co. Ltd., the Supreme Court observed:

“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 calls 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 raisedis palpably absurd, the question would not be a substantial question of law.

It can thus be said that when a question is fairly arguable, or where there is room for a different opinion, or where an alternative view is equally possible, or where the point is not finally settled, or not free from doubt, it can be said that the question would be a “substantial question of law”.

(d) Substantial question of law and question of law of general importance

At the same time, however, it should be remembered that, for the purpose of invoking the jurisdiction of the High Court under Section 100 of the Code, the substantial question of law need not be of general importance. The Law Commission in its Fifty-fourth Report made it clear by observing:

“It should be noted that we are not limiting the scope of second appeal to questions of law of general importance. If the law has been clearly laid down by the High Court, and the decision of the subordinate court is in clear violation of the law as pronounced by the High Court, the power of the High Court to correct it should be left intact. This situation would not be covered if the limitation of general importance is inserted.”

In other words, substantial question of law means a substantial question of law as between the parties in the case involved. A question of law is substantial as between the parties if the decision turns one way or the other on the particular view of law. If it does not affect the decision, it cannot be said to be substantial as between the parties. Ultimately, what is a substantial question of law would depend upon facts and circumstances of each case.

In RatanlalBansilal v. KishorilalGoenka, the Full Bench of the High Court of Calcutta after referring to the Fifty-fourth Report of the Law Commission and a number of decisions, observed:

“[B]y importing the expression substantial question of law, the Commission can be said only to have sought to eliminate frivolous, flimsy and fragile second appeals and exhorted the High Courts to be on the strictest vigil against entry of appeals on inconsequential but ingenious grounds. It does not by its own avowal preclude admission of appeal in cases where there has been judicial misconduct in the assessment or admission of evidence. This predicates that facts found upon such misconduct of the proceedings and misapplication of the procedure with regard to evidence will necessarily be a question of law touching the legality of inference on proved facts. If the law is settled but is not applied to a set of facts despite the finding warranting its application, it is not perceivable how the legislature could conceive of barring the High Court from setting right the erroneous application. Where the finding of fact is on no evidence it is then to be either on assumptions, or on surmises, and conjectures. How such a situation shall be allowed to go unremedied where it leads to the denial of justice. This will bring the judicial system to discredit before the people.

(e) Formulation of question

Formulation of a substantial question of law is the sine qua non and a condition precedent for the exercise of power by the High Court.

(f) Duty of appellant

The Code requires the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal, which he proposes to urge before the High Court.

(g) Duty of court

If the High Court is satisfied that a substantial question of law is involved in the case, it should formulate such a question.

The Code thus enjoins upon the High Court to formulate a substantial question of law. This duty is irrespective of the duty cast on the appellant. It is, no doubt, open to the High Court to consider the question stated or formulated by the appellant (or by his advocate) in the memorandum of appeal and if the High Court is satisfied that the appeal involves such a question and it is a substantial question of law, it should formulate the question. Often the court admits an appeal by virtually formulating a substantial question (questions) of law by taking it(them) verbatim from the memorandum of appeal filed by the appellant. Nevertheless the words “shall formulate that question” leave no room for doubt that ultimately it is the duty of the High Court to formulate a substantial question of law.

(h) Hearing of appeal

The Code states expressly that the appeal shall be heard on the question(substantial question of law) formulated by the High Court. It thus interdicts the appellant from urging any other ground in appeal without the leave of the court. The scope of hearing of second appeal is thus circumscribed by the question formulated by the court. Not only that but it allows the respondent to argue that the question formulated by the High Court is not involved in the case.

Generally, at the time of preliminary hearing of appeal, the respondent, who had succeeded for the first appellate court is not present in the High Court, and the second appeal is heard ex parte. But even if he is present, admission of appeal is essentially between the appellant and the court and the respondent (or his counsel) has no “right” of audience. Moreover, at that stage, the court does not critically or analytically examine the case closely. If prima facie, it is satisfied that the appeal involves a substantial question of law, it may admit such appeal. It is at the time of final hearing that the respondent may be able to convince the court that no such question of law is involved in the case which can be said or termed “substantial”. The legislature, therefore, advisedly conferred a right on the respondent to raise such contention at the time of hearing of appeal.

 

 

(i) Saving power of High Court

Proviso to sub-section (5) of Section 100, however, preserves powers of the High Court taking a second appeal for the final hearing to hear and decide the appeal upon any substantial question of law not framed or formulated at the time of admission of the appeal. The proviso is thus a repository of judicial discretion. It, no doubt, requires the High Court to exercise the power by recording reasons.

(j) Substantial question of law involved: Illustrative cases

Whether or not, in a particular matter, a substantial question of law is involved depends upon the facts and circumstances of each case. Moreover, the expression “involves” implies a considerable degree of necessity. It does not mean that in certain contingencies such a question might possibly arise. Similarly, the mere fact that such a question is raised in the second appeal is also not sufficient. It must definitely and clearly arise in the case. Finally, if a question of law has already been settled by the highest court, that question, however important and difficult it may have been regarded in the past and however large maybe its effect on any of the parties, would not be regarded as a substantial question of law.

The following questions may be said to be substantial questions of law:

  • A question of law on which there is conflict of judicial opinion;
  • Recording of a finding without any evidence on record;
  • Inference from or legal effect of proved or admitted facts;
  • Disregard or non-consideration of relevant or admissible evidence;
  • Taking into consideration irrelevant or inadmissible evidence;
  • Misconstruction of evidence or documents;
  • Interpretation or construction of material documents;
  • A question of admissibility of evidence;
  • Placing onus of proof on a wrong party;
  • Disposal of appeal before disposing an application for additional evidence under Order 41 Rule 27, etc.

(k) Substantial question of law not involved: Illustrative cases

The following questions were held not to be substantial questions of law:

  • Concurrent findings of fact recorded by courts of below;
  • Finding of fact recorded by the first appellate court;
  • Where two views are possible;
  • Where new case is sought to be made out in second appeal;
  • Where new plea is raised which is either based on fact, or on mixed question of fact and law, or on mere question of law (and not on substantial question of law);
  • Where the question raised is too general or omnibus in nature;
  • Where inference as to finding of fact has been drawn on the basis of evidence and material on record;
  • Where the question is finally concluded by the Supreme Court, Privy Council or Federal Court;
  • Where a finding of fact has been attacked on the ground that itis erroneous (as against perverse);
  • Where the High Court feels that the reasoning of the first appellate court is not proper, etc.

Like first appeal, where second appeal involves construction of material documents and if more than one view is possible, even if the High Court dismisses the appeal summarily, it should record reasons for doing so.

NO SECOND APPEAL IN CERTAINCASES: SECTIONS 101-102

No second appeal is maintainable except on the grounds specified in the Code. Likewise, no second appeal lies in any suit where the subject-matter of the original suit for recovery of money does not exceed twenty five thousand rupees.

NO LETTERS PATENT APPEAL: SECTION 100-A

Section 100-A as inserted by the Amendment Act of 1976 enacts that no further appeal shall lie against the decision of a Single Judge in a second appeal. In the Statement of Objects and Reasons, it has been stated, “Under the Letters Patent, an appeal lies in certain cases, against the decision of a Single Judge in a second appeal. Such appeal, in effect, amounts to a third appeal. For the purpose of minimising delay in the finality of adjudications, it is not desirable to allow more than two appeals. In the circumstances, new S. 100-A is being inserted to provide that there should be no further appeal against the decision of a Single Judge in a second appeal.”

This provision is prospective and not retrospective and would not affect vested right of Letters Patent Appeal against the judgment pronounced before 1 February 1977.

LIMITATION

A second appeal lies to a High Court within a period of ninety days from the date of the decree appealed against.

 FORM OF APPEAL

Since the second appeal is maintainable only when it involves a substantial question of law, a memorandum of second appeal must precisely state such question. However, unlike the memorandum of first appeal, it need not set out the grounds of objections to the decree appealed from. If the High Court is satisfied that the appeal involves such question, it will formulate that question and the hearing of appeal will be confined to that question only and the appellant cannot urge any other ground in appeal except with the leave of the court. But even if the High Court fails to formulate a substantial question of law at the time of admitting the appeal, the appeal cannot be dismissed on that ground and the court can formulate such a question at a later stage also.

No doubt, such a situation is regrettable. But failure on the part of the court cannot prejudicially or adversely affect the party. This does not, however, mean that the appellant has no duty at all. He must be vigilant o bring to the notice of the court the above error and get it corrected.In a given case if the conduct of the party in this regard lacks bonafides,his appeal may be dismissed also, but as a general principle of law, a party cannot be penalised for the mistake of the court. The proviso to sub-section (5) of Section 100 is indicative of the legislative intention in this regard. It confers enabling power upon the court to cure the defect and to ensure that no injustice is done to the appellant.

In SonubaiYeshwant v. BalaGovinda, Masodkar, I. rightly observed, “The restrictive scheme of Section 100 couched in mandatory terms, firstly, casts a duty on the court not to admit the appeals which do not involve substantial questions of law for such an appeal is not provided for; and secondly, it requires the admission order to speak about and spell out such substantial question and, thirdly, on that question the notice has to be issued to the respondents, who are enabled to show that such a question is neither a substantial question of law, nor arises n a given appeal but further at that stage with the leave of the court the appellant is further enabled to rely on any other substantial question of law which can form the part of the debate at the final hearing stage. While working out this compact scheme, however, occasion like the present one may arise wherein though the court admitted the appeal It failed to spell out the substantial questions of law as enjoined by sub-section (4). Doubtless such a situation is regrettable. Nonetheless, such omission is the omission of the court and not of the party. The principle that applies to the omissions, errors or mistakes on the part of the court should always be available in such an eventuality provided the course of justice is not prejudiced or affected to opponent’s disadvantage. Once the litigant has diligently followed the procedural law, he cannot be punished for the omission of the court. To act ex debitojustitiaeis the basic rule in matters of administration of justice and, particularly, when it arises out of the procedural laws. Failure on the part of the court, therefore, though serious does not affect the process of appeal which is set for final hearing, nor can the appeal be dismissed for that reason. There are ample complementary and supplementary inherent powers with which the court is clothed to cure such defects and that is expressly recognised by the provisions of Section 151 of the Code of Civil Procedure. Drawing upon that power in a given case, the court would be entitled to cure such a defect of court’s failure to comply with the mandatory requirements of sub-section (4) of Section 100 even by formulating such a question at the later stage.”

POWER OF HIGH COURT TO DECIDEISSUE OF FACT: SECTION 103

Though no second appeal lies on a question of fact, when such appeal is already before the High Court, and the evidence on record is sufficient, it may decide any issue of fact necessary for the disposal of the appeal, if such issue (a) has not been determined either by the trial court or bythe appellate court or by both; or (b) has been wrongly determined by such court or courts by reason of its/their decisions on a substantial question of law. This provision enables a High Court to decide even an issue of fact in certain circumstances.

 PROCEDURE AT HEARING

The provisions relating to first appeals shall apply to second appeals also.

PENDING APPEALS

As seen above, the right of appeal is a substantive right and is not merely a matter of procedure. Moreover, institution of a suit carries with it aright of appeal which is a vested right and such right is governed by the law prevailing at the date of filing of the suit or proceeding and it cannot be abrogated or curtailed by a subsequent legislation.

On the above analogy, the right of second appeal which accrued in favour of the appellant on the date of filing of the suit cannot be restricted or narrowed down by the Amendment Act of 1976 by which Section 100 was amended.

However, with a view to remove doubts, Section 97 of the Amendment Act, 1976 relating to “Repeal and Saving” clarifies that the provisions of the new Section 100 will not affect any second appeal admitted before the date then Amendment Act came into force.

GENERAL PRINCIPLES

From the aforesaid discussion, the following general principles can be deduced regarding second appeals:

  • A second appeal lies in the High Court;
  • Such an appeal is maintainable only on a substantial question of law alone;
  • An appeal lies also against an ex parte decree;
  • No second appeal lies except on grounds mentioned in Section 100, i.e. except on a substantial question of law. Thus, no appeal can be filed on a question of fact, question of law, or mixed question of fact and law;
  • No second appeal lies in a money decree, where the amount does not exceed twenty five thousand rupees;
  • The memorandum of appeal must state substantial question of law;
  • The High Court should formulate a substantial question of law while admitting an appeal;
  • The appeal will be heard only on such question;
  • The High Court, however, has power to hear the appeal on other substantial question of law not formulated by it at the admission stage by recording reasons;
  • At the hearing the respondent can argue that such question does not involve the appeal;
  • A substantial question of law does not mean a question of general importance but a question arising between the parties to the appeal;
  • In certain circumstances, a High Court can also decide an issue of fact;
  • Procedure at the hearing will be the same as that of the first appeal;
  • No letters patent appeal lies against the decision in the second appeal;
  • The provisions of the Amendment Act of 1976 do not apply to second appeals already admitted prior to the amendment and pending for hearing.

 

APPEALS FROM ORDERS

Sections 104 to 108 and Order 43 deal with appeals from orders. They state that certain orders are appealable. No appeal lies against other orders. But those orders can be attacked in an appeal from the final decree. They also provide for the forum of an appeal.

MEANING

Order” has been defined as “the formal expression of any decision of a civil court which is not a decree”. Thus, an adjudication of a court which does not fall within “decree”, is an “order”.

ORDER AND DECREE

In spite of some similarities, an order differs from a decree.

NATURE AND SCOPE

The Code has made certain orders appealable. Appeals can be filed only against those orders‘ which are made appealable. No appeal lies from other orders.

APPEALABLE ORDERS: SECTION 104, ORDER 43

An appeal shall lie from the following orders:

  • An order awarding compensatory costs in respect of false or vexatious claims or defence. (Section 35-A)

Such appeal, however, is limited to two grounds, namely:

  • No such order could have been made; or
  • An order for less amount ought to have been made.
  • An order refusing leave to institute a suit against public nuisance. (Section 91)
  • An order refusing leave to institute a suit in case of breach of trust. (Section 92)
  • An order awarding compensation for obtaining arrest, attachment or injunction on insufficient grounds. (Section 95)
  • An order imposing a fine or directing the arrest or detention in civil prison of any person except where such arrest or detention is in execution of a decree.
  • An order returning a plaint to be presented to the proper court. (Order 7 Rule 10)
  • An order rejecting an application (in appealable cases) to setaside the dismissal of a suit for default. (Order 9 Rule 9)
  • An order rejecting an application (in appealable cases) to setaside an ex parte decree. (Order 9 Rule 13)
  • An order dismissing a suit or striking out defence for non-compliance with an order for discovery. (Order 11 Rule 21)
  • An order objecting to the draft of a document or an endorsementon a negotiable instrument. (Order 21 Rule 34)
  • An order setting aside or refusing to set aside a sale. (Order 21 Rule 72, 92)
  • An order rejecting an application to set aside orders passed exparte in execution proceedings. [Order 21 Rule 106(1)]
  • An order refusing to set aside the abatement or dismissal of a suit. (Order 22 Rule 9)
  • An order giving or refusing to give leave to continue a suit by or against an assignee. (Order 22 Rule 10)
  • An order rejecting an application (in appealable cases) to set aside the dismissal of a suit for not furnishing security for costs within time. (Order 25 Rule 2)
  • An order rejecting an application for permission to sue as an indigent person. (Order 33 Rule 5 or 7)
  • An order in an interpleader suit for costs of the plaintiff where the defendant in interpleader suit sues the plaintiff in another court (Order 35 Rule 3), or for costs and discharge of the plaintiff in an interpleader suit. (Order 35 Rule 4 or 6)
  • An order to deposit money or other property, or to furnish security, or fresh security for appearance of the defendant (Order 38Rule 2 or Rule 3) or for attachment of property before judgment. (Order 38 Rule 6)
  • An order granting or refusing to grant interim injunction. (Order 39 Rule 1 or 2)
  • An order for attachment of property or detention of a person disobeying an order of injunction. (Order 39 Rule 2-A)
  • An order discharging, varying or setting aside injunction. (Order 39 Rule 4)
  • An order for deposit of money or other thing in court or for its delivery to the person entitled. (Order 39 Rule 10)
  • An order for appointment of receiver. (Order 40 Rule 1)
  • An order for attachment and sale of property of defaulting receiver. (Order 40 Rule 4)
  • An order refusing to restore an appeal dismissed for default of appearance by appellant. (Order 41 Rule 19)
  • An order refusing to rehear an appeal heard ex parte. (Order 41 Rule 21)
  • An order of remand (in appealable cases). (Order 41 Rule 23 or23-A)
  • An order granting an application for review. (Order 47 Rule 1)

OTHER ORDERS: SECTION 105, RULE 1-A

Section 105 enacts that every order whether appealable or not, except an order of remand, can be attacked in an appeal from the final decree on the ground (i) that there is an error, defect or irregularity in the order; and (ii) that such error, defect or irregularity affects the decision of the case. The principle underlying Section 105 is that when an interlocutory order is appealable, the party against whom such order is made is not bound to prefer an appeal against it. There is no such law which compels a party to appeal from every interlocutory order by which he may feel aggrieved. Section 105 makes it clear that an order appealable under Section 104 may be questioned under this section in an appeal from the decree in the suit, even though no appeal has been preferred against the interlocutory order.

Prior to the Amendment Act of 1976, an order under Order 23 Rule 3recording or refusing to record an agreement, compromise or satisfaction was appealable. By the Amendment Act of 1976, the said provision has been deleted. However Rule 1-A has been added which provides that in an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.

RES JUDICATA

The doctrine of res judicata applies to two stages of the same litigation also. Hence, if any interlocutory order has not been challenged, the same would operate as res judicata at all subsequent stages of the

suit and no party can be allowed to “set the clock back” during the pendency of the proceedings. It thus gives finality to such orders. Correctness thereof, however, can be challenged by an aggrieved party in a regular appeal from the final decree.

LIMITATION

An appeal from an order can be filed in a High Court within ninety days and in another court within thirty days from the date of the order.

FORUM OF APPEAL: SECTION 106

Appeals from orders in cases in which they are appealable, shall lie to the court to which an appeal would lie from the decree in the suit in which the order is made. Where such order is made by a court other than a High Court in the exercise of appellate jurisdiction, an appeal shall lie to the High Court. In certain circumstances, even a letters patent appeal is maintainable.

PROCEDURE AT HEARING

The provisions relating to first appeals shall apply to appeals from orders also.

LETTERS PATENT APPEAL

Sub-section (2) of Section 104 states that no appeal shall lie from any order made in appeal. A question may arise whether a Letters Patent Appeal would lie against an order passed by a Single Judge of the High Court.

There was a conflict of opinions on this point in the past but the controversy has been set at rest by a decision of the Supreme Court in ShahBabulal v. Jayaben D. Kania wherein the Apex Court held that Section104 applies to appeals to the High Court from subordinate courts. If a Single Judge of the High Court exercises original jurisdiction and makes an order, an appeal is competent under the Letters Patent to a Division Bench. But if such order is passed by a court subordinate to the High Court and an appeal against that order is decided by the Single Judge of the High Court under Section 104, no Letters Patent Appeal is maintainable.

 

PAHUJA LAW ACADEMY

APPEAL

PRELIMINARY

  1. Under section 100A of the CPC, where any appeal from an original or appellate decree or order is heard and decided by a single judge of a High Court
    • no further appeal shall lie from the judgment and decree of such single judge
    • further appeal shall lie under the Letters Patent for the High Court
    • further appeal shall lie with the leave of the Supreme Court
    • further appeal shall lie before the Division Bench of the High Court.
  2. Second appeal shall not lie from any decree, as provided under section 102 of CPC when the subject matter of the original suit is for recovery of money not exceeding
    • 10,000
    • 25,000
    • 50,000
    • 1,00,000.
  3. Right to appeal is
    • statutory right
    • natural right
    • inherent right
    • all the above.
  4. Right to appeal is to be governed by
    • the law prevailing at the time of pronouncement of judgment
    • the law prevailing at the time of institution of the suit
    • the law prevailing on the date of appeal
    • the law prevailing on the last day of limitation for filing an appeal.
  5. Right to appeal from every original decree has been provided under
    • section 94 of CPC
    • section 95 of CPC
    • section 96 of CPC
    • section 100 of CPC.
  6. Under section 96 of CPC, no appeal can be filed
    • against a compromise decree
    • against a decree in any suit cognizable by the courts of Small Causes, except on a question of law
    • both (a) & (b)
    • only (a) is correct and (b) is incorrect.
  7. Under section 96, an appeal can be preferred against a decree
    • by parties to the suit
    • by strangers/ third parties generally
    • by the strangers to the suit with the leave of the court
    • all the above.
  8. An appeal from a decree passed in appeal has been provided
    • under section 97 of CPC
    • under section 98 of CPC
    • under section 99 of CPC
    • under section 100 of CPC
  9. Under section 100 of CPC, second appeal lies to
    • the court of the District Judge
    • the High Court
    • the Supreme Court
    • either (a) or (b) or (c).
  10. Second appeal under section 100 of CPC lies
    • on question of facts
    • on substantial questions of law
    • on mixed question of law & fact
    • all the above.

 

PAHUJA LAW ACADEMY

REFERENCE

MAINS

 

  1. Write short notes on the followings
  • Review
  • Reference
  • Revision

 

  1. Distinction between Appeal, Reference,Review and Revision.

REFERENCE

  • Section 113 of the Code empowers a subordinate court to state a caseand refer the same for the opinion of the High Court. Such an opinion can be sought when the court itself feels some doubt about a questionof law. The High Court may make such order thereon as it thinks fit.
  • Such opinion can be sought by a court when the court trying a suit,appeal or execution proceedings entertains reasonable doubt about a question of law.

OBJECT

  • The underlying object for the provision for reference is to enable subordinate courts to obtain in non-appealable cases the opinion of the HighCourt in the absence of a question of law and thereby avoid the commission of an error which could not be remedied later on. Such provision also ensures that the validity of a legislative provision (Act, Ordinanceor Regulation) should be interpreted and decided by the highest court in the State. The reference must, therefore, be made before passing of the judgment in the case.

CONDITIONS

  • The right of reference, however, is subject to the conditions prescribed by Order 46 Rule 1 and, unless they are fulfilled, the High Court cannot entertain a reference from a subordinate court. The rule requires the following conditions to be satisfied to enable a subordinate court tomake a reference:
  • There must be a pending suit or appeal in which the decree is not subject to appeal or a pending proceeding in execution ofsuch decree;
  • A question of law or usage having the force of law must arise inthe course of such suit, appeal or proceeding; and
  • The court trying the suit or appeal or executing the decree must entertain a reasonable doubt on such question.
  • Questions of law on which a subordinate court may entertain a doubt may be divided into two classes:
  • Those which relate to the validity of any Act, Ordinance orRegulation; and
  • Other questions.
  • In the latter case, the reference is optional, but in the former case it is obligatory if the following conditions are fulfilled:
  • It is necessary to decide such question in order to dispose of the case;
  • The subordinate court is of the view that the impugned Act,Ordinance or Regulation is ultra vires; and
  • There is no determination either by the Supreme Court or by theHigh Court to which such court is subordinate that such Act,Ordinance or Regulation is ultra vires.
  • The object of this provision is to see that the Act of legislature should be interpreted by the Supreme Court in the State.

REASONABLE DOUBT

  • A reference can be made on a question of law only when the judge trying the case entertains a reasonable doubt about it. There can be no reasonable doubt on a question decided by the High Court to which the judge making reference is subordinate.’ But if such decision is doubted in a later decision by the same court or by a higher court, e.g. PrivyCouncil, Federal Court or Supreme Court, there is a room for reasonable doubt to make reference.

 WHO MAY APPLY?

  • Only a court can refer a case either on an application of a party or suo motu. “Court” means a Court of Civil Judicature. A tribunal or persona designata cannot be said to be a “court” and no reference can be made by them.

POWER AND DUTY OF REFERRING COURT

  • A reference can be made only in a suit, appeal or execution proceeding pending before the court. Such reference can be made when a subordinate court entertains a doubt on a question of law. Further, such question must have actually arisen between the parties litigating and the court must have been called upon to adjudicate the lis. No reference, hence, can be made on a hypothetical question or to provide an answer to a point likely to arise in future.

But once the question “arises” and the Proviso is attracted and validity of any Act, Ordinance or Regulation is challenged, and the referring court is prima facie satisfied that such Act, Ordinance or Regulation is ultra vires, the case has to be referred to the High Court.

POWER AND DUTY OF HIGH COURT

  • The jurisdiction of the High Court is consultative. In dealing with and deciding the reference the High Court is not confined to the questions referred by a subordinate court. If a new aspect of law arises, the High Court can consider it. The High Court may answer the question referred to it and send back the case to the referring court for disposal with law.It may also refuse to answer the reference or even to quash it. The High Court, however, cannot make any order on merits nor can it make suggestions.

PROCEDURE AT HEARING

  • The referring court should draw up a statement of the facts of the case,formulate the question of law on which opinion is sought and give itsopinion thereon. The court may either stay the proceedings or pass a decree or order contingent upon the decision of the High Court on the point referred, which cannot be executed until receipt of a copy of the judgment of the High Court on the reference. If the High Court answers the question in favour of the plaintiff, the decree will be confirmed. If it is answered against him, the suit will be dismissed. The High Court after hearing the parties, if they so desire, shall decide the point so referred and transmit a copy of its judgment to the court which shall dispose of the case in accordance with the said decision. Where the referring court has not complied with the conditions laid down for making reference, the High Court has power to return the case for amendment. The High Court can even quash the order of reference. The High Court may alter, cancel or set aside any decree or order passed or made by the court making the reference and make such order as it thinks fit.

COSTS

  • As a general rule, the costs of reference shall be the costs in the cause. But if the reference is altogether unwarranted, the High Court may direct the referring judge to personally pay the costs.

REVISION

  • An order refusing to make reference to the High Court is a “case decided” under Section 115 of the Code and is revisable.

REFERENCE UNDER CPC AND CONSTITUTION

Article 228 of the Constitution provides for transfer of certain cases to a High Court. Section 113 of the Code refers to the questions regarding the validity of any “Act, Ordinance or Regulation or of any provision”, while Article 228 of the Constitution refers to a substantial question of law as to the “interpretation of the Constitution”. An interpretation of an Act or statute does not necessarily involve an interpretation of the Constitution, nor vice versa. But a question as to the validity of an Act or provision may involve the interpretation of the Constitution in one form or the other.

Again, under Section 113 of the Code, the subordinate court trying the case can go into the question of vires of any Act, Ordinance or Regulation and can make a reference only when prima facie it is of the opinion that such Act, Ordinance or Regulation is invalid or inoperative; under Article 228 of the Constitution, on the other hand, a subordinate court cannot even investigate into such question. It is the duty of a subordinate court to refer the case to the High Court as soon as it discovers that it involves a substantial question of law as to the interpretation of the Constitution. It is also the duty of the High Court to withdraw such a case from a subordinate court. 

Review

Section 114 of the Code gives a substantive right of review in certain circumstances and Order 47 provides the procedure therefor. The provision relating to review constitutes an exception to the general rule that once the judgment is signed and pronounced by the court it becomes functus officio (ceases to have control over the matter) and has no jurisdiction to alter it.

REVIEW: MEANING

Stated simply, review means to reconsider, to look again or to re-examine. In legal parlance, it is a judicial re-examination of the case by the same court and by the same judge. In review, a judge, who has disposed of the matter reviews an earlier order passed by him in certain circumstances.

NATURE AND SCOPE

The normal principle of law is that once a judgment is pronounced or order is made, the court becomes functus officio. Such judgment or order is final and it cannot be altered or changed.

As a general rule, once an order has been passed by a court, a review of such order must be subject to the rules of the game and cannot be lightly entertained.‘ A review of a judgment is a serious step and reluctant resort to it is called for only where a glaring omission, patent mistake or like grave error has crept in earlier by judicial fallibility.

A power of review should not be confused with appellate powers which enable an appellate court to correct all errors committed by the subordinate court. In other words, it is beyond dispute that a reviewcannot be equated with the original hearing of the case, and finality ofthe judgment by a competent court cannot be permitted to be reopenedor reconsidered, unless the earlier judicial view is manifestly wrong. It is neither fair to the court which decided the matter nor to the hugebacklog of dockets waiting in the queue for disposal to file reviewpetitions indiscriminately and fight over again the same battle whichhas been fought and lost. Public time is wasted in such matters andthe practice, therefore, should be deprecated. Greater care, seriousnessand restraint is needed in review applications.

If a review application is not maintainable, it cannot be allowed bydescribing such an application as an application for “clarification” or “modification”.

A right of review is both, substantive as well as procedural. As asubstantive right, it has to be conferred by law, either expressly or bynecessary implication. There can be no inherent right of review. As aprocedural provision, every court or tribunal can correct an inadvertent error which has crept in the order either due to procedural defector mathematical or clerical error or by misrepresentation or fraud ofa party to the proceeding, which can be corrected ex debitojustitae(toprevent the abuse of process of court).

 

OBJECT

The remedy of review, which is a reconsideration of the judgment bythe same court and by the same judge has been borrowed from thecourts of equity. The concept was not known to common law. The remedy has a remarkable resemblance to a writ of error. The basic philosophy inherent in the recognition of the doctrine of review is acceptanceof human fallibility. If there is an error due to human failing, it cannotbe permitted to perpetuate and to defeat justice. Such mistakes or errorsmust be corrected to prevent miscarriage of justice. Justice is above all.It is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can come in its way. The law has to bendbefore justice. Rectification of an order stems from the fundamentalprinciple that justice is above all. It is exercised to remove an error and not to disturb finality.

 WHO MAY APPLY?

A person aggrieved by a decree or order may apply for review of a judgment. A “person aggrieved” means a person who has suffered a legalgrievance or against whom a decision has been pronounced which haswrongfully deprived him of something or wrongfully refused himsomething or wrongfully affected his title to something. The expression “person aggrieved” denotes an elastic, and to some extent, an illusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition.

Generally speaking, a person aggrieved has been understood tomean one who has a genuine grievance because an order has beenmade which prejudicially affects his interests. But the concept of “person aggrieved” varies according to the context, purpose and provisionsof the statute. However leniently one may construe the expression “party aggrieved” a person not affected directly and immediately cannot be so considered, otherwise an interpretation of service rules andregulations may affect several members and they will also be considered ”persons aggrieved”.

A person who is neither a party to the proceedings nor a decree ororder binds him, cannot apply for review as the decree or order doesnot adversely or prejudically affect him. But if third party is affectedor prejudiced by a judgment or order, he can seek review of such order. Again, a person who is a necessary party to the suit and yet not joinedand the order passed in such suit affects him, may seek review thereof.

WHEN REVIEW LIES:

A review petition is maintainable in the following cases:

(a) Cases in which no appeal lies

A decree or order from which no appeal lies is open to review. Hence, an application for review against a decree passed by a Court of SmallCauses is competent. On the same principle, where an appeal is dismissed on the ground that itwasincompetent or was time-barred, the provisions of review wiykd get attracted,

(b) Cases in which appeal lies but not preferred

A review petition is also maintainable in cases where appeal is provided but no such appeal is preferred by the aggrieved party. The factthat an order is subject to appeal is not ground to reject an application for review. An application for review can be presented so long as noappeal is preferred against the order.

Where, however, an appeal is already instituted before making anapplication for review, the court cannot entertain such application. Likewise, where an appeal is preferred and is disposed of, no reviewwould lie against the decision of the lower court. But if an applicationfor review is preferred first and then an appeal is filed, the jurisdictionof the court to deal with and decide the review petition is not affected.

The words “from which an appeal is allowed” should be construedliberally keeping in mind the underlying object of the provision thatbefore making a review application, no superior court has been movedfor getting the selfsame relief, so that for one and the same relief twoparallel proceedings before two forums are not taken. If review isgranted before disposal of the appeal, the decree or order ceases to exist and the appeal will not remain.

Conversely, if appeal is decided on merits before an application ofreview is heard, such petition becomes infructuous and is liable to bedismissed. The principle applies to dismissal of Special Leave Petitionsby the Supreme Court. But if a Special Leave Petition is merely filedand is not decided, the bar would not apply.

(c) Decisions on reference from Court of Small Causes

The Code of Civil Procedure, 1908 allows a review of a judgment on areference from a Court of Small Causes.

GROUNDS

An application for review of a judgment may be made on any of the following grounds:

  • Discovery of new and important matter or evidence; or
  • Mistake or error apparent on the face of the record; or
  • Any other sufficient reason.

Let us consider the above grounds in detail:

(i) Discovery of new evidence

A review is permissible on the ground of discovery by the applicantof some new and important matter or evidence which, after exercise ofdue diligence, was not within his knowledge or could not be producedby him at the time when the decree was passed.

As a general rule, where a litigant has obtained a judgment in a courtof justice, he is by law entitled not to be deprived of the fruits thereofwithout very strong reasons. Therefore, where a review of a judgment is sought by a party on the ground of discovery of fresh evidence,utmost care ought to be exercised by the court in granting it.

It is very easy for the party who has lost the case to see the weakpoints in his case and he would be tempted to try to fill in gaps by procuring evidence which will strengthen that weak part of his case andput a different complexion upon that part.

The underlying object of this provision is neither to enable thecourt to write a second judgment” nor to give a second innings to theparty who has lost the case because of his negligence or indifference. Therefore, a party seeking review must show that there was no remisson his part in adducing all possible evidence at the trial.

Again, the new evidence must be such as is presumably to bebelieved, and if believed to be conclusive. In other words, such evidence must be (1) relevant; and (2) of such a character that if it had beengiven it might possibly have altered the judgment.

Thus, the discovery of a document containing an admission of liability by the defendant would be a good ground for review. Similarly,where the decree for restitution of conjugal rights was passed andsubsequently it was discovered that the parties were cousins and themarriage was, therefore, null and void, the review was granted. Again,where the court issued commission for the examination of a witness inPakistan and subsequently it was brought to its notice that there was noreciprocal arrangement in this respect between Pakistan and India, thecourt reviewed its earlier decision.

But where it is doubtful whether the evidence, even if produced,would have had any effect on the judgment, review cannot be granted.Thus, where a suit was dismissed on two grounds; namely (i) for wantof notice as required by law; and (ii) the illegitimacy of the plaintiff; anda review was applied for on the ground of legitimacy of the plaintiff, itwas refused on the ground that the suit was, in any case, required tobe dismissed on the ground of want of notice. Further, Rule 1 refersto evidence or other matter in the nature of evidence, and therefore, reviewcannot be granted on the ground of discovery of new points of law orauthorities which show that the decision was not correct. Nor can it begranted on the happening of some subsequent event or change in law.

As observed by Lord Davey, “The section” does not authorise thereview of a decree which was right when it was made on the ground ofhappening of some subsequent event.

Before an application of review can be granted, the applicant mustestablish that even after exercise of due diligence, such evidence wasnot within his knowledge or could not be produced by him before thecourt at the time when the decree was passed. There must be sufficientevidence of diligence in getting all the evidence available.

An application for review should be refused when such evidencecould have been produced had reasonable care and diligence been exercised. Thus, where the trial lasted for three years, an application forreview of the judgment was refused on the ground that no sufficientcause was shown as to why the new evidence was not produced at the relevant time.

(ii)     Error apparent on the face of record

Another ground for review is a mistake or an error apparent on the faceof the record. What is an error apparent on the face of the record cannot be defined precisely or exhaustively, and it should be determined judicially on the fact of each case. Such error may be one of fact orof law.However, no error can be said to be an error apparent on theface of the record if it is not self-evident and requires an examination or argument to establish it. In other words, an error cannot be said to be apparent on the face of the record where one has to travel beyond the record to see if the judgment is correct or not.

An error which has to be established by a long drawn out process ofreasoning on points where there may conceivably be two opinions canhardly be said to be an error apparent on the face of the record.

In Thungabhadra Industries Ltd. v. Govt. of A.P., the Supreme Courtrightly observed: –

“A review is by no means an appeal in disguise whereby an erroneousdecision is reheard and corrected, but lies only for patent error. We do notconsider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us tosay that where without any elaborate argument one could point to the error andsay here is a substantial point of law which stares one in the face, and there couldreasonably be no two opinions entertained about it, a clear case of error apparenton the face of the record would be made out.

The following have been held to be errors apparent on the face of therecord: pronouncement of judgment without taking into considerationthe fact that the law was amended retrospectively; or without considering the statutory provisions or on the ground of omission to trya material issue in the case; or on the ground that the court decidesagainst a party on matters not in issue; or where the judgment is pronounced without notice to the parties?’ or where the want of jurisdiction is apparent on the face of the record; or taking a view contrary tothe law laid down by the Supreme Court.

The following have been held not to be errors apparent on the face ofthe record: an erroneous decision on merits; or an erroneous view oflaw; or the fact that the other High Court has taken a different view onthe question, or that a different conclusion would have been arrivedat; or where the judgment is based on two or more grounds, each ofwhich is sufficient to sustain it and one of them is erroneous.

The Explanation to Rule 1 has been inserted by the Amendment Actof 1976. It clarifies the fact that the decision on a question of law onwhich the judgment of the court is based has been reversed or modifiedby the subsequent decision of a superior court in any other case, shallnot be a ground for review of such judgment.

(iii)    Other sufficient reason

The last ground for review is “any other sufficient reason”. The expression “any other sufficient reason” has not been defined in the Code.However, relying on the judgment of the Privy Council and theFederal Court, the Supreme Courts’ has held that the words any othersufficient reason must mean “a reason sufficient on grounds, at least analogous to those specified in the rule”.

The following have been held to be sufficient reasons for grantingreview: where the statement in the judgment is not correct; or wherethe decree or order has been passed under a misapprehension of thetrue state of circumstancesor where a party had no notice or fairopportunity to produce his evidence; or where the court had failed toconsider a material issue, fact or evidence ; or where the court has omitted to notice or consider material statutory provisions; or a groundwhich goes to the root of the matter and affects inherent jurisdictionof the court, or misconception by the court of a concession made bythe advocate, or where a party’s evidence has been closed owing toa misconception on the part of his pleader; or a manifest wrong hasbeen done and it is necessary to pass an order to do full and effective justice.

The following, on the other hand, have been held not sufficient reasons for granting review: omission to frame an issue regarding thevaluation of the suit; or negligence or inadvertence on the part ofthe party or his pleader; or absence of the party on the date of thehearing, or subsequent events; or failure of a party or his pleader toraise a plea; or that the case should have been argued differently; or to enable the applicant to raise points which he could and oughtto have raised at the former hearing; or where the review is soughton the ground that if another opportunity were given to the applicantto establish his case, he could prove that the judgment of the court iswrong;‘°‘ or that the case has been mismanaged by his counsel; orthat the court took a different view in a subsequent case.

BY WHOM REVIEW MAY BE MADE?

Review is reconsideration of the same subject-matter by the same courtand by the same judge. If the judge who has decided the matter is available he alone has jurisdiction to consider the case, and review the earlier order passed by him. He is best suited to remove any mistake orerror apparent on the face of his own order. Moreover, he alone will beable to remember what was earlier argued before him and what was noturged. The law, therefore, insists that if he is available, he alone should hear the review petition.

There may, however, be situations wherein this course is notpossible. The same “judicial officer” may not be available.Death or such other unexpected or unavoidable causes might prevent the judge who passed the order from reviewing it. Suchexceptional cases are allowable only ex-necessitate and in those caseshis successor or any other judge or court of concurrent jurisdictionmay hear the review petitions and decide the same.

NO INHERENT POWER OF REVIEW

It is well-settled that the power of review is not an inherent power. Itmust be conferred by law either expressly or by necessary implication.If there is no power of review, the order cannot be reviewed. In suchcases, the question whether the order is correct or valid in law does not arise for consideration. It is, however, the duty of the court to correctgrave and palpable errors committed by it.

This principle applies to courts, tribunals, quasi-judicial authorities or administrative authorities exercising quasi-judicial powers. Theprinciple has no application to decisions purely of an administrativenature. To extend the principle to pure administrative decisions wouldlead to untoward and startling results. The Government is free to alterits policy or its decisions in administrative matters. The administration cannot be hidebound by rules and restrictions of judicial procedure though of course they are bound to obey statutory provisions andalso observe the principles of natural justice where rights of parties areaffected. Finally, decisions of the Government are subject to judicialreview and questioned in a competent court on all available grounds.

COURT OF PLENARY JURISDICTION

A court of plenary jurisdiction, for instance, a writ court, has inherentpower to review its orders to prevent miscarriage of justice or to correct grave and palpable errors committed by it. If it is the final courtof the country, it has the last opportunity to verify doubts and to undoinjustice, if any, which might have occurred in the earlier order. Inappropriate cases, the power may be exercised suomotu.

FORM OF APPLICATION

An application for review should be in the form of a memorandum ofappeal. The form of an application, however, is immaterial. The substance and not the form of an application is decisive.

CRUCIAL DATE

The crucial date for determining whether or not the terms of the Codeare satisfied is the date when the application for review is filled.

SUO MOTU REVIEW

The power of review can be exercised by a court on an application by a “person aggrieved”. The Code does not empower the court to exercisepower of review suomotu.

It is settled principle of law that when a statute requires a particular thing to be done in a particular manner, it has to be done only inthat manner and in no any other manner. “There is no provision eitherin Section 114 or in Order 47 of the Code providing for any suomotu review.”

In R.S. Nayak v. A.R. Antulay, however, Mukharji, J. (as he then was)observed that the Supreme Court may exercise power of review suomotu in an appropriate case.

SUCCESSIVE APPLICATIONS

There cannot be successive review petitions one after the other. Anorder passed on an application for review is not open to review againand again. A decision on review petition is also an which would operate res judicata in a subsequent petition unless thereare different grounds.

The practice of filing indiscriminate review petitions or review petitions in the form of “clarification”, “modification” or “recall” of orderhas also been deprecated by the Supreme Court.

PROCEDURE AT HEARING

An application for review may be divided into the following threestages:

(i) First stage

An application for review commences ordinarily with an ex parte application by the aggrieved party. The court may reject it at once if there isno sufficient ground or may issue rule calling upon the opposite partyto show cause why review should not be granted.

(ii) Second stage

The application for review shall then be heard by the same court andby the same judge who passed the decree or made the order, unlesshe is no longer attached to the court, or is precluded from hearing itby absence or other cause for a period of six months after the application. If the rule is discharged, the case ends and the application willbe rejected. If, on the other hand, the rule is made absolute, the application will be granted for rehearing of the matter.

(iii) Third stage

In the third stage, the matter will be reheard on merits by the courteither at once or at any time fixed by it. After rehearing the case, thecourt may either confirm the original decree or vary it.

The effect of allowing an application for review is to recall the decreealready passed. Any order made subsequently whether reversing, confirming or modifying the decree originally passed will be a new decree superseding the original one.

LIMITATION

The period of limitation for an application for review of a judgment bya court other than the Supreme Court is thirty days from the date of the decree or order.

APPEAL

An order granting an application for review is appealable, but an orderrejecting an application is not appealable. No second appeal lies froman order made in appeal from an order granting review.

LETTERS PATENT APPEAL

An order refusing an application for review cannot be said to be a”judgment” and hence, no Letters Patent Appeal lies. But an ordergranting review may amount to judgment and a Letters Patent Appeal is competent.

REVISION

An application for review can be said to be a “proceeding” and a decision thereon amounts to a “case decided” under the Code and such decision is revisable.

REVIEW IN WRIT PETITIONS

After the amendment in Section 141 of the Code and insertion ofExplanation to that section it is clear that the provisions of Order 47of the Code do not apply to writ petitions filed in a High Court underArticle 226 of the Constitution.

There is nothing in Article 226 to preclude a High Court from exercising the power of review which inheres in every court of plenaryjurisdiction to prevent miscarriage of justice or to correct grave andpalpable errors committed by it.

At the same time, however, there are definitive limits to the exerciseof the power of review. It cannot be forgotten that a review is not anappeal in disguise whereby an erroneous decision is reheard and corrected. This general rule applicable to civil proceedings would apply toproceedings under Article 226 of the Constitution as well.

While exercising the power of review, a High Court may bear inmind the following principles:

  • The provisions of the Civil Procedure Code in Order 47 are notapplicable to the High Court’s power of review in proceedingsunder Article 226 of the Constitution.
  • The said powers are to be exercised by the High Court only toprevent miscarriage of justice or to correct grave and palpableerrors. (The epithet “palpable” means that which can be felt by asimple touch of the order and not which could be dug out after along drawn out process of argumentation and ratiocination.)
  • The inherent powers, though ex facie plenary, are not to betreated as unlimited or unabridged but they are to be invokedon the grounds analogous to the grounds mentioned in Order47 Rule 1.

REVIEW BY SUPREME COURT

The provisions of Order 47 apply to orders passed under the Code ofCivil Procedure. Article 137 of the Constitution confers power on theSupreme Court to review its judgments subject to the provisions ofany law made by Parliament or the Rules made under Article 145. Thepower of the Supreme Court, therefore, cannot be curtailed by the Code of Civil Procedure.

CONCLUDING REMARKS

It is submitted that the following observations of Pathak, J. (as he thenwas) in the leading case of Northern India Caterers (India) Ltd. v. Lt.Governor of Delhi lay down the correct principle of law on the powerof review and, therefore, are worth quoting:

”The normal principle is that a judgment pronounced by the Court is final,and departure from that principle is justified only when circumstancesof a substantial and compelling character make it necessary to doso ……… [W]hatever the nature of the proceeding, it is beyond dispute thata review proceeding cannot be equated with the original hearing of thecase, and the finality of the judgment delivered by the court will not bereconsidered except where a glaring omission or patent mistake or like graveerror has crept in earlier by judicial fallibility.”  

 Revision

Section 115 of the Code of Civil Procedure empowers a High Court toentertain a revision in any case decided by any subordinate court incertain circumstances. This jurisdiction is known as revisional jurisdiction of the High Court.

REVISION: MEANING

According to the dictionary meaning, “to revise” means “to look againor repeatedly at”; “to go through carefully and correct where necessary”, “to look over with a view to improving or correcting”. ”Revision”means “the action of revising, especially critical or careful examinationor perusal with a view to correcting or improving”.

SECTION 115

Section 115 invests all High Courts with revisional jurisdiction. It readsas under:

“115. Revision.—(1) The High Court may call for the record of any casewhich has been decided by any court subordinate to such High Court andin which no appeal lies thereto, and if such subordinate court appears:

  • to have exercised a jurisdiction not vested in it by law, or
  • to have failed to exercise a jurisdiction so vested, or
  • to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit:

Provided that the High Court shall not, under this section, vary orreverse any order made, or any order deciding an issue, in the course ofa suit or other proceeding, except where the order, if it had been made infavour of the party applying for revision, would have finally disposed ofthe suit or other proceedings.

(2) The High Court shall not, under this section, vary or reverse anydecree or order against which an appeal lies either to the High Court or toany court subordinate thereto.

(3) A revision shall not operate as a stay of suit or other proceedingbefore the Court except where such suit or other proceeding is stayed bythe High Court.

Explanation.—In this section, the expression, ‘any case which has beendecided’ includes any order made, or any order deciding an issue, in thecourse of a suit or order proceeding.

NATURE AND SCOPE

Section 115 authorises the High Court to satisfy itself on three matters:

(a) that the order of the subordinate court is within jurisdiction; (b) thatthe case is one in which the court ought to exercise its jurisdiction; and(c) that in exercising jurisdiction the court has not acted illegally, that is,in breach of some provision of law, or with material irregularity, that is,by committing some error of procedure in the course of the trial whichis material in that it may have affected the ultimate decision.

If the High Court is satisfied with these three matters, it has no powerto interfere because it differs, however profoundly, from the conclusionof the subordinate court on questions of fact or of law? It is well-established that where there is no question of jurisdiction the decision cannot be corrected for a court has jurisdiction to decide wrongly, as well as rightly.

In Major S.S. Khanna v. Brig. F.J. Dillons, Shah, I. (as he then was)stated, “The section consists of two parts, the first prescribes the conditions in which jurisdiction of the High Court arises, i.e. there is a casedecided by a subordinate court in which no appeal lies to the HighCourt, the second sets out the circumstances in which the jurisdictionmay be exercised.”

Hidayatullah, J. (as he then was) also observed that “the section isconcerned with jurisdiction and jurisdiction alone involving a refusalto exercise jurisdiction where one exists or an assumption of jurisdiction where none exists and lastly acting with illegality or material irregularity”.

In PandurangRamchandraMandlik v. MarutiRamchandraGhatge, Gajendragadkar, J. (as he then was) rightly propounded:

“The provisions of S. 115 of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under S. 115, itis not competent to the High Court to correct errors of fact, however grossthey may be, or even errors of law, unless the said errors have relation to

the jurisdiction of the court to try the dispute itself. As cls. (a), (b) and (c) ofS. 115 indicate, it is only in cases where the subordinate court has exerciseda jurisdiction not vested in it by law, or has failed to exercise a jurisdictionso vested, or has acted in the exercise of its jurisdiction illegally or withmaterial irregularity that the revisional jurisdiction of the High Courtcan be properly invoked. It is conceivable that points of law may arisein proceedings instituted before subordinate courts which are related toquestions of jurisdiction. It is well-settled that a plea of limitation or aplea of res judicata is a plea of law which concerns the jurisdiction of theCourt which tries the proceedings. A finding on these pleas in favour ofthe party raising them would oust the jurisdiction of the Court, and so, anerroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of S. 115 of the Code.But an erroneous decision on a question of law reached by the subordinate courtwhich has no relation to questions of jurisdiction of that Court, cannot be correctedby the High Court under S. 115.”

OBJECT

The underlying object of Section 115 is to prevent subordinate courtsfrom acting arbitrarily, capriciously and illegally or irregularly in theexercise of their jurisdiction. It clothes the High Court with the powers to see that the proceedings of the subordinate courts are conductedin accordance with law within the bounds of their jurisdiction andin furtherance of justice.’ It enables the High Court to correct, whennecessary, errors of jurisdiction committed by subordinate courts andprovides the means to an aggrieved party to obtain rectification of anon-appealable order. In other words, for the effective exercise of itssuperintending and visitorial powers,revisional jurisdiction is conferred upon the High Court.

At the same time, however, the judges of the lower courts have perfect jurisdiction to decide a case, and even if they decide wrongly, theydo not commit “jurisdictional error”. Revisional jurisdiction is notintended to allow the High Court to interfere and correct errors of fact or of law.

REVISION AND WRIT

The revisional power under Section 115 of the Code is clearly in thenature of a power to issue a writ of certiorari. It is, however, not as wideas certiorari since it can be exercised only in the case of a jurisdictionalerror and not in the case of any other error. Power of the High Court inrevision is not in any manner wider than the power under Article 226of the Constitution.

Again, if the petitioner has already filed a revision in the High Courtunder Section 115 and has obtained an order, he cannot thereafterinvoke the jurisdiction of the High Court under Article 226. If there aretwo modes of invoking the jurisdiction of the High Court and one ofthose modes has been chosen and exhausted, it would not be a properand sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate court.

In Major S.S. Khanna v. Brig. F.J. Dillon Hidayatullah, J. (as he thenwas) stated, “The power given by S. 115 of the Code is clearly limitedto the keeping of the subordinate courts within the bounds of theirjurisdiction. It does not comprehend the power exercisable under thewrit of prohibition or mandamus. It is also not a full power of certiorariinasmuch as it arises only in a case of jurisdiction and not in a case oferror… . Where there is no question of jurisdiction, the decision cannotbe corrected for it has been ruled that a court has jurisdiction to decidewrongly as well as rightly. But once a flaw of jurisdiction is found theHigh Court need not quash and remit as is the practice in English Lawunder the writ of certiorari but pass such order as it thinks fit.”

REVISION AND POWER OF SUPERINTENDENCE

A revision under Section 115 of the Code and a petition under Article227 of the Constitution are two separate and distinct proceedings. Onecannot be identified with the other.

Firstly, while the revisional power is only judicial, the power ofsuperintendence is both judicial as well as administrative. Secondly,the revisional power is statutory and it can be taken away by a legislation. But the power of superintendence is constitutional and cannotbe taken away or curtailed by a statute. Finally, the revisional powersof the High Court are restricted and can be exercised on all the conditions laid down in Section 115 of the Code being fulfilled, none of thoserestrictions apply to exercise of supervisory powers of the High Courtunder Article 227 of the Constitution.

But once a party chooses to invoke revisional jurisdictional of theHigh Court and exhausts that remedy, he cannot be allowed to pressin aid supervisory jurisdiction thereafter. Where there are two modesof invoking the jurisdiction of a court, tribunal or authority and anaggrieved party chooses and exhausts one of the remedies, it would notbe proper and sound exercise of discretion to grant relief in the otherset of proceedings. The refusal to grant relief in such circumstanceswould be in consonance with the anxiety of the court to prevent abuseof the process of law as also to respect and accord finality to its own decisions.

 

APPEAL, REFERENCE, REVIEW ANDREVISION: DISTINCTION

(1) Appeal and revision

  • An appeal lies to a superior court, which may not necessarily bea High Court, while a revision application under the Code liesonly to the High Court.
  • An appeal lies only from the decrees and appealable orders, but arevision application lies from any decision of a court subordinateto the High Court from which no appeal (either first appeal orsecond appeal or appeal from an order) lies to the High Court orto any subordinate court.
  • A right of appeal is a substantive right conferred by the statute, while the revisional power of the High Court is purelydiscretionary.
  • An appeal abates if the legal representatives of a deceased partyare not brought on record within the prescribed period. A revision application, however, does not abate in such cases. The HighCourt may at any time bring the proper parties on the record ofthe case.
  • The grounds for an appeal and a revision application are alsodifferent. A revision application lies only on the ground of jurisdictional error. An appeal lies on a question of fact or of law or offact and law.
  • Filing of an application is not necessary in case of revision. Anaggrieved party may invoke the jurisdiction of the High Courtby filing an application or the High Court may exercise the revisional jurisdiction even suomotu (of its own motion). In case ofappeal, on the other hand, a memorandum of appeal must befiled before the appellate court by the aggrieved party.

(2) First appeal and second appeal

  • Whereas a first appeal lies from a decree passed by a court exercising original jurisdiction, a second appeal lies from a decreepassed by a court exercising appellate jurisdiction.
  • A first appeal lies to a superior court, which may or may notbe a High Court, whereas a second appeal lies only in the HighCourt.
  • The grounds of first appeal and second appeal are different.Whereas a first appeal can be filed on a question of fact, or oflaw,or of fact and law, a second appeal can lie only on a substantialquestion of law.
  • Where the amount of a decree does not exceed three thousandrupees, a first appeal is maintainable on a question of law, but asecond appeal does not lie in such cases.
  • In a first appeal an appellate court has power to decide issues offact, but in a second appeal a High Court can decide issues of factonly in certain cases. (Section 103)
  • The period of limitation for filing a first appeal is ninety days incase such an appeal lies to a High Court and thirty days if it liesin any other court. A second appeal, however, can be filed onlyin a High Court within ninety days.
  • A letters patent appeal is maintainable against a “judgment” ofa Single judge of a High Court to a Division Bench of the sameCourt, but no such appeal is maintainable against a decision of aSingle Judge in a second appeal. (Section 100-A)

(3) Second appeal and revision

  • A second appeal lies to the High Court on the ground of a substantial question of law, while a revision application lies on theground of jurisdictional error.
  • The revisional powers of the High Court can be invoked onlyin those cases in which no appeal (either first appeal or secondappeal or appeal from an order) lies to the High Court or to anysubordinate court. The second appeal lies only in the High Courtunder Section 100 of the Code.
  • While exercising revisional jurisdiction the High Court cannot interfere with an order passed by the subordinate court, if it iswithin its jurisdiction even if it is legally wrong. The High Court,on the other hand, can interfere with a decree passed by thelower appellate court if it is contrary to law.
  • The High Court cannot decide a question of fact in the exerciseof its revisional jurisdiction, while it can decide a question of factin the second appeal in certain circumstances.
  • The High Court may decline to interfere in revision if it is satisfied that substantial justice has been done. In the second appeal,however, the High Court has no discretionary power and it cannot refuse to grant relief merely on equitable grounds.

(4) Appeal and reference

  • A right of appeal is a right conferred on the suitor, while thepower of reference is vested in the court.
  • Reference is always made to the High Court. An appeal can befiled to a superior court which need not necessarily be a High Court.
  • The grounds of appeal are wider than the grounds of reference.
  • Reference is always made pending a suit, appeal or executionproceedings, while an appeal can only be filed after the decree ispassed or an appealable order is made.

(5) Appeal and review

  • An appeal lies to the superior court, while a review lies to thesame court.
  • Review of a judgment involves reconsideration of the same subject-matter by the same judge, while an appeal is heard by a different judge.
  • The grounds of appeal are wider than the grounds of review.
  • A second appeal lies on a substantial question of law. A secondreview application, however, does not lie.

(6) Reference and review

  • In reference, it is the subordinate court and not the party whichrefers the case to the High Court. In case of review, the application is made by the aggrieved party.
  • The High Court alone can decide matters on reference. Review,on the other hand, is by the court which passed the decree ormade the order.
  • Reference is made pending a suit, appeal or execution proceedings, while an application for review can be made only after thedecree is passed or order is made.
  • The grounds for reference and review are different.

(7) Reference and revision

  • In reference, the case is referred to the High Court by a courtsubordinate to it. In case of revision, the jurisdiction of the HighCourt is invoked either by the aggrieved party or by the HighCourt suomotu.
  • The grounds of reference relate to reasonable doubt on a question of law, while the grounds for revision relate to jurisdictionalerrors of the subordinate court.

(8) Review and revision

  • Revisional jurisdiction can only be exercised by the High Court,while the power of review can be exercised by the very courtwhich passed the decree or made the order.
  • Revisional power can be exercised by the High Court only in acase where no appeal lies to the High Court, but review can bemade even when an appeal lies to the High Court.
  • Revisional powers can be exercised by the High Court even suomotu (of its own motion), but for review an application has to bemade by an aggrieved party.
  • The powers of revision and review can be exercised on differentgrounds.
  • The order granting review is appealable, but an order passed inthe exercise of revisional jurisdiction is not appealable.

(9) Revision and writ

  • Revisional jurisdiction can be exercised by the High Court underSection 115 of the Code of Civil Procedure, 1908 while writ jurisdiction can be exercised by the High Court under Article 226 (orby the Supreme Court under Article 32) of the Constitution ofIndia.
  • Revisional jurisdiction of the High Court is not as wide as thejurisdiction under a writ of certiorari.
  • If a party has invoked revisional jurisdiction of the High Court,he cannot thereafter invoke the jurisdiction of the High Courtunder Article 226 of the Constitution.

 

LAW COMMISSION’S VIEW

According to Law Commission, while dealing with revisional jurisdiction, a High Court should bear in mind the following rules:

  • Rule nisi should not be issued except upon a very careful andstrict scrutiny;
  • Where no stay is granted, record of subordinate court should notbe called for; and even where record is necessary, only copies ofthereof should be required to be produced; and
  • Whenever stay is granted, every effort should be made to dispose of revision within two to three months.

WHO MAY FILE?

A person aggrieved by an order passed by a court subordinate to theHigh Court may file a revision against such order. But the High Courtmay even suomotu exercise revisional jurisdiction under Section 115 of the Code.

CONDITIONS

The following conditions must be satisfied before revisional jurisdiction can b exercised by the High Court:

  • a case must have been decided;
  • court which has decided the case must be a court subordinate to the High Court;
  • the order should not be an appealable one; and
  • the subordinate court must have (a) exercised jurisdiction notvested in it by law; or (b) failed to exercise jurisdiction vested init; or (c) acted in the exercise of its jurisdiction illegally or with material irregularity.

(i) Case decided

The expression “case decided” was not defined in the Code of 1908. Itgave rise to a number of conflicting decisions on the question whetherthe said expression included an interlocutory order also. But the conflict was ultimately resolved by the Supreme Court in the case of MajorS.S. Khanna v. Brig. F.J. Dillon, holding that Section 115 applies even tointerlocutory orders. In that case, Shah, J. (as he then was) observed:

“The expression ‘case’ is a word of comprehensive import; it includes civilproceedings other than suits, and is not restricted by anything containedin the section to the entirety of the proceeding in a civil court. To interpret the expression ‘case’ as an entire proceeding only and not a part ofproceeding would be to impose a restriction upon the exercise of powersof superintendence which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject to, and may result in certain cases in denyingrelief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice.

Explaining the ratio laid down in Major Khanna, the Supreme Court in BaldevdasShivlal v. Filmistan Distributors (India) (P) Ltd., held that a casemay be said to have been decided if the court adjudicates for the purpose of the suit some right or obligation of the parties in controversy.Every order in the suit cannot be regarded as a case decided within themeaning of Section 115 of the Code.

On the recommendation of the Joint Committee of Parliament, anExplanation has been added to Section 115 by the Amendment Act of1976 which makes it clear that the expression “case decided” includesany order made, or any order deciding an issue, in the course of asuit or other proceeding”. Thus, the expression “any case which hasbeen decided” after the Amendment Act of 1976 means “each decisionwhich terminates a part of the controversy involving the question of jurisdiction”.

(ii) Subordinate court

The High Court cannot exercise revisional jurisdiction unless the caseis decided by a court and such court is subordinate to the High Court.A court means a court of civil judicature. It does not include any personacting in an administrative capacity.

As a general rule, where it is provided that a matter should bedecided by a particular court, the presiding officer of such court will actas a court. But where it is provided that a particular judge should decidea matter, the provisions of the statute will have to be considered for thepurpose of determining whether the judicial officer acts as a court or as a persona designata.

It is the intention that determines the question. If the intention is thatthe prescribed officers should enforce the rights and liabilities createdby the statute in the exercise of the existing jurisdiction of courts, theyact as courts. If, on the other hand, the intention is to create new courts,they act as persona designata.

Again, while judicial functions are essential for a court, the merefact that a person exercises judicial functions is not sufficient to constitute him a court.” Further, a court will be said to be subordinate to theHigh Court, when it is subject to its appellate jurisdiction. However,the mere fact that a statute provides an appeal to a court from a particular body does not necessarily constitute that body as a court.

(iii) No appeal lies

The revisional jurisdiction of the High Court can be invoked in respectof any case in which no appeal lies to the High Court. The word “appeal” includes first appeal as well as second appeal. Therefore,where an appeal lies to the High Court either directly or indirectly,revision under Section 115 does not lie. On the other hand, where nofirst or second appeal lies to the High Court, the revision is competent.

As has been rightly observed by the Supreme Court in the case ofMajor S.S. Khanna v. Brig. F.J. Dillon, “If an appeal lies against theadjudication directly to the High Court, or to another court from thedecision of which an appeal lies to the High Court, it has no power toexercise its revisional jurisdiction, but where the decision itself is notappealable to the High Court directly or indirectly, exercise of the revisional jurisdiction by the High Court would not be deemed excluded”.

(iv) Jurisdictional error

(a) Nature and scope

The power conferred by Section 115 of the Code is clearly limited to thekeeping of subordinate courts within the bounds of their jurisdiction.Section 115 is concerned with jurisdiction and jurisdiction alone involving a refusal to exercise jurisdiction where one exists, an assumptionof jurisdiction where none exists, and lastly, acting with illegality ormaterial irregularity. Where there is no question of jurisdiction in thismanner, the decision cannot be corrected because a court has jurisdiction to decide wrongly as well as rightly.

(b) Error of fact and error of law

As stated above, the revisional powers of the High Court are limitedto the question of jurisdiction only and the decision of the subordinate court on all questions of law and fact not touching its jurisdiction isfinal.

In other words, Section 115 is not directed against conclusions of lawor fact in which the question of jurisdiction is not involved.

(c) Error of law and error of jurisdiction

There is, however, a distinction between cases in which on a wrongdecision the court has assumed jurisdiction which is not vested in itand those in which in exercise of its jurisdiction the court has arrivedat a conclusion erroneous in law or in fact. In the former class of cases,revisional power is permissible, while in the latter class of cases it isnot. Thus, if by an erroneous decision on a question of fact or lawtouching its jurisdiction, e.g. on a preliminary or jurisdictional factupon the existence of which its jurisdiction depends, the subordinatecourt assumes a jurisdiction not vested in it by law or fails to exercise ajurisdiction so vested, its decision is not final, and is subject to the revisional jurisdiction of the High Court under Section 115. (As observedby the Privy Council, wherever jurisdiction is given to a court by anAct of Parliament and such jurisdiction is only given upon certain specified terms contained in that Act, it is a universal principle that theseterms must be complied with in order to create and raise the jurisdiction, for if they be not complied with, the jurisdiction does not arise.)

In the leading case of R. v. Commr.for Special Purposes of Income Tax,Lord Esher, M.R. observed:

”When an inferior court or tribunal or body which has to exercise thepower of deciding facts is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. Itmay in effect say that, if a certain state of facts exists and is shown to suchtribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercisethe jurisdiction without its existence, what they do may be questioned,and it will be held that they have acted without jurisdiction.”

It is submitted that the following observations of the Supreme Court inthe case of Mohd. Hasnuddin v. State of Maharashtra lay down correctlaw on the point and, therefore, are worth quoting:

“Every tribunal of limited jurisdiction is not only entitled but bound todetermine whether the matter in which it is asked to exercise its jurisdiction comes within the limits of its special jurisdiction and whether thejurisdiction of such tribunal is dependent on the existence of certain factsor circumstances. Its obvious duty is to see that these facts and circumstances exist to invest it with jurisdiction, and where a tribunal derivesits jurisdiction from the statute that creates it and that statute also definesthe conditions under which the tribunal can function, it goes without saying that before that tribunal assumes jurisdiction in a matter, it must be satisfiedthat the conditions requisite for its acquiring seisin of that matter have in factarisen.”

(d) Exercise of jurisdiction not vested by law: Clause (a)

Where a subordinate court exercises jurisdiction not vested in it by law,a revision lies. In such cases, a subordinate court assumes jurisdictionwhich it does not possess by misconstruing statutory provisions or bywrongly assuming existence of preliminary or collateral facts which donot exist. The High Court in such cases will interfere with the orders passed by a subordinate court.

The following cases have been held to be cases of unauthorized assumption of jurisdiction by the subordinate court: (i) where thelower court assumes jurisdiction which it does not possess on accountof the pecuniary or territorial limits or by reason of the subject-matterof the suit or (ii) entertains an appeal from an order which is notappealable or (iii) entertains a suit or appeal which it has no jurisdiction to entertain or (iv) makes an order which it has no jurisdiction tomake; or (v) grants an injunction without considering whether a primafacie case is made out; or (vi) allows withdrawal of a suit on a groundnot contemplated under Order 23 Rule 1; or (vii) directs a subordinatecourt to try a suit not triable by it; etc.

(e) Failure to exercise jurisdiction: Clause (b)

A revision also lies where a subordinate court has failed to exercisejurisdiction vested in it by law. A court having jurisdiction to decide amatter, thinks erroneously under a misapprehension of law or of factthat it has no such jurisdiction and declines to exercise it; the HighCourt can interfere in revision.

The following cases have been held to be cases of failure to exercisejurisdiction by a subordinate court: (i) refusal by the court to summonthe deponent of an affidavit for cross-examination?’ or (ii) failure of theexecuting court to construe the decree; (iii) failure on the part of thecourt in considering the principles for the grant of ad interim injunction and refusing to grant it; or (iv) refusal to entertain or rejection ofa plaint, application, memorandum of appeal or review application onthe erroneous view that it has no jurisdiction to entertain; or (v) rejection of a counterclaim on the ground that the original suit is dismissedfor default; or (vi) refusal to make a reference under Order 46 Rule 7; or (vii) an erroneous interpretation of statutory provisions as obligatoryinstead of directory; etc.

(f) Exercise of jurisdiction illegally or with material

irregularity: Clause (c)

Finally, a revision also lies where the subordinate court has acted in theexercise of its jurisdiction illegally or with material irregularity.

But then, what is meant by the expressions “illegally” and “materialirregularity”? Though no precise definition or meaning can be given tothese words, after referring to the leading cases, the Supreme Courtobserved in the case of Keshardeo v. RadhaKissen, The errors contemplated relate to material defects of procedure and not to errors of eitherlaw or fact after the formalities which the law prescribes have been complied with. They do not refer to the decision arrived at but the manner in which it is reached. In that case, the Supreme Court approved thefollowing observations of the Privy Council in the leading case of RajahAmir Hassan Khan v. SheoBaksh Singh:

”The question then is, did the judges of the lower courts in this case, inthe exercise of their jurisdiction, act illegally or with material irregularity.It appears that they had perfect jurisdiction to decide the case, and even if theydecided wrongly, they did not exercise their jurisdiction illegally or with materialirregularity.”

In Malkarjun Bin Shidramappa v. Narhari Bin Shivappa also, the PrivyCouncil observed, “It (the lower court) made a sad mistake it is true;but a court has jurisdiction to decide wrong as well as right.” In D.L.F.Housing and Construction Co. (P) Ltd. v. Sarup Singh, the Supreme Courtobserved:

“The position thus seems to be firmly established that while exercisingthe jurisdiction under Section 115, it is not competent to the High Courtto correct errors of fact however gross or even errors of law unless thesaid errors have relation to the jurisdiction of the court to try the disputeitself… . The words ‘illegally’ and ‘with material irregularity’ as used inthis clause [cl. (c)] do not cover either errors of fact or of law; they do notrefer to the decision arrived at but merely to the manner in which it isreached. The errors contemplated by this clause may, in our view, relate eitherto breach of some provision of law or to material defects of procedure affecting theultimate decision, and not to errors either of fact or of law, after the prescribedformalities have been complied with.”

In the following cases, it has been held that the court had exercised itsjurisdiction illegally or with material irregularity: (i) where it decidesa case without considering the evidence on record; or (ii) decides onevidence not legally taken or otherwise inadmissibleor (iii) decides acase without recording reasons for its judgment; or (iv) does not applyits mind to the facts and circumstances of the case; or (v) fails to followa decision of the High Court to which it is subordinateor (vi) followsa decision which does not apply to the facts of the case; or (vii) decidesa case in the absence of the party or without giving an opportunity ofbeing heard to the party whose rights are adversely affected by suchdecision; or (viii) in framing issues wrongly places burden of proof; or (ix) orders the execution of a decree which is not executable; or (x)orders attachment before judgment in absence of any material to support such order or without following the procedure under Order 38; or(xi) grants or refuses to grant temporary injunction without consideringand applying the provisions of Order 39; or (xii) confirms an executionsale under Order 21 Rule 92 without disposing of an application to setaside the sale under Order 21 Rule 90; or (xiii) passes a decree on thecompromise by the guardian ad litem without enquiring whether it wasfor the benefit of the minor; or (xiv) proceeds with the later suit ignoring the provisions of Section 10 of the Code; or (xv) consolidates twosuits for hearing without consent of parties even though the parties arenot common and the issues are also different; or (xvi) omits to drawup a decree in accordance with the judgment or (xvii) orders for theappearance of a pardanashin lady in public; or (xviii) erroneously shutsout the evidence of a party or (xix) does not consider condonation ofdelay under Section 5 of the Limitation Act, 1963; or (xx) remands acase after framing issues which do not arise in the case; or (xxi) admitsadditional evidence in appeal without considering the provisions ofOrder 41 Rule 27 of the Code; or (xxii) acts in violation of Section 113of the Code by holding an Act of Parliament to be ultra vires; or (xxiii)accepts a plaint without court fees; or (xxiv) makes an order ignoringan earlier order passed by the court; or (xxv) grants a relief not prayedfor by a party, etc.

ALTERNATIVE REMEDY

Exercise of revisional jurisdiction is in the discretion of the court andno party can claim it “as of right”. Before exercising revisional powers, the High Court may consider several circumstances and decidewhether power under Section 115 of the Code should be exercised infavour of the applicant before the court. One of the factors which thecourt usually considers is availability of an alternative remedy to theaggrieved party. Where such aggrieved party has alternative and efficacious remedy, the court may not entertain a revision under Section 115 of the Code.

FORM OF REVISION

No particular form of revision is prescribed in the Code. Such petition,however, must contain grounds as to error of jurisdiction covered bySection 115 of the Code.

LIMITATION

The period of limitation for preferring a revision application is ninety days from the decree or order sought to be revised.

SUO MOTU EXERCISE OF POWER

Normally, a High Court will exercise revisional powers on the application of an aggrieved party, but in appropriate cases where theconditions laid down in this section are satisfied, it may suo motu (of its own motion) call for any record and pass necessary orders. There is nobar on the power of the High Court in exercising revisional jurisdiction unless a prayer is made by a party. A person other than a party to aproceeding can also bring illegality or irregularity to the notice of the High Court.

In Swastik Oil Mills Ltd. v. CST, the Supreme Court stated,”Whenever a power is conferred on an authority to revise an order, theauthority is entitled to examine the correctness, legality and proprietyof the order and to pass such suitable orders as the authority may thinkfit in the circumstances of the particular case before it. When exercisingsuch powers, there is no reason why the authority should not be entitled to hold an enquiry or direct an enquiry to be held and, for that purpose, admit additional material. The proceedings for revision, if started suo motu, must not, of course, be based on a mere conjecture and thereshould be some ground for invoking the revisional powers. Once thosepowers are invoked, the actual interference must be based on sufficientgrounds, and, if it is considered necessary that some additional enquiryshould be made to arrive at a proper and just decision, there can beno bar to the revising authority holding a further enquiry or directingsuch an enquiry to be held by some other appropriate authority.”

REVISION UNDER OTHER LAWS

Revisional jurisdiction under Section 115 CPC is limited to “errors ofjurisdiction”. In other statutes, however, revisional powers may not beconfined or circumscribed to errors of jurisdiction only. Thus, whererevisional powers can be exercised to decide “legality” or “propriety”,or “correctness” of the decision, the jurisdiction is wider than the jurisdiction under Section 115 CPC. The scope of revisional jurisdiction thusdepends upon the language of the statute conferring jurisdiction on the court.

INTERLOCUTORY ORDERS

Interim or interlocutory orders fall into two classes:

  • Interlocutory orders which are appealable; and
  • Interlocutory orders which are non-appealable.

The orders falling under the former class are appealable under Section104 and, hence, no revision lies, whereas the orders falling under thelatter class are subject to revision under Section 115, if the conditionslaid down in the section are fulfilled.

DEATH OF APPLICANT

The provisions of Order 22 do not apply to revision applications. Arevision, therefore, does not abate on the death of the applicant or onaccount of failure on the part of the applicant to bring on record the heirs of the deceased opponent.

DOCTRINE OF MERGER

Revisional jurisdiction is a part of appellate jurisdiction of the HighCourt. Revision is but one of the modes of exercising powers conferredby a statute. Basically and fundamentally, it is the appellate jurisdiction of the High Court which is being invoked and exercised in a widerand larger sense. Hence, when the aid of the High Court is invoked onthe revisional side, it is because it is a superior court.‘ The doctrine ofmerger, therefore, applies to orders passed in revision and the orderpassed by a subordinate court gets merged in the order passed by the High Court.

PROCEDURE

No specific or express procedure is prescribed in the Code which isrequired to be followed in revision. Grounds of revision can be couchedas in an appeal. They should, however, contain objections as to jurisdiction. Ordinarily a certified copy of the order impugned should befiled in the revision. No cross-objections can be filed in revision. Butif the High Court feels that a particular finding recorded by the subordinate court is uncalled for, it can interferesuomotu. Once a revisionis admitted, it ought to have been decided on merits. It should not bedismissed on the ground that it ought not to have been admitted. Ifthe High Court holds that revision is not maintainable or is barred bylimitation, it should not make any observations on merits.

DISMISSAL IN LIMINE

Where several contentions have been raised by the applicant, normally,a High Court should not dismiss the revision in limine (summarily) by one word (“Dismissed”). It should record reasons in brief.

RECORDING OF REASONS

Where the parties are present before the High Court and specific pleasas to error of jurisdiction has been raised, the High Court should notdismiss the revision summarily without recording reasons.

There is another reason also as to why the High Court should passspeaking order. Absence of reasons deprives the Supreme Court fromknowing the reasons and circumstances which weighed with the HighCourt in dismissing the revision in limine. The necessity to give reasons,however brief, in support of its conclusion is too obvious to be emphasised. Obligation to record reasons introduces clarity and excludes,or at any rate minimizes, the chances of arbitrariness and enables thehigher forum to test correctness and relevance of those reasons. If noreasons are recorded, the order is liable to be set aside.

LETTERS PATENT APPEAL

No letters patent appeal lies from an order made in the exercise of revisional jurisdiction.

SUPREME COURT

Normally, the Supreme Court will not interfere under Article 136 of theConstitutions with the order passed by the High Court in exercise of revisional jurisdiction.

 

PAHUJA LAW ACADEMY

REFERENCE

PRELIMINARY

  1. A reference under section 113 of CPC can be made to the
  • Court of District Judge
  • High Court
  • Supreme Court
  • all the above.

 

  1. Reference means

(a) the orders given by the High Court to the courts subordinate to the High Court

(b) the opinion sought of the High Court by the courts subordinate thereto on a question of law

(c) the opinion sought of the High Court by the Courts subordinate thereto on a question of fact

(d) none of the above.

 

  1. Review of a judgment has been provided
  2. under section 112 of CPC
  3. under section 114 of CPC
  4. under section 115 of CPC
  5. under section 116 of CPC.

 

  1. A judgment passed by a court can be reviewed
  2. by the court passing the judgment
  3. by the court of District Judge
  4. by the High Court
  5. by the Supreme Court.

 

  1. Review is maintainable
  2. when an appeal is provided, but no appeal preferred
  3. when no appeal is provided
  4. both (a) & (b)
  5. only (a) & not (b)

 

  1. Grounds for review have been provided under
  2. Order XLVII, Rule 1 of CPC
  3. Order XLII, Rule 1 of CPC
  4. Order XLIII, Rule 1 of CPC
  5. Order XLIV, Rule 1 of CPC.

 

  1. A judgment can be reviewed on the ground of
  2. discovery of new & important evidence, not within the knowledge of the party concerned
  3. mistake of error of fact or law on the face of the record
  4. both (a) & (b)
  5. neither (a) nor (b).

 

  1. Section 115 of CPC provides for
  2. reference
  3. review
  4. revision
  5. appeal to the Supreme Court.

 

  1. Under section 115 of CPC, the revisional jurisdiction is with
  2. the High Court
  3. the court of the District Judge
  4. the court of small causes
  5. all the above.

 

  1. Section 115 applies to
  2. exercise of jurisdiction not vested in a court
  3. non-exercise of jurisdiction vested in a court
  4. irregular exercise of jurisdiction vested in the court
  5. all the above.

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