Annexure ‘CD – 01’

U TTAR PRAD E S H

FORMAT FOR COURSE CURRICULUM

Course Title: Course Title: Code of Civil Procedure

Course Code: LAW 314 L T P SW PSDA TOTAL
Credit Units: 4 CREDI
Level: UG T
UNITS

3 - - 2 1 4

Course Objectives:
To impart basic knowledge to the students of the difference between the civil laws and criminal laws by making them understand the key differences between
the methodology of both the streams of law. On understanding the same the students would be apprised of the key words used in civil laws for better
understanding of the subject. This course aims at making the students learn the procedure before the civil court and the mannerisms that needs to be followed in
the court. Further, the course also aims at inculcating ethical values in the students by making them learn about those areas which they need to bear in mind to
maintain legal propriety and ethics.

Pre-requisites:
a. The students should have the knowledge of substantive laws, where process of approaching the Court can be taught.
b. Continuous updation in terms of substantive and procedural laws as well as latest judicial pronouncements is desirable.
c. Student must be aware about various remedies available in civil law.

Course Contents/Syllabus:

Module I: Significant Terms and Definitions 25

Definitions: Decree, Judgment, Order, Foreign Court, Foreign Judgment, Mesne Profits, Affidavit, Suit, Plaint, Written
Statement, Suits of civil nature; Important Concepts: Res Sub-Judice, Resjudicata, Restitution, Caveat, Inherent powers
of courts, Reference, Review and Revision.

Concept of limitation in Civil Suits.

 Module II -Initial Steps for Institution of Civil Proceedings 25

Jurisdiction and place of suing;

Institution of suit, cause of action, joinder, non-joinder and mis-joinder of parties; Summons;
Pleadings: Meaning, object, General rules, Amendment of pleadings;
Plaint and Written Statement: Admission return and rejection;
Particulars, set off and counter claim;
Discovery, Inspection and production of documents;
Appearance and non-appearance of parties, ex-parte proceedings;
First hearing: Meaning, object, framing of issues, omission to frame issues, disposal of suit in the first hearing;
Trial: Summoning and attendance of witnesses, summons to produce documents, adjournment, hearing of suit.

Module III Execution of Decree and Interim Orders 25

Interim Orders - Commissions- O-26, Arrest before judgment-0-38, Attachment before judgment, Temporary
Injunctions, Interlocutory orders, Receiver, Security of costs. Appeal, Execution of Decrees.

Module IV Special Suits 25

Suits by or against Government, Suits by Indigent persons, Interpleader Suit, Summary Procedure, Suits relating to
public nuisance. ‘Suits by or against minors’

Decree
The term decree is defined in Section 2(2) of Code of Civil Procedure, 1908. A decree always follows judgement and is based upon a
judgement.

a decree is the formal expression or formal declaration of an adjudication and is conclusive in nature. The decree
contains the outcome of the suit and conclusively determines the rights of the parties with regard to the issues in dispute in the
suit. After passing the decree, the suit stands disposed of since the rights of the parties are finally determined by the court.

Kinds of Decree

Preliminary - Where an adjudication decides the rights of the parties with regard to all or any of the matters in controversy in the suit but does not completely
dispose of the suit, it is a preliminary decree. It is passed when the court needs to adjudicate upon some matters before proceeding to adjudicate upon the
rest.
Final - When the decree disposes of the suit completely, so far as the court passing it is concerned, it is a final decree. A final decree settles all the issues
and controversies in the suit.

Party preliminary and partly final – A decree is said to be partly preliminary and partly final when the court decides two questions by
the same decree. When a decree resolves some issues but leaves the rest open for further decision, such a decree is partly final and party preliminary.
For example, in a suit for possession of immovable property with mesne profits, where the court decrees possession of the property and directs an enquiry
into the mesne profits, the former part of the decree is final but the latter part is preliminary.

ORDER

As per Section 2 (14), The formal expression of any decision of a civil court which is not a Decree is Order.

In a suit, a court may take certain decisions on objective considerations and those decisions must contain a discussion of the matters at issue in the suit and
the reasons which led the court to pass the order. However, if those decisions fall short of a decree, they are orders.

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

However, there are substantial differences between them –

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

Can be passed in a suit originated by the presentation of a plaint, application, or

Can only be passed in a suit originated by the presentation of a plaint.
petition.

Contains Conclusive Determination of a right May or may not finally determine a right.
May be final, preliminary, or partly preliminary - partly final. Cannot be a preliminary order.

In general, there can only be one decree or at the most one preliminary and one final
There can be any number of orders in a suit.
decree in a suit.

Every decree is appealable unless an appeal is expressly barred. Only those orders which are specified as appealable in the code are appealable.

A second appeal may lie against a decree to a High Court on certain grounds. There is no second appeal for orders.

Judgement

The term Judgement is defined in Section 2(9) of the Code of Civil Procedure, 1908. A judgement
contains facts of the case, the issues involved, the evidence brought by the parties, finding on
issues (based on evidence and arguments). Every judgement shall include a summary of the
pleadings, issues, finding on each issue, ratio decidendi and the relief granted by the court.

Foreign Court, Foreign Judgement (Sec. 13)

Section 2(5) “foreign Court” means a Court situated outside India and not established or continued by the authority of the Central
Government.
Section 2(6) “foreign judgment” means the judgment of a foreign Court.

Jurisdiction of Foreign Courts

In Private International Law, unless a foreign court has jurisdiction in the international sense, a judgment delivered by that court
would not be recognized in India.

Conclusiveness of Foreign Judgments

Section 13 lays down the fundamental rules which should not be violated by any foreign court in passing a decree or judgment. The
decree or judgment of foreign court will be conclusive except where it comes under any of the clauses (a) to (f) of Section 13.

When foreign judgment is not conclusive-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;

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

Foreign Judgments when cannot be Enforced in India

Before enforcing a foreign judgment or decree, the party enforcing it must ensure that the foreign judgment or decree must not fall
under these 6 cases. If the foreign judgment or decree falls under any of these tests, it will not be regarded as conclusive and
hence not enforceable in India. Under Section 13, there are six cases when a foreign judgment shall not be conclusive. Six tests are
discussed below.

Affidavits – Order 19
Affidavits are dealt under Order 19 of the Code. It is a sworn statement made by the person who is aware of the facts and
circumstances which have taken place. The person who makes and signs is known as ‘Deponent’. The deponent makes sure that the
contents are correct and true as per his knowledge and he thereby concealed no material therefrom. After signing the document,
the affidavit must be duly attested by the Oath Commissioner or Notary appointed by the court of law.

The person who gives attestation to the affidavit shall make sure that the sign of the deponent is not forged. The affidavit shall be
drafted as per the provisions of the code. It must be paragraphed and numbered properly.

Even though the “affidavit” has not been defined in the code, it basically means “a sworn statement in writing made specifically
under oath or affirmation before an authorized officer or Magistrate.”

Essentials

There are some basic essentials which are required to be fulfilled while submitting the affidavit in the court:

 It must be a declaration by a person.

 It shall not have any inferences, it shall contain facts only.

 It must be in the first person.

 It must be in writing.

 It must be statements which are taken under oath or affirmed before any other authorized officer or a Magistrate.

Doctrine of Restitution under CPC 144

In simple terms, Restitution refers to giving back or returning something that was taken unfairly from someone else. It means restoring
something that was lost or stolen to its rightful owner. According to the Merriam-Webster dictionary, restitution is a legal action that
helps bring back something to its original state.
Section 144 of the CPC empowers courts to correct injustices by ordering compensation, interest, and restitution.

Restitution under CPC refers to the process by which a court rectifies any unjust benefits gained by one party due to a decision
or order that is later reversed, modified or set aside.
Restitution ensures that the party who benefitted unfairly returns any gains, and the party who suffered loss due to the
incorrect decision is adequately compensated.

Section 144 of the CPC (Civil Procedure Code) specifically deals with doctrine of restitution. It empowers the court to order
restitution when a decree or order is altered or reversed through an appeal, revision or other legal proceedings or when it’s
set aside or modified in a suit. The court has the authority to make various orders for refunding costs, paying interest,
awarding damages, providing compensation, and more, in order to rectify the situation caused by the incorrect decision.

The principle behind doctrine of restitution in CPC is to uphold fairness and prevent injustice in legal proceedings. It’s based
on the maxim “actus curiae neminem gravabit,” which means that the act of the court should harm no one. Restitution seeks
to ensure that the effects of erroneous judgments are corrected and that parties are placed in the position they would have
been in if the mistake hadn’t occurred.

As per Section 144 (1) if such a decision results in one party benefiting unfairly at the expense of another, the court that
issued the initial decision is responsible for restoring fairness. This is done by ensuring that the parties are returned, as much
as possible, to their original positions before the decision was changed.

Scope and Application of Section 144 of CPC

Section 144 applies to courts and covers both decrees and orders. This provision can be used systematically and applies to interim as well as
interlocutory orders. For its application, it’s not necessary that the original decree should have been completely reversed. This provision can also
be used when a decree is partially reversed, modified or varied.

Conditions for Applying Restitution under Section 144 of CPC

In simpler terms, there should be a mistaken judgment, one party has benefited from this mistake, and the erroneous judgment has been reversed, varied or
set aside. If these conditions are fulfilled, the court is obligated to grant restitution under CPC.
Limitation
An application under Section 144 is considered part of the execution of a decree and is subject to the rules of limitation outlined in Article 136 of
the Limitation Act, 1963. The period within which such an application must be made is 12 years, starting from the date of the appellate decree or
order.

Conclusion
The doctrine of restitution under CPC aims to return the harmed party to the initial state where any advantage gained from a mistaken court
judgment is given back to the party that shouldn’t have received it. Restitution in CPC isn’t a novel idea, and Section 144 simply legally
acknowledges this concept

Caveat Petition Under Section 148A of CPC

Caveat petition is filed under Section 148 of the Civil procedure Code. Caveat generally means “a warning or caution, beware”. It is
a popular term which is used to warn someone. The Court basically explains Caveat as a caution or warning given by a person to
the court that the court should not pass any judgement, ex-parte order/order before giving prior notice or without hearing the
person who can be called a caveator.

However, the literal meaning of the caveat is ‘let the person beware’. According to the Code of Civil
Procedure, it’s a kind of precautionary measures taken by the individual who has a fear/apprehends that a case
might be lodged against him in a court `of law whereby by filing a caveat petition, he or she makes it aware
to the court that this step if taken, should be made aware to them.

Essentials Of Section 148A

A person who asserts to have a right to appear before the court may submit a petition of caveat under clause 1 of section 148 A in the
following situations:
 1. When there is an apprehension of application;
2. Where a prior application has been submitted;

3. When there is an anticipation of a lawsuit that will be filed against him;

4. In a case that has already been filed.

Purpose and Scope of the Section

The main purpose of this section is to protect the interest of the Caveator, who may need to face the proceedings, which is likely to
be filed by his opponent. This section is also important to save the cost and convenience of the Court as it can avoid the multiplicity
of the Court.

When to lodge a Caveat?

According to Section 148A, when people apprehend that some case against them is filed or is about to be filed in any court of law in
any manner, they have a right to lodge a caveat.

Who Can File a Caveat?

Only a person who claims the right to appear in the court, whether a party to the suit or not can file the caveat. It is pertinent to note that,
while a third party can file the suit, a stranger to the suit cannot exercise this option. Any person who has the right to appear before the court,
on learning about the application being filed, can lodge a caveat.

Alternatively, a person who is interested in the interim relief for which the application has been filed cannot lodge a caveat. Along with the
caveat, a copy of the caveat shall be filed by the caveator, or by the advocate who is acting on behalf of the caveator and the same must be
duly registered in the caveat register in the stipulated format.
Where Can the Caveat Be Lodged?
A caveat can be lodged in any of the civil courts, appellate courts or tribunals provided the respective court exercises original jurisdiction.

Limitation of time
As provided by the section in clause 5, the caveat stays in force for a period of 90 days. If within these 90 days an application is
filed, then the court, as well as the applicant, has to give notice to the caveator. However, if no caveat is filed within these 90 days,
then no one has the duty to inform the caveator, i.e. if the application is filed after the expiration of such period the caveat stands
null and void. If the caveator still wants to be informed then a fresh caveat needs to be lodged for the next 90 days.

Conclusion

Persons with an interest in the court’s order who anticipate that an order could be issued against them are granted the opportunity to file a
caveat. A person who believes that his interests may be jeopardised if an order is made without taking them into consideration as a
precautionary measure available to him in the form of a caveat. If the court receives an application within 90 days of the caveat being filed, it
is required to notify the caveator of the application by serving him with a notice; otherwise, the order made by the court will be void.

Inherent power of Courts (sec – 148-153B)

Meaning of ‘inherent’ is existing in something as a permanent, absolute, inseparable, essential or characteristic attribute. Inherent
powers of courts are those powers which may be applied by the court to perform full and complete justice between the parties
before it. It is the duty of the Courts to serve justice in every case, whether given in this code or not, brings with it the important
power to do justice in the absence of a definite or separate provision. This power is said to be the inherent power that is maintained
by the court, though not conferred. Section 151 of the Civil Procedure Code deals with the inherent powers of the court.

Provisions for Inherent Powers of Court under CPC: Section 148 to 153B of CPC
 Section 148 and Section 149: These sections deal with the granting or extension of time.
 Section 150: This section addresses the transfer of business from one court to another.
 Section 151: Section 151 safeguards the inherent powers of the courts.
 Section 152, 153 and Section 153A: These sections cover the modification of judgments, decrees, or orders, as well as separate
proceedings.
Enlargement of Time [Section 148, CPC]
Section 148 of the CPC explains that when the court sets a specific time frame for performing an action as required by the CPC, it has the
authority to extend that period. This extension can happen multiple times, even if the original time limit has passed.

In simpler terms, if the law sets a deadline for doing something, the court can give you extra time, up to 30 days, if there’s no other rule that says
otherwise. However, the court has the freedom to decide whether or not to grant this extra time and the extension can only apply to the
originally set time frame. It’s a discretionary power.

Payment of Court Fees [Section 149, CPC]

Section 149 of the CPC allows the court to give someone a chance to pay the required court fee if they haven’t paid it fully or partly as required
by the law for documents like complaints or appeals. This permission can be granted even after the time limit for filing the lawsuit or appeal has
passed.

In simple terms, when a document needs a specific court fee, it’s crucial to pay it on time. If it’s not paid in time, the document could be
considered as filed too late (time-barred). However, Section 149 lets the court decide whether to let you pay the missing fee later. If the court
agrees, your document will be treated as if you paid the fee on time from the beginning.

Transfer of Business [Section 150, CPC]

Section 150 of the CPC states that unless there is a different arrangement in place, when the functions or responsibilities of one court are
transferred to another court, the receiving court will have the same authority and responsibilities as the original court.

In other words, if Court A’s tasks and powers are transferred to Court B, Court B will assume the same legal authority and duties that were
originally designated for Court A under the CPC.

Saving of Inherent Powers of Court: Section 151 of CPC

Section 151 of the CPC, which deals with the “Saving of inherent powers of Court,” ensures that nothing in the CPC can limit or interfere with the
inherent power of the Court to issue orders that are necessary for the interests of justice or to prevent misuse of the legal process. In other words,
the court is not bound by strict legal provisions and has the discretion to make orders that are not explicitly provided for in the law, as long as it
serves the cause of justice or prevents abuse of the legal system.
Amendment of Judgments, Decrees, Oders and Other Records [Section 152, CPC]
Section 152 of the CPC addresses the “Amendment of judgments, decrees and orders.” Under this section, the court has the authority to correct
any written or mathematical errors in judgments, decrees, or orders. It also allows for the rectification of mistakes that arise due to an unexpected
oversight or imperfection.

Section 153, on the other hand, provides the “General authority to amend.” This section grants the court the power to rectify any errors or faults
in the proceedings of a lawsuit. It enables necessary corrections to be made to address issues that have been raised or that are relevant to the
ongoing proceedings.

Both Section 152 and Section 153 of the CPC emphasise that the court can rectify any errors in its records at any time during the legal process.

Additionally, Section 153A and Section 153B of the CPC,1908, deal with the power to amend a decree or order when an appeal is summarily
dismissed and the determination of the place of the trial, respectively. These sections provide specific provisions for addressing certain situations
in the legal process.

Conclusion

Res judicata Section 11

Res means a subject matter, and judicata means adjudged. It states that once the decision has been made, it must be accepted as
true and final.

Section 11 of the CPC deals with the provision of res judicata. According to this Section, a court can not entertain any suit which
has been settled on similar facts and issues as those that were directly or subsequently dealt with in a former suit.

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

This maxim states that ‘no person is tried twice in a similar kind of suit’. It is applicable in both types of suits, civil and
criminal, to put an end to the litigation process.

Purpose
Res judicata
The doctrine of res judicata applies to all civil and criminal cases and is based on the principles of justice, equity, and good
conscience. The main aim of the doctrine is to restrict the process of re-litigation. The other purpose of the doctrine is as
follows:
1. It prevents the time and resources of the court from being misused.
2. It provides a safeguard for the defendant from damage.
3. It prevents the conflict between the parties in a matter that has been officially resolved by bringing a verdict to an end
and barring any future claims.
4. It prevents the confusion that might be caused by multiple judgments in a single suit.

The essentials of res judicata are as follows:

1. There should be one former and one subsequent suit filed.
2. The matter is directly and substantially related to the subsequent suit.
3. The parties who filed suit must be similar to the parties who filed the former suit also.
4. The titles of both suits are also the same.
5. The suit must be filed in the competent jurisdiction.
6. The court must have previously heard and decided the issue that is directly and substantially in question in the
subsequent suit.

Exceptions

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

1. When the decree and order have been obtained by committing fraud and misrepresentation of the facts or issues.
2. When the judgment is not pronounced on the merits.

3. When the special leave petition was dismissed without making a proclamation or determination of the judgment.
 4. When the subsequent lawsuits have a different cause of action. If a later lawsuit has a separate cause of action, the court
cannot dismiss it.

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

6. When there is a question of law.

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

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

9. When the suit was dismissed by default.

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

What is constructive res judicata?

The rule of constructive res judicata states that if a party enters a plea in a proceeding involving him and the defendant, he is not
allowed to enter a plea against the same party in a proceeding involving the same topic in the future. It is against public policy.

Res sub judice section 10

The term ‘res’ means matter, and ‘sub judice’ means under consideration.

Section 10 of the CPC says that no court can initiate such proceedings between the same parties and the same issues which
were directly or subsequently in question in the previous suit if the previous suit is still pending in the competent court.

The doctrine of res sub judice aims to stay the proceedings when two or more cases are filed in the same court between the
same parties. The objective of the doctrine is to avoid wasting the time in court and avoid contradictory decisions in the same
suit. It also protects the parties from unnecessary court proceedings and harassment by other parties.
The doctrine is applicable to a trial of the suit, appeals, and revision. It does not prevent a court from issuing temporary
orders for the granting of an injunction or a stay.

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

1. It allows the plaintiff to file one suit for all the issues and facts against the same defendant.
2. Avoid contradictory decisions on a similar matter in issue.

3. Stop the courts with concurrent jurisdiction from concurrently hearing and making decisions on two parallel lawsuits
involving the same claim, same issue, and similar remedy.

4. Protect the defendant from paying compensation or damages twice.

5. Prevent unnecessary confusion.

Res sub judice

The essentials of res sub judice are as follows:

1. There must be two civil suits between the same parties.
2. The former suit is pending before the competent court for final decision and the subsequent suit is brought.
3. The subsequent suit is also filed under a similar title to the former suit.
4. Any suit that is pending in a foreign court does not invoke Section 10 of the Code.
5. If the subsequent application is filed before the Tahsildar and the suit is pending before the court, then it will fall under
the scope of the doctrine.
6. The date of the plaint presentation is considered for the institution of the suit, and the appeal is also included in the
suit.
7. The court must have the inherent power to stay the proceedings.
8. If a decree is passed for violation of Section 10 will be null and void.
9. The parties can waive their right under Section 10.
10. The court has the power to pass interim orders.

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

1. When the claims in each suit are unique from one another.
 2. When there are both common and unique issues, then this rule does not apply.

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

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

What is Reference in CPC Reference is mentioned under section 113 and order 46

Reference means to refer an issue to someone to obtain an opinion on it. A matter is generally referred when its question
can’t be decided by the court doing a trial of it.

2. It empowers a subordinate court to refer the matter to the High Court for its opinion on a matter.

3. The power of referring a case lies only with the subordinate court. It may or may not refer a case. It is its discretion.

4. The case to be referred to the High Court must be regarding the validity of the Act.

5. The question referred by the subordinate court to the High Court must be essential for the disposal of the case.

6. Court may itself refer a case to the High Court, that is suo motu or on the application of either of the party.
7. The High Court is required to give its opinion on the matter concerned, along with the reasons.

8. Reference to the High Court must be made through a judicial order and not a letter to the High Court.

9. The matter can be referred only in a suit, appeal, or execution must be pending and when no/further appeal lies

 The question of law must arise during the course of proceedings, i.e., the pendency of the suit

10. The reference can be made only when the subordinate court has a doubt on a question of law and not otherwise.

What is Review in CPC section 114 and order 47

Review means to look after a thing again. It means to re-examine again.

2. The court which has tried the case and adjudicated the matter has the authority to review the case again.

3. A review lies from a decree or order for which no appeal lies or such decree or order, which is appealable, but no appeal
has been preferred.

4. The application for review is submitted to the court, which has decided that case. If the judge is transferred to another
court, then the application may be given to the successor judge.
5. If the court during the trial has left or not entertained any substantial issue which is relevant for the proper disposal of
the case, then the case can be reviewed.

6. There is no provision for reviewing the order given by a judge in the proceedings of review.

7. The court must review its judgment if the error appears on the face of the record. And if that error is not rectified, it will
cause a miscarriage of justice.

8. Court cannot review its judgment suo motu. The court reviews a case only on the application of the party.

10. If the judgment given by the subordinate court is inconsistent with the judgment laid down by the Supreme Court,
then the court reviews its judgment.

Grounds to Review Judgment

1. If in a case, there is the discovery of a new or important matter or evidence, then the court can review its judgment.

2. If there is a mistake or any mathematical or clerical error on the face of the record, the court can review it.

3. If there is any other reasonable or sufficient reason for which the court is satisfied to review its judgment.

The application for review shall be filed within 30 days from the date of order/decree. The order or decree
passed after such review shall be final and in force. The review petition is discretionary of a court, meaning,
it can either choose to entertain or reject the application.
 What is Revision in CPC
Revision means to revise the matter and pick out if something has been done wrongly or in the wrong manner.

1. The High Court does revision under section 115 of the Civil Procedure Code.

2. The purpose of revision by the High Court is to rectify the mistakes made by the subordinate courts during the trial of a
case.

3. The High Court is empowered to do revision only in a civil case, but in criminal matters, the sessions court is also
empowered along with the High Court for revision.

4. The purpose of revision is to serve the parties with the ends of justice and not to defeat their rights.

5. The High Court, while doing revision, can’t appreciate any additional or new evidence. That shall not be acceptable.

6. If any issue has been left over in trial, then such an issue can’t be brought at the time of revision.
Grounds for Revision

1. The subordinate court has tried and decided such case of which it has no jurisdiction to try it.

2. When the subordinate court had jurisdiction to try the matter, but it did not exercise its jurisdiction.

3. If the court during trial and hearing left or avoided any evidence which was crucial for the impartial conclusion of the
case.

4. If the subordinate court violated the principles of natural justice, that is Audi Alteram Partem and Nemo judex in causa
sua.
 MODULE-2
Jurisdiction and Place of Suing Sec. 15 to 20
Meaning of jurisdiction
In general meaning, Jurisdiction is the power of the Court to take the cognizance of an offence and to determine the cause of
action. A court’s power to decide on a case or issue a decree.” jurisdiction may be defined as judicial power of Court to hear and
determine the cause and adjudicate upon it.

So the Court before taking the cognizance of offence, the following points needs to be taken into consideration:-

 The pecuniary value of the suit

 The nature of the case

 The territorial limits of the court

What is the Place of Suing in CPC?

Place of suing in CPC refers to where a lawsuit or legal action should be initiated or filed. It specifies the jurisdiction and venue where the case
should be brought before a court.

Section 15 to 20 deals with the place of suing.

There are three kinds of jurisdiction to determine the place of suing:-

  Territorial jurisdictions
 Pecuniary jurisdictions

 Subject matter jurisdiction

The place of suing in CPC is discussed under Sections 15 to 20. Section 15 pertains explicitly to the pecuniary jurisdiction of the Court. Sections 16 to 18
address suits concerning immovable property, Section 19 covers suits related to compensation for wrongs and movable property, and Section 20 deals with
suits concerning other matters.

Section 15: Place of Suing Based on Pecuniary Basis

Section 15 of Code ”-“Every suit shall be instituted in the Court of the lowest grade competent to try it”

Section 15 of the Code of Civil Procedure states that every lawsuit should be initiated in the Court of the lowest grade with the competence to
handle it. The word competent denotes that the court must have the power to hear the case with regards to pecuniary jurisdiction.
The court of lowest grade who has jurisdiction with regards to pecuniary value shall deal with the case at first instance. This
requirement aims to prevent overburdening of higher courts. While a judgment passed by a higher-grade court remains valid, a decree passed by
an incompetent court would be considered void.

Section 15 serves two primary purposes:

 Reducing the workload of higher courts.

 Providing convenience to the parties and witnesses involved in such lawsuits.
The jurisdiction of a court under Section 15 is determined based on the valuation stated by the plaintiff in the lawsuit, rather than the final
amount for which the Court will pass the decree.

Lets us understand from an example, if the court has a pecuniary jurisdiction of Rs 15000 and the suit for recovery of accounts is
filed on the valuation of suit done by the plaintiff. The valuation was of Rs 15000. Later the courts find that Rs 20000 is due, in this
case, the court is not deprived of its jurisdiction to pass a decree for that amount.

It is the valuation done by the plaintiff to determine the jurisdiction of the court. But this does not mean that the plaintiff is set free
to file for any arbitrary value and to choose the court in which he wants to file a suit.

When the court finds that valuation is done improperly for the purpose of avoiding the jurisdiction of the appropriate court, the
court may require the plaintiff to prove that valuation was done in a proper manner.
Place of Suing for Matters Involving Immovable Property (Section 16-18)

Section 16
Section 16 of the Code of Civil Procedure, 1908 states that suits related to specific types of claims concerning immovable property should be
instituted in the Court within the local jurisdiction where the property is situated. These types of suits include:

 Recovery of immovable property with or without rent or profits,

 Partition of immovable property,
 Foreclosure, sale, or redemption in the case of a mortgage or charge on immovable property,
 Determination of any other right or interest in immovable property,
 Compensation for wrong to immovable property,
 Recovery of movable property that is currently under distraint or attachment.
However, there is a provision that if a suit seeks relief or compensation for wrong to immovable property held by or on behalf of the defendant.
The relief can be entirely obtained through the defendant’s obedience, the suit can be filed either in the Court within the jurisdiction where the
property is situated or in the Court within the jurisdiction where the defendant resides, carries on business, or works for gain voluntarily and
effectively.

Section 17 of the CPC

Section 17 of Code of Civil Procedure 1908 states, “Suits for immovable property situate within the jurisdiction of different Courts”.

In cases where the immovable property is situated within the local jurisdiction of different courts if a lawsuit is filed seeking compensation or
relief for wrongs caused to the immovable property, it can be brought before any court within the jurisdiction where a portion of the property is
located. However, it is important to note that the Court hearing the case will have cognizance over the entire claim, considering the significance
of the subject matter of the suit.

Section 18– A place of an institution when the jurisdiction of courts is uncertain

When there is uncertainty with regards to the local limits of the jurisdiction of courts, and any of the courts has satisfied that there
is a ground for uncertainty, record the statement and may proceed with the case to entertain and dispose of the case. The decree
passed by such court will have the same effect as if the property was situated within the local limits of its jurisdiction.
In a case where the court taking the cognizance of case does not record the statement and objection is brought before Appellate or
Revisional Court, the Appellate or Revisional court shall not allow the objections unless it is satisfied that at the time of institution of
suit there was no reasonable ground for uncertainty as regards to jurisdiction of Court and there has been a failure of justice.

Place of Suing for Matters Involving movable Property (Section 19

Section 19 of Code of Civil Procedure 1908 deals with “Suits for compensation for wrongs to person or movables”.

In cases where a suit involves compensation for a wrong done to a person or movable property, if the wrong occurred within the jurisdiction of
one Court and the defendant resides, carries on business, or personally works for gain within the jurisdiction of another court, the plaintiff has the
option to file the suit in either of the mentioned courts.

For instance, if Raj, who resides in Kolkata, commits a wrongful act against Suraj, who resides in Gujarat, Suraj can choose to file the lawsuit in
either the Court in Kolkata or the Court in Gujarat, but not in a third unrelated court like Delhi. This provision allows the plaintiff to select the
Court based on their convenience or strategic considerations when the wrong and the defendant’s location fall under different court jurisdictions.

Section 20: Place of Suing in CPC for Other Suits

Section 20 of Code of Civil Procedure 1908 deals with “Other suits to be instituted where defendants reside or cause of action arises”

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

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and
voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries
on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside,
or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

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

Explanation I.-Where a person has a permanent dwelling at one place. Also, a temporary residence at another place, he shall be deemed to reside
at both places in respect of any cause of action arising at the place where he has such temporary residence.

Explanation II.-A corporation shall be deemed to carry on business at its sole or principal office in {Subs. by Act 2 of 1951, s.3, for “the States”.}
[India] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.”
Section 20 of the Code of Civil Procedure is a residuary section that addresses situations where the cause of action arises from a breach of
contract or business transactions. According to this section, if there is a breach of contract or a cause of action within the jurisdiction of one
Court, or if the defendant voluntarily resides, carries on business, or works for personal benefit within the jurisdiction of another court, the
plaintiff has the option to file the suit in either of those courts.

For example, let’s consider a scenario where Rohit, a clothing manufacturer, is based in Sonepat, and Sonam, a clothing retailer, is based in
Gandhinagar. Through her agent, who resides in Bangalore, Sonam enters into a transaction with Rohit. In such a case, the suit can be filed either
in Sonepat, where the cause of action originated, or in Gandhinagar, where Sonam resides.

Section 20 provides flexibility to the plaintiff by allowing them to choose the Court that is most convenient or beneficial for their case when the
cause of action or the defendant’s location falls under the jurisdiction of different courts.

Subject-Matter Jurisdiction
Subject-matter jurisdiction refers to the authority of a court to hear and decide cases based on the nature of the issues involved. Different courts
are granted jurisdiction over specific types of lawsuits to handle diverse legal matters. For instance, matters related to insolvency, probate,
divorce, and similar issues cannot be adjudicated by a court of civil judges of the junior division. If a court lacks subject-matter jurisdiction over a
particular case, any decree or judgment issued by that Court is considered null and void.

Meaning of Pleading order 6

Pleadings are the foundation stone on which the case of a party stands. The case of a party must be set out in the
pleadings. Order VI of the Code of Civil Procedure, 1908 deals with pleading in general.

According to Cornell Law School, The pleading is the beginning stage of the lawsuit in which parties formally submit

their claims and defences.

“Pleadings are statements in writing drawn up and filed by each party to a case, stating what his contentions will be
at the trial and giving all such details as his opponent needs to know in order to prepare his case in answer”.

Object
Pleadings help both the parties know the facts and circumstances of the case brought by the adverse party and
hence save time and expense.

Thus on analyzing Lord Jessel’s explanation the objects of a pleading can be enlisted as follows:

o To bring parties to specific issues

o To prevent surprise and miscarriage of Justice

o To avoid unnecessary expense and trouble

o Pleadings narrow down the area of conflict.

o To eradicate any irrelevance in the suit

o To assist court in reaching a proper and fruitful conclusion

o Pleadings state the facts which need to be proved at the trial.

Rules of Pleading

Basic rules of Pleading

Basic rules of pleadings are given in Order 6 Rule 2 of the Civil Procedure Code, 1908. They are as follows:

1. Pleading should state the facts.

2. The fact should be material facts.
3. Pleading should not state the evidence.
4. The facts stated in the pleading should be in a concise form.
Let us learn more about these four points in detail.

1. Pleading should state the facts.

The first rule of pleading states that the pleading should state the facts only and not the law. it is the duty of the

parties to state only the facts on which they rely upon for their claims. Question of fact must be pleaded, i.e. the

existence of any custom or usage, intention, waiver or negligence must be pleaded.

2. The fact should be material facts.

The second rule of pleading is that the facts stated should be material facts only and not the particulars. Material

facts are the basic facts.

In ‘Virendra Nath vs Satpal Singh‘, the Supreme Court stated, “the phrase ‘material’ fact 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 defends.” Whether a fact is a material fact or not differs from

case to case and depends on the circumstances of the case.

3. Pleading should not state the evidence

The third rule of pleading is that the pleading should not state the evidence with which the material facts are to be

proved. Facts are of two types:

(i) Facta probanda: the facts which need to be proved.

(ii) Facta probantia: the fact through which material facts are proved.

Facta probanda should be pleaded in the pleadings and not the facta probantia.

4. The facts stated in the pleading should be in a concise form.

The last fundamental rule of pleading is that the pleading should be in a concise form. Unnecessary and irrelevant

details should not be added to the pleading. Instead, pleading should be precise, clear and specific.

Amendment of Pleadings

The Provision related to Amendment of Pleadings gives power to the civil court to allow parties to alter, amend or
modify the pleadings at any stage of proceedings1. Provision for Amendment of pleadings has been stated in Order
6 Rule 17 of the Code of civil procedure. But the court will allow amendment only if this amendment is necessary to
determine the controversy between the parties. The purpose of this provision is to promote ends of justice and not
to defeat the law.

.Proviso to Rule 17 of Order VI as inserted by Civil Procedure Code (Amendment) Act, 2002 restricts and curtails
power of the court to allow amendment in pleadings by enacting that no application for amendment should be made
after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence the party could
not have raised before the commencement of trial.

WITH A PROPER OR RESONABLE AND CONCLUSIVE EVIDENCE

Conclusion

As mentioned earlier, pleadings are the backbone of a trial. It is the foundation stone on which the case of a party
stands. The proper formulating of pleading determines the future of the case. Pleading from the side of the plaintiff
is the Plaint and the reply to the allegations made in the plaint is known as Written Statement. The plaint may also
be amended subject to the conditions and requisites as stated above.
plaint
Order VII of the Code of Civil Procedure deals, particularly with plaint.

A plaint is a legal document which contains the written statement of the plaintiff's claim. A plaint is the first step towards the
initiation of a suit. A Plaint is a legal document that contains the content of any civil suit.

The plaint is the first step of the Plaintiff in the form of a legal document for the commencement of suit and it shows what a
Plaintiff wants from that suit. The concept of a plaint is mentioned in the Civil Procedure Code
Through the help of plaint, the plaintiff narrates or describes the cause of action and related information which is considered
as essential from the viewpoint of the suit.

In the case of plaint, the cause of action consists of two divisions, first is the legal theory and second is the legal remedy that
the plaintiff seeks from the court. A plaint is considered an important concept because it is the foremost and initial stage to
initiate any lawsuit and helps to find a civil court of appropriate jurisdiction.

Rules 1 to 8 deal with the particulars of the plaint

Particulars Of A Plaint:

 Plaint should contain the name of the commercial or civil court where a suit will be initiated.
 Plaint should contain details of the plaintiff such as the name, address, and description.

 Plaint should contain the name, residence, and description of the defendant.

 When a plaintiff has some defects or problems in health or any type of disability, the Plaint should contain a
statement of these effects.

 Plaint should contain the facts due to which cause of action arises and where the cause of action arises it should also
be mentioned.

 Plaint should not only mention facts due to which cause of action arises but also those facts which help in recognizing
the jurisdiction.

 Plaint should also contain about that relief which the plaintiff seeks from the court.
  When the plaintiff is ready to set off a portion of his claim, the Plaint should contain that amount which has been so
allowed.

 Plaint should contain a statement of the value of the subject-matter of suit not only for the purpose of jurisdiction but
also for the purpose of court-fees.

 At last, the content that should be on plaint is the plaintiff verification on oath.

Rejection of plaint
The Plaint shall be rejected in certain situations when requirements are not fulfilled. Some of the situations in which the plaint
is rejected are as follows

the main Rules i.e 11 to 13 deal with the rejection of the plaint and in which circumstances the plaint can be rejected.

I. Where the cause of action is not disclosed

II. When the relief claimed by the plaintiff is undervalued, and he/ she is not able to correct it even after being instructed
by the court to do so.
III. When the relief claimed is proper, but the plaintiff proceeds with the plaint on a paper which has not been stamped
sufficiently and fails to do so even after the court's instruction.
IV. Where the suit stems from a statement which has been essentially barred by law
V. The plaint is rejected in a case where all the documents are not properly stamped and the plaintiff on being required by
the court to supply the required stamp paper within a time to be fixed by court fails to do so.

VI. When a duplicate copy of the plaint is not submitted whereas it is mentioned that it is mandatory to submit the duplicate
copy then in that condition plaint is liable to be dismissed.

VII. The plaint is rejected when the plaintiff fails to comply with the provisions of Rule 9 of Order VII of C.P.C.

If a plaint is signed by a person not authorized by the plaintiff and it is not corrected within the
stipulated time, such a plaint can be rejected.
 Not showing the clear right to sue, a vague plaint can also be rejected.
MODE OF REJECTION OF PLAINT:
The plaint can be rejected by two methods:

1. The plaintiff can file an application at any stage of the suit for rejection of the plaint.
2. The judge can at any stage of the suit reject the plaint if it doesn’t fulfill the requirements and comes
under nay rule of Order 7 of Code of Civil Procedure.

ON WHAT GROUNDS A PLAINT CAN BE RETURENED?

A plaint can be returned by the following provisions:

Order 7 rule 10(1): RETURN OF PLAINT

This order states that, a plaint can be returned by any court if the suit that is presented cannot be tried in the
filed court, due to lack of jurisdiction. Thus the court may return the plaint for it to be presented in the proper
court.

WHAT ARE THE DIFFERENCES BETWEEN RETURN AND REJACTION OF PLAINT?

Rejection of plaint Return of plaint

1. In this the rules of 1. In this the jurisdiction of trying

drafting and the the suit is absent for the court.
construction of plaint is The drafting of the plaint may
 mistaken. be right.

1. Rejection of plaint can be

through application or 2. Return of plaint is always Suo Moto.
Suo Moto.

1. In case of rejection of 3. In return of plaint second appeal is not

plaint second appeal can allowed.
be filled.

1. Order rejecting plaint 4. Order returning plaint is not a decree.

amounts to decree.

1. Revision on rejection of 5. In returning plaint revision can be

plaint cannot be filled. filled.

1. It is not exhausted in 6. It is exhausted in nature.

nature.

Conclusion
A plaint is important in the sense that it is the first and foremost step towards instituting the suit. Therefore, due care has to be taken to
ensure that the procedure required for the initiation of plaint has been duly recognized.
It is mandatory to follow protocol by stating the relevant facts, the necessary details, refrain from providing evidence and mention the
kind of relief envisaged so that the plaintiff is duly benefited.

written statement order 8

A written statement is a reply to the plaint, in other words, it is the pleading of the defendant in the answer of the plaint led by the plaintif
against him and such reply has to be given within 30 days the date of the filing of the plaint.
Who may be written statement:
A written statement may be filed by the defendant or by his duly authorized agent. In the case of more than one defendants, the common
written statement led by them must be signed by all of them

Time limit for ling written statement:

A written statement should be led within thirty days from the service of the summons on him. The said period, however, can be extended
up to ninety days,(Rule -1). A defendant should present a written statement of his defence in the said period.

Defences in written statement:

In written statement defendant can specially deny the allegations made in the plaint by the plainti against him. Besides this, he also can
claim to set-off any sums of money payable by the plaintiff to him as a counter defense (Order 8 Rule 6). Further, if the defendant has any
claim against the plaintiff relating to any matter in the issue raised in the plaint, then he can separately file a counter-claim along with his
written statement. It is provided in Order 8 Rule 6A to 6G of the code.

Set-Off
Set-off is related to debts. It is the reciprocal claim made by the defendant. Set-off can be used only under the suit for recovery of money. This
can be better under by an example. Suppose, A files a suit against B claiming that the latter is Rs.20,000 due to him. Now, B also has a claim
against A that he is Rs.10,000 in debt to the former, i.e., A is Rs.10,000 in debt of B. Here, both are mutually indebted to each other, and they
both have to pay off the debts due to each other. Instead of filing a fresh suit altogether, B files a set-off claim along with the written statement
in response to the plaint filed by A.

Set-off is dealt under Order VIII Rule 6, and it says that such written statement along with a set-off should be considered by the Court as
much as plaint because it too has a subject matter that is in dispute. However, there certain conditions that have to be met for filing a set-off by
the defendant. They are:

 The suit initiated must be for recovery of money. So, set-off can be filed only in money suits.
 The defendant must claim only the amount that he has already lent to the plaintiff. The defendant cannot claim the money he has not
already lent. It means the money should be ascertained.

 The ascertained money should be legally recoverable by the defendant from the plaintiff. It should not be barred by any laws of
limitation.

 The recoverable money by the defendant should be defendant or defendants if there are many, and in the same way, it should be
recovered from the plaintiff or plaintiffs if there are many.

 The set-off should be filed only in the court which has financial jurisdiction.
Counter-claim
Counter-claim is dealt under Order VIII Rules 6-A to 6-G of the Code of Civil Procedure, 1908. It is a claim which is separate and independent from that
of the plaintiff. It is also cross-claim but not necessarily arise out of the same cause of action contained in the plaint. Unlike set-off, a counter-claim need not
be mandatorily related to the recovery of money. It could be regarding any civil disputes.

The characteristics of counter-claim are as follows:

 Counter-claim also should accompany a written statement. If it is not filed along with the written statement, the court usually does not allow the
defendant to file the counter-claim at a later stage in the suit, if his intention is to prolong the proceedings of the suit. Nonetheless, the counter-claim
can always be filed as subsequent pleading under Rule 9 of the same Order.
 Counter-claim was brought into existence to avoid multiplicity of proceedings and thereby save a lot of court’s valuable time.

For example, A files a suit against B and B also wants to file a suit against A for a completely different subject matter. Instead of filing a separate suit, B makes
a counter-claim against A. Here, a lot of time is being saved since the counter-claim proceedings are being carried on by the original suit proceedings.

 The counter-claim is treated on par with the plaint, and the plaintiff should file a written statement in response to the counter-claim. The court can
pronounce final judgement both on the original claim and the counter-claim.
 For the defendant, the counter-claim can be filed by the defendant against the plaintiff. In some instances, he can claim from co-defendants along
with the plaintiffs. But a counter-claim solely to claim from the co-defendants is not entertained by the courts.

 The counter-claim should be filed only when the subject matter is not barred by the Limitation Act.

Earlier, set-off or counter-claim were supposed to be filed for only money suits. But an amendment to CPC in 1976 has covered the concept of counter-claim
under Order VIII Rules 6-A to 6-G as discussed above to include other civil natured claims against the plaintiff and also to save the time by reducing suits
between the same parties.

As a final note, set-off can be used for recovering money in suits related to money and counter-claim can be used for any civil natured claims. Both have to be
filed along with the written statement, and both have to be filed by the defendant against the plaintiff. These two concepts are so similar in nature that they
tend to reduce the burden of filing a fresh suit against the plaintiff with regard to their claims.

Appearance and Non-Appearance of Parties (Order 9)

The appearance of parties to the suit
As stated under Rule 1 of Order IX of the Code of Civil Procedure, the parties to the suit are required to attend the court either in
person or by their pleaders on the day which has been fixed in the summons. If the plaintiff or a defendant, when ordered to appear
in person, do not appear before the court and neither show the sufficient cause for his non-appearance, the court is empowered
under Rule 12 of Order IX as follows.

 If the plaintiff does not appear, dismiss the suit.

 If the defendant does not appear, pass an ex-parte order.

Non-appearance of both parties to the suit

When neither the plaintiff nor the defendant appears before the court when the suit is called for hearing, then the court is
empowered to dismiss the suit under Rule 3 of Order IX. The dismissal of the suit under this rule does not put a bar on filing a fresh
suit on the same cause of action as per Rule 4.

The appearance of the plaintiff

When only the plaintiff appears but the defendant does not appear, then an ex-parte order can be passed against the defendant.
But, the plaintiff has to prove that the summon was served to the defendant.

If service of the summons is proved then only the court can proceed for an ex-parte against the defendant and the court may pass
a decree in favour of the plaintiff.

Appearance of Defendant
The regulations pertaining to instances where only the defendant appears are outlined in Rule 7-11 of Order IX. When the defendant is present
but the plaintiff is not, two scenarios may arise:

 The defendant does not concede to the plaintiff’s claim, either in whole or in part.
 The defendant concedes to the plaintiff’s claim.
If the defendant does not acknowledge the plaintiff’s claim, the court will order the dismissal of the suit. However, when the defendant fully or
partially accepts the plaintiff’s claim, the court is authorized to issue a decree against the defendant based on that admission. For the remaining
aspects of the claim, the suit will be dismissed.
Does the same provision apply to the non-appearance of the plaintiff due to death?
When the plaintiff does not appear because of death, the court has no power to dismiss the suit. Even if such order is passed it will
amount to a nullity as held in the case of P.M.M. Pillayathiri Amma v. K. Lakshi Amma.

Application to set aside the dismissal

When the suit has been dismissed on the ground of non-appearance of the plaintiff then he can make an application to set aside the
order of dismissal. If the court is satisfied with the reason of non-appearance as a sufficient cause then the court can set aside the
order dismissing the suit and fix a day for the proceeding of the suit.

When summon is not served

Rule 2 to 5 of Order IX lays down the provision for the situation when the summon is not served to the defendant. One of the
fundamental procedural law is that a party must be given a fair opportunity to represent his case. And, for this, a notice of the legal
proceedings initiated against him is obligatory. Therefore, service summons to the defendant is mandatory and it is a conditional
precedent.

When there is no service of summons or it does not give him sufficient time for effective presentation of the case then a decree
cannot be passed against him as held in the case of Begum Para v. Luiza Matilda Fernandes.

Rule 2 of Order IX also holds that when the plaintiff fails to pay costs for service of summons to the defendant then the suit may be
dismissed. But, no dismissal can be made even in the presence of such failure if the defendant appears on the day of hearing either
in person or through his pleader. However, the plaintiff is entitled to file a fresh suit when the suit is dismissed under this rule. and,
if the court is satisfied that there is a reasonable reason behind such failure to pay costs then the court may set aside the order of
dismissal.

When the summon is returned unserved and the plaintiff does not apply for fresh summons for 7 days from which the summon is
returned unserved by the defendant or any of the defendants, then the court can dismiss the suit against the defendant or such
defendants

When the summon was not duly served to the defendant is not proved then the court can direct to issue a fresh summon to the
defendant for service. When the service of the summons is proved before the court but the time prescribed in the summon is not
sufficient for him to answer on the day which has been fixed, then the hearing can be postponed by the court to a future date and
notice will be given to the defendant.
Ex-parte Decree

When the defendant is absent on the day of the hearing as fixed in the summon an ex-parte decree can be passed. The ex-parte
order is passed when the plaintiff appears before the court on the day of the hearing but the defendant does not even after the
summon has been duly served. The court can hear the suit ex-parte and give ex-parte decree against the defendant.

An ex-parte decree is a valid one and it is not null and void but can be merely voidable unless it is annulled on a legal and valid
ground. An ex-parte can be enforced like a bi-parte decree and it has all the forces as a valid decree as held in the case of
Panduranga Ramchandra v. Shantibai Ramchandra.

Remedies against an ex-parte decree

When an ex-parte decree has been passed against a defendant, the following remedies are available to him.

 He can apply to the court under rule 13 of Order IX for setting aside the ex-parte decree passed by the court.
 He can appeal against that decree under section 96(2) of the Code or, prefer revision under section 115 of the code when
no appeal lies.

 He can apply for a review under Order 47 Rule 1.

 A suit on the ground of fraud can be filed.

Setting aside an ex-parte decree

For setting aside an ex-parte decree an application may be made by the defendant. An application to set aside decree can be made
to the court passing that decree. There are certain rules to be followed for setting aside an ex-parte decree and if the defendant
satisfies the court with sufficient reason, then only the ex-parte decree which has been passed can be set aside.

The limitation period for making an application for setting aside an ex-parte decree is of 30 days.

The grounds on which an ex-parte decree can be set aside are:

When the summons has not been duly served. Due to any “sufficient cause”, he could not appear on the day of the hearing.
 Order 11: Rule 12-21 discovery and inspection of documents
Discovery – Order 11
Under Civil Procedure Code, 1908 discovery basically means a pre-trial procedural aspect wherein each party is given an
opportunity to obtain evidence from the opposite party or parties. In other words, we can say that it is a formal process
wherein the parties get a chance to exchange information regarding the witnesses and evidence which will be presented
before the court during the trial.

The main purpose of discovery is to make the parties aware of the case, that means there shall not be any ambiguity between
parties while the trial is going on. Both the parties shall be clear about the plaint made and issues thereby.

Order XI Rule 12: application for discovery of documents

Order XI Rule 12 of the Code empowers the party to make an application for discovery of documents to the court seeking those
documents that are in possession or power of the other party. This application may be filed without filing any affidavit. If it appears
to the court that such discovery is not required or not important at that stage of the suit, then the court either rejects the
application or adjourns it.

Rules as to discovery
The general rules for the discovery of the documents are as follows:

1. Any party can get an order from the court for the discovery of the documents or for inspection of documents.
2. It is the discretion of the court to pass such an order.

3. The court can use its power any time during the suit, either suo moto or by the application of the party.

4. The court shall not pass an order for the discovery, inspection or production until the written statement has been filed by
the defendant.
 5. No such order shall be passed if the application is made by the defendant until he has not filed a written statement.

6. Discovery of the document shall not be made if the court is not of the opinion that this order will lead to fair disposal of the
suit or useful for saving cost.

7. A party to whom an order of discovery of documents has been passed, as a general rule, shall produce all the documents
which are under his possession related to the suit.

8. If the parties are taking any legal protection under the privileges provided under the code, then the court shall verify such
documents and give the protection.

9. Failure to comply or default from the side of the parties to the order for discovery, production or inspection, can lead to
adverse inference on the party.

Order XI Rule 14: production of documents

Order XI Rule 14 empowers the court to order the party against whom an application for production of the document is made to
produce such documents in his possession or power. After such documents are produced before the court, then the court might look
into them fairly and properly. This application can be dealt with by the Court and an order to the same effect can be passed at any
time during the pendency of any suit.

It is pertinent to note that Discovery of Documents (Rule 12) is different from production of documents (Rule 14) in the manner
than in the former rule, the party to suit is required to make an application before the court whereas, in the latter, the court itself
(suo-motu) asks the other party to produce documents. No application of the discovery of the document is required to be made by
the party in the latter case. And, if the party to whom the court on its own motion orders for production of documents, fails to
produce them, then in such case, the court makes an adverse presumption against such party for not producing the documents.

Order XI Rule 15: inspection of documents referred to in pleadings or affidavits

Order XI Rule 15 empowers the parties to serve a notice to the other party seeking production of those documents that have either
been referred to in the pleadings or affidavit.
As per the Rule 15-19 of Order XI of the code, the inspection of documents can be divided into two categories:

1. The documents which are referred to in the affidavits or pleadings of the parties.
2. The documents which are not referred to in the pleadings of the party but are in the power or possession of the parties.

And the parties are allowed to get the inspection of the former category documents, not the latter one.

Admissions – Order 12
Admission basically means the voluntary acknowledgement made by the person against his own interest. It can be an important
piece of evidence against a person. It can either be in oral, electronic form or documentary in nature. Admissions are different from
the confession which is made under the criminal law. Admission is weaker than confession because the parties have the right to
prove that admission made earlier was false.

However, assertions are different from admission. It can be made in favour of themselves. It can be true or false, therefore
assertions are not considered as an important piece of evidence which can be used against a person.

Importance
As per the case of Bharat Singh And Anr vs Bhagirathi, the Supreme Court held that:

Admissions are substantive evidence by themselves. But as per section 17 and section 21 of the Indian Evidence Act, they are not
conclusive in nature. However, if admission is proved beyond doubt and duly proved, then irrespective of the fact if the witness
appeared in the witness box or not, the admission can be considered admissible.

In the case of Biswanath v Dwarka Prasad, the Apex Court observed that:

1. The admissions are made by the maker against himself unless otherwise proved or explained.
2. The admissions are considered as proprio vigore that means a phrase which by its own force.

Affidavits – Order 19
Affidavits are dealt under Order 19 of the Code. It is a sworn statement made by the person who is aware of the facts and
circumstances which has been taken place. The person who makes and signs is known as ‘Deponent’. The deponent makes sure
that the contents are correct and true as per his knowledge and he thereby concealed no material therefrom. After signing the
document, the affidavit must be duly attested by the Oath Commissioner or Notary appointed by the court of law.

The person who gives attestation to the affidavit shall make sure that the sign of the deponent is not forged. The affidavit shall be
drafted as per the provisions of the code. It must be paragraphed and numbered properly.

Even though the “affidavit” has not been defined in the code, it basically means “a sworn statement in writing made specifically
under oath or affirmation before an authorized officer or Magistrate.”

Essentials
There are some basic essentials which are required to be fulfilled while submitting the affidavit in the court:

1. It must be a declaration by a person.

2. It shall not have any inferences, it shall contain facts only.

3. It must be in the first person.

4. It must be in writing.

5. It must be statements which are taken under oath or affirmed before any other authorized officer or a Magistrate.

Order I, Rule 3 of the CPC outlines the joinder of the defendants to the suits. When any claim to relief is alleged to exist against
defendants arising out of the same act or transaction or series of acts or transactions, or when any common question of law or fact
would emerge if separate cases were launched against the defendants, all people may join as defendants in a suit.

A misjoinder occurs when a party to the lawsuit is unintentionally added. It is deemed a misjoinder when a party is added but has
nothing to do with the dispute. When a party to the suit is not added to the suit, then it is a non-joinder. Order I, Rule 9 of the
CPC states that no suit shall be dismissed on the grounds of the misjoinder or non-joinder of parties. This Rule does not apply to
necessary parties interpreted as non-joinder.
 Meaning of Issue: Order 14
A single material point of fact or law in litigation that is affirm by the one side and denied by the other side is called an Issue.

Framing or non-framing of issues in case of Ex-parte decree:

Court should only made issues when defendant has made his defence against the suit through submission of his written
statement. However, court should not frame issues when the defendant has not appeared before the court.

Kinds of Issue:
There are two types of issues
1.Issue of Fact
2.Issue of Law.

Object of framing of Issue:

Object is to ascertain the real dispute between the parties by narrowing down the area of conflict and determining where the
parties differ.

Matters to be considered before framing of Issues:

1.The court shall read the plaint and written statement before framing an issue to see what the parties allege in it.
2.According to Order X, Rule 1 of Code of civil procedure, 1908 it permits the court to examine the parties for the purpose of
clarifying the Pleadings, and the court can record admission and denials of parties in respects of an allegations of facts as are
made in Plaint and written statement.
3.If any party admitted any fact or any document then no issues are to be framed with regards to those matters, and the
court will pronounce judgments respecting matters which are admitted.
4.The court may ascertain upon at what material propositions of law or fact the parties are at varies.
5.The court may examine the witness for the purpose of framing of issues.
6.The court may also in the framing of issues take into consideration the evidence laid in the suit. When a material point is not
raised in the pleadings, and it is noticed by the court during the course of evidence the court can frame an issue regarding it
and try it.
7.Order XIV Rule 4 states that where the Court is of opinion that the issues cannot be correctly framed without the
examination of some person not before the Court or without the inspection of some document not produced in the suit, it may
adjourn the framing of the issues to a future day, and may (subject to any law for the time being in force) compel the
attendance of any person or the production of any document by the person in whose possession or power it is by summons or
other process.
Materials on which issues may be framed:
1.Allegations made on Oath: Issues can be framed on the allegations made on oath by the parties or by any persons present
on their behalf or made by the pleader of such parties.
2.Allegations made in Pleadings: Issues can be framed on the basis of allegations made in the pleadings.
3.Allegations made in interrogatories: Where the plaint or written statement does not sufficiently explain the nature of the
parties’ case, interrogatories may be administered to the party and allegation made in answer to the interrogatories delivered
in the suit may be the basis of framing of issues.
4.Content of documents: The court may frame issues on the basis of content of documents produced by either party.
5.Oral examinations of Parties and Objections: Issues can be framed on the basis of oral examination by the parties or oral
objections.

Amendment or Strike out Framed Issues:

At any time before passing of decree, court can amend framed issues on those terms which it deems fit. However, such
amendments of framed issues would be necessary for determination of matters in controversy between parties.
At any time before passing of decree, court can amend framed issues specially when it appears to the court that such issues
have been wrongly framed or introduced.

Regarding amendment of framed issues court also has a mandatory power, in fact, court is bound to amend framed issues
especially when such amendments are necessary in determination of matters in controversy, when framed issues do not bring
out point in controversy or where framed issues do not cover entire controversy.
Court can amend or strike out framed issues at any stage before final disposal of suit.

Conclusion:
Issues are of great importance not only for parties but also for court. Parties are require to prove or disprove framed issues
and not pleadings, and on the other hand, court is bound to give decision on each framed issue and therefore court is not
bound to decide those matters on which no issues have been framed.

First Hearing and framing of issues:

After pleadings, the day on which issues are framed and then discussed or settled by the court is called the
First Hearing.

Disposal of Suit at First Hearing [Order 15]:

The court may pronounce a judgment right away in the following cases:
1. Where the parties are not at an issue of any question of law or fact [Rule 1].
 2. In cases of multiple defendants, the defendant that admits the claim will be given judgement. As for the others,

the proceedings shall go on [Rule 2].

3. When the court is satisfied after framing issues that no argument or evidence is required to get to the suit’s

finality [Rule 3].

4. Where the summons has been issued for the final disposal of suit and either party fails (without sufficient cause)

to produce evidence [Rule 4]

5. Where a party makes certain admissions that essentially fulfil the suit and are considered sufficient by the court to

dispose the suit finally.

A suit can b e disposed of on first hearing in following way:

1. Parties not at issue.
Where at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce
judgment.

2. One of several defendants not at issue.

1. Where there are more defendants than one, and any one of the defendants is not at issue with the plaintiff on any question of law or of fact,
the Court may at once pronounce judgment for or against such defendant and the suit shall proceed only against the other defendants.

2. Wherever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and the decree shall bear
the date on which the judgment was pronounced.

3. Parties at issue.
 1. Where the parties are at issue on some question of law or of fact, and issues have been frame by the Court as herein before provided, if the
Court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be
sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the Court may proceed to
determine such issues, and , if the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summons
has been issued for the settlement of issues only or for the final disposal of the suit:
Provided that, where the summons has been issued for the settlement of issues only, the parties or their pleaders are present and none of
them objects.

2. Where the finding is not sufficient for the decision, the Court shall postpone the further hearing of the suit, and shall fix a day for the
production of such further evidence, or for such further argument as the case requires.

4. Failure to produce evidence.

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, the Court may at once pronounce judgment, or any, if it thinks fit, after framing and recording issues, adjourn the suit for production of such
evidence as may be necessary for its decision upon such issues.

Trial: Summoning and attendance of witnesses, summons to produce documents, adjournment, hearing of suit.

Presentation of the Plaint (Order 7 of CPC 1908)

Presentation of the plaint in a court is the initial step of the pleadings in a case. Every suit commences when the plaintiff files a plaint to the court. The entire
judicial system under the civil law is set in motion by filing the plaint.

Summoning and Attendance of the witnesses

After the issues are framed, the parties shall present the list of witnesses, to the court, whom they propose to call either to provide evidence or to produce
documents. This list should be presented on the date appointed by the court and not later than fifteen days. The provisions of the same is mentioned in Order 16
of the CPC.
Production of documents by the parties
After the written statement is filed by the defendant, the next stage of the suit is the production of documents. Both the plaintiff and defendant are required to
file the documents that are in their possession. However, if the document that the party is relying upon, is not in their possession then they can apply to the court
for the issue of summons to the person in whose possession the document is.

Hearing of Suits and Examination of Witnesses

On the date fixed for hearing of the suit, the party having the right to begin should start with stating his case and producing the evidences to support the issue
that he is bound to prove. The other party will then continue by stating his cases and produce evidences. The plaintiff is required to submit the evidence that
were mentioned earlier. The advocate on the defendant’s side will then cross-examine the plaintiff and any witness that the plaintiff presents. The same will be
the process un the case of the defendant I which the advocate on the plaintiff’s side will cross-examine him and any witness presented by him.

Judgement
Judgement is the statement that is passed by the judge on the ground of which a decree is passed. After hearing both sides of the case, the court shall announce
the judgement either immediately or within one month of the completion of the arguments.

Execution of Decree
Through execution, a decree-holder compels the judgment-debtor to carry out the mandate of the decree or order as the case may be. An execution is considered
to be complete when the creditor gets the money or other claims awarded to him by judgement, decree or order.

MODULE 3

SECTION 151 INTERIM ORDERS

Generally, the term “interim” refers to temporary or provisional, that is a term which denotes anything that is not final.

The term 'interim order' refers to an order passed by a court during the pendency of the litigation. It is generally passed by the Court to
ensure the Status quo.
nterim aka Interlocutory orders are those which are
passed during the pendency of the suit or
proceedings
(lis pendens) and the rights, liabilities of the parties
are generally not substantially decided as per the
suit.
These orders are not just those which decide the
cause of action, but are those which decide the
interceding
course of action provisionally.
nterim aka Interlocutory orders are those which are
passed during the pendency of the suit or
proceedings
(lis pendens) and the rights, liabilities of the parties
are generally not substantially decided as per the
suit.
These orders are not just those which decide the
cause of action, but are those which decide the
interceding
course of action provisionally.
nterim aka Interlocutory orders are those which are
passed during the pendency of the suit or
proceedings
(lis pendens) and the rights, liabilities of the parties
are generally not substantially decided as per the
suit.
These orders are not just those which decide the
cause of action, but are those which decide the
interceding
course of action provisionally.
Interim aka Interlocutory orders are those which are passed during the pendency of the suit or proceedings(lis pendens) and the rights, liabilities of the parties
are generally not substantially decided as per the suit. These orders are not just those which decide the cause of action, but are those which decide the
interceding course of action provisionally.

Thus interim or interlocutory orders are those order 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. 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.

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.
Therefore to ensure that the interests of none of the party to the litigation are harmed, the court may pass an interim order.

An interim order may be passed by the court only if the following conditions are satisfied;

1. Where there is a prima facie case in favour of the party seeking the order,

2. Irreparable damage may be caused to the party if the order is not passed and such damage may not be ascertained in terms or money and
payable as damages

3. Where the balance of convenience lies with the party requesting for the order.[2]

Interim Order Provisions

Court Payment (vide Order 24)

Security of Costs (vide Order 25)

Commissions (vide Order 26)

Judgement preceded by Arrest (vide Order 38)

Attachment before a judgement (vide Order 38)

Injunction (vide Order 39)

Interlocutory Orders (vide Order 39)

Receiver (vide Order 40)

Order 24 Court Payment

The provisions for payment in court were given under Order 24 of the Code of Civil Procedure, 1908. There are four rules under this
order. It talks about the provisions of payment in court by the defendant to the plaintiff’s claim or suit.

1. Deposit by defendant of amount in satisfaction of claim

The defendant in any suit to recover a debt or damage may, at any stage of the suit, deposit in Court such sum of money as he considers
a satisfaction in full of the claim.

2. Notice of deposit

Notice of the deposit shall be given through the Court by the defendant to the plaintiff, and the amount of the deposit shall (unless the
Court otherwise directs) be paid to the plaintiff on his application.

3. Interest on deposit not allowed to plaintiff after notice

No interest shall be allowed to the plaintiff on any sum deposited by the defendant from the date of the receipt of such notice, whether
the sum deposited is in full of the claim or falls short thereof.

4. Procedure where plaintiff accepts deposit as satisfaction in part

(1) Where the plaintiff accepts such amount as satisfaction in part only of his claim he may prosecute suit for the balance; and, if the Court
decides that the deposit by the defendant was a full satisfaction of the plaintiffs claim, the plaintiff shall pay the costs of the suit incurred
after the deposit and the costs incurred previous thereto, so far as they were caused by excess in the plaintiff s claim.

(2) Procedure where he accepts it as satisfaction in full-

Where the plaintiff accepts such amount as satisfaction in full of his claim he shall present to the Court a statement to that effect, and
such statement shall be filed and the Court shall pronounce judgment accordingly; and, in directing by whom the costs of each party are
to be paid, the Court shall consider which of the parties is most to blame for the litigation.

Illustrations

(a) A owes B Rs. 100. B sues A for the amount, having made no demand for payment, and having no reason to believe that the delay
caused by making a demand would place him at a disadvantage. On the plaint being filed. A pays the money into Court, B accepts it in full
satisfaction of his claim, but the Court should not allow him any costs, the litigation being presumably groundless on his part.
 Order 25 - Security for costs

. When security for costs may be required from plaintiff

( 1 At any stage of a suit, the Court may, either of its own motion or on the application of any defendant, order
the plaintiff, for reasons to be recorded, to give within the time fixed by it security for the payment of all costs
incurred and likely to be incurred by any defendant:

Provided that such an order shall be made in all cases in which it appears to the Court that a sole plaintiff is, or
(when there are more plaintiffs than one) that all the plaintiffs are, residing out of India and that such plaintiff
does not possess or that no one of such plaintiffs possesses any sufficient immovable property within India other
than the property in suit.

( 2 Whoever leaves India under such circumstances as to afford reasonable probability that he will not be
forthcoming whenever he may be called upon to pay costs shall be deemed to be residing out of India within the
meaning of the proviso to sub-rule ( 1 )].

Effect of failure to furnish security

( 1 ) In the event of such security not being furnished within the time fixed, the Court shall make an order
dismissing the suit unless the plaintiff or plaintiffs are permitted to withdraw therefrom.

( 2 ) Where a suit is dismissed under this rule, the plaintiff may apply for an order to set the dismissal aside
and, if it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from furnishing
the security within the time allowed, the Court shall set aside the dismissal upon such terms as to security,
costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

( 3 ) The dismissal shall not be set aside unless notice of such application has been served on the defendant.
Commissions (Sec. 75 to 78 Order 26)
What is meant by issue of commission by the Court?

Commission is instruction or role given by the Court to a person to act on behalf of the Court and to do everything that the Court
requires to deliver full and complete justice. Such person who carries out the commission is known as a Court commissioner.

For example, whenever the Court has to do a local investigation, a commissioner is appointed who conducts the local investigation.
Similarly, to record the evidence of a witness who cannot come to the Court for evidence, the Court can issue a commission for
recording of such evidence.

Who can be appointed as a commissioner?

Generally, there is a panel of commissioners which is formed by the High Court in which advocates are selected who are competent
to carry out the commission issued by the Court.

The person appointed as commissioner should be independent, impartial, disinterested in the suit and the parties involved in it.
Such a person should have the requisite skills to carry out the commission.

Order 26 Rules 9 – Commissions to make local investigations

In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in
dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits,
the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to
the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court
shall be bound by such rules.
Order 26 Rule 10 – Procedure of Commissioner
(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him,
shall return such evidence, together with his report in writing signed by him, to the Court.

(2) Report and depositions to be evidence in suit. Commissioner may be examined in person – The report of the Commissioner and
the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record;
but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open
Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he
has made the investigation. –

(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be
made as it shall think fit.

Commissions for scientific investigation, performance of ministerial act and sale of movable property.

Order 26 Rule 15 – Expenses of commission

Before issuing any commission under this Order, the Court may order such sum (if any) as it thinks reasonable for the expenses of
the commission to be, within a time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission
is issued.

Order 26 Rule 16 – Powers of Commissioners

Any Commissioner appointed under this Order may, unless otherwise directed by the order of appointment, –

(a) Examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the
Commissioner thinks proper to call upon to give evidence in, the matter referred to him;

(b) call for and examine documents and other things relevant to the subject of inquiry;

(c) at any reasonable time enter upon or into any land or building mentioned in the order.
Appointment of Commissioner under Section 75 of the CPC
Appointment of Commissioner in terms of part III i.e. matter “Incidental proceedings” of CPC is a provided by section 75 of the CPC.
Inasmuch as this article is concerned with the appointment of Commissioner section 75 of CPC being the provision relevant,
empowering the court, it would be opposite to refer the provisions.

Section 75 of the CPC Power of the court to issue commissions. – Subject to such conditions and limitations as may be prescribed,
the court may issue a commission –

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition;

(e) to hold la scientific, technical, or expert investigation;

(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the
determination of the suit;

(g) to perform any ministerial act. Provisions Relating To Attachment And Arrest Before Judgment
 Provisions Relating To Attachment And Arrest Before Judgment order 38 of CPC

The main objective of justice and judicial procedure is to protect preserve and enforce the rights of parties. This is done through the
judgment and decree. So long as judgment and decree are not executed, they are meaningless. Many times, the defendant try to
defeat the execution of judgment and decree of the court. Before judgment, they make such a plan such as consumption of
property, transferring it elsewhere or running away.

When the defendant becomes successful in doing this, the decree of court becomes meaningless. Therefore, to defeat such plan of
the defendant, provision has been made under order 38 of Civil Procedure Code 1908 for arrest and attachment before judgment.

1. Arrest before judgment:

1. Under rules 1 to 4 of order 38 of the code, provision has been made for arrest before judgment.

a. Demand for security- when at any stage of the case, if it appears from the affidavit of the court or otherwise that
the defendant with the intention of:

i. delaying the trial- of the suit;

ii. avoiding the order of the court;

iii. creating obstacles in the execution of the decree being passed against him:

 has run away

 about to run away

  has left the jurisdiction of the court; or

 about to leave the jurisdiction of the court; or

 remove the property from the jurisdiction of the court; or

 has consumed the property or

 about to leave India so that delay or obstacle may be caused in the execution of the decree.

Then the court will issue warrant of arrest with the intention that he should be brought before the court and he should explain as to
why he should not give security to the court for his appearance.

If the defendant presents himself in the court and assures the court that he is willing to give security or deposits the amount of
claim of the plaintiff in the court, he will not be arrested and the warrant of arrest will be cancelled. (order 38, Rule 1).

In Chimanlal Vs Radhy Shayam (1972 JIJ 36), it has been said that for the purpose of rule 1, it is not sufficient to give security,
but the security must be sufficient.

b. Procedure when be becomes unsuccessful in giving security- if the defendant remains unsuccessful in giving the
desired security then under Rule 4, order 38, the defendant will be put to civil prison till:

i. The case is decide finally; or

ii. If the decree has been passed against the defendant, the decree is not satisfied.

The period of detention in civil prison will not exceed six weeks if the value of suit does not exceed Rs. 50/- and six months, in
other cases.
Attachment before judgment
The second method of defeating the obstacles to be created by the defendant in execution of decree is passing order by the court
for attachment of the property before judgment. Provision has been made in this regard under rules 5 to 13 or order 38 of the code.

a. Demand for Security: under Rule 5, order 38 of the code, if the court comes to the conclusion at any stage of the suit either
from the affidavit or otherwise, that the defendant with the intention of creating obstruction in the execution of decree passed
against him:

i. intends to consume his property; or

ii. about to remove that property from the jurisdiction of the court;
then the court will direct the defendant that he should explain why security should not be taken from him he should
surrender that property or its value or any portion of it at the disposal of the court or to give security for that (Sub rule
2 of Rule 5).

It is to be mentioned that until the court gives direction or passes orders otherwise, the plaintiff can make demand for
attachment of the property (Sub-rule 2, Rule 5)
Further, the court can pass order for conditional attachment of any property (Sub-rule 3 of Rule 5).

b. Procedure in case the defendant remains unsuccessful in giving security:

when the defendant remains unsuccessful in submission of proper security or could not show any cause for it, then court
under Rule 6, Order 38, will attach the property or any portion of it which can satisfy the claim of the plaintiff (Sub-rule 1,
Rule 6).

But during this period, if cause is shown by the defendant or security is given, then the court will withdraw such order (Sub-
rule 2 of Rule 6).

Thus under rules 5 and 6 of Order 38 of the code, provision has been made for attachment of property before judgment.

The provision of rule 5, order 38 are mandatory. In Poldhar Rolling Mills Pvt. Ltd. Vs Vishvasaraiyya Iron and Steel
Company Ltd. (A.I.R. 1985, Karnataka 282), has been decided by the court that before passing orders for attachment by
any court, it should be ascertained that strong possibility exists of creating obstacles in the execution of the decree by the
 defendant.

The plaintiff will have to prove that the defendant will create obstacles in the execution of decree

Temporary Injunction O-39

Meaning:
An Injunction is a judicial process whereby a party is required to do, or refrain from doing, any act. It is the remedy in the form of
an order of the court addressed to a person that either prohibits him from doing or continue to do such act. Thus, Injunction is a
relief that (prevents or restricts from doing an act) or (may include the order from doing any act for the purpose of prevention).

Kinds of Injunction:

A temporary or interim injunction restrains a party temporarily from doing the specified act and can be granted only until the
disposal of the suit or until the further order of the court.

Permanent Injunction restrains a party forever from doing the specified act and can be granted only on the merits at the
conclusions of the trial after hearing both the parties to the suit

Who may apply and against whom Injunction may be issued?

Both plaintiff and defendant may apply for Injunction against each other. An injunction may be issued only against a party and not
against any stranger or a third party.

It also cannot be issued against a court or judicial officers.

Grounds of Temporary Injunction:

O39 R1 provides that Temporary Injunction may be granted by court:

1. Property in dispute is in danger of being WASTED, DAMAGED or ALIENATED by any party to the suit, or WRONGFULLY SOLD
IN EXECUTION OF DECREE.
 2. Where defendant: THREATENS or INTENDS TO REMOVE or DISPOSE OF HIS PROPERTY with a view to defraud creditors.

3. Where defendant: THREATENS TO DISPOSSESS the plaintiff or otherwise CAUSE INJURY to the plaintiff in RELATION TO THE
PROPERTY IN DISPUTE

4. Defendant is about to COMMIT BREACH OF PEACE OR CONTRACT OR OTHERWISE (Order 39 Rule 2).

5. Where the court is of opinion that INTEREST OF JUSTICE, so required.

Conditions for granting Temporary Injunction:

Injunction is discretionary remedy and thus, before granting of the temporary injunction, the following conditions are
required to be satisfied:

1. Prima Facie Case is in the favour of the plaintiff and against the defendant.

2. Irreparable injury is likely to be caused to the plaintiff, which cannot be compensated for in terms of money.

3. Balance of convenience is in favor of the plaintiff and against the defendant.

4. There is a bona fide dispute raised by the applicant and there is a probability of the applicant being entitled to the relief
claimed by him.

Thus, the burden is on the plaintiff praying for the relief. Mere proof of one of the above conditions does not entitle a person to an
order of temporary Injunction.

4. Order 39, Rule 4 lays down that an injunction may be discharged, varied or set aside, if any dissatisfied party makes an
appeal against it, provided that:

 The application for injunction or documents advocating the same included knowingly false or misleading statements and
the injunction was granted without listening to the other party. Thus, the court will vacate the injunction. However, it can
also stick with the injunction if it considers – the reason is to be recorded – the same not be necessary in the discourse of
injustice.
  Furthermore, the court may also set aside the injunction if, due to a change of circumstances, the party against whom the
injunction is granted, has suffered unnecessary hardships.

Receiver (Order 40)

Who is a receiver under the civil procedure code?

Under order 40 of CPC, The Receiver is an independent and impartial person who is appointed by the court to administer/manage,
that is, to protect and preserve a disputed property involved in a suit.

"A receiver is an impartial person who is appointed by the court to collect and receive the rents, profits of land during the pendency of
proceedings
For example, in a dispute between A and B for an immovable property, if the court thinks that it is in the best interest of both the
parties that possession should be taken from B and given to an independent person, the court may appoint a receiver who can
manage the property till the time the suit is being decided. Such a receiver appointed by the court would be responsible for the
maintenance of the property. He can collect the income accruing like rent or any other profits and utilize it to maintain the property.
After deducting the expenses incurred in maintenance from the income received from the property, the receiver will have to submit
the remaining income, if any, in the court.

He is not representative of either of the parties in the action, is uniformly regarded as an officer of the court working in the interest
of neither plaintiff nor defendant but for the common benefit of all the parties.

Who can apply for the appointment of the receiver?

Generally, a plaintiff files the application for appointment of a receiver but defendants can also file such application. A third party is
not allowed to file the application but if he is interested in the protection and preservation of the property, he can also make an
application after taking permission from the court

Who can be appointed as a receiver?

A person who is independent, impartial and totally disinterested should be appointed as a receiver. Such a person should not have
any stake in the disputed property. Generally, parties to the suit are not appointed as receiver by the court. But in extraordinary
circumstances, a party to suit can be appointed as receiver.
What is the process of appointment of a receiver?
The process of appointment of a receiver is provided by the courts in their respective court rules. The high court has the power to
make rules for the superintendence and control of the subordinate courts.

Where it appears to the Court to be just and convenient, the Court may by order -

(a) appoint a receiver of any property, whether before or after, decree;

(b) remove any person from the possession or custody of the property;

What are the powers of the receiver?

Under order 40 rule 1(d) powers of the receiver are provided as following:

 Collection of rents and profits arising out of the property.

 Application and disposal of such rents and profits.

 Execution of documents as the owner himself.

 To institute and defend the suit.

 Such powers as the court may deem fit.

What are the duties of the receiver?

Under order 40 rule (3), duties of a receiver are provided as follows:

 Furnish security to account for what he will receive from the property as income.
 Submit accounts (half yearly) for such period or form as directed by the court. The account basically includes the income
received and expenses incurred for the protection and preservation of the property.

 Pay the amount due to the court.

 Take responsibility for any reduction in the value of the property because of the receiver’s willful negligence.
  Discharge the duties personally and should not delegate or assign any of the rights entrusted to him by the court.

Will a receiver be entitled to remuneration?

Receivers are entitled to remuneration as fixed by the court for the services rendered by them. Also, a receiver has to be provided
for the loss or expenses incurred by him for maintaining the property.

Execution of Judgement and Decree (Order 21)

Meaning, Nature and Scope section 36 to 74 &Order 21 (Total 106 Rules) deals with the provisions of execution of Decree.\
The term “execution” is not defined in the CPC. The term “execution” means implementing or enforcing or giving effect to an order
or a judgment passed by the court of justice. In simple words “execution” means the process of enforcing or giving effect to the
decree or judgment of the court, by compelling the judgment-debtor to carry out the mandate of the decree or order and enable the
decree-holder to recover the thing granted to him by judgment.

1.2 Provisions Under CPC: -

Section 37: - Court which passed a decree, the following are: -

1. The court actually passed a Decree at first instance.
2. The court which actually passed the in the case of appellate decree

3. The court of first instance who passed the decree is ceased to exist, so the court which have some jurisdiction to stay
the suit at the execution.

4. The court of first instance who passed the decree have ceased to have jurisdiction to execute decree, the court which at
the time of execution would have had jurisdiction to stay the suit.

38: - Court by which Decree may be executed

A decree may be executed by the court which passed it as well as by the court to which the decree is send for execution.
Transfer of decree for execution
Section 39 provides that when a decree-holder makes an application to the court of the first instance to send the decree for
execution to another court, the court of first instance may do the same if any of the following grounds exist:

If the judgment-debtor carries on business, or resides or personally works for gain, within the jurisdiction of such Court; if the
property of judgment-debtor does not come under the jurisdiction of the Court of the first instance but it comes under the local
limits of the jurisdiction of such Court;

If the decree directs delivery or sale of immovable property situated outside the jurisdiction of the Court which passed the same; If
the Court which had passed the decree considers that the decree should be executed by another court, but it shall record the
reasons in writing for doing the same.

The Section further states that if the execution of the decree is against a person or property outside the territorial jurisdiction of the
court passing the decree, then such Court has no power to execute the decree.

Section 43-44 (A):Â - Execution of foreign decree in India.

Execution of foreign decrees in India

The Code lays down the procedure for execution of foreign judgments and decrees in India. While enforcing a foreign judgment or
decree in India it should be ensured that the judgment or decree is a conclusive one, given on the merits of the case and by a court
having competent jurisdiction.

says that a foreign judgment would be conclusive in all cases except the following:

 When a court of competent jurisdiction has not pronounced it;

 When it has not been pronounced on the merits of the case;

 When it has been based on a wrong view of international law or a refusal to recognize the law of India in cases in which
such law is applicable;
  When the proceedings carried out while obtaining the judgment are opposed to natural justice; When such judgment has
been obtained by fraud;

 When it sustains a claim that had been based on a breach of any law in force in India.

Thus, a foreign judgement or decree shall pass the seven tests mentioned above. Otherwise, such foreign judgment or decree
cannot be enforced in India as such judgment or decree will not be regarded as conclusive if it fails any of these tests.

Mode of enforcement of a foreign judgment or decree

Two ways in which a decree or foreign judgment can be enforced in India are as follows:

Where the decree or judgment has been given by a court in a reciprocating territory;

Where decree or judgment has been given by a court in a non-reciprocating territory.

Execution of foreign decree of a reciprocating territory in India

According to Section 44A of the CPC, a decree of any superior court of a reciprocating territory shall be executed in India as that
has been passed by the district court.

“Reciprocating territory“ signifies, any territory or country outside India which the Central Government has declared to be a
reciprocating territory, by notification in the Official Gazette, and “superior courts“, with reference to any reciprocating territory,
means such courts that would be specified in the said notification.

Therefore, a judgment which has been pronounced by a court of a reciprocating territory can be enforced in India as an Indian
decree by filing an execution application.

While filing the execution application the original certified copy of the decree shall be filed along with a certificate from the superior
court stating the extent to which the decree has been satisfied or adjusted.
Execution in case of decrees from non-reciprocating territories
In the cases where a judgment or decree has not been pronounced by a court of a reciprocating territory, it can be executed only
when a fresh suit on that foreign judgment is filed in a court of India which has competent jurisdiction to entertain the same.

Execution of Indian decrees in a foreign territory

Section 45 of the Code is related to the execution of decrees outside the territory of India. It states that a Court has the power to
send a decree for execution to a Court outside India which has been established by the Central Government’s authority. It should
be ensured that the State has, by notification in the Official Gazette, declared the said section can apply to such Court.

Execution of decree at more than one place

There is no provision in the Code which prevents a decree-holder from executing a decree simultaneously at more than one place
against the property of the judgment-debtor.

Meaning of Appeal in CPC Section 96 to 99A; Order 41)original decree

According to the Black’s Law Dictionary, ‘appeal’ is the formal complaint made to a higher court to rectify an injustice or error committed by a
lower court.

The term appeal means the judicial examination by a higher court of the decision of an inferior court.

it is “the complaint to a superior court for an injustice done or error committed by an inferior one, whose judgment or decision the Court above is
called upon to correct or reverse
Essentials of Appeals

Every appeal has three elements

1. A person aggrieved (who is often , though not necessarily, a party to original proceedings)

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

3. A decree passed by a judicial/administrative authority.

Right to Appeal
The right to appeal is both statutory and substantive. It is a statutory right because it must be specifically granted by a statute and establish the
appellate machinery. Unlike the inherent right to institute a lawsuit, the right to appeal is provided by law. Additionally, the right to appeal is
substantive, meaning that it must be exercised prospectively unless the statute states otherwise.

However, parties may waive this right through an agreement, and accepting benefits under a decree may stop a party from challenging its
validity.

One Right to Appeal in CPC

There is usually one right to appeal, as stated in Section 96 of the CPC. This allows an aggrieved party to appeal a decree passed by a court
exercising its original jurisdiction to a higher authority designated for this purpose. Exceptions to this single right of appeal are outlined in
Sections 97, 98, and 102 of the CPC, which specify certain conditions under which no further appeal is permitted.

No Right to Appeal under CPC

In general, a person who is not a party to the suit does not have the right to appeal unless they obtain special leave from the Court. The crucial
factor to consider when determining one’s right to appeal is whether the person is adversely affected by the decision or the suit, and this is a
matter of fact that must be evaluated on a case-by-case basis.

Who Can File an Appeal?

The right to appeal in CPC is available to specific categories of individuals:

 Any party to the original proceeding or their legal representatives.

 Any person claiming under such a party or a transferee of interests from such a party.
  Any person appointed by the Court as the legal guardian of a minor.
 Any other aggrieved person, with the Court’s permission.

Who Cannot File an Appeal in CPC?

To summarise the situations in which parties may not have the right to appeal:

 A party that has explicitly and unambiguously given up its right to appeal as per an arrangement or agreement.
 A party that has received benefits from a decree and has implicitly accepted its terms.
 A consent decree binds parties, as they have willingly agreed to its terms.
 Parties whose evidence or compromises were not presented or expressed during the dispute.
 Parties involved in trivial instances where the matter is not significant enough to warrant an appeal in CPC.

Powers of Appellate Court under CPC

The appellate Court is granted several powers under Section 107 and the corresponding rules of Order 41 of the Code of Civil Procedure:

Power to decide a case finally (Section 107(l)(a) and Rule 24)

When the evidence on record is sufficient, the appellate Court can make a final decision on the case, even if the judgment of the lower Court was
based on different grounds.

Power of remand (Section 107(1)(b) and Rule 23)

If the trial court decides the case on a preliminary point without considering other issues, and the appellate Court reverses that decree, it can
remand the case back to the trial court to decide the remaining issues and reach a decision.

Power to frame issues and refer them for trial (Section 107(1)(c), Rules 25 and 26)
If the trial court fails to frame an issue or overlooks a crucial factual question, the appellate Court can frame those issues and refer them for trial
to the lower Court. The lower Court is directed to take the additional evidence required to properly determine the case.

Power to take additional evidence (Section 107(1)(d), Rules 27-29)

Generally, the appellate Court decides the appeal in CPC based on the evidence presented during the original trial. However, the Court may admit
additional evidence if the party requesting it demonstrates that this evidence was not available during the initial trial despite their best efforts.
The other party must have an opportunity to challenge the additional evidence, which should be relevant to the issues under consideration.
Power to modify the decree (Rule 33)
The appellate Court is empowered to grant or refuse relief to the appellant and provide suitable relief to the respondents as necessary. The Court
can make any decision it deems appropriate, not just between the appellant and the respondent but also between two respondents.

These powers enable the appellate Court to ensure fair and just adjudication of the case based on the evidence and merits presented before it.

First Appeal in CPC

According to Section 96 of the CPC, a regular first appeal can be filed against a decree passed by any Court exercising original jurisdiction, except
when expressly prohibited. Analysing Sections 2(2), 2(9), and 96 of the CPC together, it becomes evident that a first appeal may or may not be
maintainable in certain adjudications.

Appeals from Appellate Decrees (Section 100; Order 42)

As per Section 100 of the Civil Procedure Code, 1908:

 An appeal shall lie to the High Court for the decision made by the District Court.
 An appeal lies if the decree is passed ex-parte.

 If High Court is satisfied that substantial question of law is involved it shall formulate the decisions.

It is to be noted that the second appeal is on the grounds of a substantial question of law not on finding errors of facts.

Nature and Scope

Nature of the second appeal

 The right to appeal is not inherited but it is created by statute. The right to file suits is inherent in nature.
 This right starts from the date of filing suits.

 The decision of Appellate Court is final.

 The rights cannot be declared void until and unless declared by the statue.
Scope of the Second Appeal
The Second appeal can be exercised only when the case falls under these categories-

(a) Question of law is involved.

(b) Question of law should be substantial.

Other justification defined as under Section 100 of CPC.

Question of fact wrongly determined should not be the criteria for the second appeal

Cases Laws
In the case of Dudh Nath Pandey vs Suresh Chandra Bhattasaali, it was held thatThe High Court can not set aside the finding of
facts by the First Appellate Court.

Appeals from Orders of the Tribunal

When parties involved in proceedings are dissatisfied with the orders or conclusions of the tribunal, they have the option to
submit an appeal to the National Company Law Appellate Tribu 3nal (NCLAT). The Company Act, 2013, in Section 421,
elaborates on the process as follows:

 Either one or both parties aggrieved by an order of the tribunal may file an appeal under CPC with the appellate tribunal.
 An appeal cannot be filed with the tribunal without the consent of both parties.
 The appeal must be filed with the NCLAT within forty-five days of the tribunal’s order, in the prescribed form, and accompanied by
the required fees.
 In exceptional circumstances, if the tribunal is convinced that there is sufficient cause for not filing the appeal within the forty-five-
day period, it may allow the appeal to be filed beyond this period, but it cannot extend beyond the forty-five days limit.
 After giving both parties a reasonable opportunity to be heard, the tribunal may pass appropriate orders.
 The tribunal has the authority to either confirm, modify, or set aside the order being appealed against.
 The appellate authority is responsible for sending a copy of the order to the tribunal and the parties involved in the appeal in CPC.
Appeals By Indigent Persons
If a person is unable to pay the required fee for filing a memorandum of appeal Civil Procedure Code, they have the option to
file an appeal as an indigent person. However, the Court has the discretion to reject such an application and may direct the
applicant to pay the necessary court fee within a specified time.

Appeals To The Supreme Court

Appeals to India’s highest jurisdictional body, the Supreme Court, can be made under two circumstances. Firstly, when the
lower Court considers the case appropriate for an appeal to the Supreme Court, and secondly, when the Supreme Court grants
special leave for the appeal Civil Procedure Code. A petition must be submitted to the Court that issued the decree to file an
appeal under CPC. The petition will be heard and disposed of within sixty days. It should state the grounds of appeal and
include a request for a certificate declaring that the case involves a substantial question of law that requires the Supreme
Court’s decision.

The opposite party will have an opportunity to raise objections to the issuance of such a certificate. The petition will be
disposed of if the certificate is denied. If the certificate is granted, the appellant must deposit the required security and costs
within a specified period. After fulfilling these obligations, the Court from whose decision the appeal in CPC is made will
declare the appeal as admitted and notify the respondent accordingly. The jurisdictional body will then provide a sealed copy
of the record and furnish copies of the relevant papers in the suit.

MODULE 4

Suits against minor, indigent person, government & Interpleader suit.

Ans. There are some different suits called as particular suit (or) specific suit. These are different from
ordinary suit, these suits are as follows

1. Suit against government:- (Order 27) Government is a legal person & it can sue & be
Sued, the term government includes public companies, corporate, institutions & all authorities
mentioned under article 12 of constitution. Following are the points relating to suit against
government.

Section 79, CPC

Acc to this sec. No cause of action is provided in this section, and it only declares the mode of the procedure when the cause of action arises.
a. Suit can be file against respective department of government.
b. When suit is file against government then designation of officer to represent the suit has to be
mentioned.
c. 2months advance notice to be given to government before filing suit under section 80 of CPC.
d. If matter is urgent then application can be enclosed dispense with notice period & judge can pass
such order.
e. If there is GP is in the court then summon can be serve to GP.
f. Government can give authority & send any officer to represent the case.
g. It is not necessary for officer to attend court every time he has to appear personally when there is
chief & cross examination.
h. Court is very slow to execute decree against the government.
Therefore suit against government is different on some points.

2. Suit against minor:- (order XXXII) If there is guardian then case can be file against him
because no case can be file against minor if there is no guardian then court have power to appoint
authorized person called as Next friend. It includes following points.
a. Court may published notification & direct interested parties to file application to become next
friend within 1month period.
b. Court may summon all applicant & examine them & found out reason to become next friend.
c. When court is satisfy by explanation of any applicant him as next friend.
d. Court may also remuneration for next friend which he may get income of property.
e. Nest friend have power to appoint advocate & represent the case.
f. Next friend have to maintain accounts of expenses of case.
g. When minor becomes major then he have to give account of expenses & retired as a next friend.
Therefore suit against minor can be per sued by next friend when there is no guardian.
The court may also remove a particular guardian or next friend if the court is satisfied that either[21]:
a. His interest is adverse to that of the minor in the concerned case
b. He is in such a standing as to be capable of colluding with the opposite party or is closely connected to the opposite party
c. He does not discharge his duty to the satisfaction of the court
d. He ceases to stay in India during the pendency of the suit and is therefore unable to look after the best interests of the minor
e. Any other sufficiently justifiable cause as the court may decide
In a case where a guardian or next friend retires or is removed or in the case of his death, the suit remains stayed until another
appropriate guardian is duly appointed in that particular case.[22]

When Minor attains majority:

When a minor attains majority, he can choose either to proceed with a particular suit or to abandon it, if he had moved the court
through a next friend/guardian. Therefore:
i. Where he elects to proceed with the suit - he must apply for an order from the court discharging the next friend or guardian
and for leave to proceed with the suit in his own name.[23]
ii. Where he elects to abandon the suit - he must apply for dismissal of suit on repayment of costs to defendant or next
friend/guardian as the case may be.[24]
iii. Where minor co-plaintiff desires to repudiate suit - he may repudiate the suit and apply to have his name as co-plaintiff stuck
off. The court after examination of the circumstances may remove his name from the suit on finding that he is not a
necessary party or may make him a defendant instead.[25]
iv. Where minor desires that suit instituted in his name be dismissed on the ground that it was unreasonable/improper - he may
by application move the court for dismissal on such grounds.[26]
3. Suit against Indigent person:- (order XXXIII) Indigent person means extremely poor person,
he is also called as PAUPER & his suit is called as FORMA PAUPEREIS. It includes following
points.
a. Indigent person enclosed a application with the suit to entertain it without court fee.
b. He has to give details about his income which is insufficient to maintain family & his suit may be
allowed without court fee,
c. Court make hearings of both sides.
d. If there is income which he has not disclosed then defendant can bring it to notice of court & his
application may be rejected.
e. Court may gives sufficient period to pay court fee if he agrees for it.
f. Court may also direct him to pay court fee in percentage such as 50%, 25%.
g. When it is not possible then court may entertain suit without court fee.
h. Services of advocate are provided at coast of state.

Therefore purpose of these provision is no person

should face injustice because of poverty.
4. Inter pleader suit:- (order XXXV) Inter pleader
suit is such suit in which actual pleading is
between defendant & plaintiff is nominal party
plaintiff have no interest in subject matter of
dispute.
Ex:- “A” found a box having gold ornament in it
“B”, “C”, “D” claims ownership of the box, A
can file petition & handover the box in court, judge
may order defendant to proof ownership if any
defendant proof ownership then judge may order
handover the box to him & imposed penalty on
false claimates from the amount of penalty expenses
are paid to petitioner if nobody proves
ownership then also penalty imposed for
misrepresentation of facts.
In such case notification is gives in newspaper &
direct owner to claims the box within
6months period, if anybody approach & proof
ownership then box is handover to him, after
6months it is sold by public auction & amount is
deposited in government treasury.
These are details about suit against Government,
minor, indigent person & Inter pleader
suit in CPC.
Therefore purpose of these provision is no person should face injustice because of poverty.

4. Inter pleader suit:- (order XXXV) Inter pleader suit is such suit in which actual pleading is
between defendant & plaintiff is nominal party plaintiff have no interest in subject matter of
dispute.
Ex:- “A” found a box having gold ornament in it “B”, “C”, “D” claims ownership of the box, A
can file petition & handover the box in court, judge may order defendant to proof ownership if any
defendant proof ownership then judge may order handover the box to him & imposed penalty on
false claimates from the amount of penalty expenses are paid to petitioner if nobody proves
ownership then also penalty imposed for misrepresentation of facts.
 In such case notification is gives in newspaper & direct owner to claims the box within
6months period, if anybody approach & proof ownership then box is handover to him, after
6months it is sold by p ublic auction & amount is deposited in government treasury.
These are details about suit against Government, minor, indigent person & Inter pleader
suit in CPC.

Introduction
 Section 79, Section 80 and Order XXVII of the Civil Procedure Code, 1908 (CPC) deal with the procedure where the suits are brought by or against the
Government or Public officers acting in an official capacity.

Section 79, CPC

 Section 79 is a procedural provision and contains provisions in relation to the suits by or against the government.
 It states that in a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be—
(a) in the case of a suit by or against the Central Government, the Union of India, and
(b) in the case of a suit by or against a State Government, the State.
 No cause of action is provided in this section, and it only declares the mode of the procedure when the cause of action arises.
o In Jehangir v. Secretary of State (1904), the High Court of Bombay held that Section 79 of CPC only declares the mode of the procedure when the cause
of action arises.
 Under this section, only the courts within whose local limits, the cause of action arises, have the jurisdiction to try the suit.

Section 80, CPC

 Section 80 of CPC deals with the provisions relating to notice which a condition precedent before filing a suit against the government or against a public servant.
 It states that -
(1) Save as otherwise provided in sub-section (2), no suits 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 after notice in writing has been delivered to, or left
at the office of—
(a) in the case of a suit against the Central Government, except where it relates to a railways, a Secretary to that Government;
(b) in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway;
(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district and, in the case of a public
officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he
claims; and the plaint shall contain a statement that such notice has been so delivered or left.
(2) A suit to obtain an urgent or immediate relief against the Government or any public officer in respect of any act purporting to be done by such public officer
in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant
relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, 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 needs to be granted in the suit, return the plaint for
presentation to it after complying with the requirements of sub-section (1).
(3) No suit 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 shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice—
(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person
serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and
(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.
 The object of the notice is to give the government or public servant an opportunity to reconsider its or his legal position and to make amendments if so, advised
by the legal expert.
o In Bihari Chowdhary v. State of Bihar (1984), the Supreme Court held that the object of Section 80 of CPC is the advancement of justice.
 This Section applies to all suits whether they are suits for injunctions or suits for declarations and suits for damages.
o It does not apply to the writs filed before the High Court or the Supreme Court.
 A notice must contain:
o Name, description, and place of residence of the person giving notice
o A statement of the cause of action.
o The relief claimed by the person.

Order XXVII, CPC

 This order deals with the Suits by or against the government or public officers in their official capacity.
 Rule 1 of Order XXVII states that in any suit by or against the Government, the plaint or written statement shall be signed by such person as the Government
may, by general or special order, appoint in this behalf, and shall be verified by any person whom the Government may so appoint and who is acquainted with the
facts of the case.
 Rule 2 of Order XXVII states that the persons being ex officio or otherwise authorized act for the Government in respect of any judicial proceeding shall be
deemed to be recognized agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Government.
 Rule 3 of Order XXVII states that in suits by or against the Government, instead of inserting in the plaint the name and description and place of residence of the
plaintiff or defendant, it shall be sufficient to insert the appropriate name as provided in section 79 of CPC.
 Rule 4 of Order XXVII provides that the Government Pleader shall be the agent of the Government for the purpose of receiving processes against the
Government by the Court.
 Rule 5 of Order XXVII provides that the Court will, in fixing the day for the Government to answer the plaint, shall allow a reasonable time for the necessary
communication with the Government through the proper channel.
o Rule 5A of Order XXVII provides that the Government will be joined as a party in a suit against a public officer in respect of any act alleged to have
been done by him in his official capacity.
o Rule 5B of Order XXVII deals with the duty of Court in suits against the Government or a public officer to assist in arriving at a settlement.
 Rule 6 of Order XVII provides that the court can direct the attendance of a person who is able to answer any material question relating to the suit against a
government.
 Rule 7 of Order XVII deals with the extension of time to enable public officers to make reference to the Government.
Summary Procedure (Order XXXVII

A summary trial suit is a procedure where courts pass judgment without hearing the defense.

summary suit is the suit in which defendant is not having any defence or right of defence. In which defendant did not have leave of
defence

The objective of this provision under CPC is to avoid unnecessarily extending the litigation process by the defendant in the class of cases
where speedy judgments are desirable, which could help the complainants to save monetary expenses as well.

Summary suits are intended to provide a speedy and relatively simple means of resolving certain types of civil disputes, without the need
for a full trial.

Applicability and Extent

The Provisions of Order XXXVII of CPC
applies to the following class of courts:
 High Courts,
 City Civil Courts,
 Courts of Small Causes
 Other Courts.

Under the CPC, a summary suit can be instituted in cases where the plaintiff’s claim is based on a negotiable instrument (such as a promissory
note, bill of exchange, or cheque) or on an agreement that provides for the payment of a debt or liquidated demand in money. In order to be
eligible for a summary suit, the plaintiff’s claim must be for a specific amount of money, and must not be disputed by the defendant.
The process for a summary suit is relatively streamlined compared to a regular civil suit. After the plaintiff files the suit and serves notice on the
defendant, the court may proceed to a judgment without requiring a full trial, as long as the defendant does not dispute the claim or raise any
other objections. This can save both time and money for the parties involved, and can help to expedite the resolution of the dispute.

Where can plaintiff file summary suit?

A plaintiff can file a summary suit in the court that has jurisdiction over the area where the cause of action arose, or where the defendant resides
or carries on business. In other words, the suit can be filed in the court that has territorial jurisdiction over the matter.

Summary suits can be instituted in Courts of Small Causes, City Civil Courts, High Courts, and any court notified by the High Court. The High
Courts have the power to restrict, enlarge or vary the categories of suits brought under this order.

Which order or section relates to summary suit ?

The Provisions of Order XXXVII of CPC deals with summary suits.

Order XXXVII Rule 1 Sub-rule 2 provides classes of suits where it can be instituted.

• Bills Of Exchange

• Hundies

• Promissory Notes

• Suit Where The Plaintiff Seeks Only To Recover A Debt

What are the major differences between a summary suit and ordinary suit?
The main differences between a summary suit and an ordinary suit are: Nature of Claim: A summary suit can only be filed for claims that are
based on a negotiable instrument or an agreement that provides for the payment of a debt or a liquidated demand in money. On the other hand,
an ordinary suit can be filed for any civil claim, whether it is based on a contract, tort, or any other cause of action.

Procedure: The procedure for a summary suit is more streamlined and expedited compared to an ordinary suit. In a summary suit, the court may
proceed to a judgment without requiring a full trial, as long as the defendant does not dispute the claim or raise any other objections. In an
ordinary suit, the court typically follows a more elaborate and time-consuming procedure that involves a full trial with witness examination,
document production, and cross-examination.
Timeframe: Because the procedure for a summary suit is more simplified and expedited, it generally takes less time to resolve a summary suit
compared to an ordinary suit. This can be beneficial for parties who are looking for a faster resolution of their dispute.

Evidence: In a summary suit, the court relies primarily on the written evidence submitted by the parties, such as the negotiable instrument or
agreement in question. In an ordinary suit, the court may consider a wider range of evidence, including witness testimony and expert reports.

Contents of plaint for a summary procedure

Following are the contents of a plaint filed for a summary procedure:
 Facts pertaining to the cause of action;
 A definite assertion that the suit is filed under this order;
 That all the relief or damages, falls within the boundary of this order;
 The following inscription must be there under the number of the suit.

The procedure under a Summary suit

a. A summary suit is initiated by presenting the plaint in the appropriate civil court.
b. After the filing of a summary suit, a copy of the plaint and summons must be sent to the defendant in the recommended
format.
c. The defendant will present himself in person or by pleader within 10 days from the order of summons.
d. The plaintiff shall serve the defendant a summons for judgment if he presents himself before the court.
e. The defendant has to file an application for leave to defend within 10 days from the order of such summons.
f. Leave to defend may be acknowledged by the court unconditionally or with any conditions, which the court may think to be
just and lawful.
g. If a defendant has not made an application for leave or such an application has been dismissed or if the defendant does not
comply with the conditions based on which the leave was granted, the
plaintiff is entitled to judgment forthwith.

When a leave to defend is granted?

The Hon'ble Court has discussed the circumstances under which a leave to defend is sanctioned in summary suits in the case
of Kiranmoyee Dassi v. J. Chatterjee [AIR 1949 CAL 479]. These are the following circumstances:

a. When the defendant is able to prove substantial defense in the court

b. If the defendant has triable issues signifying a fair defense not necessarily a positive defense, the defendant is entitled to
leave to defend.
c. If the defendant has triable issues.
d. The trial judge may grant conditional leave to defend as to time or mode of trial or payment/security to the court when
defendant raises an implausible issue
e. If the defendant has no substantial defense and raises no triable issues, then no leave to defend is granted.
f. Where the part of the amount claimed by the plaintiff is agreed to be paid by the defendant, leave to defend shall not be
granted unless the amount is deposited by the defendant in the court.
Also in the case of Milkhiram (India) Private Ltd. vs. Chamanlal.

Decree in Summary Suits

The plaintiff is designated to a decree of a sum not surpassing the amount mentioned in the plaint including interest and cost under
the following conditions:

a. If the defendant does not present himself before the court

b. If the defendant does not make an application for leave to defend
c. If the defendant has made an application for leave to defend but the same has been dismissed by the court.

Setting aside a decree in summary suits

 Rule 4 of Order XXXVII explains the court has the power to set aside an ex-parte decree under special circumstances in a
summary suit.
 The court is entrusted to grant a stay on the execution of such decree. The defendant in such a case should not only reveal
the unique circumstances, which stopped him from appearing, but also the facts, which would gain him leave to defend.