The Code Of Civil Notes

Procedure, 1908 (C.P.C.)

“
“
“Civil Procedure” means, body of
law concerned with the
methods, procedures and
practices used in
civil litigation.
– Black's Law
Dictionary,
6th Edn

Cause of Action

"Cause of action" means

• every ……….which will be necessary for the plaintiff to prove
• in order to support his right to the judgement of the Court.
Thus, cause of action is a bundle of essential facts which the
plaintiff has to prove in order to sustain his action. It consists of
two factors (a) a right, and (b) an infringement for which relief is
claimed. The cause of action must be antecedent to the institution
of the suit

Judgement, Decree and Order

 "judgement" is the …….. of a Court upon the respective ………

and …….. of the parties in a suit submitted to it for
determination
 "Judgement" as per the Civil Procedure Code means the
statement given by the Judge on the grounds of a decree or
order.
Thus a judgement must set out the grounds and reasons for the
Judge to have arrived at the decision. The proper object of a
judgement is to support by the most cogent reasons that suggest
themselves final conclusion at which the judge has
conscientiously arrived.
"Decree" is defined in Section 2(2) of the Code as Notes
• the formal expression of an adjudication
• which conclusively;
• determines the rights of the parties;
• with regard to all or any of the matters in the suit
• It may be either preliminary or final.
But decree does not include:
• any adjudication from which an appeal lies as an appeal
from an Order, or
• any order of dismissal for default.
A decree comes into existence as soon as the ………..is
pronounced and not on the date when it is sealed and signed.
 A decree is ……….. when further proceedings have to be taken
before the suit can be completely disposed of. The preliminary
decree is not dependent on the final.
 When the suit is completely disposed of then ………..comes into
existence. Final decree is dependent and subordinate to the
preliminary decree, and gives effect to it.
 The preliminary decree ascertains what is to be done while the
final decree states the result achieved by means of the
preliminary decree.
 If the preliminary decree is set aside the final decree is
automatically superseded.
 A preliminary decree may be appealed even if final decree has
been passed before the appeal is presented.
 Any order which is not the final order in a suit is called an
“interlocutory order”. An interlocutory order does not dispose of
the suit but is merely a direction to procedure. It reserves some
questions for further determination.
"Order" means the formal expression of any decision of a Civil Court
which is not a ………...
 No appeal lies against orders unless it is expressly allowed by
any law for the time being in force.
Under the Code appealable orders are:
(i) an order under Section 35A, i.e. for compensatory costs in
respect of false claims.
(ii) an order under Section 91 or Section 92 refusing leave to
institute a suit under Section 91 (Public nuisances and
 other wrongful acts affecting the public) or Section 92 Notes
(alleged breach of trust created for public purposes of a
charitable or religious nature).
(iii) an order under Section 95, i.e. compensation for obtaining
arrest attachment or injunction on insu cient grounds.
(iv) an order under any of the provisions of the Code imposing
a fine or directing the arrest or detention in the civil
prison of any person except where such arrest or
detention is in execution of a decree.
(v) any order made under rules from which an appeal is
expressly allowed by the rules.
• No appeal lies from any order passed in appeal under this
section.

The main difference between

an order and a decree is that

 Any ……….. adjudicates and conclusively determines rights of

the parties, whereas an ……….. doesn't do so.
 A ………..is always appealable unless prohibited by the law,
whereas an ……….. is not appealable unless permitted by the
law.
 Law may provide even for second appeal in case of a ………..,
whereas second appeal is not possible in the case of an ………...
 A ……….. may be final or preliminary whereas an ……….. can't be
preliminary and it is always final.

Important points of Judgement

 The Court after the case has been heard shall pronounce
judgement in an open court either at once or on some future
day as may be fixed by the court for that purpose of which due
notice shall be given to the parties or their pleaders (Order XX,
Rule 1).
 If the judgement is not pronounced at once every endeavour
shall be made by the Court to pronounce the judgement within a
period of ……….. days from the date on which the hearing of the
case was concluded.
 However, if it is not practicable to do so on the ground of Notes
exceptional and extra ordinary circumstances of the case, the
Court must fix a future day which should not be a day beyond
……….. days for the pronouncement of the judgement giving due
notice of the day so fixed to the concerned parties.
 In Kanhaiyalal v. Anup Kumar, AIR 2003 SC 689, where the High
Court pronounced the judgment after two years and six months,
the judgment was set aside by the Supreme Court observing
that it would not be proper for a Court to sit tied over the matter
for such a long period.
 The judgement must be dated and signed by the judge. Once the
judgement is signed it cannot afterwards be altered or added to
except as provided under Section 152 or on review.
Decree-holder - means any person in whose ……….. a decree has
been passed or an order capable of execution has been made.
Judgement-debtor- means any person ……….. whom a decree has
been passed or an order capable of execution has been made.

Jurisdiction
 Section 3 of the Civil Procedure Code
of Courts
lays down that for the purposes of
this Code, the District Court is
subordinate to the High Court and every Civil Court of a
grade inferior to that of a District and every Court of
Small Causes is subordinate to the High Court and
District Court
 Jurisdiction means the authority by which a Court has
to decide matters that are brought before it for
adjudication. The limit of this authority is imposed by
charter, statute or a commission. If no such limit is
imposed or defined, the jurisdiction is said to be
unlimited.
 A limitation on jurisdiction Notes
of a Civil Court may be of
four kinds. These are as follows :-

 Subject matter-The jurisdiction to try certain matters by certain

Court is limited by statute; e.g. a small cause court can try suits
for money due under a promissory note or a suit for price of
work done.
 Place of suing or territorial jurisdiction-A territorial limit of
jurisdiction for each court is fixed by the Government. Thus, it
can try matters falling within the territorial limits of its
jurisdiction.
 Jurisdiction over persons-All persons of whatever nationality
are subject to the jurisdiction of the Civil Courts of the country
except a foreign State, its ruler or its representative except with
the consent of Central Government.
 Pecuniary jurisdiction depending on pecuniary value of the suit-
Section 6 deal with Pecuniary jurisdiction and lays down that
save in so far as is otherwise expressly provided Courts shall
only have jurisdiction over suits the amount or value of which
does not exceed the pecuniary limits of any of its ordinary
jurisdiction. There is no limit on pecuniary jurisdiction of High
Courts and District Courts.
 Jurisdiction may be further classified into following categories
depending upon their powers:
 Original Jurisdiction – A Court tries and decides suits filed
before it.
 Appellate Jurisdiction – A Court hears appeals against
decisions or decrees passed by sub-ordinate Courts.
 Criminal and appellate Jurisdiction – The Supreme Court,
the High Courts and the District Courts have both original
and appellate jurisdiction in various matters.
Section 9 of Civil Procedure Code states that the Courts shall have
jurisdiction to try all suits of a civil nature excepting suits of which
their cognisance is either expressly or impliedly barred.
 Notes
STAY OF SUIT  Res sub judice means
(DOCTRINE OF stay of suit.
RES SUB JUDICE)  This provision is enacted to
Section 10 prevent Courts of similar
jurisdiction from simultaneously
trying two parallel suits in respect of same matter in
issue. The purpose is also to avoid conflict of decision.
 It provides that no court shall proceed with the trial of
any suit in which the matter in issue is also directly and
substantially same in any other suit pending in Indian
court and such suit is between the same parties or
between parties under whom they claim
 However, the pendency of a suit in a Foreign
court doesn't bar the courts in India
from trying a suit founded on the
same cause of action.
Essential
conditions for
stay of suits

 There must be ………..suits instituted at different times;

 The matter in issue in the later suit should be directly and

substantially in issue in the earlier suit;
 Such suit should be between the ……….. parties;

 Such earlier suit is still ………..either in the same Court or in any

other competent Court but not before a foreign Court.
If these conditions exist, the later suit should be stayed till the
disposal of earlier suit, the findings of which operate as res
judicata on the later suit.
A suit was instituted by the plaintiff company alleging
infringement by the defendant company by using trade name of
medicine and selling the same in wrapper and carton of identical
design with same colour combination etc. as that of plaintiff
company. A subsequent suit was instituted in different Court by
the defendant company against the plaintiff company with same
allegation. The Court held that subsequent suit should be stayed as
simultaneous trial of the suits in different Courts might result in
conflicting decisions as issue involved in two suits was totally
identical (M/s. Wings Pharmaceuticals (P) Ltd. and another v.
M/s. Swan Pharmaceuticals and others, AIR 1999 Pat. 96).
RES Notes
JUDICATA  Res Judicata means bar or restraint on

-Section 11 repetition of litigation of the same

issues.
 It is based on the principal there must be a limit or
end to litigation on the same issues.'
 The doctrine underlines the general principle that no one shall
be twice vexed for the same cause.
 This principle applies

 an issue which has been raised in a subsequent suit

 was directly and substantially in issue in a former suit
 between the same parties and
 was heard and decided finally.
 It prevents two different decrees on the same subject.

 Section 11 says that once a res is judicata, it shall not be

adjudged again.
 The expression “directly and substantially in issue” means an
issue alleged by one party and denied or admitted by the
another either expressly or by necessary implications
(Lonakutty v. Thomman, AIR 1976 SC 1645).
 In the matter of taxation for levy of Municipal taxes, there is no
question of res judicata as each year's assessment is final for
that year and does not govern latter years (Municipal
Corporation v. Madan Mohan, AIR 1976 43).
 The doctrine of res judicata prevails over the doctrine of lis
pendens where there is a conflict between the two.
 A decision that a gift made by a coparceners is invalid under
Hindu Law between coparceners, binds the parties when the
same question is in issue in a subsequent suit between the
same parties for partition.
 A consent or compromise decree is not a decision by Court. It is
an acceptance of something to which the parties had agreed.
The Court does not decide anything. The compromise degree
merely has the seal of the Court on the agreement of the
parties. As such, the principle of res judicata does not generally
apply to a consent or compromise decree. But when the court
 on the facts proved comes to a conclusion that the parties Notes
intended that the consent decree should have the effect of
deciding the question finally, the principle of res judicata may
apply to it.
Difference between res sub judice and res judicata
 The rule of ………..relates to a matter which is pending
judicial enquiry while ………..relates to a matter on which
judgement has been pronounced.
 Res Judicata arises out of considerations of public policy
viz., that there should be an end to litigation on the same
matter. Res-Judicata presumes conclusively the truth of
the former decision and ousts the jurisdiction of the Court
to try the case.
 An application for amendment of a decree is not a 'suit' and may
be entertained. But if such an application is heard and finally
decided, then it will debar a subsequent application on general
principles of law analogous to res judicata.
 However, dismissal of a suit for default, where there has been
no adjudication on the merits of the application, will not operate
as res judicata.
 Constructive res judicata states that

 any matter which might or ought to have been made

 a ground of defence or attack
 in such former suit
 shall be deemed to have been a matter directly and
substantially in issue in such (former) suit.
 This doctrine is based on the following grounds of public policy:

 There should be an end to litigation;

 The parties to a suit should not be harassed to disturb the
same issues or matters already decided between them;
 The time of Court should not be wasted over the matters
that ought to have been and should have been decided in
the former suit between the parties;
 It is a rule of convenience and not a rule of absolute justice.
 Any relief claimed in the plaint but not expressly granted shall
 be deemed to have been refused. Notes
 In the case of a representation suit or class of action all persons
interested in any public or private right claimed in common for
themselves and others are to be deemed to claim under the
persons so litigating and res judicata shall apply to them.
Bar to further suit - Section 12 of civil Procedure Code provides
that abatement of suit or its dismissal, for not bringing the Legal
representative on record, bars a further suit. Section 12 puts a bar
to every suit where a plaintiff is precluded by rules from instituting
a further suit in respect of any particular cause of action.

Place Of Suing
(territorial)
 Section 15 lays down that every suit shall be
instituted in the Court of the ………..to try it.
 According to Section 16, subject to the
pecuniary or other limitations prescribed by any
law, the following suits (relating to property)
shall be instituted in the Court within the local
limits of whose jurisdiction the property is
situated :
 for recovery of immovable property with or
without rent or profits;
 for partition of immovable property;
 for foreclosure of sale or redemption in the
case of a mortgage or charge upon
immovable property;
 for the determination of any other right to or
interest in immovable property;
 for compensation for wrong to immovable
property;
 for the recovery of movable property actually
distraint or attachment.
 Where immovable property is situated within the
jurisdiction of different Courts, the suit may be
 instituted in any Court within the local limits of whose Notes
jurisdiction the property is situated provided the value of the
entire claim is cognizable by such Court. (Section 17)
 Where local limits of jurisdiction of Courts are uncertain
because immovable property is situated within the local limits
of the jurisdiction of which of two or more Courts then any of
the said Courts may proceed to entertain the suit. Such court
has to record a statement to the effect that it is satisfied that
there is ground for such alleged uncertainty. (Section 18)
 Where a suit is for compensation for wrong done to the person
or to movable property,
 if the wrong was done within the local limits of the
jurisdiction of one Court and
 the defendant resides, or carries on business, or personally
works for gain, within the local limits of the jurisdiction of
another Court,
 the suit may be instituted at the option of the plaintiff in
either of the Courts. (Section 19)
 Other suits: every other suit shall be instituted in a Court
within local limits of whose jurisdiction the defendant, or
each of the defendants (where there are more than one
defendant) actually and voluntarily
 resides or
 carries on business or
 personally works for gain or
 where all defendants actually and voluntarily resides or
carries on business or personally works for gain, provided
either the leave of the Court is obtained or the defendant(s)
who do not reside or carry on business or personally work
for gain at such place consent in such institution or,
 where the cause of action arises, wholly or in part.
(Section 20)
 In the case of a body corporate or company it shall be deemed
to carry on business at its sole or principal o ce in India, or in
case of any cause of action arising at any other place, if it has a
subordinate o ce, at such place.
 Every breach of contract gives rise to a cause of action and a
 suit may be instituted to secure the proper relief in the place— Notes
 where the contract was made, or
 where the breach has occurred, or
 the place where money is payable.
The place of breach is the place where the contract had to be
performed or completed. Where the place of payment is not
specified, it is to be ascertained with reference to the intention of
the parties and the circumstances of each case.
 Where there might be two or more competent courts which
could entertain a suit consequent upon a part of cause of
action having arisen therewith if the parties to the contract
agreed to vest jurisdiction in one such court to try the dispute.
Such an agreement would be valid (Angile Insulations v. Davy
Ashmore India Ltd., (1995) 3 SCALE 203).

Set-off Counter-claim
And Equitable Set-off

Set-off- The doctrine of Set Off allows the defendant to

put his own claim against the plaintiff before the court
under certain circumstances. Technically, a set off can
be defined as a discharge of reciprocal obligations to
the extent of the smaller obligation. For example, A files
a suit against B claiming 5000/- . B may take a defence
that A owes 3000/- to B as well. Thus, B is basically
asking to set off 3000/- of A's claim and pay only 2000/-
.By claiming set off, the defendant is spared from filing
a separate suit against the plaintiff. Thus, it reduces the
number of suits before the court. Set-off is

 reciprocal release of debts

 between the plaintiff and defendant.

It has the effect of extinguishing the plaintiff's claim to

the extent of the amount claimed by the defendant as a
counter claim.
  The suit must be of ………... Example Notes
A sues B for 20,000/-. B cannot set
Essential
off the claim for damages for breach
Conditions
for Set Off - of contract for specific
performance.
 The sum of money must be ………...
 The sum claimed must be ………..recoverable. For example,
winnings in a wager cannot be claimed in a set off.
 The sum claimed must be recoverable by all the defendants
against the plaintiff if there are more than one defendants.
 The sum claimed must be recoverable from all the plaintiffs by
the defendant if there are more than one plaintiffs.
 In the defendant's claim for set off, both the parties must fill in
the ………..as they fill in the plaintiff's suit.
 the defendant may claim set off at the ………..of the suit (but
not afterwords unless permitted by the Court) by presenting a
written statement containing the particulars of the debt
sought to be set-off,.

Effect of Set-off

 the written statement shall have the same effect as a plaint

in a cross-suit
 so as to enable the Court to pronounce a final judgement in
respect both of the original claim and of the set-off,
 but this shall not affect the lien, upon the amount decreed,
of any pleader in respect of the costs payable to him under
the decree.
 A sues B on a bill of exchange. B alleges that A has wrongfully
neglected to insure B's goods and is liable to him in
compensation which he claims to set-off. The amount not
being ascertained cannot be set-off.
 A sues B on a bill of exchange for Rs. 500. B holds a judgment
against A for Rs. 1,000. The two claims being both definite,
pecuniary demands may be set-off.
 A and B sue C for Rs. 1,000 C cannot set-off a debt due to him
by A alone.
 Notes

Counter-
claim

 A defendant in a suit may,

 in addition to his right of claim a set-off
 set up, by way of counter-claim against the
claim of the plaintiff,
 any right or claim in respect of a cause of
action
 accruing to the defendant against the plaintiff
either before or after the filing of the suit
 but before the defendant has delivered his
defence or before the time limited for
delivering his defence has expired
 whether such counter-claim is in the nature of a
claim for damages or not :
 Provided that such counter-claim shall not exceed
the pecuniary limits of the jurisdiction of the Court.
 Such counter-claim shall have the same effect as a
cross suit so as to enable the Court to pronounce a
final judgment in the same suit, both on the original
claim and on the counter-claim.
 The plaintiff shall be at liberty to file a written
statement in answer to the counter-claim of the
defendant within such period as may be fixed by the
Court.
 Two cars collide. After one person sues for damage to her
car and personal injuries, the defendant counterclaims for
similar property damage and personal injury claims
 Notes

Equitable set-off

Sometimes, the defendant is permitted to claim set-off in

respect of an ……….. sum of money where the claim arises
out of the same transaction, or transactions which can be
considered as one transaction, or where there is
knowledge on both sides of an existing debt due to one
party and a credit by the other party found on and trusting
to such debt as a means of discharging it. Generally the
suits emerge from cross-demands in the same transaction
and this doctrine is intended to save the defendant from
having to take recourse to a separate cross-suit.

 In a transaction where by goods are exchanged for

services as well as payment, the defendant may be
allowed to claim a set off for an uncertain amount
for damaged goods.

 In a suit by an employee for his wages, the defendant

employer should be able to set off the price of the
articles lost by the plaintiff. In such a case, driving
the plaintiff to file another suit would be unfair. A set
off in such situations is called an Equitable Set off.

 Where A sues B to recover 50,000/- under a

contract, B can claim set off towards damages
sustained by him due to the breach of the same
contract by A.

However, there is still one condition that must be satisfied

for equitable set off - the set off claim must originate from
the same transaction.
 Notes
Set Off Equitable Set Off

Sum must be ………..…. Sum need not be ………...

Claim need not Claim must origination

originate from the ………... from the ………...

Legal set off can be claimed Equitable set off cannot

as a right by the defendant be claimed as a right but
and the court is bound to by court's discretion.
adjudicate upon the claim.

Court fee must be paid on No court fee is required.

set off amount.

Misjoinder of Parties-
means

 Where more than one persons

joined in one suit as plaintiffs or
defendants

 in whom or against whom any right to relief

does not arise or

 against whom separate suits are brought,

 no common question of law or fact would arise, it is

a case of ‘misjoinder of parties'.

To avoid such misjoinder, two factors are essential viz.

(i) the right to relief must arise out of the same act
or transaction brought by the plaintiffs or
against the defendants,

(ii) there is a common question of law or fact.

 Notes

Misjoinder of
Causes of Action

If the plaintiffs are not jointly interested in all

the causes of action
there is misjoinder of causes of action.
All objections regarding misjoinder of parties
or of cause of action
should be taken at the first hearing of the suit
and before the
settlement of causes unless the ground for
objections had
subsequently arisen.

Appearance of parties and

consequence of non-appearance

 If both the parties do not appear when the suit is

called on for hearing, the Court may make an order
that the suit be ………...

 If the defendant is absent in spite of service of

summons and the plaintiff appears, the Court may
proceed ………...

 In any case in which a decree is passed ex-parte

against a defendant he may

 apply for setting aside the decree on the ground

that the ……….. was not duly served on him or

 that he was prevented by any ………..from appearing

 Notes
when the suit was called on for hearing

The Court shall set aside the decree on such terms as to

costs payment into Court or otherwise as it deems proper
and shall appoint a day for proceeding with the suit.

 A defendant has four remedies available if an ex-parte

decree is passed against him :

 He may file an appeal against the ex-parte decree

 He may file an application for review of the

judgement

 He may apply for setting aside the ex-parte decree.

 A suit can also be filed to set aside an ex-parte

decree obtained by fraud but no suit shall lie for
non-service of summons.

Appeals

 Right of appeal is not a natural or inherent right

attached to litigation. Such a right is given by the
statute or by rules having the force of statute
 There are four kinds of appeals provided under
the Civil Procedure Code:
 Appeals from original Decrees
 Second Appeals
 Appeals from Orders
 Appeals to the Supreme Court
Appeals from Notes
original decrees

 may be preferred in the Court superior to the

Court passing the decree.
 An appeal may lie from an original decree
passed ex parte.
 Where the decree has been passed with the
consent of parties, no appeal lies.
 The appeal from original decree lies on a
question of law
 No appeal lies in any suit of the nature
cognizable by Courts of small causes when
the amount or value of the subject matter of
the original suit does not exceed ten
thousand rupees.

Second appeal

 As per Section 100 of the Civil Procedure

Code, an appeal lies to the High Court from
every decree passed in appeal by any
subordinate Court if the High Court is
satisfied that the case involves a substantial
question of law. Under this Section, an appeal
may lie from an appellate decree passed
ex parte.
 As a general rule the second appeal is on
questions of law alone (Section 100). There is
no jurisdiction to entertain a second appeal
on the ground of an erroneous finding of fact,
however inexcusable the error may seem to
be.
 Notes

 Appeal from orders would lie only from the

appelable orders as discussed earlier.
 Appeals to the Supreme Court would lie in the
following cases:
 from any decree or order of Civil Court
when the case is certified by the Court
deciding it to be fit for appeal to the
Supreme Court or when special leave is
granted under Section 112 by the
Supreme Court itself,
 from any judgement, decree or final
order passed on appeal by a High Court
or by any other court of final appellate
jurisdiction,
 from any judgement, decree or final
orders passed by a High Court in exercise
of original civil jurisdiction.
 The general rule is that the parties to an
appeal shall not be entitled to produce
additional evidence whether oral or
documentary. But the appellate court has a
discretion to allow additional evidence in the
following circumstances:
 When the lower court has refused to
admit evidence which ought to have been
admitted.
 Notes
 The appellate court requires any
document to be produced or any witness
to be examined to enable it to pronounce
judgement.
 for any other substantial cause.
but in all such cases the appellate court shall record its
reasons for admission of additional evidence.

Reference, Review
And Revision
Reference to
High Court- Section 113

 A reference can be made by a lower court

where the question of law is involved in the suit
and the lower Court has a reasonable doubt about
such question of law.
 The application for reference can be made by any of the
parties to the suit or by the lower court on its own motion.
 Such reference will be made at any time ………..
judgement is pronounced and the High Court may make
such order thereon as it thinks fit.
 The purpose is to enable the sub-ordinate courts to
obtain the ……….. of high court on questions of law for
doing justice to the parties in non-appealable cases
 Notes
Review-
Section 114

 Section 114 provides for the review of the

case i.e., the reconsideration of The
decision given by a court. Any person
considering himself aggrieved by a decree
or order may apply for a review of judgement
to the court which passed the decree or
made the order on any of the below
mentioned grounds -
(i) discovery by the applicant of new and
important matter or evidence which, after the
exercise of due diligence, was not within his
knowledge or could not be produced by him at
the time when the decree was passed or order
made, or
(ii) on account of some mistake or error apparent
on the face of the record, or
(iii) for any other su cient reason, and the Court
may make such order thereon as it thinks fit.
 The application for review can be filed where no appeal
could be preferred against the order of the Court and also
in those cases where the person concerned doesn't want
to prefer such an appeal, Though such an appeal is
maintainable.
 It may be noted that application to review has to be
filed before the same court which has given the
Decision and that court can exercise the power of
review only if it is specifically authorized to exercise
such power under some law
 Notes

Review-
Section 115

A petition of revision can be made before the high court. In such

case The High Court may call for the record of any case which has
been decided by any Court subordinate to such High Court and in
which no appeal lies thereto, and if such subordinate Court
appears—
(i) to have exercised a jurisdiction not vested in it by law, or
(ii) to have failed to exercise a jurisdiction so vested, or
(iii) to have acted in the exercise of its jurisdiction illegally or
with material irregularity, the High Court may make such
order as it thinks fit.
A revision shall not operate as a stay of suit or other proceeding
before the Court except where such suit or proceeding is stayed
by the High Court.

Suits By Or Against
A Corporation

 Signature or verification of pleading

In suits by or against a corporation, any pleading may be
signed and verified on behalf of the corporation, by the
secretary or by any director or other principal o cer of
the corporation.
 Service of summons
Where the suit is against a corporation, the summons
may be served:
(a) on the secretary or any director or other principal
o cer of the corporation, or
 Notes
(b) by leaving it or sending it by post addressed to the
corporation at the registered o ce or if there is no
registered o ce then at the place where the
corporation carries on business.
 Power of the Court to require personal attendance
The Court may at any stage of the suit, require the
personal appearance of the secretary or any director, or
other principal o cer of the corporation who may be
able to answer material questions relating to the suit.

Suits By Or
Against Minors

 A minor is a person
 who has not completed the age of 18 years or
 who has not completed the age of 21 years if a guardian was
appointed by a Court of Wards for him or his property
 Every suit by a minor shall be instituted in his name by a person
who in such suit shall be called the next friend of the minor.
The next friend should be a person who is of sound mind and
has attained majority.
 Where the suit is instituted without a next friend, the
defendant may apply to have the plaint taken off the file, with
costs to be paid by the pleader or other person by whom it was
presented.
 Where the defendant is a minor the Court shall appoint a
proper person to be guardian for the suit for such minor.
 When minor Notes
attain majority
 When the minor plaintiff attains majority he may elect to
proceed with the suit or elect to abandon it.
 If he elects to proceed with the suit, he shall apply for an order
discharging the next frined and for leave to proceed in his own
name and the title of the suit will be corrected.
 If he elects to abandon the suit, he shall apply for an order to
dismiss the suit on repayment of the costs incurred by the
opposite party.

Summary
Procedure

 Order 37 of Civil Procedure Code provides for a summary

procedure in respect of certain suits.

 The purpose of the summary suit is that the defendant is not,

as in an ordinary suit, entitled to Defend the suit. The object
underlying the summary procedure is to prevent unreasonable
Obstructions by defendant who has no defence.

 Summary suits can be filed in the following cases :

 Suits relating to Promissory Notes, Bills of Exchange,

Cheques, Hundis.

 Suits in which the plaintiff seeks only to recover a debt.

 The debt payable by the defendant should arise on a written

contract or on an enactment or on a guarantee.

 In summary suits, the defendant is not entitled to defend the

suit until he enters appearance and makes an application for
leave to defend the suit, within 10 days from the date of
summons.
 Notes

 Leave to defend may be granted to him unconditionally or

upon such terms and condition as the courts thinks fit.
However, leave to defend the suit shall not be granted in
the following cases:

 Where the defence of the defendant is frivolous or

vexatious.

 Where part of the amount claimed by the plantiff and

accepted by the defendant has not been deposited by
the defendant in the court.

 The rules for summary procedure are applicable to the

following Courts:

 High Courts, City Civil Courts and Small Courts;

 Other Courts: In such Courts the High Courts may

restrict the operation of order 37 by issuing a
notification in the O cial Gazette.

 Institution of summary suits

Such suit may be instituted by presenting a plaint
containing the following essentials:

(1) a specific averment to the effect that the suit is filed

under this order;

(2) that no relief which does not fall within the ambit of
this rule has been claimed;

(3) the inscription immediately below the number of the

suit in the title of the suit that the suit is being
established under Order 37 of the CPC.

Time - The summary suit must be brought within ………..year

from the date on which the debt becomes due and payable,
whereas the period of limitation for suits for ordinary cases
under negotiable instrument is ………..years.
 Notes
Summary Judgment

 One of the significant amendments which has been

brought into the CPC by the Commercial Courts Act,
2015 is the insertion of Order 13A for summary
judgment.

 Order 13A of the amended CPC provides that disputes

which are recognized as commercial dispute under the
Act, can be disposed off by the commercial court
established under the Act without a full-fledged trial.
Previously, suits which had more or less a clear outcome
based on merits would still have to go through the entire
procedure enumerated under the CPC before the case
could be disposed.

 The technicalities led to inordinate delays for the parties

concerned and also clogged the entire docket. The
amendment is on similar lines to summary suits
provided in the CPC with the primary difference that
application for summary judgment can be in respect of
any relief in a commercial dispute while summary suits
relate to such relief relating to liquidated demand or
fixed sum of debt.

 Under mechanism as provided under Order XIII-A, the

application for summary judgment can be made by
either party after the service of summons to the
defendant and before the framing of issues.

 Upon consideration and satisfaction of the Court, a

summary judgment may be given that

 the plaintiff/defendant has no real prospect of

succeeding on the claim/defence, as the case may
be; and

 there is no other compelling reason as to why the

claim should not be disposed of before the recording
of oral evidence.
 Saving of inherent Notes
powers of Court.

Section 151 of the Civil Procedure Code says 'Nothing in this Code
shall be deemed to limit or otherwise affect the inherent power of
the Court to make such orders as may be necessary for the ends of
justice or to prevent abuse of the process of the Court.'
Though it does not confer any specific power to the Courts, it is
one of the most used sections of the Code in litigation. Any
situation that is not covered under the Code can be brought under
this Section. The scope of Section 151 CPC has been explained by
the Supreme Court in the case K.K. Velusamy V. N. Palanisamy
(2011) 11 SCC 275 as follows:
a) Section 151 CPC is not a substantive provision which creates
or confers any power or jurisdiction on courts. It merely
recognises the discretionary power inherent in every court as
a necessary corollary for rendering justice in accordance with
law, to do what is “right” and undo what is “wrong”, that is, to do
all things necessary to secure the ends of justice and prevent
abuse of its process.
b) As the provisions of the Code are not exhaustive, Section 151
recognises and confirms that if the Code does not expressly
or impliedly cover any particular procedural aspect, the
inherent power can be used to deal with such situation or
aspect, if the ends of justice warrant it. The breadth of such
power is coextensive with the need to exercise such power on
the facts and circumstances.
c) A court has no power to do that which is prohibited by law or
the Code, by purported exercise of its inherent powers. If the
Code contains provisions dealing with a particular topic or
aspect, and such provisions either expressly or by necessary
implication exhaust the scope of the power of the court or the
jurisdiction that may be exercised in relation to that matter,
the inherent power cannot be invoked in order to cut across
 the powers conferred by the Code or in a manner Notes
inconsistent with such provisions. In other words the
court cannot make use of the special provisions of
Section 151 of the Code, where the remedy or procedure
is provided in the Code.
d) The inherent powers of the court being complementary
to the powers specifically conferred, a court is free to
exercise them for the purposes mentioned in Section 151
of the Code when the matter is not covered by any
specific provision in the Code and the exercise of those
powers would not in any way be in conflict with what has
been expressly provided in the Code or be against the
intention of the legislature.
e) While exercising the inherent power, the court will be
doubly cautious, as there is no legislative guidance to
deal with the procedural situation and the exercise of
power depends upon the discretion and wisdom of the
court, and in the facts and circumstances of the case.
The absence of an express provision in the Code and the
recognition and saving of the inherent power of a court,
should not however be treated as a carte blanche to
grant any relief.
f) The power under Section 151 will have to be used with
circumspection and care, only where it is absolutely
necessary, when there is no provision in the Code
governing the matter, when the bona fides of the
applicant cannot be doubted, when such exercise is to
meet the ends of justice and to prevent abuse of
process of court.
 Notes

Practical
Questions

? A reside sat Agra, B tat Bombay and C at Calcutta when they

are all together at Delhi, A and B make a joint promissory note
payable on demand to C and delivered the same to him.
Describe the place where C may file a suit against A and B on
the promissory note.
According to Section 20 of Code of Civil Procedure, C may sue A
and B at Delhi'" where the cause of action arose. He may also sue
them at Bombay where B resides or at Agra where F resides; but in
these cases 1f the non-resident defendant objects, the suit can
notproceed without the leave of the court.
? X & Co., files a suit under Order XXXVII of the Code of Civil
Procedure, 1908 for recovery of a sum of Re. 1,00,000 which
was given by it as loan to its employee Y against the
promissory note executed by Y in the court of the District
Judge. Y received the summons of judgement in the suit
under order XXXVII of the Code of Civil Procedure, 1908. Y,
files written statement after 20 days of the receipt of the
summons in the said suit. The court ignores it and outright
passes judgement and decree for recovery of Rs. 1,00,000/-
with the costs against Y. How would you support the
judgement and decree of the court?
In a suit under Order XXXVlII of the Code of Civi1 Procedure, 1908,
'Y' defendant cannot defend the suit unless he enters his
appearance in the said suit within a period of 10 days from the date
of service of Summons on him and obtains leave to defend from
the court of District Judge. In the absence thereof the allegations
in the plaintiff shall be deemed to be admitted and X & Co. shall be
entitled to a decree. In view of this the judgement against Y is
justified.
? A filed a suit against B for obtaining the estate of C on the
ground that C had given the estate to him / his will. A failed to
 prove the will. Hence, his suit was dismissed. Now A files a Notes
fresh suit to get the estate of C on the ground that he is the
nearest heir of C. Will he succeed?
According to Explanation IV to Section 11 of the Code of Civil
Procedure, 1908, any matter which might and ought to have been
made on a ground of defence or attack in the former suit shall be
deemed to have been a matter directly and substantially in issue in
such a suit t. Accordingly, the ground that A was entitled to get the
estate as the nearest heir of C shall be deemed to be a matter
directly and substantially in issue in the former suit, might and'
ought to have been taken-up by A in that suit itself exercising
reasonable diligence. Thus, the fresh suit shall be barred by the
application of doctrine of res judictaand therefore A wi11 not
succeed.
? X, Y and Z own a house at Delhi; a shop at Bombay; and a farm
at Ajmer in Rajasthan. They made a partition of this property
by an agreement at Jaipur. X, being aggrieved by this
partition, files a suit for challenging this partition in a court at
Delhi. Y and Z raised an objection that the suit should have
been filed in a court at Jaipur. How will the court decide this
issue?
Section 16 of Code of Civil Procedure, 1908 provides that subject to
pecuniary or other limitations prescribed by any law, suits relating
to partit10n of immovable property shall be instituted in the court,
within the local limits of whose jurisdiction the property is
situated. In view of this, the objection of Y and Z that X should have
filed the suit at Jaipur the place where the agreement (of partition)
was executed, would be dismissed by the court.
? A files a suit against B for recovery of possession of house X.
During the pendency of the suit, B dies. A fails to bring the
legal representative of B on record. Hence the suit abates and
is dismissed. A now files a fresh suit against legal
representatives of B for recovery of house X. is this suit
maintainable?
Accord1ng to Section 12 of Code of Civil Procedure, 1908 where a
plaintiff is precluded by rules from instituting a further suit in
respect of a particular cause of action, he shall not be entitled to
institute a suit in respect of such cause of action 1n any court to
which the Code of Civil Procedure, 1908 applies. Further the Rule 9 Notes
of Order XXII, of CPC provides that where a suit has abated and is
accordingly dismissed, no fresh suit shall be brought on the same
cause of action. Hence the fresh suit filed by A is not maintainable.
? X filed a summary suit against a company. The summons was
served on the defendant on 12th February, 1996 when the
company secretary of the company was on leave. He appeared
on behalf of the company on 28th Februa2Y 1996, two days
after he resumed his duty. State the consequences.
According to Order 37 Rule 3 of Code of Civil Procedure, 1908, the
defendant is not entitled to defend his suit under summary
proceedings unless he has obtained the leave of the court by
making an application within 10 days of the service of the
summons. In the given case the Company Secretary was able to
appear before the court only after the expiry of statutory time limit
of 10 days and therefore the court may pass necessary orders ex-
parte. Generally, the court or judge may, for su cient cause
shown by the defendant, exclude the delay of -the defendant in
entering an appearance or in applying for leave to defend the suit.
? A filed a suit of partition of same property against C and D in a
civi1 court at Rampur on 1st January, 1995. C and D also filed a
suit against A for partition of the same property on 1st July,
1995 in the district court at Shyampur. C and D then made a
prayer before the civil court at Rampur that proceedings in
that court can be stayed because it is the court of lower
jurisdiction than the district court at Shyampur. Will the court
accept their prayer?
According to Section 10 of Code of Civil Procedure, 1908 where the
doctrine of res judictais applicable, the proceedings of the
subsequently instituted suit is stayed, irrespective of the fact that
the court in which the suit is instituted subsequently is of higher
or lower jurisdiction than the court in which the previous suit is
pending. Therefore the court will not accept the prayer of C and D.
? A transport company has its head o ce at Delhi and branch
o ces at Chennai, Jaipur and Mumbai. A dispute cropped up
between Sam and the company in respect of a transaction
made through Chennai o ce. Sam files a suit in respect of
this dispute against the company in a court at Jaipur. How will
 the court decide? Notes
According to explanation II to Section 20 of Code of
Civil Procedure, 1908 a corporation shall be deemed to
carryon business at its sole or principal o ce in India, or
in respect of any cause of action arising at any place where
it has also a subordinate o ce at such place. In this view of
the matter, Jaipur cannot be treated a place of business
because the cause of action has not arisen in respect of any
transaction through Jaipur branch o ce. Thus, a court at
Jaipur has no jurisdiction to try the suit.
? Anita residing in Delhi publishes in Calcutta statements
defamatory of Babita of Mumbai. Babita wants to sue
Anita in Calcutta. Advise Anita and Babita.
According to Section 19 of Code of Civil Procedure, 1908
where a suit is for compensation for wrong done to the
person or to movable property, if the wrong was done within
the local limits of the jurisdiction of one court and the
defendant resides, or carries on the business or personally
works for gain, within the local limits of the jurisdiction of
another court, the suit may be instituted at the option of the
plaintiff in either of the said courts.
In view of the above, Babita may sue Anita either in Calcutta
the place where defamatory statement was published or
Delhi the place of her residence as per her choice. Thus Anita
has to face the proceedings so opted by Babita.
? Ram and Shyam sell wheat for Rs.10,000/- to Sohan and
Mohan. Sohan sells cloth worth Rs.12,000/- to Shyam,
Sohan files a suit against Shyam for recovery of price of
cloth. Shyam claims set off of the cost of wheat in this
suit. Will he succeed?
According to Rule 6 of Order VIII of Code of Civil Procedure,
1908, set off is allowed by the court when it is satisfied, inter-
alia, that the amount of which set off is claimed is legally
recoverable from the plaintiff (s) by the defendant (s). In the
given problem, Sohan is the plaintiff, while Shyam is the
 Notes

defendant. The amount of which set off is claimed by

defendant Shyam is not recoverable by him only from
plaintiff Sohan. On the contrary, it is also recoverable from
Mohan, who is jointly liable with Sohan to Pay it. Mohan is not
party to the suit. In this view of the matter, Shyam will not be
allowed set off of the amount claimed by him.
? X, alleging that Y held certain lands from .him under a
lease and that the lease had expired, sues Y for the
recovery of Rs. 5,000 for use and occupation of the land
by Y after expiration of the lease. The suit is dismissed
on the ground that the lease is a subsisting lease. X
wants to file another suit for the recovery of Rs. 5,000 as
rent payable under the lease. Advice him.
Where the right claimed in the subsequent suit is different
from that in the first suit, and it is claimed under a different
title, the subsequent suit is not barred as res judicta. In view
of the above, a subsequent suit by X for the recovery of Rs.
5,000/- rent payable under the lease is not barred.
? X wants to Sue Y in a court in district A on a mortgage of
two immovable properties-one is situated in District A
and the other in district B. Advise X.
As per Section 17 of the Code of Civil Procedure, 1908 where a
suit is to obtain relief respecting, or compensation for wrong
to immovable property situated within the jurisdiction of
different courts, the suit may be instituted in any court within
the local limits of whose jurisdiction any portion of the
property is situated.
In view of the above X may bring only one suit in either court
and he is not obliged to bring two suits, one in the court of
district A and other in the court of District B.
? Anand filed a tenancy application under the Tenancy Act.
His earlier suit was not maintainable before the civil
court in view of bar created under Section 85 of the
Tenancy Act. Whether the decision rendered by the civil
court would operated as res judicatafor deciding tenancy
 Notes

application under the Tenancy Act?

A decision by a civil court without; jurisdiction can have no
effect either as estoppel or res judicta. The decision rendered
by the Civil court without jurisdiction under-Section 85 of the
Tenancy Act, is a nullity. Therefore, the decision rendered by
the Civil Court would not operate as res judicta for deciding
tenancy application under the Tenancy Act.
? A cause of action arises between two parties Surendra and
Mahendra. The courts of Meerut and Ghaziabad are
competent to try the suit. But both the parties to the
contract agree to vest the jurisdiction in the court at
Meerut. Is such an agreement valid?
The agreement is valid. It has been held in Angile Insulations v.
Davy Ashmere India Ltd. that where there might be two or more
competent courts which could entertain a suit consequent
upon a part of cause of action having arisen therewith, if the
parties to the contract agreed to vest jurisdiction in one such
court to try the dispute, such an agreement would be valid.
? Arjun who resides at Delhi entered into a contract with
Nakul at Mumbai for supply of certain goods at Kolkata
where Nakul resides and carries on business. At the time of
entering into contract it was agreed upon between Arjun
and Nakul that in case of dispute regarding payment or
delivery of goods arises, the suit will be filed only at
Bangalore court. Nakul failed to make the payment of
goods. Arjun filed a suit at Bangalore for recovery of
money. Nakul alleges that Bangalore court has no
jurisdiction to decide the suit. Is the lea of Nakul
maintainable?
Civil Procedure code provides for various types of jurisdiction
of courts. As per Section 20 of the Code, the territorial
jurisdiction with regard to movable property, torts, breach of
contract etc. shall be:-
 (I) Where the defendant actually and voluntarily resides Notes
or where the defendant carries on business or
personally works for gain or;
(ii) Where the cause of action, wholly or in part, has
arisen.
In the given case, the cause of action is non payment of
money as per the contract. Since, it is not mentioned
where the parties agreed that Nakul would make the
payment, it can be taken as where goods have been supplied, i.e.,
Kolkata. Therefore, as per the provisions of CPC, the suit can be
instituted either at Mumbai or Kolkata. It cannot be at Banglore
even if the parties agreed to it as the parties cannot agree to
something which is not provided for in the Act. Therefore, Nakul's
plea that Bangalore Court has no jurisdiction is valid.
? ABC Ltd. is a pharmaceutical company having its corporate
o ce in Mumbai. XYZ Ltd., another pharmaceutical company.
is carrying on pharmaceutical business at Nagpur. XYZ Ltd.
published 'an advertisement at Bangalore constituting
infringement of the registered trade mark of ABC Ltd. ABC
Ltd. intends to institute a suit for damages against XYZ Ltd.
Advise where ABC Ltd. should institute the suit.
Section 20 of the c.p.c provides that subject to the limitations
provided by Sections 15, 16, 18 and 19, every suit shall be
instituted in a Court within local limits of whose jurisdiction
 the defendant, or each of the defendants (where there are
more than one defendant) actually and voluntarily resides or
carries on business or personally works for gain; or
 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 either the leave of the Court is obtained or
the defendant (s) who do not reside or carry on
business or personally work for gain at such place
acquiesce in such institution; or
 where the cause of action arises, wholly or in part.
The explanation appended to the Section provides
that in the case of a body corporate or company it
shall be deemed to carry on business at its sole or
 Notes

principal o ce in India, or in case of any cause of action

arising at any other place, if it has a subordinate o ce, at
such place.
In the light of the legal provisions mentioned above ABC Ltd. can
file the suit for damages against XYZ Ltd. in the court within local
limits of whose jurisdiction the defendant resides or carries on
business. In the instant case it is Nagpur where the defendant
company is carrying on business.
ABC Ltd. can also institute the suit against XYZ LTD Bangalore
where the cause of action arose (Le., where advertisement
constituting infringement was published). Both the options are
available to the company.
? Ajeet resides at Bhopal, Saljeet at Indore and Charanjeet at
Lucknow. Ajeet, Baljeet and Charanjeet being together at
Kolkata, Baljeet and Charanjeet make a joint promissory note
payable on demand and deliver it to Ajeet. Where can Ajeet sue
Baljeet and Charanjeet for the amount of the promissory note?
According to Section 20 of the Code of Civil Procedure, 1908 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 commencement of the suit, actually or
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
commencement of the suit, actually or 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 each
institution; or
 Notes
(c) the cause of action wholly or in part arises.
In the present problem, Ajeet can file a suit against
Saljeet and Charanjeet at Kolkata because the cause
of action arose at Kolkata where the joint promissory
note was delivered by Saljeet and Charanjeet to Ajeet.
Ajeet can also file the suit at Indore or Lucknow where.
the defendants Saljeet and Charanjeet reside but he
can do so either with the consent express or implied of
the other defendant's or with the prior permission of
the court.
? A suit was instituted by the plaintiff company
alleging infringement by the defendant company by
using trade name of biscuits and selling the same in
the packing of identical design, etc., as that of
plaintiff company. A subsequent suit was instituted
in a different court by the defendant company
against the plaintiff company with the similar
allegations. Discuss the validity of the subsequent
suit.
As per Section 10 of Civil Procedure Code, no Court
shall proceed with the trial of any suit in which the
matter in issue is also directly and substantially in
issue in a previously instituted suit between the same
parties or between parties under whom they or any of
them claim, litigating under the same title, where such
suit is pending in the same or any other Court in India
having jurisdiction to grant the relief claimed.
The facts of the given problem are based on the case
of M/s Wings pharmaceuticals (P) Ltd. and another v/s
M/s Swan pharmaceuticals and others, AIR 1999 Pat.96
where the Court held that subsequent suit should be
stayed as simultaneous trial of the suits in different
 Notes

Courts might result in conflicting decisions as issue

involved in two suits was totally identical.
? Anurag intentionally and falsely leads Bhanu to
believe that certain land belongs to Anurag, and
thereby induces Bhanu to buy and pay for it. The land
afterwards becomes the property of Anurag. Anurag
seeks to set aside the sate on the ground that at the
time of sale he had no title. Decide.
Anurag cannot be allowed to prove his want of title. Here
doctrine of estoppel will apply.The doctrine of estoppel as
contemplated under Section 115 of the Indian Evidence
Act, 1872 says that when one person has, by his
declaration, act or omission intentionally caused or
permitted another person to believe a thing to be true and
to act upon such belief, neither he nor his representative
shall be allowed, in any suit or proceeding between
himself and such person or his representative, to deny the
truth of that thing.
? Anubhav owes Rs. 10,000 to the partnership firm of
Bose and Chander. Bose dies leaving Chander
surviving. Anubhav sues Chander for a debt of Rs.
15,000 due in his individual capacity. Can Chander set
off the debt of Rs. 10,000?
The case pertains to legal set off. To constitute legal set
off, following conditions must be present:
 The suit must be for recovery of money.
 The defendant must claim ascertained money.
 The ascertained sum of money should be legally
recoverable.
 The sum of money so claimed should be within the
pecuniary jurisdiction of the court.
 Notes

In the present problem, all the requirements mentioned

above are present. Therefore, Chander may set off the debt
of Rs. 10,000/-.
? Aman filed a suit against Bhuvan for obtaining a house
and land property of Chaman on the ground that Chaman
had bequeathed those properties to him by a will. But,
Aman failed to prove the will and his suit was dismissed.
Now, Aman files a fresh suit to get the properties of
Chaman on the ground that he is the only and nearest
heir to Chaman. Will Aman succeed?
Explanation IV to Section 11 of C.P.C. 1908 provides that any
matter which might and ought to have been made ground of
defense or attack in a former suit, shall be deemed to have
been a matter directly and substantially in issue in such
suit. In simple terms it means that all the grounds of attack
or defense must be given at the earliest stage in any
proceeding if it could have been known reasonably
beforehand. Parties cannot bring the grounds of attack
or defense stage by stage. Therefore, the ground that Aman
is entitled to get the properties as the only and nearest heir
of Chaman shall be deemed to be a matter directly and
substantially in issue in former suit and it ought to have
been taken up by Aman in that suit itself since it was a
ground known already to Aman. Thus, fresh suit is barred by
the application of doctrine of res judicata and Aman will not
succeed.
? A suit was instituted by Rosy Pvt. Ltd. dealing in
cosmetics alleging infringement by Sunder Pvt. Ltd. by
using trade name 'Monica' and selling the same in
wrappers and cartons of identical design and colour
used by the plaintiff company. A subsequent suit was
instituted in different court by the defendant company
(Sunder Pvt. Ltd.) against the plaintiff company with the
 Notes

same allegation. Decide, whether the subsequent suit

will be allowed to continue. Give reasons and support
your answer with case law.
Section 10 of Civil Procedure Code, 1908 dealing with stay
of suit, is enacted to prevent courts of concurrent
jurisdiction from simultaneously trying two parallel suits in
respect of the same matter in issue, in order to avoid
conflict of decision. Hence, the trial of thesubsequent suit
cannot be proceeded with.
In the instant case, subsequent suit filled by Sunder
Pvt. Ltd. Should be stayed as simultaneous trial of the suit
in different courts might result in conflicting decisions as
issue involved in two suits is totally identical [See M/s.
Wings Pharmaceuticals (P) Ltd. and another v. M/s. Swan
Pharmaceuticals and others, AIR 1999 Pat. 96]
? A transport company has its head o ce at Mumbai and
branch o ces at Allahabad, in respect of a transaction
through Allahabad o ce. Sameer files a suit in respect
of this dispute against the company in a court at Patna.
How will the court decide?
According to Explanation II appended to Section 20 of the
Code of Civil procedure, "a corporation shall be deemed to
carry on business at its sole or principal o ce in India, or
in respect of any cause of action arising at any place where
it has also a subordinate o ce at such place".
In this view of toe given facts of the case as well as the
legal provision mentioned above, the court at Patna has no
jurisdiction to try the suit as the cause of action in respect
of the transaction has not arisen through Patna Branch
o ce.