CIVIL PROCEDURE CODE

GARV SIDANA
 CIVIL PROCEDURE CODE

CIVIL PROCEDURE CODE

Table of Contents
MODULE I................................................................................................................................2

S. Satnam Singh v Surender Kaur [2008] 2 SCC 562............................................................4

Cellular Operators Association vs UOI AIR 2003 SC 899....................................................4

JURISDICTION.........................................................................................................................6

Iftikhar Ahmed v. Syed Meharban Ali, (1974) 2 SCC 151..................................................11

Prem Kishore v. Brahm Prakash, 2023 SCC OnLine SC 356..............................................12

Daryao vs UP...........................................................................................................................14

BADAT v EITC AIR 1964 SC 538......................................................................................18

Badat and Co. v. East India Trading Co., 1963 SCC OnLine SC 9.....................................19

PLACE OF SUING..................................................................................................................20

AIR 1984 SC 1264 Union Of India And Others vs Oswal Woollen Mills Ltd....................23

Begum Sabiha Sultan vs Nawab Mohd Mansur Ali Khan and ors AIR 2007 SUPREME
COURT 1636........................................................................................................................24

Section 21: Objections to Jurisdiction..................................................................................27

ORDER I..................................................................................................................................32

Razia Begum v Anwar Begum 1958 AIR 886.....................................................................32

Chairman, Tamil Nadu Housing Board, ... vs T.N. Ganapathy............................................35

Ramesh Hiranand Kundanmal vs Municipal Corporation Of Greater.................................37

B. Prabhakar Rao & Ors. Etc vs State Of Andhra Pradesh..................................................40

Anil Kumar Singh vs Shivnath Mishra................................................................................40

Order 2.....................................................................................................................................42
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MODULE I
- S.6 Pecuniary jurisdiction is pre-emptory jurisdiction over other jurisdictions. Three biases, for
pecuniary bias the test is reversed. Govt sets these pecuniary jurisdictions in consultation with
high court. Commercial courts act introduced changes. Amount from 1 cr went down to 3 lakhs.
- S.9. Impliedly barred – when a higher court is seizing off the matter. Why criminal defamation
over civil defamation? Court fees, 1% of suit value, that’s why filing civil is not preferred over
criminal. What is the purpose of a uniform procedure? Is it fair for a layperson to not
understand legalese? Fiduciary faith between client and lawyer. How does procedure embolden
this? By taking away discretion from counsel.
- S.9 gives you inherent right to invoke jurisdiction of the civil court, right to appeal on the other
hand is a matter of a statute, only a statutory right. Right to approach a civil court is an inherent
right of the civilian. Foundational, cardinal principle of civil procedure that right to invoke civil
jurisdiction is an inherent right. Looking at s.9 for civil vs criminal matter – right in rem vs
right in personam. In criminal case you need the support of the machinery of the state, in a civil
case however, one controls their own destiny in terms of being able to file a suit. Dominus litis
(dominant litigant) - right to file a civil case is an inherent right as per s.9. Plaintiff – person
who is in possession of the plaint. Provides multiple opportunities for the plaintiff to go and
approach the relevant civil court. Unless something is expressly or impliedly barred, it would
be the discretion of the plaintiff to file a suit wherever. In civil cases, there are multiple options
available to seek remedies.
- Major difference between civil and criminal that’s not procedural – needs to come from the
consequences of both the actions. In criminal cases the consequences are either in the form of
punishment or fine, consequences of civil actions are never in the form of punishment.
However even the CPC provides for arrest or detention, attachment. Jolly George Varghese vs
Bank of Cochin. Ultimate end in criminal cases is the punishment, however in civil cases,
punishment of this nature is means to the ends of compensation.
- Ubi jus ibi remedium – where there is a right there is a remedy. Forms of action – medieval
England – if there is a remedy, there is a right
- King’s Courts & general courts (lower courts) – Former was for rich, influential people and
latter was for common people – the people wanted to approach the KC – for this, people had to
go to the Chancery of the KC and purchase a writ – they have to frame their issue within any of
the existing writs
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- Each writ had its own procedure & substantive law [this process is known as forms of action] –
these rules of procedure were very strict to ensure that everyone does not land up in the KC –
injustice
- People again approached the King – legitimate cases needed to be dealt with – Courts of Equity
for remedies such as injunction
- Now we instead have cause of action – where there is a right, there is a remedy – this is why we
need lawyers to cull out relevant facts from the story and get the ingredients for the cause of
action
- SC – has not said it in these words but they are trying to prevent bringing in forms of action but
instead to facilitate people exercising their rights & liabilities – rights & liabilities should not
be hampered due to procedural technicalities – Court rejects hyper-technicalities (O7) – liberal
interpretation of CPC is done (Court interprets ‘shall’ as ‘may’)
- CPC does not apply to High Courts & Supreme Court on both the original side and the
appellate side – but SC & every HC has their own criminal & civil rules (e.g. Delhi HC Rules
of Civil Practice) which are not drastically different from the principles of CPC – are more
detailed than the CPC procedures & are attuned to the special requirements of each state
- Cause of action – bundle of facts (factum probantia) which a person has to prove/disprove in
order to get desired relief. (factum probandum)
- Factum probandum (they constitute the bundle of actions) – lead fact that is required to be
established and factum probantia - facts that assist the establishment of this fact.
- Against whom the plaint is filed, who has to defend the plaint – defendant.
- ORDER I, II, III, IV, V
- Master of roster – Shanti Bhushan v UOI
- Issue – alleged by one party & denied by the other party , facts in controversy as alleged by
both the parties.

- Decree - 2(2) “decree” means (anything which is mutatis mutandis would also be included,
something similar to it/in its vicinity, the definition is not exhaustive). the formal
expression of an adjudication which, so far as regards the Court expressing it, conclusively
determines the rights of the parties with regard to all or any of the matters in controversy in the
suit and may be either preliminary or final. It shall be deemed (word deemed creates a legal
fiction) to include the rejection of a plaint and the determination of any question within 3***
section 144, but shall not include— (a) any adjudication from which an appeal (defined in
section 104 read with order XXXXIII). lies as an appeal from an order, or (b) any order of
dismissal for default. Explanation.—A decree is preliminary when further proceedings have to
be taken before the suit can be completely disposed of. It is final when such adjudication
completely disposes of the suit. It may be partly preliminary and partly final;
- Orders- procedural ruling of the court. When would it be appealable? As defined by sectio 104.
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- 104. Orders from which appeal lies.—(1) An appeal shall lie from the following orders, and
save as otherwise expressly provided in the body of this Code or by any law for the time being
in force, from no other orders:— 4* * 5[(ff) an order under section 35A;]
- 1 [(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature
referred to in section 91 or section 92, as the case may be;] (g) an order under section 95; (h) an
order under any of the provisions of this 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; (i) any order made under rules from which an appeal is expressly allowed by rules:
5 [Provided that no appeal shall lie against any order specified in clause (ff) save on the ground
that no order, or an order for the payment of a less amount, ought to have been made.] (2) No
appeal shall lie from any order passed in appeal under this section.

S. Satnam Singh v Surender Kaur [2008] 2 SCC 562

- “14. A `decree' is defined in Section 2(2) of the Code of Civil Procedure to mean the formal
expression of an adjudication which, so far as regards, the Court expressing it, conclusively
determines the rights of the parties with regard to all or any of the matters in controversy in
the suit. It may either be preliminary or final. It may partly be preliminary and partly be final.
The court with a view to determine whether an order passed by it is a decree or not must take
into consideration the pleadings of the parties and the proceedings leading upto the passing of
an order. The circumstances under which an order had been made would also be relevant.
- 15. For determining the question as to whether an order passed by a court is a decree or not, it
must satisfy the following tests :
- "(i) There must be an adjudication;
- (ii) Such adjudication must have been given in a suit; (go to section 26)
- (iii) It must have determined (determination vs adjudication? - adjudication is the long entire
process of the case and the final conclusion would be the determination). the rights of the
parties with regard to all or any of the matters in controversy in the suit;
- (iv) Such determination must be of a conclusive nature; and (when is it conclusive - when court
becomes functious officio on those aspects which it has determined)
- (v) There must be a formal expression of such adjudication."” (terms like formal expression
aren’t used with judgment only decree) (formal expression - final formal obligation)
- Judgement - statement of reasoning (does not necessarily have to be based on a decree).

Cellular Operators Association vs UOI AIR 2003 SC 899

- J. SV Sinha

Trial court is the court of first instance – why do they have such broad powers? They are the
most important courts because they collect all the evidence firsthand – but at the same time,
judicial decisions have curtailed s 151 which gives unlimited powers

Read relevant sections on legal representatives (s.2)

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(11) “legal representative” means a person who in law represents the estate of a deceased
person (only in the case of a dead person), and includes(inclusive definition) any person who
intermeddles with the estate of the deceased and where a party sues or is sued in a
representative character the person on whom the estate devolves on the death of the party so
suing or sued;

POA is not a legal representative. Only in a legal sense, an LR can only be appointed for a dead
person. A POA holder would only be called a POA holder and not become LR ever by the
virtue of a POA. Propositus - person who has died. LRs can be -

(i) Executor of the estate, if there is a will, future successions, testamentary succession, in
future, after death the person who has drawn the will, the lawyer or someone who executes the
will.

(ii) Administrator - someone who is hired to be administer the estate.

(iii) Reversioner - (residuary legatee)

50. Legal representative.—(1) Where a judgment-debtor dies before the decree has been fully
satisfied, the holder of the decree may apply to the Court which passed it to execute the same
against the legal representative of the deceased. (2) Where the decree is executed against such
legal representative, he shall be liable only to the extent of the property of the deceased which
has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining
such liability, the Court executing the decree may, of its own motion or on the application of the
decree-holder, compel such legal representative to produce such accounts as it thinks fit.

Relevance - (read Order 1 rule 10and 2) - liability of LRs limited by the law.

52. Enforcement of decree against legal representative.—(1) Where a decree is passed against a
party as the legal representative of a deceased person, and the decree is for the payment of
money out of the property of the deceased, it may be executed by the attachment and sale of
any such property. (2) Where no such property remains in the possession of the judgment-
debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as
is proved to have come into his possession, the decree may be executed against the judgment-
debtor to the extent of the property in respect of which he has failed so to satisfy the Court in
the same manner as if the decree had been against him personally.
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(12) “mesne profits” of property means those profits which the person in wrongful possession
of such property actually received or might with ordinary diligence have received therefrom,
together with interest on such profits, but shall not include profits due to improvements made
by the person in wrongful possession;

"Mesne profits" refers to the profits that (i) someone who wrongfully possesses property either
actually received or (ii) could have received with reasonable effort (bare minimal profit you
could have earned but didnt earn due to lack of diligence).. (iii) This also includes interest on
those profits but does not include any profits resulting from improvements (drip irrigation and
green house farming etc) made by the person wrongfully possessing the property.

JURISDICTION
CAP

C- COMPETENCY

A - AUTHORITY

P - POWER of an institution to seize off the matter. An institution going beyond this and
deciding the result would be non est in the eyes of law.

This is what jurisdiction is.

Concurrent jurisdiction?
Court of competent jurisdiction - What does competent mean?
Nemo debet bis vexari pro una et eadem causa
No person shall be vexed twice for the same cause.
10. Stay of suit.—No Court shall proceed with the trial of any suit (as defined in order vi) in
which the matter in issue is also directly and substantially ((i) Directly and substantially?
Look at the content of the previously filed plaint, a s.10 plaint makes it imperative on the
applicant to file a copy of the previous plaint, that plaint might have multiple issues raised
in them. Landlord v Tenant issue suit pending on the amount of tenancy between them.
Second suit for specific performance and ejection. Tenant claims that the matter is
directly and substantially the same. They are different issues, one is for amount of
tenancy and one is for specific performance. In another suit, if the two same issues are
part of 10 issues, if only 2 issues are the same then it is not directly and substantially the
same. Court may look at the prayer/relief sought in the two plaints. Even if the court in
which the second plaint was filed, delivers the verdict it would not be void, it is still an
executable verdict/decree, s10 is no bar to entertain S.47 Order 21 application. S.10 could
also be filed in court 1 if the court 2 goes too far. What was filed first and who came first
is not the answer. S.10 is merely a procedural provision ,decree cab serve as res judicata
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for the first suit. (ii) At what stage can it be termed directly and substantially in issue?
Which court is at an advanced stage. (iii) 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 (court of concurrent
jurisdiction)(court in which matter was first filed would be at an advanced stage than the
court in which it was filed earlier). The court that entertains s.10 may cease and desist
Test- if you would not cease and desist and judgement of any court (any court which
provides decree first, its decree would operate as a bar on the subsequent decrees which
would be a nullity). If C2 decides to go ahead with the suit and gives decree first it would
be valid and would operate as res judicata on the first court. Not following s.10 is
procedural irregularity and not jurisdictional bar like in s.11 because there is no way to
ascertain what is substantially and directly in issue without judgement. in 1[India] have
jurisdiction to grant the relief claimed, or in any Court beyond the limits of 1[India] established
or continued by 2[the Central Government 3***.] and having like jurisdiction, or before 4[the
Supreme Court]. Explanation.—The pendency of a suit in a foreign Court does not preclude the
Courts in 1[India] from trying a suit founded on the same cause of action. 11
Entertainment of suit (barred in res judicata, the fact that there was a decision with respect to
the same facts but not in res sub judice) vs proceeding with trial
Coran Non judice - court not having jurisdiction.
4[(5) “foreign Court” means a Court situate outside India and not established or continued by
the authority of the Central Government;]
(6) “foreign judgment” means the judgment of a foreign Court;

Indian Bank v. Maharashtra State Coop. Marketing Federation Ltd., (1998) 5 SCC 69 at page
72

Facts – Respondent asked Indian bank to open a letter of credit of 3cr in favour of a company
named Shankar Rice Mills. Bank opened this, later on there was some dispute between
Maharashtra cooperative and the firm. Indian bank claimed the line of credit from mahrashtra
cooperative, because they gave the line of credit to them only. When it asked the line from
Maharashtra Cooperative, they said there is already a pending suit. That suit will act as a bar to
this suit. Technicality – subsequent suit which Indian bank sought to file against Maharashtra
cooperatieve was in the nature of summary suit, order 37 defines the same, it is like an ordinary
suit only, defendant will have to come to court and prove why the court must even allow the
defence a chance to defend. In summary suit the defense is not a right. Indian Bank sought to
file a summary suit against Mharashtra Coop. Matter went to single judge of high court, the
judge said that before I ask you to defend, you have to give 4 cr security. The Division Bench
was of the view that the word 'trial' in section 10 has not been used in a narrow sense and
would mean entire proceedings after the defendant enters his appearance, held that section 10
of the Code applies to a summary suit also. It also held that the summary suit filed by the Bank
being a subsequently instituted suit was required to be stayed. It allowed both the appeals, set
aside the orders passed by the learned Single Judge and stayed the summary suit till the
disposal of the prior suit filed by the Federation. Essence of the decision – s.10 is not a bar on
the institution of the suit, which is not the case for s.10 Nemo debet bis vexari pro una et eadem
causa for section 10. Same maxim is mother for s.11, if s10 is allowed to proceed, it would
grant as res judicata.
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“In legal parlance it means a judicial examination and determination of the issue in civil or
criminal court by a competent Tribunal. According to Webster Comprehensive Dictionary,
International Edition, it means the examination, before a tribunal having assigned jurisdiction,
of the facts or law involved in an issue in order to determine that issue. According to Stroud's
Judicial Dictionary (5th Edition), a 'trial' is the conclusion, by a competent tribunal, of question
in issue in legal proceedings, whether civil or criminal. Thus in its widest sense it would
include all the proceedings right from the stage of institution of a plaint in a civil case to the
stage of final determination by a judgment and decree of the Court. Whether the widest
meaning should be given to the word 'trial' or that it should be construed narrowly must
necessarily depend upon the nature and object of the provision and the context in which it
used.”

“The object of the prohibition contained in section 10 is to prevent the courts of concurrent
jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings
on the matters in issue. ‘The provision is in the nature of a rule of procedure and does not affect
the jurisdiction of the court to entertain and deal with the later suit nor does it create any
substantive right in the matters. It is not a bar to the institution of a suit. It has been construed
by the courts as not a bar to the passing of interlocutory orders such as an order for
consolidation of the later suit with earlier suit, or appointment of a Receiver or an injunction or
attachment before judgment. The course of action which the court has to follow according to
section 10 is not to proceed with the 'trial' of the suit but that does not mean that it cannot deal
with the subsequent suit any more or for any other purpose. In view of the object and nature of
the provision and the fairly settled legal position with respect to passing of interlocutory orders
it has to be stated that the word 'trial' in Section 10 is not used in its widest sense.”
“We are of the opinion that the word 'trial' in section 10, in the context of a summary suit,
cannot be interpreted to mean the entire proceedings starting with institution of the suit by
lodging a plaint. In a summary suit the 'trial' really begins after the Court or the Judge grants
leave to the defendant to contest the suit. Therefore, the Court or the Judge dealing with the
summary suit can proceed up to the stage of hearing the summons for judgment and passing the
judgment in favour of the plaintiff if (a) the defendant has not applied for leave to defend or if
such application has been made and refused or if(b) the defendant who is permitted to defend
fails to comply with the conditions on which leave to defend is granted.”
Maxim - Nemo debet bis vexari pro una et eadem causa
(This applies to S 10 also) MAXIM - res judicata pro veritate accipitur
MAXIM - interest reipublicae Ut sit finis litium - interest of govt or the state is in putting an
end to the litigaiton because it brings peace and harmony in the society. Once a dispute has
been adjudicated there must be an end to it. Also quoted in context of litigation.
Purvva Nyaya - Raj Lakshmi Dasi vs Banavali Sen Air 1953 SC 33 PG 38 Cited the phrase.
Quoted Mitakshara. Cited if a person though defeated at law sues again, he should be answered
‘you’re defeated formally’, this was a hindu scripture.
Exceptio Rei Judicatei - except what has been decided.
The meaning of CHOSE JUGÉE is a matter that has been settled : res judicata
Bar of Res Judicata also applies to Writs and cases of other nature.Daryao v UP AIR 1961 SC
1457, prominent judgement.
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Res Judicata is equated to rule of law. Once the HC has decided a case in exercising its
jurisdiction SC wont exercise its discretion under Article 32.
Competency, 226 hc is competent to adjudge on FRs.

Iftikhar Ahmed v. Syed Meharban Ali, (1974) 2 SCC 151

Prem Kishore v. Brahm Prakash, 2023 SCC OnLine SC 356

Universal legal principle belonging to civilized adjudication mechanism. Once a competent

adjudicator has decided a dispute between two parties (not plaintiff and defendant necessarily)
and the matter is finally heard and settled then the case becomes res judicata between the
parties and cannot be opened.

This extract is taken from Daryao v. State of U.P., 1961 SCC OnLine SC 21 : (1962) 1 SCR
574 : (1962) 1 SCJ 702 : AIR 1961 SC 1457

9. But, is the rule of res judicata merely a technical rule or is it based on high public policy? If
the rule of res judicata itself embodies a principle of public policy which in turn is an essential
part of the rule of law then the objection that the rule cannot be invoked where fundamental
rights are in question may lose much of its validity. Now, the rule of res judicata as indicated in
Section 11 of the Code of Civil Procedure has no doubt some technical aspects, for instance the
rule of constructive res judicata may be said to be technical; but the basis on which the said rule
rests is founded on considerations of public policy. It is in the interest of the public at large that
a finality should attach to the binding decisions pronounced by Courts of competent
jurisdiction, and it is also in the public interest that individuals should not be vexed twice over
with the same kind of litigation. If these two principles form the foundation of the general rule
of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with
fundamental rights in petitions filed under Article 32.

11. Resjudicata.—No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former suit between the
sanx parties. or between parties under whom they or any of them claim, litigating under the
same title, in a Court competent (only competent when there is jurisdiction, jurisdictional error,
how is it different from error of law, jurisdictional error - going beyond jurisdiction, error of
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law - misinterpretation/misapplication of law, jurisdictional error renders a nullity, error of law

gives right to appeal, case - anisminic house of lords, 1969 decision was considered by indian
courts but they refused to follow the same, the distinction between jurisdictional error and law
of error, jurisdictional error once committed, whatever verdict the court renders, the verdict
would be non est in law, the verdict would have no value) to try such subsequent suit or the suit
in which such issue has been subsequently raised, and has been heard and finally decided by
such Court.

Defences to res judicata –

1st court was not of competent jurisdiction

Decree was obtained by fraud/collusion – S 44 IEA

Doctrine of merger - whatever is conflicting in the suit decision, would be merged into the
decision in the appeal.

Explanation III (Mulla 18th edition 303) Consent decree and estoppel vis-a-vis res judicata - a
consent or compormise decree is merely a contract between the parties that is approved by the
court not adjudication by the court. Contestation or appeal of the consent decree would be
barred by Order XXIII rule 3. Pg 289 of Mulla 18th edition -294 pg.

Ex Parte UOI v AIR 2003 SC 3209

Res judicata in representative suits - rights claimed for someone and others, bombay company
constructing two additional buildings and is supposed to get revenue by giving it on lease, it is
against the development plan and shouldnt be allowed, filed by Mr Thakker because it was PIL.
Claiming rights on behalf of others. (ii) Parties not expressly named but their interests are
claimed. (iii) Claim must be bona fide. (iv) If suit is filed vis-a-vis Order I Rule VIII - ,
conditions have to be fulfilled that are mentioned there.
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Iftikhar Ahmed v. Syed Meharban Ali, (1974) 2 SCC 151

3 parties - meherban ali, Kainaz Fatima (they are on side) vs , Ishtiaq Ahmad (IA - has an alias -
MN), vs Ishari Prasad. Ishari Prasad is claiming titel to a land, and hes only going to fight
IA/MN, the other two parties (MA AND KF), their mother relinquished their shares in the
favour of IA, and thats why property must be fought against IA. This questions was decided in
affirmative by the court. In subsequent rounds of litigation, it was claimed that the previous
deicsions of the court would not operate as res judicata because they were co-defendants and not
at conflict. Can res judicata also operate qua plaintiffs or qua defendants. When there are co-
defendants, decision shall operate as res judicata. (Para 13 and 15). 3 conditions in para 13(13.
Now it is settled by a large number of decisions that for a judgment to operate as res judicata
between or among co-defendants, it is necessary to establish that (1) there was a conflict of
interest between co-defendants; (2) that it was necessary to decide the conflict in order to give
the relief which the plaintiff claimed in the suit; and (3) that the Court actually decided the
question.)

, and now 4th - that co-defendants were either necessary(ambani in a suit for challenging his
title) or proper (estate manager who is looking after day to day activities, could also be called
proforma defendant) parties to the suit.
Prem Kishore v. Brahm Prakash, 2023 SCC OnLine SC 356

. Why is this authority ? For order 17 Rule 2 and 3. Pg 27- end is relevant for us.

Village Dhaka, tenancy in 1987 was created between parties of the case for 1050 rs monthly
rent, these guys are successors of the tenancy. Dispute arose in 1993, and decision in 2023. First
15 pgs - multiple rounds of litigation, most prominent was before the rent controller. Delhi Rent
Control Act, under DRC, theres a District Judge level officer who is appointed as rent
controller. Provisions of the act are ton control the rent and secure the rights of the tenants as
against the landlords. Prevent the landlord from being illegally evicted from tenanted premises.
Situation b/w landlord and tenant became sour in 1993. He sought eviction of tenant saying he
had not paid arrears of rent, notice was served in 1996, rent was only paid till 1993. Following
the notices and proceedings, they reached before rent controller, original landlord Samay Singh
claimed he was the landlord and X claimed he was the tenant. Case went through all through till
Order 17 which has two draconian provisions - Rent controller said that Mr. Samay Singh has
failed to prove his title ( because his witnesses did not come). Person who claimed through Mr.
Samay Singh was aggrieved. Another round of litigation, which was dismissed by civil judge by
saying that the judgement of rent controller was res judicata, high court did the same in
revisional jurisdiction. Application of res judicata in second litigaiton, order 7 rule 11 (d) –
rejection of plaint, plaint could be rejected in case it is barred by any provision of the law. In
subsequent round of litigation after rent controller judgement, an application under Order 7 Rule
11 was filed, that their plaint was subject to be dismissed and it operated as res judicata. Court
accepted this and it went to high court. High court accepted the contention that because it is
barred by RJ plaint has to be rejected. Rule for Order 7 RUle 11, for rejecting the plaint, only
the contents of plaint are relevant. Whatever defendant filed in their defense is immaterial. Court
can only reject the plaint only on the basis of the content of the plaint.It was not clear after
reading of this plaint that it was barred, but high court still found it to be res judicata before
hearing the plaint, which supreme court found to be erroneous.

Para 53. Thus the dictum as laid by this Court in Prakash Chander Manchanda (supra) is that
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it will be within the discretion of the Court to proceed under Rule 3 even in the absence of
evidence but such discretion is limited only in cases where a party which is opposing has led
some evidence or has examined substantial part.

57. The order passed by the Rent Comptroller dated 27.01.1998 referred to in para 8 of this
judgment, has a different angle too. Let us once again read the order passed by the Rent
Controller closely. The order is in two parts. In the first part, the Rent Controller says that the
counsel for the plaintiff is present. Then, he proceeds to observe that the counsel for the plaintiff
made a statement that no witness has come today nor they were summoned. The Rent
Controller, further, notes that on none of the grounds further adjournment has been prayed for.
Thereafter, he states that the last opportunity was granted to the plaintiff on 09.09.1997 and
thereafter, on 01.11.1997. However, the plaintiff did not care to call his witnesses. In such
circumstances, the Rent Controller closed the eviction petition proceedings. The exact words
used by the Rent Controller in the order dated 27.01.1998 are:“the PE is thus closed.” In the
second part of the order, the Rent Controller, thereafter, proceeds to observe that since the
relationship of Landlord-Tenant is under dispute and the plaintiff has failed to produce any
evidence to establish such relationship, he did not find any good reason to fix the case further
for recording of evidence. In such circumstances, he dismissed the eviction petition, as the
plaintiff could be said to have failed to establish his case. In the last, he observed that the file be
consigned.

59. The moot question is whether the eviction petition was dismissed for default which dismissal
would certainly bar a fresh suit if instituted on the same cause of action. The words, which we
have quoted above, certainly do not mean dismissal either on merits or on default. It was
argued before us that the order should only be taken to mean what an order under Order 17 can
possibly be and nothing else. We are not impressed by such submission. The order did not
purport to be one of dismissal for default or on merits and it cannot be taken to mean other than
what it purported to be. It is in ordinary phraseology; not legal phraseology and it cannot be
divested of its ordinary meaning. Its ordinary meaning is that the proceeding was closed and
the suit would not count as a pending one. The later description would be redundant if the order
was one of final disposal of the suit. The order did not purport to be a final disposal of the suit.
It merely stopped the proceedings. It did nothing more. This is not final decision of the suit
within the meaning of Order 9 Rule 8 and Order 17 Rule 3 resply of the CPC.

Decisions under order 9 and order 17 are not on merits but just stoppage.

60. In the result, the appeal succeeds and is hereby allowed. The impugned judgment and
decree is, therefore, set aside. Needless to add two things. First, we have not expressed any
opinion on rival contentions regarding the applicability or otherwise of the principle of res
judicata or for that matter any other contentious issue in the pending suit. Secondly, nothing
stated in this judgment will prevent the concerned defendants from requesting the Court to
decide such an issue as a preliminary issue. Such an application would obviously be decided on
its merits about which also we expressed no opinion. The suit is revived.

Order 17 Rule 2. Procedure if parties fail to appear on day fixed.—Where, on any day to which
the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may
proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make
such other order as it thinks fit. 1 [Explanation.—Where the evidence or a substantial portion of
the evidence of any party has already been recorded and such party fails to appear on any day
to which the hearing of the suit is adjourned, the Court may, in its discretion proceed with the
 CIVIL PROCEDURE CODE

case as if such party were present.] 3. Court may proceed notwithstanding either party fails to
produce evidence, etc.—Where any party to a suit to whom time has been granted fails to
produce his evidence, or to cause the attendance of his witnesses, or to perform any other act
necessary to the further progress of the suit, for which time has been allowed 2 [the Court may,
notwithstanding such default, (a) if the parties are present, proceed to decide the suit forthwith;
or (b) if the parties are, or any of them is, absent, proceed under rule 2].

These give the powers to court to dismiss the suit.

2 imp principles - I whenever there is exparte or default dismissal operates as res judicata.

AFTER PREM KISHORE, default dismissal no longer operates as res judiata,. Ex Parte still
operates as a decision on merits though.

PVN DEVKIAMMA This extract is taken from Devaki Amma v. Kunhi Raman
Nair, 1980 SCC OnLine Ker 81 : 1980 KLT 690 : AIR 1980 Ker 230 at page 693
8. With respect, we do not find it possible to accept the aforesaid view as correct. In our
opinion, the expression “a Court of limited jurisdiction” is wide enough to include a court
whose jurisdiction is subject to a pecuniary limitation and it will not be right to interpret the
said expression as connoting only courts other than ordinary civil courts. Such a narrow and
restricted interpretation is not warranted by the words used by the Parliament. The statement
of objects and reasons for the bill which was subsequently enacted as amending Act 104 of
1976 and the report of the joint select committee, which effected some substantial changes in
the bill as originally drafted, make it abundantly clear that the intention underlying the
introduction of Explanation VIII was that the decisions of the courts of limited jurisdiction
should operate as res judicata in a subsequent suit although the court of limited jurisdiction
may not be competent to try such subsequent suit. With respect, we are unable to agree with the
view expressed by the Division Bench of the Calcutta High Court that by enacting Explanation
VIII the intention of Parliament was only to bring the decisions of courts other than ordinary
civil courts, such as revenue courts, land acquisition courts, insolvency courts etc. within the
purview of S. 11. In our opinion, the object and purpose underlying the introduction of
Explanation VIII was much wider, namely, to render the principle of res judicata fully
effective so that issue heard and finally decided between the parties to an action by any court
competent to decide such issues should not be allowed to be reagitated by such parties or
persons claiming through them in a subsequent litigation.

38 of BSA
Imp
– Decision of court in nature obiter never operates as res judicata. Once you’ve decided that
youre not entertaining the matter, whatever you say will hold no value or operate as res
judicata. SLP - Kanhaiya Ahmed v Kerala 2002, if SLP is dismissed, the court has refused to
 CIVIL PROCEDURE CODE

entertain the discretion of the court, any comments with respect to merits of the matter would
mean nothing. Would have no bearing on any further litigation you try.
– If there is variance between decree and judgment, whatever is written in decree would operate
as res judicata, the decree would prevail over the judgment.
– It is the decision that operates as RJ not the reasoning behind the decision.
– Exparte - if Person A filed suit against B and despite valid delivery of summons and
warnings, B does not show up to court, the court could grant a decision in the absence of B.
You can file an appeal but if it is lost then you cant file Order 9 Rule 13, but if you file Order 9
Rule 13 first then and lose then you can go with appeal. Can RJ apply to writs? Yes - Daryao
case. (Doctrine of merger between opposing decree and appeal, severability of decree, where
decree is not in contravention it prevails, where contravention is there then appeal prevails, this
merger would collectively operate as res judicata.)

Daryao vs UP
 Since Rj is based on public policy it would not apply in civil suits but also to writs.
 Applies to all 4 writs but not habeas corpus because there is an illegality/criminal element
involved (Read Laloo Bhai v Union of India 1981 (2) SCC 427)
 12. Bar to further suit —Where a plantiff is precluded by rules from instituting a further
suit in respect of any particular cause of action, he shall not be entitled to institute a suit
in respect of such cause of action in any Court to which this Code applies.
 For the cause of action if you omitted earlier, you cant sue again if this court of action
could have formed part of initial suit. If initial claim is barred then no need to go into
merits.
 “Suit or issue” – what does issue mean here? – issue is decided by a court finally – one is
barred from raising that issue either in the same case or in a diff case – Competent court – court
of exclusive/limited jurisdictions (competent to decide only one issue e.g. “who can be an
agriculturist”) – that decree cannot operate as res judicata for all further suits because it is not
competent to decide the further suit, but operates as RJ for that particular issue
 O2 R2. Suit to include the whole claim.—(1) Every suit shall include the whole of the claim
which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may
relinquish and portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.—Where a plaintiff omits to sue in respect of, or
intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the
portion so omitted or relinquished.
 O9 R9. Decree against plaintiff by default bars fresh suit.—(1) Where a suit is wholly or partly
dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of
the same cause of action. But he may apply for an order to set the dismissal aside, and if he
satisfies the Court that there was sufficient cause for his non-appearance when the suit was
called on for hearing, the Court shall make an order setting aside the dismissal upon such terms
as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2)
No order shall be made under this rule unless notice of the application has been served on the
opposite party.
 O22 R9. Effect of abatement or dismissal.—(1) Where a suit abates or is dismissed under this
Order, no fresh suit shall be brought on the same cause of action. (2) The plaintiff or the person
claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in
the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal;
 CIVIL PROCEDURE CODE

and if it is proved that he was prevented by any sufficient cause from continuing the suit, the
Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it
thinks fit. (3) The provisions of Section 5 of the 1 [Indian Limitation Act, 1877 (15 of 1877)]
shall apply to applications under sub-rule (2). 2 [Explanation.—Nothing in this rule shall be
construed as barring, in any later suit, a defence based on the facts which constituted the cause
of action in the suit which had abated or had been dismissed under this Order.]
 O23 R1. Withdrawal of suit or abandonment of part of claim.—(1) At any time after the
institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or
abandon a part of his claim: Provided that where the plaintiff is a minor or other person to
whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any
part of the claim shall be abandoned without the leave of the Court

Foreign decrees
S 13 – can RJ be applied when you have a foreign decree? Can bring the foreign decree to the
Indian court’s knowledge and bar it – but there are exceptions where foreign decree does not
act as an RJ bar –

E.g. c) – there is a case where the marriage was dissolved on irretrievable breakdown grounds
by a foreign court at a time when the same was not recognised in India
Fraud - Fraus et jus non gvam cohabitat. Fraud and justice cannot
Fraus et dolus nemini petro cinari debent – fraud and deceit ought to benefit none. AV
Pappaiya Shastri v Gov of AP 2007 4 SCC 221

This extract is taken from A.V. Papayya Sastry v. Govt. of A.P., (2007) 4 SCC 221 :
2007 SCC OnLine SC 317 at page 231
26. Fraud may be defined as an act of deliberate deception with the design of securing some
unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the
loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud.
Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in
personam. The principle of “finality of litigation” cannot be stretched to the extent of an
absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent
litigants.
This extract is taken from A.V. Papayya Sastry v. Govt. of A.P., (2007) 4 SCC 221 :
2007 SCC OnLine SC 317 at page 231
 CIVIL PROCEDURE CODE

22. It is thus settled proposition of law that a judgment, decree or order obtained by playing
fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a
judgment, decree or order—by the first court or by the final court—has to be treated as nullity
by every court, superior or inferior. It can be challenged in any court, at any time, in appeal,
revision, writ or even in collateral proceedings.

While claiming fraud as ground of attack, what needs to be kept in mind is that there must have
been some actual fraud that must be shown through documents, constructive fraud is of no
relevance, fraud must have happened in actuality, cant construct a fraud. Fraud must be
apparent and not latent. If a witness perjures themselves before a foreign court and the decree
holder holds that decree based on that. or the same was later proved, it could still be claimed
that the decree was claimed by fraud.

For recovery of arrears of money,. Indian limitation is three years from the due date but the
foreign court allowed the suit after 15 years, it would not hold in india.
Arbitrator derives sanctity from law, but court derives sanctity from inherent power of the state,
and the decision of the courts have to be put on a higher pedestal because of the comity of
nations.
Creates, declares, assigns, limits, extinguishes - needs to be register.d
This extract is taken from Y. Narasimha Rao v. Y. Venkata Lakshmi , (1991) 3 SCC
451 : 1991 SCC (Cri) 626 at page 462
Married in AP, went to Missouri, filed a Criminal Appeal, got parallel divorce proceedigns in
Missouri and obtained divorce on IBM, used the same before Indian courts claiming res
judicata, while the motion was pending married again in Missouri USA. Bigamy case.

20. From the aforesaid discussion the following rule can be deduced for recognising a
foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as
well as the grounds on which the relief is granted must be in accordance with the matrimonial
law under which the parties are married. The exceptions to this rule may be as follows: (i)
where the matrimonial action is filed in the forum where the respondent is domiciled or
habitually and permanently resides and the relief is granted on a ground available in the
matrimonial law under which the parties are married; (ii) where the respondent voluntarily and
effectively submits to the jurisdiction of the forum as discussed above and contests the claim
which is based on a ground available under the matrimonial law under which the parties are
married; (iii) where the respondent consents to the grant of the relief although the jurisdiction
of the forum is not in accordance with the provisions of the matrimonial law of the parties.
This extract is taken from Y. Narasimha Rao v. Y. Venkata Lakshmi, (1991) 3 SCC 451 :
1991 SCC (Cri) 626 at page 463
21. The aforesaid rule with its stated exceptions has the merit of being just and equitable. It
does no injustice to any of the parties. The parties do and ought to know their rights and
obligations when they marry under a particular law. They cannot be heard to make a grievance
about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an
advantage of rescuing the institution of marriage from the uncertain maze of the rules of the
Private International Law of the different countries with regard to jurisdiction and merits based
variously on domicile, nationality, residence — permanent or temporary or ad hoc, forum,
proper law etc. and ensuring certainty in the most vital field of national life and conformity
with public policy. The rule further takes account of the needs of modern life and makes due
allowance to accommodate them. Above all, it gives protection to women, the most vulnerable
section of our society, whatever the strata to which they may belong. In particular it frees them
from the bondage of the tyrannical and servile rule that wife's domicile follows that of her
 CIVIL PROCEDURE CODE

husband and that it is the husband's domiciliary law which determines the jurisdiction and
judges the merits of the case.

There are some reciprocating territories (S 44A) – this only matters for execution, not RJ
Read 78(6) and 86 of IEA. 44A CPC
Bharat Nidhi
Gurdyal Singh v Faridkot 1895 22 ILR -Person misappropriated Rs 60000 back then which was
huge Exparte decree obtained in absentia in intl court could not be operated as foreign decree.
It cant operate as res judicata.

BADAT v EITC AIR 1964 SC 538

Law that applies on the contract is usually the place where the contract was entered - lex loci
contractus. If there is a foreign company, and it enters into a contract with an indian company,
contract is entered into in Surat, signed by both parties sealed and registered, there is an
arbitration agreement in case of dispute, sole arbitrator, arbitrator appointed in Nepal, award is
rendered in Nepal, Arbitrator uses the contract law of Nepal while interpreting some terms of
the contract. If the law is not indian law, whatever award the arbitrator gives would be a
nullity.

This extract is taken from Bharat Nidhi Ltd. v. Megh Raj Mahajan , 1967 SCC
OnLine Del 2 : (1967) 3 DLT 140 : AIR 1967 Del 22 : PLR (1967) 69 Del 88 at page 142

A recovery was filed by Bharant Bank ltd against Megh Raj Mahajan for so and so amount for
being the debit balance. On 20th December 1949, senior subordinate judge of Sialkot decreed
the suit and presented the suit for payment. Decree was sought to be enforced in india,
argument by Mahajan – I was not the native of Pakistan either on the date of the institution of
suit or on the date when the suit was decreed against me. Bharat Nidhi – although he was not
native summons were duly served, therefore the exparte decree must be operative. Trial court
gave the exparte decree because the notice/summon were duly served. Were the decree and
judgemnrt a nullity being passed in a foreign court without jurisidiction.

6. There is admittedy no rebuttal to this evidence of the defendant and I have no hesitation in
accepting the statement. It would follow that the defendant was resident of Sialkot till
September 1947, he shifted in September 1947 to the territories comprised in India after 15th
August, 1947, became a permanent domicile and resident thereof with no intention of going
back to Pakistan, and never went to Pakistan after September 1947. Consequently, both on the
date of the institution of the suit in Sialkot and on the date of the judgment the defendant was a
domicile and resident of India. Under Article 5 of the Constitution as well, which according to
the decision of their Lordships of the Supreme Court in Mohamed Reza Debslani v. The State
of Bombay [A.I.R. 1966 S.C. 1436.] , came into force on 21-11-1949, read with section 3(28)
of the General Clauses, Act, the defendant would be a citizen of India. The defendant not
 CIVIL PROCEDURE CODE

having submitted to the jurisdiction of the Sialkot Court in a personal action against him a
decree pronounced in absentem would be an absolute nullity. This has been so laid down by the
Judicial Committee in Gurdyal Singh v. Raja of Faridkot [I. L. R. 22 Cal. 222.] . Mr.
Yogeshwar Dayal relying on the above-quoted ‘observation in the decree passed by the Sialkot
Court about the defendant having been duly served says that it must be presumed that the
defendant was served with the sammons in the Sialkot suit when physically present in Pakistan
and such presence was enough to render the foreign decree and the judgment valid and binding
on the defendant. Relying on the Conflict of Laws by Graveson, Fifth Edition, page 543, and
Cheshfire's Private International Law, Seventh Edition, page 547, Mr. Yogeshwar Dayal
contends that a foreign judgment obtained against a non-resident foreigner can be enforced if
the defendant is present within the jurisdiction at the date of the institution of the proceedings
even though his presence may be for only a short time. It is not necessary to resolve this
controversy because the evidence of the defendant as D.W.5 clearly establishs that he never
visited Pakistan after September 1947. As I have said earlier, the observation in the Sialkot
decree would be justified even if the defendant had been served in any territory outside
Pakistan. From the evidence it must be held that the defendant was neither a national, nor
domicile, nor a citizen nor a resident of Pakistan either on the date of the commencement of
the suit or on the date of the decree. He did not submit to the jurisdiction of the Pakistan
Courts and he was not served while present in Pakistan. In these circumstances, the decree
must be held to be a nullity not enforceable in India under section 13 of the Civil Procedure
Code. This appeal must, therefore, fail and is dismissed but in the circumstances of the case
the parties are left to bear their own costs.

Badat and Co. v. East India Trading Co., 1963 SCC OnLine SC 9

Arbitration agreement and the decision was to be final. Turmeric and other spices to be
supplied by Badat to EIT, matter went to arbiteation, conducted at NY, decision of arbitrator
sought to be implemented in india by Badat. For implementing a decision of the foreign court it
has to be certified by Indian consulate, although presumption can be drawn until it is certified.
This proposition was held in this particular case. Second aspect – Foreign Arbitral award, not a
decree of the foreign court. In india ofc it would be disputed on the basis of it beign not a
decree, went to the SC of NY and got the award finalized and certified with the seal of SC of
NY and those proceedings were exparte, when it was challenged before the Indian courts in
Bombay, five grounds were listed by court ; in case of suit based on foreign arbitral awatrd

This extract is taken from Badat and Co. v. East India Trading Co., 1963 SCC OnLine SC 9 :
(1964) 4 SCR 19 : (1965) 1 SCJ 747 : AIR 1964 SC 538

40. Now, when a plaintiff sues upon a foreign award what he in fact does is to ask the court to
pass a judgment in his favour for the amount stated in the award only after proving five facts:

(1) that there was a contract between the parties whereunder disputes between them could be
referred to arbitration to a tribunal in a foreign country;

(2) that the award is in accordance with the terms of the agreement;
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(3) that the award is valid according to the law governing arbitration proceedings obtaining in
the country where the award was made;

(4) that it was final according to the law of that country; and

(5) that it was a subsisting award at the date of suit.

This extract is taken from Badat and Co. v. East India Trading Co., 1963 SCC OnLine
SC 9 : (1964) 4 SCR 19 : (1965) 1 SCJ 747 : AIR 1964 SC 538

44. It would be desirable at this stage to compare foreign judgments with foreign awards and
bear in mind the difference between then. No doubt, both of them create new obligations. The
judgment of a foreign sovereign is a command of that sovereign which has to be obeyed within
the territorial limits of that sovereign's jurisdiction. On the principles of comity it is, therefore,
accorded international recognition provided it fulfils, certain basic requirements. A foreign
award, on the other hand, which is founded on a contract of the parties and is not given the
status of a judgment in the country in which it is made, cannot claim the same international
status as the act of a foreign sovereign. As pointed out by Schmitthoff on the English Conflict
of Laws, at p. 489:

“It follows that unless the plaintiff can satisfy the English court that the award is treated, in the
country where it was made, like a judgment of the court he should sue on the original cause of
action, but even in that case he should plead the award because it might in, appropriate cases,
be regarded by the English courts as conclusive between the parties.”

These observations would perhaps now stand slightly modified by the view taken by the court
of appeal in the Union Nationale case [1934 36 BLR 844, 853] in the sense that even an award
which has not obtained the status of a judgment in the country in which it was rendered but
which possesses an essential attribute of a judgment, that is finality, it could be sued upon in
another country.

Inherent judicial power vests in a court, an act of the sovereign. Award of the arbitrator needs
to be finalized by a foreign court and consulate.

14. Presumption as to foreign judgments.—The Court shall presume upon the production of
any document purporting (Claimed to be) to be a certified copy of a foreign judgment, that such
judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on
the record; but such presumption may be displaced by proving want of jurisdiction.
 CIVIL PROCEDURE CODE

Contrast with 86 IEA

86. Presumption as to certified copies of foreign judicial records. The Court may presume that
any document purporting to be a certified copy of any judicial record of 7 [ 8 * * * any country
not forming part of India or] of Her Majesty’s Dominions is genuine and accurate, if the
document purports to be certified in any manner which is certified by any representative of 9 *
* * the 3 [Central Government] 10[in or for] 11[such country] to be the manner commonly in
use in 12[that country] for the certification of copies of judicial records. 13[An officer who,
with respect to 14*** any territory or place not forming part of 15[India or] Her Majesty’s
Dominions, is a Political Agent there for, as defined in section 3, 16[clause (43)], of the
General Clauses Act, 1897 (10 of 1897), shall, for the purposes of this section, be deemed to
be a representative of the 1 [Central Government] 2 [in and for the country] comprising that
territory or place].

PLACE OF SUING
S. 15 Court in which suits to be instituted.—Every suit shall be instituted in the Court of the
lowest grade competent to try it

Suit – always instituted

Appeal – preferred (from something that exists)
Application – made S.3 of limitation act
Cant sue outside the territory of India. If Ambani has properties in Mexico, then invoke
jurisdiction of Mexico.
Small causes court having jurisdiction upto 10000 rs, you have case of 7000, you can ofcourse
go to civil judge but 15 says you have to go to small causes court.
Since there is a parallel jurisdiction of civil court then its decree is not non est but is valid.
Lower courts are more accessible geographically than higher courts, if you allow plaintiff
(dominus litis – chooses the forum and valuation), to approach higher court in the first instance,
there is a chance that a poor litigant who cant approach the high court would not be able to
defend themselves in the higher court.
It is an imperative duty on high court to return the plaint if the lower court wasn’t approached
due to the right reasons?

Why plaintiff as dominus litis – because plaintiff decides (i) valuation, (ii) forum – Kiran
Singh vs Chaman Paswan AIR 1954 SC 340 – Jurisdiction. If as a plaintiff, I say my
dispute is worth Rs. 10000, but in actuality the court passes the decree. 0-3 Lakhs CI 3-1 cr C2,
1-10 cr C3 and then above 10 cr C4 and the hierarchy of courts is decided accordingly (suits
valuation act with cpc). You relinquish some part of the claim to bring it in the jursidciton of
c1 (2.99 lakhs), the court can still grant relief. Pecuniary jurisdiction is only relevant for filing
of suit, court can always grant whatever relief is due to you. Valuation is only there for
 CIVIL PROCEDURE CODE

isntituton of suit. Jurisdiction only has value until primary stage of jurisdiction, once the court
has rightly invoked its jurisdiction, it holds no value.
What about deliberate undervaluation to save stamp duty? The decree would be valid because it
could be cured (Curable defect)

S.16 Suits to be instituted where subject-matter situate.—Subject to the pecuniary or other

limitations prescribed by any law, suits— (a) for the recovery of immovable property with or
without rent or profits, (b) for the partition of immovable property, (c) for foreclosure, sale or
redemption in the case of a mortgage of or charge upon immovable property, (d) or the
determination of any other right to or interest in immovable property, (e) for compensation for
wrong to immovable property, (f) for the recovery of movable property actually under distraint
or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the
property is situate: Provided that a suit to obtain relief respecting, or compensation for wrong
to, immovable property held by or on behalf of the defendant may, where the relief sought can
be entirely obtained through his personal obedience, be instituted either in the Court within the
local limits of whose jurisdiction the property is situate, or in the Court within the local limits
of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or
personally works for gain. Explanation.—In this section “property” means property situate in 1
[India]

Immovable, movable, compensation for wrongs or tortious, small causes

17. Suits for immovable property situate within jurisdiction of different Courts.—Where a suit
is to obtain relief respecting, or compensation for wrong to, immovable property situate within
the jurisdiction of different Courts, the suit may be instituted in any Court within the local
limits of whose jurisdiction any portion of the property is situate : Provided that, in respect of
the value of the subject-matter of the suit, the entire claim is cognizable by such Court.
Prevent multiplicity of cases, ‘any’ not ‘all’ if you have chosen one court of one state you cant
go to court of other state.

18. Place of Institution of suit where local limits of jurisdiction of Courts are uncertain.— (1)
Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or
more Courts, any immovable property is situate, any one of those Courts may, if satisfied that
there is ground for the alleged uncertainty, record a statement to that effect and thereupon
proceed to entertain and dispose of any suit relating to that property, and its decree in the suit
shall have the same effect as if the property were situate within the local limits of its
jurisdiction: Provided that the suit is one with respect to which the Court is competent as
regards the nature and value of the suit to exercise jurisdiction. (2) Where a statement has not
been recorded under sub-section (1), and an objection is taken before an Appellate or
Revisional Court that a decree or order in a suit relating to such property was made by a Court
not having jurisdiction where the property is situate, the Appellate or Revisional Court shall not
allow the objection unless in its opinion there was, at the time of the institution of the suit, no
reasonable ground for uncertainty as to the court having jurisdiction with respect thereto and
there has been a consequent failure of justice.
 CIVIL PROCEDURE CODE

Meanign – if local limit is uncertain, and the court is sure that it falls in their jurisdiction,
record a statement and proceed

19. Suits for compensation for wrongs to person or movables.—Where a suit is for
compensation for wrong done to the person or to movable property, if the wrong was done
within the local limits of the jurisdiction of one Court and the defendant resides, or carries on
business, or personally works for gain, within the local limits of the jurisdiction of another
Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.
Illustrations (a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in
Delhi. (b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A
either in Calcutta or in Delhi.
Mobilia Sequntur Personam (movable follows the person)
Where cause of action, you can file there and you can file where the defendant is arising and
carrying out business.
Provides cardinal rule for movable property and actionable claims. You will have to follow the
person.

AIR 1984 SC 1264 Union Of India And Others vs Oswal Woollen Mills Ltd.
Consignment by oswal woollen mill of beef tallow and it reached Calcutta. Clause 8b of import
control order. Oswal WM filed a WP against the order before Calcutta HC and obtained relief
against order passed by UOI. UOI was adamant on confiscating items, and did not obey so
OWM went to CHC to obtain contempt order. Against contempt order and original order UOI
comes with SLP in SC, they say OWM are abusing jurisdiction because they are in Ludhiana
and we are in Delhi and part of consignment is in Calcutta. SC accepted this contention.
“We have already mentioned that the High Court was not right in granting interim relief in
the terms in which it had done so. We, therefore, vacate the interim order dated November 22,
1983 made by the Calcutta High Court. It has been pointed out to us that the Chief Controller
of Imports & Exports has himself issued a Public Notice dated 1st September, 1983 permitting
re-shipment/re-export of import consignment which could not be cleared consequent upon the
Ministry of Commerce Import Trade Control order No 27/83 dated the 24th August, 1983. The
Public Notice empowers the customs authority to allow re-shipment/re-export having regard to
the extent to which foreign exchange spent on import will be earned back and subject to such
other conditions relating thereto as the Customs authority may impose. We wish to make it
clear that the vacating of the interim order will not disentitle the writ petitioners from seeking
and taking advantage of the public notice dated September 1, 1983.”

Just because some part of cause of action arose at some place, cant manoeuver cause of action
We do not desire to probe further into the question whether the writ petition was filed by design
or accident in the Calcutta High Court when the office of the Company is in the State of Punjab
and all the principal respondents are in Delhi. But we do feel disturbed that such writ petitions
are often deliberately filed in distant High Courts, as part of a manoeuvre in a legal battle, so
 CIVIL PROCEDURE CODE

as to render it difficult for the officials at Delhi to move applications to vacate stay where it
becomes necessary to file such applications. More about this later.
20. Other suits to be instituted where defendants reside or cause of action arises.—Subject to
the limitations aforesaid, every suit shall be instituted in 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 works for
gain, as aforesaid, acquiesce in such institution; or (c) The cause of action, wholly or in part,
arises. 1* * * * * 2 [Explanation].—A corporation shall be deemed to carry on business at its
sole or principal office in 3 [India] or, in respect of any cause of action arising at any place
where it has also a subordinate office, at such place. Illustrations (a) A is a tradesman in
Calcutta, B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and
requests A to deliver them to the East Indian Railway Company. A delivers the goods
accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the
cause of action has arisen, or in Delhi, where B carries on business. (b) A resides at Simla, B at
Calcutta and C at Delhi. A, B and C being together at Benaras, B and C make a joint
promissory note payable on demand, and deliver it to A. A may sue B and C at Benaras, where
the cause of action arose. He may also sue them at Calcutta, where B resides, or at Delhi, where
C resides but in each of these cases, if the non-resident defendant objects, the suit cannot
proceed without the leave of the Court.
If any of the matters are not falling in 16 17 18 19 then to be dealt as per 20,

Begum Sabiha Sultan vs Nawab Mohd Mansur Ali Khan and ors AIR 2007
SUPREME COURT 1636
Begum Sabiha against her brother Mansur Ali khan Pataudi. Mansur Ali khan had 3 other
siblings and all of them were sisters. The whole estate of the Pataudi estate belonged to his wife
– Begum Meher. Facts are that it was alleged that in 1995, sometime before her death his wife
(of father of resp) made an oral will under which she allotted portions of some properties to her
son Mansur Ali Khan and some miniscule portion was given to Sabiha according to oral will
dated 01.01.1995, made by her mother. She approached the courts in delhi and not in Haryana
since DHC has an original jurisdiction. Approached DHC and instituted civil suit against her
brother and 2 sisters and some other relatives who got some estate as per will. Prayer – pass a
decree of declaration that it never happened.
Related to 16(b) (d), proviso to 16 and S20.
Sabiha said they have jurisdiction due to 16 read with 20. Respondents want it to be decided
solely on the basis of 16 (b) and (d)
S.16 Suits to be instituted where subject-matter situate.—Subject to the pecuniary or other
limitations prescribed by any law, suits— (a) for the recovery of immovable property with or
without rent or profits, (b) for the partition of immovable property, (c) for foreclosure, sale or
redemption in the case of a mortgage of or charge upon immovable property, (d) or the
determination of any other right to or interest in immovable property, (e) for compensation for
 CIVIL PROCEDURE CODE

wrong to immovable property, (f) for the recovery of movable property actually under distraint
or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the
property is situate: Provided that a suit to obtain relief respecting, or compensation for wrong
to, immovable property held by or on behalf of the defendant may, where the relief sought can
be entirely obtained through his personal obedience, be instituted either in the Court within the
local limits of whose jurisdiction the property is situate, or in the Court within the local limits
of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or
personally works for gain. Explanation.—In this section “property” means property situate in 1
[India]
Petitioners argued that the oral will was recited in delhi which gives them cause of action in
delhi as the main issue is with regards to the will. Defendants argued that the case is squarely
covered by 16(b) and (d) related to immovable property and partition of immovable property
and the core prayer Sabiha is asking is for partition, and if 16 has its application 20 wont come
into picture as 20 is residuary. 16 would take it out of jurisdiction of DHC. Petitioners want the
proviso to 16 to be read. If any of the matters related to IP could be resolved by the personal
obedience of defendant only, then the suit need to be filed in the region of immovable property
but where the defendant resides. Defendants are saying just personal obedience wont be enough
as even if they agree the properties are in ggn.
5. The defendants raised an objection to the jurisdiction of the trial court. They pleaded that
the main relief sought in the plaint was for partition of the properties situate in Gurgaon, not
falling within the jurisdiction of Delhi court and the declarations sought for are also related to
the said properties and in the light of Section 16(b)and (d) of the Code of Civil Procedure (for
short 'the Code'), the jurisdiction to entertain the suit was with the concerned court in the State
of Haryana and hence the plaint was liable to be rejected. On their behalf, the following
averment in paragraph 3(d) of the plaint was emphasised.
"Present suit is being confined to the properties situate at Village Patudi, Gurgaon (Haryana),
left behind by the mother who had purchased these properties. So far as the other properties
either left behind by their mother, father or other relatives are concerned, the Plaintiff is
reserving her valuable rights to claim in due course, if need be."
The description of the suit properties set out in paragraph 3(h) was also relied on.
7. The learned Single Judge, the trial Judge, on a reading of the plaint, came to the conclusion
that the reliefs claimed in the plaint fell within the purview of Section 16(b) and (d) of the Code
and that the proviso to Section 16 had no application.
Even HC agreed as to them not having jurisdiction and they should have then gone to district
court in Pataudi.
Single judge offered O7 R10A but not accepted by Petitioner.

The Division Bench reiterated that the suit was essentially and in substance for
partition and since the property lay beyond the jurisdiction of the trial court, the suit could not
be brought within the jurisdiction of the trial court by exhibiting some ingenuity in introducing
a plea regarding an alleged oral Will said to have been brought into existence in Delhi, within
the jurisdiction of the court. The plaint had to be scrutinised for the real relief sought for
therein and so viewed, the trial judge was right in returning the plaint for presentation to the
proper court. This decision of the Division Bench is in challenge before us.
 CIVIL PROCEDURE CODE

10. There is no doubt that at the stage of consideration of the return of the plaint under Order
VII Rule 10 of the Code, what is to be looked into is the plaint and the averments therein. At the
same time, it is also necessary to read the plaint in a meaningful manner to find out the real
intention behind the suit. In Messrs Moolji Jaitha & Co. Vs. The Khandesh Spinning &
Weaving Mills Co. Ltd. [A.I.R. 1950 Federal Court 83], the Federal Court observed that:

"The nature of the suit and its purpose have to be determined by reading the plaint as a
whole."
It was further observed:
"The inclusion or absence of a prayer is not decisive of the true nature of the suit, nor is the
order in which the prayers are arrayed in the plaint. The substance or object of the suit has to
be gathered from the averments made in the plaint and on which the reliefs asked in the
prayers are based."
It was further observed:
"It must be borne in mind that the function of a pleading is only to state material facts and it is
for the court to determine the legal result of those facts and to mould the relief in accordance
with that result."
This position was reiterated by this Court in T. Arivandandam Vs. T.V. Satyapal & Anr.
[(1978) 1 S.C.R. 742] by stating that what was called for was a meaningful --- not formal ---
reading of the plaint and any illusion created by clever drafting of the plaint should be buried
then and there. In Official Trustee, West Bengal & Ors. Vs. Sachindra Nath Chatterjee & Anr.
[(1969) 3 S.C.R. 92], this Court approving the statement of the law by Mukherjee Acting Chief
Justice in Hirday Nath Roy Vs. Ramchandra Barna Sarma, [I.L.R. 48 Calcutta 138 F.B.] held:

"Before a court can be held to have jurisdiction to decide a particular matter it must not only
have jurisdiction to try the suit brought but must also have the authority to pass the orders
sought for. It is not sufficient that it has some jurisdiction in relation to the subject- matter of
the suit. Its jurisdiction must include the power to hear and decide the questions at issue, the
authority to hear and decide the particular controversy that has arisen between the parties."
11. Reading the plaint as a whole in this case, there cannot be much doubt that the suit is
essentially in relation to the relief of partition and declaration in respect of the properties
situate in Village Pataudi, Gurgaon, outside the jurisdiction of court at Delhi. It is no doubt
true that there is an averment that an alleged oral will said to have been made at Delhi by
the deceased mother and presumably relied on by defendants 1 and 2 was never made. But
on our part, we fail to understand the need for claiming such a negative declaration. After
all, the plaintiff can sue for partition, rendition of accounts and for setting aside the
alienation effected by defendant No. 2 without the junction of the plaintiff on a claim that
the plaintiff is also one of the heirs of the deceased mother. If in such a suit, the defendants
propound any oral will as excluding the plaintiff from inheritance, the burden would be on
them to establish the making of such an oral will and the validity thereof. The negative
declaration sought for by the plaintiff appears to us to be totally superfluous and
unnecessary in the circumstances of the case. It may be noted that it is not the case of the
plaintiff that an oral will was made at Delhi. It is the case of the plaintiff that no oral will
 CIVIL PROCEDURE CODE

was made at Delhi. It is debatable whether in such a situation it can be said that any cause of
action arose at all within the jurisdiction of the court at Delhi. On a reading of the plaint, the
trial judge and the Division Bench have come to the conclusion that in substance the suit
was one relating to immovable property situate outside the jurisdiction of the trial court in
Delhi and hence the plaint had been presented in a court having no jurisdiction to entertain
the suit. We are inclined to agree with the said understanding of the plaint by the trial judge
and Division Bench, on a reading of the plaint as a whole.
12. On a reading of the plaint as a whole, it is clear, as we have indicated above, that the suit
is one which comes within the purview of Section 16(b) and (d) of the Code. If a suit comes
within Section 16 of the Code, it has been held by this Court in Harshad Chiman Lal Modi
Vs. DLF Universal Ltd. & Anr. [(2005) 7 S.C.C. 791] that Section 20 of the Code cannot
have application in view of the opening words of Section 20 "subject to the limitations
aforesaid". This Court has also held that the proviso to Section 16 would apply only if the
relief sought could entirely be obtained by personal obedience of the defendant. The relief of
partition, accounting and declaration of invalidity of the sale executed in respect of
immovable property situate in Village Pataudi, Gurgaon, could not entirely be obtained by a
personal obedience to the decree by the defendants in the suit. We are in respectful
agreement with the view expressed in the above decision. Applying the test laid down therein,
it is clear that the present suit could not be brought within the purview of the proviso to
Section 16 of the Code or entertained relying on Section 20 of the Code on the basis that
three out of the five defendants are residing within the jurisdiction of the court at Delhi.

13. Thus, on the whole, we are satisfied that the trial court was right in returning the plaint
to the plaintiff for being presented to the proper court. We therefore affirm the order
returning the plaint and dismiss this appeal. In the circumstances, we make no order as to
costs.

Go through 21-25.
S.21 Objections to jurisdiction – at what stage – execution – Hira Lal v Kanjinath

Section 21: Objections to Jurisdiction

1. Objection to the Place of Suing: An appellate or revisional court will not consider objections
about where a case was filed unless:
o The objection was raised at the first possible opportunity in the trial court, and
o If issues were framed, the objection was made at or before the time of framing, and
o The objection caused a failure of justice.
2. Objection to Pecuniary Jurisdiction: An appellate or revisional court will not consider
objections about a court's monetary limits unless:
o The objection was raised at the first possible opportunity in the trial court, and
o If issues were framed, the objection was made at or before the time of framing, and
o The objection caused a failure of justice.
3. Objection to Local Jurisdiction of the Executing Court: An appellate or revisional court will
not consider objections about the local limits of an executing court’s authority unless:
o The objection was raised at the first possible opportunity in the executing court, and
 CIVIL PROCEDURE CODE

o The objection caused a failure of justice.

Ex dolo malo non auditor action, no action originates from a fraud. Incase you want to waive
the jurisdiction of the court or acquiesce or give consent towards the non jurisdiction, you then
cant raise objection towards jurisdiction on technical grounds later on.
Waiver of objection to jurisdiction. It is a fundamental rule that a judgment of a Court without
jurisdiction is a nullity (z). "Where by reason of any limitation imposed by statute, or
commission, a Court is without jurisdiction to entertain any particular action or matter, neither
the acquiescence nor the express consent of the parties can confer jurisdiction upon the Court
nor can consent give a Court jurisdiction if a condition which goes to the jurisdiction has not
been performed or fulfilled. Where a limited Court takes upon itself to exercise a jurisdiction it
does not possess, its decision amounts to nothing."
If the defendant or anybody has any objection with respect to TJ and PJ, then it has to be raised
as soon as possible and not at a stage beyond the jurisdiction settlement of issues. s. 21 only
applies to territorial jurisdiction and pecuniary jurisdiction. The issue of jurisdiction can be
both, a pure question of law since the jurisdiction is laid down by the law as well as a mixed
issue of both facts and law. The general principle of law is that there can be no waiver of rights
in situations of pure question of law. Since issues pertaining to subject matter jurisdiction are a
pure question of law, the time line provided under s. 21 is not applicable to such issues because
they go to the roots of the issue.
If a person raises an objection under s. 21 and the same is rejected by the court, then the court
will go ahead with the hearing and reach a decision. If the person is unhappy with the same,
then they cannot raise the same issue in an appeal to a higher court because of the bar imposed
by s. 21 on objections on the grounds of TJ and PJ. However, if an objection pertaining to
subject-matter issue was not raised initially, then the same can be raised in the appeal because it
is a pure question of law and it cannot be waived off. Additionally, it also affects the inherent
jurisdiction of the court which decided the matter. Hence, SMJ is not covered by s. 21 and can
be raised at the appellate stage.

Relevant extracts from Kiran Singh v Chaman Paswan AIR 1954 SC 340

The learned Judges held following the decision of a Full -Bench of that Court in Ramdeo Singh
v. Raj Narain (1), that the appeal to the District Court was competent, and that its decision
could be reversed only if the appellants could establish prejudice on the merits, and holding
that on a consideration of the evidence no such prejudice had been shown, they dismissed the
second appeal. The matter now comes before us on special leave. It will be noticed that the
proper Court to try the present action would be the Subordinate Court, Monghyr, whether the
valuation of the suit was Rs. 2,950 as given in the plaint, or Rs. 9,880 as determined by the
High Court; but it will make a difference in the forum to which the appeal from its judgment
would lie, whether the one valuation or the other is to be accepted as the deciding factor. On
the plaint valuation, the appeal would lie to the District Court; on the valuation as determined
by the High Court, it is that Court that would be competent to entertain the appeal. The
contention of the appellants is that as on the valuation of the suit as ultimately determined, the
District Court was not competent to entertain the appeal, the decree and judgment passed by
that Court must be treated as a nullity, that the High Court should have accordingly heard S.A.
No. 1152 of 1946 not as a second appeal with its limitations under section 100 of the Civil
Procedure Code but as a first appeal against the judgment and decree of the Subordinate
Judge, Monghyr, and that the appellants were entitled to a full heating as well on questions of
 CIVIL PROCEDURE CODE

fact as of law. And alternatively, it is contended that even if the decree and judgment of the
District Court on appeal are not to be treated as a nullity and the matter is to be dealt with
under section 11 of the Suits Valuation Act, the appellants had suffered "Prejudice" within the
meaning of that section, in that their appeal against the judgment of the Subordinate Judge was
heard not by the High Court but by a Court of inferior jurisdiction, viz., the District Court of
Monghyr, and that its decree was therefore liable to be set aside, and the appeal heard by the
High Court on the merits, as a first appeal.
It is a fundamental principle well established that a decree passed by a Court without
jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is
sought to be enforced or relied upon, even at the stage of execution and even in collateral
proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in
respect of the subject-matter of the action, strikes at the very authority of the Court to pass any
decree, and such a defect cannot be cured even by consent of parties. If the question now under
consideration fell to be' determined only on the application of general principles governing the
matter, there can be no doubt that the District Court of Monghyr was coram non judice, and
that its judgment and decree would be nullities. The question is what is the effect of section 11
of the Suits Valuation Act on this position.
It is the same principle that has been adopted in section 11 of the Suits Valuation Act with
reference to pecuniary jurisdiction. The policy underlying sections 21 and 99 of the Civil
Procedure Code and section 11 of the Suits Valuation Act is the same, namely, that when a
case had been tried by a Court on the merits and judgment rendered, it should not be liable to
be reversed purely on technical grounds, unless it had resulted in failure of justice, and the
policy of the Legislature has been to treat objections to jurisdiction both territorial and
pecuniary as technical and not open to consideration by an appellate Court, unless there has
been a prejudice on the merits, The contention of the appellants, therefore, that the decree and
judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained
under section 11 of the Suits Valuation Act.

Go through sections 22-25.

S. 9
All courts to try all suits necessarily of civil nature unless expressly barred (legislations with an
ouster clause – tribunal creating legislation) and impliedly barred (by principles like res
judicata)
Civil suit – if a particular suit to a question involving question of religion or caste or political
question it would not be a suit of civil nature, where the principal question is based on this
aspect. But for deciding a legal question (with regards to the rightful successor to a hereditary
office – office of a mahant) and incidentally the question involves a question of religion or
politics it would not ipso facto make the suit of not civil nature, irrespective of the religious
question involved because that is not the principal question involved. How to gather the
principal question – plaint, prayers, cause of action in the plaint, some suit might inter alia
involve multiple principal questions and the court will be at liberty to entertain only the civil
nature question and not entertain caste or political questions.
 CIVIL PROCEDURE CODE

Word in s.9 is civil ‘nature’ and not civil proceeding. SC defined nature – fundamental quality
of a person, identity or sort of the character – PMA Metropolitan v Moran Marthoma AIR 1995
SC 2001. 1995 SCR 4 SCC 286 pg 318-319,

This extract is taken from Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma,
1995 Supp (4) SCC 286 at page 318
28. One of the basic principles of law is that every right has a remedy. Ubi jus ibi remediem is the
well-know maxim. Every civil suit is cognizable unless it is barred, “there is an inherent right
in every person to bring a suit of a civil nature and unless the suit is barred by statute one may,
at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous the
claim, that the law confers no such right to sue” Ganga Bai v. Vijay Kumar [(1974) 2 SCC
393 : AIR 1974 SC 1126] . The expansive nature of the section is demonstrated by use of
phraseology both positive and negative. The earlier part opens the door widely and latter
debars entry to only those which are expressly or impliedly barred. The two explanations, one
existing from inception and latter added in 1976 bring out clearly the legislative intention of
extending operation of the section to such religious matters where right to property or office is
involved irrespective of whether any fee is attached to the office or not. The language used is
simple but explicit and clear. It is structured on the basic principle of a civilised jurisprudence
that absence of machinery for enforcement of right renders it nugatory. The heading which is
normally key to the section brings out unequivocally that all civil suits are cognizable unless
barred. What is meant by it is explained further by widening the ambit of the section by use of
the word ‘shall’ and the expression “all suits of a civil nature” unless “expressly or impliedly
barred”.
This extract is taken from Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, 1995 Supp
(4) SCC 286 at page 318
29. Each word and expression casts an obligation on the court to exercise jurisdiction for
enforcement of right. The word ‘shall’ makes it mandatory. No court can refuse to entertain a
suit if it is of description mentioned in the section. That is amplified by use of expression “all
suits of civil nature”. The word ‘civil’ according to dictionary means “relating to the citizen as
an individual; civil rights”. In Black's Law Dictionary it is defined as “relating to private
rights and remedies sought by civil actions as contrasted with criminal proceedings”. In law it
is understood as an antonym of criminal. Historically the two broad classifications were civil
and criminal. Revenue, tax and company etc. were added to it later. But they too pertain to the
larger family of ‘civil’. There is thus no doubt about the width of the word ‘civil’. Its width has
been stretched further by using the word ‘nature’ along with it. That is even those suits are
cognizable which are not only civil but are even of civil nature. In Article 133 of the
Constitution an appeal lies to this Court against any judgment, decree or order in a “civil
proceeding”. This expression came up for construction in S.A.L. Narayan Row v. Ishwarlal
Bhagwandas [AIR 1965 SC 1818 : (1966) 1 SCR 190] . The Constitution Bench held “a
proceedings for relief against infringement of civil right of a person is a civil proceedings”.
In Arbind Kumar Singh v. Nand Kishore Prasad [AIR 1968 SC 1227 : (1968) 3 SCR 322] it
was held “to extend to all proceedings which directly affect civil rights”. The dictionary
meaning of the word ‘proceedings’ is “the institution of a legal action, any step taken in a
legal action”. In Black's Law Dictionary it is explained as:
“In a general sense, the form and manner of conducting juridical business before a court or judicial
officer. Regular and orderly progress in form of law, including all possible steps in an action
 CIVIL PROCEDURE CODE

from its commencement to the execution of judgment. Term also refers to administrative
proceedings before agencies, tribunals, bureaus or the like.”
The word ‘nature’ has been defined as “the fundamental qualities of a person or thing; identity or
essential character; sort; kind; character”. It is thus wider in content. The word ‘civil nature’
is wider than the word “civil proceeding”. The section would, therefore, be available in every
case where the dispute has the characteristic of affecting one's rights which are not only civil
but of civil nature.
Civil dispute is only wrt legislative backing.
In case the question is purely political, caste without any relation to a civil right.

Plaintiff is buyer, defendant seller. Specific performance suit of agricultural land, defendant
disputes the suit by saying that the plaintiff is not agriculturalist, and secondly that the civil
court has no jurisdiction, S.70 and 85A tenancy act barred both respectively. Plaintiff produced
a certificate given to him by mamlatdar, that he was an agriculturalist because he sought certain
land as agricultural labour from past few years. This was rejected by the civil court, going
against 85A. Argument – that the case is barred by 85A was upheld by trial and high court and
the appeal went to SC. Bombay Tenancy and Agricultural Lands Act, 1948 ('Tenancy Act')
70 – made mamlatdar the authority to decide agriculturalist.
85A – took away jurisdiction of civil court.
Case isn’t about whether plaintiff is agriculturalist or not, the question is whether the suit of
specific performance
Gundaji paras -
Section 85 bars jurisdiction of the civil Courts to decide certain issues and s. 85A provides for
reference of issues required to be decided under the Tenancy Act to the competent authority set
up under the Tenancy Act. They are very material for decision of the point herein raised and
they may be reproduced in extenso:

"85. (1) No Civil Court shall have jurisdiction to settle, decide or deal with any question
(including a question whether a person is or was at any time in the past a tenant and whether
any such tenant is or should be deemed to have purchased from his landlord the land held by
him) which is by or under this Act required to be settled, decided or dealt with by the
Mamlatdar or Tribunal, a Manager, the Collector or the Maharashtra Revenue Tribunal in
appeal or revision or the State Government in exercise of their powers of control.
(2) No order of the Mamlatdar, the Tribunal, the Collector or the Maharashtra Revenue
Tribunal or the State Government made under this Act shall be questioned in any Civil or
Criminal Court.
Explanation-For the purposes of this Section a Civil Court shall include a Mamlatdar's Court
constituted under the Mamlatdars' Courts Act. 1906".
 CIVIL PROCEDURE CODE

"85A. (1) If any suit instituted in any Civil Court involves any issues which are required to be
settled, decided or dealt with by any authority competent to settle, decide or deal with such
issues under this Act, (hereinafter referred to as the "competent authority") the Civil Court
shall stay the suit and refer such issues to such competent authority for determination. (2) On
receipt of such reference from the Civil Court, the competent authority shall deal with and
decide such issues in accordance with the provisions of this Act and shall communicate its
decision to the Civil Court and such court shall thereupon dispose of the suit in accordance
with the procedure applicable thereto.
Explanation-For the purpose of this section a Civil Court shall include a Mamlatdar's Court
constituted under the Mamlatdars' Courts Act, 1906". There is no controversy that the land
purported to be sold by the contracts for sale of land Exts. 82 and 83 is land used for
agricultural purposes and is covered by the definition of the expression 'land' in s. 2(8) (a). The
plaintiff thus by the contracts for sale of land Exts. 82 and 83 purports to purchase agricultural
land. Section 63 prohibits sale of land inter alia, in favour of a person who is not an
agriculturist. If, therefore, the plaintiff wants to enforce a contract for sale of agricultural land
in his favour he has of necessity to be an agriculturist. The defendant intending vendor has
specifically contended that the plaintiff not being an agriculturist he is not entitled to specific
performance of the contract. Therefore, in a suit filed by the plaintiff for Specific performance
of contract on rival contentions a specific issue would arise whether the plaintiff is an
agriculturist because if he is not, the Civil Count would be precluded from enforcing the
contract as it would be in violation of a statutory prohibition and the contract would be
unenforceable as being prohibited by law and, therefore, opposed to public policy.

This is an ouster clause. Dullabhai CB decided that legislature is competent to take away
jurisdiction of civil courts. Indira Gandhi took liberties and started taking away jurisdiction
from civil courts and give it to tribunals but Dullabhai said that the other fora should be as
efficacious a remedy. Sanctity of inherent judicial power of state was degraded by the case of
Dullabhai, predecessor of L Chandra Kumar.

Parties to a suit
S.26 suit shall be instituted by filing of the plaint.
(2) All facts must be proved by affidavit (added in 2002 amendment) (o6r15 supports it)
Plaint – (ESSENTIALS OF A SUIT)
i. Parties (must be opposite to each other)
ii. Subject matter (jurisdiction)
iii. Cause of action (bundle of facts on the basis of whom the plaintiff seeks remedy)
iv. Prayer/relief

ORDER I
Order 1 has rules that deals with parties to suit, equivalent to rules already seen
 CIVIL PROCEDURE CODE

Order1 R1 who all may be joined as plaintiffs in a suit. Plaintiff is dominus litis. ‘Right to
relief’ – cause of action. Both the clauses are conjunctive. (Joinder of plaintiffs – May join as
common plaintiff but may have several claims(higher or lesser claim), they could have joint
claims (same claim), there could be different part of same transaction – alternative claim.
DIFFERENT TRANSACTIONS AND ACTS. O1R3 – DEFENDANTS SAME LANGUAGE
(PLAINTIFF CHOOSES)
O1R2 – court’s power to order different trials.
O1R13 – same language as s.21.
O1R10 –

Razia Begum v Anwar Begum 1958 AIR 886

Related to estate of nizam of Hyderabad, second son (prince of Hyd) was the third respondent
in the appeal. Appeal – R1 is first wife of prince, R2 is son from first wife of prince. Appellant
– claiming that shes the second wife. Prince doesn’t accept it publicly. Filed a declaratory suit
in s10 SRA (34, 35 of current act) where she was the sole plaintiff and prince was the sole
defendant, declaration through declaratory decree under 43 of Sra declaring the wife as the
legally wedded wife.Muslim succession, rights accrue only in future, no existent rights in
present. She has no other alternative claim against the Prince. Prince filed WS, Prince accepted
that she was a legally wedded wife. Problem happened w R1 and R2 who filed application
under O1R10 (2) to be impleaded as D2 and D3. They alleged collusion between plaintiff and
defendant. Court accepted their contention and impleaded them as defendants. Razia Begum
took it to high court in challenge to impleadment of those defendants. High court accepted the
contention of the civil court, from the judgement of the HC the appeal to SC and SC reversed
the HC and civl judge, no claim was made wrt any other person, all she wanted was a
declaration that she was a legally wedded wife. SC held that they cant be impleaded. Concept
of necessary and proper parties to a suit would emerge from this.
Respondents 1 and 2 in their application under 0. 1, r. 10(2), of the Code of Civil Procedure, in
essence, relied upon the five following grounds for their plea that they should be added as
defendants in the suit:

(1)That respondent I was the lawful and legally wedded wife of respondent 3, (2) That
respondent 2 was the son of respondent 3, (3) That respondents 1 and 2 should be joined as
parties to the suit because the question to be adjudicated upon would seriously affect their
rights and interest in the estate of respondent 3, (4)That by adding respondents 1 and 2 as
parties neither a new cause of action would be introduced nor would the nature of the suit be
altered, (5)That the issue to be tried in the suit, after res-pondents I and 2 were added as
parties, would still be the same as the case made by the appellant was that respondent 3 was
interested in denying the appellant's marriage to respondent 3-a fact which respondents I and
2 were equally interested in denying.

The first two grounds afford no justification for respon- dents I and 2 being added as parties to
the suit, where the only question to be decided is whether the appellant is married to
respondent 3 and whether he had contracted to pay to the appellant Rs. 2,000 a month as
 CIVIL PROCEDURE CODE

Kharch-e-pandan. Even if the appellant successfully proved that she was married to
respondent 3, who had contracted to pay her Rs. 2,000 per month as Kharch-e-pandan, the
status and the rights of respondents I and 2 as wife and son of respondent 3 would remain
unaffected. A Mohammedan is entitled to marry more than once and have wives to the number
four at one and the same time. This is his right under his personal law and no one can question
the exercise of this right by him. In the suit between the appellant and respondent 3, the
question as to whether the appellant was married to respondent 3 was a matter entirely
personal to the appellant and respondent 3. The appellant claimed that she was lawfully
married to respondent 3. It was open to respondent 3 to either deny or admit her claim. In fact,
respondent 3 had admitted the claim of the appellant that she was married to him. It is not
open to anyone else in the present litigation to say that he has falsely made such an admission.
It is true that respondents 1 and 2 have alleged collusion between the appellant and respondent
3. No positive facts are asserted in support of this. The suggestion is based merely on
suspicion. Unless the court is justified in adding respondents 1 and 2 as defendants in the suit
the suggestion made by them that there is collusion between the appellant and respondent 3
should be ignored by the court on the simple ground that respondents 1 and 2 have no locus
standi to make any such representation in the present case. The 3rd, 4th and 5th grounds may
be considered together as they are inter-connected. Grounds 4 and 5 suggest that there would
be neither a new cause of action introduced nor would the nature of the suit be altered and the
issue to be tried in the suit would still be the same even if respondents I and 2 were added as
parties. The only issue in the suit filed by the appellant is whether she was married to
respondent 3 and whether there was a contract by the latter to pay her Rs. 2,000 per month as
Kharch-e-pandan. If respondents I and 2 are added as parties, questions relating to right of
inheritance in the estate of respondent 3 would arise for determination in addition to the only
issue stated above in the case. The main ground, upon which respondents 1 and 2 claim that
they should be added as parties to the suit, is to be found in the 3rd ground which, in
substance, is that if the appellant is declared to be lawfully wedded to respondent 3, then the
rights and interests of respondents I and 2 in the estate of respondent 3 would be affected. In
other words, in the estate of respondent 3, on his death, in addition to respondents 1 and 2, the
appellant and her three children by him would have rights of inheritance. Consequently, the
extent of inheritance of respondents I and 2 in the estate of respondent 3 would be considerably
diminished. It was urged that if the appellant is given the declaration, which she seeks, the
judgment of the court would be in the exercise of matrimonial jurisdiction and it would be a
judgment in rem as stated in s. 41 of the Indian Evidence Act. Such a declaration would also be
binding on respondents 1 and 2 by virtue of the provisions of s. 43 of the Specific Relief Act.
The appellant asked for a declaration under s. 42 of the Specific Relief Act. This section
permitted a person who claimed to be entitled to any legal character, or to any right to
property, to institute a suit against any person denying, or interested to deny, such character or
right. Respondents 1 and 2 was interested in denying the appellant's status as a wife and the
status of her three children as the legitimate children of respondent

Joinder of parties – plaintiff or defendant, already done.

4. Court may give judgment for or against one or more of joint parties.—Judgment may be given
without any amendment — (a) for such one or more of the plaintiffs as may be found to be
entitled to relief, for such relief as he or they may be entitled to; (b) against such one or more of
the defendants as may be found to be liable, according to their respective liabilities.
 CIVIL PROCEDURE CODE

Incase only one plaintiff is able to prove the cause of action, the relief could be moulded only
for one plaintiff, and if there are more than one defendants found liable, relief can be granted
against only those defendants against whom the cause of action is proved.

5. Defendant need not be interested in all the relief claimed.—It shall not be necessary that every
defendant shall be interested as to all the relief claimed in any suit against him.
In case you are added as one of the co-defendants it is not necessary that all the reliefs made in
the plaint is against you, a particular prayer in the plaint may be tailored for that one defendant
in case for several claims and not joint.
6. Joinder of parties liable on same contract.—The plaintiff may, at his option, join as parties to
the same suit all or any of the persons severally, or jointly and severally, liable on any one
contract, including parties to bills of exchange, hundis and promissory notes.
If you have a single contract and the parties are gaining from that contract, it would be
considered as part of the same transaction as mentioned in rule 3.
7. When plaintiff in doubt from whom redress is to be sought.—Where the plaintiff is in doubt as
to the persons from whom he is entitled to obtain redress, he may join two or more defendants
in order that the question as to which of the defendants is liable, and to what extent, may be
determined as between all parties.
Where the plaintiff is in doubt where there are multiple people from whom he is entitled to
relief, he may join multiple of them, and if it is not clear which party may grant you the relief
(like a contract with company, you don’t know who has the power to give relief, you may join
all those people, and the court is to find out who is to give relief).
8. (SUITS IN REPRESENTATIVE CAPACITY, whether the person representing the
interests of others and that it would not jeopardizWhere one person is representing the
standi of everyone, 1 [8. One person may sue or defend on behalf of all in same interest.—(1)
Where there are numerous persons having the same interest in one suit,— (a) one or more of
such persons may, with the permission of the Court, sue or be sued, or may defend such suit,
on behalf of, or for the benefit of, all persons so interested; (b) the Court may direct that one or
more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the
benefit of, all persons so interested. (2) The Court shall, in every case where a permission or
direction is given under sub-rule (1), at the plaintiff's expense, give notice of the institution of
the suit to all persons so interested, either by personal service, or, where, by reason of the
number of persons or any other cause, such service is not reasonably practicable, by public
advertisement, as the Court in each case may direct. (3) Any person on whose behalf, or for
whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the Court to be
made a party to such suit. (4) No part of the claim in any such suit shall be abandoned under
sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII,
and no agreement, compromise or satisfaction shall be recorded in any such suit under
rule 3 of that Order, unless the Court has given, at the plaintiff's expense, notice to all
persons so interested in the manner specified in sub-rule (2). (no consent decree in case
someone is representing on behalf of others, the person would then have to give notice to
everyone whose interest he was representing) (5) Where any person suing or defending in
any such suit does not proceed with due diligence in the suit or defence, the Court may
substitute in his place any other person having the same interest in the suit. (once a court has
allowed someone to represent others, it is not bound to keep it with them, the court could
replace them and substitute in their place any other similarly placed person by giving
notice to them).(6) A decree passed in a suit under this rule shall be binding on all persons on
whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.
Explanation.—For the purpose of determining whether the persons who sue or are sued, or
defend, have the same interest in one suit, it is not necessary to establish that such persons
 CIVIL PROCEDURE CODE

have the same cause of action as the persons on whose behalf, or for whose benefit, they
sue or are sued, or defend the suit, as the case may be.] (they need not all have the same
cause of action or interest, but have some cause of action of their own in case they are
representing other parties).

Chairman, Tamil Nadu Housing Board, ... vs T.N. Ganapathy

Respondents were allotted houses by TN Housing boards and separate demand letters were
issued to all them, which was not acceptable to allottees. Claim by TN housing board was that
allottees couldn’t sue on behalf of others because they constituted separate transactions/acts.
5. The learned counsel for the appellant has pressed two points in support of the appeal,
namely, the decision of the High Court on the merits of the dispute is erroneous and that the
provisions of Order 1, Rule 8 of the Code of Civil Procedure in any event are not applicable to
the case and the suit, as a representative suit, is not maintainable.

6. The second paragraph of clause 15 of the lease deed explicitly directs the Board to assess
the final amount on account of the development charges, cost of amenities and buildings, etc.
within a period of three years from the date of the allotment, and there does not appear to be
any reason for construing the provisions differently. The High Court at considerable length
considered this aspect, pointing out the unexplained long delay of about a decade after
completion of the constructions, etc. on the part of the Board. There was no difficulty at all in
making the final calculation in time, and taking steps for recovery of the same. We entirely
agree with the view of the High Court. 'The Court was also right in permitting the Board to
make a fresh additional demand in regard to the enhancement in the compensation for the
acquired lands and the respondents do not have any objection to that part.

7. On the question of maintainability of the suit in a representative capacity under Order 1,

Rule 8 of the Code of Civil Procedure, it has been contended that since the injury complained
of is in regard to demand of money and that too by a separate demand against each' of the
allottees, giving rise to different causes of action, the Rule 1 has application. The learned
counsel proceeded to say that it is not known whether each of the allottees in Ashok Nagar had
been even served with an addi- tional demand before the suit was filed; and further empha-
sised that those who had been so served are interested in defeating only the demand
individually referable to each of them. Each one of them is not interested in what happens to
the others. It is, therefore, suggested that only such of the allottees who have already been
served with additional demands are entitled to maintain an action in court, and they also
should do it by filing separate suits. We do not find any merit in the argument. The provisions
of Order 1 of Rule 8 have been included in the Code in the public interest so as to avoid
multiplicity of litigation. The condition necessary for application of the provisions is that the
persons on whose behalf the suit is being brought must have the same interest. In other words
either the interest must be common or they must have a common grievances which they seek to
get redressed. In Kodia Goundar and Another v. Velandi Goundar and others, |LR 1955
Madras 339, a Full Bench of the Madras High Court observed that on the plain language of
Order 1, Rule 8, the principal requirement to bring a suit within that Rule is the sameness of
interest of the numerous person on whose behalf or for whose benefit the suit is instituted. The
Court, while considering whether leave under the Rule should be granted or not, should exam-
ine whether there is sufficient community of interest to justify the adoption of the procedure
provided under the Rule. The object for which this provision is enacted is really. to facilitate
 CIVIL PROCEDURE CODE

the decision of questions, in which a large number of persons are interested, without recourse
to the ordinary procedure. The provision must, therefore, receive an interpretation which will
subserve the object for its enactment. There are no words in the Rule to limit its scope to any
particular category of suits or to exclude a suit in regard to a claim for money or for injunction
as the present one.
8. Coming to the relevant circumstances in the present case it will be seen that all the
allotments in Ashok Nagar were made under the same Scheme and all the relevant facts are
common. The basis of the impugned demand of the appel- lant is equally applicable to all the
allottees and the plea of the plaintiff is available to all of them. The trial court was, therefore,
perfectly right in permitting the plaintiff to proceed under Order 1, Rule 8 of the Code of Civil
Procedure. Nobody in this situation can complain of any inconvenience or injustice. On the
other hand, the appellant is being saved from being involved in unnecessary repeated
litigation.

9. It is true that each of the allottees is interested individually in fighting out the demand
separately made or going to be made on him and, thus, separate causes of action arise in the
case, but, that does not make Order 1. Rule 8 inapplicable. Earlier there was some doubt about
the Rule covering such a case which now stands clarified by the Explanation introduced by the
Code of Civil Procedure (Amendment) Act, 1976, which reads as follows:

"Explanation--For the purpose of determining whether the persons who sue or are sued, or
defend, have the same inter- est in one suit, it is not necessary to establish that such persons
have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or
are sued, or defend the suit, as the case may be."
The objects and reasons for the amendment were stated below:

"OBJECTS AND REASONS: Clause 55; sub-clause (iv),--Rule 8 of Order 1 deals with
representative suits. Under this rule, where there are numerous persons having the same
interest in one suit, one or more of them may, with the permission of the Court, sue or be sued,
on behalf of all of them. The rule has created a doubt as to whether the party represent- ing
others should have the same cause of action as the persons represented by him. The rule is
being substituted by a new rule and an explanation is being added to clarify that such persons
need not have the same cause of action."
There is, therefore, no doubt that the persons who may be represented in a suit under Order 1,
Rule 8 need not have the same cause of action. The trial court in the present case was right in
permitting the respondent to sue on behalf of all the allottees of Ashok Nagar. We, therefore,
do not find any merit in this appeal which is dismissed with costs. Before closing, however, we
would like to point out that the plaintiff has represented only those in the low income group in
Ashok Nagar who will be governed by this judgment, and nothing what has been said or
decided in this case is ap- plicable to any other group or colony.
R1 v R8, R8 only requires commonality of interest not the same transaction/series.
Necessary party and proper parties

- Name itself suggests that some party is necessary and some is proper to a suit. Necessary party
is one whose presence is indispensable to the constitution of the suit, against whom the relief is
sough and without whom no effective order can be passed.
- Proper party is one in whose absence an effective order can be passed but whose presence is
necessary for a complete and final decision on the question involved in the proceeding.
A belongs to delhi, B is Bombay, B has multiple properties in India and one of those is in
Nagpur, A entered into a contract to sell for that particular estate in Nagpur. Dispute between
 CIVIL PROCEDURE CODE

person A and person B. In case person A is desirous of suing person B, person B is a necessary
party, because no decree can be passed without having the owner of the property as the
defendant, person b is then necessary. His properties are however managed by some care
takers and person C is taking care of the property in question, person C is then the proper
party to the suit.
• In other words, in absence Of a necessary party no decree can be passed while in absence of a
groper party a decree can be passed. so far as it relates to the parties before the court. His
presence however enables the court to adjudicate more effectively and completely., • Two tests
have been laid down for determining the question whether a particular party is a necessary
party to a proceeding: • (i') There must be a right to some relief against such party in respect to
the matter involved in the proceeding in question; and (ii) It should not be possible to pass an
effective decree in absence of such a party.
It is a conjunctive rule not disjunctive rule. For necessary party both rules should be applied.
Advisable in partition to add all the successors of the coparcenars as the parties because a more
effective order could be passed in
that case. • suit for partition, all sharers are necessary parties. • purchaser Of property in a
public auction is a necessary party to the suit for a declaration to set aside the said public
auction • in an action against selection and appointment by an authority, candidates who are
selected and appointed are directly affected and, therefore, they are necessary parties.
• subtenant is only a proper party in a suit for possession by the landlord against his tenant. So
also, grandsons are proper parties to a suit for partition by sons against their father. • local
authority for whose benefit land is sought to be acquired by the Government is a proper party in
land acquisition proceedings. •Again, in a complaint against a seniority list prepared by an
employer, if no relief is sought against a particular individual, the persons shown as senior to
the petitioner/plaintiff are proper parties.
Object of Rules 2 and 3 of O1 -- To avoid multiplicity of suits, to provide speedy trial, to
secure time, to avoid expenditure of more money suit, parties to suit.
Plaintiff is the dominus litis. Procedure is a discretionary relief that is to be granted by the court
especially wrt impleadment of parties. On what basis for exercising such a discretion is if
without the presence of such parties as parties to the suit there wont be any effective or
complete justice that could be granted by the court. There (i) must be a right of relief against
such a party in respect of the matters involved in the suit (to be decided by the plaintiff). And
(ii) The court must not be in a position to pass an effective decree in the absence of such party.
(i) Joinder of parties (plaintiff O1R1 and defendant O1R3)
(ii) Necessary and proper parties (tests)

Ramesh Hiranand Kundanmal vs Municipal Corporation Of Greater

Petitioner was running a petrol pump granted by Hind Pet (lessee on the land on which the
station was built). Consisted of petrol pump on ground floor. The Muncipal corp issued notice
to petitioner that they had illegally added two chattels on the terrace on the ground that they are
unauthorized construction. The two chattels were moving equipment. Challenging the validity
of this notice, petitioner went to court and got interim injunction, in suit for permanent
injunction, the second respondent (hind pet) sought to be impleaded as parties and claimed
necessary party to the case. Lower court agreed with the contention of the hind pet, and
petitioner went to high court but it was accepted there too. SC overturned judgements of both
trial and high court.
In the present case, the subject-matter of the dispute between the appellant and the first
respondent is the demolition of the unauthorised construction in pursuance to the notice under
section 351 of the Bombay Municipal Act. The second respondent, the lessee, in possession of
 CIVIL PROCEDURE CODE

the service station asserts that the appellant has made an unauthorised construction and the
second respondent is in possession of material evidence to that effect.(shouldn’t they be a
witness and not as the defendant).
No notice has been issued to the second respondent by the Municipal Corporation and no case
of any collusion between the appellant and the Municipal Corporation is alleged. On the other
hand, it is the case of the appellant that the second respondent is instrumental in the initiation
of the proceedings by the Municipal Corporation against the appellant and the present
application is for collateral purposes. In the light of such averments, it has to be considered
whether the second respondent is a necessary or proper party in the present action.
The power of the Court to add parties under Order I Rule 10, C.P.C, came up for
consideration before this Court in Razia Begum (supra). In that case it was pointed out that the
Courts in India have not treated the matter of addition of parties as raising any question of the
initial jurisdiction of the Court and that it is firmly established as a result of judicial decisions
that in order that a person may be added as a party to a suit, he should have a direct interest in
the subject-matter of the litigation whether it be the questions relating to movable or
immovable property.
RULE FOR ORDER 1 RULE 10 - It cannot be said that the main object of the rule is to
prevent multiplicity of actions though it may incidentally have that effect. But that appears to
be a desirable consequence of the rule rather than its main objectives. The person to be joined
must be one whose presence is necessary as a party. What makes a person a necessary party is
not merely that he has relevant evidence to give on some of the questions involved; that would
only make him a necessary witness. It is not merely that he has an interest in the correct
solution of some questions involved and has thought or relevant arguments to advance. The
only reason which makes it necessary to make a person a party to an action is that he should
be bound by the result of the action and the question to be settled, therefore, must be a question
in the action which cannot be effectually and completely settled unless he is a party. The line
has been drawn on wider construction of the rule between the direct interest or the legal
interest and commercial interest. It is, therefore, necessary that the person must be directly or
legally interested in the action in the answer, i.e., he can say that the litigation may lead to a
result which will affect him legally that is by curtailing his legal rights. It is difficult to say that
the rule contemplates joining as a defendant a person whose only object is to prosecute his
own cause of action. Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd.,
(1956) 1 All E.R. 273, wherein after quoting the observations of Wynn-Parry, J. in Dollfus
Mieg et Compagnie S.A v. Bank of England,(1950) 2 All E.R.611, that the true test lies not so
much in an analysis of what are the constituents of the applicants' rights, but rather in what
would be the result on the subject-matter of the action if those rights could be established,
Devlin, J. has stated:-

"The test is `May the order for which the plaintiff is asking directly affect the intervener in the
enjoyment of his legal rights."
It has been strenuously contended before us that the second respondent has no interest in the
subject-matter of the litigation and the presence of the respondent is not required to adjudicate
upon the issue involved in the suit or for the purpose of deciding the real matter involved. It is
pointed out that the subject-matter in the suit is the notice issued by the Municipal Corporation
to the appellant and the issue is whether it is justified or not. The Hindustan Petroleum
Corporation Limited is interested in supporting the Municipal Corporation and sustaining the
action taken against the appellant. But that does not amount to any legal interest in the
subject-matter in the sense that the order, if any, either in favour of the appellant or against the
appellant would be binding on this respondent. It is true that being lessee of the premises, the
Hindustan Petroleum corporation Limited has an answer for the action proposed by the
 CIVIL PROCEDURE CODE

Municipal Corporation against the appellant, but for the purpose of granting the relief sought
for by the appellant by examining the justification of the notice issued by the Municipal
Corporation, it is not necessary for the Court to consider that answer. If that be so, the
presence of the respondent cannot be considered as necessary for the purpose of enabling the
Court to effectually and completely adjudicate upon and settle all the questions involved in the
suit. The appellant is preeceded against by the municipal Corporation for the alleged action in
violation of the municipal laws. The grievance of the respondent against the appellant, if any,
could only be for violation of the agreement and that is based on a different cause of action.
The consolidation of these two in the same suit is neither contemplated nor permissible.
The courts below have assumed that the subject-matter of the litigation is the structure erected
by the respondent or in other words the service station which has been allowed to be operated
upon by the plaintiff under the terms of dealership agreement. The notice does not relate to that
structure but is in relation to the two chattels stated to have been erected by the present
appellant unauthorisedly. According to the appellant these chattels/structures are moveables
on wheels and plates where servicing page and/or repairs are done and used for storing
implements of the mechanics. The second respondent has no interest in these chattels and the
demolition of the same in pursuance to the notice is not a matter which affects the legal rights
of the respondent. The courts below, therefore, failed to note that the second respondent has
no direct interest in the subject-matter of the litigation and the addition of the respondent
would result in causing serious prejudice to the appellant and the substitution or the addition
of a new cause of action would only widen the issue which is required to be adjudicated and
settled. By the joining of the party would embarrass the plaintiff and issues not germane to
the suit would be required to be raised. The mere fact that a fresh litigation can be avoided is
no ground to invoke the power under the Rule in such cases. We are, therefore, of the view
that the courts below were wrong in concluding that the second respondent is a necessary or
a proper party to be added as a defendant in the present suit instituted by the appellant. We
according allow the appeal and set aside the impugned judgment. No order as to costs.

(iii) R9 nonjoinder or misjoinder of parties •9. Mis-joinder and non-joinder. • No suit shall be
defeated by reason of the mis-joinder or non-joinder of parties, and •the Court may in every suit
deal with the matter in controversy so far as regards the rights and interests of the parties
actually before it: • Provided that nothing in this rule shall apply to non-joinder of a necessary
party.
Lays basis for r10, allows court to add or substitute parties.
Misjoinder – either party is not proper or necessary, or defendant as plaintiff.
Non Joinder – effective relief was available against the party and it was necessary for the court
to implead for effective decree, and not joined then non joinder.
Suit would not be defeated solely by these reasons. Court in every matter should be concerned
about the merits of the case and not the incidental aspect of joinder of parties because that
power is provided in rule 10 to add delete or substitute the parties.
13. Objections as to non-joinder or misjoinder. All objections on the ground of non-joinder or
misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where
issues are settled, at or before such settlement, unless the ground of objection has subsequently
arisen, and any such objection not so taken shall be deemed to have been waived (Doctrine of
waiver)
Analogous to s.21 and O2 R7.
Signifies the scheme of cpc, objections of joinder of parties or cause of action to be taken at the
earliest possible opportunity. Particularly before settlement of issues because after settlement of
issues it is considered that actual trial has begun. Before settlement the court is only at the
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initial stages and figuring out what the dispute is but after settlement of issues the court applies
its judicial mind.

B. Prabhakar Rao & Ors. Etc vs State Of Andhra Pradesh Age of

superannuation, state govt of AP increased age of retirement from 55 to 58 year by an ordinace.
People who were supposed to retire continued, but the provision was taken back after 3 years.
Some people had already got the benefit but those who were yet to get benefit challenged the
taking back of the provision. Widespread protest. Some employees got a stay order from high
court, irrespective of the amendment they wont be retired. SC granted a temporary relief, but
the employees serving need not be retired. Those who were compulsorily retired, and that
position was temporarily filled the employees should be continued. State govt read it as that
certain employees had not got the stay order from HCs, those would be considered
compulsorily retired and wont get the relief from the SC judgement, because they would have
been deemed to be retired before the sc judgement date. Some parites said they were necessary
but werent joined
We may now refer to two arguments which were mentioned in passing but were not pursued.
The first was that a writ petition similar to Writ Petition Nos. 3420-3426/83 etc. had been filed
earlier and had been dismissed in limine by a Bench of this Court. We do not see how the
dismissal in limine of such a writ petition can possibly bar the present writ petitions. Such a
dismissal in limine may inhibit our discretion but not our jurisdiction. So the objection such as
it was, was not pursued further. So also the second objection which related to the nonjoinder
of all affected parties to the litigation. We are quite satisfied that even if some individual
affected parties have not been impleaded before us, their interests are identical with those
and, have been sufficiently and well represented. Further, the relief claimed in Writ petition
Nos. 3420-3426 of 1983 etc. is of a general nature and claimed against the State and no
particular relief is claimed against any individual party. We do not think that the more
failure to impead all affected parties is a bar to the maintainability of the present petitions in
the special circumstances of these cases where the actions are really between two 'warning
groups'.

Not all the times misjoinder or non joinder is fatal unless the party is necessary.
Must see s.99 provisions.
99. No decree to be reversed or modified for error or irregularity not affecting merits or
jurisdiction.—No decree shall be reversed or substantially varied, nor shall any case be
remanded, in appeal on account of any misjoinder s [or non-joinder] of parties or causes of
action or any error. defect or irregularity in any pmceedings in the suit, not affecting the merits
ofthe case or the jurisdiction ofthe Court: 6[Provided that nothing in this section shall apply to
non-joinder ofa necessary party.]
If any irregularity of any procedure are not affecting merits of the case or jurisdiction of the
court, they wont be fatal and decree can be passed, except when there is non joinder of a
necessary party.

Anil Kumar Singh vs Shivnath Mishra

Whether plaintiff as dominus litis would have absolute say as to who plaintiff wants to adduce
as a party at any stage.
Case in reference was filed by father of Anil Kumar, and it was for an immovable property.
During the pendency, father died, petitioner came to be LR on behalf of father and
subsequently filed an amendment application of plaint that father of the petitioner filed. He
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sought to amend plaint order 22 rule 10 by adding two more parties as defendants – sons and
wife of the original defendant. Position of lower courts to SC has been sustained. Contention
for impleadment was that son and wife obtained a collusive decree in some other suit and got
interest in land that was part of the sale that was entered between father of Pet and original
defendant. O1 R3 defendant
5. In this case, since the suit is based on agreement of sale said to have been executed by
Misra. the sole defendant in the suit, the subsequent interest said to have been acquired by-the
respondent by virtue of a decree of the Court is not a matter arising out of or in respect of the
same act or transaction or series of acts or transactions in relation to the claim made in the
suit.
Decree in some other case is not part of the same transaction.
6. Order 1, Rule 10(2) postulates that:

"10(2) Court may strike out or add parties.- The Court may at any stage of the proceedings,
either upon or without the application of either party, and on such term as May appeared to
the Court to be just, order that the name of any party improperly joined whether as plaintiff or
defendant, be struck out, and that the name of any person who or to have been joined, whether
as plaintiff or defendant, or whose presence before the Court may be necessary in order to
enable the Court effectually and completely to adjudicate upon and settle all the questions
involved in the suit be added".
7.By operation of the above-quoted rule though the Court may have power to strike out the
name of a party improperly joined or add a party either on application or without application
of either party, but the condition precedent, is that the Court must be satisfied that the presence
of the party to be added, would be necessary in order to enable the Court effectually and
completely to adjudicate upon and settle all questions involved in the suit. To bring a person
as party defendant is not a substantive right but one of procedure and the Court has
discretion in its proper exercise.(YOU MIGHT BE DOMINUS LITIS BUT IT IS NOT
YOUR SUBSTANTIVE RIGHT TO ADD WHOEVER YOU WANT TO THE LITIGATION,
IT IS THE DUTY OF THE COURT TO ENSURE THE DISPUTE IS RESOLVED BY
ADDING THAT PARTICULAR PARTY, IF THE COURT FEELS THE DISPUTE COULD
NOT BE RESOLVED THE COURT CAN REJECT THE ADDITION OF THAT PARTY)
The object of the rule is to bring on record all the persons who are parties to the dispute
relating to the subject matter so that the dispute may be determined in their presence at the
same time without any protraction, inconvenience and to avoid multiplicity of proceedings.
Principles (i) Court would not just add a party merely at the ask of plaintiff as dominus
litis, it would apply judicial mind and discretion and see if it would be able to adjudicate upon
and settle questions in an effective and complete manner. Nature of the suit should not be
changed. Scope of suit should not be enlarged (from being a declaratory to a partition suit)
or protracted or prolonged. But if the refusal to add a particular party is bound to cause
prejudice to plaintiff then court wont refuse to add party. Prejudice when caused – when the
party is a necessary party. It is also imperative that the party sought to be added has some
direct substantial or some interest of present nature in the subject matter of litigation. To be
decided from content of plaint. And discretionary power of court for adding proper parties,
both at an application of either party or in a suo motu manner. Theory of dominus litis cant be
overstretched. Court is the final arbiter/umpire for cause of justice.

9. A person may be added as a party defendant to the suit though no relief may be claimed
against him/her provided his/her presence is necessary for a complete and final decision on
the question involved in the suit. Such a person is only a proper party as distinguished from
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a necessary party. In Razia Begum v. Sahebzadi Anwar Begum & Ors. , 1959 SCR 111, in a
suit instituted for a declaration of legal status as a married wife, the question arose whether
another person claiming to be the third wife and sons through her are necessary and proper
party, who sought to come on record under Order 1 Rule 10(2). This Court held that in a suit
for declaration, as regards status or legal character under s.42 of the Specific Relief Act, the
rule that in order that a person may be added as a party must have a present or direct
interest in the subject matter of the suit, is not wholly applicable, and the rule may be relaxed
in a suitable case where the court is of the opinion that by adding that party it would be in a
better position to effectually and completely to adjudicate upon the controversy. In such suits
the court is not bound to grant the declaration prayed for, on a mere admission of the claim
by the defendant, if the court has reasons to insist upon clear proof, apart from the
admission. It was therefore, held that a declaratory judgment since binds not only the parties
actually before the court but also the persons claiming through them respectively within the
meaning of s.43 of the Specific Relief Act, they are proper parties. The petitioner is not
claiming this legal status nor through the respondent. In Lala Durga Prasad and Anr. v.
Lala Deep Chand & Ors., 1954 SCR 360, in a suit for specific performance the subsequent
purchaser was held to be a necessary party. In this case the petitioner is merely seeking the
specific performance of the agreement of sale. Section 15 of the Specific Relief Act, 1963,
provides that except as otherwise provided by this Chapter, the specific performance of a
contract may be obtained by "any party thereto"; and under s. 16 the Court has been given
discretion and personal bars to relief. Therefore, based on the fact situation, the court would
mould the relief The respondent is neither a necessary nor a proper party to adjudicate upon
the dispute arising in the suit so as to render an effective and complete adjudication of the
dispute involved in this suit.

Cardinal rule of adding parties is nothing but rule of procedure and it comes against justice then
it could be tweaked for causing of the justice.
Lower courts were right in not adding the parties because it wouldn’t have allowed for effective
adjudication.

Order II
Relates to framing of the suit. Framing of the suit has the effect of what has to be included in a
suit as the claim. Rule 1 gives a general rule
1. Frame of suit.—Every suit shall as far as practicable be framed so as to afford ground for final
decision upon the subjects in dispute and to prevent further litigation concerning them.
(Cardinal objective that we saw in res judicata – get finality in litigation. If you
intentionally relinquished or omitted certain claim in your suit, it shows bad faith/mala
fide on the part of the person framing the suit. Lets say suit is being filed wrt specific
performance of agreement to sell. A represents in court that B entered into agreement to
sell property for certain value and executed all the documents but B is now refusing to sell
the property under something, and that court should enforce specific performance. If
court frames such a suit, of specific performance of agreement to sell, all incidental reliefs
that A seeks against B, all of them that are practicable must be included. Can’t change the
trajectory of suing later on and must be decided well in advanced.) Bis vexari and interest
finitae. What would happen if you allowed change in trajectory, it would make it very
difficult for the court.
2. 2. Suit to include the whole claim.—(1) Every suit shall include the whole of the claim which
the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish
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and portion of his claim in order to bring the suit within the jurisdiction of any Court. (2)
Relinquishment of part of claim.—Where a plaintiff omits to sue in respect of, or intentionally
relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so
omitted or relinquished. (3) Omission to sue for one of several reliefs.—A person entitled to
more than one relief in respect of the same cause of action may sue for all or any of such
reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not
afterwards sue for any relief so omitted. Explanation.—For the purposes of this rule an
obligation and a collateral security for its performance and successive claims arising under the
same obligation shall be deemed respectively to constitute but one cause of action. Illustration
A lets a house to B at a yearly of rent Rs. 1,200. The rent for the whole of the years 1905, 1906
and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not
afterwards sue B for the rent due for 1905 or 1907.

If plaintiff chooses to relinquish a claim that they had and it was in the jurisdiction of the court,
you would be precluded from bringing them up later. Lets say there is a claim between 2
persons, for recovery of money. A chooses to Sue b only for part of the money relinquishing
the other amount that was due, to bring it in jurisdiction of that particular court. You are then
precluded afterwards from bringing the remaining claim before the jurisdiction of the court.
First part of O2R2 says that if you have multiple types of reliefs (adverse possession +
ownership by title deeds) and you omitted to sue wrt one kind of relief then you cant bring it in
the court. Secondly, part of the claim is relinquished, then too you’re precluded from bringing
the relinquished part before court. Thirdly, omission to sue, then you cant bring it later on.
THIS SUPPLEMENTS THE PROVISION OF RES JUDICATA. INCLUDES OTHER
CLAIMS TOO.
Mutually inconsistent claims – If A says he is owner by title deeds and OTOH he says he
is owner by adverse deeds, it is mutually inconsistent. Adverse possession has three
elements – NEC VI, NEC CLAM, NEC PRECARIO (without force, secrecy, permission)
s. 27 Limitation act. Person precluded from bringing claim of immovable property after
certain number of years. You must bring in both these two claims in the suit itself.)

O2R2 only applies to civil suits, not to writ petitions, execution, arbitration etc. O2r2 has 2-3
elements, what it frowns upon is division of reliefs or claim that could be garnered based on the
same cause of action but if you have different causes of action then it wont apply. Doesn’t
require joining multiple causes of action. If you are entitled to more than one relief because of
one cause of action you ought to claim it one suit. If relief A is also available against the
defendant and so is relief B then you are under an obligation by virtue of O2R2 to bring it in
the same suit. O2R2(1) enables relinquishment of relief to bring in jurisdiction of the court but
then you would be precluded from bringing it infront of the court because you have waived
your right. However there is a catch. O2R2(3), if you obtain the leave of the court before
relinquishment then the bar wont operate.
Landmark case for O2R2
Gurbux Singh v. Bhooralal, AlR 1964 SC 1810
3 tests for application of O2R2 to particular facts of the case, all must co-exist and these are
conjunctive and disjunctive. These rules were developed based on the Mohd. Khalil Khan &
Ors. v. Mahbub Ali Mian & Ors., AIR 1949 PC 78 of Privy Council, court deal with aspect of
O2R2 wrt 3 questions, this is used only be defendant, three questions are to be asked for this to
operate: (i) Whether the cause of action and subsequent suit are identical (and not mere similar)
in nature? (ii) Whether the relief claimed in subsequent suit could have been given in the
previous suit based on the pleadings made? (iii) Whether the plaintiff omitted to sue without
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leave of court based on that cause of action which was disclosed in the previous suit. Three
questions in Gurbux Singh v Bhooralal:
(i) Second/subsequent suit must be in respect of the same cause of
action on which the previous suit was based. Test for identifying if
cause of action is identical – look at the cause of action in
subsequent suit, whether the evidence that was presented in the
previous suit would also stand the claim in subsequent suit?
Whether the same evidence sustain both suits, for that one must
look into pleadings of both parties If yes then bar is attracted. But if
we see the evidence that the plaintiff is desirous of proving was not
available at the time of previous suit, then it is not the same cause
of action. Lets say there is agreement to sell between A and B and
A is put in possession after payment of token amount, and A was
required to make further payment after 2 years of possession and A
failed to pay it, and B aims to dispossess A. A survives that attempt
of dispossession, however A is apprehensive of same happening
again, and seek mandatory injunction and then interim temporary
injunction from the seller dispossessing you from the property
because you have entered into the contract in a legal manner. After
filing of this case, A goes to B and says that they should amicably
reconcile the differences they have and that he is ready to pay the
needed amount but B says he has sold the property on token amount
and I am going to dispossess you from this property and wont obey
the agreement between you and me. A should then specific
performance of agreement, then if you file this suit of specific
performance then the bar wont apply because evidence is different.
- Sucha Singh Sodhi (Dead) v. Baldev Raj Walia and others
(2018)3 SCC 733 (facts). SC disagreed with HC and TC – when the
agreement to sell was not in question, it was not disputed by
defendant in pleadings at the time of injunction. Bundle of facts that
arose subsequently. For the same relief if there is new evidence,
then you can file it again and res judicata or o2r2 wont apply
because it is new cause of action. Granting leave of court to not sue
for a particular cause of action, there is no set criteria – Kewal
Singh v Lajwanti. 1980 1 SCC 290.
(ii) that in respect of that cause of action the plaintiff was entitled to
more than one relief on the date of filing of the suit. If you were not
entitled to more than relief on the date of filing then the bar wont
operate and if you fail to bring it in the same cause of action then it
operates.
(iii) that being thus entitled to more than one relief the plaintiff, without
leave obtained from the Court, omitted to sue for the relief for
which the second suit had been filed.
LIFE INSURANCE CORPORATION v SANJEEV BUILDERS PRIVATE, CIVIL APPEAL
NO. 5909 OF 2022 – O2R2 to not apply on amendment of pleadings.

If everything in O2R2 is dependant on cause of action, what then is ‘cause of action’. Media
through which you claim desired relief from the court. Fact situation, based on which I am
entitled to the legal remedy. ‘Bundle of facts that a person has to prove/disprove in order to get
the desired relief.’ When an objection of o2r2 is raised in a subsequent suit, the court would say
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if the media was identical or not. Media = whatever you present in court in documents to get
the relief you want. Based on the media if you are entitled to relief then relinquished. Media
could include evidence and not merely pleadings, based on some judgements. This seems eerily
similar to constructive res judicata. However different because this bar is only on plaintiff, but
constructive res judicata is applicable to both defense and attack. Alka Gupta v. Narender
Kumar Gupta, (2010) 10 SCC 141 – constructive res judicata and o2r2, constructive res
judicata also requires similar aspects only, o2r2 requires identical cause of action.

Gurbux Singh vs Bhooralal

Bhooralal brought suit against GS for possession of properties belonging to BL and mesne
properties based on the fact BL is absolute owner and GS is wrongfully possessing the property
and must give possession and pay mesne profits. To substantiate claim of BL he filed a
previous suit, which was instituted by BL and won by him. In the previous suit he also made a
claim of recovery of mesne profits and that claim was decreed by the court in the previous suit.
GS claimed O2R2 and it must be dismissed because plaintiff himself is mentioning it in plaint,
trial court accepted o2r2, appellate court reversed it, because trial court only used the plaint of
the newly instituted case and did not apply mind to the pleadings of the previous case. Against
this order an appeal was filed by GS in high court. Appeal was dismissed by HC but leave to
appeal to SC. Matter came before SC.
Order 2 rule 2 has been summarized in Para 16 and 17 M/S Virgo Industries Engineering v
Venture Tech Solutions 2013 1 SCC 625.
Mohammad Khalil Khan v. Mahbub Ali Mian, 1948 SCC OnLine PC 44
This extract is taken from Mohammad Khalil Khan v. Mahbub Ali Mian, 1948 SCC OnLine PC
44 : ILR 1948 All 571 : (1947-48) 75 IA 121 : (1949) 51 Bom LR 9 : (1948) 61 LW 686 : AIR
1949 PC 78 : (1948) 2 Mad LJ 318 : (1947-48) 52 CWN 812 at page 594
The principles laid down in the cases thus far discussed may be thus summarised:

(1) The correct test in cases falling under Order 2, rule 2, is whether the claim in the new suit
is, in fact, founded on a cause of action distinct from that which was the foundation for the
former suit.” (Moonshee Fuzloor Ruheem v. Shumsoonnissa Begum [11 Moo., I.A. 551, 605.] .

(2) The cause of action means every fact which will be necessary for the plaintiff to prove, if
traversed, in order to support his right to the judgment. [Read v. Brown [22 Q.B.D. 128,
131.] .]

(3) If the evidence to support the two claims is different, then the causes of action are also
different [Brunsden v. Humphrey [14 Q.B.D. 141.] .]

(4) The causes of action in the two suits may be considered to be the same if in substance they
are identical. [Brunsden v. Humphrey [14 Q.B.D. 141.] .]

(5) The cause of action has no relation whatever to the defence that may be set up by the
defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It
refers to the media upon which the plaintiff asks the Court to arrive at a conclusion in his
favour.” [Must. Chand Kour v. Partab Singh [I.L.R. 16 Cal. 98, (101) : L.R. 15 I.A. 156,
157.] ]. This observation was made by Lord Watson in a case under section 43 of the Act of
1882 (corresponding to Order 2, rule 2), where plaintiff made various claims in the same suit.
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This extract is taken from Mohammad Khalil Khan v. Mahbub Ali Mian, 1948 SCC OnLine PC
44 : ILR 1948 All 571 : (1947-48) 75 IA 121 : (1949) 51 Bom LR 9 : (1948) 61 LW 686 : AIR
1949 PC 78 : (1948) 2 Mad LJ 318 : (1947-48) 52 CWN 812 at page 589
The phrase “cause of action” has not been defined in any enactment, but the meaning cl it has
been judicially considered in various decisions. In Read v. Brown [L.R., (1888) 22 Q.B.D.
128.] , Lord Esher, M.R., accepted the definition given in Cook v. Gill [L.R. (1873) 8 C.P.
107.] that it meant “every fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the judgment of the Court. It does not comprise every
piece of evidence which is necessary to prove each fact, but every fact which is necessary to be
proved” [L.R. (1888) 22 Q.B.D. 131.] . Fry, L.J., agreed, and said, “Everything which, if not
proved, gives the defendant an immediate right to judgment, must be part of the cause of
action” [Ibid. 132.] . Lopes, L.J., said. I agree with the definition given by the Master of the
Rolls of a cause of action, and that it includes every fact which it would be necessary to prove,
if traversed, in order to enable a plaintiff to sustain his action” [Ibid. 133.] . This decision has
been followed in. India. The term has been considered also by the Board. In Musammat Chand
Konr v. Partab Singh [(1889) I.L.R. 16 Cal. 98 : (1888) L.R. 15 I.A. 156.] . Lord Watson
delivering the judgment of the Board observed as follows:—

“Now the cause of action has no relation whatever to the defence which may be set up by the
defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It
refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to
the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour” [Ibid.
102, 157.] .
This extract is taken from Vurimi Pullarao v. Vemari Vyankata Radharani, (2020) 14 SCC
110 : 2019 SCC OnLine SC 1682 at page 120
16. The rationale underlying in Order 2 Rule 2 has been dealt with in several judgments
including in the decision of the Privy Council in Mohd. Khalil Khan v. Mahbub Ali Mian
[Mohd. Khalil Khan v. Mahbub Ali Mian, 1948 SCC OnLine PC 44 : (1947-48) 75 IA 121] ,
the Privy Council held : (SCC OnLine PC)

“(1) The correct test in cases falling under Order 2 Rule 2, is ‘whether the claim in the new
suit is, in fact, founded upon a cause of action distinct from that which was the foundation for
the former suit’. …

(2) The cause of action means every fact which will be necessary for the plaintiff to prove, if
traversed, in order to support his right to the judgment. …

(3) If the evidence to support the two claims is different, then the causes of action are also
different. …
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(4) The causes of action in the two suits may be considered to be the same if in substance they
are identical. …

(5) The cause of action has no relation whatever to the defence that may be set up by the
defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It
refers to the media upon which the plaintiff asks the court to arrive at a conclusion in his
favour.”

(emphasis in original)

Pleading
What is the purpose of pleading? The entire method –
(i) Creates a record
(ii) Formalizes a procedure – brings uniformity – everyone to bring their claim in a
particular manner only
(iii) Reduces chances of falsity.
(iv) Issues/settlement of facts under dispute
(v) Written is easy to understand, not easy to understand oral pleadings
(vi) Brings CPC – C for conciseness, P for Preciseness, C for certainty ( it is on the record,
you cant change unless you file for amendment of pleading under O7R17 but you still
cant change the entire picture of the case).

Four fundamental rules of pleadings

(i) Pleadings must state facts and NOT the law. – HSA before amendment s.24 pious
obligation on son, if you are claiming that a particular person belonging to some hindu
family, and you are a creditor of the father and now son, you need not narrate in your
pleadings that it is the pious obligation, it is already there in the law. Negligence,
instead of saying negligent happened, you’d mention how the facts fulfil essentials of
negligence. You would narrate how a duty was breached, how damage happened. Law
must be taken as judicial notice by the court. Too much law will also make pleadings
verbose. They may or may not have bearing on the case. Whenever intention or mixed
question of law and facts are involved, then pleading must be specifically done with
respect to that intention. If law vests a certain right on you, but because of certain facts,
you are disentitled from getting that right (125 – disentitlements for maintenance).
When some fact which is mixed with law having a bearing on the case, it must be
mentioned. They are written in the language of the law. Because the facts either create
or take away a right. Gift, three elements – D for donation, A for acceptance, D for
delivery. Creating or challenging a gift deed, it has to be shown how these elements
were fulfilled. If it relates with intention, then plead it. Mixed question of law and facts
(especially for limitation, when we say time limit starts from due date, due date is a
question of fact.) Weave law in the language of fact in such manner. Cite law but in a
limited context, that will help the court to establish your cause of action to get you the
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remedy you want. Factum Probandum – proposition that must be established, probantia
establishes it. Factum probandum is not prohibited from being pleaded. Don’t write
heavy legal notices. Just give a fair chance to the other party as to what is the case that
is being made by you. Pleadings include written statement or plaint. WS – start with
preliminary objections – jurisdiction or defect in the plaint, like limitation, res judicata
etc . This rule is a general rule and not necessary. First exception (I) Foreign law
(marriage, happened in Russia, as per their traditions, what law would apply in Russia
must be cited in great detail because Indian law wont take judicial notice of Russian
Law, if relying on customs then must customary aspects in great details too, don’t
become an author of the book but give enough context to the other party and the court.
If there condition precedent. S80 CPC says before filing of suit against govt, give 2
months notice, and only after that 2 month period has elapsed can you come to court,
then in your plaint you must specifically plead that you have fulfilled the requirement.
Unless law has a bearing on the four essentials of a suit, then cite it otherwise don’t.
Pleadings are never construed in a pedantic manner and no hair splitting technique is
involved in pleadings. Considers the situation of a poor litigant, if the plaintiff forgot to
ask for a particular relief but if the facts describe that relief, the court would still grant
it. Don’t do it in a hyper-technical manner.
(ii) Pleadings must ONLY state material facts. Facts which are essentials cause of action of
the plaintiff or the defendant’s defence. Those facts if you are unable to prove them,
you are bound to lose in your case or defense that you want to set up. If you are able to
prove title deeds, you are bound to fail in your claim for dispossession. If in a suit for
possession, the defendant is using adverse possession, and there is no proof. If one is in
doubt for material fact vs particular, it is advisable that you cite that fact in your
pleading because at a later stage you won’t be allowed to prove that fact. Particulars –
these aren’t material facts. Particulars just embellish/amplify material facts. Virender
Nath v Satpal Singh 2007 3 SCC 617 – difference between MF – required to establish
the cause of action on behalf of plaintiff/defendant. If not pleaded it may create a
situation where cause of action remains incomplete. If a muslim widow claims that she
is entitled to a share in her husband’s property who was shia then she must allegedly
mention that husband was a shia. If person claims minority, then they must mention the
fact that they were of this age on the particular date. These dates might be considered as
particulars but not here because they might not be considered here and will be material
facts because they are so crucial to proving cause of action. If you fail to prove that you
are of minority age then whole claim is bound to fail. If suing on the basis of a title
deed, they must mention the nature of the title deed on the basis of which they are
suing. 138 NI mentions that a 15 day notice is to be given to the other party, before one
could come to the court under 138 and 142, this fact must be pleaded very specifically
that the notice was given or not. S.80 notice to govt 2 months. Exceptions to material
facts – (i) Material facts – content of the documents, if you have alleged that you
entered into a sale deed, and are entitled to relief due to sale deed. Court would refer to
the sale deed. AOA in company case, just give reference to the document being relied
on. It would be sufficient to state the effects as briefly possible of the particular
reference. (ii) Matters of inducement – need to introduce the other party howsoever
immaterial it might appear. Inductory facts must be stated.
(iii) Narrate only the facts and not evidence. (i) Facta probanda -- material facts that need to
be proved and (ii) Factum Probans – evidentiary facts required to prove the material
facts. Establish the lead propositions but not the facts that will establish the lead
proposition.
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(iv) Narrate whatever you’re narrating with CPC – C for conciseness, P for Preciseness, C
for certainty – Conciseness - Don’t be verbose/tautological. Preciseness – it shouldn’t
be vague. Two rules – Order VI rule 4 (particulars to be given where necessary and 10.
Swarn Lata v Union 1979 3 SCC 165 – Court held that in absence of particulars court
would be unjustified into conducting investigation into mala fides. Merely alleging bad
faith wont give effect. Need to give effect. Same for estoppel. Sales person theory for
drafting – consider judge as purchaser and plaintiff as salesperson and the relief to be
the bike. How much information is necessary would depend on how unaware the person
is. Kind of information for appellate court and court of first instance would be very
different. Appellate court is benefitted from the past experience of the trial. Trial level is
for the first time. Object of pleading is to ensure the other party is apprised of the case
against them and the claim against them should be clear. Pleadings must sustain
definitiveness of the stance taking before the court. Unless you fail to introduce the
alternative plea, the court would not Avoid unsubstantiated allegations (don’t say that
defendant is a person of mad character, it doesn’t lead the court anywhere unless
substantiated). Certain – if saying that agreement was entered in april, don’t say April or
march, find out which month with certainty, if not sure then mention youre not sure
because of so and so reason. DON’T CITE PARTICULARS WITH UNCERTAINTY.
Order VI rule 7 – disallows any party to depart from pleading. Whatever you say in
pleading is final unless you seek amendment. Without amendment, the thumb rule is
mentioned in rule 7. No changes in factual description is allowed. Need to formally get
pleading amended. Don’t draft in a cavalier manner. If you mention a particular address
as place of business, you cant change that later. Avoid usage of pronouns in pleadings.
Order 6 Rule 2, Order 8 rule 7-9 – they say that separate paragraphs are to be used for
each allegation and claim you are making.
7. Departure.—No pleading shall, except by way of amendment, raise any new ground
of claim or contain any allegation of fact inconsistent with the previous pleadings of the
party pleading the same. 6R8 8R3-5, have specific denial, can’t just say that you’re
denying something. Order 6 Rule 14 and 15 – require proper signatures and due
verification of pleadings by parties, added to 1999 amendment. Prior to 1999
amendment (introduced affidavit), parties used to deny that they alleged facts by saying
it was their lawyer that alleged these facts. After salem bar association, they adduced
the requirement of verification to pleadings aswell in addition to affidavit. Include
alternate plea – don’t have place to reside and also take the plea that you want to oust
the tenant. As long as your evidence is not inconsistent and contradictory for alternate
claims. Same as the basis for o2r2. Hindu person purchased by a sale deed by a widow.
Dispute regarding the property – since the widow got separated from her husband
during his lifetime, and the husband gifted to her as an agreement of separation by a
valid title of gift OR since she has been residing in that property since past 39 years she
is also the owner by adverse possession. Not mutually inconsistent. O7 R5,7,8 – there
wont be any implication unless the implication is specifically set out in pleadings.
Defendant in money suit can plead in defense that he did not execute the promissory
note itself. Judicial notice wont be taken from your plea atleast. Even signed then too it
is barred by limitation.

10. Notice.—Wherever it is material to allege notice to any person of any fact, matter or
thing, it shall be sufficient to allege such notice as a fact, unless the form or the
precise terms of such notice, or the circumstances from which such notice is to be
inferred, are material.
 CIVIL PROCEDURE CODE

It would be sufficient to just mention that you gave notice unless it is material with
regards to content of notice itself or the manner in which notice is given. If the
content of the notice itself is questioned in the civil suit, content of the notice itself
would be materially and it must be specifically pleaded in the pleadings, not
otherwise.

Ganesh Trading Co vs Moji Ram (authority on amendment and material facts)

Ganesh Trading filed against moji ram as a firm to recover some money. After filing
their initial plaint, which was filed through one of the partners. One of the partners
sought to pleadings seeking to amend the fact that the firm had already dissolved on
the date of institution of plaint. They sued Moji Ram in the name of the firm however.
On the date of amendment of pleading, if they sue them as individuals, it would have
been barred by limitation, so when they sought to amend the pleading by mentioning
the firm got dissolved and they seek to sue in individual capacity – it was denied on
the ground (suing in individual capacity and therefore amendment was not allowed)
that since a right had accrued to defendant due to limitation. SC mentioned that this
was wrong,

3 [17. Amendment of pleadings.—The Court may at any stage of the proceedings

allow either party to alter or amend his pleadings in such manner and on such terms
as may be just, and all such amendments shall be made as may be necessary for the
purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has
commenced, unless the Court comes to the conclusion that in spite of due diligence,
the party could not have raised the matter before the commencement of trial.
(amendment is not allowed after trial commences in an ordinary manner unless it can
be shown that with due diligence amendment could be brought, prior to this
amendment, amending pleadings could be done however, court has become quite
strict after this proviso.)

Whether erstwhile partners suing on the same ground would introduce new cause of
action? SC said it would not, it would only bring a new cause of action, don’t adopt a
hair splitting or hyper technical approach. It is not introducing new. Procedural law is
to assist substantive law, it is not to be pedantic.
The Trial Court had refused to allow the amendment by its order dated 8th April
1975, on the ground that it amounted to the introduction of a new cause of action. On
a Revision application before the High Court, the High Court observed : "The suit
originally instituted was filed on behalf of a firm through one of the partners in the
amendment prayed for, a new claim is being sought to be laid on the basis or new
facts". It examined the new averments relating to the shares of the partners and the
execution of the deed of dissolution of the firm on 15th July 1973. It then said : "It is
on the basis of these averments that title of the suit is sought to be changed from M/s.
Ganesh Trading Company, Karnal, through Shri Jai Parkash son of Shri Hari Ram,
resident of Railway Road, Karnal, to dissolved firm, through Shri Jai Parkash son of
Shri Hari Ram, resident of Railway Road, Kamal, ex- partner of the said firm. it
would be seen that the change in the heading of the suit is not being sought merely
on the ground of mis- description or there being no proper description, the cause of
action remaining the same, but on the other hand, the change in the heading of the
plaint has been sought on the basis of the new facts prayed to be allowed to be
 CIVIL PROCEDURE CODE

averred in the amendment plaint, for which new basis has been given alleging the
dissolution of the partnership on a date before the suit was filed in the Court".
HC – it would have an effect on cause of action. Supreme court disagrees. It would
still be going to the same people.
The High Court had also referred to Jai Jai Ram Manohar Lal, v. National Building
Material Supply. Gurgaon (1), but has failed to follow the principle which was
clearly laid down in that case by this Court. There, the plaintiff had instituted a suit
in the name of Jai Jai Ram Manohar Lal which was the name in which the business of
a firm was carried on. Later on, the plaintiff had applied to amend the plaint, so that
the description may be altered into "Manohar Lal Proprietor Jai Jai Ram Manohar
Lal". The plaintiff also sought to clarify paragraph 1 of the plaint so that it may be
evident that "Jai Jai Ram Manohar Lal" was only the firm's name. The defendant
pleaded that Manohar Lal was not the sole Proprietor. One of the objections of the
defendant in that case was that the suit by Manobar Lal as sole owner would be time
barred on 18th July 1952, when the amendment was sought. In that case, the High
Court had taken the hypertechnical view that Jai Jai Ram Manohar Lal beinag a
nonexisting person" the Trial Court could not allow an amendment which
converted a non-existing person into a "person" in the eye of law so that the suit
may not be barred by time. This Court while reversing this hypertechnical view
observed ( at p. 1269) : "Rules of procedure are intended to be a handmaid to the
administration of justice. A party cannot be refused just relief merely because of
some mistake, negligence, in- advertence or even infraction of the rules of
procedure. The Court always gives leave to amend the pleading of a party, un- (1)
A.I.R. 1969 S.C. 1267. less it is satisfied that the party applying was acting mala
fide, or that by his blunder, he had caused injury to his opponent which may not be
recompensed by an order of costs. However, negligent or careless may have been
the first omission, and, however, late the proposed amendment, the amendment
may be allowed if it can be made without injustice to the other side. SHOULDN’T
CAUSE GROSS INJUSTICE, DAMAGE THAT CANT COMPENSATE IN
TERMS OF MONEY, NEW FRESH PLEA, EMABARRASSING THE TRIAL.
Purushottam Umedbhai & Co. v. M/s. Manilal & Sons(1), was a case of a
partnership firm where this Court pointed out that Section 4 of the Partnership Act
uses the term "firm" or the "firm name" as a compendious description of all the
partners collectively". Speaking of the provisions of Order 30 Civil Procedure Code
this Court said there (at p. 991) "The introduction of this provision in the Code was
an enabling one which permitted partners constituting a firm to sue or be sued in the
name of the firm. This enabling provision, however, accorded no such facility or
privilege to partners constituting a firm doing business outside India. The existence
of the provisions of O. XXX in the Code does not mean that a plaint filed in the name
of a firm doing business outside India is not a suit in fact by the partners of that firm
individually". We think that the view expressed by Narula C.J., in Mohan Singh v.
Kanshi Ram(2), which was dissented from by the Division Bench of the High Court is
correct. In that case, the learned Judge had rightly followed the principles laid down
by this Court in Jai Jai Ram Manohar Lal (supra) and had also agreed with the view
taken in Ippili Satyanarayana v. The Amadalavalasa Cooperative Agricultural and
Industrial Society Ltd.(3), where it held that the defendant was not prejudiced by the
amendment of the description at all. In the case before us also, the suit having been
instituted by one of the partners of a dissolved firm the mere specification of the
capacity in which the suit was filed could not change the character of the suit or the
case. It made no difference to the rest of the pleadings or to the cause of action.
 CIVIL PROCEDURE CODE

Indeed, the amendment only sought to give notice to the defendant of facts which the
plaintiff' would and could have tried to prove in any case. This notice was being
given, out of abundant caution, so that no technical objection may be taken that what
was sought to be proved was outside the pleadings. We also agree with the view
taken by the Nagpur High Court in Agarwal Jorawamal & Anr. v. Kasam & Anr.(4),
where Vivian Bose, J., said (at p. 315) (1) [1961] (1) S. C. R. 982. (2) 1976 C.L.J.
(Civil) 135. (3) A.T.R. 1975 A.P. 22. (4) A.I.R. 19 Nagpur 315. "It is argued on behalf
of the defendants that O. 30, R.I. Civil P.C. indicates that a suit can be filed in the
name of the firm by some of the, partners only if the partnership is existing at the date
of the, filing of the suit. The argument has no force in view of the finding that the firm
was not dissolved by reason of. the insolvency of one of its part- ners. But even if it
has been dissolved, the effect of- dissolution is not to render the firm non-existent. It
continues to exist for all purposes necessary for its winding up. One of these is of
course the recovery of moneys due to it by suit or otherwise". We think that the
amendment sought does not alter the cause of action. It only brings out correctly the
capacity of the plaintiff suing. It does not change the identity of the plaintiff who
remains the same. The result is that we allow this appeal and set aside the orders of
the High Court and the Trial Court. We allow the amendment application and send
back the case to the Trial Court. We direct that the Trial Court will now permit the
defendant to file such further objections, if any, as the defendant may wish to file
within 14 days of the receipt of the record by the Trial Court. It will then proceed to
decide the case in accordance with law. Costs to abide the results of the litigation.

Court while deciding the title of the case, court dwelled on the aspect of material facts, whether
changing the name would be material fact or not. Would it have any bearing on the cause of
action. Cause of action – particular money is to be recovered from Moji Ram. Even if firm is
existent or not existent, the cause of action would remain the same. If you don’t allow
amendment the money would still be decreed in the name of the firm and liquidate individually
to these. It would merely delay or embarrass the trial.

Order III
Jagraj Singh v Veerpal Kaur 2007 2 SCC 564
Order 2, authorized pleaders, also section 85, order 27 – recognized agents by virtue of rule 2
of order 2
Rule 3 if summons served to a recognized agent then it is proper service.
Rule 4 requires a document to be signed by a party before appointing a pleader on its behalf.
Once a person has entered into the service as a pleader, unless there is leave of the court the
person can’t back out from the case without the leave of the court.
Rule 5 – service on pleader – service made to ordinary place of office or residence of pleader,
it would be deemed to be made to the parties unless it is otherwise directed by the court.
Rule 6 if no such agent or pleader is made available to accept service or process, court could
also appoint an agent to accept service on behalf of parties.
 CIVIL PROCEDURE CODE

2.(15) “pleader” means any person entitled to appear and plead for another in Court, and
includes an advocate, a vakil and an attorney of a High Court; - ANYONE WHO IS
ALLOWED TO APPEAR AS PER S.30 OF ADVOCATES ACT.

Jagraj Singh v Veerpal Kaur 2007 2 SCC 564 O3R1

Jagraj Singh and VK got married, after marriage, for some time they shifted to Brunei. There
they lived for a short period, it was alleged that Veerpal Kaur appeared for interviews but
couldn’t land and she returned to Punjab but Husband remained. Their relationship turned
sour. Husband alleged that he got VK admitted to mbbs in Russia and bore the costs of 10
lakhs. They had a marital discord and wife filed for divorce in Faridkot Punjab. Husband
appeared through POA holder, and it was stated by POA holder by putting objection –
(i)faridkot court does not have any territorial jurisdiction as the wife is not residing in the
jurisdiction of faridkot, if territorial jurisdiction were to be there, it should be in Salim village.
Objection was accepted by trial court, even though wife was in Barnala (maternal house), and
Salim was the place of residential home. This was accepted by trial court, yet it went into
merits but did not grant divorce, not only just based on lack of jurisdiction. Appeal was filed
before PHHC. What happened there – husband again appeared through POA holder. HC
following the dictum after 1976 (introduction of order 32A – dealing with family disputes, on
the basis of which FCA 1983). It appeared to the court that husband must appear in person.
HC ordered in July that Husband should appear, and POA told the court that husband was in
Italy and would be able to join after Christmas. Date was given for December, husband still
did not appear. POA holder promised that there are difficulties, and said that he would appear
in January but still did not appear, not even in April, then in may too he didn’t appear. In the
hearing in may, after the court noted multiple non disappearances, court issued non bailable
warrants on the husband and they were supposed to be served on the husband through
ministry of external affairs. They were to be served by local police of Italy. Husband went
against this warrant and went into SLP against SC. Interim stay of NBW and Arrest was
granted by SC. While the matter was being heard in SC, it was argued by husband that HC
had no jurisdiction to ask the husband to appear in person because CPC allows him to appear
through a POA holder. Opposite party claimed (the claim that is finally sustained) – that a
reading of the proviso of Rule 1 (proviso is to be read first and the section is subject), allows
the court to do so. To claim further equity after obtaining a stay, you must appear in person
before the court. The purpose is to effectuate a settlement between the parties which requires
both parties. Purpose of HC was not to malign or cause embarrassment to the party, rather the
purpose in the provisions of law, hence the husband cant claim inequity on grounds of
misapprehension.
Order IV R1 – all suits to be instituted by the plaint. Officers of registry are appointed, and
plaint must be submitted to institute the suit. Every plaint to comply with Order VI and VII
and rules above. Mandatory rule.
R2 - All courts must have register of suits, since not every court is court of record, there is a
general omnibus requirement that requires all courts to maintain a register of suits. Diary is to
be kept and every particular of plaint must be noted in the register.

Order VI rule 17
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“17. Amendment of pleadings.—The Court may at any stage

of the proceedings allow either party to alter or amend his
pleadings in such manner and on such terms as may be just, and
all such amendments shall be made as may be necessary for the
purpose of determining the real questions in controversy
between the parties:
Provided that no application for amendment shall be allowed
after the trial has commenced, unless the Court comes to the
conclusion that in spite of due diligence, the party could not
have raised the matter before the commencement of trial.”

Dinesh Goyal v Suman Agarwal

Property purchased by father of five siblings (who are fighting in this case). Property
purchased on 01.01.1987. Father died on 14.01.2013, and property transferred by mechanism
of will in favour of defendant (Dinesh Goyal) in the initial case. Plaintiff – Suman Agarwal
but siblings. She wants 1/5th share in the property, after the death of the father the property got
mutated in the name of the mother. Mother issued the will and the same is said to be issued in
favour of Dinesh Goyal and one more son of this mother. She died two months after creating
the will. Defendant raised the argument – will was notified to everyone fighting the case and
the same was accepted by these people (dates given). Case was filed in Gwalior – Suman
Agarwal that since the property belongs to the father then she should be rightfully getting 1/5 th
share in the property and whatever is rightful in succession should come to her. SHE SAID
NOTHING ABOUT THE GENUINENESS OF THE WILL. As against the plaint, a WS was
filed by defendant on 25.07.2016 (same month as that of filing the plaint) arguing that there is
a will and that must declare the share, of which plaintiff has none. In the plaint, it was
mentioned that the property disputed is ancestral property (on which will does not work). On
28.07.2016, an application filed under O11 R14 to produce copy of the will. Defendant
produced the copy of the will. Temporary injunction was passed against the defendant that
day itself. Plaintiff then filed two applications – first one is related to O6R17 r/w s151
CPC(amendment of pleadings) and second one for O18R1,2,3. Amendment application – (i)
she wanted to add more movable properties to the plaint and (ii) wanted to amend the aspect
of ancestral property and (iii) sought to question the genuineness of the will. On 26.10.2017
she wanted to withdraw this amendment application but that was not decided. She also filed
for production of defence evidence first as per Order XVIIIR1. The court normally does not
allow defence evidence to be produced first. She alleges that the signatures of the mother are
forged by her siblings in collusion with the notary. On 14.03.2018 the Civil Judge rejected
both applications. Ground for disallowing – too late, the defendant argued that it is too late to
contest this by filing the amendment and secondly the delay has gone unexplained (the delay
in filing amendment). Additionally, the trial had already commenced, as per Civil Judge.
Against this order they went into HC 227 on 21.09.2019, to the Gwalior bench of MPHC, the
high Court judge allowed the amendment. Reasoning – look at the content of o6r17 –
amendment of pleading could be allowed at any stage in the nature of alteration or
amendment by either party, on just terms. Amendment could be allowed so as to include the
aspects necessary to determine the real questions in controversy. Following the 2002
amendment, the proviso that says amendment cant be allowed once the trial is commenced
unless due diligence shown by the party seeking amendment. Trial court followed this and did
not allow it. High Court judge said that the approach of civil judge is hyper technical. They
also noticed that although the issues were settled and examination of plaintiff had started but
cross had not started. So even if new facts are to be amended they could still be questioned on
 CIVIL PROCEDURE CODE

those new facts. General thumb rule – liberal approach and not hyper-technical approach
(based on Cooper v Smith). Two aspects to be balanced
(i) Allowing amendment should not cause injustice to the other party.
If the party against whom the amendment is filed, the court is to see
if costs are to be given to the other party to place that party in the
position as it was before.
(ii) It must be necessary to determine the real question between the
parties. FOREMOST RULE (IF FULFILLED IT SHOULD
HAVE PRIMACY OVER THE OTHER RULES) Certain points
(iii) Whether the court would be able to render effective and proper
adjudication if the amendment is not allowed or if by not allowing
the amendment would there be multiplicity of litigation. If in this
case, the amendment was disallowed, the question to be determined
would also depend on will.
(iv) a) By the amendment, the parties seeking amendment does not seek
to withdraw any clear admission made by the party which confers a
right on the other side. (b) The amendment does not raise a time-
barred claim, resulting in the divesting of the other side of a
valuable accrued right (in certain situations) (c) The amendment
completely changes the nature of the suit; (d) The prayer for
amendment is malafide, (e) By the amendment, the other side
should not lose a valid defence. (iv) Some general principles to be
kept in mind are – (THREE SUPERIOR RULES) (I) The court
should avoid a hyper-technical approach; ordinarily be liberal,
especially when the opposite party can be compensated by costs.
(II) Amendment may be justifiably allowed where it is intended to
rectify the absence of material particulars in the plaint or introduce
an additional or a new approach. (III) The amendment should not
change the cause of action, so as to set up an entirely new case,
foreign to the case set up in the plaint.
Genuineness of will is material so delay does not matter
Many a times after plaint is filed, subsequently events happen with
respect to the same cause of action (tenant paying for one month
out of 10), and they must be allowed via amendment to avoid
multiplicity of litigation.
While looking into the amendment, court should not decide the
merits of the case. If you’re seeking to amend by doubting the
genuineness of the will, court will not ask for evidence or other
questions based on merits, court will only see the aspects to be
amended solely from the application of amendment.

Basavaraj v. Indira, (2024) 3 SCC 705

Case related to partition, amendment sought to change it from partition to compromise
decree (Order 22) (it cant be appealed against S.96(3) and O43R1) Initially, suit was
filed for partition and separate possession By way of amendment, relief of declaration of
compromise decree being null and void was also sought — Plaintiffs in original suit not
party to present litigation — Even if on any ground
 CIVIL PROCEDURE CODE

Would have to challenge compromise decree in the same suit. Very limited
"17. The position that emerges from the amended provisions of Order 23 can be
summed up thus: (D No appeal is maintainable against a consent decree having regard
to the specific bar contained in Section 96(3) CPC. (iD No appeal is maintainable
against the order of the court recording the compromise (or refusing to record a
compromise) in view of the deletion of clause (m) of Rule 1 Order 43. (iiD No
independent suit can be filed for setting aside a compromise decree on the ground that
the compromise was not lawful in view of the bar contained in Rule 3-A. (iv) A consent
decree operates as an estoppel and is valid and binding unless it is set aside by the court
which passed the consent decree, by an order on an application under the proviso to
Rule 3 of Order 23.

Peculiarity – trial court was right and high court made an error which SC corrected, S
discussed law not just of amendment of pleadings but also compromise decree.

Facts – suit filed by parties for partition of particular property. However they had
already entered into a compromise in 2004 and it was duly recorded in a previous suit
that these parties had , with other parties who were not party in this suit. Third party
rights were created and certain portions of property were sold to them. Third parties
were roped in to the partition suit. Not all parties to the compromise decree were parties
to the current suit. Application for amendment was filed in the case by the plaintiff
seeking to amend the plaint against the defendant, seeking to amend by including a
relief with regards to declaring the compromise decree as nullity between the parties,
because the compromise was tainted because there was collusion between the parties.
Don’t have to go to merits while deciding amendment. Amendment however is always a
mixed bag of law and fact. Reason provided by plaintiff – there was a mistake and
oversight in filing the plaint and that is why they are seeking the amendment. Defendant
challenged it because there was no due diligence ground that was raised by the plaintiff.
It is not the case that despite due diligence the plaintiff could not have added it in the
initial plaint. Plaintiff – although they understand that the suit is at the fag end,
(witnesses had been done, case was at the stage of final arguments). Proviso comes into
question – there was nothing about due diligence. Good faith/bad faith is just about
intention. Due diligence is a higher burden, it should not just be good faith but must also
prove that this amendment was not in your knowledge at the time of the plaint, or you
instructed it to your lawyer but the lawyer missed it. High Court – although the case was
at the fag end but still the case could be decided on the basis of evidence already
existing and no injustice would be caused to the other party. Trial court denied but high
court agreed. Trial court mentioned that it would cause injustice and it wont be
compensated with costs. Oversight is no ground not to do due diligence. Not all parties
to the compromise decree were made parties to the present suit. It would have an effect
on the parties to the compromise decree that are not arrayed. Also it is a time barred
claim. Reasoning against defendant’s claim by plaintiff – it would avoid multiplicity of
litigation, wont need new evidence, could be compensated by costs. Prejudice would be
caused to the parties and that is why amendment was not allowed. Cant discuss merits,
notice to be given to the other party (could be dispensed with if the amendment is purely
technical in nature). Court must also record the reasons for allowin. Could be done at
any stage including after commencement of trial, but after commencement, due
diligence is required unless the amendment is abs necessary to decide the real
controversy between the parties (court should not go into hypertechnical nature).
 CIVIL PROCEDURE CODE

Cardinal principle of 6R17 – purpose is to bring the real question between the parties.
Relation back – amendment dates back to the date the suit was filed (retrospective
effect) unless there is specific declaration by the court while allowing the amendment
depending on the circumstances of the case. There is no limitation to file for an
amendment, although if an amendment is seeking to allow a time barred claim it is not
be allowed in ordinary parlance unless the other party is not getting prejudiced and can
be duly compensated with costs. Strict rule of res judicata wont apply to amendment.
There is no legal bar from bringing another application for amendment. There is an
estoppel for the other party if they accept costs (Vijendra Nath v Mayank Shrivastava
1994 6 SCC 117). Further bar in R18, if amendment is allowed but you don’t amend
your pleading in the time allowed (14 days) then you cant make an application seeking
amendment. It is
not an appealable order, and is not a decree. Amendment can only be challenged from a
decree, but you cant just appeal the amendment order. Unless revision is sought of the
amendment order.

Return (Order 7 Rule 10) and Rejection of Plaint (Rule 11)

Eldeco Housing And Industries Limited vs Ashok Vidyarthi

Decree – any order rejecting the plaint is deemed decree. An appeal would lie from the
deemed decree as per s96 of cpc. W
Why rejection of plaint as deemed decree? Cant claim the cause of action you think you
are legally entitled to. It must happen on solid bases. Rejection is never the first choice
however, the court could return the plaint so that it may be filed again.
If jurisdiction was in agra but you filed in delhi, then the court could return the plaint to
you.
10. Return of plaint.—(1) 4 [ Subject to the provisions of rule 10A, the plaint shall] at
any stage of the suit be returned to be presented to the Court in which the suit
should have been instituted. 1 [Explanation.— For the removal of doubts, it is
hereby declared that a Court of appeal or revision may direct after setting aside
the decree passed in a suit, the return of the plaint under this sub-rule.] Appellate
court can also return the plaint.
(2) Procedure on returning plaint. —On returning a plaint, the Judge shall endorse
thereon the date of its presentation and return, the name of the party presenting it,
and a brief statement of the reasons for returning it

2(2) “decree” means the formal expression of an adjudication which, so far as

regards the Court expressing it, conclusively determines the rights of the parties
with regard to all or any of the matters in controversy in the suit and may be
either preliminary or final. It shall be deemed to include the rejection of a plaint
and the determination of any question within 3*** section 144, but shall not
include— (a) any adjudication from which an appeal lies as an appeal from an
order, or (b) any order of dismissal for default. Explanation.—A decree is
preliminary when further proceedings have to be taken before the suit can be
completely disposed of. It is final when such adjudication completely disposes of
the suit. It may be partly preliminary and partly final;
Decree only includes rejection of plaint and not return of plaint. While returning
the plaint the court always gives the chance to party to present the plaint before
the proper court. Return of plaint is said to be there merely for jurisdictional mis-
 CIVIL PROCEDURE CODE

matches. When your plaint is returned it gives you the chance to present your
plaint before the proper court. On return of plaint, there are relaxation of
limitation provisions (s14 of limitation).
10A procedure for return.

Rejection of plaint (a deemed decree) – this language has not been used for
anything else in the cpc. (does not disclose a cause of action, undervalued,
insufficiently stamped,
11. Rejection of plaint.— The plaint shall be rejected in the following cases:— (a)
where it does not disclose a cause of action; (b) where the relief claimed is
undervalued, and the plaintiff, on being required by the Court to correct the
valuation within a time to be fixed by the Court, fails to do so; (c) where the relief
claimed is properly valued, but the plaint is returned upon paper insufficiently
stamped, and the plaintiff, on being required by the Court to supply the requisite
stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the
suit appears from the statement in the plaint to be barred by any law; 1 [(e) where
it is not filed in duplicate (DEFENDANT + 1 rule for filing in duplicate);] 2 [(f)
where the plaintiff fails to comply with the provisions of rule 9:] 3 [Provided that
the time fixed by the Court for the correction of the valuation or supplying of the
requisite stamp-paper shall not be extended unless the Court, for reasons to be
recorded, is satisfied that the plaintiff was prevented by any cause of an
exceptional nature from correcting the valuation or supplying the requisite stamp-
paper, as the case may be, within the time fixed by the Court and that refusal to
extend such time would cause grave injustice to the plaintiff.]
You have a cause of action against a party and prepared your plaint and filed all the
documents and followed the technicalities and the plaint is rejected by the court on technical
grounds. 4th provision is used the most (11d) – barred by law. In Eldeco plaint was rejected on
the grounds of order 2 rule 2 (to include all claims, cant file multiple plaints for same cause of
action). O7R11 says that the plaint shall be rejected in some specific cases
i. Failing to disclose a cause of action (bundle of facts that must be proved/disproved
to get the desired relief). Could be a mixed question of law and fact, or a pure
question of fact. Whenever an application is filed for any ground under this rule,
the court will only see the plaint + documents with plaint. Court will consider
whatever is written in the plaint and will accept it at its face value, and accept it as
truth and then balance it on its merit and if the answer to giving some relief is yes,
then it would admit it, however if there is no relief that is claimed the court will
reject the plaint as it would be an embarrassment of the court’s time. It is a
procedural aspect, it is not a contestation on the merit. For other grounds such as it
being barred by the law, court would only see the plaint and nothing else.
Defendant can raise preliminary issue at the level of O14 but not at this. Purpose
of rejection – there is some matter that is disclosed in the plaint for the court to
apply mind on. Even if WS is filed, the court wont look into it at this stage. There
cannot be a contestation on the cause of action. If you’re using O2R2 as a bar you
need to look into the plaint, if the plaint does not disclose any previous litigation
you cannot take the defense under clause d. If the plaint discloses a previous
litigation, but says it is a different cause of action, the court will look at the 2
causes of action and assuming the second one to be true, it would not reject the
 CIVIL PROCEDURE CODE

new cause of action. If the media is exactly the same and the cause of action is
exactly the same then maybe the court may reject the plaint.
ii. Undervaluation of the plaint, it is returned first, and even then if the plaintiff fails,
then the court rejects. All jurisdictional infirmities will first lead to return of plaint.
Importance of valuation – determines the court fees or stamp duty to be paid, it is
different in different states. Parties intentionally undervalue suits to not have to
pay excess stamp duty. There is very rare civil defamation suits, or they are filed in
states where its only a lump sum payment. In commercial transactions, if it is an
immovable property worth 5 cr market value, but on paper value is 1cr, no one can
allege undervaluation, but if on paper it is 5 cr, and you only have a dispute of 1cr
worth of that property, the valuation is to be of
iii. Barred by law – barred by limitation (s.80, and limitation act, court would
consider the facts in the plaint, and if the end date has expired

Would res judicata apply if the plaint is rejected? No because there is no contestation on
merits. Purpose of calling it a deemed decree is that you have an appealable decree to the
higher courts, and it would be appealed as a decree and not as an order, only a few orders are
appealable.
Eldeco – house in Kanpur and Ashok claimed had 3/4 th share and had agreed to sell it to
Eldeco via an MOU. There was an ongoing family litigation which could have ended up
diminishing his share or end up giving him the full share. It was mentioned in the MoU that is
AV’s share is diminished or reduced to nullity Eldeco would be entitled to get interest 18% on
the earnest money that Eldeco, by AV to Eldeco if AV’s interest is reduced. AV would then
be free from the MOU after paying interest. It is the claim of R1 that the agreement was
entered in 1998. In 2002 Eldeco, after having seen AV was losign his interest issued him a
notice that he was liable to pay interest, the case is silent as to if AV paid it or not. They knew
that his interest had been diminished. There were 3-4 rounds of litigation. First round
happened in 2008-09. Suit for a permanent injunction along with an application for a
temporary injunction against family members. In that suit, eldeco housing claimed that they
all need to be barred from creating third party interests, because an MOU had been entered.
That round of litigation ended by noting that third party interests couldn’t be created without
finality of this litigation. In 2016 SV vs AV came out. In 2017 Eldeco gave notice to AV to
honor agreement, AV refused. They filed for specific performance of the MOU. AV took the
o7r11 defense, that there was a previous litigation, which had the same cause of action – the
MOU. (specific performance of MOU can be sought).
 CIVIL PROCEDURE CODE

Arjun v Mohindra
Person had already appeared, and the court didn’t find sufficient reason, can r13 still be
applicable after r7 application was dismissed or would dismissal of r7 application act as res
judicata against filing of r13 application
Rule 7 is an interlocutory provision. If it is not accepted then you have r13, if it is accepted
then you are relegated back to the same position as you were at the start.
O9R9 application and R13 are rejected, both are appealable, that shows the importance to
these remedies, that parties should not go unheard. In appeal , everything that is available at
the trial level is bound to be opened. Can’t introduce fresh evidence in appeal, but o41r27
could still allow fresh evidence.
Appeal is a matter of right but revision is an inherent right.

Final remarks on O9 - Court usually would relax if the court has made you exparte, the
cardinal principle – act of court should do harm to no one, if someone has been declared
exparte unless it is causing serious prejudice to some other party, the court would relax it with
terms on costs, and those terms should not be onerous. Court usually hears out both parties
before deciding. R6 or R8, by the time an exparte hearing is heard, the defendant files their
written statement, the first hearing is conducted when pleadings has concluded. But there
might be a situation where a defendant hasn’t participated and hasn’t filed WS and if the time
runs out, then their right would be foregone to file a WS.
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Set off, counter claim

O8 R6
SET OFF – a debt where both parties are reciprocal debtors and creditors to each other wrt a
sum of money, the defendant could ask for set off the money as against the plaintiff.
Ascertainable amount + legally recoverable.
A filed a case against C for recovery of 1000 and C has a claim against A for recovery of 500,
then the amount could be set off and the remaining amount that would have to be ultimately
decreed in favour of A would only be 500.

6. Particulars of set-off to be given in written statement.—(1) Where in a suit for the recovery
of money the defendant claims to set-off against the plaintiff's demand any ascertained sum of
money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the
jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's
suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by
the Court, presents a written statement containing the particulars of the debt sought to be set-
off. (2) 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 judgment 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. (3) The rules relating to a
written statement by a defendant apply to a written statement in answer to a claim of set-off.
I. Only in a suit of recovery of money
ii. Defendant can only file
iii Ascertained sum
iv Legally recoverable
v Pecuniary limits
vi both parties must have same character and capacity as in both the recovery of money.
Vii First instance hearing

Set off is a defense.

Limitations on set of – (I) amount claimed must be within the pecuniary jurisdiction of the
court.
If the amount asked for by the defendant is more than the amount asked by the plaintif, then
file a counter claim.
(a) A bequeaths Rs. 2,000 to B and appoints C his executor and residuary legatee. B dies
and D takes out administration to B's effects, C pays Rs, 1,000 as surety for D; then D
sues C for the legacy. C cannot set-off the debt of Rs. 1,000 against the legacy, for
neither C nor D fills the same character with respect to the legacy as they fill with
respect to the payment of the Rs. 1,000. – cannot claim set off in transact tions in
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personal capacity and not in representative capacity. Set off requires the same
character of the parties within a suit.
(c) A sues B on a bill of exchange. B alleges that A has wrongfully neglected to insure B's
goods and is liable to him in compensation which he claims to set-off. The amount not being
ascertained cannot be set-off.
Exception – equitable set off. If someone gets unjustly enriched the court uses equity to bring
them back. Illustration says – if the amount is unascertained. If let’s say you have a driver
who sues you for recovery of salary, that is ascertained, but if that driver also caused damage
to you in terms of reputation, that is unascertained, but court can do an equitable set off in this
case. It is a common law remedy, exists without specific provisions, but under inherent
powers of the court under s.151. Suit could be for an unascertained sum of money (tort claim)
but the set off must be ascertained.
If the amount to be recovered is more than the originally claimed amount by the plaintiff, it
would be a counter claim.
Difference between counter claim and set off
Counter claim is a separate claim.
Legal recoverability of counter claim is decided on the date of filing of written statement, but
in case of set off, there should be legal recoverability of money on the date of filing of the
suit. Counter claim is a separate action altogether, and those claims can arise even after the
filing of the suit. It is to prevent multiplicity of proceedings. Counter claim is sword and set
off is a shield.
Right of counter claim is always in addition to set off. Even if you have already claimed a set
off you can always claim a counter claim that may be subsequently generated against the
plaintiff.
If the time for WS is 120 days, and you file WS in 30 days, then you may file a set off within
the remaining days.
6C if counter claim would require an altogether new proceeding, and would frustrate the
original proceeding, the court could consider the application to exclude the counter claim and
may ask the defendant to file counter claim as a separate suit.
6D even if the plaint gets rejected, the counter claim still persists.
Could counter claim (Read Satender v Saroj) whether a counter claim could be claimed
against persons who are not originally the plaintiffs.
Cant claim a counter claim against co-defendants. Must file a separate suit.
Satyender v Saroj
Counter claim would only be valid against the plaintiff, it is invalid if it is not against the
plaintiff
This extract is taken from Satyender v. Saroj, (2022) 17 SCC 154 : 2022 SCC OnLine SC
1026 at page 163
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21. The other finding of second appellate court regarding the counterclaim of the defendants
on Killa Nos. 6//18 and 23 is, however, correct and is based on right interpretation of Order 8
Rule 6-ACPC. From the pleadings of the plaintiffs, it is clear that they had never raised any
claim on Killa No. 6//18 or Killa No. 23. The defendants in their written statement while
denying the rights of the plaintiffs on the land of which particulars had been given by the
plaintiffs, quite ingeniously inserted the two Killa Nos. 6//18 and 23, setting a counterclaim
on these plots. The trial court and the first appellate court while dismissing the plaintiffs' suit
had allowed this claim for (sic) without assigning any reasons. In fact, this counterclaim
which was raised by the defendant is barred under Order 8 Rule 6-ACPC.
O10 sets the stage for order XV and XVI
10 is first hearing – for oral examination as o10r2
Mixed questions would involve determination of both law and fact. Mostly relates to law of
limitation. If limitation to recover money would begin from a particular date when the money
first became due to you. In oral agreement, there is no stipulated date. If there is no stipulated
date, it would become due from the date it was first demanded and limitation would be
calculated from that date. The other party would dispute this saying the money would become
due from another date. Date is a pure question of fact. Law would be mingle when it would
ask if an article of limitation act would apply to the fact, would be a question of law.
Application of law, which is settled to facts (not finding the law or settling a new law) it is
pure question of fact. But when we are finding the law applicable and interpreting the law
applicable to a situation it would be question of law. If you have to decide facts first what
article of act is to apply then it is a mixed question of law, to decide the question of law you
have to first decide the question of fact.
Issues are classified into preliminary and substantial.
Preliminary are related to two aspects as per language of order 14 rule 2 – either they relate to
any issue related to the jurisdiction of the court, or if they are challenging on the basis of any
bar (res judicata, o2r2, or any other bar created by any law).
Meaning of the term of issue – issues are material propositions that are raised by one party
and denied by the other party.
Material Proposition – have relation to ‘factum probandum’ and factum probance. Issues
relate to factum probandum, without establishing which you cannot establish your cause of
action. Lead arguments or lead disagreements from the other party that one must prove or
disprove to get the desired relief.

Materials on which issues are formulated

i. Pleadings of the party (Plaint, WS, Replication/rejoinder by the plaintiff), made on
oath via affidavit
ii. Interrogatories that are filed/sought by the parties (to find a missing link in the
case of the other party or to destroy the case of the other party by highlighting
some falsity in the case of the other party)
iii. Documents filed with the plaint and WS.
Consequences of O10R4 are mentioned in O5R4 and O9R12
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Issues can be amended at any stage of the trial, even after hearing is over. Amendment of
issues can always be done. Trial does not get vitiated, if the issues get amended. Formulation
of issues are only for proper understanding of the court. Similar to research questions.
Kailash v Nanhku
Facts – summons for the election petition to Kailash, he was supposed to appear in April
2004, in April 2004 he got further time, and then again after one month he got one more
month, he delayed the WS by 5 days outside the outer limit of being able to file it. He was
supposed to submit on 3rd July but submitted on 8th July. Between 13th may and 2nd July, the
court was itself on leave. The case dealt with ROP act, and CPC was merely directory.
This extract is taken from Kailash v. Nanhku, (2005) 4 SCC 480 : 2005 SCC OnLine SC 691
at page 487
5. Three questions arise for decision:

(1) Whether Order 8 Rule 1 CPC is applicable to the trial of an election petition under Chapter
II of the Act?

(2) Whether the rules framed by the High Court governing the trial of election petitions would
override the provisions of CPC and permit a written statement being filed beyond the period
prescribed by Order 8 Rule 1 CPC?

(3) Whether the time-limit of 90 days as prescribed by the proviso appended to Rule 1 of
Order 8 CPC is mandatory or directory in nature?

Kailash v Nanhku only prescribes caution to judges, and is not in conflict with SCG
Contracts.

Interrogatories finished

Interrogatories and documents. Documents have been divided in two categories, first is the
documents in the pleadings (annexures) and secondly the documents as list of documents
along with the pleading. Another category of documents is something that is not mentioned in
pleadings, and the party has not disclosed that the documents are in their possession. How do
you get those documents – rule 12, 13, 14. And effect of these rules is given in rule 21. Any
party could seek from the other party a list of documents that are there in their possession.
Application is filed in the court and the court asks the other party to do so. It is a discretionary
 CIVIL PROCEDURE CODE

function of the court. This is merely a list of documents not the actual documents. If it appears
to the court (in rule 12), the discretion is to be exercised on the basis of two grounds. First
ground is if such discovery is necessary for fair disposal of the suit. Second, it would save the
costs for the court. It will expedite the process of the case. Commercial courts act - All parties
must disclose the list of documents at the time of the pleading itself. At the very outset they
ask for all the documents.
Why are documents needed? – in case you have the list of documents of the other party, you
can design your trial strategy in a more advanced manner and secondly it would save the cost.
Rule 14 – apart from parties seeking the documents from other parties, court could also seek
production of documents for its own examination, after the documents have been discovered.
The court can always ask for the documents. Effect of rule 12-14 is mentioned under rule 21.
21 says that if a list was sought from you by the other party or the court on its own instance
and if you refuse that, your suit could be dismissed if you are the plaintiff and if you are
defendant your defense might be struck down. Discretionary power of the court. Once the suit
is dismissed you are precluded from bringing a fresh suit.
Discovery by way of inspection – rule 15-19
15 – the party can ask the other party for discovery of the documents. If the party does not
comply with such notice it would be precluded from bringing it up as their own document
later on. This rule is applicable to both parties. It might be allowed if the party that refused to
produce such document could show sufficient cause. Rule 16 – provides the form through
which the notice is to be given. Form 7 of appendix C. Rule 17 – whenever you receive a
notice from the other party for the inspection of the documents, you will have to give the
other party a notice of 3 days and a time and place for inspection of the documents. Ten day
time to issue a three day notice. Rule 18 envisages the intervention of the court, the court
would see that the documents are secured inspection of. Whenever there is any dispute
between the parties with regards to inspection of place of inspection, that kind of dispute
could be raised before the court under rule 18. Court decides on it. (i) Disposing fairly the
suit, (ii) saving the costs – two conditions upon which the court exercises discretion. Rule 19
– court could spare the other party from producing documents due to confidentiality issues,
Court would allow to give a verified copy of the document, inspection of the original wont be
allowed, the copy would be verified by the court. Verified copies are only allowed if the other
party on the grounds of confidentiality or other ground is not allowing inspection. Maybe the
party might consent to show it to the court but not the other party, the court could always ask
for it to be produced before the court. In case of state secrets, it cant ask for production of
documents.
Rule 20 – premature discovery – even before discovery by interrogatory, if one party wants
one issue to be decided before the discovery procedure is to be initiated, the court could also
decide that issue first and halt the discovery process.
7 rules in commercial courts act. Go through it.
Order 12 Admissions.
Are admissions conclusive proof wrt whatever is written in the admission. If one party claims
that the other party has to pay them 30000 but the other party says it is 15000, it is an
admission of atleast 15000. Is this admission a conclusive proof of the fact that 15000 is
pending to be paid? Does it require an independent corroboration by independent witness that
15000 are pending to be paid. Answer is no – admissions are not conclusive statements, they
 CIVIL PROCEDURE CODE

are not clinching evidence but there is very high persuasive value attached to the admission.
Many a times it is seen that the admissions have been retracted on the ground that the
admission was given on the misconception of fact. They are hence not clinching evidence.
Rule 1 gives the general power to admit anything.
Rule 2 Any party to the suit could give notice to the other party asking them to admit
documents in their documents by reply to that notice. If you are replying to the notice of the
other party saying that these documents do not exist, you are neither neglecting nor refusing.
You could have either denied or admitted, you are neither neglecting nor refusing. Neglect is
only when you don’t reply, and refusing is only when you don’t take service. Then if you do
so then the cost of proving that document later on would have to be borne by you.
Most important rule of o12, is rule 6 which is judgement on admissions. Court is not bound to
give judgement with respect to admission straight away, court has the discretion to ask for
more conclusive evidence as admissions by themselves are not conclusive evidence.

Order XVI
Rule 10 gives a coercive method for securing presence of witness. If you as a lawyer coerce
your witness, they obviously would not. ACTUS CURIAE NEMINEM GRAVABIT'– act of
court should do harm to no one – why does this apply to cpc. Procedural law is also called
adjective law. Helps us understand substantive law. If you are not going to relaxation to do
greater justice, and if due to that a party suffers injustice, then it is said to have suffer it due to
the court itself. Injury and damage gives one a right under substantive law. Procedure is
merely to gain that right. If while conducting the procedure, there is non action by the court
itself, it would do me harm to gain access to substantive right. If I want to call a witness but I
couldn’t reasonably do so within the first 15 days when I had to give the list of witnesses, and
if the court disallows it, it would take away my substantive right. Discretion of the court
should always be exercised in light of this maxim.
How not to be coercive – talk personally with witnesses before giving their name in the list,
convince them, and only give names if they would be willing and cooperatives. Never ever
threaten the witnesses. Applying dead law to living beings. Talk up/hype up the witness.

ORDER XVII
Adjournment 1. Court may grant time and adjourn hearing.—1 [(1) The court may, if
sufficient cause is shown, at any stage of the suit grant time to the parties or to any of
them, and may from time to time adjourn the hearing of the suit for reasons to be
recorded in writing: Provided that no such adjournment shall be granted more than
three time to a party during hearing of the suit.]
Should there be adjournments – if so why? There is no concept of casual/earned leaves for
lawyers. Order XVII formalises the concept of adjournments,. It is particularly catered to
address situations where parties to the process may not be well. CPC assumes once the case
begins, it is to happen every day. Proviso to rule 1, was challenged in Salem Advocates Bar
Association, court said adjournments should be given but for the right reasons.
 CIVIL PROCEDURE CODE

Salem -- Although it is a salutary idea that it should be restricted to 3, but practical

considerations cannot be taken away from the court, discretionary power exists with court.

Order XVIII – how testimony is to be carried out

In what language the testimonies of the witnesses are to be recorded. Post 2002 – examination
in chief in commercial courts would only be on affidavit. The protections under CPC when
testimony is to be recorded. The witness has the right to give their objections to the judge and
judge has to note down. If party wants to offer them as witness, they have the right. Local
commissioner appointed by the court – take down testimonies of the parties, and present them
to the court.

Order XXXII – suits by or against minors and persons of unsound mind

Mental faculties haven’t developed much. To be represented by the next friend. Whatever
suit/decision is to be taken against them, it wont be applicable if there is no next friend. Two
aspects (i) either Minor suo motu brings next friend or (ii) when it appears to the corut at any
stage that the person arrayed is minor then the court appoints guardian to that person.
Rule 1 – Suit to be instituted by the next friend who are major. Minor – as per IMA.
Rule 2 – where suit is instituted on behalf of minor, without next friend. Then costs are to be
paid by the pleader. Lawyer cannot be the next friend of the minor, who could also be called
the witness. Don’t be a lawyer and also next friend. Champerty – I wont take legal fees but
10% of winnings – NOT ALLOWED AS A LAWYER.
Rule 3—Guardian to be appointed by the court. You would have to show your age
certificate/10th certificate.
Rule 4 – who may act as next friend – eligibility conditions – sound mind, major – sufficient
to become next friend, provided the interest is not against the interests of the minor, shouldn’t
be the plaintiff or the defendant. Should not be a contesting party in any other matter either. If
once someone has been appointed as guardian, they should stick unless court thinks someone
else would be better. If you are desirous of being the guardian then give consent. If no one is
willing then the court may appoint any of its officers (LAWYER) as guardian.
Rule 5 – Application seeking removal of the guardian, to not be filed by the guardian. Every
application would be made, in having that person in the know how.
Rule 6 – Guardian to not receive any money or property on behalf of the minor – if there is
any properry for the benefit of the minor, that property would be kept in the custody of the
next friend with the leave of the court, and the court has checks on this power. A next friend
or guardian needs court approval to receive a minor's property under a decree. The court may
require security to protect the property, with exceptions for certain family situations. Next
friend cannot alienate the property and cannot enter into compromise with someone else
unless there is leave of the court.
Rule 7 -- A next friend or guardian must obtain court approval, recorded in proceedings, to
enter an agreement or compromise on a minor's behalf in a suit. The application should
 CIVIL PROCEDURE CODE

include an affidavit and, if represented, the pleader's certificate that it benefits the minor. Any
unapproved agreement is voidable except against the minor.
Rule 8 -- A next friend cannot retire without leave of the court, arranging a suitable
replacement, providing cost security, and submitting an affidavit confirming the new person's
fitness and non-conflicting interests with the minor.
Rule 9 -- A next friend may be removed if their interests conflict with the minor’s, they
neglect duties, or leave India. A legal guardian may replace them unless the court objects.
Rule 10 -- If a minor’s next friend retires, is removed, or dies, proceedings pause until a
replacement is appointed. Interested parties may request a new next friend if delayed.
Other rules – minor’s interests are to be appointed through the next friend not otherwise. Rule
15 provides qualifications of 1-14 to be applicable to Unsound Mind
Ram Chander Arya v Maharaja Mann Singh (imp case)
Case related to property that belonged to Ram Lal. Another person named as Ram Das. Das
filed against Lal that Lal has to Das a sum of Rs. 144. This suit was filed in 1939. Since Ram
Lal was not able to pay his property was attached, and was sold and was purchased by Prabhu
Dayal, and he was a stranger to the suit b/w Ram Das and Lal. This sale certificate was issued
on Jan 1941 in the name of Prabhu Dayal. Ram Lal didn’t leave the house. Ram Chander
Arya is the son of Prabhu Dayal. Prabhu Dayal had an issue – Ram Chander Arya. Then it
was revealed that Ram Lal was of unsound mind and he was related to Mann Singh. He died
in 1945. He had no issues. This property was taken over (possession) by the subjects of Mann
Singh. In 1946 another suit was filed by Prabhu Dayal for seeking possession. While
contesting the suit – Mann Singh’s subjects argued that Ram Lal was insane, and he was not
represented by next friend, anything that is taken from him would be nullity. This defense
was upheld by all courts upto High Court therefore an appeal was filed by Prabhu Dayal in
SC. Before SC – Ram Chander Arya said that – his father was unrelated to the suit – he didn’t
know the person was of unsound mind and for him, the court was selling the property, he
purchased it bona fide and it must be protected. Since he was unrelated to the suit the sale
should be allowed as valid. Order XXI Rule 89 and 90 – incase the decree through which the
sale has happened is declared as nullity the sale would also be nullity. They challenge it by
saying that it is a irregularity. Court has held that if a guardian is not appointed for someone
of unsound mind then the decree is nullity, then sale is also nullity. Para 6, 8 of the
judgement. Property rightfully went back to Mann Singh
Kasturi Bai v Anguri Chowdhary
Plaintiff respondent filewd suit against appeallant for partition of immovable properties.
Kasturi Bai filed an application before the court that next friend to be appointed for her
because she was of 87 years and had started suffering dementia. Without paying any heed to
her application, the trial judge rejected it (para 3), thinking it is a dilatory tactic. Revision
application was filed before the HC that trial court committed an error in not finding out if she
was of unsound mind or not. Trial Court’s reasoning is that they are not required to embark on
an enquiry if the person is of unsound mind. Single Judge in HC, appointing guardian wont
cause prejudice to the parties and therefore the revision was allowed, asking the trial court to
appoint next judge. Other side filed an appeal before the divisional bench – and the other
bench mistook it as appeal from that of the HC single bench. They disposed off the order of
the single judge. SC – clarified that since she asked for the appointment of the guardian it was
 CIVIL PROCEDURE CODE

a valid request and the high court was irregular and interfered with Single Judge of the HC.
And asked for the guardian to be appointed. Observations made with regards to finding out if
her mind is of unsound nature.

ORDER XXXIII – SUITS BY INDIGENT PERSONS

Rule 1 - An indigent person may institute a suit if they lack sufficient means to pay the
prescribed court fee, excluding exempt property and the suit's subject matter. If no fee is
specified, they qualify as indigent if they own property worth less than one thousand rupees,
excluding exempt property and the suit's subject. Property acquired after applying to sue as
indigent but before the application is decided will also be considered. If the plaintiff sues in a
representative capacity, their indigence is assessed based on assets in that capacity.
Significance – to find out only whether actual indigent people should be allowed to resort to
this remedy. All those rules culminate in rule 5 – w
Rule 1A -- The court’s chief officer initially examines if a person qualifies as indigent, unless
the court decides otherwise. The court can accept this officer's report or conduct its own
inquiry.
Rule 2 - Applications to sue as an indigent person must include suit particulars, a list of the
applicant's property with values, and be signed and verified like pleadings.
Rule 3 - The applicant must present the application in person, unless exempted, in which case
an authorized agent may submit it and answer relevant questions. If there are multiple
plaintiffs, one plaintiff's presentation is sufficient.
Rule 4 -- Upon proper presentation, the Court may examine the applicant (or agent) on the
claim's merits and applicant's property. If submitted by an agent, the Court may also order the
applicant's examination by commission – Court could appoint any lawyer as local commission
to go and take witness’s statement, if the witness is not able to go to court and give their
statement (ORDER XXVI)
Rule 5 - The Court will reject an application to sue as an indigent person if it:
(a) is improperly framed or presented,
(b) the applicant isn’t indigent,
(c) applicant disposed of property fraudulently within two months before applying (unless
they remain eligible),
(d) lacks cause of action,
(e) involves an agreement giving another interest in the suit,
(f) shows the suit is legally barred, or
(g) involves someone financing the litigation.
 CIVIL PROCEDURE CODE

Rule 6 -- If the Court finds no grounds for rejection, it will set a date (with at least ten days'
notice to the opposite party and Government pleader) to hear evidence supporting or disputing
the applicant's indigency.
Rule 7 -- On the set day, the Court will examine witnesses and may examine the applicant or
agent, recording their evidence. Witnesses' examination is limited to specific rule 5 clauses,
but the applicant or agent may be questioned on any rule 5 matter. The Court will also hear
arguments on whether the applicant is subject to rule 5 prohibitions based on the application
and evidence. The Court then hears arguments and decides whether to permit the applicant to
sue as an indigent person.
Rule 8 -- 8. If the application is granted, it is registered as the plaint, and the suit proceeds as
usual, except the plaintiff is exempt from court fees and service fees for related proceedings.
Rule 9 -- The Court may withdraw permission to sue as an indigent person, upon seven days'
notice, if the plaintiff acts improperly (vexatious or improper conduct), gains sufficient
means, or enters an agreement giving another person an interest in the suit's subject.
9A – In case you don’t have your own counsel, Legal Aid will give you counsel.
Rule 10 -- If the indigent plaintiff succeeds, the Court will determine the court fees that would
have applied. This amount is recoverable by the State Government from the party ordered to
pay and is a first charge on the suit's subject matter.
Rule 11. If the indigent plaintiff fails in the suit, or if permission is withdrawn, or the suit is
dismissed due to non-service of summons or the plaintiff's absence, the Court will order the
plaintiff or any co-plaintiff to pay the court fees that would have applied if they had not been
allowed to sue as an indigent person.

Rule 11A. If the suit abates due to the death of the plaintiff or a co-plaintiff, the Court will
order that the court fees, which would have applied if the plaintiff were not indigent, be
recoverable by the State Government from the deceased plaintiff's estate.
Rule 12 – State Govt may apply for court fee at any time under R10, 11, 11A. Contestable
claim on behalf of the state govt.
Rule 13 – State Govt to be a deemed party in any case filed as an indigent person.
Rule 14 – Recovery of amount of court fees – from estate.
Rule 15 – Once you have been refused to sue as indigent you cant again bring the claim of
suing as an indigent person. You can only appeal that order.
Rule 15A – Grant of time for payment of court fee
Rule 16 – All the expenses of the other party

ML Sethi v RP Kapur
 CIVIL PROCEDURE CODE

RP Kapur filed a suit for malicious prosecution against ML Sethi. In cases for defamation/MP
people seek exorbitant sums of money (100cr) and the court fee would then be 1 cr. That’s
why people claim indigency in these types of suits. He claimed Rs. 7, 48,000. Other Party
sought to file for discovery before the trial court and three documents were thereafter sought –
(i) bank passbooks, (ii) records of immovable property, (iii) Records of personal accounts.
Question before the TC—whether discovery should be allowed under O33. Cardinal rule – the
suit begins from the day when you filed as an indigent person irrespective if you have not
evinced that you are indigent. Application to sue as an indigent person is plaint but it is
subject to enquiry. If you cant prove then court will give you time to pay court fee and resume
suit as normal. Claim by RP Kapur – the case is at a preliminary stage and therefore discovery
should not be granted and provided these list of documents. Trial court sustained discovery
and ordered the other party to give discovery. Counsel for RP Kapur challenged it before trial
court because discovery should be allowed later. Indigency at this stage must be a summary
enquiry and not go into substantial enquiry. TC did not allow. Counsel asked for extra time
from TC which was denied. When the person failed to give these documents and dismissed
the suit. Went to HC – TC was in jurisdictional error when it allowed discovery at stage of
indigency. It also criticised the conduct of the judicial officer for allowing such proceedings at
the behest of the other party, no fishing or rowing enquiry should have taken place.
SC – “When the Court makes an order for discovery under the rule, the opposite party is
bound to make an affidavit of documents and if he fails to do so, he will be subject to the
penalties specified in rule 21 of Order 1 1. An affidavit of documents shall set forth all the
documents which are, or have been in his possession or power relating to the matter in
question in the proceedings. And as to the documents which are not, but have been in his
possession or power, he must state what has become of them and in whose possession they
are, in order that the opposite party may be enabled to get production from the persons who
have posses- sion of them (see form No. 5 in Appendix C of the Civil Pro- cedure Code). After
he has disclosed the documents by the affidavit, he may be required to produce for
inspection such of the documents as he is in possession of and as are relevant.”
The High Court was equally wrong in thinking that in pass- ing the order for discovery, the
trial Court acted illegally in the exercise of its jurisdiction as it deprived the respondent of his
right to claim privilege for non- production of his pass book and personal accounts, because
the stage for claiming privilege had not yet been reached. That would be reached only when
the affidavit of discovery is made. Order 11, rule 13 provides that every affidavit of
documents should specify which of the documents therein set forth the party objects to
produce for inspection of the opposite party together with the grounds of objection..

Nor do we think that the High Court was right in holding that the documents ordered to be
discovered were not relevant to the injuiry. The documents sought to be discovered need not
be admissible in evidence in the enquiry or proceedings. It is sufficient it the documents
would be relevant for the purpose of throwing light on the matter in controversy. Every
document which will throw any light on the case is a document relating to a matter in dispute
in the proceedings, though it might not be admissible in evidence. In other words, a document
might be inadmissible in evidence yet it may contain information which may either directly or
indirectly enable the party seeking discovery either to advance his case or damage the
adversary's case or which may lead to a trail of enquiry which m have either of these two
consequences. The word 'document' may this context includes anything that is written or
printed, no matter what the material may be upon which the writing or printing is inserted or
 CIVIL PROCEDURE CODE

imprinted. We think that the documents of which the discovery was sought, would throw light
on the means of the respondent to pay court fee and hence relevant.
We venture to think that the High Court was laboring under a mistake when it said that the
enquiry into the question whether the respondent was a pauper was exclusively a matter
between him and the State Government and that the appellant was not interested in
establishing that the respondent was not a pauper. Order 33, rule 6 provides that if the Court
does not reject the application under rule 5, the Court shall fix a day of which at least 10
days' notice shall be given to the opposite party and the Government pleader for receiving
such evidence as the applicant may adduce in proof of pauperism and for hearing any
evidence in disproof thereof. Under Order 33, rule 9, it is open to the Court on the
application of the defendant to dispauper the plain-. tiff on the grounds, specified therein, one
of them being that his means are such that he ought not to continue to sue as a pauper. An
immunity from a litigation unless. the requisite court fee is paid by the plaintiff is a valuable
right for the defendant. And does it not follow as a corollary that the proceedings to establish
that the applicant-plaintiff is a pauper, which win take away that immunity, is a proceeding in
which the defendant is vitally interested ? To what purpose does Order 33, Rule 6 confer the
right on the opposite party to participate in the enquiry into the pauperism and adduce
evidence to establish that the applicant is' not a pauper unless the opposite party is interested
in the question and entitled to avail himself of all the normal procedure to establish it ? We
can think of no reason why if the procedure for discovery is applicable to proceeding under
Order 33, the appellant should not be entitled to avail himself of it. We also do not think that
there is any point in the criticism of the High Court that the order for discovery was vague.
The first item in the order was in respect of the documents relating to the bank accounts of
the respondent from March 1, 1963, to the date of the affidavit. The second item related to
documents in respect of the immovable properties held by him during the same period and the
third item was in respect of documents relating to the personal accounts maintained by him
for the same period.

HC disallowed discovery – because of rowing and fishing – but that would only come if the
inspection of those documents had been asked, but here only the list of documents had been
asked.
SC – better to have discovery at this stage than to have it later and find out that the person is
not an indigent person. Discovery at this stage is allowed and the party should be entitled to it.
READ ORDER 27 (SUIT BY OR AGAINST THE GOVT HAS TO BE FILED BY A
PERSON AUTHORIZED DULY AUTHORIZED UNDER S.79 OF THE CODE)
(DIFFERENT REPRESENTATIVES). MOST IMP – ASPECT RELATED TO NOTICE
UNDER S.80.
ORDER 30 and – SUITS BY FIRMS OR CORPORATIONS

SUMMARY SUITS ORDER XXXVII – PAKKA QUESTION

Where the defendant does not have a right to defend the suit. Only because someone has filed
a plaint under 37 you are not entitled to file a WS. Special procedure mentioned under this
 CIVIL PROCEDURE CODE

order to proceed with these suits. Once the court grants the leave to defend, the suit proceeds
like an ordinary suit. Leave to defend must be granted, it is conditional or unconditional.
Procedure given in the order to allow defendant to give affidavit. Once you show to the court
that there is a triable issue it gives you unconditional leave to defend and then the suit will
proceed ordinarily.
Summary suits- related to liquidated sums of money, for the recovery of money, and the other
party is delaying the payment, then leave to defend only once you give security to the court.
To make the payment faster, before defendant gets the chance to WS.

1. (2) Subject to the provisions of sub-rule (1), the Order applies to the following classes
of suits, namely:— (a) suits upon bills of exchange, hundies and promissory notes; (b)
suits in which the plaintiff seeks only to recover a debt or liquidated demand in money
payable by the defendant, with or without interest, arising,— (i) on a written contract,
or (ii) on an enactment, where the sum sought to be recovered is a fixed sum of money
or in the nature of a debt other than a penalty; or (iii) on a guarantee, where the claim
against the principal is in respect of a debt or liquidated demand only.]

If the suit is not related to sum of money, and is related to lets say immovable property
summary suit cannot be filed.
Rule 2-- A summary suit can be filed by presenting a plaint that specifically states it is
under Order XXXVII, includes only permissible reliefs, and contains the inscription
“(Under Order XXXVII of the Code of Civil Procedure, 1908)” below the suit
number. The summons must follow Form No. 4 in Appendix B or another prescribed
form. The defendant must enter an appearance to defend the suit; otherwise, the
allegations in the plaint are deemed admitted, entitling the plaintiff to a decree up to
the amount claimed, including interest and costs, which may be executed immediately.

Rule 3 (procedure for appearance of the defendant)

The plaintiff must serve the defendant a copy of the plaint and annexures with the
summons.
(1)The defendant has 10 days to appear, either personally or through a pleader, and
must provide an address for service.
3. Notices are considered served if left at the defendant's provided address.
4. On the day of appearance, the defendant must notify the plaintiff or their pleader.
5. The plaintiff must then serve a summons for judgment, returnable in 10 days, with
an affidavit verifying the claim and stating no defense exists.
6. The defendant has 10 days to seek permission to defend, showing sufficient cause;
leave may be granted conditionally if a valid defense exists. WHETHER THE LEAVE
TO DEFEND IS GRANTED CONDITIONALLY OR UNCONDITIONALLY,
WHEN IS IT UNCONDITIONAL. PROVISO – LEAVE TO DEFEND TO NOT BE
REFUSED (UNCONDITIONALLY) UNLESS THE COURT IS SATISFIED THAT
THE DEFENSE IS NOT SUBSTANTIAL ENOUGH OR FRIVOLOUS OR
VEXATIOUS, THEN LEAVE TO DEFENSE MIGHT BE UNCONDITIONAL.
7. If no defense is requested or granted, the plaintiff can obtain judgment immediately.
8. The court may excuse delays in appearance or in seeking defense leave if good
cause is shown.
 CIVIL PROCEDURE CODE

Doctrine of triable issue -- party gave cheque, it got dishonored, party b filed suit
against party a seeking summary judgement. Party A could always defend by
mentioning that B did a fraud with A in this manner and that’s why payment was
stopped. Party B is hell bent to seek money. Defense that the party raises is a Bonafide
defends, then honest and real defense and not in the frivolous nature. Further, it is not
required at the time of affidavit, evidence is not needed. Defense should not be
patently dishonest.

Case of MilkhiRam v Chaman Lal

Chaman Lal financed Milkhiram. Milkhiram had an agreement with Chaman Lal. C
would be giving to M that M would invest in different kinds of ventures, for pulses to
govt normally. It appeared M was supposed to provide 50 percernt profits to C, it
appears that due to certain business evenutalities that happened with M, there was a
revision, and the contract is rebvised saying thast the business itself is not profitable,
M would return money to C at 9 percent interest.
Some dispute between both parties because of which company C filed against M.
under O37 making the claim that M submitted a promissory note which was given in
the lieu of money received from C. Claim of M was that this cheque was collateral to
the agreement that M had with C. Filing case seeking recovery
O2R2 all claims same time but there is exception
They file for recovery under 37 and also for extending the claim under o2r2 exception
for the losses that M would make them as per the agreement because they would be
unliquidated.

Raised two aspects as defense (i) they have a triable issue because the cheque was not
in compliance of debt but as collateral to agreement, so suit is not in the nature of
order 37.(ii) trial court didn’t accept defense and they gave conditional leave to
defendant. Since their defense is triable they need to be granted an unconditional
leave.

At the time of the hearing for leave of defense you are not required to give evidence.
To determine if there is a triable issue, only pleadings are to be adduced. It will be
seen that Order 37, Rule 2 is applicable to what may be compendiously described as
commercial causes. Trading and commercial operations are liable to be seriously
impeded if, in particular, money disputes between the parties are not adjudicated
upon expeditiously. It is these considerations which have to be borne in mind for the
purpose of deciding whether leave to defend should be given or withheld and if given
should be subjected to a condition.
These observations as well as some observations of Chagla, C. J., in Rawalpindi
Theatres Private Ltd. v. M/f. Film Group Bombay, 60 Bom LR 1378 at p. 1374, may
well be borne in mind by the Court sitting in appeal upon the order of the trial Judge
granting conditional leave to defend. It is indeed not easy to say in many oases
whether the defence is a genuine one or not and, therefore, it should be left to the
discretion of the trial Judge who has experience of such matters both at the bar and
the bench to form his own tentative conclusion about the quality or nature of the
defence and determine the conditions upon which leave to defend may be granted. If
the Judge is of opinion that the case raises a triable issue, then leave should
ordinarily be granted unconditionally. On the other hand, if he is of opinion that the
defence raised is frivolous, or false, or sham, he should refuse leave to defend
 CIVIL PROCEDURE CODE

altogether. Unfortunately, however, the majority of cases cannot be dealt with in a

clear cut way like this and the Judge may entertain a genuine doubt on the question as
to whether the defence is genuine or sham or in other words whether it raises a triable
issue or not. It is to meet such cases that the amendment to Order 37, Rule 2 made
by the Bombay High Court contemplates that even in cases where an apparently
triable issue is raised the Judge may impose conditions in granting leave to defend.
Thus this is a matter in the discretion of the trial Judge and in dealing with it, he
ought to exercise his discretion judiciously. Care must be taken to see that the object
of the rule to assist the expeditious disposal of commercial causes to which the
order applies, is not defeated. Care must also be taken to see that real and genuine
triable issues are not shut out by unduly severe orders as to deposit. In a matter of
this kind, it would be undesirable and inexpedient to lay down any rule of general
application.

5 categories of defenses
(i) Defendant having a substantial defense. – unconditional leave, have the right to
submit WS
(ii) Triable issue – contestable issue that could be tried, defense seems Bonafide
and is not dishonest, even then it is unconditional leave
(iii) Where it is not clear that there is some defense but if allowed you might be
able to prove it using evidence. Eg – a company files an O37 suit against you,
collateral given to the propositus, and you are saying the person has not died or
that you are not the successor, and the trial court has doubt as to the veracity,
then the trial court has discretion, court might ask you to submit security so as
to allow you to give a defense
(iv) No defense – (i) plaintiff might have judgement signed against you.
(v) No defense (ii) but there are some holes in the case of plaintiff, then defense is
given.
Milkhi Ram – trial court has discretion to grant defense and it was correct in doing so.

Michelac – recovery of money sought along with interest by one party because certain goods
were supplied by this party ot the other party, received cheque but that was dishonored. Trial
court judge allowed defense, (para 2)
Defense has admitted issuance of cheque but they deny the contract with the plaintiff. Trial
court granted unconditional leave, high court interefered in the revision application – only
when there is jurisdictional error, not facts. High court noted that discretion should not have
been exercised in the manner as the trial court.
High court gave conditional leave asking them to pay the entire amount.
SC overruled HC.
Allowing defense is the rule, not allowing it is an exception.
Allowing (i) unconditionally or (ii) conditionally – onerous condition or secondly, your
seriousness is to be seen, that you are not there to be vexatious.
B.L. Kashyap And Sons Ltd. vs M/S Jms Steels And Power Corporation
 CIVIL PROCEDURE CODE

17.1. If the defendant satisfies the court that he has a substantial defence, that is, a defence
that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the
defendant is entitled to unconditional leave to defend the suit.

17.2. If the defendant raises triable issues indicating that he has a fair or reasonable defence,
although not a positively good defence, the plaintiff is not entitled to sign judgment, and the
defendant is ordinarily entitled to unconditional leave to defend. 17.3. Even if the defendant
raises triable issues, if a doubt is left with the trial Judge about the defendant's good faith, or
the genuineness of the triable issues, the trial Judge may impose
 CIVIL PROCEDURE CODE

conditions both as to time or mode of trial, as well as payment into court or furnishing
security. Care must be taken to see that the object of the provisions to assist expeditious
disposal of commercial causes is not defeated. Care must also be taken to see that such
triable issues are not shut out by unduly severe orders as to deposit or security.

17.4. If the defendant raises a defence which is plausible but improbable, the trial Judge may
impose conditions as to time or mode of trial, as well as payment into court, or furnishing
security. As such a defence does not raise triable issues, conditions as to deposit or security
or both can extend to the entire principal sum together with such interest as the court feels
the justice of the case requires.

17.5. If the defendant has no substantial defence and/or raises no genuine triable issues, and
the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be
refused, and the plaintiff is entitled to judgment forthwith. 17.6. If any part of the amount
claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the
suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the
amount so admitted to be due is deposited by the defendant in court.”

17. It is at once clear that even though in the case of IDBI Trusteeship, this Court has
observed that the principles stated in paragraph 8 of Mechelec Engineers’ case shall stand
superseded in the wake of amendment of Rule 3 of Order XXXVII but, on the core theme, the
principles remain the same that grant of leave to defend (with or without conditions) is the
ordinary rule; and denial of leave to defend is an exception. Putting it in other words,
generally, the prayer for leave to defend is to be denied in such cases where the defendant
has practically no defence and is unable to give out even a semblance of triable issues before
the Court.

17.1. As noticed, if the defendant satisfies the Court that he has substantial defence, i.e., a
defence which is likely to succeed, he is
 CIVIL PROCEDURE CODE

entitled to unconditional leave to defend. In the second eventuality, where the defendant
raises triable issues indicating a fair or bonafide or reasonable defence, albeit not a
positively good defence, he would be ordinarily entitled to unconditional leave to defend. In
the third eventuality, where the defendant raises triable issues, but it remains doubtful if the
defendant is raising the same in good faith or about genuineness of the issues, the Trial Court
is expected to balance the requirements of expeditious disposal of commercial causes on one
hand and of not shutting out triable issues by unduly severe orders on the other. Therefore,
the Trial Court may impose conditions both as to time or mode of trial as well as payment
into the Court or furnishing security. In the fourth eventuality, where the proposed defence
appear to be plausible but improbable, heightened conditions may be imposed as to the time
or mode of trial as also of payment into the Court or furnishing security or both, which may
extend to the entire principal sum together with just and requisite interest.

17.2. Thus, it could be seen that in the case of substantial defence, the defendant is entitled to
unconditional leave; and even in the case of a triable issue on a fair and reasonable defence,
the defendant is ordinarily entitled to unconditional leave to defend. In case of doubts about
the intent of the defendant or genuineness of the triable issues as also the probability of
defence, the leave could yet be granted but while imposing conditions as to the time or mode
of trial or payment or furnishing

SUDIN DILIP V POLYCAP WIRES

12. In a summary suit, if the defendant discloses such facts of a prima facie fair and
reasonable defence, the court may grant unconditional leave to defend. This
naturally concerns the subjective satisfaction of the court on basis of the
materials that may be placed before it. However, in an appropriate case, if the
court is satisfied of a plausible or probable defence and which defence is not
considered a sham or moonshine, but yet leaving certain doubts in the mind of the
court, it may grant conditional leave to defend. In contradistinction to the earlier
subjective satisfaction of the court, in the latter case there is an element of
discretion vested in the court. Such discretion is not absolute but has to be
judiciously exercised tempered with what is just and proper in the facts of a
particular case. The ultimate object of a summary suit is expeditious disposal of a
commercial dispute. The discretion vested in the court therefore requires it to
maintain the delicate balance between the respective rights and contentions by
not passing an order which may ultimately end up impeding the speedy resolution
of the dispute.
 CIVIL PROCEDURE CODE

13. 12. The controversy in the facts of the present case is therefore not with
regard to any dues admitted by the appellant or not, and the requirement to
deposit the same. The issue for adjudication is whether on basis of the
materials on record, whether their has been just and proper exercise of the
discretion to grant conditional leave to defend by deposit of Rs.30,00,000/
after consideration of all material and relevant factors.
14. 13. In Hubtown Limited (supra), this court has laid down the principles
which should guide exercise of such discretion as follows :
15. “…17.1. If the defendant satisfies the court that he has a substantial
defence, that is, a defence that is likely to succeed, the plaintiff is not
entitled to leave to sign judgment, and the defendant is entitled to
unconditional leave to defend the suit. 17.2. If the defendant raises triable
issues indicating that he has a fair or reasonable defence, although not a
positively good defence, the plaintiff is not entitled to sign judgment, and
the defendant is ordinarily entitled to unconditional leave to defend. 17.3.
Even if the defendant raises triable issues, if a doubt is left with the trial
Judge about the defendant’s good faith, or the genuineness of the triable
issues, the trial Judge may impose conditions both as to time or mode of
trial, as well as payment into court or
 CIVIL PROCEDURE CODE

16. furnishing security. Care must be taken to see that the object of the
provisions to assist expeditious disposal of commercial causes is not
defeated. Care must also be taken to see that such triable issues are not shut
out by unduly severe orders as to deposit or security. 17.4. If the defendant
raises a defence which is plausible but improbable, the trial Judge may
impose conditions as to time or mode of trial, as well as payment into
court, or furnishing security. As such a defence does not raise triable issues,
conditions as to deposit or security or both can extend to the entire
principal sum together with such interest as the court feels the justice of the
case requires.

17. 17.5. If the defendant has no substantial defence and/or raises no genuine
triable issues, and the court finds such defence to be frivolous or vexatious,
then leave to defend the suit shall be refused, and the plaintiff is entitled to
judgment forthwith. 17.6. If any part of the amount claimed by the plaintiff
is admitted by the defendant to be due from him, leave to defend the suit,
(even if triable issues or a substantial defence is raised), shall not be
granted unless the amount so admitted to be due is deposited by the
defendant in court.”

18. 14. In our opinion, both the Civil Judge and the High Court have posed
unto themselves the wrong question and have therefore misdirected
themselves in application of the above principles by granting conditional
leave to defend without properly adverting and referring to the facts of the
case and the materials on record. The fact that there was commercial
dealing
 CIVIL PROCEDURE CODE

19. between the parties was not in issue at all. According to the plaint of the
respondent, commercial dealings between the parties ended on 03.06.2011.
It stands to reason why outstanding payment in respect of the same came to
be made by cheque as late as 01.03.2014. It does not appeal to logic or
reason much less to the usual practice in commercial dealings. In any event
the respondent has not furnished any explanation with regard to the same.
At this stage it becomes necessary to notice the contention of the appellant
that the signatures and the contents of the cheques are in different writings.
The respondent had the option to institute a summary suit at the very
inception of the dispute. But it consciously opted for a prosecution under
the Act which undoubtedly was a more efficacious remedy for recovery of
any specified amount of a dishonoured instrument raising a presumption
against the drawer, as in a summary suit the possibility of leave to defend
could not be completely ruled out, in which case the recovery gets delayed
and protracted.

20. 15. Significantly on 29.10.2015, in the prosecution instituted by the

respondent under the Act, the court required the
 CIVIL PROCEDURE CODE

21. respondent to file certain additional documents because the appellant

denied the existence of any legal liability for any sum due. It is only
thereafter that the Summary Suit was instituted on 24.11.2015. The
prosecution under the Act was subsequently unconditionally withdrawn on
14.12.2015. These facts are not in dispute and are clearly discernible from
the records. This coupled with the specific contention of the appellant, not
denied by the respondent, that it had returned defective goods and paid the
balance dues of Rs.5,00,000/, we find the conclusion to grant leave to
defend as perfectly justified.

22. 16. But the defence raised by the appellant in the aforesaid background was
certainly not a sham or a moonshine much less frivolous or vexatious and
neither can it be called improbable. The appellant had raised a substantial
defence and genuine triable issues. The failure both by the Trial Judge and
the High Court to notice and consider the aforesaid issues as discussed by
us hereinbefore leaves us satisfied that there was no justification to grant
conditional leave to defend. The fact that there may have been commercial
relations between the parties was the ground for the institution of the
summary suit but could
 CIVIL PROCEDURE CODE

23. not per se be the justification for grant of conditional leave sans proper
consideration of the defence from the materials on record.

24. 17. In the result, the impugned orders granting conditional leave to defend
are held to be unsustainable and are set aside. The appellant is granted
unconditional leave to defend.
 CIVIL PROCEDURE CODE

25. security. Thus, even in such cases of doubts or reservations, denial of leave to
defend is not the rule; but appropriate conditions may be imposed while granting
the leave. It is only in the case where the defendant is found to be having no
substantial defence and/or raising no genuine triable issues coupled with the
Court’s view that the defence is frivolous or vexatious that the leave to defend is
to be refused and the plaintiff is entitled to judgment forthwith. Of course, in the
case where any part of the amount claimed by the plaintiff is admitted by the
defendant, leave to defend is not to be granted unless the amount so admitted is
deposited by the defendant in the Court.

17.3. Therefore, while dealing with an application seeking leave to defend, it would not be a
correct approach to proceed as if denying the leave is the rule or that the leave to defend is to
be granted only in exceptional cases or only in cases where the defence would appear to be a
meritorious one. Even in the case of raising of triable issues, with the defendant indicating his
having a fair or reasonable defence, he is ordinarily entitled to unconditional leave to defend
unless there be any strong reason to deny the leave. It gets perforce reiterated that even if
there remains a reasonable doubt about the probability of defence, sterner or higher
conditions as stated above could be imposed while granting leave but, denying the leave
would be ordinarily countenanced only in such cases where the defendant fails to show any
genuine triable issue and the Court finds the defence to be frivolous or vexatious.
Not imposing conditions is the rule in 037 suits, imposing conditions is the exception.
IDBI v Hubtown 2016 – overrule the previous two.

Pg 151
11. In considering an application to set aside ex parte decree, it is necessary to bear in
mind the distinction between suits instituted in the ordinary manner and suits filed
under Order 37 C.P.C. Rule 7 of Order 37 says that except as provided thereunder the
procedure in suits under Order 37 shall be the same as the procedure in suits instituted
in the ordinary manner. Rule 4 of Order 37 specifically provides for setting aside
decree, therefore, provisions of Rule 13 of Order 9 will not apply to a suit filed under
Order 37. In a suit filed in the ordinary manner a defendant has the right to contest the
suit as a matter of course. Nonetheless, he may be declared ex parte if he does not
appear in response to summons, or after entering appearance before framing issues; or
during or after trial. Though addressing arguments is part of trial, one can loosely say
that a defendant who remains absent at the stage of argument, is declared ex parte
after the trial. In an application under Order 9 Rule 11, if a defendant is set ex parte
and that order is set aside, he would be entitled to participate in the proceedings from
the stage he was set ex parte. But an application under Order 9 Rule 13 could be filed
on any of the grounds mentioned thereunder only after a decree is passed ex parte
against defendant. If the court is satisfied that (1) summons was not duly served, or
(2) he was prevented by sufficient cause from appearing when the suit was called for
hearing, it has to make an order setting aside the decree against him on such terms as
to cost or payment into court or otherwise as it thinks fit and thereafter on the day
fixed for hearing by court, the suit would proceed as if no ex parte decree had been
passed. But in a suit under Order 37 the procedure for appearance of defendant is
governed by provisions of Rule 3 thereof. A defendant is not entitled to defend the
suit unless he enters appearance within ten days of service of summons either in
 CIVIL PROCEDURE CODE

person or by a pleader and files in court an address for service of notices on him. In
default of his entering an appearance, the plaintiff becomes entitled to a decree for
any sum not exceeding the sum mentioned in the summons together with interest at
the rate specified, if any, upto the date of the decree together with costs. The plaintiff
will also be entitled to judgment in terms of Sub-rule (6) of Rule 3. If the defendant
enters an appearance, the plaintiff is required to serve on the defendant a summons for
judgment in the prescribed form. Within ten days from the service of such summons
for judgment, the defendant may seek leave of the court to defend the suit, which will
be granted on disclosing such facts as may be deemed sufficient to entitle him to
defend and such leave may be granted to him either unconditionally or on such terms
as the court may deem fit. Normally the court will not refuse leave unless the court is
satisfied that facts disclosed by the defendant do not indicate substantial defence or
that defence intended to be put up is frivolous or vexatious. Where a part of the
amount claimed by the plaintiff is admitted by the defendant to be due from him, no
leave to defend the suit can be granted unless the admitted amount is deposited by
him in Court. Inasmuch as Order 37 does not speak of the procedure when leave to
defend the suit is granted, the procedure applicable to suits instituted in the ordinary
manner, will apply. 153 11. It is important to note here that the power under Rule 4 of
Order 37 is not confined to setting aside the ex parte decree, it extends to staying or
setting aside the execution and giving leave to appear to the summons and to defend
the suit. We may point out that as the very purpose of Order 37 is to ensure an
expeditious hearing and disposal of the suit filed thereunder, Rule 4 empowers the
court to grant leave to the defendant to appear to summons and defend the suit if the
Court considers it reasonable so to do, on such terms as court thinks fit in addition to
setting aside the decree. Where on an application, more than one among the specified
reliefs may be granted by the Court all such reliefs must be claimed in one
application. It is not permissible to claim such reliefs in successive petitions as it
would be contrary to the letter and spirit of the provision. That is why where an
application under Rule 4 of Order 37 is filed to set aside a decree either because the
defendant did not appear in response to summons and limitation expired, or having
appeared, did not apply for leave to defend the suit in the prescribed period, the court
is empowered to grant leave to defendant to appear to the summons and to defend the
suit in the same application. It is, therefore, not enough for the defendant to show
special circumstances which prevented him from appearing or applying for leave to
defend, he has also to show by affidavit or otherwise, facts which would entitle him
leave to defend the suit. In this respect, Rule 4 of Order 37 is different from Rule 13
of Order 9. 12. Now adverting to the facts of this case, though appellant has shown
sufficient cause for his absence on the date of passing ex parte decree, he failed to
disclose facts which would entitle him to defend the case. The respondent was right in
his submission that in the application under Rule 4 of Order 37, the appellant did not
say a word about any amount being in deposit with the respondent or that the suit was
not maintainable under Order 37. From a perusal of the order under challenge, it
appears to us that the High Court, was right in accepting existing of special
circumstances justifying his not seeking leave of the court to defend, but in declining
to grant relief since he had mentioned no circumstances justifying any defence. 13. In
this view of the matter, we do not find any illegality much less jurisdictional error in
the order under challenge to warrant interference of this Court.
Point of this case – distinction between O9 and O37. Check facts of the case.
 CIVIL PROCEDURE CODE

Temporary injunctions -- (i) Monohar Lal v Heera Lal, (ii) Modi vs WSG (anti suit
injunctions), (iii) Dalpat Kumar v Prahlad.

Death of parties – Kanda Pazar – Chittrangaiya , AND Shankar Nathu v Ganga Nam Rathu

Chunni Lal v Century spinning mill, Mohammad Saud v Dr. Major Sheikh Mafuz, My palace
v B Mahesh.

Reference review and revision – Surender singh v Sohan

Limitation – Punjab NB v Surender Prasad Sinha

UOI v West Coast. S.5 of limitation. Ram Lal v Reva Coal fields. N bala krishna v
Krishnamurthy
Lanka Venkateshwara v AP, Basavraj v Scindia.
Darshan Singh v Gurdev Singh.
Section 10 – Wali Mohammad, and VK Kutti and BiLochan