L-6 Law relating to Civil Procedure

Question.

Discuss Jurisdiction of Civil Courts

Answer:

Jurisdiction of Civil Courts

Civil courts in India have the authority to hear and decide cases of a
civil nature, except those barred by law. The jurisdiction of civil
courts is classified into original and appellate jurisdiction, and
territorial and pecuniary jurisdiction.

Criteria for Determining Jurisdiction

The jurisdiction of a civil court may be limited by four criteria:
jurisdiction over the subject matter, place of suing or territorial
jurisdiction, jurisdiction over persons, and pecuniary jurisdiction
depending on the pecuniary value of the suit.

The subject matter of a case refers to the nature of the dispute, and
the court must have the authority to hear and decide cases of that
nature. Territorial jurisdiction refers to the geographical area within
which a court has the authority to hear and decide cases. Jurisdiction
over persons refers to the authority of a court to hear and decide
cases involving specific individuals or entities. Pecuniary jurisdiction
refers to the authority of a court to hear and decide cases based on
the value of the suit.

Bar to Further Suit

Section 12 of the Code of Civil Procedure puts a bar to every suit
where a plaintiff is precluded by rules from instituting a further suit
in respect of any particular cause of action. This section comes into
force only when a plaintiff is precluded by rules.
Conditions of Res Judicata
If a district court has passed an order over a dispute, the matter
cannot be reinstated in the district court again due to the principle of
Res Judicata. However, it may be brought before the appellate court
as an appeal.

Civil Court’s Jurisdiction to Try All Civil Suits Unless Barred

Section 9 of the Code of Civil Procedure states that the courts shall
have jurisdiction to try all suits of a civil nature excepting suits of
which their cognizance is either expressly or impliedly barred. Civil
courts have jurisdiction to entertain a suit of civil nature unless
barred by law. Every person has an inherent right to bring a suit of a
civil nature. Civil court has jurisdiction to decide the question of its
jurisdiction although as a result of the inquiry it may be found that it
has no jurisdiction over the matter.

Conclusion
In conclusion, the jurisdiction of civil courts in India is classified into
original and appellate jurisdiction, and territorial and pecuniary
jurisdiction. The criteria for determining jurisdiction include
jurisdiction over the subject matter, place of suing or territorial
jurisdiction, jurisdiction over persons, and pecuniary jurisdiction
depending on the pecuniary value of the suit. Civil courts have
jurisdiction to try all civil suits unless barred by law.

Question.

Define following terms: (i) Order (ii) Judgement (iii) Decree (iv)
Revision (v) Appeal (vi) Reference (vii) Review

Answer:
(i) Order: An order is a formal expression of any decision of a civil
court that is not a decree. It is a formal expression of the court’s
decision on a particular issue in a case, but it does not conclusively
determine the rights and liabilities of the parties with regard to all or
any of the matters in controversy in the suit. Appeals from orders are
limited to those expressly provided for under Section 104 and Order
43 Rule 1 of the Code of Civil Procedure (CPC).

(ii) Judgement: A judgment is a statement given by the judge of his

grounds in respect of a decree or order. It is a formal expression of
the court’s decision on a particular issue in a case, and it includes the
court’s reasoning and findings of fact and law. Judgments and orders
are usually engrossed in two separate documents, but the fact that
both are engrossed in the same document does not deprive the
statement of reasons and the formal expression of a decision of their
character as judgment or order, as the case may be.

(iii) Decree: A decree is a formal expression of adjudication

conclusively determining the rights of parties with regard to all or
any of the controversies in a suit. It conclusively determines the
rights and liabilities of the parties with regard to all or any of the
matters in controversy in the suit and may be either preliminary or
final. A person in whose favour a decree has been passed not only
includes a plaintiff but also includes a defendant in cases like a
decree for specific performance of an agreement executable by
either party.

(iv) Revision: Revision is a legal remedy available to a party aggrieved

by an order of a subordinate court. It is a discretionary power vested
in the High Court to call for the record of any case that has been
decided by any court subordinate to it and to examine the legality or
propriety of any order passed by such court. The High Court may
make such orders as it thinks fit, including an order enhancing,
reducing, or setting aside the sentence or order passed by the
subordinate court.

(v) Appeal: An appeal is a legal remedy available to a party aggrieved

by a decree or order of a court. It is a statutory right conferred on a
party to have the decision of a lower court reviewed by a higher
court. The right of appeal is not an inherent right, but it is a creature
of statute. The right of appeal is subject to certain conditions and
limitations prescribed by law.

(vi) Reference: A reference is a legal process by which a subordinate

court refers a question of law to a higher court for its opinion. The
reference is made when the subordinate court is in doubt about the
correct interpretation or application of a provision of law. The
opinion of the higher court is not binding on the subordinate court,
but it is entitled to great weight and respect.

(vii) Review: Review is a legal remedy available to a party aggrieved

by a decree or order of a court. It is a discretionary power vested in
the court to review its own decision on certain grounds, such as
discovery of new and important matter or evidence, mistake or error
apparent on the face of the record, or any other sufficient reason.
The power of review is not an inherent power of the court, but it is a
creature of statute. The power of review is subject to certain
conditions and limitations prescribed by law.

Question.

What is res judicata and stay of suits?

Answer:
Res Judicata and Stay of Suits in Civil Procedure
Res Judicata is a legal principle that prevents a dispute from being
reinstated in the district court again, but it can be brought before the
appellate court as an appeal. It prevents two different decrees on the
same subject. Section 11 of the Code of Civil Procedure says that
once a res is judicata, it shall not be adjudged again. The principle
applies to suits in Section 11 of the Code; but even where Section 11
does not apply, the principle of res judicata has been applied by
Courts for the purpose of giving finality to litigation. For the
applicability of the principle of res judicata embodied in Section 11,
the following requirements are necessary:
(1) The matter directly and substantially in issue in the former suit
shall also be directly and substantially in issue in the later suit.

(2) The former suit has been decided – former suit means which is
decided earlier.

(3) The said issue has been heard and finally decided.

(4) Such former suit and the latter are between the same parties or
litigation under the same title or persons claiming under parties
above. In short, this principle applies where an issue which has been
raised in a subsequent suit was directly and substantially in issue in a
former suit between the same parties and was heard and decided
finally. Findings incidentally recorded do not operate as res judicata.

Section 12 of the Code of Civil Procedure bars further suits when a

plaintiff is precluded by rules from instituting a further suit in respect
of any particular cause of action. Section comes into force only when
a plaintiff is precluded by rules.

Question.

Briefly discuss the provisions relating to inherent powers of the

Court

Answer:

Provisions Relating to Inherent Powers of the Court in Civil

Procedure
Before discussing the provisions relating to inherent powers of the
court in civil procedure, it is important to understand what inherent
powers are. Inherent powers are those powers that are not expressly
provided in the Code of Civil Procedure, 1908 (hereinafter referred to
as the Code), but are necessary for the effective administration of
justice. These powers are complementary to the powers specifically
conferred by the Code and can be exercised by the court when the
matter is not covered by any specific provision in the Code and the
exercise of those powers would not be in conflict with what has been
expressly provided in the Code or be against the intention of the
legislature.

Provisions Governing the Exercise of Inherent Powers

The exercise of inherent powers by the court is governed by certain
provisions. Section 151 of the Code provides that nothing in the Code
shall be deemed to limit or otherwise affect the inherent power of
the court to make such orders as may be necessary for the ends of
justice or to prevent abuse of the process of the court. However, the
court cannot make use of the special provisions of Section 151 of the
Code, where the remedy or procedure is provided in the Code.

Limitations on the Exercise of Inherent Powers

While exercising the inherent power, the court will be doubly
cautious, as there is no legislative guidance to deal with the
procedural situation and the exercise of power depends upon the
discretion and wisdom of the court, and in the facts and
circumstances of the case. The absence of an express provision in the
Code and the recognition and saving of the inherent power of a
court, should not however be treated as a carte blanche to grant any
relief. The power under Section 151 will have to be used with
circumspection and care, only where it is absolutely necessary, when
there is no provision in the Code governing the matter, when the
bona fides of the applicant cannot be doubted, when such exercise is
to meet the ends of justice and to prevent abuse of process of court.

The court has no power to do that which is prohibited by law or the

Code, by purported exercise of its inherent powers. If the Code
contains provisions dealing with a particular topic or aspect, and
such provisions either expressly or by necessary implication exhaust
the scope of the power of the court or the jurisdiction that may be
exercised in relation to that matter, the inherent power cannot be
invoked in order to cut across the powers conferred by the Code or
in a manner inconsistent with such provisions.
Conclusion
In conclusion, inherent powers of the court are necessary for the
effective administration of justice. However, the exercise of these
powers is governed by certain provisions and limitations. The court
must exercise these powers with circumspection and care, only
where it is absolutely necessary, when there is no provision in the
Code governing the matter, when the bona fides of the applicant
cannot be doubted, when such exercise is to meet the ends of justice
and to prevent abuse of process of court.

Question.

Explain in brief Summary Procedure

Answer:

Summary Procedure
Summary procedure is a legal process that allows for the speedy
resolution of minor offenses or disputes. It is governed by Sections
260-265 of the Code of Criminal Procedure, 1908, and is intended to
provide a quick and efficient means of resolving certain types of
litigation concerning the commercial community in large commercial
towns. The relevant provisions of the summary procedure show that
the object is to expeditiously handle and bring to an end certain type
of litigation, including the realization of the decretal amount, if a
decree is passed. This is intended to give impetus to commerce and
industry and thereby benefit the place as a whole by inspiring
confidence in the large commercial population of the town that their
causes in respect of monetary claims of liquidated amounts would be
justly and expeditiously disposed of and their claims will not hang on
for years blocking their money and transactions for long periods with
a comparatively greater disadvantage to them than in litigation of
other types.
Offenses that can be tried in a summary way.
A Chief Judicial Magistrate or Metropolitan Magistrate and any
Magistrate of the first class specially empowered in this behalf by the
High Court may try a suit in a summary way. The following offenses
may be tried in a summary way:

(i) offenses not punishable with death, imprisonment for life or

imprisonment for a term exceeding two years

(ii) theft where the value of the property stolen does not exceed
two thousand rupees

(iii) receiving or retaining stolen property, where the value of

the property does not exceed two thousand rupees

(iv) assisting in the concealment or disposal of stolen property

where the value of such property does not exceed two
thousand rupees

(v) offenses under sections 454 and 456 of the Indian Penal
Code relating to Lurking house-trespass or house-breaking

(vi) insult with intent to provoke a breach of the peace and

criminal intimidation punishable with imprisonment for a
term which may extend to two years, or with fine, or with
both

(vii) abetment of any of the foregoing offenses

(viii) an attempt to commit any of the foregoing offenses, when

such attempt is an offense

(ix) any offense constituted by an act in respect of which a

complaint may be made under section 20 of the Cattle-
trespass Act, 1871.
Procedure by way of summary suit
Order 37 provides for a summary procedure in respect of certain
suits. A procedure by way of summary suit applies to suits upon bill
of exchange, hundis or promissory notes, or to 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, on a
written contract.

In conclusion, summary procedure is a legal process that allows for

the speedy resolution of minor offenses or disputes. It is intended to
provide a quick and efficient means of resolving certain types of
litigation concerning the commercial community in large commercial
towns. The procedure by way of summary suit applies to suits upon
bill of exchange, hundis or promissory notes, or to 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, on a
written contract. It is important to note that if in the course of a
summary trial it appears to the Magistrate that the nature of the
case is such that it is undesirable to try it summarily, the Magistrate
can recall any witnesses who may have been examined and proceed
to re-hear the case in the manner provided by the Civil Procedure
Code.

Question.

Explain the important stages in proceeding of a suit

Answer:
Important Stages in Proceeding of a Suit
When a suit is filed, it goes through various stages before a final
judgment is passed. These stages are elaborately laid down under
the Code of Civil Procedure, 1908. Let’s discuss the important stages
in the proceeding of a suit.
Stage 1: Filing of the Suit
The first stage in the proceeding of a suit is the filing of the suit. The
plaintiff files a plaint in the court of law, which contains the facts of
the case, the relief sought, and the grounds on which the relief is
sought. The plaint must be filed in the court having jurisdiction over
the matter. The court then issues a summons to the defendant,
asking him to appear before the court and file a written statement in
response to the plaint.

Stage 2: Written Statement

The second stage in the proceeding of a suit is the filing of a written
statement by the defendant. The written statement contains the
defendant’s version of the facts of the case, the grounds on which he
denies the plaintiff’s claim, and the relief sought by the defendant.
The defendant must file the written statement within 30 days of
receiving the summons. If the defendant fails to file the written
statement within the stipulated time, the court may proceed with
the case ex-parte.

Stage 3: Framing of Issues

The third stage in the proceeding of a suit is the framing of issues.
Issues arise when a material proposition of fact or law is affirmed by
one party and denied by the other. Issues may be either of fact or of
law. The court frames the issues based on the material propositions
of law and fact contained in the plaint and the written statement.
The court must frame the issues at the first hearing of the suit after
reading the plaint and the written statement and after ascertaining
and examining the parties if necessary regarding the material
propositions of law and fact.

Stage 4: Evidence
The fourth stage in the proceeding of a suit is the evidence stage. In
this stage, both parties produce evidence to prove their respective
cases. The evidence may be oral or documentary. The court
examines the evidence produced by both parties and decides the
case based on the evidence produced. The court may also summon
and examine witnesses if necessary.

Stage 5: Arguments and Judgment

The fifth and final stage in the proceeding of a suit is the arguments
and judgment stage. In this stage, both parties present their
arguments before the court. The court then passes a judgment based
on the evidence produced and the arguments presented. The
judgment may be in favor of the plaintiff or the defendant, and it
may grant or deny the relief sought by the parties.

In conclusion, the proceeding of a suit involves various stages,

starting from the filing of the suit to the passing of the judgment.
Each stage is important and must be followed meticulously to ensure
a fair and just outcome.

Question.

Write a short note on Commercial Court Act, 2015.

Answer.
Commercial Court Act, 2015
The Commercial Court Act, 2015 was introduced by the Government
of India to reduce the burden on the judiciary with respect to
commercial disputes. The main emphasis of this act is on commercial
disputes which are special in nature since they affect the economy of
a nation, directly or indirectly. The act provides for the constitution
of Commercial Courts, Commercial Division, and Commercial
Appellate Division in the High Courts for adjudicating commercial
disputes of specified value and matters connected therewith or
incidental thereto.

Commercial Courts
According to Section 3 of the act, the State Government may, with
the consultation of the respective High Court, constitute the
Commercial Courts at the District level, as it may deem necessary for
the purpose of exercising the jurisdiction and powers conferred on
those Courts under this Act. The State Government, after
consultation with the High Court, may specify pecuniary value which
shall not be less than three lakh rupees or such higher value. It may
also extend, alter, and reduce the jurisdiction of such court within
local limits. The act enables speedy redressal of cases holding large
economic value.

Jurisdiction
According to Section 6 of the act, the Commercial Court shall have
jurisdiction to try all suits and applications relating to a commercial
dispute of a specified value arising out of the entire territory of the
State over which it has been vested territorial jurisdiction by State
Government with the assistance of limitations prescribed by any law.
The act was established for speedy adjudication of commercial
disputes of specified value and matters pertaining to large economic
interest.

In conclusion, the Commercial Court Act, 2015 was introduced to

reduce the burden on the judiciary with respect to commercial
disputes. The act provides for the constitution of Commercial Courts,
Commercial Division, and Commercial Appellate Division in the High
Courts for adjudicating commercial disputes of specified value and
matters connected therewith or incidental thereto. The act enables
speedy redressal of cases holding large economic value.

Question.

Discuss the provision related to pre mediation under the

Commercial Courts Act, 2015.

Answer.
Provision related to Pre-Mediation under the Commercial Courts Act,
2015
The Commercial Courts Act, 2015 was introduced to establish
Commercial Courts for speedy adjudication of commercial disputes
of specified value and matters pertaining to large economic interest.
The act provides for the constitution of Commercial Courts,
Commercial Division, and Commercial Appellate Division in the High
Courts. The act aims to reduce the burden on the judiciary with
respect to commercial disputes and enable speedy redressal of
disputes.

Pre-Institution Mediation and Settlement

The Commercial Courts Act, 2015 provides for pre-institution
mediation and settlement of commercial disputes. The very purpose
of this Act was to resolve the commercial disputes without bringing
them to the court of law through mediation. Prior to approaching a
commercial court for dispute commercial in nature, the Act requires
that parties attempt to settle their issues through mediation. The
Central Government may authorize the Authorities constituted under
the Legal Services Authorities Act, 1987 for the purposes of pre-
institution mediation .

Time Period for Pre-Litigation Mediation

The process of pre-litigation mediation shall be completed within a
period of three months from the date of application made. It can be
extended for a further period of two months with the consent of the
parties .

Award/Settlement of Pre-Litigation Mediation

The award or settlement of pre-litigation mediation shall be in
writing and signed by the parties to the dispute and the mediator.
The award shall have the same status and effect as of an arbitral
award under section 30(4) of the Arbitration and Conciliation Act,
1996.

Appeals
Any person aggrieved by the judgment or order of a Commercial
Court shall within sixty days of such judgment may file an appeal. If
he is aggrieved by the judgment.
In conclusion, the Commercial Courts Act, 2015 provides for pre-
institution mediation and settlement of commercial disputes. The
process of pre-litigation mediation shall be completed within a
period of three months from the date of application made. The
award or settlement of pre-litigation mediation shall be in writing
and signed by the parties to the dispute and the mediator. The
award shall have the same status and effect as of an arbitral award
under section 30(4) of the Arbitration and Conciliation Act, 1996.

Question.

Explain case law Padam Sen and Ors. vs. The State of Uttar Pradesh
(27.09.1960 – SC) : 1961 AIR 218

Answer.
Case Law Padam Sen and Ors. vs. The State of Uttar Pradesh
(27.09.1960 – SC) : 1961 AIR 218
This case law pertains to the inherent powers of the court and their
exercise in civil procedure. The court held that inherent powers of
the court are not defined anywhere and can be freely exercised at
the discretion of the court, as it may deem fit, but it shall not be in
conflict or against the intention of the legislature.

The court further stated that the inherent powers of the court are in
addition to the powers specifically conferred on the court by the
Code of Civil Procedure. They are complementary to those powers
and therefore the court is free to exercise them for the purposes
mentioned in Section 151 of the Code when the exercise of those
powers is not in any way in conflict with what has been expressly
provided in the Code or against the intentions of the Legislature.

In essence, this case law establishes that the court has inherent
powers that can be exercised in addition to the powers conferred by
the Code of Civil Procedure. These powers can be exercised at the
discretion of the court, as long as they are not in conflict with the
Code or against the intentions of the Legislature.
Conclusion
In conclusion, the case law Padam Sen and Ors. vs. The State of Uttar
Pradesh (27.09.1960 – SC) : 1961 AIR 218 establishes the inherent
powers of the court and their exercise in civil procedure. It is an
important case law that has been cited in many subsequent cases
and is relevant to the understanding of the powers of the court in
civil procedure.

Question.
The Civil Court has power to grant temporary injunction, but for
obtaining the same the plaintiff is
required to satisfy the Court. Explain in brief.
Answer.
The Court may grant temporary injunction to restrain any such act or
make such other order for the purpose of staying and preventing the
wasting, damaging, alienation or sale or removal or disposition of the
property or dispossession of the plaintiff, or otherwise causing injury
to the plaintiff in relation to any property in dispute in the suit;
where it is proved by affidavit or otherwise:
a. that any property in dispute in a suit is in danger of being wasted,
damaged or alienated by any party to the suit, or wrongfully sold in
execution of a decree, or
b. that the defendant threatens, or intends to remove or dispose of
his property with a view to defrauding his creditors, or
c. that the defendant threatens to dispossess the plaintiff or
otherwise cause injury to the plaintiff in relation to any property in
dispute in the suit.
It would be necessary for the plaintiff to satisfy the Court that
 (i) substantial and irreparable harm or injury would be suffered
by him if such temporary injunction (till the disposal of the
suit) is not granted
(ii) the balance of convenience lies in his/ her favour and
(iii) that such loss or damage or harm cannot be compensated
by damages.

Question.
Explain provisions of summary procedure’ including leave to defend
under Civil Procedure Code.
Answer.
Order 37 of the Civil Procedure Code provides for a summary
procedure in respect of certain suits. The object is to prevent
unreasonable obstruction by a defendant. A procedure by way of
summary suit applies to suits upon bill of exchange, hundies or
promissory notes, when the plaintiff desires to proceed under the
provisions of Order 37.
The rules for summary procedure are applicable to the High Courts,
City Civil Courts and Small Courts and such other Courts.
Leave to defend
Order 37 Rule 3 of the Civil Procedure Code prescribe the mode of
service of summons etc. and leave to defend. The defendant is not
entitled to defend the suit unless he enters an appearance within 10
days from the service of summons.
Such leave to defend may be granted unconditional or upon such
term as the Court or the Judge may think fit. However, such leave
shall not be granted where:
(1) the Court is satisfied that the facts disclosed by the defendant do
not indicate that he has a substantial defence or that the defences
are frivolous or veracious, and
(2) the part of the amount claimed by the plaintiff and admitted by
the defendant to be due from him is not deposited by him in the
Court.
On the hearing of such summons for judgement, the plaintiff shall be
entitled to judgement provided the defendant has not applied for
leave to defend or if such application has been made and is refused
or where the defendant is permitted to defend but he fails to give
the required security within the prescribed time or to carry out such
other precautions as may have been directed by the Court.
After decree, the Court may, under special circumstances set-aside
the decree and if necessary stay or set aside execution, and may give
leave to the defendant to appear and to defend the suit. (Order 37
Rule 4).

Question.
In a civil case what remedies are available for the defendant against
whom an ex-parte decree has been passed by the court?
Answer.
In a civil case, a defendant has four remedies available if an ex-parte
decree is passed against him:
i) He may file an appeal against the ex-parte decree under Section 96
of the Civil Procedure Code.
ii) He may file an application for review of the judgement. (Order 47,
Rule 1 of the Civil Procedure Code)
iii) He may apply for setting aside the ex-parte decree.
iv) A suit can also be filed to set aside an ex-parte decree obtained by
fraud but no suit shall lie for non-service of summons.

Question.
Explain the Cause of actions under the Code of Civil Procedure, 1908.
[June 2012 (4 Marks)]
Answer:
Cause of action means every fact that it would be necessary for the
plaintiff to prove in order to support his right to the judgment of the
Court. It means all the essential facts constituting the rights and their
infringement.

It means every fact which will be necessary for the plaintiff to prove
if traversed in order to support his right to the judgment.

A suit was instituted by the Plaintiff Company alleging infringement

by the Defendant Company for using the trade name of the medicine
and selling the same in wrapper and carton of identical designs with
the same color combination, etc., as that of Plaintiff Company. A
subsequent suit was instituted in a different Court by the Defendant
Company against the Plaintiff Company with similar allegations. In
such a situation, advise the Plaintiff Company on the procedure
adopted by the Courts. [Dec 2009 (5 Marks)]
Answer:
As per Section 10 of the Civil Procedure Code, 1908, if the suit is
pending in one Court then another Court cannot take such suit in
which matter is the same. The doctrine of res sub-judice is applicable
in this case.

In the given case, the parties are the same in both suits, and the
subject matter of both suits is also the same, the second suit would
be barred by the application of the principle of res sub judice as per
Section 10.
Question 4.
A suit was instituted by the Plaintiff Company alleging infringement
by the Defendant Company for using the trade name of the medicine
and selling the same in wrapper and carton of identical designs with
the same color combination, etc., as that of Plaintiff Company. A
subsequent suit was instituted in a different Court by the Defendant
Company against the Plaintiff Company with similar allegations. In
such a situation, advise the Plaintiff Company on the procedure
adopted by the Courts. [Dec 2009 (5 Marks)]
Answer:
As per Section 10 of the Civil Procedure Code, 1908, if the suit is
pending in one Court then another Court cannot take such suit in
which matter is the same. The doctrine of res sub-judice is applicable
in this case.

In the given case, the parties are the same in both suits, and the
subject matter of both suits is also the same, the second suit would
be barred by the application of the principle of res sub judice as per
Section 10.

Question.
Discuss the doctrine of ‘Res Sub Judice’ under Section 10 of the Civil
Procedure Code, 1908. [Dec 2018 (5 Marks)]
Answer:
If the suit is pending before one court then another court can’t make
the suit in which the matter and parties are the same.
Conditions for applying the doctrine of res sub-judice:
1. Two suits filed with the court at different times
2. Matter in issue is directly and substantially in the former issue.
3. Earlier suit is pending before court (not before the foreign court)
4. Parties to the suits are the same
The objective of this doctrine is to avoid multiplicity of proceedings
and to avoid contradictory judgment.

Question 8.
Discuss the doctrine of res judicata under section 11 of the Code of
Civil Procedure, 1908. [Dec 2009 (5 Marks)]
Answer:
Res judicata [Section 11]: No Court shall try any suit or issue in which
j the matter directly and substantially in issue has been directly and
substantially | in issue in a former suit between the same parties, in
a Court competent 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.
In simple words, once a matter is finally decided by a competent
Court, no party y can be permitted to reopen it in subsequent
litigation.
Essential conditions of res judicata:
a. The matter must be directly and substantially in issue in two
suits.
b. The prior suit should be between the same parties.
c. Parties should have litigated under the same title.
d. The court determined the earlier suit must be competent to
try the 1 latter suit.
e. The same question is directly and substantially in issue in the
latter suit.
Question.
A real estate company has its head office in Delhi and branch offices
at Ahmedabad, Patna, and Indore. A dispute cropped up between
Sourabh and the company in respect of a transaction through the
Ahmedabad office. Sourabh files a suit in respect of this dispute
against the company in a court at Patna. How will the court decide?
[June 2014 (6 Marks)]
Answer:
As per Section 20 of the Civil Procedure Code, 1908, subject to
provision of Sections 15 to 19:
(a) Every suit shall be instituted in Court within the local limits of
whose jurisdiction the defendant actually and voluntarily resides, or
carries on business, or personally works for gain.

(b) If there is more than one defendant’s suit shall be instituted in

Court within the local limits of whose jurisdiction any of the
defendants, at the j time of the commencement of the suit actually
and voluntarily resides, or carries on business, or personally works
for gain. However, in such [ case the leave of the Court has to be
taken or the defendants who do not | reside, or carry on business, or
personally work for gain, acquiesce in j such institution.

(c) Suit can also be instituted where the cause of action, wholly or in
part, arises.
Explanation: A corporation shall be deemed to carry on business at
its sole or principal office in India or, in respect of any cause of action
arising at any place where it has also a subordinate office, at such
place.

Accordingly, the suit filed in the Jaipur Court will be dismissed on

account of jurisdiction. The suit ought to have been filed in Court of:

 Chennai where the cause of action arisen or

 Delhi where the corporation has its principal office.

Question.
The Civil Court has the power to grant a temporary injunction, but
for obtaining the same the plaintiff is required to satisfy the Court.
Explain in brief. [June 2019 (4 Marks)]
Answer:
The Court may grant a temporary injunction to restrain any such act
or make such other order for the purpose of staying and preventing
the wasting, damaging, alienation or sale or removal or disposition of
the property or dispossession of the plaintiff, or otherwise causing
injury to the plaintiff in relation to any property in dispute in the suit;
where it is proved by affidavit or otherwise:

1. that any property in dispute in a suit is in danger of being

wasted, damaged, or alienated by any party to the suit, or
wrongfully sold in execution of a decree, or
2. that the defendant threatens, or intends to remove or
dispose of his property with a view to defrauding his
creditors, or
3. that the defendant threatens to dispossess the plaintiff or
otherwise cause injury to the plaintiff in relation to any
property in dispute in the suit.
It would be necessary for the plaintiff to satisfy the Court that

1. substantial and irreparable harm or injury would be

suffered by him if such temporary injunction (till the
disposal of the suit) is not granted
2. the balance of convenience lies in his/her favor and
3. that such loss or damage or harm cannot be compensated
by damages.

Question.
What do you understand by ‘set off’ and ‘counter-claim under the
Civil Procedure Code, 1908? What is the effect of set-off? [Dec 2019
(4 Marks)]
Answer:
Set-off [Order 8, Rule 6]: Set-off is a reciprocal acquittal of debts
between the plaintiff and defendant. It has the effect of
extinguishing the plaintiff’s claim to the extent of the amount
claimed by the defendant as a claim.

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 plaintiff and where both parties fill
the same character, the defendant may, at the first hearing of the
suit, but not afterward unless permitted by the Court, present a
written statement containing the particulars of the debt sought to be
set-off.

Counter-claim [Order 8, Rule 6A]: A defendant in a suit may, in

addition to his right of pleading a set-off, set up by way of counter-
claim against the claim of the plaintiff, any right or claim in respect of
a cause of action accruing to the defendant against the plaintiff
either before or after the filing of the suit but before the defendant
has delivered his defense or before the time limited for delivering his
defense has expired, whether such counter-claim is in the nature of
the claim for damages or not.