Civil Procedure Code

Submitted by – Amey Todankar

Roll No – 2425354

T.Y LL.B

Lala Lajpatrai College of Law, Mahalaxmi

Professor – Neeta Rajani Mam

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 Contents
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Page
Topic
No

Parties to a suit (Order I - Order III) 3

Pleadings, Plaint and Written Statement (Order VI - Order VIII) 7

Appearance of Parties & Consequence of Non Appearance (Order IX) 18

Suits by Indigent Persons (Pauper suits) 25

Suits by or against minor & persons of unsound mind 37

Interpleader suits 45

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Parties to a suit (Order I - Order III)

1. Who may be joined as plaintiffs.-

All persons may be joined in one suit as plaintiffs where-

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or
transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and

(b) if such persons brought separate suits, any common question of law or fact would arise.]

1. Subs. by Act 104 of 1976, s. 52, for rules 1 and 3 respectively (w.e.f. 1-2-1977).

2. Ins. by s. 52, ibid. (w.e.f. 1-2-1977).

2. Power of Court to order separate trial.-

Where it appears to the Court that any joinder of plaintiffs may embarrass or delay the trial of the
suit, the Court may put the plaintiffs to the election or order separate trials or make such other
order as may be expedient.

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[3. Who may be joined as defendants.-

All persons may be joined in one suit as defendants where-

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or
transactions is alleged to exist against such persons, whether jointly, severally or in the alternative;
and

(b) if separate suits were brought against such persons, any common question of law or fact would
arise.]

1. Subs. by Act 104 of 1976, s. 52, for rule 8 (w.e.f. 1-2-1977).

2
[3A. Power to order separate trials where joinder of defendants may embarrass or delay trial.-

Where it appears to the Court that any joinder of defendants may embarrass or delay the trial of the
suit, the Court may order separate trials or make such other order as may be expedient in the
interests of justice.]

2. Ins. by s. 52, ibid. (w.e.f. 1-2-1977).

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;

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(b) against such one or more of the defendants as may be found to be liable, according to their
respective liabilities.

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.

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.

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.

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[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).

(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.

(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.

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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 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.]

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[8A. Power of Court to permit a person or body of persons to present opinion or to take part in
the proceedings.-

While trying a suit, the Court may, if satisfied that a person or body of persons is interested in any
question of law which is directly and substantially in issue in the suit and that it is necessary in the
public interest to allow that person or body of persons to present his or its opinion on that question
of law, permit that person or body of persons to present such opinion and to take such part in the
proceedings of the suit as the Court may specify.]

2. Ins. by Act 104 of 1976, s. 52 (w.e.f. 1-2-1977).

9. Misjoinder and non-joinder.-

No suit shall be defeated by reason of the misjoinder 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:

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[Provided that nothing in this rule shall apply to non-joinder of a necessary party.]

3. Subs. by s. 52, ibid., for "the suit" (w.e.f. 1-2-1977).

10. Suit in name of wrong plaintiff.-

(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is
doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage
of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is
necessary for the determination of the real matter in dispute so to do, order any other person to be
substituted or added as plaintiff upon such terms as the Court thinks just.

(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 terms as may appear 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 ought 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.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a
plaintiff under any disability without his consent.

(4) Where defendant added, plaint to be amended.- Where a defendant is added, the plaint shall,
unless the Court otherwise directs, be amended in such manner as may be necessary, and amended
copies of the summons and of the plaint shall be served on the new defendant and, if the Court
thinks fit, on the original defendant

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(5) Subject to the provisions of the 1[Indian Limitation Act, 1877 (XV of 1877)], section 22, the
proceedings as against any person added as defendant shall be deemed to have begun only on the
service of the summons.

1. See now the Limitation Act, 1963 (36 of 1963), s. 21.

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[10A. Power of Court to request any pleader to address it.-

The Court may, in its discretion, request any pleader to address it as to any interest which is likely to
be affected by its decision on any matter in issue in any suit or proceeding, if the party having the
interest which is likely to be so affected is not represented by any pleader.]

2. Ins. by Act 104 of 1976, s. 52 (w.e.f. 1-2-1977).

11. Conduct of suit.-

The Court may give the conduct of 3[a suit] to such persons as it deems proper.

3. The proviso added by, ibid., s. 52 (w.e.f. 1-2-1977).

12. Appearance of one of several plaintiffs or defendants for others.-

(1) Where there are more plaintiffs than one, any one or more of them may be authorized by any
other of them to appear, plead or act for such other in any proceeding; and in like manner, where
there are more defendants than one, any one or more of them may be authorized by any other of
them to appear, plead or act for such other in any proceeding.

(2) The authority shall be in writing signed by the party giving it and shall be filed in Court.

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.

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Pleadings, Plaint and Written Statement (Order VI - Order VIII)
Pleadings
Fundamentals of Pleading: Order-VI

In the court of law, pleadings serve as the case's skeleton or its basis. Pleadings are specifically
covered in Order VI of the Code of Civil Procedure, 1908 and it talks about Pleadings in General.
Order VI contains 18 rules altogether. According to the provision of this act, pleading means a plaint
or written statement.

In the case of Maria Margarida Sequeria Fernandes v. Erasmo Jack De Squeria[1]it was stated that-
Pleading being the foundation of litigation must contain only relevant material by excluding
irrelevant and unnecessary information.

 Rule 1 talks about Pleading.

 Rule 2 outlines the basic principle of Pleading.
 Rule 3- 13 mandates the parties to provide with the required documents.
 Rule 14-15 covers the signing and verification of pleading respectively.
 Rule 16 grants the power to the court to strike out pleadings at any stage of proceedings.
 Rule 17-18 talk about the amendment of pleadings.

According to P.C. Mogha - pleading is a statement in writing drawn up and file by each party in any
suit. It includes all those things upon which the suit is a frame and the defendant submit his own
written statement.[2] The initial stage of a lawsuit called pleading, parties formally present their
claims and defences.

In this, a plaintiff submits a complaint, or plaint, outlining their cause of action and the issues at
hand. The defendant provides a written statement in response outlining his or her defences and
denies. A counterclaim naming a cause of action against the plaintiff may also be submitted by the
defendant. An essential purpose of pleadings is to inform the defendant that a lawsuit has been filed
against him. Additionally, it informs the plaintiff of the defendant's plans in relation to the lawsuit.

Objective
Pleading helps the parties understand the details of the claim made against them by the adverse
party, saving time and money. In the past, when pleadings were not common and parties used to
argue their case in court, it occasionally happened that parties took a long time to respond to claims
because of the sudden and new arguments of the opposing party. The main goal of pleading is to
focus on the key issues and paint a precise picture of the case, which improves and speeds up the
court process.

The pleadings assist both parties in understanding their points of contention and where they diverge
so that they can present the most pertinent arguments and evidence in court. In the case of Throp v.
Holdsworth[3]it was held that:

The whole object of pleading is to bring parties to an issue and the meaning of the rules relating to

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pleadings was to prevent the issues bring enlarged, which would prevent other parties from knowing
when the cause came on for trial, what the real point to be discussed and decided.

Fundamentals Of Pleading
Sub-rule (1) of Rule 2 (order VI) states the fundamentals of pleadings:

1. The first fundamental of rule of pleading is that it should only state facts and not the law.
2. The facts that are stated in the pleading must be material facts.
3. It should never state or disclose the evidence.
4. The facts stated in the pleading must be in a concise form.

Facts and not law

In the case of Kedar Lal v. Hari Lal[4] the Supreme Court ruled that in a civil lawsuit, the parties are
only required to describe the events that occurred and the basis for their claims in their pleadings; it
is the judiciary's responsibility to apply the law. It implies that the parties should outline their claims
and the reasons why they should be accepted.

Material facts
The term "material fact" is not specifically defined in the CPC, 1908 or any other law. In Udhav Singh
v. Madhav Rao Scindia,[5] the Supreme Court provided the following definition of "material fact":
According to the court, "material facts" are all those important details that the parties rely on to
support their claims and establish their causes of action or to make a strong defence or counterclaim
against the party making the initial claim.

The courts have noted that determining what facts or information qualifies as a material fact is a
subjective matter that will be decided by the court on an individual basis depending on the facts and
circumstances of each case.

Facts and not evidence

This rule mandates that the evidence in the pleadings be excluded. In other words, the party is not
required to mention the witnesses or documentary evidence that it intends to present to the court
in order to use against the opposing party. This is done to guarantee the safety of the evidence and
the fairness of a trial. According to jurisprudence, there are two different types of facts: facta
probanda and facta probantia.

 Facts probanda: material facts

 Facts probantia: evidence

Concise form
The last and most important fundamental rule, also known as the "rule of brevity," calls for the
pleadings to be concise, clear, and limited to the interpretation that the pleader wishes to convey.
Not only should the pleading be brief, but it also needs to be precise. Even though the pleading must
be concise, it must also be accurate and certain. For the sake of brevity, pleadings shouldn't be
compromised in terms of clarity and specificity. However, this does not imply that the facts that
must be stated are so brief as to lose their significance in the pleadings.

The very goal and objectives of pleading are to discover the true source of controversy and it would

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be defeated if there is a lack of precision in the arguments. The Golden Rule of pleading states that
the facts must be presented in such a way that neither important nor irrelevant information is left
out or included.

The Supreme Court made the following observation in the case of Virendra Kashinath v. Vinayak N.
Joshi[6]:
"Pleadings must be brief and niggling [i.e. causing slight but persistent annoyance, discomfort, or
anxiety should be avoided.]" However, this does not imply that crucial information must be left out
or overlooked in an effort to achieve brevity. According to the court, if syntax errors and drafting
style are avoided, pleadings can be clear and legible.

Other Rules Of Pleading

Rule 3 to Rule 16 (Order VI) talks about other rules of pleading:

 Specific details with regard to dates and items should be mentioned in the pleadings in a
case for misrepresentation, criminal breach of trust, fraud, or willful default in payment of
due.

 It is not necessary to mention a condition precedent to filing a lawsuit if it has been satisfied.
If it is not, it is crucial to mention the fact and provide justifications. For instance, no legal
action against the government may be brought without two months' notice under Section 80
of the CPC. Therefore, the plaintiff must mention this as well as the reason for non-
adherence if the notice is not served.

 If no new allegations or grounds for a claim are added to the initial pleadings, a pleading may
be amended at a later stage of the proceeding.

 Each pleading must be signed by the party whose pleading it is, must be verified by the party
whose pleading it is, and must be accompanied by a sworn affidavit that serves as the party's
deposition.

 Documents need not be fully described in the pleadings unless their content is crucial.

 When a person's malice, fraudulent intention, knowledge, or other mental state is relevant,
it may be alleged in the pleading only as a fact without stating the specific circumstances
from which it is to be inferred. Such circumstances actually serve as material fact evidence.

 When giving notice to a person is required or a condition precedent, pleadings should only
mention giving the notice; they shouldn't specify its exact form or duration, or the
circumstances from which it should be inferred, unless those details are crucial.

 Implied agreements or relationships between people may be stated as a fact, and a general
plea should be made based on correspondence, a conversation, or other evidence.

 It is not necessary to plead facts that the court presumes to be true or that the other side
must prove. Every claim must be signed by the claimant, one of the claimants, or his or her
pleader.

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  A party to the action must provide his address. He should also include the other party's
address.

 Each pleading must be verified on an affidavit by the party, one of the parties, or a third
party who is familiar with the case's facts.

 If a pleading is unneeded, scandalous, frivolous, vexatious, or has the potential to

jeopardise, embarrass, or delay a fair trial of the case, the court may order that it be struck
out.

 Where appropriate, forms from Appendix A of the Code should be used. Forms of a similar
nature should be used in cases where they are not applicable.

 Each pleading should be divided into paragraphs that are serially numbered. A separate
paragraph should be used to state each allegation or assertion. Dates, totals, and numbers
should be written both in words and in figures.

Amendment Of Pleading
Amendment of a pleading is covered by Rules 17 and 18 of Order VI of the Code of Civil Procedure,
1908. These rules work to bring about justice in society. According to Rule 17 of the Code of Civil
Procedure, 1908, either party may be required to amend or alter his pleading at any point during the
proceeding in a fair and just manner, allowing amendment when necessary to settle the precise
contentious issue between the parties.

Rule 18 deals with the problem of the pleading not being amended. It deals with the law that states
if a party is ordered by the court to make a necessary change and fails to do so within the time limit
specified in the order, or if no time limit is specified, then within 14 days of the order's date, he will
not be allowed to amend after the time limit specified above, or after such 14 days, as the case may
be, unless the time is extended by the court.

Conclusion
Any legal case's foundation is made up of pleadings. The pleading lays out the case. It directs the
parties to develop their arguments and understand the other party's claims in order to frame claims
or defences for either party, as appropriate. It serves as direction for the entire suit journey.

They also specify what types of admissible evidence the parties may present during the trial. The
fundamental guidelines for pleadings are set forth in the Code of Civil Procedure, along with any
modifications. These rules are intended to achieve justice's highest goals while maintaining social
harmony.

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Plaint

Introduction

The expression plaint has not been defined in the Code of Civil Procedure, 1908 (CPC). It can be said
to be a statement of claim, a document by presentation of which the suit is instituted. Its object is to
state the grounds upon which the assistance of the court is sought by the plaintiff.

 Order VII of CPC contains the provision in relation to plaint.

Rules Regarding the Plaint

 Rule 1 of Order IV lays down that a plaint is to be presented in duplicate to the Court or
such officer as may be appointed by the Court.
 Every plaint shall comply with the rules contained in Orders VI and VII of CPC.
 A suit is instituted when the plaint is presented and not when the suit is registered.

Particulars to be Contained in a Plaint

 Rule 1 of Order VII deals with the particulars to be contained in a plaint. It states that -
o The plaint shall contain the following particulars: —
 (a) The name of the Court in which the suit is brought.
 (b) The name, description and place of residence of the plaintiff.
 (c) The name, description and place of residence of the defendant, so far as they can be
ascertained.
 (d) Where the plaintiff or the defendant is a minor or a person of unsound mind, a statement
to that effect.
 (e) The facts constituting the cause of action and when it arose.
 (f) The facts showing that the Court has jurisdiction.
 (g) The relief which the plaintiff claims.
 (h) Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the
amount so allowed, or relinquished.
 (i) A statement of the value of the subject matter of the suit for the purposes of jurisdiction
and of court fees, so far as the case admits.

Relief to be Specifically Stated in a Plaint

 As per Rule 7 of Order VII, every plaint shall state specifically the relief which the plaintiff
claims either simply or in the alternative, and it shall not be necessary to ask for general or
other relief which may always be given as the Court may think just to the same extent as if it
had been asked for.
 As per Rule 8 of Order VII, where the plaintiff seeks relief in respect of several distinct claims
or causes of action founded upon separate and distinct grounds, they shall be stated as far
as may be separately and distinctly.

Procedure on Admitting Plaint

 As per Rule 9 of Order VII, where the Court orders that the summons be served on the
defendants in the manner provided in Rule 9 of Order V, it will direct the plaintiff to present

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 as many copies of the plaint on plain paper as there are defendants within seven days
from the date of such order along with requisite fee for service of summons on the
defendants.

Return of Plaint

 Rule 10 deals with the return of plaint. It states that -

(1) 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.

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.

(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.

Rejection of Plaint

 Rule 11 deals with the rejection of plaint. It states that -

o 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 the 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.

(e) where it is not filed in duplicate.

(f) where the plaintiff fails to comply with the provisions of rule 9.

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.

Procedure on Rejecting Plaint

 As per Rule 12 of Order VII, where a plaint is rejected, the Judge shall record an order to
that effect with the reasons for such an order.

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Case Laws:

 In Mayar H.K. Ltd. v. Owners & Parties, Vessel M.V. Fortune Express (2006), the Supreme
Court held that the grounds for rejection of plaint specified in Rule 11 of Order VII of CPC
are not exhaustive.
 In Sopan Sukhdeo Sable v. Asst. Charity Commr. (2004), the Supreme Court held that a
plaint cannot be rejected in part and retained in part. It should be rejected as a whole.

Written Statement

Introduction

The Code of Civil Procedure, 1908, is the procedural law that governs how the civil courts of our
country must function. It lays down the rules for civil proceedings. The Code also contains
substantive law, as laid down in its 158 sections, and also comprises 51 orders, which constitute its
true procedural aspects. Order VIII of the Code of Civil Procedure deals with written statements, set
offs, and counterclaims. A written statement is an integral part of a civil suit. When a suit is
commenced by a plaint, the defendant has to file a written statement as a reply. There are several
rules in Order VIII that govern how and when the written statement should be filed, and also the
consequences for not filing. This article discusses the procedure when a party fails to present a
written statement called for by the court, and the same is discussed under Order 8 Rule 10 of the
CPC.

What is a Written statement

The Code of Civil Procedure does not give a definition of a ‘written statement’. In general terms, it
can be defined as the statement of defence in writing, filed by the defendant, and it deals with every
material fact alleged by the plaintiff in the plaint. It contains objections to the plaintiff’s allegations
as well as new facts, if any. It essentially refers to the pleading of the defendant, as a plaint is the
pleading of the plaintiff. The provisions concerning the written statement are contained in Order VIII
of the Code of Civil Procedure.

The matter in the written statement must be stated concisely. It must only contain the facts on
which the defendant relies for his defence and not the evidence to prove such facts.

Pleading of new facts

 As per Order VIII Rule 2, the defendant can also raise new facts that were not pleaded by the
plaintiff in the plaint. He can raise any such facts or matters that show that the suit is not
maintainable.
 However, it must be specifically pleaded and not expressed in general or vague terms.
 Such facts must be pleaded in the first instance itself. If it is not raised in the first instance
when it was possible, it cannot be subsequently raised in an appeal.
 It must either deny or accept the allegations in the plaint. If an allegation is not denied, it is
deemed to have been accepted.

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  According to Order VIII Rule 3 of CPC, it is important for the defendant to make an express
and specific denial. The defendant cannot simply make a general denial of the plaintiff’s
allegations.
 As per Rule 4, evasive denial or denial that does not answer the substance does not qualify
as a denial. For instance, if the defendant wants to deny the allegation of the plaintiff that he
had received a certain sum of money, he has to expressly deny the receipt of the amount
and also specifically state the amount alleged. Evasive denial is taken as admission unless
the plaint is also vague and stated in general terms.

Who can file a written statement

 A written statement, as stated earlier, is meant to be filed by the defendant.

 However, the defendant may file it through an agent authorised by him. It cannot be filed by
someone who is not a party to the dispute.
 In the case of multiple defendants, there can be a common written statement signed by all,
or at least verified by one of the defendants who is familiar with the facts.

When should a written statement be filed

 Order VIII Rule 1 lays down the period within which the defendant must file a written
statement.
 The written statement should be filed by the defendant within thirty days from the day
when the summons was served to him.
 However, this period can be extended up to ninety days from the date of service of
summons by the court for reasons to be recorded in writing.
 In the case of commercial disputes, the written statement must be filed within thirty days
from the date of service of summons. However, it can be extended by the court up to one
hundred and twenty days from the date of service of summons for reasons to be recorded in
writing, for which the defendant must pay the costs that the court thinks are appropriate.
The expiry of this period results in the forfeiture of the right of filing a written statement.
 If the defendant does not file the written statement within the prescribed time period, he
must file it as early as possible, along with a delay application, praying for the condonation
of delay in filing the written statement. However, there has to be a sufficient cause that is
outside the control of the party. If the reason satisfies the court, the court shall accept the
application and proceed, and if not, the court shall reject it.
 In the case of Mohammed Yusuf v. Faij Mohammad and Ors. (2009), the defendant had filed
a written statement after three years, praying for the condonation of delay. The application
was rejected. The Allahabad High Court allowed a writ petition filed by the defendant, that
challenged the rejection. The Supreme Court held that the High Court must not have
interfered as there was no failure of justice or error on the face of the record. The Court held
that the grant of time beyond the thirty-day period is not automatic. While granting the
extension, the court must be cautious and examine whether there are sufficient reasons that
call for the extension. The extension shall not be granted indiscriminately as it would defeat
justice.
 In the case of Christian Broadcasting Network Inc. v. CBN News (P) Ltd. (2018), the Delhi High
Court held that the Court can invoke Order VIII Rule 10 of CPC if the defendant fails to file a
written statement. In this case, the plaintiff was involved in broadcasting services and came
across the defendant’s YouTube channel ‘CBN NEWS’, which was identical to the plaintiff’s
trademark. A cease and desist notice was served on the defendant but to no avail. So, the
plaintiff filed a suit. The defendant had failed to file a written statement. The plaintiff prayed
for a temporary injunction and the Court passed it.

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  Another case is Nagaratnam Pillai v. Kamlathammal A (1945), here, there was a question as
to whether Order VIII Rule 10 applies to Order VIII Rule 9. Rule 9 states that the parties
cannot file further pleadings after filing a written statement, other than by way of defense to
set-off or counterclaim. It also states that the Court may at any time require a written
statement or additional written statement from any of the parties and fix a time that is not
beyond thirty days for presenting the same. The Court decided that it relates to Rule 9.

Now, let us get to the topic. What does Order VIII Rule 10 of the CPC say?

Consequences of not filing a written statement

As per Order VIII Rule 10, if any person who is required to file a written statement does not do so
within the time period prescribed or permitted by the court, the court shall pronounce the
judgement against him or issue an order, and a decree shall be drawn up on the pronouncement of
the judgement. The time period prescribed for the filing of the written statement in Rule 1 shall not
be extended by the court.

The court has two alternatives when a written statement has not been filed:

1. Granting of adjournment: The court can grant an adjournment to the defendant. This grants
more time to the defendant to file a written statement. However, no more than three
adjournments can be given to a party to the suit as per Order VII Rule 1 of the Code. If the
party still fails to file the written statement, the court can move on to the next alternative,
which is the ex parte decree.
2. Pass an ex parte decree: The court can pass an ex parte decree against the defendant. This is
not mandatory but the court has the discretion to do so. This is usually avoided by the court
in the first instance. However, if the party fails to file a written statement in spite of many
adjournments, the court can resort to passing an ex parte decree against the defendant.

Now that we know the consequences of not filing the written statement during the prescribed time
period, let us look at the provisions of appeal and revision.

Appeal and revision

Order VIII Rule 10 provides that a decree will be drawn upon such judgement. Following that, an
appeal would lie under Section 96. As per Section 115, the High Court can adjudicate upon such a
decree through revision. When a decree is appealable, the aggrieved party cannot apply for
revision.

Now, let us look at the inherent powers of the court with regard to the same.

Inherent powers of the court

Section 151 of the CPC lays down the inherent powers of the court. As per this Section, no provision
in the Code acts as a restriction on the power of the court to issue an order in the interest of justice
or for the purpose of preventing the abuse of the power of the court.

This Section acts as a limitation to Order VIII Rule 10 of the Code. This provision allows the courts to
extend the period of limitation for filing the written statement. However, this is only allowed in
exceptional situations that arise from causes outside the control of the defendant. This power
cannot be used in ordinary cases.

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Now that we are familiar with the provisions of the code, let us look at some important decisions by
the judiciary regarding the same matter.

Case laws

Atcom Technologies Ltd. v. Y.A Chunawala and Co. (2018)

Facts

An appeal was filed by the defendant in the Supreme Court against an order made by the Delhi High
Court in a revision petition that struck off his right to file a written statement as he had repeatedly
delayed the filing in the civil court. The dispute was between two brothers on an agreement to sell
off their ancestral property. The ancestral property consisted of a building, where the ground floor
was owned by the respondent or the plaintiff, and the first floor was owned by the appellant or the
defendant. The brothers entered into an agreement of sale where the appellant or the defendant
agreed to sell the first floor to the respondent or the plaintiff. The plaintiff later filed a suit for
specific performance of the agreement, claiming that the respondent was attempting to sell the
subject matter of the agreement to third parties. Due to the defendant’s failure to file the written
statement, the civil court granted several extensions, to the point where it exceeded 90 days. Before
appealing to the Supreme Court, the appellant had first approached the Delhi High Court through
revision. The Court dismissed the petition by relying on the judgement in Oku Tech Pvt. Ltd. v.
Sangeet Agarwal and Ors. (2016), which laid down that courts do not have the discretion to grant an
extension beyond 120 days.

Contention of the appellant

1. The High Court’s decision was erroneous as the Oku Tech judgement is only applicable in the
case of commercial disputes. The case here is of non-commercial nature.
2. The time period prescribed under Order VIII Rule 1 is merely procedural and directory. The
appellant also claimed that the same was decided by the Supreme Court in cases such as
Salem Advocate Bar Association, T.N. v. Union of India (2005). The time period of 90 days
can be extended by the court using its discretionary powers in exceptional cases.
3. The written statement could not be filed due to the lapse on part of his counsel and that he
had appeared before the civil court on all the dates of the hearing.

Contention of the respondent

The defendant was granted several chances to file the written statement. The statutory period of 90
days cannot be extended.

Issues

1. Is the suit of commercial nature?

2. Can the statutory period of 90 days be extended?
3. Is the time period prescribed directory in nature?
4. Can the appellant be allowed to file the written statement?

Judgement

In this case, the Supreme Court held that in some very exceptional cases of non-commercial nature,
the court can extend the period for filing a written statement beyond ninety days. Hence, the

16 | P a g e
prescribed period is a “directory” and not mandatory. The defendant has to prove that there is a
strong case that supports such an extension. The court observed that the suit is of a non-commercial
nature. The court dismissed the appeal by stating that the appellant was given numerous
opportunities but still failed to file the written statement.

Rajendrabhai Maganbhai Koli v. Shantaben Maganbhai Koli (2022)

Facts

The applicant applied for the writ of certiorari against an order passed by the Additional Civil Judge
to be allowed to file a written statement. The applicant had been given several opportunities but
failed to make an appearance and the court proceeded with the matter. The order was passed as the
extension would not be given beyond 120 days.

Contentions of the applicant

1. The judgement in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India
(2005) was relied upon by the applicant to contend that the 120-day period is merely a
directory and not mandatory
2. The right of the applicant to file the written statement does not affect the right of the
plaintiff in the case. Hence, allowing the defendant to file the written statement does not
jeopardise the plaintiff’s position, but disallowing the defendant from filing the written
statement would certainly jeopardise the defendant’s position.
3. The applicant also stated that he is willing to pay the necessary costs if any.

Issues

1. Is the time period prescribed for filing the written statement mandatory or directory?
2. Can the applicant be allowed to file the written statement?

Judgement

1. In this case, the Gujarat High Court held the view that the ninety-day limit for filing a written
statement in non-commercial disputes is directory in nature and not mandatory. The Court
stated that it must be used sparingly and not in ordinary cases.
2. The Court, after examining the merits and circumstances of the case, held that the writ
petition is allowed and that the applicant is allowed to file the written statement.
3. The Court made such an order while taking the pandemic situation into consideration.
4. The Court, however, ordered the applicant to pay an exemplary cost of Rs. 10,000.
5. The Court also clarified that the order passed by it will not act as a precedent as it was made
with respect to the facts and circumstances of the case.

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Appearance of Parties & Consequence of Non Appearance (Order
IX)

1. Parties to appear on day fixed in summons for defendant to appear and answer.-

On the day fixed in the summons for the defendant to appear and answer, the parties shall be in
attendance at the Court-house in person or by their respective pleaders, and the suit shall then be
heard unless the hearing is adjourned to a future day fixed by the Court.

1
[2. Dismissal of suit where summons not served in consequence of plaintiff's failure to pay costs.-

Where on the day so fixed it is found that summons has not been served upon the defendant in
consequence of the failure of the plaintiff to pay the court-fee or postal charges, if any, chargeable
for such service, or failure to present copies of the plaint as required by rule 9 of Order VII, the Court
may make an order that the suit be dismissed:

Provided that no such order shall be made, if notwithstanding such failure, the defendant attends in
person or by agent when he is allowed to appear by agent on the day fixed for him to appear and
answer.]

1. Subs. by s. 10, ibid., for rule 2 (w.e.f. 1-7-2002).

3. Where neither party appears suit to be dismissed.-

Where neither party appears when the suit is called on for hearing, the court may make an order
that the suit be dismissed.

4. Plaintiff may bring fresh suit or Court may restore suit to file.-

Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation)
bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court
that there was sufficient cause for 2[such failure as is referred to in rule 2], or for his non-
appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall
appoint a day for proceeding with the suit.

2. Subs. by Act 104 of 1976 s. 59, for certain words (w.e.f. 1-2-1977).

5. Dismissal of suit where plaintiff after summons returned unserved, fails for < 3[seven days] to
apply for fresh summons. -

4
[(1) Where after a summons has been issued to the defendant, or to one of several defendants, and
returned unserved, the plaintiff fails, for a period of 1[seven days] from the date of the return made
to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to
apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as
against such defendant, unless the plaintiff has within the said period satisfied the Court that-

(a) he has failed after using his best endeavours to discover the residence of the defendant, who has
not been served, or

18 | P a g e
(b) such defendant is avoiding service of process, or

(c) there is any other sufficient cause for extending the time,

in which case the Court may extend the time for making such application for such period as it thinks
fit.]

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

*. Shall be applicable to commercial disputes of a specified value by Act 4 of 2016, s. 16 and the Sch.
(w.e.f. 23-10-2015).

3. Subs. by Act 46 of 1999, s. 19, for "one month" (w.e.f 1-7-2002).

4. Subs. by Act 24 of 1920 s. 2, for sub-rule (1).

6. Procedure when only plaintiff appears.-

(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for
hearing, then-

1
[(a) When summons duly served.-if it is proved that the summons was duly served, the Court may
make an order that the suit shall be heard ex parte;]

(b) When summons not duly served.-if it is not proved that the summons was duly served, the Court
shall direct a second summons to be issued and served on the defendant;

(c) When summons served but not in due time.-if it is proved that the summons was served on the
defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the
summons,

the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall
direct notice of such day to be given to the defendant.

(2) Where it is owing to the plaintiff's default that the summons was not duly served or was not
served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the
postponement.

1. Subs. by Act 104 of 1976, s. 59, for cl. (a) (w.e.f 1-2-1977).

7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for
previous non-appearance.-

Where the Court has adjourned the hearing of the suit, ex parte, and the defendant, at or before
such hearing appears and assigns good cause for his previous non-appearance, he may, upon such
terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had
appeared on the day fixed for his appearance.

8. Procedure where defendant only appears.-

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Where the defendant appears and the plaintiff does not appear when the suit is called on for
hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the
claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such
admission, and where part only of the claim has been admitted, shall dismiss the suit so far as it
relates to the remainder.

9. Decree against plaintiff by default bars fresh suit.-

(1) Where a suit is wholly or partly dis-missed 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.

10. Procedure in case of non-attendance of one or more of several plaintiff's.-

Where there are more plaintiffs than one, and one or more of them appear, and the others do not
appear, the Court may, at the instance of the plaintiff or plaintiff's appearing, permit the suit to
proceed in the same way as if all the plaintiff's had appeared, or make such order as it thinks fit.

11. Procedure in case of non-attendance of one or more of several defendants.-

Where there are more defendants than one, and one or more of them appear, and the others do not
appear, the suit shall proceed, and the Court shall, at the time of pronouncing judgment, make such
order as it thinks fit with respect to the defendants who do not appear.

12. Consequence of non-attendance, without sufficient cause shown, of party ordered to appear in
person.-

Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in
person, or show sufficient cause to the satisfaction of the court for failing so to appear, he shall be
subject to all provisions of the foregoing rules applicable to plaintiffs and defendants, respectively
who do not appear.

Setting aside Decrees ex parte

13. Setting aside decree ex parte against defendant.-

In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by
which the decree was passed for an order to set it aside; and if he satisfies the Court that the
summons was not duly served, or that he was prevented by any sufficient cause from appearing
when the suit was called on for hearing, the Court shall make an order setting aside the decree as
against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such
defendant only it may be set aside as against all or any of the other defendants also:

20 | P a g e
1
[Provided further than no Court shall set aside a decree passed ex parte merely on the ground that
there has been an irregularity in the service of summons, if it is satisfied that the defendant had
notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.]

2
[Explanation.-Where there has been an appeal against a decree passed ex parte under this rule, and
the appeal has been disposed of an any ground other than the ground that the appellant has
withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.]

1. The proviso added by Act 104 of 1976, s. 59 (w.e.f. 1-2-1977).

2. Explanation ins. by s. 59, ibid. (w.e.f. 1-2-1977).

14. No decree to be set aside without notice to opposite party.-No decree shall be set aside on any
such application as aforesaid unless notice thereof has been served on the opposite party.

Non-appearance of both parties to the suit

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

The plaintiff can also apply for setting aside the dismissal if he is able to satisfy the court that there
was sufficient behind his non-appearance. If the court is satisfied with the cause of non-appearance
then it may set aside the order of dismissal and schedule a day for the hearing of the suit.

The appearance of the plaintiff

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

If service of the summons is proved then only the court can proceed for an ex-parte against the
defendant and the court may pass a decree in favour of the plaintiff. This provision applies only for
the first hearing and not for the subsequent hearings of the matter and the same has been held in
the case of Sangram Singh v. Election Tribunal.

Even while passing an ex-parte order it is the duty of the court to secure the end of justice even in
the absence of the defendant. In the case of Maya Devi v. Lalta Prasad, it has been held by the
Supreme Court that -It is the duty of the court to ensure that statements in the plaint stand proven
and the prayers asked before the court are worthy of being granted. This provision of passing ex
parte order cannot be passed when there are more than one defendants in the case and any of them
appears.

Appearance of defendant

The provisions laid down to deal with the appearance of only the defendant has been laid down
from rule 7-11 of Order IX. When the defendant appears but there is non-appearance of the
plaintiff, then there can be two situations:

1. The defendant does not admit the claim of the plaintiff, either wholly or any part of it.

21 | P a g e
 2. The defendant admits the plaintiff claim.

If the defendant does not admit the claim of the plaintiff, then the court shall order for dismissal of
the suit. But, when the defendant admits completely or any part of the claim made by the plaintiff
then the court is empowered to pass a decree against the defendant on the ground of such
admission and for rest of the claim, the suit will be dismissed.

Dismissal of the suit of the plaintiff without hearing him is a serious matter and it should not be
adopted unless the court gets satisfied that in the interest of justice such dismissal is required, as
cited by Beaumont, C.J. in the case of Shamdasani v. Central Bank of India.

Application to set aside the dismissal

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

Sufficient cause

For considering the sufficient cause of non-appearance of the plaintiff the main point to be
considered is whether the plaintiff really tried to appear on the day which was fixed for hearing or
not. When sufficient cause is shown by the plaintiff for his non-appearance, then it is mandatory for
the court to reopen the suit. In absence of sufficient cause, it is upon the discretion of the court to
set aside the dismissal or not as held in the case of P.K.P.R.M. Raman Chettyar v. K.A.P.
Arunachalam Chettyar. Sufficient cause depends upon the facts and circumstances of each and
every case.

In the case of Chhotalal v. Ambala Hargovan, the Bombay High Court observed that if the party
arrives late and find its suit dismissed due to his non-appearance then he is entitled to have his suit
or application restored with the payment of costs.

When summon is not served

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

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

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

22 | P a g e
the court is satisfied that there is a reasonable reason behind such failure to pay costs then the court
may set aside the order of dismissal.

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

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

Ex-parte Decree

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

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

To know more about Ex-parte decree, please Click Here

Remedies against an ex-parte decree

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

1. He can apply to the court under rule 13 of Order IX for setting aside the ex-parte decree
passed by the court.
2. He can appeal against that decree under section 96(2) of the Code or, prefer revision under
section 115 of the code when no appeal lies.
3. He can apply for a review under Order 47 Rule 1.
4. A suit on the ground of fraud can be filed.

Setting aside an ex-parte decree

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

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

23 | P a g e
The grounds on which an ex-parte decree can be set aside are:

1. When the summons has not been duly served.

2. Due to any “sufficient cause”, he could not appear on the day of the hearing.

Sufficient Cause

The term sufficient cause has not been defined anywhere but as held in the case of UCO Bank v.
Iyengar Consultancy, it is a question which is determined upon the facts and circumstances of the
cases. The test to be applied for this is whether or not the party actually and honestly intended to be
present at the hearing and tried his best to do so. There are several instances which have been
considered as sufficient cause such as late arrival of the train, sickness of the council, the strike of
advocates, death of a relative of party etc.

The burden of proof that there was a sufficient cause of non-appearance is upon the defendant

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Suits by Indigent Persons (Pauper suits)

1. Suits may be instituted by indigent persons.-

Subject to the following provisions, any suit may be instituted by an 2[indigent person].

3
[Explanation 1.-A person is an indigent person,-

(a) If he is not possessed of sufficient means (other than property exempt from attachment in
execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by
law for the plaint in such suit, or

(b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees
other than the property exempt from attachment in execution of a decree, and the subject-matter of
the suit.

Explanation II.- Any property which is acquired by a person after the presentation of his application
for permission to sue as an indigent person, and before the decision of the application, shall be
taken into account in considering the question whether or not the applicant is an indigent person.

Explanation III.- Where the plaintiff sues in a representative capacity, the question whether he is an
indigent person shall be determined with reference to the means possessed by him in such
capacity.]

1. Subs. by Act 104 of 1976, s. 81, for "Suits by Paupers"(w.e.f. 1-2-1977).

2. Subs. by s. 81. ibid. for "pauper" (w.e.f. 1-2-1977).

3. Subs. by s. 81, ibid., for the Explanation (w.e.f. 1-2-1977).

4
[1A. Inquiry into the means of an indigent person.-

Every inquiry into the question whether or not a person is an indigent person shall be made, in the
first instance, by the chief ministerial officer of the Court, unless the Court otherwise directs, and the
Court may adopt the report of such officer as its own finding or may itself make an inquiry into the
question.]

4. Ins. by Act 104 of 1976, s. 81 (w.e.f. 1-2-1977).

2. Contents of application.-

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Every application for permission to sue as an 5[indigent person] shall contain the particulars required
in regard to plaints in suits: a schedule of any movable or immovable property belonging to the
applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and
verified in the manner prescribed for the signing and verification of pleadings.

5. Subs. by s. 81, ibid., for "pauper" (w.e.f. 1-2-1977).

3. Presentation of application.-

Notwithstanding anything contained in these rules, the application shall be presented to the Court
by the applicant in person, unless he is exempted from appearing in Court, in which case the
application may be presented by an authorised agent who can answer all material questions relating
to the application, and who may be examined in the same manner as the party represented by him
might have been examined had such party attended in person:

1
[Provided that, where there are more plaintiffs than one, it shall be sufficient if the application is
presented by one of the plaintiffs.]

1. The provisions of this rule so far as it relates to the making of a memorandum are not applicable
to the Chief Court of Oudh, see Oudh Courts Act, 1925 (U.P. Act 4 of 1925), s. 16 (2).

4. Examination of applicant.-

(1) Where the application is in proper form and duly presented, the Court may, if it thinks fit,
examine the applicant, or his agent when the applicant is allowed to appear by agent regarding the
merits of the claim and the property of the applicant.

(2) If presented by agent, Court may order applicant to be examined by commission.-

Where the application is presented by an agent, the Court may, if it thinks fit, order that the
applicant be examined by a commission in the manner in which the examination of an absent
witness may be taken.

5. Rejection of application.-

The Court shall reject an application for permission to use as 2[an indigent person]-

(a) where it is not framed and presented in the manner prescribed by rules 2 and 3, or

(b) where the applicant is not 2[an indigent person], or

(c) where he has, within two months next before the presentation of the application, disposed of
any property fraudulently or in order to be able to apply for permission to use as 2[an indigent
person]:

1
[Provided that no application shall be rejected if, even after the value of the property disposed of by
the applicant is taken into account, the applicant would be entitled to sue as an indigent person.] or

(d) where his allegations do not show a cause of action, or

26 | P a g e
(e) where he has entered into any agreement with reference to the subject-matter of the proposed
suit under which any other person has obtained an interest in such subject-matter; 1[or]

1
[(f) where the allegations, made by the applicant in the application show that the suit would be
barred by any law for the time being in force, or

(g) where any other person has entered into an agreement with him to finance the litigation.].

2. Subs. by Act 104 of 1976, s. 81, for "a memorandum of the substance of their evidence" (w.e.f. 1-
2-1977).

6. Notice of day for receiving evidence of applicant's indigency.-

Where the Court sees no reason to reject the application on any of the grounds stated in rule 5, it
shall fix a day (of which at least ten day's clear notice shall be given to the opposite party and the
Government pleader) for receiving such evidence as the applicant may adduce in proof of his
indigency, and for hearing any evidence which may be adduced in disproof thereof.

17. Procedure at hearing.-

(1) On the day so fixed or as soon thereafter as may be convenient the Court shall examine the
witnesses (if any) produced by either party, and may examine the applicant or his agent, and shall
may 2[a full record of their evidence].

3
[(1A) The examination of the witnesses under sub-rule (1) shall be confined to the matters specified
in clause (b), clause (c) and clause (e) of rule 5 but the examination of the applicant or his agent may
relate to any of the matters specified in rule 5.]

(2) The Court shall also hear any argument which the parties may desire to offer on the question
whether, on the face of the application and of the evidence (if any) taken by the Court 4[under rule 6
or under this rule], the applicant is or is not subject to any of the prohibitions specified in rule 5.

(3) The Court shall then either allow or refuse to allow the applicant to sue as 1[an indigent person].

3. Ins. by s. 81, ibid. (w.e.f. 1-2-1977).

4. Subs. by s. 81, ibid., for "as herein provided" (w.e.f. 1-2-1977).

1. Subs. by s. 81, ibid., for "pauper" (w.e.f. 1-2-1977).

8. Procedure if application admitted.-

Where the application is granted, it shall be numbered and registered, and shall be deemed the
plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary
manner, except that the plaintiff shall not be liable to pay any court-fee 2[or fees payable for service
of process] in respect of any petition, appointment of a pleader or other proceeding connected with
the suit.

2. Subs. by s. 81, ibid., for "other then fees pay able for service of process" (w.e.f. 1-2-1977).

9. Withdrawal of permission to sue as an indigent person.-

27 | P a g e
The Court may, on the application of the defendant, or of the Government pleader, of which seven
days, clear notice in writing has been given to the plaintiff, order that the permission granted to the
plaintiff to sue as an indigent person be withdrawn-

(a) if he is guilty of vexatious or improper conduct in the course of the suit;

(b) if it appears that his means are such that he ought not to continue to sue as 5[an indigent
person]; or

(c) if he has entered into any agreement with reference to the subject-matter of the suit under
which any other person has obtained an interest in such subject-matter.

5. Subs. by s. 81, ibid., for "pauper" (w.e.f. 1-2-1977).

3
[9A. Court to assign a pleader to an unrepresented indigent person.-

(1) Where a person, who is permitted to sue as an indigent person, is not represented by a pleader,
the Court-may, if the circumstances of the case so require, assign a pleader to him.

(2) The High Court may, with the previous approval of the State Government, make rules providing
for-

(a) the mode of selecting pleaders to be assigned under sub-rule (1);

(b) the facilities to be provided to such pleaders by the Court ;

(c) any other matter which is required to be or may be provided by the rules for giving effect to the
provisions of sub-rule (1).]

3. Subs. by the A.O. 1950, for "Provincial Government" which had been subs. by the A.O. 1937, for
"Government".

10. Costs where indigent person succeeds.-

Where the plaintiff succeeds in the suit, the Court shall calculate the amount of court-fees which
would have been paid by the plaintiff if he had not been permitted to sue as 5[an indigent person];
such amount shall be recoverable by the 3[State Government] from any party ordered by the decree
to pay the same and shall be a first charge, on the subject-matter of the suit.

11. Procedure where indigent person fails.-

Where the plaintiff fails in the suit or the permission granted to him to sue as an indigent person has
been withdrawn, or where the suit is withdrawn or dismisses,-

(a) because the summons for the defendant to appear and answer has not been served upon him in
consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable
for such service 4[or to present copies of the plaint or concise statement], or

(b) because the plaintiff does not appear when the suit is called on for hearing,

28 | P a g e
the Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court-
fees which would have been paid by the plaintiff if he had not been permitted to sue as 5[an indigent
person].

4. Ins. by Act 104 of 1976, s. 81 (w.e.f. 1-2-1977).

5. Subs. by s. 81, ibid., for "pauper" (w.e.f. 1-2-1977).

6
[11A. Procedure where indigent person's suit abates.-Where the suit abates by reason of the death
of the plaintiff or of any person added as a co-plaintiff, the Court shall order that the amount of
court-fees which would have been paid by the plaintiff if he had not been permitted to sue as 2[an
indigent person] shall be recoverable by the State Government from the estate of the deceased
plaintiff.]

6. Ins. by Act 24 of 1942, s. 2.

12. State Government may apply for payment of court-fees.-

The 1[State Government] shall have the right at any time to apply to the Court to make an order for
the payment of court-fees under rule 10, rule 11 or 2[rule 11A].

1. Subs. by the A.O. 1950, for "Provincial Government" which had been subs. by the A.O.1937, for
"Government".

2. Subs. by Act 24 of 1942, s. 2, for "or rule 11".

13. State Government to be deemed a party.-

All matters arising between the 4[State Government] and any party to the suit under rule 10, rule 11,
5
[rule 11A] or rule 12 shall be deemed to be questions arising between the parties to the suit within
the meaning of section 47.

4. Subs. by Act 104 of 1976, s. 81, for "provided that he first pays" (w.e.f. 1-2-1977).

5. Omitted by Act 19 of 1988, s. 3 and the Second Schedule.

3
[14. Recovery of amount of court-fees.-

Where an order is made under rule 10, rule 11 or rule 11A, the court shall forthwith cause a copy of
the decree or order to be forwarded to the Collector who may, without prejudice to any other mode
of recovery, recover the amount of court-fees specified therein from the person or property liable
for the payment as if it were an arrear or land revenue.]

3. Subs. by s. 2, ibid., for the rule 14.

15. Refusal to allow applicant to sue as an indigent person to bar subsequent application of like
nature.-

An order refusing to allow the applicant to sue as 2[an indigent person] shall be a bar to any
subsequent application of the like nature by him in respect of the same right to sue; but the
applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right;

29 | P a g e
4
[provided that the plaint shall be rejected if he does not pay, either at the time of the institution of
the suit or within such time thereafter as the Court may allow,] the costs (if any) incurred by the
4
[State Government] and by the opposite party in opposing his application for leave to sue as 2[an
indigent person].

2. Subs. by Act 24 of 1942, s. 2, for "or rule 11".

4. Subs. by Act 104 of 1976, s. 81, for "provided that he first pays" (w.e.f. 1-2-1977).

1
[15A. Grant of time for payment of court-fee.-

Nothing contained in rule 5, rule 7 or rule 15 shall prevent a Court, while rejecting an application
under rule 5 or refusing an application under rule 7, from granting time to the applicant to pay the
requisite court-fee within such time as may be fixed by the Court or extended by it from time to
time; and upon such payment and on payment of the costs referred to in 5*** rule 15 within that
time, the suit shall be deemed to have been instituted on the date on which the application for
permission to sue as an indigent person was presented.]

1. Subs. by the A.O. 1950, for "Provincial Government" which had been subs. by the A.O.1937, for
"Government".

5. Omitted by Act 19 of 1988, s. 3 and the Second Schedule.

16. Costs.-

The costs of an application for permission to sue as an 6[indigent person] and of an inquiry into
indigency shall be costs in the suit.

6. Subs. by Act 104 of 1976, s. 81, for "pauper" (w.e.f. 1-2-1977).

7
[17. Defence by an indigent person.-

Any defendant, who desire to plead a set-off or counter-claim, may be allowed to set up such claim
as an indigent person, and the rules contained in this Order shall so far as may be, apply to him as if
he were a plaintiff and his written statement were a plaint.

7. Ins. by s. 81, ibid. (w.e.f. .1-2-1977).

18. Power of Government to provide for free legal services to indigent persons.-

(1) Subject to the provisions of this Order, the Central or State Government may make such
supplementary provisions as it thinks fit for providing free legal services to those who have been
permitted to sue as indigent persons.

(2) The High Court may, with the previous approval of the State Government, make rules for carrying
out the supplementary provisions made by the Central or State Government for providing free legal
services to indigent persons referred to in sub-rule (1), and such rules may include the nature and
extent of such legal services, the conditions under which they may be made available, the matters in
respect of which, and the agencies through which, such services may be rendered.]

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Who is an indigent person?

As soon as a civil suit is filed in the court, the plaintiff(s), at the time of filing their plaint, are required
to submit the requisite court fees as directed by the Court Fees Act, 1870. However, Order XXXIII of
the Code of Civil Procedure saves indigent persons by way of discharging them from the liability to
pay the required court fees. It then allows such individuals to institute the suit in forma pauperis
which is subject to some conditions as postulated under the Rule 1 of Order XXXIII of CPC.

Discussing the definition of an indigent person in the light of Union Bank of India v. Khader
International Construction

The Hon’ble Supreme Court in Union Bank of India v. Khader International Construction discussed
the definition of an indigent person. It was observed by the court that an indigent person is one who
is not possessed of sufficient amount (other than property exempt from attachment in execution of
a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the
plaintiff in such a suit. In case no such fee is prescribed if such person is not entitled to property
worth one thousand rupees other than the property exempt from attachment in execution of a
decree and the subject matter of the suit he would be an indigent person.

A.A. Haja Muniuddin v. Indian Railways

In A.A. Haja Muniuddin v. Indian Railways, the court held that “Access to justice cannot be denied to
an individual merely because he does not have the means to pay the prescribed fee.”

 Rule1 gives us the definition of an indigent person. Any person who does not possess
sufficient means to pay the requisite fee as prescribed by the Court Fee Act. However, Rule 1
also states that while considering sufficient means, the valuation of the property possessed
by an indigent person will be exempted from attachment in execution of a decree and the
subject matter of the suit. Such exempted property is the basic need of living for the
individuals. Thus, as per law, it is not permitted to be attached.
 In cases where no such fee is prescribed by the Court Fee Act and if the applicant does not
possess property worth one thousand rupees or where the cost of the property is less than
one thousand rupees, then in such case, the person will be considered as an indigent person.
However, this rule has the same exception as mentioned above. It states that while
calculating the valuation of the property, Section 60 of the Code of Civil Procedure has to be
kept in mind.

Following properties are exempted and must not be attached while calculating the valuation of the
property possessed by the indigent person:

(a) The necessary wearing apparel, cooking vessels, beds;

31 | P a g e
(b) tools of artisans, agriculturist;

(c) houses and buildings belonging to an agriculturist, labourer or a domestic servant;

(d) books of account;

(e) a mere right to sue for damages;

(f) any right of personal service;

(g) stipends and gratuities allowed to pensioners;

(h) the wages of labourers and domestic servants;

(i) salary to the extent of the first four hundred rupees and two-third of the remainder in the
execution of any decree other than a decree for maintenance:

(ia) one-third of the salary in the execution of any decree for maintenance;

(j) the pay and allowances of persons to whom the Air Force Act, 1950 or the Army Act,; 1950 or the
Navy Act (62 of 1957), applies;

(k) compulsory deposits and sums to which Provident Funds Act, 1925;

(ka) deposits and sums to which the Public Provident Fund Act applies;

(kb) all money payable under a judgment debtor’s policy of insurance;

(kc) the interest of a lessee of a residential building;

(l) any allowance forming part of the emoluments of any government servant;

(m) an expectancy of succession by survivorship or other merely contingent or possible right or

interest;

(n) a right to future maintenance;

(o) any allowance declared by any Indian law to be exempt from liability to attachment or sale in
execution of a decree; and

(p) where the judgment-debtor is a person liable for the payment of land revenue; any movable
property which, under any law for the time being applicable to him, is exempt from sale for the
recovery of arrears of such revenue.

Note: While deciding whether a person is indigent or not, any property which is
acquired/purchased/sold by the indigent person after presenting his application in the competent
court for seeking permission to sue as an indigent person, and if such exchange of property is done
before the court makes a decision on the application, then in such case, the properties so

32 | P a g e
acquired/purchased/sold are mandatorily required to be taken into account while deciding the
question of whether or not an applicant is an indigent person.

Legal representative as an indigent

In Lakshmi v Vijaya Bank, R.V. Revanna filed a petition under Order 33 Rule 1 and Rule 7 wherein he
represented himself to be an indigent person. The respondent contended the petitioner to be an
indigent person and questioned his indigency. Before the cross-examination of the petitioner took
place, he died leaving behind his wife and children. Thereafter an application was filed by the
petitioner’s wife to permit them to file the suit as a legal representative. The trial court observed
that in case of the death of the applicant, the legal representatives won’t be permitted to substitute
the indigent person as the right to sue as an indigent person is a personal right. However, the high
court admitted the application filed by the legal representative and allowed them to file the petition
as indigent persons.

Inquiry into the means of an indigent person

Rule 1A of Order 33 states that the Chief Ministerial Officer of the court has the authority to do an
inquiry. The inquiry is conducted in the first instance to know if an applicant is an indigent person or
not. It is upon the discretion of the court whether to accept the report submitted by such an officer
or make an inquiry.

Procedure to file a suit as an indigent person

Before filing a suit as an indigent person begins, it is important to add all the relevant contents in the
application seeking permission to be an indigent person [Rule 2]. As per Rule 2 of Order XXXIII, the
application must include the particulars similar to what is mentioned in the plaint and all movable or
immovable properties of the indigent person/applicant along with its estimated value.

The indigent person/applicant shall himself in person present the application before the court. In
case, such a person is exempted from appearing in the court, an authorized agent may present the
application on his behalf. In certain circumstances where there are two or more plaintiffs, the
application can be presented by any of them. [Rule 3]. The suit begins as soon as the application to
sue as an indigent person is duly presented before the court. Subsequently, the indigent
person/applicant is examined by the court. However, if the applicant is being represented by his
agent, then in such a case, the court may examine the applicant by the commission [Rule 4].

Rejection of application

As per Rule 5 of Order XXXIII of CPC, the court will prima facie reject an application seeking
permission to sue as an indigent person in the following cases:

1. In case when the application is not framed and presented in the prescribed manner. Here,
the term ‘prescribed manner’ implies that the application must abide by Rule 2 and Rule 3 of
Order XXXIII. Rule 2 and Rule 3 deal with the contents of the application and its presentation
respectively.
2. The application can be rejected by the court in case the applicant is not an indigent person.
3. The application can be rejected by the court when the applicant has fraudulently disposed of
any property within two months before the presentation of the application. It can also be
rejected when the applicant dishonestly applies only with the motive of just seeking
permission from the court to sue as an indigent person.

33 | P a g e
4. The court possesses the power to reject the application filed by an indigent person in an
instance where there is no cause of action.
5. In case, where the applicant has entered into an agreement with any third party and such
agreement pertains to the subject matter of the suit wherein the other party (other than the
applicant) obtains interest, then, it is one of the reasons for rejection of the application. It
shows the applicant’s intention to defraud the court.
6. Rejection of application is done when the allegations indicate that the suit is barred by any
law.
7. Rejection of application is done in cases where any other individual enters into an
agreement with the applicant to help him financially in the litigation.

 The Hon’ble Supreme Court in ML Sethi v. RP Kapoor observed that the provisions of Order
11 Rule 12 involving the discovery of documents would apply to proceedings under Order
XXXIII of the Code of Civil Procedure.
 In Dhanalakshmi v. Saraswathy case, the plaint was found to be undervalued. So, it was
returned for presentation in the court along with proper valuation and court fee. A time of
one month was granted for doing so and the plaintiff filed the plaint within the stipulated
period. Subsequently, the plaint was presented in the Sub-Court along with a petition
seeking leave to sue as indigent persons to which the court observed that though the
petition was filed under Order XXXIII Rule 1, one cannot say that the application filed under
Rule 2 seeking permission to file the suit as indigent persons might not be rejected as
provided in Rule 5 of Order XXXIII CPC. A similarity was drawn between Order XXXIII Rule 5
CPC and Order VII Rule 11 CPC. While Order VII Rule 11 is used in the rejection of plaint,
Order XXXIII Rule 5 deals with the rejection of an application filed for permission to sue as
indigent persons.
 Order 33 Rule 6 provides that the court is required to issue a notice to both the opposite
party and the Government pleader. Following which a day is fixed on which evidence is
received. On such a day, the applicant presents in the form of proof about his indigency. The
opposite party or the Government Pleader can present their evidence opposing the
applicant’s indigency.
 Order 33 Rule 7 provides for the procedure to be followed at hearing of the application. The
court shall examine the witnesses (if any), produced by both the parties and hear arguments
on the application or evidence (if any) admitted by the court. Subsequently, the court will
either allow the application or reject it.
 Order 33 Rule 8 explains the procedure to be followed after the admission of the
application. The application after being admitted has to be numbered as well as registered.
Such an application will be considered as a plaint in a suit. Subsequently, such a suit shall
proceed in the same manner as an ordinary suit does.
 Order 33 Rule 9 states that the court has an option to revoke the permission granted to the
plaintiff to sue as an indigent person. The court can utilise this discretionary power on
receiving the application by the defendant or by the government pleader, in the following
circumstances:

1. Where the applicant is guilty of vexatious or improper conduct in the course of the suit; or
2. Where the applicant’s means are such that he will not continue to sue as an indigent person;
or
3. Where the applicant has entered into an agreement under which another person has
obtained an interest in the subject matter of the suit.

 The Kerala High Court in R. Jayaraja Menon v. Dr. Rajakrishnan And Anr., while deciding
upon an application concerning the withdrawal of permission to sue as an indigent person

34 | P a g e
 observed that Rule 9 of Order 33 provides for a situation where the plaintiff, who was
initially permitted to sue as an indigent person, ceases to be an indigent person after the suit
is filed. In case a plaintiff ceases to be an indigent person, the court shall compel him to pay
the court fee that he would have paid if he had not been allowed to sue as an indigent
person. It is so plainly a part of an order under Rule 9 of Code directing the plaintiff to pay
the court fee that he would have paid if he had not been allowed to file as an indigent
person from the outset.
 Rule 9A of the Code provides that the court will assist the indigent person by assigning him a
pleader. A pleader is a person who is entitled to appear and plead on behalf of other persons
in the court.

Costs associated with the suit

Order XXXII Rule 16 of CPC states that the costs in the suit will include the costs of an application to
sue as an indigent person as well as the cost of inquiry into indigency.

1. When an indigent person succeeds: According to Rule 10 of Order XXXIII, where the plaintiff
(indigent person) succeeds in the suit, the court shall calculate the amount of court fees and
costs and recover the same from the plaintiff in the manner as if he had not been permitted
to sue as an indigent person. In case the plaintiff (indigent person) fails to pay the amount,
then in such case, the amount shall be recoverable by any such party that was ordered by
the decree.
2. Where an indigent person fails: According to Rule 11 and Rule 11-A Order XXXIII where the
plaintiff (indigent person) fails or the permission granted to the indigent person is withdrawn
under Rule 9A, or where the suit is withdrawn or dismissed, the court shall in such case
either order him (plaintiff) or a co-plaintiff to pay court fees and costs in the manner as if he
had not been permitted to sue as an indigent person. Where the suit abates on account of
the death of a plaintiff, such court fees would be recovered from the estate of the deceased
plaintiff.
3. The Hon’ble Supreme Court in Union Bank of India v. Khader International Construction, held
that Order 33 CPC is an enabling provision that allows the indigent person to file a suit
without paying the court fee at the initial stage. In case the plaintiff succeeds in the suit, the
court calculates the amount of court fee which would have been paid by the plaintiff if he
had not been permitted to sue as an indigent person and that amount would be recoverable
by the State from any party ordered by the decree to pay the same. However, if the suit is
dismissed, then also the State would take steps to recover the court fee payable by the
plaintiff and this court fee shall be a first charge on the subject- matter of the suit.
4. So there is only a provision for the deferred payment of the court fees and this benevolent
provision is intended to help the poor litigants who are unable to pay the requisite court fee
to file a suit because of their poverty.
5. According to Rule 12 of Order XXXIII, the state government possesses the right to apply to
the court to pass an order concerning payment of court fee to be paid under Rule 10.
6. Rule 13 deals with cases where the state government shall be deemed to be a party to suit.
7. Rule 14 provides that the court shall recover the court fee by forwarding the order or decree
to the collector who shall then collect the fee in the manner as if it were an arrear of land
revenue.
8. In case if the application to sue as an indigent person is refused, he shall still possess the
right to file a suit in an ordinary manner. However, such a person shall be denied to file an
application of similar nature in respect of the same matter [Rule 15].
9. Rule 17 provides that any defendant (indigent person) who wishes to file a set-off or
counterclaim shall be permitted to do so.

35 | P a g e
 10. Rule 18 states that apart from Order XXXIII of the Code, the state or the Central Government
may make additional provisions for free legal services in respect of indigent persons.

Conclusion

It has been observed that Order XXXIII, permits the destitute, impoverished, and downtrodden, who
meet the criteria of an indigent person as provided by Order XXXIII, to seek justice by exempting
them from paying the required Court fees. Order XXXIII further authorizes such poor people to file a
suit in their own name. The court at the outset itself while deciding the application must take into
account the persons having sufficient means and outrightly reject them to sue as indigents. The
permission to file suit as indigent persons must be carefully given to those who face financial
constraints and lack basic resources as access to justice can sometimes also be in the form of
injustice.

There is a lack of awareness among people regarding such provisions as well as the availability of
free legal aid services. Hence, efforts must be made by every individual to sensitise the vulnerable
sections of society regarding free legal aid services. Moreover, it is believed that aggrieved people
would suffer more as free legal aid services would compromise quality services by the advocates. No
doubt, the same is true in some cases where the advocates appointed by district legal services
authorities are unresponsive and dispassionate, however, the same could be resolved by reporting
the grievance to the concerned authority/department.

36 | P a g e
Suits by or against minor & persons of unsound mind

1. Minor to sue by next friend.-

Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the
next friend of the minor.

2
[Explanation.- In this Order, "minor" means a person who has not attained his majority within the
meaning of section 3 of the Indian Majority Act, 1875 (9 of 1875) where the suit relates to any of the
matters mentioned in clauses (a) and (b) of section 2 of that Act or to any other matter.]

2. Ins. by Act 104 of 1976, s. 79 (w.e.f. 1-2-1977).

2. Where suit is instituted without next friend, plaint to be taken off the file.-

(1) Where a suit is instituted by or on behalf of a minor without a next friend, the defendant may
apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by
whom it was presented.

(2) Notice of such application shall be given to such person, and the Court, after hearing his
objections (if any) may make such order in the matter as it thinks fit.

3
[2A. Security to be furnished by next friend when so ordered.-

(1) Where a suit has been instituted on behalf of the minor by his next friend, the Court may, at any
stage of the suit, either of its own motion or on the application of any defendant, and for reasons to
be recorded, order the next friend to give security for the payment of all costs incurred or likely to
be incurred by the defendant.

(2) Where such a suit is instituted by an indigent person, the security shall include the court-fees
payable to the Government.

(3) The provisions of rule 2 of Order XXV shall, so far as may be, apply to a suit where the Court
makes an order under this rule directing security to be furnished.]

37 | P a g e
3. Ins. by Act 104 of 1976, s. 79 (w.e.f. 1-2-1977).

3. Guardian for the suit to be appointed by Court for minor defendants.-

(1) Where the defendant is a minor the Court, on being satisfied of the fact of his minority, shall
appoint a proper person to be guardian for the suit for such minor.

(2) An order for the appointment of a guardian for the suit may be obtained upon application in the
name and on behalf of the minor or by the plaintiff.

(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian
has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a
fit person to be so appointed.

(4) Order shall be made on any application under this rule except upon notice 1*** to any guardian
of the minor appointed or declared by an authority competent in that behalf, or, where there is no
such guardian 2[upon notice to the father or where there is no father, to the mother, or where there
is no father or mother, to other natural guardian] of the minor, or, where there is 3[no father,
mother or other natural guardian], to the person in whose care the minor is, and after hearing any
objection which may be urged on behalf of any person served with notice under this sub-rule.

1
[(4A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also.]

3
[(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his
appointment is terminated by retirement, removal or death, continue as such throughout all
proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and
any proceedings in the execution of a decree.]

1. The words "to the minor and" omitted by s. 79, ibid. (w.e.f. 1-2-1977).

2. Subs. by s. 79, ibid., for certain words (w.e.f. 1-2-1977).

3. Ins. by Act 16 of 1937, s. 2.

1
[3A. Decree against minor not to be set aside unless prejudice has been caused to his interest.-

(1) No decree passed against a minor shall be set aside merely on the ground that the next friend or
guardian for the suit of the minor had an interest in the subject-matter of the suit adverse to that of
the minor, but the fact that by reasons of such adverse interest of the next friend or guardian for the
suit, prejudice has been caused to the interests of the minor, shall be a ground for setting aside the
decree.

(2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law by
reason of the misconduct or gross negligence on the part of the next friend or guardian for the suit
resulting in prejudice to the interests of the minor.]

1. The words "to the minor and" omitted by s. 79, ibid. (w.e.f. 1-2-1977).

4. Who may act as next friend or he appointed guardian for the suit-

38 | P a g e
(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or
as his guardian for the suit:

Provided that the interest of such person is not adverse to that of the minor and that he is not, in the
case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.

(2) Where a minor has a guardian appointed or declared by competent authority, no person other
than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit
unless the Court considers, for reasons to be recorded, that it is for the minor's welfare that another
person be permitted to act or be appointed, as the case may be.

(3) No person shall without his consent 4[in writing] be appointed guardian for the suit.

(4) Where there is no other person fit and willing to act as guardian for the suit, the Court may
appoint any of its officers to be such guardian, and may direct that the costs to be incurred by such
officer in the performance of his duties as such guardian shall be borne either by the parties or by
any one or more of the parties to the suit, or out of any fund in Court in which the minor is
interested 1[or out of the property of the minor], and may give directions for the repayment or
allowance of such costs as justice and the circumstances of the case may require.

1. The words "to the minor and" omitted by s. 79, ibid. (w.e.f. 1-2-1977).

4. Ins. by Act 104 of 1976, s. 79 (w.e.f. 1-2-1977).

5. Representation of minor by next friend or guardian for the suit.-

(1) Every application to the Court on behalf of a minor, other than an application under rule 10, sub-
rule (2), shall be made by his next friend or by his guardian for the suit.

(2) Every order made in a suit or on any application, before the Court in or which a minor is in any
way concerned or affected, without such minor being represented by a next friend or guardian for
the suit, as the case may be, may be discharged, and, where the pleader of the party at whose
instance such order was obtained knew, or might reasonably have known, the fact of such minority,
with costs to be paid by such pleader.

6. Receipt by next friend or guardian for the suit of property under decree for minor.-

(1) A next friend or guardian for the suit shall not, without the leave of the Court, receive any money
or other movable property on behalf of a minor either-

(a) by way of compromise before decree or order, or

(b) under a decree or order in favour of the minor.

(2) Where the next friend or guardian for the suit has not been appointed or declared by competent
authority to be guardian of the property of the minor, or, having been so appointed or declared, is
under any disability known to the Court to receive the money or other movable property, the Court
shall, if it grants him leave to receive the property, require such security and give such directions as
will, in its opinion, sufficiently protect the property from waste and ensure its proper application :

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1
[Provided that the Court may, for reasons to be recorded, dispense with such security while
granting leave to the next friend or guardian for the suit to receive money or other movable
property under a decree or order, where such next friend or guardian-

(a) is the manager of a Hindu undivided family and the decree or order relates to the property or
business of the family; or

(b) is the parent of the minor.]

1. The words "to the minor and" omitted by s. 79, ibid. (w.e.f. 1-2-1977).

7. Agreement or compromise by next friend or guardian for the suit.-

(1) No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in
the proceedings, enter into any agreement or compromise on behalf of a minor with reference to
the suit in which he acts as next friend or guardian.

1
[(1A) An application for leave under sub-rule (1) shall be accompanied by an affidavit of the next
friend or the guardian for the suit, as the case may be, and also, if the minor is represented by a
pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed
is, in his opinion, for the benefit of the minor:

Provided that the opinion so expressed, whether in the affidavit or in the certificate shall not
preclude the Court from examining whether the agreement or compromise proposed is, for the
benefit of the minor.]

(2) Any such agreement or compromise entered into without the leave of the Court so recorded shall
be voidable against all parties other than the minor:

1. Subs. by Act 2 of 1951, s. 3. for "the States"

8. Retirement of next friend.-

(1) Unless otherwise ordered by the Court, a next friend shall not retire without first procuring a fit
person to be put in this place and giving security for the costs already incurred.

(2) The application for the appointment of a new next friend shall be supported by an affidavit
showing the fitness of the person proposed and also that he has no interest adverse to that of the
minor.

9. Removal of next friend.-

(1) Where the interest of the next friend of a minor is adverse to that of the minor or where he is so
connected with a defendant whose interest is adverse to that of the minor as to make it unlikely that
the minor's interest will be properly protected by him, or where he does not do his duty, or, during
the pendency of the suit, ceases to reside within 1[India], or for any other sufficient cause,
application, may be made on behalf of the minor or by a defendant for his removal; and the Court, if
satisfied of the sufficiency of the cause assigned, may order the next friend to be removed
accordingly, and make such other order as to costs as it thinks fit.

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(2) Where the next friend is not a guardian appointed or declared by an authority competent in this
behalf, and an application is made by a guardian so appointed or declared, who desires to be himself
appointed in the place of the next friend, the Court shall remove the next friend unless it considers,
for reasons to be recorded by it, that the guardian ought not to be appointed the next friend of the
minor, and shall thereupon appoint the applicant to be next friend in his place upon such terms as to
the costs already incurred in the suit as it thinks fit.

10. Stay of proceedings on removal, etc., of next friend.-

(1) On the retirement, removal or death of the next friend of a minor, further proceedings shall be
stayed until the appointment of a next friend in his place.

(2) Where the pleader of such minor omits, within a reasonable time, to take steps to get a new next
friend appointed, any person interested in the minor or in the matter in issue may apply to the Court
for the appointment of one, and the Court may appoint such person as it thinks fit.

11. Retirement, removal or death of guardian for the suit.-

(1) Where the guardian for the suit desires to retire or does not do his duty, or where other
sufficient ground is made to appear, the Court may permit such guardian to retire or may remove
him, and may make such order as to costs as it thinks fit.

(2) Where the guardian for the suit, retires, dies or is removed by the Court during the pendency of
the suit, the Court shall appoint a new guardian in his place.

12. Course to be followed by minor plaintiff or applicant on attaining majority.-

(1) A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall,
on attaining majority, elect whether he will proceed with the suit or application.

(2) Where lie elects to proceed with the suit or application, he shall apply for an order discharging
the next friend and for leave to proceed in his own name.

(3) The title of the suit or application shall in such case be corrected so as to read henceforth thus:

"A.B., late a minor by C.D., his next friend, but now having attained majority.".

(4) Where he elects to abandon the suit or application, he shall, if a sole plaintiff or sole applicant,
apply for an order to dismiss the suit or application on repayment of the costs incurred by the
defendant or opposite party or which may have been paid by his next friend.

(5) Any application under this rule may be made ex parte but no order discharging a next friend and
permitting a minor plaintiff to proceed in his own name shall be made without notice to the next
friend.

13. Where minor co-plaintiff attaining majority desires to repudiate suit.-

(1) Where a minor co-plaintiff on attaining majority desires to repudiate the suit, he shall apply to
have his name struck out as co-plaintiff; and the Court, if it finds that he is not a necessary party,
shall dismiss him from the suit on such terms as to costs or otherwise as it thinks fit.

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(2) Notice of the application shall be served on the next friend, on any co-plaintiff and on the
defendant.

(3) The costs of all parties of such application, and of all or any proceedings theretofore had in the
suit, shall be paid by such persons as the Court directs.

(4) Where the applicant is a necessary party to the suit, the Court may direct him to be made a
defendant.

14. Unreasonable or improper suit.-

(1) A minor on attaining majority may, if a sole plaintiff, apply that a suit instituted in his name by his
next friend be dismissed on the ground that it was unreasonable or improper.

(2) Notice of the application shall be served on all the parties concerned; and the Court, upon being
satisfied of such unreasonableness or impropriety, may grant the application and order the next
friend to pay the costs of all parties in respect of the application and of anything done in the suit, or
make such other order as it thinks fit.

1
[15. Rules 1 to 14 (Except rule 2A) to apply to persons of unsound mind.-

Rules 1 to 14 (except rule 2A) shall, so far as may be, apply to persons adjudged, before or during the
pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so
adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, of
protecting their interest when suing being sued.]

1. Subs. by Act 104 of 1976, s. 79, for rule 15 (w.e.f. 1-2-1977).

1
[16. Savings.-

(1) Nothing contained in this Order shall apply to the Ruler of a foreign State suing or being sued in
the name of his State, or being sued by the direction of the Central Government in the name of an
agent or in any other name.

(2) Nothing contained in this Order shall be construed as affecting or in any way derogating from the
provisions of any local law for the time being in force relating to suits by or against minors or by or
against lunatics or other persons of unsound mind.]

1. Ins. by s. 79, ibid. (w.e.f. 1-2-1977).

2
[ORDER XXXII-A

Suits relating to matters concerning the family

1. Application of the Order.-

(1) The provisions of this Order shall apply to suits or proceedings relating to matters concerning the
family.

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(2) In particular, and without prejudice to the generality of the provisions of sub-rule (1), the
provisions of this Order shall apply to the following suits or proceedings concerning the family,
namely:-

(a) a suit or proceeding for matrimonial relief, including a suit or proceedings for declaration as to
the validity of a marriage or as to the matrimonial status of any person;

(b) a suit or proceeding for a declaration as to legitimacy of any person;

(c) a suit or proceeding in relation to the guardianship of the person or the custody of any minor or
other member of the family, under a disability;

(d) a suit or proceeding for maintenance;

(e) a suit or proceeding as to the validity or effect of an adoption;

(f) a suit or proceeding, instituted by a member of the family, relating to wills, intestacy and
succession;

(g) a suit or proceeding relating to any other matter concerning the family in respect of which, the
parties are subject to their personal law.

(3) So much of this Order as relates to a matter provided for by a special law in respect of any suit or
proceeding shall not apply to that suit or proceeding.

2. Ins. by s. 80, ibid. (w.e.f. 1-2-1977).

2. Proceedings to be held in camera.-

In every suit or proceeding to which this Order applies, the proceedings may be held in camera if the
Court so desires and shall be so held if either party so desires.

3. Duty of Court to make efforts for settlement.-

(1) In every suit or proceeding to which this Order applied, an endeavour shall be made by the Court
in the first instance, where it is possible to do so consistent with the nature and circumstances of the
case, to assist the parties in arriving at a settlement. In respect of the subject-matter of the suit.

(2) If, in any such suit or proceeding, at any stage it appears to the Court that there is a reasonable
possibility of a settlement between the parties, the Court may adjourn the proceeding for such
period as it thinks fit to enable attempts to be made to effect such a settlement.

(3) The power conferred by sub-rule (2) shall be in addition to, and not in derogation of, any other
power of the Court to adjourn the proceedings.

4. Assistance of welfare expert.-

In every suit or proceeding to which this Order applies, it shall be open to the Court to secure the
services of such person (preferably a woman where available), whether related to the parties or not,
including a person professionally engaged in promoting the welfare of the family as the Court may

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think fit, for the purpose of assisting the Court in discharging the functions imposed by rule 3 of this
Order.

5. Duty to enquire into facts.-

In every suit or proceeding to which this Order applies, it shall be the duty of the Court to inquire, so
far it reasonably can, into the facts alleged by the plaintiff and into any facts alleged by the
defendant.

6. "Family"-meaning of.-

For the purposes of this Order, each of the following shall be treated as constituting a family,
namely:-

(a) (i) a man and his wife living together,

(ii) any child or children, being issue of theirs; or of such man or such wife,

(iii) any child or children being maintained by such man and wife;

(b) a man not having a wife or not living together with his wife, any child or children, being issue of
his, and any child or children being maintained by him;

(c) a women not having it husband or not living together with her husband, any child or children
being issue of hers, and any child or children being maintained by her;

(d) a man or woman and his or her brother, sister, ancestor or lineal descendant living with him or
her; and

(e) any combination of one or more of the groups specified in clause (a), clause (b), clause (c) or
clause (d) of this rule.

Explanation.-For the avoidance of doubts, it is hereby declared that the provisions of rule 6 shall be
without any prejudice to the concept of "family" in any personal law or in another law for the time
being in force.]

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Interpleader suits

1. Plaint in interpleader-suit.-

In every suit of interpleader the plaint shall, in addition to the other statements necessary for
plaints, state-

(a) that the plaintiff claims no interest in the subject-matter in dispute other than for charges or
costs;

(b) the claims made by the defendants severally; and

(c) that there is no collusion between the plaintiff and any of the defendants.

2. Payment of thing claimed into Court.-

Where the thing claimed is capable of being paid into Court or placed in the custody of the Court,
the plaintiff may be required to so pay or place it before he can be entitled to any order in the suit.

3. Procedure where defendant is suing plaintiff.-

Where any of the defendants in an interpleader-suit is actually suing the plaintiff in respect the
subject-matter of such suit, the Court in which the suit against the plaintiff is pending shall, on being
informed by the Court in which the interpleader-suit has been instituted, stay the proceedings as
against him; and his costs in the suit so stayed may be provided for in such suit; but if, and in so far

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as, they are not provided for in that suit, they may be added to his costs incurred in the interpleader-
suit.

4. Procedure at first hearing.-

(1) At the first hearing the Court may-

(a) declare that the plaintiff is discharged from all liability to the defendants in respect of the thing
claimed, award him his costs, and dismiss him from the suit; or

(b) if it thinks that justice or convenience so require, retain all parties until the final disposal of the
suit.

(2) Where the Court finds that the admission of the parties or other evidence enable it to do so, it
may adjudicate the title to the thing claimed.

(3) Where the admissions of the parties do not enable the Court so to adjudicate, it may direct-

(a) that an issue or issues between the parties be framed and tried, and

(b) that any claimant be made a plaintiff in lieu of or in addition to the original plaintiff, and shall
proceed to try the suit in the ordinary, manner.

5. Agents and tenants may not institute interpleader suits.-

Nothing in this Order shall be deemed to enable agents to sue their principals, or tenants to sue their
landlords, for the purpose of compelling them to interplead with any persons other than persons
making claim through such principals or landlords.

Illustrations

(a) A deposits a box of jewels with B as his agent. C alleges that the jewels were wrongfully obtained
from him by A, and claims them from B. B cannot institute an interpleader-suit against A and C.

(b) A deposits a box of jewels with B as his agent. He then writes to C for the purpose of making the
jewels a security for a debt due from himself to C. A afterwards alleges that C's debt is satisfied, and
C alleges the contrary. Both claim the jewels from B. B may institute in interpleader-suit against A
and C.

6. Charge for plaintiff's costs.-

Where the suit is properly instituted the Court may provide for the costs of the original plaintiff by
giving him a charge on the thing claimed or in some other effectual way.

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