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Civil Procedure Code & Law Of Limitation:

LAQ’S
1.Explain ‘SUB JUDICE’ & ‘RES JUDICE’ & its doctrine?
2. What do you mean by Pleading contents of pleading written
statement and grounds of rejection of plaint and explain return of
plaint?
3.Objects of limitation Act 1963 & general principles
[condonation of delay period] [section 5]?
4. Decree & Types of Decree?
5.What is an appeal & what are general rules relating to appeal?
6.Who are parties to the suit? explain necessary and proper
parties?
7. Explain special suit against minor, indigent person, government
and impleaders suit?
8.Explain commission order 26 & receiver order 40?
SAQ’S:
1.Commissions?
2. counter claim?
3.written statement /types of statement?
4. Affidavit?
5. Judgement/types of judgement?
6. set off?
7. types of suit?
8. Ex-parte & its procedure?
9. Caveat [section 148A]?
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10. Jurisdiction & its types?

11. Injunction?
12. Order?
13. Admission?
14. Place of suing?
15. Reference, Review, Revision?

ANSWERS:

1. Explain ‘SUB JUDICE’ & ‘RES JUDICE’ & its doctrine?

Ans. In Latin, Res Judicata means a matter that has been judged.
When a case has already been decided and the final judgement
been given such that the matter is no longer subject to appeal
 On the other hand, Sub Judice means ‘under judgment’. It
implies that a matter is being considered by court or judge

RES JUDICE:
 In case of Res Judicata, a matter once decided cannot be raised
again, either in the same court or in a different court. This is
why it is also called as ‘claim preclusion’ as it precludes or
prohibits any further claims after the final judgment
 The doctrine of Res Judicata come from the full maxim ‘Res
judicata pro veritate accipitur’.
 Res judicata or the rule of conclusiveness of the judgment has
been embodied in the Indian law under Section 11 of the code
of Civil Procedure, 1908. It enacts that once a matter is finally
decided by a competent Court, no party can be permitted to
reopen it in a subsequent litigation.
Maxims:
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 Doctrine of res judicata or rule of conclusive judgement is

based on the following three maxims:
1. Nemo debet lis vexari pro eadem causa: no man to be vexed twice
for the same cause
2. Interest republicae ut sit finis litium: it is in the interest of the
state that there should be end to litigation.
3. Re judicata pro veritate occipitur: a judicial decision should be
accepted as correct.
PURPOSE OF RES JUDICATA:
Res Judicata aims to prevent;
1. Injustice to the parties of a case that has been supposedly
concluded by providing closure to a judgment and precluding any
further claims
2. Unnecessary waste of court resources
3. Multiplying of judgments as further claims would lead to
several varied judgements on the same matter which will lead to
confusion
4. Recovery of damages from the defendant twice for the same
injury
RES JUDICATA INCLUDES:
1. Claim preclusion: it focuses on barring a suit from being
brought again on a legal cause of action, that has already
been, finally decided between the parties.
2. Issue preclusion: bars the re-litigation of factual issues that
have already been necessarily determined by a judge as part
of earlier claim.

RES SUB-JUDICE:
 When two or more cases are filed between the same parties on
the same subject matter, in two or more different Courts, the
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competent court has power to “Stay Proceedings” of another

Court.
 The doctrine of res sub judice aims to prevent courts of
concurrent jurisdiction from simultaneously entertaining and
adjudicating upon two parallel litigations with respect to the
same cause of action, same subject matter and same relief
claimed
APPLICATION OF RES SUB JUDICE IN INDIA:
 Section 10 of Civil Procedure Code defines ‘Stay of suit’ as
follows:
 “No Court to proceed with trail of any suit in which the matter
in issue, is also directly and substantially in issue. In previously
instituted suit between the same parties, or between parties
under whom they or any of them claim, litigating under the
same title, where such suit is pending in same or any other
Court, in India, having jurisdiction to grant relief claimed.

 Objective: The object of Section 10 is to prevent Courts of

concurrent jurisdiction from simultaneously, trying two
parallel cases, in respect of same matter in issue. The two fold
objects are:
1. Avoid wasting Court Resources.
2. Avoid Conflicting decisions.
CONDITIONS OR ESSENTIALS:
 The matter in issue in both the cases are to be substantially the
same
 Previously instituted suit must be pending in the same or any
other court competent to grant:
1. Relief claimed in the suit.
2. Relief claimed in subsequent the suit.
 Suits to the parties are to be the same or between parties under
whom they or any of them claim, litigating under the same title.
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 Pendency of suit in Foreign Court doesn’t activate Section 10

CPC.
 If suit is pending before a Court and subsequently an
application is filed before a Thasildhar, it doesn’t invoke
Section 10 as Thasildhar is not a “Court”

2.What do you mean by Pleading, contents of pleading, written

statement and grounds of rejection of plaint and explain return of
plaint?
Ans. PLEADING:
 Pleading is the foundation of litigation. Pleading has been
dealt with in Order 6 of the Civil Procedure Code. Order 6
Rule 1 of CPC defines pleadings as plaint or written
statement.
 The word ‘plaint’ is undefined in the code. However, it can
be said to be the statement of claim – a document that
contains the material fact by the presentation of which a suit
is instituted in the court of law.
CONTENTS OF PLEADING:
The most commonly used pleadings in a formal court of law
includes:
 Complaint: the lawsuit is initiated by filing the complaint.
Here the plaintiff who owns the complaint spells out his facts
in the dispute and informs the court of what is his prayer.
 Summons: A summons is a document that notifies the person
or party that is being dragged to the court. In most cases, the
summons is required to contain the reasons for the case and
the time required for the defendant to respond to the suit.
 Answer: the response of the defendant in the lawsuit is
referred to as an answer. Here, the defendant clearly touches
each of the subjects of the case and spells out his version of
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the facts raised by the plaintiff. Once the complaint reaches

the defendant, he has a limited time to respond to it.
 Counterclaim: in a civil court, it is very common that the
defendant may be of the argument that he is rather the
injured instead of the plaintiff. While the court is waiting to
entertain his response on the complaint, he may file a
counterclaim which will spell out the faults that the plaintiff
has committed for which the defendant is aggrieved
PLAINT- ESSENTIALS, RETURN, REJECTION
 Plaint is defined in Order 7 of CPC. Plaint is a statement of
claim filed by the plaintiff wherein it states the material facts
upon which he relies in support of his case and claims and relief
he desires.
Essential Part of Plaint:
A. Heading and Title
B. Body the Plaint
1. Substantial Portion:
• Matters of inducement.
• Facts constituting case of action (Order VII Rule 1(d))
• Facts showing defendants interest and liability (Order VII
Rule 5)
2. Formal Portion:
• Date of cause of action
• Statements of facts pertaining to jurisdiction.
• Statement as to valuation of suit.
• Statement as to minority or insanity of a party.
• Statement as to plaintiff representative character.
• Statement as to grounds of exemption from limitation law.
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3. Relief claimed.
4. Signature and verification.
Return of plaint
Return of Plaint means when a court found that in any suit
presented before it has no jurisdiction to try it, then the trial court
may, by the order of returning the plaint, may return the plaint to
be presented to the proper court.
Rejection of plaint
Order 7 rule 11 of CPC mentions the provisions, where the plaint
should be rejected. The plaint will be rejected in the following
cases:
• Where plaint does not disclose the cause of action,
• Where relief claimed is undervalued,
• Where plaint is insufficiently stamped,
• Where suit is barred by law,
• Where plaint is not in duplicate, and
• Where there is non-compliance with statutory provisions.
WRITTEN STATEMENT
 “Written Statement is defined in Order 8 of CPC” Written
statement is the statement or defence of the defendant by which
he either admits the claims of the plaintiff or denies the
allegations or averments made by the plaintiff in his plaint.
Essentials of written statement:
1. Heading and Title.
2. Body of the written statement.
3. Signature and verification
a. Constructive admission caused by defective denials (Order VIII
Rule 5)
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b. Constructive admission caused by non- filing of written

statement. (Order VIII Rule 5(2))

3.Objects of limitation Act 1963 & general principles

[condonation of delay period] [section 5]?
Ans. INTRODUCTION:
 The word limitation itself says the meaning. The word
limitation in its literal term means a restriction or the rule or
circumstances which are limited
 The law of limitation has been prescribed as the time limit
which is given for different suits to the aggrieved person within
which they can approach the court for redress or justice.
 The basic concept of limitation is relating to fixing or
prescribing of the time period for barring legal actions.
According to Section 2 (j) of the Limitation Act, 1963, ‘period
of limitation’ means the period of limitation prescribed for any
suit, appeal or application by the Schedule, and ‘prescribed
period’ means the period of limitation computed in accordance
with the provisions of this Act
OBJECTS OF LIMITATION ACT 1963:
 The Law of limitation prescribes a time period within which
a right can be enforced in a Court of Law. The time period
for various suits has been provided in the schedule of the
Act.
 The main purpose of this Act is to prevent litigation from
being dragged for a long time and quick disposal of cases
which leads to effective litigation.
 As per the Jammu and Kashmir Reorganisation Act, 2019,
provisions of the Limitation Act will now apply to the whole
of India.
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 The Limitation Act, 1963 contains provisions relating to the

computation of time for the period of limitation, condonation
of delay, etc.
 The Limitation Act contains 32 sections and 137 articles and
the articles are divided into 10 parts.
CONDONATION OF DELAY: [section 5]
 Condonation of delay means that extension of time given in
certain cases provided there is sufficient cause for such
delay.
 Section 5 talks about the extension of the prescribed period
in certain cases. It provides that if the appellant or the
applicant satisfies the court that he had sufficient cause to
not prefer the appeal or application within that period, such
appeal or application can be admitted after the prescribed
time.
 This Section further mentions that an application made
under any of the provisions of Order XXI of the Code of
Civil Procedure, 1908 (5 of 1908).
 The explanation states that in ascertaining or computing the
period prescribed when the applicant or appellant has been
misled by any order, practice or judgment of the High
Court. It will be a sufficient cause within the meaning of this
section.
 However, if a party does not show any cogent ground for
delay then the application, suit or appeal will be rejected by
the court.

4.Decree & Types of Decree?

Ans. DECREE:
 The term “decree” has been defined under section 2(2) of the
Code of Civil Procedure,1908. The decree is a formal
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expression of adjudication by which the court determines the

rights of parties regarding the matter in controversy or dispute
 Decree Holder: According to Section 2 (3) of the Civil
Procedure Code - "decree-holder" means any person in whose
favour a decree has been passed or an order capable of
execution has been made.
ESSENTIALS ELEMENTS OF A DECREE:
 The decree is a decision of the court. For any decision of the
court to be a decree, the following essential elements are
required:
1. There must be an adjudication.
2. The adjudication should be done in a suit.
3. It must determine the rights of parties regarding the matter
in dispute.
4. The determination of the right should be of conclusive
nature.
5. There must be a formal expression of such adjudication

KINDS OF DECREE:
A decree may be classified into two kinds:
1). Declaratory decree which is not capable of execution.
2). Executory decree which can be executed and enforced by the
court.

TYPES OF DECREES –
 Types of Decrees are as Follows -

1.PRELIMINARY DECREE:
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 A decree is stated as a preliminary decree when the rights of

parties regarding all or any of the matter in dispute are
determined in the adjudication but it does not dispose of the
suit completely. The preliminary decree is only a prior stage
 A preliminary decree is passed by the courts mainly when the
court has to adjudicate upon the rights of the parties and then,
it has put the matter on hold unless the final decree of that suit
is passed
2. FINAL DECREE
 The final decree is a decree which disposes of a suit
completely and settles all the matter in dispute between the
parties. The final decree does not leave any matter to be
decided further.
It is considered as a final decree in the following ways.
 When no appeal is filed against the decree within a
prescribed time period.
 Matter in the decree has been decided by the highest court.
 When the decree passed by the court disposes of the suit
completely.
3.PARTLY PRELIMINARY AND PARTLY FINAL DECREE:
 A decree passed under the Code of Civil Procedure may be
partly preliminary and partly final. This happens some part
of the decree is preliminary decree while the rest is a final
decree
ILLUSTRATIONS:
 If there is a suit of possession of an immovable property
along with the issue of mesne profit, and the court is obliged.
1. Passes a decree deciding the possession of the property.
2. Directs for an enquiry of mesne profit.
The first part deciding the possession of the property is final
while the part regarding the mesne profit is preliminary.
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DEEMED DECREE:
 An adjudication which does not formally fall under the
definition of decree stated under section 2(2) of the Code of
Civil Procedure but due to a legal fiction, they are deemed to
be decrees are considered as deemed decrees.
 Rejection of plaint and determination of the issue of
restitution of decree are deemed decree. Also, an
adjudication under order 21 Rule 58, Rule 98 and Rule 100
are also deemed decrees.

5.What is an appeal & what are general rules relating to appeal?

Ans. INTRODUCTION:
 An appeal is asking a higher court to review and if needed, to
reverse the decision of the lower court and to turn it in the
losing party’s favour after the final judgment has been given.
 The losing party has to quote legal reasons as to why it feels
the judgment of the lower court was wrong and why it
should be overturned by the higher court. The losing party
and the appellant here must show the errors or mistakes that
were committed during the previous trial.
The two grounds on which an appeal can be filed are:
 When a mistake was committed in the trial– Only grave
errors are counted under this provision. Harmless errors
cannot be a ground for appeal. The appellant must also show
that the error caused his rights to be infringed.
 When evidence does not support the verdict– It is much
harder to prove an appeal that is based on insufficient
evidence. As the Court of Appeal did not hear the entire
proceedings in the previous trial and didn’t make a fully
unbiased decision. Based on their belief in the judgement of
the trial court, most appeal courts weigh and then make
their decision.
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APPEALS FROM ORIGINAL DECREE

 An appeal is a remedial concept determined as an
individual’s right to seek justice against an unjust
decree/order via referring it to a Superior Court. Sections 96
to 99A; 107 to 108 & Order 41 of the Code of Civil
Procedure, 1908 deal with appeals from original decrees
known as First appeals.
 Section 96 of the CPC provides that an appeal shall lie from
a decree passed by any Court exercising original jurisdiction
to the authorized appellate Courts, except where expressly
prohibited.
APPEALS FROM APPELLATE DECREES
 Section 100 provides for a second appeal under this code. It
states that an appeal shall lie to the High Court from a
decree passed in the first appeal by a subordinate Court,
excepting the provisions speaking to the contrary.
 The scope of exercise of jurisdiction under this section is
limited to a substantial question of law framed at the time of
admission of appeal or otherwise.
No second appeal in certain cases
This is defined under Section 102 of CPC:
 No second appeal shall lie when it is of cognizable nature
by courts of small issues.
 No second appeal shall lie when there is the finding of
errors in the jurisdiction
APPEAL FROM ORDER
 It is a general rule created under the Code that only decrees
are appealable and orders are non-appealable. However,
there can be circumstances where an order can largely affect
the rights of the parties to a suit and therefore, Section 104
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was enacted to provide a list of orders from which an appeal

lies.
APPEAL TO SUPREME COURT
 Article 132 provides for an appeal to the Supreme Court of
any judgement, order or decree from civil or criminal cases
or any other proceedings. Supreme Court is the topmost
forum in the hierarchy of the Court. It is primarily the
Court of appeal.
 It is the highest forum for appeal in the country. The power
of appellate jurisdiction is given to the Supreme Court, by
the Indian Constitution under Article 132, 133, 134, 134A.
6.Who are parties to the suit? explain necessary and proper
parties?
Ans. SUIT
 A plaint is a legal document in which a plaintiff appeals to
the court to grant him a remedy for any legal injury caused
to him is called plaint and the suitor or the person who files
the suit is known as plaintiff. Plaint is also called ‘suit’.
Parties to Suit
 There are always two parties involved in a case. For a civil
case, these two parties are referred to as the plaintiff, who is
responsible for instituting the suit against the other party,
and the defendant who is the other party and has to provide
his defence in the civil court against the allegations made on
him.
 This is the beginning of a civil case as have been provided
under Order 1 that deals with Parties to suit
 Right after the parties to suit are recognized comes the need
to frame the suit as provided under Order 2.

Frame of Suit
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 The plaintiff will be approaching a civil court with his suit

which is familiarly known as Frame of Suits provided under
Order 2 of the Code. Framing of suit signifies that a party has
instituted a legal action against another party
There are two types of persons who may be added as a party to
the suit.
Necessary Party
 A person is a necessary party when in the absence of whom
relief claimed in the suit cannot be granted. A necessary party
is against whom the relief is sought and without whom no
effective order cannot be passed.
Examples of Necessary parties: -
 In a suit for partition, all sharers are necessary party,
 In a suit for the declaration to set aside public auction,
purchase of property in a public auction is a necessary party,
 In an action against selection and appointment by an authority,
candidates who are selected and appointed are directly affected
and, therefore, they are necessary parties.
PROPER PARTY
Proper parties are those whose presence may be necessary with a
view to fully adjudicate upon the matters involved in the suit.
The said power can be exercised in either of the two grounds:
(a) Such person ought to have been joined, either as a plaintiff or
as a defendant, but is not so joined; or;
(b) Without whose presence, the question involved in the suit
cannot be decided finally and effectively.
Example of Proper parties:-
a) In a suit for possession, by a landlord against his tenant, a
sub-tenant is only a proper party,
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b) n a suit for partition, by a son against their father, grandsons

are proper parties to the suit,

7.Explain special suit against minor, indigent person, government

and impleaders suit?
Ans. SUIT BY OR AGAINST GOVERNMENT
Section 79- This Section defines the concept of suits by or against
the government: Whenever a case is filed against a government or
if it is filed by the government, the plaintiff and the defendant who
will be named in the case will be as provided under:
• Whenever the case is instituted by or against the central
government, the Union of India will be represented as the
required plaintiff or defendant respectively.
• Whenever the suit is filed by or against the state government, the
state government will be required to act as the plaintiff or the
defendant.
SUIT AGAINST MINOR:
 The most important provisions as are laid down for suit by or
against minors and lunatic are provided under Order XXXII.
These provisions are similar to each other.
 It is provided that every sit by minor should be instituted in his
name through his guardian or his next friend. In case, if such a
procedure is not followed then the plaint will be taken off the
file. While in case where the suit is instituted against a minor,
the court should appoint a guardian to defend the suit.
SUIT AGAINST INDIGENT PERSON:
 The dictionary meaning of the word ‘indigent person’ refers to
a person who is suffering from extreme poverty,
impoverishment, or one who lacks the basic resources required
in normal life. In legal parlance, an indigent person does not
possess the financial capacity to pay the court fee
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 Suit by indigent person who is also called as pauper are

provided under Order XXXIII. The requirement of this
provisions were realised to solve mainly three intents including
protection of bonafide claims of an indigent person,
safeguarding interests of revenue and lastly, for the protection
of defendant against harassment.
INTERPLEADER SUITS
 Interpleader suit in C.P.C is defined in section 88 with order no
XXXV. An interpleader suit means if any person claims any
property of her husband or her parents and in case the owner
of the property is dead without transferring the property, then
the second owner has to claim the property from the bank or
authority.
 After claiming for such property, the bank or the authority has
to file an interpleader suit in the court. Then the court will
decide who will be the main owner of the property. In an
interpleader suit, there were many defendants to claim the
property. Plaintiff gets the monetary value for filing the suit in
the court on behalf of the defendant. He is not liable for any
damage.
8.Explain commission order 26 & receiver order 40?
Ans. COMMISSION
 Under CPC a commissioner is appointed to fulfil certain
functions which are essential for the court in order to
dispense full and complete justice section 75 and order 26 of
the code provides provisions which relates to the
commissioner
 For example, whenever the Court has to do a local
investigation, a commissioner is appointed who conducts the
local investigation. Similarly, to record the evidence of a
witness who cannot come to the Court for evidence, the
Court can issue a commission for recording of such evidence.
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POWERS OF THE COMMISSIONER: ORDER 26 RULE 16-18

 Under order 26 rule 16 powers of a commissioner are as
follows:
1. Commissioner has the authority to examine the parties
and the witnesses and any other person who the
commissioner thinks can give evidence in matter referred
to him
2. Commissioner can direct the parties to produce any
documents which is required to be examined
3. Commissioner also has the power to enter and search any
land or building with the permission of the court
4. If the party fails to appear before the commissioner after
the order of the court the commissioner can proceed ex-
parte
ORDER 26 RULE 15:
 Order 26 rule 15 provide for the expenses which might be
incurred by the commissioner while issuing commission the
court directs the applicant to deposit sum of amount which
can be used by the commissioner to account for the expenses
which might be incurred by him while carrying out the
commission
RECEIVER ORDER 40:
 Under order 40 of CPC, The Receiver is an independent and
impartial person who is appointed by the court to
administer/manage, that is, to protect and preserve a
disputed property involved in a suit
ROLE OF A RECEIVER
 The Receiver is regarded as an officer of the court and is the
extended arm and hand of the court. He is entrusted with
the responsibility to receive disputed property or money
given by the court and manage such property or money till
the time a decree is passed
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 The property or fund entrusted to the receiver is considered

to be custodia legis i.e. in the custody of the law. The
Receiver has no power other than those entrusted to him by
the court while appointing him.
WHO CAN APPOINT A RECEIVER:
 According to the civil procedure code, the court before which
the proceedings are pending can appoint a receiver if it
appears just and convenient to the court to appoint such
receiver [section 51(d)]. It is within the discretionary power
of the court to appoint the receiver.
 For example, in a suit, the trial court can appoint a receiver.
Whereas, in appeal, the appellate court can appoint a
receiver

SAQ’S:

1.Comissions?
Ans. Commission is instruction or role given by the Court to a
person to act on behalf of the Court and to do everything that
the Court requires to deliver full and complete justice. Such
person who carries out the commission is known as a Court
commissioner.
For example, whenever the Court has to do a local investigation,
a commissioner is appointed who conducts the local
investigation. Similarly, to record the evidence of a witness who
cannot come to the Court for evidence, the Court can issue a
commission for recording of such evidence.
PROCEDURE FOR CARRYING OUT THE COMMISSION:
1. The commissioner will conduct the local investigation
examination of witnesses adjust accounts and other functions
as ordered in the commission
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2. After completion of the function the commissioner will

reduce the findings in writing and will make a report
3. The commissioner will submit the report signed by him along
with the evidence recorded in the court
4. The report of commissioner will form a part of the record
5. While examining the report the court or concerned parties
after prior permission can examine the commissioner
personally in open court
6. If the court is dissatisfied with the proceedings of the
commissioner the court can order a further inquiry on the
commission or ca issue a fresh commission and appoint a new
commissioner
COMMISSION CAN BE ISSUED IN FOLLOWING
CIRCUMSTANCES:
1. To make local investigations
2. To adjust accounts
3. To make partition
4. To hold investigation
5. To perform ministerial work

2.Counter-Claim?
Ans. COUNTERCLAIM:
 A counterclaim is a claim by the defendant against the plaintiff.
The usual notion is that the plaintiff has certain claims which
the defendant defends himself against. These claims are dealt
under Order VIII Rule 6A-6G of CPC.
 Sometimes, the defendant may also have some claims against
the plaintiff.
 A counterclaim has to be a claim that could have been the
subject matter of another suit and it is essentially a cross
action.
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 The defendant submits his claims in a document(s). The term

‘plaint’ incorporates this document as well, although the
defendant’s plaint need not pertain to the same information as
in a plaintiff’s plaint.
 For example, Shahid filed a suit for divorce from Karishma in
the District Court citing incompatibility, and the summons was
served on her. Karishma filed a suit a week later for judicial
separation on the grounds of desertion. Can this submission of
Karishma’s be taken as a counterclaim to Shahid’s suit? Yes, it
is a cross action. A counterclaim does not give rise to a different
suit, but may be taken as a reply to a claim by the plaintiff.
MODES OF SETTING UP COUNTERCLAIM:
There are three modes of pleading or setting up a counterclaim in
civil suits, which are as follows:
1. In the written statement filed under Order 8 Rule 1;
2. By amending written statement with the leave of the court
and setting up counterclaim; and
3. In a subsequent pleading under Order 8 Rule 9.

3.Written statement/types of statement?

Ans. WRITTEN STATEMENT:
 A written statement is the reply made by the defendant to the
plaint filed by the plaintiff. When a plaint is filed, the Court
examines the charge and serves a ‘summons’ on the alleged
wrongdoer, the defendant. He must respond within a month or
3 months by filing a written statement in his defence.
There are some very important rules concerning the manner in
which the statement of defence ought to be presented. This
includes:
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1. All the documents supporting the defence or counterclaim must

be produced
2. Any facts that the defendant considers relevant, whether new
or old, must be brought up.
3. The denials and assertions must be specific, clear and explicit
and must not be vague.
4. The statement must deal with every given fact, and any
allegation that is not denied is taken to be admitted.
 For example, in the case of Bendat v. East India Company, the
Court stated that the combined effect of rules 3 & 4 specifically
deal with every allegation of fact and deny the same explicitly
and to have the point of substance. If the denial is evasive the
fact shall be taken to be admitted and no other proof is needed.
 It must be noted, however, that even if the defendant does not
give a written statement the plaintiff will still have to prove the
case. It is the Court that needs to be convinced

4. Affidavit?
Ans. AFFIDAVIT:
 An affidavit is a written statement which is sworn by an
individual making it [deponent] under an oath which is
administered by a person of authority
COMPONENTS OF AFFIDAVIT:
It is important that we consider the different terms and
components that are common in any affidavit
WRITTEN STATEMENT: all affidavit must be in writing any
oral statements that are taken as oath before the law does not
in any way equals an affidavit for an affidavit to be used as an
evidence before the court it must be written
AFFIRMATION OR OATH: a solemn promise by the
deponent regarding his action must be found in this document
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VOLUNTARILY: Affidavit is very binding on the fellow who

has sworn to it and thus must be his personal decision any
affidavit that is taken forcefully shall be invalidated if the
aggrieved person can proof the facts before the law
DEPONENT OR AFFIANT: this is the person who is making
the affidavit
NOTARIZATION: all affidavits must be notarized before the
notary office which is authorized by the state or central
government
HOW TO DRAFT AN AFFIDAVIT:
 It should be divided into paragraphs which are given a
specific number
 Each paragraph of the document should be specific on each
subject
 It should mention the names age religion residence and
occupation of the deponent
 Where any alterations are to be made in the document it
must be authenticated by the authority

5. Judgement/types of judgement?
Ans. JUDGEMENT
 The word ‘judgement’ is derived after combining two words
namely, judge and statement. ‘Judgement’ means the reasoning
given by the court in order to support its decision.
 Judgment is defined under sec. 2(9) of the Civil Procedure
Code Judgment means the statement given by the judge on the
ground of a decree or order. A judgment is said to be the final
decision of the court on the said matter before the court in the
form of suit towards parties and to the world at large by formal
pronouncement in open court.
 24

 The CPC does not provide anywhere for a mandatory written

judgment. It means that judgment can be both oral and written
and the court must read out and explain the judgment in
whatever form it is.
ESSENTIAL OF JUDGEMENT:
 A judgment should possess the essentials of a case, reasoning
and basic contention on which it is delivered.
 Essentials of judgment other than that of the court of small
causes.
•A concise statement of the case;
•The points for the determination;
•The decision thereon; and
•The reason for such a decision.
JUDGMENT OF A COURT OF SMALL CAUSES:
•The points for determination; and
•The decision thereon.
JUDGMENT TO BE SIGNED AND DATED (RULE 3)
The judgment shall be signed and dated by the Judge at the time
of pronouncement in the open court.
COPY OF THE JUDGMENT (ORDER 20 RULE 6B)
 Copies of the judgment shall be made available to the parties
immediately after the pronouncement of the judgment for the
preferring an appeal on payment of such fees or charges as may
be specified in the rule made by the High Court.
ALTERATION IN JUDGMENT RULE 3
 A judgment once signed and dated under Rule 3 cannot
afterward be amended or altered except-
 25

a. To correct clerical or arithmetical mistakes or errors due to

accidental slips or omissions (Section 152)
b. On review (Section 114).

6. Set-off?
Ans. Where a plaintiff has instituted a suit for the recovery of
money from the defendant, and the defendant has certain claims
of money from the plaintiff, the defendant can set-off his claim
against the plaintiff’s demand.
So, any sum of money legally recoverable by the defendant from
the plaintiff, on the conditions that:
 it should not exceed the pecuniary limits of the jurisdiction of
the Court, and
 both parties fill the same character as they fill in the plaintiff’s
suit,
 at the first hearing of the suit, but not afterwards (unless the
Court permits it), he presents a written statement containing
the particulars of the debt he seeks to set-off.
For example, the compensation in a suit of wrongful possession
between an owner and his tenant may not be set off with the
compensation in a suit for the inheritance of property from a
common deceased relative.

7.Types of suit?
Ans. SUIT:
 The term suit is not defined under the in the C.P.C. but by
various decisions it can be said that “Suit ordinarily means a
civil proceedings instituted by presentation of a plaint.
 Civil suit is the institution of litigation for enforcement of civil
rights (or substantive rights, it may be against state or
 26

individual). A suit is resulted into decree. Without suit there

cannot be a decree.
There are four essentials of a suit:
 Name of Parties (there must be two opposing parties) – In a
suit there must be at least two parties the plaintiff & the
defendant. There is no limitation with regards to number on
either side.
 Cause of Actions – it is a set of facts or circumstances that a
plaintiff is required to prove Cause of action means all
essential facts constituting the right and its infringement.
Every plaint must disclose a cause of action if not, it is the
duty of the court to reject the plaint
 Subject matter – there must be a subject matter (with what
respect or aspect civil dispute is)
 Relief claimed by the plaintiff – no court will give relief
unless relief is specifically claimed by the party
 Relief is of two types-
1) specific relief and
2) alternative relief.

VARIOUS STAGES OF CIVIL SUIT

1. Institution of suit or commencement of suit.
2. Service of summon.
3. Written statement
4. First hearing and framing of issues.
5. Discovery.
6. Production of evidence and final hearing.
7. Arguments.
8. Judgment.
9. Preparation of decree.
10. Execution of decree.

8.Ex-parte & its procedure?

 27

Ans. EX-PARTE:
 EX-PARTE - A proceeding brought before a court by one
party only, without notice to or challenge by the other side.
 When the suit is called out for hearing and the plaintiff appears
and the defendant does not appear and summons is duly
served, the court may proceed ex parte against him and can
pass a decree called ‘ex parte’ decree.
Ex-parte Decree
 An ex parte decree is a decree passed in the absence of the
defendant. Such a decree is neither null and void nor
inoperative but is merely voidable and until it is annulled, it has
all the force of a valid decree.
Remedies in case of ex parte: The procedure prescribed for an ex
parte decree goes against the principle of granting everyone a fair
hearing. Thus, there are many provisions for the defendant to
apply for setting aside the ex parte decree.
 He can apply under Order 9, Rule 13 by proving that he could
not attend court due to either of the following grounds:
(1) the summons was not served properly, or that
(2) he was prevented by any sufficient cause from appearing when
the suit was called for hearing.
For example, in a suit where the decree was passed against both
the defendants, but only one had received the summons and was
present in Court, the Court set aside the decree of the party who
was not present. It was held that the decree was still valid against
the attending party.

9. Caveat [section 148A]?

Ans. CAVEAT:
 28

 The caveat in Latin means “let a person be aware” and in law,

it may be understood as a notice given asking not to act in a
certain manner without informing the person who gave such a
notice. Under the Civil Procedure Court, the provision of
caveat is dealt with in Section 148A.
 It is a warning or caution given by a party to the court not to
take any action or grant any relief to the applicant without
notice being given to the party lodging the caveat.
RIGHT TO LODGE A CAVEAT:
 According to Section 148A, when people apprehend that some
case against them is filed or is about to be filed in any court of
law in any manner, they have a right to lodge a caveat.
The Caveat may be lodged in the form of a petition under the
following circumstances:
 During an ongoing suit or litigation and in that the application
is already been made or is expected to be made; The suit is
about to be instituted and in that suit, an application is
expected to be made.
WHO MAY LODGE A CAVEAT?
 Section 148A further provides that a caveat may be filed by any
person, whether a party to the suit or not, as long as the person
filing the caveat has the right to appear before the court in
regard to the suit in question.
 Thus caveat can be filed by a third party as well, if they in any
manner are connected to the suit in question.
TIME LIMIT - WHAT IS TIME PERIOD FOR WHICH
CAVEAT STAYS IN FORCE?
 Caveat duration - Caveat will remain in force for 90 days from
the date of its filing. After 90 days Fresh Caveat Petition can be
filed.
 29

WHAT HAPPENS IF THE CAVEAT IS FILED AND THE

COURT AND THE APPLICANT DON'T GIVE NOTICE TO
THE CAVEATOR?
 It cannot be done, because the Court is bound by the Caveat.
But if the Court or the Applicant ignored it then whatever
decree or order is passed that becomes null and void.

10. Jurisdiction & its types?

Ans. JURISDICTION:
 Jurisdiction may be defined as the power or authority of a
court to hear and determine a cause and to exercise any judicial
power in relation to it.
 Jurisdiction is defined as the limit of judicial authority or
extent to which a court of law can exercise its authority over
suits, cases, appeals etc.
 Thus, if a court passes an order on a case that is outside its
jurisdiction, the order is void and need not be heeded by the
party.
TYPES OF JURISDICTION OF THE CIVIL COURT:
 The civil jurisdiction of the court empowers the court to deal
with disputes of civil nature some types of jurisdictions are
as follow:
ORIGINAL JURISDICTION:
 Original jurisdiction empowers the court to entertain any
dispute of civil nature at an early stage in simple words
where we file the civil suit at the first instance to deal with
our issue is the original jurisdiction of the court
 Example: consider there is a dispute of civil nature between
two states then the case should be filed before the supreme
court and not before the high court or district court thus this
is the original jurisdiction of the supreme court
 30

TERRITORIAL / AREA WISE JURISDICTION:

 Territorial jurisdiction of the court depends on the territory
within which the court is empowered to deal with the matters
of the civil nature is called its territorial jurisdiction
 Example: the dispute relating to the partition of the
immovable property situated in the district can be filed before
that particular district court and not to any other district
court
PECUNIARY/MONETARY JURISDICTION:
 The meaning of pecuniary or monetary jurisdiction it is the
monetary value of the subject matter in the suit which is heard
and decided by the authority of the court
 Section 6 of the civil procedure code describes the pecuniary
jurisdiction of the court as—nothing herein contained shall
operate to give any court jurisdiction over suits the amount or
value of the subject matter of which exceeds the pecuniary
limits [if any] of its ordinary jurisdiction
APPELLATE JURISDICTION:
 When the judgement is given by the court and the aggrieved
party files the appeal at the first instance in other superior
courts such court is called appellate court and such court has
the power to entertain that appeal it’s an appellate
jurisdiction of that court
 Hence the court has the power to re-adjudicate the matter
which is already decided by the lower court it’s an appellate
jurisdiction for example: appeal, revision, etc.
SUBJECT MATTER JURISDICTION:
 The courts had empowered to understand and try the cases
relating to certain types of subject matter is known as the
jurisdiction of the subject matter of the particular court in
simple words special matters should be heard and decided by
the special court
 31

 Example: the disputes relating to the family matters were

heard and decided by the family courts only and not by
tribunals
EXCLUSIVE AND CONCURRENT JURISDICTION:
 Exclusive jurisdiction means there is only one court that has
the authority to hear and decide the matter
 Concurrent means there are two or more courts that have
the power to entertain and decide the particular case
 Example: suppose there is a divorce case that can be filed in
the Maharashtra and Telangana both the courts have
jurisdiction to hear and decide the case this is concurrent
jurisdiction but if the same matter is decided by the court in
Maharashtra then the appeal should be in Bombay high
court only this is the exclusive jurisdiction

11. Injunction?
Ans. INJUNCTION:
 An injunction is a remedy granted by the court that
prohibits the commission of a wrong threatened or the
continuance of a wrongful course of action already begun
 if a party fails to comply with an injunction granted by a
court then the party could face criminal or civil penalties or
contempt of court
 An injunction is like a spoke in the wheel. It aims to
maintain the status quo and prevent any possible further
injury to the plaintiff, sometimes for the duration of the trial
and sometimes as a part of a permanent decree given at the
conclusion of the trial.
 A permanent injunction restrains a party from ever doing a
particular act and is granted on merits at the conclusion of
the trial.
 32

 A temporary injunction, on the other hand, is granted only

until the disposal of the suit and it cannot be granted against
the third party. This applies, for example, when the
property in dispute is deteriorating or being damaged; the
plaintiff can ask for a temporary injunction on the
defendant’s neglect of the goods. And, for instance, if the
defendant is likely to sell or transact using the property in
dispute, it is necessary to get an injunction on the sale of the
property.
12. Order?
Ans. An order means ‘the formal expression of any decision of a
civil court which is not a decree’. A judicial order must contain
the discussion of the question at issue and the reasons which
prevailed with the Court to pass the order.
 The distinction may be drawn between a decree and order on
the following grounds
1. A decree can only be passed in the suit which commenced by
the presentation of a plaint. An order may arise from a
petition or application.
2. A decree conclusively determines the rights of the parties
however an order may not finally determine such rights.
3. There cannot be a preliminary order.
4. In certain suit is one preliminary decree and the other final
decree may be passed, however, a number of orders may be
passed in the same suit.
5. Every decree is appealable but every order is not unless
specified.
13.Admission?
Ans. ADMISSIONS – ORDER 12
 Admission basically means the voluntary acknowledgement
made by the person against his own interest. It can be an
important piece of evidence against a person.
 33

 It can either be in oral, electronic form or documentary in

nature. Admissions are different from the confession which is
made under the criminal law.
 Admission is weaker than confession because the parties have
the right to prove that admission made earlier was false.
 However, assertions are different from admission. It can be
made in favour of themselves. It can be true or false, therefore
assertions are not considered as an important piece of evidence
which can be used against a person.
KINDS OF ADMISSIONS
 Under the Code, the admissions are admitted in three ways: -
1. By agreement or by notice;
2. Actual admissions, oral or by documents;
3. The express or implied admissions from the pleadings or by
non-traverse by agreement.
14.Place of suing?
Ans. PLACING OF SUIT
 Section 15 to 20 deals with the place of suing. There are three
kinds of jurisdiction to determine the place of suing: -
1. Territorial jurisdictions
2. Pecuniary jurisdictions
3. Subject matter jurisdiction
 Whenever the suit is brought before the court the first question
is to determine is whether the court has a jurisdiction to deal
with the matter. If the court has all these (territorial,
pecuniary, or subject matter jurisdiction then only the court
has the power to deal with the case.
 In the case, if the court does not have any of the above-
mentioned factors then it will be considered as lack of
jurisdiction or the irregular exercise of jurisdiction. when the
court who does not have jurisdiction decide the case and give
 34

decision then such decision will be considered as void or

voidable depending upon the different circumstances.

15.Reference, Review, Revision?

Ans. Reference, Review and Revision
 A hierarchy exists between the courts in matters of jurisdiction
and position of law. For instance, the higher the court, greater
is the ambit of jurisdiction. And the interpretation given to a
law by a higher court becomes binding on the lower court.
 Therefore, when a lower court has a doubt over a question of
law, it may refer the same to the High Court for an opinion.
Reference:
 A subordinate Court may state a case and refer it to the High
Court for an opinion if there is a doubt over a question of law.
The conditions for the use of review may be listed as follows
1. It must be a pending suit or appeal in which the decree is not
subject to appeal or a pending proceeding in execution of
such decree
2. A question of law or usage having force of law must arise
3. The Court must have a doubt as to a question of law

REVIEW:
 If there is a glaring omission or mistake or error by the
judiciary, a review can be adopted in the case of such manifest
error on the face of judgment. A review is mentioned under
Section 114 of the Code
 The application for Review can be filed under the
circumstances where:
1. a decree or order is appealable as provided by the law, but
no such appeal has been preferred
2. there is no provision for appeal from certain decree or order
 35

3. a decision is passed by the court of Small Causes

REVISION:
 The High Court may decide to revise any decisions taken by the
lower courts under certain circumstances. The Code, under S.
115, empowers the High Court to entertain revision in any case
decided in a subordinate Court.
 In Section 115 of the CPC, there are only three grounds for
revision, which are:
1. When the lower court meditates on a matter on which it has
no jurisdiction.
2. There was authority, but it was not exercised.
3. Jurisdiction has been applied illegally or irregularly.
 Section 115 shall thus prevent subordinate courts or lower
courts from acting arbitrarily, illegally, irregularly or
capriciously.

PREPARED BY
SUMMAIYA-MEHMOOD