CPC

Introduction to the Code of Civil Procedure (CPC)

- The Code of Civil Procedure, 1908, was enacted to consolidate and amend laws related to
civil judicial processes in India.
- Historical Background:
- The first Code was introduced in 1859 but was not applicable to Crown Courts or
Presidency Towns.
- The 1877 and 1882 Codes were subsequent versions but were replaced by the 1908 Code
due to inefficiencies.
- The 1908 Code remains in force, with significant amendments made in 1976, 1999, 2002,
2015, 2018, 2022, and 2023.
- The Code is divided into:
1. Body of the Code: Contains 158 sections grouped into 12 parts.
2. The Schedule: Originally five schedules, but now a single schedule with 51 orders that
detail specific rules of procedure.

Distinction Between Procedural and Substantive Law

The CPC serves as procedural law, governing the processes of adjudication, while substantive
law establishes the rights and obligations of parties.
- Procedural Law:
- Provides the machinery for enforcing rights.
- Ensures a fair trial.
- Examples: Filing of plaints, service of summons, and rules of evidence.

- Substantive Law:
- Dictates legal rights, duties, and obligations.
- Examples: Contract law, property law, torts.

- Comparison:
Procedural law guides how a trial should be conducted, whereas substantive law focuses on
what rights or liabilities are involved in a case.
Suits and Jurisdiction
Jurisdiction of Civil Courts:
Jurisdiction defines a court’s authority to hear and decide cases:
1. Territorial Jurisdiction (Sections 16–20):
- A court can only adjudicate matters within its territorial limits.
- Suits related to immovable property (Section 16) must be filed where the property is
located.

Key Case: Harshad Chiman Lal Modi v. DLF Universal Ltd. (2005)—Jurisdiction for
immovable property disputes cannot be conferred by agreement.

2. Pecuniary Jurisdiction (Section 6):

- Courts are limited to hearing cases within a specified monetary value.
- For example, Small Cause Courts handle low-value suits, while district courts handle
higher-value cases.

3. Subject-Matter Jurisdiction:
- Jurisdiction depends on the nature of the case (e.g., matrimonial disputes fall under family
courts).
- Key Case: Dhodha House v. S.K. Maingi (2006)—Courts must independently have
jurisdiction over all issues in a combined suit.

4. Original and Appellate Jurisdiction:

- Courts of original jurisdiction hear cases for the first time.
- Appellate jurisdiction allows higher courts to review lower court decisions.

Bar on Suits:
- Expressly Barred Suits: Prohibited by statute (e.g., disputes involving taxation).
- Impliedly Barred Suits: Excluded by general legal principles.
- Key Case: Shankar Narayan Potti v. K. Sreedevi (1998)—Civil courts have primary
jurisdiction unless expressly excluded by law.
Foreign Judgments (Sections 13–14 CPC)
Foreign judgments are recognized based on reciprocity and fairness:
- Section 13 lists exceptions where foreign judgments are not conclusive:
1. Lack of jurisdiction.
2. Not decided on merits.
3. Violation of natural justice.
4. Obtained by fraud.
5. Conflict with Indian law.

- Key Cases:
1. R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar (1973)—Foreign decrees are
unenforceable without reciprocity.
2. Moloji Nar Singh Rao v. Shankar Saran (1962)—Judgments from non-reciprocating
territories require a fresh suit.

- Section 14: Indian courts presume foreign judgments to be valid unless proven otherwise.

Place of Suits (Sections 15–20 CPC)

- Section 15: Suits should be filed in the lowest competent court.
- Section 16: Suits concerning immovable property must be filed where the property is
located.
- Section 19: Compensation suits can be filed where the wrong occurred or where the
defendant resides.
- Section 20: Suits not covered under earlier sections can be filed where the defendant resides
or where the cause of action arises.

Illustration: If a tort occurs in Mumbai, but the defendant resides in Delhi, the suit may be
filed in either city.
Transfer of Cases (Sections 22–25 CPC)
Cases may be transferred due to convenience, potential bias, or lack of jurisdiction:
- Section 22: Transfer may be requested by the defendant.
- Section 25: The Supreme Court has the authority to transfer cases across states.

Judgments and Decrees

- Judgment (Section 2(9)):
- A formal court decision resolving the dispute.
- Decree (Section 2(2)):
- A conclusive court ruling determining rights.
- Types:
1. Preliminary Decree: Decides rights but requires further action.
2. Final Decree: Resolves all issues.

- Order:
- A directive issued by the court on procedural or substantive issues.

Execution of Decrees (Sections 36–74 and Order XXI CPC)

Decrees are enforced through:
1. Attachment and sale of property.
2. Temporary or permanent injunctions.
3. Arrest of judgment debtors.
Landmark Case References
1. Harshad Chiman Lal Modi v. DLF Universal Ltd. (2005)—Territorial jurisdiction.
2. Daryao v. State of Uttar Pradesh (1961)—Writ jurisdiction under Res Judicata.
3. Moloji Nar Singh Rao v. Shankar Saran (1962)—Foreign judgments from non-
reciprocating territories.

Suits: Jurisdiction of Civil Courts

Definition of Jurisdiction:
- Derived from the Latin words “juris” (law) and “dicto” (to speak), meaning "I speak by the
law."
- Jurisdiction refers to the authority or power of a court to hear and determine cases or causes.

Prerequisite Conditions for Suits:

For a case to be heard and tried by a civil court, two primary conditions must be met:
1. Cognizance is not barred:
- A suit must not be barred by law, either expressly or impliedly.
- Expressly Barred:
- These suits are explicitly prohibited by law. For example, taxation matters are generally
excluded from civil courts because they fall under special laws.
- Impliedly Barred:
- These suits are not maintainable because they contravene the general principles of law
or public policy.
- Case Law: Shankar Narayan Potti v. K. Sreedevi (1998)—The Supreme Court held that
civil courts have primary jurisdiction unless a specific law bars them.

2. The matter must be of a civil nature:

- Civil suits deal with private disputes, usually concerning civil rights and obligations.
- Examples include breach of contract, consumer disputes, family law issues, tort claims,
and property disputes.
- Civil suits do not involve criminal charges or punishment. Instead, remedies are typically
monetary damages or injunctions.
Kinds of Jurisdiction

Jurisdiction under the CPC is categorized as follows:

1. Territorial or Local Jurisdiction (Sections 16–20 CPC)
- Territorial jurisdiction defines the geographic boundaries within which a court can
adjudicate cases.

Key Provisions:
- Section 16: Suits related to immovable property must be filed in the court where the
property is located.
- Section 17: If the property spans multiple jurisdictions, the suit may be filed in any court
where part of the property is located.
- Section 18: When jurisdiction is uncertain, the plaintiff may file the suit in any competent
court.
- Section 19: Suits for compensation for wrongs (torts) can be filed where the wrong occurred
or where the defendant resides.
- Section 20: For other suits, jurisdiction is based on where the defendant resides, works, or
where the cause of action arises.

Examples:
1. A property dispute in Mumbai must be filed in a Mumbai court (Section 16).
2. If land is spread across Delhi and Haryana, the plaintiff may choose either jurisdiction
(Section 17).
3. If A defames B in Kolkata but resides in Delhi, B can file the suit in either Kolkata or Delhi
(Section 19).

Important Cases:
1. Harshad Chiman Lal Modi v. DLF Universal Ltd. (2005)—The court ruled that jurisdiction
over immovable property cannot be conferred by agreement.
2. Bahrein Petroleum Co. v. P.J. Pappu (1966)—Clarified that filing in any competent court is
valid if jurisdiction is uncertain.
2. Pecuniary Jurisdiction (Section 6 CPC)
- Pecuniary jurisdiction is determined by the monetary value of the subject matter of the suit.
- Courts are restricted to handling cases where the claim value falls within their specified
limit.

Illustration:
- Small Cause Courts may only hear cases involving amounts below ₹5,00,000, while district
courts handle larger claims.

Significance:
- Ensures efficient allocation of cases to appropriate courts.
- Prevents higher courts from being burdened with trivial disputes.

3. Jurisdiction as to Subject-Matter
- Certain courts are designated to handle specific types of cases based on subject matter.

Examples:
- Family Courts handle matrimonial disputes, such as divorce and custody.
- District Courts handle general civil matters like contract disputes and torts.
- Special Courts handle specific issues, such as consumer protection cases.

Key Case: Dhodha House v. S.K. Maingi (2006)—The Supreme Court clarified that subject-
matter jurisdiction must exist for all issues in a combined suit.

4. Original and Appellate Jurisdiction

- Original Jurisdiction: Courts with original jurisdiction hear cases for the first time.
- Example: District Courts hear civil disputes involving property or contract breaches in
their jurisdiction.
- Appellate Jurisdiction: Higher courts review decisions made by lower courts.
- Example: High Courts and the Supreme Court hear appeals from subordinate courts.

International Jurisdiction under CPC

International jurisdiction applies when foreign parties are involved, or the event occurred
outside India. Provisions under CPC governing such cases include:
1. Section 9: Civil courts have jurisdiction unless the suit is barred by law. This provision
ensures that courts do not exercise jurisdiction arbitrarily.
2. Section 14: Allows courts to presume that foreign judgments are pronounced by competent
courts unless proven otherwise.
3. Section 20: Extends jurisdiction in cases where one party resides in a foreign country, but
the cause of action arises in India.

Suits of Civil Nature (Section 9 CPC)

- Civil courts have jurisdiction to try all suits of a civil nature unless expressly or impliedly
barred.
- Suits of Civil Nature:
- Relate to disputes about civil rights and obligations.
- Examples: Breach of contract, tort claims, family disputes, property disputes.
- Exclusions:
- Matters like taxation, election disputes, or criminal offenses are typically excluded.

Case Law:
- Shankar Narayan Potti v. K. Sreedevi (1998)—Reaffirmed that Section 9 gives civil courts
jurisdiction over all civil matters unless barred by law.
Court Hierarchy
The CPC defines the subordination of courts for civil matters:
- High Court: Has original and appellate jurisdiction.
- District Court: Subordinate to the High Court, it has original jurisdiction for significant civil
cases.
- Civil Courts:
- Civil Judge (Senior Division): Handles higher-value cases.
- Civil Judge (Junior Division): Handles lower-value cases.
- Court of Small Causes:
- Deals with cases of minor monetary claims, such as disputes over rent or loans.
- Exclusions: Does not handle land ownership, family disputes, or defamation cases.

Monetary Limits:
- Vary by state. For example, ₹25,000 in some states, ₹1,00,000 or more in others.

Relevant Sections on Suits and Jurisdiction

1. Section 3: Defines the subordination of courts.
2. Section 4: Savings clause for special/local laws, ensuring CPC doesn’t conflict with them.
3. Section 5: Allows application of the CPC to revenue courts if specified by state
notification.

Objections to Jurisdiction (Section 21 CPC)

- Raising Objections:
- Jurisdictional objections must be raised at the earliest stage of the proceedings, before
issues are framed.
- Conditions for Objections:
- Objections must pertain to:
 1. The place of suing.
2. Subject-matter or pecuniary jurisdiction.
- Effect of Delay:
- If objections are not raised in time, the decision of the court remains valid even if
jurisdiction is technically lacking.

Transfer of Cases under CPC (Sections 22-25)

Introduction
The transfer of cases under the Code of Civil Procedure (CPC), 1908, is governed by
Sections 22 to 25. The transfer provisions ensure that cases are tried in the most appropriate
forum while preventing harassment of parties and ensuring the proper dispensation of justice.
The Supreme Court, High Courts, and District Courts have the authority to transfer cases
under specific conditions.

The principle behind transfer provisions is to balance the plaintiff's right to choose a forum
with the defendant's right to a fair trial and procedural convenience. The court's decision is
guided by the phrase "expedient in the interest of justice" (Maneka Sanjay Gandhi v. Rani
Jethmalani, 1979 SC).

1. Transfer of Suits by Subordinate Courts (Section 22)

Provision:
- If a suit can be filed in more than one court, the defendant may request that the suit be
transferred to another competent court.
- The application for transfer must be made at the earliest opportunity after the notice to the
opposite party.
- Only a defendant can apply under this section.

Key Case Law:

- Asrumati Debi v. Rupendra Deb, 1953 SC – Held that an order of transfer does not affect
the merits of the case and is not appealable.
2. Jurisdiction for Transfer Applications (Section 23)
Provision:
This section determines where an application for transfer should be made, based on the courts
involved:

1. If multiple courts are subordinate to the same Appellate Court, the application must be
made to the Appellate Court.
2. If the courts are subordinate to different Appellate Courts under the same High Court, the
High Court will decide the transfer.
3. If the courts are subordinate to different High Courts, the application should be made to the
High Court where the suit was originally filed.

Key Case Law:

- M/s International Woollen Mills v. M/s Standard Wool (U.K.) Ltd., 2001 SC – Emphasized
that transfer decisions should be based on substantive justice rather than procedural
convenience.

3. General Power of Transfer by High Court and District Court (Section 24)
Provision:
The High Court or District Court has the power to transfer or withdraw any case, appeal, or
proceeding before it. It can:
1. Transfer the case to another competent subordinate court.
2. Withdraw the case and try it itself or send it to another court.

This power can be exercised:

- Suo motu (on the court’s own motion).
- On an application of a party.
Before transferring a case, notice must be given to the opposite party. An order under Section
24 is not appealable but is subject to revision under Section 115 CPC.

Key Case Law:

- Durgesh Sharma v. Jayshree, 2008 SC – Held that Sections 22-25 CPC are exhaustive,
meaning no additional grounds beyond those listed in the CPC can be entertained.

4. Transfer of Cases by Supreme Court (Section 25)

Provision:
The Supreme Court has the power to transfer any case:
1. From one High Court to another High Court.
2. From a civil court in one state to another civil court in another state.

This power is exercised when the Supreme Court finds that the transfer is "expedient in the
interest of justice."

Key Case Law:

- Maneka Sanjay Gandhi v. Rani Jethmalani, 1979 SC – The Supreme Court held that
whether a transfer is expedient or desirable depends on the facts of each case.

5. Grounds for Transfer of Cases

Sufficient Grounds for Transfer:
A court may order a transfer in the following cases:

1. Avoiding Multiplicity of Proceedings or Conflicting Decisions – If multiple cases on the

same issue are pending in different courts.
2. Apprehension of Bias or Prejudice – If a litigant believes they may not receive a fair trial
due to a biased judge (Justice must not only be done but also seen to be done).
3. Common Questions of Fact and Law – If two or more suits involve similar issues.
4. Balance of Convenience – If the case location is inconvenient for parties or witnesses.
5. Cross-Suits – If two persons file suits against each other in different courts on the same
cause of action.
6. Cases of Public Importance – Where significant legal issues or public interest is involved.

Key Case Law:

- Radha Devi v. Deep Narayan, 2003 SC – Held that the test for transfer is whether the
decision in the previously instituted suit would operate as res judicata in the subsequent suit.
- Aspi Jals v. Khushroo Rustom Dadyburjor, 2013 SC – The Supreme Court clarified that the
entire subject matter in controversy must be the same for Section 10 CPC (stay of suits) to
apply.

Insufficient Grounds for Transfer:

A court will not transfer a case for the following reasons:

1. Mere Balance of Convenience – Personal inconvenience alone is not enough.

2. Vague Allegations of Bias – Without specific particulars, an allegation of bias cannot
justify a transfer.
3. Distance from Residence – The fact that a court is far from the applicant’s residence is not
a sufficient reason.
4. Influence of Opposite Party – If a party is influential locally, this alone does not justify a
transfer.
5. Judicial Precedents – A previous adverse ruling does not automatically imply bias.
6. Adverse Remarks by Judge – Negative observations in another case do not justify
transferring a new case.
7. Personal Bias Against Lawyer – Dislike of an advocate is not a ground for transfer.

Key Case Law:

- P.V. Shetty v. G. Giridhar, 1982 SC – Held that when Section 10 applies, Section 151 CPC
(inherent powers of the court) cannot be used to stay a suit.
6. Procedure for Transfer of Cases
1. The defendant must give notice to the opposite party when applying for a transfer under
Section 22.
2. The court must issue a notice to the other party before making an order under Section 24.
3. The Supreme Court must be satisfied that a transfer is expedient in the interest of justice
before granting an application under Section 25.

7. Effect of Transfer Orders

- A transfer order does not affect the merits of the case.
- The transferred case continues from the same stage at which it was transferred.
- The previous court’s orders and proceedings remain valid.

Conclusion
The provisions under Sections 22-25 CPC ensure that cases are heard in the most appropriate
jurisdiction, balancing the plaintiff’s choice of forum with the defendant’s right to a fair trial.
Courts have interpreted these provisions in multiple cases, establishing that justice, fairness,
and procedural efficiency are the key considerations in deciding transfer applications.

Thus, a case will be transferred only if it is necessary in the interest of justice, and the
application must be supported by strong, legitimate reasons, as outlined in various judicial
precedents.

Doctrine of Res Sub Judice (Section 10 CPC)

Meaning
- "Res Sub Judice" is a Latin term that means "under judgment."
- The doctrine prevents simultaneous litigation of the same subject matter between the same
parties in two or more courts.
Provision under Section 10 CPC
- Section 10 provides that no court shall proceed with the trial of a suit if the matter in issue is
also directly and substantially in issue in a previously instituted suit:
- Between the same parties or their representatives.
- Pending in a court that has jurisdiction to grant the relief claimed.

Conditions for Applicability

For Section 10 to apply, the following conditions must be satisfied:
1. Two suits must exist: One previously instituted and one subsequently instituted.
2. The matter in issue must be directly and substantially the same in both suits.
3. The parties must be the same or litigating under the same title.
4. The court where the earlier suit is instituted must be competent to grant the relief claimed
in the later suit.

Explanation
- The pendency of a suit in a foreign court does not preclude Indian courts from trying a suit
on the same cause of action.

Objective
- Prevents conflicting decisions from courts of concurrent jurisdiction.
- Avoids unnecessary litigation, saving judicial time and resources.

Scope
- This section applies to suits, not to applications or complaints.
- The term "matter in issue" means the entire controversy, not just individual issues.

Effect
- Section 10 bars only the trial of the subsequent suit, not its institution.
- The second suit is not dismissed but stayed until the first suit is resolved.

Key Cases
1. Ragho Prasad Gupta v. Krishna Poddar (1969):
- The Supreme Court ruled that Section 10 applies only if the subject matter in both suits is
identical.
2. Indian Bank v. Maharashtra State Co-operative Marketing Federation (1998):
- Section 10 bars the trial of a subsequent suit but does not affect the filing of the suit.
3. Aspi Jal v. Khushroo Rustom Dadyburjor (2013):
- Established that for Res Sub Judice to apply, the decision in the earlier suit should act as
Res Judicata in the later suit.

Illustration
- A landlord files a suit for rent recovery in Court A and later files a suit for tenant eviction in
Court B. Section 10 does not apply if the subject matter is not identical.

Doctrine of Res Judicata (Section 11 CPC)

Meaning
- "Res Judicata" is a Latin term meaning "a matter adjudicated."
- The doctrine bars the re-litigation of a matter already decided by a competent court.

Provision under Section 11 CPC

- Section 11 states that no court shall try any suit or issue that has been directly and
substantially in issue in a former suit between the same parties:
- Litigating under the same title.
- Decided by a competent court.

Essential Conditions
1. Matter in Issue:
- The matter directly and substantially in issue in the subsequent suit must be the same as in
the earlier suit.
2. Same Parties:
 - The earlier suit must involve the same parties or their representatives.
3. Same Title:
- The parties must litigate under the same title in both suits.
4. Competent Court:
- The court deciding the earlier suit must have jurisdiction to try the subsequent suit.
5. Heard and Finally Decided:
- The issue must have been conclusively determined in the earlier suit.

Maxims Underlying Res Judicata

1. Nemo Debet Bis Vexari Pro Una et Eadem Causa:
- No one should be tried or harassed twice for the same cause.
2. Interest Reipublicae Ut Sit Finis Litium:
- It is in the public interest that there should be an end to litigation.
3. Res Judicata Pro Veritate Accipitur:
- A judicial decision must be accepted as correct.

Object
- Ensures finality in litigation.
- Protects parties from being vexed multiple times for the same cause.
- Promotes judicial efficiency by preventing redundant lawsuits.

Exceptions
Res Judicata does not apply in the following cases:
1. Fraud: If the earlier judgment was obtained by fraud, it is not binding.
2. Dismissal Without Decision: If the earlier suit was dismissed without a hearing on merits.
3. Interlocutory Orders: Interim orders are not conclusive and do not attract Res Judicata.
4. Change in Law: If there is a change in law granting new rights.

Constructive Res Judicata

- Meaning: Bars parties from raising issues in subsequent litigation that could and should
have been raised in the earlier suit.
- Example: A party cannot file a new suit for negligence after failing to include it in an earlier
breach of contract claim arising from the same facts.

Key Cases
1. State of Uttar Pradesh v. Nawab Hussain (1977):
- The doctrine of Constructive Res Judicata was applied to bar a dismissed government
employee from raising new grounds in a subsequent suit.
2. Daryao v. State of Uttar Pradesh (1961):
- The Supreme Court held that Res Judicata applies to writ petitions under Article 32 if the
matter was previously decided under Article 226.
3. P.C. Ray & Co. v. Union of India (1971):
- Res Judicata is a procedural defense and can be waived if not pleaded by the opposing
party.

Differences Between Res Sub Judice and Res Judicata

Aspect Res Sub Judice Res Judicata
Meaning Matter is "under judgment." Matter is "already adjudicated."
Applicability Bars trial of a subsequent suit. Bars re-litigation of a decided matter.
Focus Prevents parallel proceedings. Ensures finality in litigation.
Stage Applies during pending litigation. Applies after a case is decided.
Legal Basis Section 10 CPC. Section 11 CPC.

Procedural Law vs. Substantive Law

Aspect Procedural Law Substantive Law
Definition Governs the process of adjudication Defines the rights, duties, and liabilities of
and enforcement of laws. parties.
Focus Focuses on the steps and methods for Focuses on the legal relationship and
achieving justice. rights of parties.
Outcome Does not directly affect the case Directly impacts the legal outcome of a
outcome. case.
Nature Provides the machinery for enforcing Provides the legal content for rights and
rights and obligations. obligations.
Jurisdictional Rules may vary between Substantive laws are generally consistent
Variation jurisdictions based on procedural across jurisdictions.
laws.
 Example Outlines the trial process, rights of Defines the crime, penalties, and legal
(Criminal Case) the accused, and evidence rules. defenses available.
Example (Civil Governs filing, summons issuance, Defines breach of contract, validity of
Case) trial, and judgment enforcement. contracts, and remedies.

Judgment, Decree, and Order

Aspect Judgment Decree Order
Definition A formal A formal A specific directive or decision during proceedings.
decision expression of
resolving the adjudication,
main issue in including
the dispute. directives for
enforcement.
Scope Resolves the Can be final Specific to procedural or substantive matters in a case.
main issue of (concluding
the case. a case) or
preliminary.
Purpose Settles legal Implements Guides or compels actions during proceedings.
rights and the court’s
liabilities of decision,
the parties. including
enforcement.
Examples Decision on Divorce Order compelling a party to provide evidence or
liability in a decree attend court.
breach of determining
contract custody and
case. property
division.
Finality May be final A final Usually interlocutory, but may be final in rare cases.
or decree
interlocutory. concludes
the case;
preliminary
decrees
decide some
issues.
Nature of Resolves Formalizes Addresses procedural or specific substantive issues.
Decision substantive the judgment
issues. into an
enforceable
directive.

Res Judicata vs. Constructive Res Judicata

Aspect Res Judicata Constructive Res Judicata
Meaning Bars re-litigation of issues already Bars raising of issues that could have been
 decided by a competent court. raised in earlier proceedings.
Scope Applies to claims explicitly raised Applies to claims that were not raised but
and decided. could have been raised.
Key Elements Final judgment, same parties, Same parties, same factual basis,
same cause of action. opportunity to raise the issue earlier.
Cause of Must be the same as in the earlier Arises from the same set of facts but may
Action suit. involve different legal theories.
Effect Precludes re-litigation of the same Prevents raising new issues arising from the
claim or related claims. same facts.
Examples Party A cannot sue Party B for Party A cannot later claim negligence after
fraud after losing a contract case. losing a contract case.

Categories of Decrees
Type of Decree Explanation
Preliminary Decree Decides rights/liabilities of parties but does not completely dispose of the
suit.
Final Decree Conclusively disposes of all issues in the case.
Partly Preliminary Decides some issues conclusively while leaving others for future
& Partly Final adjudication.

Grounds for Rejecting Foreign Judgments (Section 13 CPC)

Ground Explanation
Lack of Jurisdiction Foreign court lacked authority to adjudicate the matter.
Not Decided on Judgment was not based on substantive evaluation of the case.
Merits
Violation of Natural Parties were not given a fair hearing or an opportunity to be heard.
Justice
Fraudulent Judgment obtained through fraud, misrepresentation, or suppression of facts.
Judgment
Conflict with Indian Judgment contradicts Indian laws or public policy.
Law
Breach of Indian Judgment sustains a claim based on actions that breach Indian laws.
Laws
Unit 2

Suits and Summons: Institution of Suit

Introduction

The institution of a suit is a crucial step in civil litigation under the Code of Civil Procedure,
1908 (CPC). A suit is a legal action initiated by a plaintiff against a defendant to enforce a
legal right. It involves a series of procedural steps, beginning with the filing of a plaint and
issuance of summons to the defendant, followed by trial, judgment, and execution of the
decree.

1. Essentials of a Suit

For a suit to be validly instituted, the following essential elements must be present:

(i) Opposing Parties

A suit must have at least two parties:

1. Plaintiff – The person who files the suit claiming a legal right.
2. Defendant – The person against whom the suit is filed.
Example:

 If A enters into a contract with B for selling a house and B refuses to pay, A can file a
suit against B for breach of contract.

(ii) Cause of Action

The plaintiff must have a valid legal cause of action to file the suit. A cause of action arises
when a person’s legal rights are violated, and the law provides a remedy.

Example:

 If X borrows ₹50,000 from Y and refuses to repay despite repeated demands, Y has a
cause of action to sue X for recovery of the amount.

(iii) Jurisdiction of the Court

The court must have jurisdiction to entertain the suit. Jurisdiction is classified into:

1. Territorial Jurisdiction – Based on where the cause of action arose.

2. Pecuniary Jurisdiction – Based on the value of the subject matter.
3. Subject Matter Jurisdiction – Based on the nature of the case (e.g., property
disputes go to civil courts).

Case Law: Kiran Singh v. Chaman Paswan (1954 SC)

The Supreme Court ruled that a decree passed by a court without jurisdiction is a nullity and
can be challenged at any stage.

(iv) Subject Matter of the Suit

The dispute must involve a civil right or a matter of civil nature. As per Section 9 CPC,
courts have jurisdiction in all suits of a civil nature except those expressly barred.

Example:

 A suit for property ownership, contract enforcement, or recovery of money is a

suit of a civil nature.
 A suit challenging caste-based exclusion from rituals is not of a civil nature.

(v) Relief Sought

The plaintiff must specify the relief they are seeking from the court. Relief can be:

 Declaratory Relief – To declare a right (e.g., ownership of property).

 Injunction – To restrain the defendant from an act.
 Compensation/Damages – Monetary compensation for harm suffered.
2. Institution of Suit (Order 7, CPC)

A suit is instituted by filing a plaint as per Order 7, Rule 1 CPC.

(i) Plaint: Definition and Contents

A plaint is a legal document that contains the plaintiff’s claim and the relief sought. It should
contain:

1. Name of the court where the suit is filed.

2. Name and address of the plaintiff and defendant.
3. Statement of facts giving rise to the cause of action.
4. The relief sought by the plaintiff.
5. Verification by the plaintiff.

Example of a Plaint:

A suit for non-payment of rent must include details of the rental agreement, the amount
due, and a prayer for eviction and recovery of rent.

3. Summons (Sections 27-32, Order 5 CPC)

Once a suit is filed, the court issues a summons to inform the defendant about the case and
direct them to appear before the court.

(i) Meaning of Summons

A summons is a legal notice sent to the defendant, requiring their presence in court. It is
issued under Section 27 CPC and must:

 Be signed by the judge or an authorized officer.

 Be sealed with the court seal.
 Contain a copy of the plaint.

(ii) Purpose of Summons

 Notifies the defendant of the suit.

 Gives the defendant an opportunity to defend.
 Prevents ex parte (one-sided) decisions.

(iii) Modes of Service of Summons (Order 5, Rules 9-30 CPC)

1. Personal Service (Rule 9) – Hand-delivered to the defendant.

2. Service by Court Officer (Rule 9A) – Court officer serves the summons.
3. Service by Post (Rule 10) – Sent via registered post.
4. Substituted Service (Rule 20) – If personal service is impossible, the court may
allow:
o Affixing the summons on the defendant’s property.
 o Publication in a newspaper.

Case Law: Neerja Realtors v. Janglu (2018 SC)

The court ruled that summons must be served properly before passing any decree.
Improper service can lead to setting aside of ex parte decrees.

(iv) Summons for Specific Purposes

Summons can be issued:

 For Appearance – Directing the defendant to appear.

 For Document Production – Asking the defendant to produce records.

4. Exemption from Appearance (Sections 132-133 CPC)

Certain individuals are exempt from personal appearance, such as:

 Women not appearing in public (Section 132).

 Government officials on duty (Section 133).
 Diplomats covered under immunity laws.

5. Consequences of Non-Compliance with Summons

 If the defendant does not appear, the court may proceed ex parte as per Order 9,
Rule 6 CPC.
 If the plaintiff fails to appear, the suit may be dismissed under Order 9, Rule 8
CPC.

Example:

 If A files a suit against B for unpaid rent and B ignores the summons, the court may
pass an ex parte decree in A’s favor.

Case Law: Sangram Singh v. Election Tribunal (1955 SC)

The Supreme Court ruled that procedural laws are meant to advance justice, not to create
obstacles. Courts must ensure fairness before deciding ex parte.

6. Important Case Laws on Summons and Institution of Suits

1. Bihari Chowdhary v. State of Bihar (1984 SC) – Notice under Section 80 CPC
prevents unnecessary litigation against the government.
 2. Raj Duggal v. Ramesh Kumar (1991 SC) – Defendants must show substantial
defense under Order 37 CPC.
3. Mohatta Bros. v. Bharat Suryodaya Mills (1976 SC) – Partners must be properly
served with summons before holding them liable.

7. Conclusion

The institution of a suit and the issuance of summons are critical in civil proceedings. The
CPC provides a structured mechanism to ensure fairness and procedural integrity. Courts
emphasize proper service of summons, and non-compliance can lead to ex parte decrees.
Proper adherence to the CPC prevents delays, unfair trials, and legal complications.

This ensures that the principles of natural justice are upheld in every civil suit.

Interest and Costs in Civil Procedure Code (CPC)

1. Introduction

The Code of Civil Procedure, 1908 (CPC) lays down provisions regarding interest and
costs in a suit. These provisions ensure that a successful litigant is compensated for expenses
and losses incurred due to prolonged litigation.

The key provisions related to interest and costs are:

 Interest – Section 34 CPC

 Costs – Sections 35, 35A, and 35B CPC

2. Interest in Money Decrees (Section 34 CPC)

Interest is awarded in monetary decrees to compensate the decree-holder for the loss
suffered due to delayed payment. It is divided into three types:

(i) Interest Before the Institution of the Suit

This interest is governed by:

1. Contractual Agreement – If the parties agreed on a specific rate of interest, the court
enforces it.
2. Mercantile Usages – Trade customs may determine the applicable rate.
 3. Negotiable Instruments Act, 1881 – If the dispute involves a promissory note, bill of
exchange, or cheque, interest is determined under this Act.

Example:

 A lends ₹1,00,000 to B at 10% per annum interest. If B defaults and A files a suit
after 2 years, A can claim pre-suit interest as per the agreement.

(ii) Interest from the Date of Suit until Decree (Pendente Lite Interest)

This is awarded by the court for the period when the case is pending before it.

 If there is a contractual rate, the court may allow it.

 If no agreement exists, the court awards a reasonable rate.

Case Law: Bhagwant Singh v. Commissioner of Police (1985 SC)

The Supreme Court ruled that pendente lite interest is discretionary and should be based on
fairness and equity.

(iii) Interest from the Date of Decree till Payment (Future Interest)

 This compensates the decree-holder for delays in executing the decree.

 The rate must not exceed 6% per annum unless a contract specifies otherwise.

Example:

 A wins a decree against B for ₹2,00,000. If B does not pay, the court may award
interest at 6% per annum until B settles the amount.

3. Costs in Civil Suits (Sections 35, 35A, and 35B CPC)

(i) General Rule: “Costs Follow the Event” (Section 35 CPC)

 The losing party bears the costs of the suit.

 The court has discretion in awarding costs.

Case Law: Jugra Singh v. Jawant Singh (1971 SC)

The Supreme Court held that costs should normally follow the event, meaning the
successful party is entitled to costs.

(ii) Exceptions to the General Rule

The court may deny costs to the winning party in exceptional cases:

1. Misconduct or Negligence – If the successful party acted unfairly.

2. Unnecessary Litigation – If extra issues were raised, increasing expenses.
 3. Partial Success – If a plaintiff wins only part of the claim, they may still pay costs.
4. Vexatious Claims – If interrogatories or proceedings were abused.

Example:

 If X files a suit against Y for ₹10,00,000 but only proves a claim of ₹2,00,000, the
court may deny costs to X.

4. Compensatory Costs for False or Vexatious Claims (Section 35A CPC)

This section penalizes parties who make false or frivolous claims to harass the opponent.

Key Features:

 Compensatory costs up to ₹3,000 or pecuniary jurisdiction of the court

(whichever is lower).
 Courts must record reasons before awarding compensatory costs.

Example:

 A files a false claim against B just to delay another lawsuit. If A loses, the court may
impose compensatory costs under Section 35A CPC.

5. Costs for Delays in Proceedings (Section 35B CPC)

 If either party causes unnecessary delay, the court may impose costs before granting
adjournments.
 If the costs are not paid, the suit may be dismissed or defense struck out.

Example:

 If the plaintiff delays the case by repeatedly seeking adjournments, the court may
order costs under Section 35B CPC.

6. Important Case Laws on Interest and Costs

1. Union of India v. Ramacharan (1964 SC)

 Held that interest must be claimed in the plaint, or it cannot be later added.

2. Sangram Singh v. Election Tribunal (1955 SC)

 Emphasized that procedural rules should not create unfair litigation burdens.
3. Bihari Chowdhary v. State of Bihar (1984 SC)

 Held that government suits require proper cost considerations.

7. Conclusion

The provisions on interest and costs ensure fairness in civil litigation. Courts exercise
discretion while awarding interest and costs, considering factors like contractual terms,
equitable principles, and procedural compliance. Misuse of litigation for delays or
harassment is discouraged through penalties and compensatory costs.

These rules balance the rights of both plaintiffs and defendants, ensuring that justice is
delivered efficiently.

Pleading: Fundamental Rules, Plaint, Written Statement, and

Return & Rejection of Plaint
1. Introduction
Pleading is a fundamental aspect of civil litigation, as it sets out the facts on which a party
bases its claim or defense. The Code of Civil Procedure, 1908 (CPC) under Order VI
provides detailed guidelines on pleadings, including rules governing plaint, written
statement, and rejection/return of plaint. Proper pleadings help in narrowing down
disputes and facilitating a fair trial.

2. Fundamental Rules of Pleadings (Order 6 CPC)

Pleadings include both plaint and written statement (Order VI, Rule 1). They must follow
certain fundamental principles:

(i) Pleading Should Contain Facts, Not Law

 The parties must state only material facts relevant to their case.
 Legal provisions or conclusions should not be stated in the pleading.
Example:

❌ "The defendant has violated Section 73 of the Contract Act and is liable for damages."
✅ "The defendant agreed to deliver goods on June 10 but failed to do so, causing financial
loss to the plaintiff."

(ii) Only Material Facts Should Be Stated

 A pleading should contain only necessary facts that help determine the case.
 Unnecessary background information should be avoided.

Case Law: Virender Nath v. Satpal Singh (1996 SC)

 The Supreme Court ruled that immaterial facts should not burden a pleading and
only relevant facts should be mentioned.

(iii) No Statement of Evidence

 A party should not include evidence in the pleadings.

 The purpose of pleadings is to set out what needs to be proved, not how it will be
proved.

Example:

❌ "The plaintiff will produce five witnesses to prove that the defendant borrowed ₹50,000."
✅ "The defendant borrowed ₹50,000 from the plaintiff on January 1, 2023."

(iv) Facts Should Be Stated Concisely

 Unnecessary repetition should be avoided.

 The facts should be stated in short, clear, and simple sentences.

3. Plaint and Written Statement

(i) Plaint (Order 7 CPC)

A plaint is a statement of claim, a document filed by the plaintiff to initiate a suit. It must
contain the following particulars (Order 7, Rule 1 CPC):

1. Name of the court where the suit is filed.

2. Names and addresses of parties (plaintiff and defendant).
3. Cause of action (facts showing the right to sue).
4. Jurisdiction of the court (territorial, pecuniary, and subject-matter).
5. Relief claimed (monetary compensation, injunction, etc.).
6. Statement of valuation for court fees.
Case Law: Ganesh Trading Co. v. Moji Ram (1978 SC)

 The Supreme Court held that a cause of action is a bundle of essential facts
necessary for a plaintiff to succeed.

Example:

 If A sells goods to B on credit but B refuses to pay, A can file a plaint for recovery of
money.

(ii) Written Statement (Order 8 CPC)

A written statement is the defendant’s response to the plaint. It must be filed within 30 days
of service of summons (extendable to 90 days). It should:

1. Admit or deny allegations in the plaint.

2. State legal defenses against the plaintiff’s claims.
3. Include a counterclaim (if applicable).

Case Law: Kailash v. Nanhku (2005 SC)

 The Supreme Court ruled that the 90-day limit for filing a written statement is
directory, not mandatory.

4. Return and Rejection of Plaint

(i) Return of Plaint (Order 7, Rule 10 CPC)

A court may return a plaint if it lacks jurisdiction. The plaint is then transferred to the
appropriate court.

Key Points:

 The court must endorse the date of return and reason for returning it.
 Order is appealable under Order 43, Rule 1(a) CPC.

Case Law: Amar Chand v. Union of India (1973 SC)

 The Supreme Court held that when a plaint is returned, it does not continue from the
original filing date unless protected under Section 14 of the Limitation Act, 1963.

(ii) Rejection of Plaint (Order 7, Rule 11 CPC)

A court can reject a plaint if:

1. It does not disclose a cause of action.

 2. The relief claimed is undervalued.
3. The court fee is insufficient and not corrected in time.
4. The suit is barred by law (e.g., limitation period expired).
5. The plaint is not filed in duplicate.
6. The plaintiff does not comply with procedural rules.

Case Law: Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express (2006 SC)

 The Supreme Court held that a plaint cannot be rejected based on the defendant’s
allegations. The court must examine only the plaint’s contents.

Example:

 If A sues B for breach of contract but does not mention how and when the contract
was breached, the plaint may be rejected under Order 7, Rule 11(a) CPC.

(iii) Effect of Rejection

 A fresh plaint can be filed on the same cause of action.

 The order rejecting a plaint is a "decree" (Section 2(2) CPC) and can be
appealed.

5. Conclusion
Pleadings form the foundation of civil suits, guiding the court in determining the scope of
litigation. The CPC sets clear rules to ensure concise, relevant, and factual pleadings. The
provisions on return and rejection of plaints prevent misuse of judicial resources and
ensure that only valid claims proceed to trial. Proper pleadings contribute to efficient and
fair adjudication of disputes
Defenses: Set-off, Counter-Claim, and Multifariousness under
CPC
1. Introduction
In civil litigation, a defendant has the right to contest the plaintiff’s claims using various legal
defenses. Two important defenses available under the Code of Civil Procedure, 1908 (CPC)
are set-off and counter-claim, which allow the defendant to present their own monetary
claims against the plaintiff. Additionally, the doctrine of multifariousness deals with
improper joinder of causes of action and parties in a suit.

2. Set-Off (Order 8, Rule 6 CPC)

Set-off is a statutory defense that allows the defendant to claim an amount from the plaintiff
in the same suit, effectively reducing or nullifying the plaintiff’s claim.

(i) Types of Set-Off

There are two types of set-off recognized in CPC:

Legal Set-Off Equitable Set-Off

Not specifically provided in CPC but

Governed by Order 8, Rule 6 CPC.
recognized under equity.
 Legal Set-Off Equitable Set-Off

The sum must be ascertained and legally Can be for unascertained sums if it arises from
recoverable. the same transaction.

Does not require judicial discretion; a legal

Court has discretion in allowing the claim.
right of the defendant.

Claim need not arise from the same

Claim must arise out of the same transaction.
transaction.

Subject to limitation laws. May be allowed even if time-barred.

(ii) Conditions for Legal Set-Off

A defendant can claim legal set-off only if:

1. The suit is for the recovery of money.

2. The sum claimed is ascertained and legally recoverable.
3. The claim exists between the same parties in the same character.
4. The claim is within the pecuniary jurisdiction of the court.

Example:

 A sues B for ₹1,00,000 for unpaid rent. B claims that A owes him ₹50,000 for repairs
to the rented premises. B can claim set-off for ₹50,000, reducing the suit value to
₹50,000.

Case Law: Jyanti Lal v. Abdul Aziz (AIR 1956 Patna HC)

 The court held that a set-off is treated as a plaintiff’s claim in a cross-suit, and if
proven, a decree can be passed in the defendant’s favor.

(iii) Equitable Set-Off

Equitable set-off may be granted even if the amount is unascertained, provided:

1. It arises from the same transaction.

2. The court deems it fair and reasonable.

Example:

 A contracts with B to supply machinery. The machinery is defective, and B incurs a

loss. If A sues for the price, B can claim an equitable set-off for his loss.
3. Counter-Claim (Order 8, Rules 6A-6G CPC)
A counter-claim is a cross-action filed by the defendant against the plaintiff in the same suit.
It allows the defendant to assert their own claim instead of filing a separate suit.

(i) Key Features of Counter-Claim

 It is treated as a separate suit within the same proceedings.

 It can be filed before or after filing the written statement, but before the
defendant’s defense is raised.
 The plaintiff must file a reply (written statement to the counter-claim).
 Even if the plaintiff’s suit is withdrawn or dismissed, the counter-claim remains
valid.

Case Law: Laxmidas v. Nanabhai (AIR 1964 SC)

 The Supreme Court held that a counter-claim has the same effect as a cross-suit and
should be treated like a plaint.

(ii) Conditions for Counter-Claim

1. The cause of action must arise before the defendant has submitted their defense.
2. The court must have jurisdiction over the counter-claim.
3. The claim must be against the plaintiff, not a third party.
4. The amount claimed need not be equal to the plaintiff’s claim.

Example:

 A sues B for ₹1,50,000 for breach of contract. B counter-claims ₹2,00,000 from A for
defective goods. The court can decide both claims in the same suit.

Case Law: Vijay Prakash Jarath v. Tej Prakash Jarath (2016 SC)

 The court ruled that a counter-claim must arise before filing the written statement
but can be based on facts occurring before or after the filing of the suit.

(iii) Difference Between Set-Off and Counter-Claim

Set-Off Counter-Claim

A defensive claim to reduce the plaintiff’s A separate claim that may exceed the
claim. plaintiff’s claim.

Can be for any claim, including declaratory

Must be for an ascertained sum of money.
relief.

Can be equal to or less than the plaintiff’s

Can be more than the plaintiff’s claim.
claim.
 Set-Off Counter-Claim

Arises from the same transaction (for

Can arise from different transactions.
equitable set-off).

If the plaintiff’s suit is dismissed, the set-off If the plaintiff’s suit is dismissed, the counter-
is also dismissed. claim can continue.

4. Multifariousness (Misjoinder of Causes of Action and

Parties)
(i) Meaning of Multifariousness

Multifariousness occurs when:

1. Multiple causes of action are improperly combined in a single suit.

2. Multiple defendants are joined improperly without a common link.

It leads to confusion, delay, and injustice in litigation.

(ii) Legal Provision (Order 1, Rule 13 CPC)

 Any objection regarding misjoinder of parties or causes of action must be raised at

the earliest stage, or it is deemed waived.
 The court may order the plaintiff to file separate suits if misjoinder exists.

Example:

 A sues B for breach of contract and also claims damages against C for negligence in
a completely unrelated matter. This is multifariousness and may be rejected by the
court.

(iii) Case Law: Gurubachan Singh v. Bag Singh (1996 SC)

 The Supreme Court ruled that improper joinder of defendants and causes of action
leads to multifariousness, which violates procedural fairness.

(iv) Remedy for Multifariousness

 The court may order separation of suits.

 The plaintiff may be asked to amend the plaint.
 The misjoined parties or claims may be struck off.
5. Conclusion
The defenses of set-off and counter-claim allow the defendant to seek relief without filing a
separate suit, reducing multiplicity of proceedings. Set-off is a statutory defense for monetary
claims, whereas a counter-claim is a broader defense akin to a cross-suit.

The doctrine of multifariousness prevents improper joinder of parties or causes of action,

ensuring procedural efficiency. Courts have the power to reject multifarious suits or order
proper separation of claims.

These provisions under CPC ensure that civil litigation remains fair, efficient, and
procedurally sound