CODE OF CIVIL PROCEDURE, 1908

RES JUDICATA

“Res judicata pro veritate accipitur” is the Latin maxim for “Res judicata”. Section 11 of the Code of Civil Procedure
along with its 8 explanations embodies the doctrine of res judicata or the rule of conclusiveness of a judgement.
"Res-judicata" consists of two Latin Words, 'Res' means a thing or a matter or a question and 'Judicata' means
adjudicated, adjudged or decided. Therefore, the expression 'Res-judicata'' means "a thing or matter already
adjudged or adjudicated or decided in a subsequent suit between the same parties.” 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.

Object

The doctrine of Res Judicata is based upon the following three maxims:

a. Nemo debet bis vexari pro una et eadem causa – no man should be vexed twice over for the same cause;
b. Interest republicae ut sit finis Iitium – it is in the interest of the State that there should be an end to a
litigation;
c. Res judicata pro veritate occipitur – a judicial decision must be accepted as correct.

The principle is also founded on justice, equity and good conscience which require that a party who has once
succeeded on an issue should not be harassed by multiplicity of proceedings involving the same issue. It thereby
avoids vexatious litigation. It is conceived in the larger public interest which requires that every litigation must come
to an end. It, therefore, applies to civil suits, execution proceedings, arbitration proceedings, taxation matters,
industrial adjudication, writ petitions, administrative orders, interim orders, criminal proceedings, etc.

The bar of res judicata is mandatory and cannot be avoided by a party except by invoking Section 38 of Bhartiya
Sakshya Adhiniyam, 2023 (sec 44 IEA) on the grounds that the judgment was obtained by fraud or collusion or was
without jurisdiction.

Section 11 states that "No court shall try any suit or issue in which the matter directly and substantially in issue has
been directly and substantially in issue in a former suit between the same parties or between parties under whom
they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit
in which such issue has been subsequently raised and has been heard and finally decided by such court.”

Conditions for application

In order to constitute a matter as res judicata, the following conditions must be satisfied:

(i) There must be two suits one former suit and other subsequent suit (Explanation I is to be read with this condition).

(ii) The Court which decided the former suit must be competent to try the subsequent suit. (Explanation II & VIII are
to be read with this condition).

(iii) The matter directly and substantially in issue must be the same either actually (Explanation III) or constructively
(Explanation IV) in both the suits (Explanation VII is to be read with this condition).

(iv) The matter directly and subsequently in issue in the subsequent suit must have been heard and finally decided by
the Court in the former suit. (Explanation V is to be read with this condition).

(v) The parties to the suits or the parties under whom they or any of them claim must be the same in both the suits
(Explanation VI is to be read with this condition).

(vi) The parties in both the suits must have litigated under the same title.

1. Former suit – Explanation I to section 11 provides that the expression "former suit" shall denote a suit which has
been decided prior to the suit in question whether or not it was instituted prior thereto. Date of commencement of a
litigation is not material for the purposes of res judicata, what is material is the date when a Judge is called upon to
decide the issue or the date of decision. Thus, former suit means previously decided suit although in point of time it
might have been instituted subsequently.
2. Competent court – For applying the rule of res judicata, it is essential that the Court which decided the former suit
must have been a Court competent to try the subsequent suit or the suit in which such issue is subsequently raised.
Thus, where the Court which tried the former suit is incompetent to try the subsequent suit, then the decision in
former suit will not operate as res judicata. The fact that the decision was confirmed in appeal will not make it valid
and binding. If the answer to the question whether the second suit could have been decided by the first Court is in
affirmative, the former decision will operate as res judicata in the subsequent suit.

Explanation VIII makes it clear that the decisions of the Courts of limited jurisdiction shall, insofar as such decisions
are within the competence of the Courts of limited jurisdiction, operate as res judicata in a subsequent suit although
the Court of limited jurisdiction may not be competent to try such subsequent suit in which such question is
subsequently raised.

3. Matter in issue – The expression "no Court shall try any suit or issue in which the matter directly and substantially
in issue has been directly and substantially is issue in a former suit" section 11 suggests that if a finding is recorded by
a Court in a former suit on a question/matter not in issue between the parties, will not operate as res judicata. A
decision of a competent Court only on a matter in issue may be res judicata in another proceeding between the same
parties. Where there are findings on several issues or where the Court rests its decision or more than one
point/issue, the findings on all the issues will operate as res judicata. "Matter is issue" i.e., main
dispute/issue/question may be either of fact or of law or of fact and law, on which parties are litigating. An issue of
fact decided by a competent Court however erroneous it may be, constitutes a res judicata as it is finally decided
between the parties to the previous suit and cannot be reopened between them in another proceeding.

The rule of direct res judicata is limited to a matter actually in issue and according to Explanation III, a matter is
actually in issue when it is alleged by one party and either denied or admitted by the other party expressly or
impliedly. But apart from direct res judicata, the rule of constructive res judicata engrafted in Explanation IV to
section 11 is an artificial form of res judicata. Explanation IV is a deeming provision which lays down that "any matter
which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have
been a matter directly and substantially in issue in such suit." A conjoint reading of section 11 and Explanation IV
shows that if a plea which might and ought to have been taken in the earlier suit, shall be deemed to have been
taken and decided against the person raising that plea in the subsequent suit.

4. Finally heard and decided - For applying the rule of res judicata, it is essential that the matter/ question/dispute
directly and substantially in issue in the subsequent suit must have been "heard and finally decided" by the Court in
the former/earlier suit. Explanation V clarifies that if a relief is claimed in a suit/plaint, but is not expressly granted in
the decree, it will be deemed to have been refused and the matter in respect of which the relief is claimed will be res
judicata. In order that a matter may be said to have been 'heard and finally decided' the decision in the former suit
must have been on the merits. Hence, it could not be said to be heard and finally decided if the former suit was
dismissed:

(i) for want of jurisdiction, or

(ii) for default of plaintiff's appearance under order 9, Rule 8, or

(iii) on the ground of non-joinder of parties, or misjoinder of parties, or

(iv) for failure to furnish security for costs,

(v) for want of a cause of action, or

(vi) for want of notice, or

(vii) on the ground that it is premature, etc.

5. Same parties or parties under whom any of them claim – A well-known principle of law that judgments/decrees
bind not only parties but their privies (i.e., a person who claims under a party to the decision) also. Accordingly, a
decision in a former/earlier suit may operate as res judicata in the subsequent suit only if the former/ prior suit must
have been a suit between the same parties or between the parties under whom they or any of them claim.
Explanation VI is an exception to the role of res judicata in that, it would operate as res judicata even as persons who
are not parties to the earlier proceedings in certain contingencies. It refers to cases in which a decision in a suit may
operate as res judicata against persons not expressly named as parties to the suit i.e., in a representative suit.

6. Litigating under the same title - To apply the bar of res judicata, the parties in the subsequent suit must have
already litigated under the same title (i.e., the same capacity) in the former suit. "Litigating under the same title"
means that the demand should be of the same quality in the second suit as was in the first suit and it has nothing to
do with the particular cause of action on which he sues or is sued. The rule of res judicata will not apply if the
subsequent suit is instituted by the same person but in a different capacity.

Res judicata between co-defendants/co-plaintiffs

Apart from application of the rule of res judicata between two opposing parties (plaintiff and defendant), res judicata
may apply between defendants themselves or between plaintiffs themselves. A matter may be res judicata between
a plaintiff and defendant so also it may be res judicata between co-plaintiffs or as between co-defendants. n other
words, a matter may be res judicata between a plaintiff and defendant so also it may be res judicata as between co-
plaintiffs or as between co-defendants. As regards res judicata between co-defendants/co-plaintiffs following three
conditions must exist:

(1) There is a conflict of interests between such co-defendants/co-plaintiffs.

(2) It must be necessary to adjudicate upon such conflict in order to give the relief claimed by the plaintiff and

(3) The question between co-defendants is finally decided.

Where all such conditions exist the decision in the former suit will operate as res judicata between co-defendants
even if the previous suit of the plaintiff was dismissed against all the defendants.

Iftikhar Ahmed v. Syed Meharban Ali (1974)

C.A. Balakrishnan v. Commissioner Corporation of Madras (2003)

State of U.P. v. Nawab Hussain (1977) (Explanation IV Constructive res judicata)

SECOND APPEAL

The law relating to appeals from appellate decree i.e., second appeal contained in sections 100 to 103, 107, 108 and
Order XLII of CPC. Section 100 defines "Second Appeal", sections 100A, 101 and 102 deals with limitations for filing
second appeal. Section 103 deals with matter relating to determination of the issue of fact and sections 107 108 and
Order XLII deals with powers of Appellate Court and procedure in appeals from appellate decrees and orders
respectively.

Section 100 of the Code provides filing of second appeal in the High Court. It reads as under:

(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an
appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if
the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law
involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that
question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal,
be allowed to argue that the case does not involve such question:

Provided that nothing in this subsection shall be deemed to take away or abridge the power of the Court to hear, for
reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that
the case involves such question.

As a result of 54th Report of the Law Commission, the amendment was made in section 100 which has drastically
changed and curtailed the scope of second appeal. The phraseology used in the amended action indicates legislative
intent for the Change. There is no doubt that it has been done deliberately and intentionally with the avowed object
of ensuring that the second appeal may not become a "third trial or facts" or "one more dice in the gamble". After
the amendment, the following consequences can be observed:

1. There must be satisfaction of High Court that the case involves a substantial question of law.

2. Such question must be stated in memorandum of appeal.

3. Such question should be formulated by the High Court at the time of admitting the appeal.

4. The appeal 'shall be heard only on that question.

5. It can be argued by the respondent that the case does not involve such question at the hearing of the appeal.

6. The High Court is empowered to hear the second appeal on any other substantial question of law, on reasons to be
recorded, if it is satisfied that the appeal involve question not formulated earlier.

Concept of substantial question of law

The phrase substantial question of law is not defined in the Code. The word substantial, as qualifying question of law,
means of having substance, essential, real, of sound worth, important or considerable. However, it is clear that the
Legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general
importance as has been done in many other provisions such as section 109 of the Code or Article 133(1)(a) of the
Constitution.

(1) In Chunilal V. Mehta & Sons Ltd. v. The Century Spinning and Manufacturing Co. Ltd., 1962, the Supreme Court
held that the construction of a document of title which is the foundation of the rights of the parties, necessarily
raises a 'question of law'. It laid down the following principles to determine whether a question of law IS a
'substantial question of law':'
(2) If the question is of general public importance or it directly and substantially affects the rights of the parties then
it has to be. seen whether it is either an open question I.e., not settled by Higher Courts or is not free from difficulty
or calls for discussion of alternative views. If the answers are affirmative the question is a 'substantial question of
law'.

(2) If the question is settled by the Highest court (Privy Council, Federal Court, or Supreme Court) or the general
principles to be applied in determining the question are well-settled and there is a mere question of applying those
principles (thus a misapplication of principles of law does not raise any substantial question of law) or that the plea
raised is palpably absurd, the question would not be a substantial question of law.

Recently, Hon'ble Supreme Court in Singaram v. Rananathan (2021) observed that the requirement to frame
substantial question of law in second appeal is not a mere formality, but is meant to be adhered to.

Test

After perusal of various decisions of Apex Court, it can be said that the proper test for determining whether a
question of law that arose in a case is substantial or not depends upon a number of factors like:

(a) Whether question arose is of general public importance?

(b) Whether it directly and substantially affects the rights of the parties?

(c) Whether the question has been finally settled by the Apex Court.

(d) Even if the question has been settled by the Apex Court, is it free from any difficulty or is there a need for
discussion of alternative views?

Chunilal V. Mehta v. Century Spinning and Manufacturing Co. Ltd. (1962)

Koppi Setty v. Ratnam v. Pamarti Venka (2009)

REFERENCE, REVIEW, REVISION
AMENDMENT OF PLEADINGS (O6 R17)

The general rule is that the material facts and necessary particulars must be stated in the pleadings and the decision
cannot be based on the grounds outside the pleadings but. But many a times the party may find it necessary to
amend his pleadings before or during the trial of the case. However, the application of amendment needs to be
allowed by the Court. Order VI, Rule 17 of the Code of Civil Procedure deals with Amendment of Pleadings of either
party in suit.

Order VI, Rule 17 reads as, "The Court may at any stage of the proceedings allow either party to alter or amend his
pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be
necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes
to the conclusion that in spite of due diligence, the party could not have raised the matter before the
commencement of trial." [Inserted by 2002 amendment act]

Object

The main object of the rule is that the Courts should try the merits of the case that comes before them and should
consequently allow all amendments that may be necessary for "determining the real question in controversy
between the parties" without causing injustice to the other side and the relief claimed is within the period of
limitation. The courts have the power to grant amendments of pleadings in the larger interest of justice. The
dominant purpose of allowing the amendment is to prevent multiplicity of suits and minimise litigation.

Discretion of court

Rule 17 of Order 6 confers wide discretion on a court to allow either party to alter or amend his pleading at any stage
of the proceedings on such terms as it deems fit. Such discretion, however, must be exercised judicially and in
consonance with well-established principles of law.

Rule 17 of Order VI of the Code allows amendments at any stage of proceedings if it satisfies the following
conditions:

 If the amendment is necessary for the purpose of determining the real question in controversy between the
parties;
 If the amendment does not cause injustice to the other side; and
 If the amendment sub serves the ultimate cause of justice and avoids further litigation.

According to Mulla, the leave to amend will be refused in the following cases:

 Where the amendment is not necessary for the purpose of determining the real questions in the controversy
between the parties, as where it is merely technical or useless and of no substance
 Where the plaintiff's suit would be wholly displaced by the proposed amendment.
 Where the effect of the amendment will be to take away from the defendant a legal right which has accured
to him by lapse of time.
 Where the amendment will introduce a totally different new and inconsistent case and the application is
made at a belated stage.
 Where the application is made not in good faith.

In Salem Advocate Bar Association II v. Union of India,2005, the Supreme Court upheld the constitutional validity of
the proviso attached to Rule 17 and observed, "It is to be noted that the provisions of Order VI, Rule 17 of the CPC
have been substantially amended by the CPC (Amendment) Act, 2002. Under the proviso no application for
amendment shall be allowed after the trial has commenced, unless in spite of due diligence the matter could not be
raised before the commencement of trial. It is submitted that after the trial of case has commenced, no application
of pleading shall be allowed unless the above requirement is satisfied.”
In case of failure to amend, Rule 18 of Order VI of CPC provides that if a party who has obtained an order for leave to
amend does not amend accordingly within the time limited for the purpose by the order, or if no time is thereby
limited then with fourteen days from the date of the order, he shall not be permitted to amend after the expiration.

Jai Jai Ram Manohar Lal v. National Building Material Supply Co.,

M/s Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484 63

Dalip Kaur v. Major Singh, AIR 1996 P & H 107 68

B.K. Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712

REJECTION OF PLAINT

The Rule 11 of Order VII enacts that a plaint shall be rejected in six cases mentioned in clause (a) to (f). Rule 11 of
Order VII does not envisage the dismissal of the suit, but only rejection of the plaint. The Court can reject a plaint Suo
moto or at any later stage even before the filing of the written statement. The circumstances mentioned in clauses (a)
to (f) are not exhaustive. A plaint may be rejected on other grounds as well under section 151, CPC. The plaint shall
be rejected in the following cases as specified In Order VII, Rule 11 of the CPC:

(a) Where it does not disclose a cause of action;

(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation
within a time to be fixed by the Court, fails to do so;

(c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the
plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court
fails to do so;

(d) Where the suit appears from the statement in the plaint to be barred by any law;

(e) Where it is not filed in duplicate;

(f) Where the plaintiff fails to comply with the provisions of Rule 9.

Provided that the time fixed by Court for the correction of the valuation or supplying of the requisite stamp-papers
shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any
cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case
may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the
plaintiff. This proviso is to be read with clause (b), (c) and sections 148, 149, CPC.

(I) Where the plaint does not disclose a cause of action, Clause (a): If the plaint does not disclose a cause of action,
the Court is bound to reject the plaint. But in order to reject the plaint on this ground, the court must look at the
plaint and at nothing else. But in exceptional circumstances, the court may also examine the plaintiff and plaintiff
witness to find COA and issues (not under oath). For the limited purpose of determining the question whether the
suit is to be wiped out under Order VII, rule 11(a) or not, the averments in the plaint are only to be looked into.
"Cause of action" in the plaint has to be called out on a conjoint reading of all paragraphs of the plaint.

(II) Where the relief claimed is undervalued, Clause (b): Under valuation of the subject matter of the suit or relief
means, payment of less Court fee. Where the relief is undervalued, the Court will give an opportunity to the plaintiff
to correct the valuation within a fixed time, which may also be extended by the court. If the valuation is not
corrected within the fixed time or extended by the court, the plaint will be rejected. Such rejection amounts to
dismissal of the suit, though the plaintiff may present a fresh plaint under Order VII, rule 13.

(III) Where the plaint is insufficiently stamped, Clause (c): Where the relief claimed is properly valued but the plaint is
written on paper insufficiently stamped, that is where there is deficiency of Court fee, the Court is bound to give the
plaintiff time to make good the deficiency. When the plaintiff fails to make good the deficiency within the time fixed
or extended by the court, the plaint will be rejected. If the plaintiff is not able to pay the Court fee, he may apply to
continue the suit as an indigent person under Order XXXIII of the Code.

(IV) Where the suit is barred by any law, Clause (d): Where from the statements made in the plaint it appears that the
suit is barred by any law the plaint will be rejected. For instance, where in a suit against the government, the plaint
does not state that a "notice" as required by Section 80 of the Code has been given, the plaint will be rejected under
this clause. But where waiver of such notice is pleaded, the court cannot reject the plaint without giving the plaintiff
an opportunity to establish that fact.

(V) Where the plaint is not in duplicate, Clause (e): The plaint has to be filed in duplication, according to the
provisions of Order IV, Rule 1. And if this mandate of the law is not complied with, the plaint is liable to be rejected.
According to Civil Procedure Code (Amendment) Act, 1976 now it is compulsory to present the plaint in duplicate in
order to institute a suit.
(VI) Non-compliance of the provisions of Rule 9, Clause (f): Where the plaintiff fails to comply with the provisions of
Order VIII, rule 9, the plaint will be rejected. Under rule 9 the Court will direct the plaintiff to present as many copies
of the plaint on plain paper as there are defendants within seven days.

The grounds for rejection of plaint specified in Rule 11 of Order 7 are not exhaustive. On other relevant grounds also
a plaint can be rejected. Where a plaint is rejected by a court, the judge will pass an order to that effect and will
record reasons for such rejection.

The proviso to Rule 11 of Order VII of the Code put a check upon the powers of Court to give further time for
correction of the valuation or supplying of the requisite stamp papers by the plaintiff. When a suit is filed in which
either the relief claimed is under-valued or the plaint is insufficiently stamped, the Court shall fix a date within which
the plaintiff has to correct the valuation or supply the requisite stamp-paper. If the plaintiff fails to do so within the
date fixed then it is for him to satisfy the Court that he was prevented, from a cause which is of exceptional nature or
that grave injustice will be caused to him if the time is not further extended. The Court shall have to record the
reasons of its being satisfied before further extending the time.

Saleem Bhai v. State of Maharashtra (2003)

APPEARANCE OF PARTIES AND CONSEQUENCE OF NON – APPEARANCE

Order IX of the Code provides the law with regard to the appearance of the parties to the suits and the consequences
of their non-appearance.

RuIe 6(1) of Order IX of Code deals with the cases when the Plaintiff appears, but the Defendant does not, when the
suit is called on for hearing. In such cases-

(i) if it is proved that the summons was duly served, the Court may make an order that the suit should be heard ex-
parte;

(ii) if it is not proved that the summons was duly served, the Court must direct a second summons to be issued and
served on the Defendant.

(iii) if it is proved that the summons was served on the Defendant, but not in sufficient time to enable him to appear
on the day fixed, the Court must postpone the hearing of the suit to a future date and direct notice of such date be
given to the Defendant.

So, when defendant did not appear on the date of hearing of case, and plaintiff appears and proves that summons
was duly served on the defendant, then the Court may make an order that the suit be heard ex parte as provided in
Order IX, Rule 6(1)(a) of the CPC and thereafter the Court shall proceed to take the evidence of the plaintiff and pass
a decree in favour of the plaintiff if a prima facie case is made out by him. An ex parte decree may be passed either at
the first hearing or at an adjourned hearing.

This provision, however, is confined to first hearing and does not per se apply to subsequent hearings. Where there
are two or more plaintiffs and one or more of them appear and the others do not appear, the court may permit the
suit to proceed as if all the plaintiffs had appeared, or make such order as it thinks fit.

However, Order IX, Rule 7 provides as to setting aside of ex-parte order, passed during trial. Rule 7 of Order IX of
Code provides that if the defendant does not appear on the day fixed in summons but appears on or before
adjourned day and assigns good cause for his previous non-appearance, the Court may direct him to pay costs. On
payment of costs, the defendant shall be heard as if he had appeared on the day, fixed for his appearance. The
underlying principle is that until the suit is finally decided, the defendant has a right to come in and defend the suit.
This rule, therefore, should be liberally construed. (Calcutta Port Trust v. Shalimar Product Ltd., 1991)

Rule 6(2) of Order IX of Code provides that in cases where the summons is not duly served, or not served in sufficient
time due to the Plaintiff's default, the costs occasioned by the postponement are to be paid by the Plaintiff.

Rule 8 provides that where the defendant appears and the plaintiff does not appear, and the defendant does not
admit the plaintiff's claim, wholly or partly, the court shall pass an order dismissing the suit. But if the defendant
admits the plaintiff's claim as a whole or a part thereof, the court will pass a decree against the defendant upon such
admission and dismiss the suit for the rest of the claim. This rule will apply to a case where there is only one plaintiff
and he does not remain present, or there are two or more plaintiffs and all of them remain absent. It is, however, a
serious matter to dismiss the plaintiff's suit without hearing him and that course ought not to be adopted unless the
court is really satisfied that justice so requires. But the Court has no power to dismiss the suit where the plaintiff
does not appear owing to death. Rule 9 precludes the plaintiff thereafter from filing a fresh suit on the same cause of
action. He may, however, apply for an order to set aside the order of dismissal.

Remedies available in cases of Ex parte Decree

The following remedies are available in cases of ex parte decree:

(1) The defendant can apply for setting aside the ex parte decree under Order IX, Rule 13 of the Code of Civil
Procedure, provided the application is made, within 30 days from the date of the decree, or where the summons
were not duly served, when he had knowledge of the decree.

(2) The defendant may prefer an appeal under Section 96(2) of the Code of Civil Procedure which provides that an
appeal may lie from an original decree passed ex parte.
(3) The defendant may apply for review of judgment to the Court which passed the decree under Section 114 and
Rule 1 of Order XLVII of the Code of Civil Procedure.

(4) The defendant may file a regular suit where an ex parte decree is obtained by fraud for setting it aside on the
ground of fraud.

(5) Where suit has been dismissed for non-prosecution before the appearance of the defendant, there being no
specific provisions in the Code for such a contingency, the Court may restore the suit and set aside the dismissal
under inherent powers of Section 151 of the Code of Civil Procedure.

All the remedies are concurrent. A party can apply simultaneously under Rule 13 or apply for review or appeal from
ex parte decree. Where both remedies have been availed of, the original Court is competent to hear the application
under Rule 13 notwithstanding the pendency of the appeal. But when the ex parte order has been confirmed or
otherwise disposed of in appeal, or revision, except summarily, the Court which passed the ex parte decree ceases to
have jurisdiction to hear it even though the application was made before the appeal was filed.

Sangram Singh v. Election Tribunal (1955)

Rajni Kumar v. Suresh Kumar Malhotra (2003)

Bhanu Kumar Jain v. Archana Kumar (2005)

SUMMARY PROCEDURE

Order XXXVII provides for summary procedure. A summary procedure is a suit in which the defendant is not entitled,
as a matter of right, to defend the suit, as in ordinary suits. In such suits, he must apply for the court's leave to
defend the suit (within the prescribed time). Such leave will be granted only if the affidavit filed by the defendant
discloses such facts as will make it incumbent upon the plaintiff to prove consideration or such other facts as the
court may deem sufficient. If no such leave is granted, the plaintiff is entitled to a decree.

Scope of Summary Procedure

The object underlying the summary procedure is to prevent unreasonable obstruction by a defendant who has no
valid defense, and to assist expeditious disposal of the suit. The provisions of Order 37 are merely rules of procedure.
They do not alter the nature of the suit or jurisdiction of courts and are applicable to certain types of suits and to
certain specific courts only.

Procedure of institution of summary suits

Rule 2 of Order XXXVII provides for procedure of summary suits. Under this rule a plaintiff wishing to enforce a bill of
exchange, a hundi, or a promissory note, may at his option bring a summary suit within the provisions of this order or
a suit under an ordinary procedure. The summons of the suit has been issued to the defendant, the defendant must
appear and the plaintiff will serve a summons for judgment on the defendant. The defendant is not entitled to
defend a summary suit unless he enters an appearance and in default of his entering an appearance the allegations
in the plaint shall be deemed to be admitted. In default of this, the plaintiff will be entitled to a decree which will be
executed forthwith.

Where triable issue is present, leave should be granted if there is a triable issue in the sense that:

(a) there is fair dispute to be tried as to the meaning of document on which the claim is based, or

(b) uncertainty as to the amount actually due, or

(c) where the alleged facts are of such a nature as to entitle the defendant to interrogate the plaintiff, or

(d) to cross-examine his witnesses, then the leave should be granted.

Summary judgments under Order XXXVII should not be denied where serious conflict as to matter of fact or where
any difficulty on issues as to law arises. The Court should not reject the defence of the defendant merely because of
its inherent implausibility or its inconsistency.

Rule 3 prescribes the mode of service of summons and leave to defend. The defendant must apply for leave to
defend within ten days from the date of service of summons upon him and such leave will be granted only if the
affidavit filed by the defendant discloses such facts as may be deemed sufficient to entitle him to defend. Such leave
may be granted to the defendant unconditionally or upon such terms as may appear to the court or judge to be just.
Leave to defend, however, should not be refused unless the court is satisfied that the facts disclosed by the
defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put by him is
frivolous or vexatious. If a part of the amount claimed by the plaintiff is admitted by the defendant to be due from
him, leave to defend should not be granted unless such admitted amount is deposited by him in the court.

Rule 4 of Order XXXVII provides that after decree the Court may under special circumstances, set aside the decree
and, if necessary, stay the execution and may grant leave to the defendant to appear and defend the suit. However,
inherent powers under Section 151 of the Code cannot be exercised for setting aside such decree. The powers of the
Court under this rule are wide enough to include its exercise not only when there is no service of summons but also
when there was sufficient cause for non-appearance.

Principles for granting leave to defend

No hard and fast rule can be laid down as to in what cases leave to defend can be granted. Each case must be
decided on its own facts and circumstances and the discretion must be exercised judicially and in consonance with
the principles of natural justice. The criteria or the determination of whether the leave to defend is to be granted or
not is to see whether the defence raises a real, honest and bonafide dispute and raises a 'triable issue or not'.

Santosh Kumar v. Bhai Mool Singh (1958)

M/s Mechalec Engineers and Manufacturers v. Basic Equipment Corporation (1977)

ONGC Ltd. v. State Bank of India, AIR 2000 SC 2548

INJUNCTION (O9 R1-5)

An injunction is an order by the Court to a party to the effect that he shall do or refrain from doing a particular act.
The law relating to injunction is laid down in the Specific Relief Act, 1963 (Section 36 to 42).

A temporary or interim injunction or interlocutory injunction restrains a party temporarily from doing the specified
act. It is defined under section 37, SRA regulated under the provisions of Order XXXIX of the CPC it may be granted at
any stage of the suit on an interlocutory application of the plaintiff. It is in the nature of a preventive relief granted to
a litigant because he fears future possible injury. It may be date wise, event wise, result wise or till the coming of the
defendant's answer or until further orders of the Court but always co-terminus with the final decision in the suit.

The primary object of granting temporary injunction is to maintain and preserve status quo at the time of institution
of the proceedings and to prevent any change in it until the final determination of the suit. Both parties, i.e., the
plaintiff as well as the defendant can approach the Court for the purpose. An injunction may be issued only against a
party to the suit or proceeding and not against a stranger or a third party. It cannot be granted against a Court or
judicial officer. Under the Code of Civil Procedure, 1908, temporary injunctions are issued as interim relief during the
pendency of suit by the Court.

Grounds

Order XXXIX, Rule 1 and Rule 2 provides the circumstances under which a temporary injunction may be granted by
the Court and unless those circumstances exist, a Court has no jurisdiction to grant it. They are:

(1) Where any property in dispute in the suit is in danger of being wasted, damaged or alienated by any party to the
suit, or wrongfully sold in execution of a decree, or [Rule 1(a)]

(2) where the defendant threatens or intends to remove or property with a view to defraud his creditors, or dispose
of his [Rule 1(b)]

(3) where the defendant threatens to dispossess the plaintiff or otherwise intends to cause injury to the plaintiff in
relation to any property in dispute in the suit [Rule 1(c)]

(4) where the defendant is about to commit a breach of contract or other injury of any kind, [Rule 2(1)]

(5) Where in the opinion of the Court the situation so warrants in order to meet the ends of justice. [Section 94(c)]

These provisions are not however the sole repository of the Court's power to grant an injunction. Section 151 of the
CPC, which deals with inherent powers of the Court, also authorizes it to grant injunction in cases that are not
covered by these Rules. [Tanusree Basu v. Ishani Prasad Basu (2008)].

Principle

The power to grant a temporary injunction is in the discretion of the Court, but this discretion, should be exercised
reasonably, judiciously and on sound legal principles. Generally, before granting the injunction, the Court must be
satisfied about the following conditions:

(i) Prime facie case – The expression "prime facie case" does not require the plaintiff to establish a full proof case but
that he has a fair question to agitate with regard to the existence of his right and that till such question is decided
finally, an injunction is needed to preserve the property in status quo. The Court must be satisfied that there is a
bona fide dispute raised by the applicant and on the facts before the Court there is a probability of the applicant
being entitled to the relief claimed by him.

(ii) Irreparable loss and Injury – The applicant must further satisfy the Court that he will suffer irreparable injury if the
injunction as prayed is not granted, and there is no other remedy open to him by which he can protect himself from
the consequences of apprehended injury. The expression "irreparable injury" means that the injury must be material
one, i.e. which cannot be adequately compensated by damages.

(iii) Balance of Convenience – The balance of convenience must be in favor of the applicant. In other words, the Court
must be satisfied that the compensation, mischief or inconvenience which is likely to be caused to the applicant by
withholding the injunction will be greater than that which is likely to be caused to the opposite party by granting it.

(iv) Plaintiff's conduct fair and honest – Since the relief is wholly equitable in nature, the party invoking the
jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for
bringing about the state of affairs complained of and that he was not unfair or inequitable in his dealings with the
party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not
only in respect of the person who seeks an injunction order under Order XXXIX, but also in respect of the party
approaching the Court for vacating the ad-interim injunction order already granted in the pending suit or proceeding.
(M/s. Gujarat Bottling Co. Ltd. v. Coca Cola Co., 1995)

Since grant of injunction is discretionary and an equitable relief, even if all the conditions are satisfied, the Court may
refuse to grant it for some other reasons e.g., on the ground of delay, latches or acquiescence or where the applicant
has not come with clean hands or has suppressed material facts, or where monetary compensation is adequate
relief. The Court shall before grant an injunction, give notice to the opposite party, except where it appears that the
object of granting the injunction would be defeated by the delay.

Rule 2A

Rule 2A provides that in the case of disobedience of any injunction granted or breach of any of the terms on which
the injunction was granted, the Court granting the injunction may order the property of the person guilty of such
disobedience or breach to be attached and may also order such person to be detained in the civil prison for a term
not exceeding three months, unless in the meantime the Court directs his release.

Such an attachment cannot remain in force for more than one year at the end of which time, if the disobedience or
breach continues, the property attached may be sold and out of the proceeds, the Court may award such
compensation as it thinks fit to the injured party and pay the balance, if any to the party entitled thereto.

Rule 3 [Ex – parte ad interim injunction]

Acc to rule 3 the court shall before grant an injunction, direct notice of the injunction application to be given to the
opposite party. According to proviso to Rule 3, when an ex parte injunction is proposed to be given the Court has to
record the reasons for coming to the conclusion that the object of granting the injunction would be defeated by the
delay and the Court shall order the applicant to deliver or to send by registered post a copy of the application for
injunction together with -

i) a copy of affidavit filed in support of application,

ii) a copy of the Plaint, and

iii) copies of documents on which the applicant relies, and

In case of ex-parte injunction, the Court shall make an endeavor to finally dispose of the application within 30 days
from the date on which the ex-parte injunction was granted. Where the Court finds it difficult to dispose of the
application within the period of 30 days, the reasons are required to be recorded.

Monohar Lal v. Seth Hira Lal (1962)

Dalpat Kaur v. Prahlad Singh (1993)

ORDER 2 RULE 2

The general rule is that a suit should include the whole of the claim which a plaintiff is entitled to make in respect of
a cause of action. This is embodied in Order II, rule 1. However, there is no such compulsion, and the plaintiff is at
liberty to relinquish or omit any portion of such claim. But there is a consequence that the plaintiff will be barred
from fling another suit for the portion of the claim which was relinquished or omitted. Order II, rule 2 speaks of this
bar.

1. Suit to include the whole claim - Rule 2(1) of Order II of the Code provides that every suit shall include the whole
of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any
portion of his claim in order to bring the suit within the jurisdiction of any court.

2. Relinquishment of Part of Claim - Rule 2(2) of Order II of the Code provides that where a plaintiff omits to sue in
respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion
so omitted or relinquished.

3. Omission to sue for one of several reliefs - Rule 2(3) of Order II of the Code provides that a person entitled to more
than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except
with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation: For the purpose of this rule an obligation and collateral security for its performance and successive
claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.

Object and Scope of Order II, Rule 2

The object of the rule is to prevent multiplicity of suits and splitting of reliefs. This rule is based on the maxim, nemo
debet bis vexari pro una et eadem causa, i.e. no person should be vexed twice over the same cause. This rule enables
the plaintiff to abandon or relinquish a part of his claim before filing his claim. The Rule in Order II, Rule 2 is directed
against two evils (i) splitting of claims and (ii) the splitting up of remedies.

Order II, rule 2 does not state that when a transaction gives rise to several causes of action, the plaintiff must
combine all the causes of action in one suit, instead the rule requires that where there is a cause of action, the
plaintiff cannot split the cause of action into parts and claim reliefs in parts by means of several suits, but he has to
place all his claims before the Court in one Suit. The rule enables the plaintiff to abandon or relinquish a part of his
claim before filing his plaint, After the suit is filed, he cannot, by way of amendment, reduce the value of his claim by
abandoning a part of his claim.

In Alka Gupta v. Narendra Kumar Gupta, 2011, Supreme Court observed as follows: "The object of Order Il, Rule 2 of
the Code is two-fold. First is to ensure that no defendant is sued and vexed twice in regard to the same cause of
action. Second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. The
effect of Order Il, Rule 2 of the Code is to bar a plaintiff who had earlier claimed certain remedies in regard to a cause
of action, from filing a second suit in regard to other reliefs based on the same cause of action. It does not however
bar a second suit based on a different and distinct cause of action."

Conditions to apply Rule 2

In order to apply Rule 2, two conditions must be satisfied, firstly, that previous suit and the present suit must arise
out of the same cause of action and, secondly, both the suits must be between the same parties. It is the subsequent
suit which is barred and not both the suits.

In Gurbux Singh v. Bhooralal, 1964, the Supreme Court held that in order that a plea of bar under Order II, Rule 2(3)
of the Code of Civil Procedure should succeed the defendant must raise the following conditions:

(i) that the second suit was in respect of the same cause of action as that on which the previous suit was based;

(ii) that in respect of that cause of action the plaintiff was entitled to more than one reliefs

(iii) that without the leave of the Court the plaintiff omitted to sue for the relief for which the second suit has been
filed.
The test to find out whether a subsequent suit is barred by Rule 2 is to see whether the cause of action in the
previous suit and the subsequent suit is the same, and whether the plaintiff could have and should have claimed in
the former suit the relief which he claims in the subsequent suit.

The cause of action means every fact which would be necessary for the plaintiff to prove, if traversed, in order to
support his right to the judgment in his favour. It does not comprise every piece of evidence which is necessary to
prove each fact, but every fact which is necessary to be proved.

The cause of action for the purpose of this rule means all the essential facts constituting the right and its
infringement.

Exceptions to Rule 2

1. The bar of Order II, Rule 2 may not apply to-petitions under Article 226 of the Constitution of India.

2. It will not apply unless the Court which tried the former suit had jurisdiction to try the claim omitted by the
plaintiff.

3. It does not apply to execution applications.

4. It does not apply to appeals; it only applies to suits.

5. Set off can be claimed in a subsequent suit.

6. In the case of mortgage, where a mortgagee has obtained a decree for the payment of money in satisfaction of a
claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by
instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything
contained in this provision.
 LIMITATION ACT, 1963

BAR OF LIMITATION (SEC 3)

The general rule of the Limitation Act, 1963 is stated in section 3(1) which provides that: “Subject to the provisions
contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the
prescribed period shall be dismissed, although limitation has not been set up as a defence.”

Section 3(1) of the Limitation Act, 1963 provides that any suit, appeal or application if made beyond the prescribed
period of limitation it is the duty of the Court not to proceed with such suits irrespective of the fact whether the plea
of limitation has been set up in defence or not. Court has no discretion or inherent powers to condone the delay if
the suit was filed beyond the prescribed period of limitation unless the matter was covered by sections 4 to 24 of the
Limitation Act. The provision in section 3 is absolute and mandatory. Sec 3 makes the question of limitation a
material one for determination in every case irrespective of whether the question is raised by the parties or not. The
following points are important in this regard:

 Section 3 is peremptory, and the duty of the Court is to take note of the Act and give effect to it. The Court
can Suo motu take note of question of limitation. The question whether a suit is barred by limitation should
be decided on the facts as they stood on the date of presentation of the plaint.
 The plea of limitation can be raised at any stage of a case. Thus, the defendant can raise the plea of limitation
at the hearing of a suit, even if he has not pleaded limitation in his written statement. Likewise, he can take
up the plea of limitation for the first time in appeal, or even in second appeal.
 Normally, defendant must plead the bar of limitation. Thus, the initial burden of proving that the plaint or
appeal is within time vests upon the plaintiff or appellant. However, later, the burden may shift to the
defendant (e.g. where the suit as framed by the plaintiff is within time under a particular Article but the
defendant puts up the bar of limitation under a different Article; or that particular circumstances exist which
make the period of limitation expire before the date on which the suit was instituted).
 Limitation being a matter of statute, Sec. 3 leaves no room for equitable considerations. The court has no
power to relieve the suitor from the bar of limitation on the ground of hardship, mistake or injustice (even
when there is violation of the principle of natural justice). Apart from the provisions of the Act, no principle
can be evoked to add to or supplement. The parties cannot by consent or agreement extend or alter the
period of limitation.
 Sec. 3 equally operates for or against a private individual as also government.
 Where the question involved is the honour and integrity of the legal profession, even if the claim for money
by the client against his lawyer is apply to such cases. Similarly, when there is no possibility of by limitation,
the Limitation Act will not ascertain the starting point of limitation, there is no scope for operation of Sec. 3.

Limitation Bars the Remedy, but does not Destroy the Right

The rule of limitation is a rule of procedure, a branch of the adjective law. It does not either create or extinguish
rights, except in the case of acquisition of title to immovable property by prescription under Section 27 of the
Limitation Act. It is only the remedy by way of a suit that is barred, but the right itself continues to exist, and if there
is some other remedy by which that right can be enforced, the Limitation Act cannot come in the way.

In Bombay Dyeing and Manufacturing Co. v. State of Bombay, 1958, Supreme Court held that the statute of
limitation bars the remedy but does not extinguish the right. Lapse of time does not extinguish the right of a person.

Since limitation bars a suit for the enforcement of a right, but does not destroy the right itself, a defendant in a suit
can set up a right in defence though he could not have enforced the right by a suit. There is no limitation against a
defence. The Limitation Act mentions certain periods within which suits, appeals or applications for various claims
should be instituted in a Court of law. If the proceeding is not instituted within the specified period the only result is
that the remedy is barred. The claimant cannot go to a Court of law and institute a suit upon it, but though in such
cases the remedy is barred, the right exists so that if the debtor pays money to a creditor, he may appropriate it to a
time barred debt.
However, Section 27 of the Act provides that at the termination of the period limited by the Act to any person for
instituting a suit for possession of any property his right to such property gets extinguished. In such circumstances,
he cannot also set up such an extinguished right by way of a defence.

Section 27 is an exception to the general principle that limitation bars only the remedy and does not extinguish the
right. The Limitation Act lays down a rule of substantive law in Section 27. It declares that after the lapse of the
period provided by this enactment, the right itself is gone and the title ceases to exist, and not merely the remedy.
Section 27 of the Limitation Act, 1963 provides for extinguishment of right to property. It states that at the
determination of the period hereby limited to any person for instituting a suit for possession of any property, his right
to such property shall be extinguished.

Thus, in cases where the right claimed is that of possession of property and the suit is not brought in time, it is not
only the remedy that is barred, but also the right is extinguished. The result is that not only will the Court throw out
the suit, but also that if the plaintiff dispossesses the person in possession, he will be considered a trespasser.

Punjab National Bank v. Surendra Prasad Sinha (1992)

Facts: In this case, the Bank granted a loan to a person for which the respondent and his wife become the guarantors
and executed a security bond in which certain fixed deposit receipts were pledged as security for the loan. The
borrower failed to repay the loan. The Bank failed to. file the suit for the recovery of the debt within limitation
against the debtor and the sureties. Thus, the debt recovery was time barred. The Bank instead deducted the said
amount from the fixed deposit receipt of the surety, after the limitation to file a suit for recovery had lapsed. The
Bank then adjusted the amount of the FDRs towards its dues and the balance was credited to the saving bank
account of the respondent. The respondent surety lodged a complaint against the Bank for the penal offence. The
Magistrate without adverting whether the allegation made out a prima facie case of an offence or not issued process
against the Bank Officer. It was challenged.

Issue: Whether the rule of limitation destroys the rights of the parties?

Observation and Decision: The Supreme Court in the historical judgment laid that the Bank can adjust the securities
deposited by guarantor towards debts barred by limitation. In reaching such conclusion Supreme Court observed as
follows:

(i) It is envisaged by section 3 of the Limitation Act that every suit, appeal or application filed beyond the period of
limitation shall be dismissed by the Court whether the opposite party objects to it or not.

(ii) Section 5 of Limitation Act is an important provision in this context, which permits extension of limitation in
certain cases only viz., an appeal or any application (not being an application under Order XXI of the Civil Procedure
Code) wherein delay in presentation can be condoned by the Court on an application under section 5 of the
Limitation Act.

(iii) If it could not be filed within the period of limitation for sufficient cause such as cause beyond the control of the
party, on application to the Court, the Court may condone the delay in its discretion and permit the case to be laid
though it was not filed within the period of limitation.

(iv) Admittedly, in this case the principal debtor did not repay the debt and the Bank as creditor adjusted at maturity
of the F.D.R., the outstanding debt due to the bank in terms of the contract and the balance sum was credited to the
Saving Bank account of the respondent.

(v) The rules of limitation are not meant to destroy the rights of the parties. Section 3 of the Act only bars the
remedy, but does not destroy the right, which the remedy relates to. The right to the debt continues to exist
notwithstanding the remedy is barred by the limitation. Only exception in which the remedy also becomes barred by
limitations is that the right itself is destroyed. For example, under section 27 of the Act a suit for possession of any
property becoming barred by limitation, the right to property itself is destroyed. Except in such cases which are
specially provided, in other case the right subsists.

(vi) Though the right to enforce the debt by judicial process is barred under section 3 read with the relevant Article in
the Schedule, the right to debt remains. The time barred debt does not cease to exist by reason of section 3. That
right can be exercised in any other manner than by means of a suit. The debt is not extinguished, but the remedy to
enforce the liability is destroyed. What section 3 refers is only to the remedy but not to the right of the creditors.
Such debt continues to subsist so long as it is not paid. It is not obligatory to file a suit to recover the debt.

(vii) It is settled law that the creditor would be entitled to adjust, from the payment of a sum by a debtor, towards the
time barred debt. It is also equally settled law that the creditor when he is in possession of an adequate security, the
debt due could be adjusted from the security in his possession and custody. Undoubtedly the respondent and his
wife stood guarantors to the principal debtor, jointly executed the security bond and entrusted the F.D.R. as security
to adjust the outstanding debt from it at maturity. Therefore, though the remedy to recover the debt from the
principal debtor is barred by limitation, the liability still subsists. In terms of the contract the Bank is entitled to
appropriate the debt and credit the balance amount to the savings bank account of the respondent.

Union of India v. West Coast Paper Mills Ltd. (2004)

Issue: Whether period during which the matter was pending before Appellate Court would include or excluded in
computing the period of limitation?

Decision: Appellant placed reliance on decision of court in PK Kutty Anuja Raja v S/o Kerela (1996) where it was held
that once the limitation period starts running, it runs its full course until it is interrupted by an order of the court. The
pendency of the appeal does not amount to suspend the operation of running of limitation unless the operation of
judgement is suspended by this court. It was contended that said suits were barred by limitation, as the cause of
action for filing the same arose immediately after the judgement was passed by the Tribunal on 8. 4. 1966 and thus in
terms of Art. 58 they were require to be filed within a period of Three years from the said date (when right to sue
first accrued) as despite the fact that SLP was preferred there against, no stay had been granted Apex Court observed
that in KP Kutty case court failed to take into consideration that once an appeal is filed before this Court and the
same is entertained the judgement of the HC or the Tribunal is in jeopardy. The subject-matter of dispute unless
determined by the last Court cannot be said to have attained finality and grant of stay of operation of the judgement
may not be of much relevance once this court grants SLP and decides to hear the matter on merit.

Ratio of PK Kutty case overruled, the period of limitation would begin to run from date of passing the appellate
decree and not from date of passing of original decree.
EXTENTION OF LIMITATION/ CONDONATION OF DELAY (SEC 5)

Sec 5 is an exception to the general rule contained in sec 3 and would dilute the rigour of Sec 3.

Section 5 of the Limitation Act, 1963 provides as follows: “Any appeal or application other than an application under
any of the provisions of Order XXI of the CPC, 1908 may be admitted after the prescribed period, if the appellant or
the applicant satisfies the court that he has sufficient cause for not preferring the appeal or making the application
within such period.

Explanation - The fact that the appellant or the applicant was misled by any order, practice or judgment of the High
Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.”

Principles

Some general conditions or principles for condonation of delay under Sec. 5:

 The party seeking relief has to satisfy the court that he had sufficient cause for not preferring the appeal, etc.
within the prescribed time. If the party fails to show such sufficient cause the cause shown for the later
period may not be relevant.
 The explanation has to cover the entire period of delay i.e. delay made after the last day of limitation day to
day till the actual date of filing the application. The event or circumstance accounting for the delay "must
arise" before the expiry of limitation period; no event or circumstance arising after the expiry of limitation
can constitute sufficient cause, though it may further delay the filing of appeal or application.
 The proof of sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested
in the court under Sec. 5. The court have discretion to admit or refuse to admit the proceeding, even if
sufficient cause is shown, as is made clear by the words "may be admitted" used in the section. The
extension of time is thus a matter of concession to the applicant and cannot be claimed by him as a matter of
absolute right. However, the litigant has a right to wait till the last day of limitation.
 The discretion conferred on the court is a judicial and not arbitrary discretion, and must be exercised to
advance substantial justice. The court must carefully weigh the claims of the two parties.

Sufficient cause

The term "sufficient cause" has not been defined in the Act, but it has been held that it must mean a cause which is
beyond the control of the party invoking the aid of the Section. A cause for delay, which by due care and attention,
the party could have avoided, cannot be a sufficient cause. The test is to see whether it is a bona fide cause, and
nothing is bonafide unless it is done with due care and attention. The court has to exercise the discretion on the facts
of each case keeping in mind that in construing the expression "sufficient cause" the principle of advancing
substantial justice is of prime importance. The following constitutes sufficient cause:

(a) Illness: When illness is pleaded as a ground for delay, the illness must subsist for the whole period and it must be
proved that the person was not in a position to attend to any duty. The question whether the effect of the particular
illness is such that it afforded a sufficient cause for the delay in preparing the appeal or the petition within time is
one of fact and has to be decided on the basis of circumstances disclosed in each case. Illness of pleader, and the
client's ignorance of it, might be a sufficient cause. Illness in the family and subsequent delay in making
arrangements for the appeal or application is not sufficient cause (except under exceptional circumstances). Delay
due to accident was accepted as sufficient cause.

(b) Imprisonment: Imprisonment in a criminal case is a sufficient cause and the time spent in jail may be deducted
but ordinarily it is not.

(c) Mistake of counsel: In certain circumstances, mistake of a counsel may be taken into consideration in condoning
delay under section 5 though there is no general proposition that mistake of a counsel by itself is always a sufficient
cause. In order to constitute sufficient cause, the mistake committed by the lawyer or his clerk must be bona fide.
The mistaken advice of the counsel is not sufficient to justify extension of time unless the advice was given in good
faith that is without negligence or misconduct or lack of reasonable skill on the part of the lawyer. Where the law is
in an unsettled state, a mistake by the lawyer can be accepted as a sufficient cause. But when the matter is beyond
dispute, a statement that the lawyer did not know the law cannot be accepted as sufficient cause.
(d) Mistake or ignorance of law: Mistake of law is a mistake committed by a party in establishing or exercising the
right conferred upon him by the law. The party knows his rights, he wants to assert them and establish them but
through mistake in understanding the provisions of the law he goes to a wrong forum. In cases where there is
mistake of law, the courts have almost uniformly taken the view that the time taken up by asserting the rights in a
wrong court or wrong forum should be excluded under Section 5.

(e) Wrong proceeding taken in good faith: Where a person bona fide filed a suit instead of appealing from a decree
and soon after found out the error and preferred the appeal, it was held to be a sufficient cause. Immediately after
the termination of the wrong proceedings (whether in review or revision) the appeal must be preferred with due
diligence in order to get the benefit of the section.

(f) Amendment of decree: Time runs from the date of the originally drawn decree and not every amendment in the
decree entitles the party to claim an extension of time for filing an appeal. Only when the grounds on which the
appeal is based are intimately connected with the amendment of the decree, the court should consider It as a
sufficient cause, but if the amendment has no relation to the grounds upon which the vitality of the decree is sought
to be challenged in appeal, such appeal should not be admitted after time.

(g) Proceeding in wrong court through bonafide mistake: Where appellant preferred an appeal to a wrong court,
believing bonafide that the appeal lay there, the appellant is entitled to condonation. The pendency of the
application to set aside the ex-parte decree cannot be treated as sufficient cause for the delay in filing the second
appeal as the causes of action are quite different.

(h) Ignorance of fact: a bonafide mistake of fact on the part of the party or his agent will be a sufficient case.
However, where the party acts without due care and caution relying on his agent he failed to prove sufficient cause.
Ignorance of fact of the death of a party whose legal representative have to be brought on record constitutes a
sufficient cause, for excusing the delay in seeking to set aside abatement unless the party seeking condonation was
negligent.

Delay by government

Article 14 of the Indian Constitution guarantees equality before the law and equal protection of law, the doctrine of
equality, hence, has to be applied by Courts to all litigants equally and uniformly. Governmental agencies cannot
claim special privilege and must be treated on par with private parties. But realities of life also should be kept in
mind. Certain amount of latitude, therefore, is not impermissible. If appeals or applications brought by State are
dismissed only on the ground of delay without entering into merits, ultimate sufferer would be the public at large.
The expression 'sufficient cause' should, therefore, be considered keeping in view rational, pragmatic and justice-
oriented approach. If the Court is convinced that there has been an attempt on the part of government official or
public servant to defeat justice by causing delay, keeping in view the public interest, Court should condone delay by
taking lenient view and by deciding the matter on merits.

Section 5 enables only a "Court" to admit an appeal or an application after the expiry of the prescribed period on
sufficient cause being shown for the delay. The power under section 5 is discretionary in nature and a party has no
right to seek extension in every case. However, the court should exercise its double discretion judicially and not
arbitrarily. So, section 5 confers discretionary power on the court to condone or waive delay in preferring an appeal
or making an appeal, if there is sufficient cause. It is the duty of the court to record the reasons for extending the
time under this section and it has no power to extend the time under equitable grounds. Further, it should be noted
that section 5 can be invoked only in relation to proceedings before Courts. It has no application to bodies other than
courts, such as quasi-judicial tribunals, labour courts, bodies functioning as persona designata or even executive
authorities.

Collector, Land Acquisition, Anantnag v. Katiji (1987)

Facts: The High Court of J&K had dismissed the appeal preferred by the J&K Government on ground of appeal being
barred by limitation. Against the dismissal of appeal, the J&K Government had preferred instant appeal before the
Supreme Court.

Issues:

 Whether condonation should be granted or not?

 Whether or not to apply the same standard in applying the sufficient cause test to all the litigants regardless
of their personality in the said context is the second issues?

Decision: Supreme Court held that the Legislature has conferred the power to condone the delay in section 5 in order
to enable the courts to do substantial justice to parties by disposing the matters on merits. It is common knowledge
that this court has been making a justifiably liberal approach in matters instituted in this court, but the message does
not appear to be followed by other courts in the hierarchy. Such a liberal approach is adopted based on the following
principles:

(a) Ordinarily, a litigant does not stand to benefit by lodging an appeal late.

(b) The cause would be decided on merits after hearing the parties.

(e) The doctrine of 'every day's delay must be explained' should be applied in a rational, common sense, and
pragmatic manner.

(d) When substantial justice and technical consideration are pitted against each other, cause of substantial justice
deserved to be preferred.

(e) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account
of mala fides.

(f) It must be remembered that Judiciary is respected for removing injustice and not for its power to legalize injustice
on technical grounds.

Taking into account above observation Court concluded, there was sufficient cause for condoning the delay in the
institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was
altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as litigant, are
accorded with the same treatment in an even-handed manner. Moreover, the State filed an affidavit that their
counsel was negligent and irresponsible in handling the cases. There is no justification for according a step motherly
treatment when the State is the applicant praying for condonation of delay.

In fact, experience shows that on account of an impersonal machinery and the inherited bureaucratic methodology
imbued with the note- making, file pushing and passing-on-the buck methods, delay on its part is less difficult to
understand though more difficult to approve. The Courts therefore have to be informed in the course of the
interpretation of the expression 'sufficient cause'. Finally, Court held that in this case 'sufficient cause' exists for the
delay and order of High Court dismissing the appeal before it as time barred is set aside and case is remitted to the
High Court. The High Court will dispose of the appeal on merits after affording reasonable opportunity of hearing to
both the sides.

State of Haryana v. Chandra Mani, (1996)

Fact: The present case came before the court after the division bench of High Court refused to condone the delay of
109 days in filing the appeal.

Issue: Question regarding condonation of delay in appeals filed by the Government was in issue.

Decision: The Court held that the expression "sufficient cause" should be considered with pragmatism in justice-
oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors
which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and
require adoption of pragmatic approach in justice-oriented process. Equally, the State cannot be put on the same
footing as an individual. The individual would always be quick in taking the decision whether he would pursue the
remedy by way of an appeal or application since he is a person legally injured while state is impersonal machinery
working through its officers or servants. Keeping all these facts and circumstances and the state machinery per se the
court condoned the delay of 109 days.

State Nagaland Lipok (2005)

Fact: In this case the High Court refused to condone the delay of 57 days under section 5 of the Act, on the ground
that it is the duty of the litigant to file an appeal before the expiry of the limitation period. Merely because the
Additional Advocate General did not file an appeal in spite of instructions issued to him, that did not constitute
sufficient cause and further the fact that the records were purportedly missing was not a valid ground. The state of
Nagaland questions correctness of the judgement rendered by Single Judge of Gauhati High Court.

Issue: What constitutes sufficient cause?

Decision: The Apex Court observed, the proof of sufficient cause is a condition precedent for exercise of the
extraordinary discretion vested in the court. What counts is not the length of the delay but the sufficiency of the
cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. Section
5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court
has to go in the position of the person concerned and to find out if the delay can be said to have resulted from the
cause which he had adduced and whether the cause can be regarded in the peculiar circumstances of the case as
sufficient. The expression "sufficient cause" must receive a liberal construction so as to advance substantial justice
and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross
negligence or deliberate inaction or lack of bonafide is imputable to the party seeking condonation of delay.

In this case after considering factual background, in the light of legal principle as noted above, the inevitable
conclusion is that the delay of 57 days deserves condonation.

Law of Limitation is same for Private Citizen and Government

In Union of India v. Chinganbom Indra, 1970, Court held that, though the Limitation Act does not make any
distinction between the Government and the private individual in the matter of condonation of delay under section
5, yet its case can be said to be different from that of an individual who has to make up his own mind and who can
normally be presumed to be aware of or familiar with all the relevant factors of the case. The Government, on the
other hand, has to take into consideration the public interest involved and so, long time may require for enquiry and
consideration before taking a final decision in the matter. However, the real difficulty arises in their application to
individual cases. It must, at the same time be emphasized that the Government Officers charged with double duty of
taking the decision and instituting the proceedings in Courts must not carry the impression that they can bank on the
indulgence of Courts even if they take their own time in processing the papers or making up their mind. The Court
would certainly not put up with any laches or smug nonchalance on the part of Government officials in the matter of
Court proceedings, just as it would not do in the case of a private litigant.

In Damodaran Pillai v. South Indian Bank, 2005, Supreme Court has held that when the delay cannot be condoned
under Section 5 of the Limitation Act, the day cannot also be condoned by invoking inherent power of the Court
under section 151 of CPC, 1908.

Section 5 enables only a "Court" to admit an appeal or an application after the expiry of the prescribed period on
sufficient cause being shown for the delay. The power under Section 5 is discretionary in nature and a party has no
right to seek extension in every case. However, the Court should exercise its double discretion judicially and not
arbitrarily. So, section 5 confers discretionary power on the Court to condone or waive delay of preferring appeal or
making appeal, if there is sufficient cause It is the duty of the Court to record the reasons for extending the time
under this Section and it has no power to extend the time under equitable grounds. Further, it should be noted that
Section 5 can be invoked only in relation to proceedings before Courts. It has no application to bodies other than
Courts, such as quasi-judicial Tribunals, labour Courts, bodies functioning as persona designate or even executive
authorities. It is clarified by the Explanation appended to the section 5 that the fact that the appellant or applicant
was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period
may be a sufficient cause within the meaning of this Section.
EXCLUSION OF TIME (SEC 12)

Section 12 provides for the exclusion of time in computing the period of limitation. The true effect of section 12 is
that the periods referred to in the various sub-sections have to be added to the period of limitation for ascertaining
the last date for filing the appeal.

The section excludes from reckoning:

(a) the day from which the period is to be reckoned, and

(b) time requisite for obtaining copies of documents referred to in sub-section (2) to (4) of section 12.

Scope of section 12

Sub-sections (1) to (4) of section 12 speak about the exclusion of time for the purpose of computing the period of
limitation while the explanation speak about the exclusion or non-exclusion of time for the purpose of computing the
time requisite for obtaining the copy. True effect of section 12 is that the period that come within reach of sub-
section in the section have to be added to the period of limitation. The plain reading to section 12 shows that only for
computing the period of limitation for.

(1) an appeal,

(2) an application for leave to appeal;

(3) for revision, or,

(4) for review of the judgment,

the day on which the judgment complained and the time requisite for obtaining a copy of the decree shall be
excluded.

Meaning of time requisite

It means, properly required, and it throws upon the appellant the necessity of showing that no part of the delay
beyond the prescribed period is due to his default. The expression 'time requisite' cannot be understood as the time
absolutely necessary for obtaining the copy of the order. What is deductible under section 12(2) is not the minimum
time within which a copy of the order appealed against could have been obtained. This section permits the appellant
to deduct from the time taken for filing the appeal, the time required for obtaining the copy of the order appealed
from

In determining what is the 'time requisite', the conduct of the appellant must be considered, and no period can be
regarded as requisite which need not have elapsed if the appellant had taken reasonable and proper steps in making
a requisition to obtain the order. The time requisite is a question of fact to be determined on the basis of the facts of
each particular case.

When a judgment is pronounced on such a date that the day or days following it are holidays, during which the
appellant cannot apply for a copy of the judgment then, in computing the period of limitation for appeals, such
holidays should be excluded.

Where the judgment is delivered on the last working day and is followed by a vacation during which the period of
limitation would expire, then an application should be made for copies on the reopening day and the period of
vacation should be included as 'time requisite for the obtaining of the copies and excluded under section 12. The
time during which decree is not drawn up is excluded even though application for copy is not made before drawing
up of decree.

State of Uttar Pradesh v. Maharaj Narain (1968)

Facts: The Session Judge acquitted respondents on November 10, 1962. Against the order of acquittal, the State went
up in appeal on March 29, 1963. This appeal was dismissed as being time barred as the period of limitation for an
appeal from an order of acquittal is only three months from the date of the order appealed from. The State
challenged correctness of that decision before the Supreme Court. The appellant contended that the appeal was
within time after excluding the 'time requisite' for obtaining a copy of the order under section 12(2). The respondents
contended that the appeal was out of time in view of the fact that appellant had applied for and obtained two other
copies of the order appealed from and if it is calculated on the basis of these copies, the appeal was beyond time.
The High Court of Allahabad accepted the contention of the respondents and observed that the expression 'requisite'
found in section 12(2) means properly required and hence the limitation has to be computed on the basis of the copy
made available to the appellant in December 1962.

Issue: Whether the High Court was justified in holding the appeal time barred by not allowing exclusion of period
from November 15, 1962 to January 3, 1963 as time requisite for obtaining a copy of order under section 12(2)?

Decision: The word 'time requisite' for obtaining a copy of the decree means the time beyond the party's control
occupied in obtaining the copy which is filed with the memorandum of appeal and not an ideal lesser period which
might have been occupied if the application for the copy had been filed on some other date. The Apex Court
observed: "If the appellate courts are required to find out in every appeal filed before them, the minimum time
required for obtaining a copy of the order appealed from, it would be unworkable. In that event every time an appeal
is filed, the court not only will have to see whether the appeal is in time on the basis of information available from
the copy of the order filed along with the memorandum of appeal but it must go further and hold an enquiry
whether any other copy had been made available to the appellant and if so, what was the time taken by the court to
make available that copy. This would lead to a great deal of confusion and enquiries into the alleged laches or
dilatoriness in respect not of copies produced with the memorandum of appeal but other copies which he might
have got and used for other purposes with which the court has nothing to do". The Supreme Court accordingly
excluded the whole period between the date of the application for copy and the date on which the first copy was
received as time requisite for obtaining a copy of order under section 12(2) and held the appeal within time.

The Commissioner of Sales Tax, U.P. v. M/s. Madan Lal Das Sons, Bareilly (1977)

Facts: An appeal filed by the respondent against the order of Sales Tax Officer was disposed of by the Additional
Commissioner (Judicial) Sales Tax. The copy of the appellate order was served to the respondent on August 22, 1965.
In the meanwhile, respondent lost the copy of appellate order. On June 15, 1955 the respondent made an application
for obtaining another copy of the above order. The copy was ready on August 17, 1967 and was delivered to the
respondent on August 18, 1967. Revision was filed by the respondent on September 9, 1967. Section 10(3B) of the
U.P. Sales Tax Act, 1940 prescribes the period of limitation for filing such a revision to be one year from the date of
service of the order complained of but the revising authority may on proof of sufficient cause entertain an
application within a further period of 6 months. The respondent claimed that under section 12(2) of the Limitation
Act, he was entitled to exclude in computing the period of limitation for filing the revision, the time spent for
obtaining a copy of the appellate order. The Judge allowed the revision petition which was also favoured by High
Court. It was challenged.

Issue: Whether the time taken by the respondent in obtaining another copy of the appellate order could be excluded
for the purpose of limitation of filing revision under section 10(1) of the U.P. Sales Tax Act when one copy of the
appellate order was served upon the respondent under the provisions of the Act?

Decision: In the case of State of Uttar Pradesh v. Maharaj Narain this Court, while holding the appeal to be within
time, observed that the expression time requisite in Section 12(2) of the Limitation Act cannot be understood as the
time absolutely necessary for obtaining the copy of the order and that what is deductible under Section 12(2) is not
the minimum time within which a copy of the order appealed against could have been obtained. If that be the
position of law in a case where there was no allegation of the loss of any copy, a fortiori it would follow that where as
in the present case the copy served upon a party is lost and there is no alternative for that party except to apply for a
fresh copy in order to be in a position to file revision petition, the time spent in obtaining that copy would necessarily
have to be excluded under Section 12(2) of the Limitation Act, 1963.

The High Court, in our opinion, correctly answered the question referred to it in favour of the dealer- respondent and
against the revenue
ACKNOWLEDGEMENT (SEC 18)

Acknowledgement means a definite, clear admission of existing liability by the defendant. It is a statement in writing
that a debt is due and unpaid. An acknowledgement must be one from which an absolute promise to pay can be
inferred, or an unconditional promise to pay the specific debt, or there must be a conditional promise to pay the debt
and evidence that the conditions has been performed.

An acknowledgement of a barred debt cannot give fresh period of limitation in favor of creditors. Under section 18
an acknowledgement is not limited in respect of a debt only, it may be in respect of "any property or right" which is
the subject-matter of the suit. An acknowledgement of a conditioned liability will not give a fresh start so long as the
condition remains unfulfilled. There must be an unqualified admission, or an admission qualified by a condition
which is fulfilled. An unqualified admission and an admission qualified by a condition which is fulfilled stand precisely
upon the same footing, and both are within Section 18.

Principle

Sec 18 is based on the principle that the bar of limitation should not be allowed to operate in cases in which the
existence of a claim is acknowledged by persons who are under the liability. An acknowledgement does not create
any new right of action, but only enlarges the time and has the effect of making a new period run from the date of
the acknowledgement. Acknowledgment of liability by the defendant interrupts limitation that is it cancels the
already elapsed portion of the period of limitation from the date of such interruption. Such acknowledgement,
however, does not extinguish the original cause of action nor create a new one. The basis of the claim is the original
cause of action and the acknowledgement only shows that it still subsists and remains unsatisfied. An
acknowledgment merely recovers the debt.

If an acknowledgement is made in favor of a minor, the new period of limitation is to be computed from the date
when the plaintiff attains majority.

Conditions for a Valid Acknowledgement

(1) The acknowledgement must have been made before the expiration of the prescribed period. In other words, the
acknowledgement must be made after the period of limitation has begun to run and while it is actually running. Once
limitation period prescribed has expired, it would not revive under this Section. It is only during subsistence of a
period of limitation, if any, such document is executed, that the limitation would be revived afresh from the date of
acknowledgment. (Sampuran Singh v. Niranjan Kaur, 1999). The onus lies on the creditor to prove that the
acknowledgement was made within time.

(2) The acknowledgement must be in writing; however, if the acknowledgement is undated, oral evidence may be
given of the time when it was signed. But Section 18(2) clearly prohibits, subject to the provisions of the Evidence
Act, receiving of oral evidence of contents of the acknowledgement.

(3) Such acknowledgement must have been signed by the party, his agent or the party against whom the right is then
claimed or by any person through whom he derives his title or liability. Unstamped acknowledgement is not
acknowledgement. An improperly stamped promissory note cannot be admitted in evidence to prove
acknowledgement of liability in order to save limitation.

(4) The acknowledgement must have been made by the party against whom the right is then claimed or by any
person through whom he derives his title or liability. It is necessary that at the time when the acknowledgement is
made that such person must have an interest in property in respect of which acknowledgement is given. An
acknowledgement by a person not liable at the time of acknowledgment does not amount to acknowledgement in
law.

(5) Acknowledgement must be in respect of the particular property or rights claimed in the suit or application.
Acknowledgement applies only to suis and applications (other than execution).

(6) Acknowledgement need not be express, it may be by necessary implications.

(7) The acknowledgement is not required to be made to the creditor or the person entitled to the right or the
property. It may be made to any person, even to one who has no connection with the creditor. An acknowledgement
to whomsoever made is a valid acknowledgement, if it be an acknowledgement pointing out with reasonable
certainty to the liability in dispute or the rights out of which that liability arises as a legal consequence.

Duly authorized agent [Explanation (b) to section 18]

(1) An acknowledgement by the guardian, committee or manager of a person under disability, by an agent duly
authorized by such guardian, etc., is within this section.

(2) The manager of a joint Hindu family has the same authority to make an acknowledgement as he has to create
debts on behalf of the joint Hindu family.

(3) An acknowledgement by a legal practitioner will be valid acknowledgement to bind his clients. An attorney is a
duly authorized agent and an admission made by him in a letter to the attorney of the opposite party is a sufficient
acknowledgement.

(4) The Official Assignee is not the agent of the insolvent. Therefore, an acknowledgement made by him does not
save limitation under this section.

(5) An Official Receiver is an officer appointed to administer the estate of an insolvent, under the Provincial
Insolvency Act, 1920. He is not technically an agent of the insolvent.

Sampuran Singh v. Niranjan Kaur (Smt.), 1999

Facts: In this case, the appellant purchased the suit right by 1959 from the original mortgagor, by registered on the
original mortgagee sold his on 11-1960 the dents, who acknowledged the existence of the deed to the respondent
(original oral mortgaged pressed for sum of Rs. 53 in 1893). In 1980, appellants filed the present suit way as against
of redemption of the suit land for possession by respondents. The respondents contended that the suit was time
barred. The appellants contended that since there is 11-1-1960, a fresh limitation on acknowledgment by mortgagee
starts from this date, hence, the suit is within limitation.

Issue:

 Whether the suit for redemption was barred by the time of limitation?
 Whether fresh period of limitation would revive from 11-01-1960 i.e. when the original mortgagee sold his
mortgagee right by a registered deed to the respondents?

Decision: It was held that the Redemption of Mortgages (Punjab) Act has no correlation with the period of limitation
in the case of redemption of mortgages and that even in any case when the period of limitation expired in 1953 and
the suit filed in 1980 is barred by limitation. The right of redemption accrues from the very first date unless restricted
under the mortgage deed. When there is no restriction, the mortgagors have a right to redeem the mortgage from
that very date when the mortgage was executed. In this case, there was no such restriction, hence the right accrued
from the date when oral mortgage was executed i.e. 1893.

The Supreme Court also clearly held that the acknowledgement of liability has to be made prior to the expiry of the
period of limitation and if the limitation has already expired, it would not revive a suit under Section 18 of the
Limitation Act. It is only during the subsistence of the period of limitation, if any document is executed
acknowledging the dues, the limitation would be revived afresh from the said date of acknowledgement.

State of Kerala v. T.M. Chacko, 2000

Supreme Court held that the effect of an acknowledgement is that a fresh period of limitation has to be computed
from the time when the acknowledgement was so signed. Section 18(2) permits giving of oral evidence at the trial of
the suit where the acknowledgement is undated but it prohibits, subject to the provisions of the Evidence Act, 1872
receiving of oral evidence of contents of the acknowledgement. Clause (a) of the Explanation appended to section 18
says that an acknowledgement may be sufficient for purposes of section 18 even though.

(i) it omits to specify the exact nature of the property or right;

(ii) it avers that the time for payment, delivery, performance or enjoyment has not yet come;

(iii) it is accompanied by refusal to pay, deliver, perform or permit to enjoy,

(iv) it is coupled with a claim to set off, or

(v) it is addressed to a person other than a person entitled to the property or right.

Clause (5) of the Explanation defines the word "signed" to mean signed either personally or by an agent duly
authorized in that behalf. It may be noted that for treating a writing signed by the party as an acknowledgement, the
person acknowledging must be conscious of his liability and the commitment should be made towards that liability. It
need not be specific, but, if necessary, facts, which constitute the liability, are admitted an acknowledgement may be
inferred from such an admission.
ADVERSE POSSESSION

The term Adverse Possession has not been defined anywhere in the Limitation Act, 1963. In general parlance adverse
possession is a doctrine under which a person in possession of land owned by someone else may acquire valid title to
it, so long as certain common law requirements are met, and the adverse possessor is in possession for a sufficient
period of time, as defined by a statute of limitations.

Law Governing the "Doctrine of Adverse Possession" under the Limitation Act, 1963

Section 3 of the Act says that the Court will not take cognizance of any suit, which is barred by limitation even if the
issue of limitation is not taken as a defense. Thus, the law of limitation bars remedy but not the right. But section 27
of the Act contains provision regarding adverse possession which is an exception to the general principle of law of
limitation. It reads, "if a person fails to file suit for recovery of possession, within a period of limitation, his right to
recover the possession of that property also extinguishes". If such situation occurs, the ownership of true owner over
the property is extinguished. But at the same time property cannot be left ownerless. If any person possesses any
property, adverse to the interest of true owner and true owner fails to file a suit for recovery of possession within a
period of limitation, then the person in possession becomes owner of property by way of adverse possession.

Article 65 of Schedule I of the Act prescribes a limitation period of 12 years for a suit for possession of immovable
property or any interest therein based on title. It is important to note that the starting point of limitation of 12 years
is counted from the point of time "when the possession of the defendants becomes adverse to the plaintiff". Article
64 governs suits for possession based on the possessory right. Twelve years from the date of disposition is the
starting point of limitation under Article 64. Article 65 as well as Article 64 are to be read with section 27.

Essentials to Prove Adverse Possession

The requirements of law that must be fulfilled by an adverse possessor to obtain title, primarily include:

1. The defendant must be in actual possession, mere entries in the record of the defendant's name are not sufficient.
The possession necessary to find a title by adverse possession under this section is not different in character (though
it may be in duration) from the possession required to prevent limitation under Article 64 or Article 65. So, it is not
necessary for the plaintiff to prove affirmatively physical possession of every part of land. The only thing to be
considered in such a case is whether the acts of possession which have been proved will legitimately show that the
plaintiff had enjoyed such domination over the property in the manner in which such domination is normally
exercised so as to acquire title under this section.

2.. The possession must be adequate, in continuity, in publicity and in extent to show that it is adverse on the owner.
It is not sufficient that some act of ownership have been done. The possession must be open, notorious, actual,
exclusive and adverse.

3. There must be an intention to hold the property. If the defendant believes that he is entitled only to a life estate,
and remains in possession with that belief, his possession is not adverse to that of the plaintiff who shared his belief.

4. Possession cannot be adverse if its commencement can be referred to a lawful title. Thus, the possession of a
manager of a family or a guardian does not become adverse until he has distinctly repudiated his title.

5. The possession does not become adverse to the plaintiff when there was no notice or knowledge, or
circumstances that could have given notice or knowledge to the plaintiff that the defendant’s possession was in
displacement of his rights. But the knowledge may be presumed from an open and notorious act of possession.

6. Possession does not become adverse to the plaintiff until the plaintiff is entitled to immediate possession.

7. Possession of a portion of the land cannot be held to constitute constructive possession of the whole, so as to
enable the possessor to obtain thereby title to the whole by limitation. A wrongdoer gains title only to that portion of
land which is actually held by him.
Adverse Possession as a Shield

In the case of Gurudwara Sahib v. Gram Panchayat Village Sirthala, (2014), the Bench observed that a party could
use the plea of adverse possession only as a defence or shield, when arrayed as a defendant in proceedings initiated
against it. In this case, the plaintiff, Gurudwara Sahib, sought a declaration that he had acquired ownership of a
property by adverse possession. The plaintiff also sought injunctive reliefs against the defendant from being
dispossessed from the property. The trail court on appreciation of evidence, held that the plaintiff was in adverse
possession of the property in question and went on to grant injunctive relief from being dispossessed by the
defendant. The Court held that the plaintiff could not get the title over the suit property by adverse possession since
the plea can "only be used as a shield and not as a sword". This view was further accepted by the High Court.

On appeal to the Supreme Court, it was declared that "even if the plaintiff is found to be in adverse possession, it
cannot seek a declaration to the effect that such adverse possession has matured into ownership".

This way the Court trusted on the trial court and High Court on Punjab and Haryana High Court's decision in
Gurudwara Sahib Sannauli v. State of Punjab. Moreover, these High Courts observations were based on the point
embraced in two of its earlier judgments in Bhim Singh and Ors. v. Zile Singh and State of Haryana v. Mukesh Kumar
and Ors.

The Supreme Court in the decisions following this case repeated its views expressed in Gurudwara Sahib. It was
evidently settled that a party cannot seek any proclamation as to ownership by the way of adverse possession and
only use this plea as a defence in proceedings initiated against it. Basically, it became a strong precedent.

Adverse Possession as a Sword

This doctrine simply states that the possessor who maintains and improves the land has a superior claim to the land
than the owner who neither visit or cares for the land.

The Supreme Court on examining the rightness of the laws laid in Gurudwara Sahib, started looking or considering
the previous decisions of the Privy Council and English Courts. Interestingly, these earlier decisions were in favour of
giving title to the adverse possessor. In short declaration of title, restoration of possession founded on the basis of
adverse possession were held to be maintainable. It came into notice that in Gurudwara Sahib, contrary views were
not placed before the Court for its consideration.

Further, in Bhim Singh' case the Supreme Court held that the language did not in any manner suggest that a suit
cannot be filed by the plaintiff based on the title acquired by adverse possession and observed that the inferential
process of interpretation employed by the High Court was not permissible.

The SC then overruled the decision in Gurudwara Sahib as well as the subsequent judgments of the Supreme Court
which relied on it as it regarded such a decision to be a decision based on compromise. The Court also observed that
the right conferred by virtue of adverse possession "may be a negative right but (is) an absolute one".

The Court further held that a suit "for possession of immovable property or any interest therein based on title"
provided for in Article 65 of the Act would also include title acquired by plaintiff by way of adverse possession, thus,
entitling a plaintiff to maintain a suit on the basis of adverse possession.

The Court held that any person who has perfected title by way of adverse possession can file a suit for restoration of
possession in case of dispossession as the owner cannot be left remediless. To conclude, the Court recognized plea of
adverse possession not just as a shield (by a defendant), but also as a sword (by a plaintiff). It also clarified that it is a
heritable and a transmissible right.

Subsequently, in Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors., (2019), the issue before the Hon'ble Court was
"whether Article 65 of the Limitation Act, 1963 ('the Act) only enables a person to set up a plea of adverse possession
as a shield and such a plea cannot be used as a sword by a plaintiff to protect the possession of the immovable
property or recover it in case of dispossession?" A three-Judge Bench comprising of Hon'ble Justice Arun Mishra,
Justice S. Abdul Nazeer and Justice M.R. Shah has settled the question of law regarding whether a person claiming
the title by virtue of adverse possession can maintain a suit under Article 65 of Limitation Act, 1963 (for short, "the
Act") for declaration of title and for a permanent injunction seeking the protection of his possession thereby
restraining the Defendant from interfering in the possession or for restoration of possession in case of illegal
dispossession by a Defendant whose title has been extinguished by virtue of the Plaintiff remaining in the adverse
possession or in case of dispossession by some other person?

The Court under Para 64 has overruled the case of Gurudwara Sahab v. Gram Panchayat Village Sirthala, 2013 and
under para 59 held as under: “We hold that a person in possession cannot be ousted by another person except by
due procedure of law and once 12 years period of adverse possession is over, even owner's right to eject him is lost
and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may
be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it
can be used as a sword by the Plaintiff as well as a shield by the Defendant within ken of Article 65 of the Act and any
person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of
dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be
maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on
extinguishment of the owner's title, a person cannot be remediless. In case he has been dispossessed by the owner
after having lost the right by adverse possession, he can be evicted by the Plaintiff by taking the plea of adverse
possession. Similarly, any other person who might have dispossessed the Plaintiff having perfected title by way of
adverse possession can also be evicted until and unless such other person has perfected title against such a Plaintiff
by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a Plaintiff who
has perfected the title by adverse possession, can sue and maintain a suit.”