The Code of Civil

Procedure: Production,
Impounding & Return of
Documents
By
G. Vaishnav Kumar, Asst. Professor, PLC
Hyderabad.
Introduction
Introduction

● Order 13 – Production, Admission, Impounding, Rejection

and Return of Documents.
● Duty of Plaintiff : produce documents in support of the
case and also the list of documents in his support.
● Summons can be issued : to produce all the documents in
defendant’s possession or upon which he (Plaintiff) relies
his claim.
Production of
Documents: Rule 1
Production of Documents: Rule 1

● Rule 1: Parties or their Pleaders to produce the

documentary evidence on or before the settlement of
issues.
● Object: to ensure a fair trial and obviate the chances for the
parties to adduce forged or manufactured evidence.
● Documents–not in possession / obtained at later stage can
be produced before the court by citing proper reasons
along with receive documents petition (Plaintiff - O.VII Rule
14); Defendant–O.VIII R.1A(3).
Admission of Documents:
Rules 4 to 7
Admission of Documents: Rules 4 to 7

● Rule 4: Endorsement on the documents admitted in

evidence.
● Endorsement Contains:
○ The Number & Title of the suit.
○ The name of person producing the document.
○ The date of production of document.
○ A statement of its having been admitted.
● In case of entries in a register, endorsement on copy of that
particular entries.
Return of Documents:
Rules 7 & 9
Return of Documents: Rules 7 & 9

● Documents not admitted in evidence shall be returned to

the person producing them.
● Rule 9: return of a document to a party producing it after
the disposal of the suit / appeal / even during the pendency
of the suit, if necessary undertaking given by the party to
produce the same.
● Notice given to the opposite side and it is usually
substituted with the certified copy.
Rejection of Documents:
Rules 3 & 6
Rejection of Documents: Rules 3 & 6

● Court at any stage may reject a document as irrelevant or

inadmissible - after recording the reasons.
● Endorsement of rejection to be made on document along
with the particulars.
● After rejection the document shall be returned to the party
producing it.
Impounding of
Documents: Rule 8
Impounding of Documents: Rule 8

● Rule 8: A court can impound a document for sufficient

cause – direct any document to be impounded and kept in
the custody of an officer of the court for such period and
subject to such conditions as it may think fit.
● Usually in cases of: Insufficient stamp duty or Forgery, or
the apprehension that the document may be destroyed or
altered.
The Code of Civil Procedure:
Issues
By
G. Vaishnav Kumar, Asst. Professor, PLC Hyderabad.
Introduction
Introduction

● Issues – contentions in a suit.

● Facts alleged by one party – denied by other party =
Issues.
● Issues are the backbone of a suit.
● Framing of Issues - each side - fully aware of the exact
questions to be tried and facilitates him to produce
evidence relevant to the issues.
Framing of Issues
Framing of Issues

● Framed by the court.

● Issues – material propositions of facts / law – affirmed by
one side and denied by the other.
● Material propositions - which a plaintiff must allege in
order to show a right to sue or a defendant must allege in
order to constitute his defence.
Kinds of Issues
Kinds of Issues

● Three kinds:
○ Issues of Fact.
○ Issues of Law.
○ Mixed issues of law & fact.
● Depends on case by case basis.
Material for framing of Issues
Material for framing of Issues
The court may frame based upon the following:

1. Allegations made on oath by the parties, or by any persons

present on their behalf, or made by the pleaders of such
parties;
2. Allegations made in the pleadings or in answers to
interrogates delivered in the suit;
3. The contents of documents produced by either party.
Framing of Issues by the Court
Framing of Issues by the Court
Duty of the court to:
● Ascertain at the first hearing of the suit,
● After reading the plaint and the written statements, if any, and after such
examination of the parties as may appear necessary,
● The material propositions of fact or law on which the parties are at variance
and
● Thereafter to frame and record the issues on which the decision of the case
depends.
● The court is not required to frame and record issues if the defendant at the
first hearing of the suit makes no defence.
Preliminary Issues
Preliminary Issues
● Issues both of law & fact arise in the same suit, and the Court is of
opinion that the case may be disposed of on an issue of law only, it
may try that issue first if the issue relates to:

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force,
Preliminary Issues
● and for that purpose may, if it thinks fit, postpone the settlement of
the other issues until after that issue has been determined, and may
deal with the suit in accordance with the decision on that issue.
Power to amend and strike out issues
Power to amend and strike out issues
● The Court may at any time before passing a decree amend the
issues or frame additional issues on such terms as it thinks fit, and
all such amendments or additional issues as may be necessary for
determining the matters in controversy between the parties shall
be so made or framed.
● The Court may also, at any time before passing a decree, strike out
any issues that appear to it to be wrongly framed or introduced.
(O. 14, R. 5).
The Code of Civil Procedure: Appearance
& Non Appearance of Parties

By
G. Vaishnav Kumar, Asst. Professor, PLC Hyderabad
Introduction
Introduction
❖ Principle: No proceeding in a court of law should be
conducted to the detriment of any party in his absence.
❖ Order IX: deals with appearance and consequences of
non appearance of parties.
❖ Also provides a remedy for setting aside an order of
dismissal of the suit & setting aside Ex-Parte decree.
Appearance of Parties
Appearance of Parties
❖ Parties to attend the court in person / by their pleaders on
the date fixed in summons for the defendant to appear.
❖ In cases where plaintiff / defendant – ordered to appear
fails to appear in person / his counsel or show sufficient
cause for non appearance, the court may dismiss the suit (if
plaintiff absent); or set the party ex-parte if he is defendant.
Neither Party Appears
Neither Party Appears
❖ Both plaintiff and defendant does not appear, the court may
dismiss it.(Rule3)
❖ Dismissal under Rule 2 & 3 – does not bar fresh suit in respect
of same cause of action.
❖ Plaintiff – may file petition for setting aside the order of
dismissal.
❖ Court satisfied – if sufficient cause present – shall pass order
setting aside dismissal – shall fix a day for proceeding with the
suit.
Where only Plaintiff appears
Where only Plaintiff appears
❖ If summons duly served – defendant does not appear – they
may proceed ex-parte against the defendant and may pass a
decree in favour of the plaintiff–if plaintiff proves his case.
❖ Provision – applies to only first hearing – does not apply to
subsequent hearings.
Where only Defendant Appears
Where only Defendant Appears
❖ Defendant appears – Plaintiff absent – defendant doesnʼt
admit the plaintiffʼs claim, wholly or partly, - court shall pass
order dismissing the suit.
❖ If defendant admits – wholly / partly – the court will pass a
decree against the defendant upon such admission & dismiss
the suit for the rest of the claim.
❖ Rule 9 : Precludes the plaintiff from filing a fresh suit on the
same cause of action. He may apply for setting aside the order
of dismissal.
Where Summons is not served
Where Summons is not served
❖ Audi Alteram Partem.
❖ Suit may be dismissed where summons is not served – plaintiffʼs failure
to pay costs for service of summons to defendant / present copies of
the plaint.
❖ If defendant appears – despite failure of plaintiff to pay costs – then the
court shall proceed.
❖ Plaintiff – apply for setting aside order for dismissal / file fresh suit on
same cause of action.
❖ Dismissal of suit where plaintiff after summons returned unserved, fails
for one month to apply for fresh summons.
The Code of Civil
Procedure: Ex
Parte Decree
By
G. Vaishnav Kumar, Asst. Professor, PLC
Hyderabad.
Meaning
Meaning

★ Decree – passed in the absence of the

defendant.
★ Such decree is perfectly valid – until Annulled on
legal and valid grounds.
★ It is proper, lawful, operative and enforceable
like contested decree and has all the force of
valid decree.
Remedies against
Ex-Parte Decree
Remedies against Ex-Parte Decree

★ Following Remedies available:

1. Apply for setting aside: Order 9 Rule 13;
2. Appeal against such decree: S.96(2) or Revision
under S.115 – where no appeal lies;
3. To apply for review: Order 47 Rule 1;
4. To file a suit on the ground of fraud.
★ Remedies concurrent and simultaneously.
Setting aside Ex-Parte
Decree
Setting aside Ex-Parte Decree

★ Order 9 Rule 13.

★ Who may apply – defendant against whom decree is
passed; 2 or more – anyone of them can make application.
★ Where – the court which passed decree. If decree
confirmed, reversed or modified by superior court in
superior court it may be filed.
★ Grounds – Sufficient Cause – if summons were not duly
served or he was prevented by sufficient cause from
appearing.
Setting aside Ex-Parte Decree

★ Burden of Proof – Sufficient cause – lies on the defendant.

★ Sufficient Causes Illustrations:
○ Bonafide mistake as to date of hearing.
○ Late arrival of train / bus.
○ Sickness of counsel.
○ Fraud of opposite party.
○ Death of relative of a party.
○ Strike of advocates.
○ No instruction pursis by a lawyer.
Setting aside Ex-Parte Decree

★ No Sufficient Causes Illustrations:

○ Dilatory tactics.
○ Negligence of party.
○ Counsel busy in other court.
○ Hardship of the defendant.
○ Absence to get undue advantage.
○ Not taking part in proceedings.
Setting aside Ex-Parte Decree

★ Limitation – 30 days from the date of decree.

★ Notice to opposite party – must be given.
★ Imposition of Conditions – Conditions can be imposed such
as costs; conditional order.
★ Res Judicata – once application is dismissed no fresh
application if decided on merits. But the dismissal is due to
default of appearance / change in circumstances – Second
application possible.
Setting aside Ex-Parte Decree

★ Effect – suit is restored – De novo trial and earlier recorded

evidence should not be considered.
★ APPEAL: U/s. 96(2) to the Higher Court.
★ REVISION: Revision lies to the High Court U/s.115.
★ REVIEW: Order 47 Rule1.
The Code of Civil Procedure:
Judgement & Decree
By
G. Vaishnav Kumar, Asst. Professor
PLC, Hyderabad.
Introduction
Introduction
➢ Certain concepts mentioned in Section 2 (Definition Clause) of CPC.
➢ Considerable difference in layman and lawman definition and
meaning of terms.
➢ Not to be confused with the meaning of the terms mentioned under
criminal laws.
Judgement
Judgement
➢ After hearing the court will pronounce judgement.
➢ Order 20 Rules 1 to 5 deal with the judgement. Rules 6B and 20
furnishing of copies of judgement.
➢ Means – Statement given by the judge on the grounds of a decree
or order.
➢ “The final decision of the court intimated to the parties and to the
world at large by formal ‘pronouncement’ or ‘delivery’ in open
court.”
Judgement : Essentials
➢ Judgement should contain:
○ A concise statement of the case.
○ The points for determination.
○ The decisions thereon.
○ The reasons for such decision.
➢ Sketchy orders or cryptic orders usually not appreciated by
appellate / revisional court.
Judgement : Pronouncement (Rule 1)
➢ After hearing – at once or at a future day after giving due notice to
the parties / their pleaders.
➢ Time limit: 30 days from the conclusion of hearing; in exceptional
and extraordinary circumstances 60 days.
➢ After pronouncement copies should be made available to the
parties immediately on payment of charges.
Alteration in Judgement: Rule 3
➢ Once signed cannot be amended or altered except:
➢ To correct clerical or arithmetical mistakes or errors due to
accidental slips or omissions (S. 152).
➢ On review (S. 114).
Decree
Decree: Introduction
➢ Section 2(2) defines the word decree.
➢ Decree – operative portion of the judgement.
Decree: Essentials
➢ Essentials of Decree:
○ There must be an adjudication.
○ Such adjudication must have been done in a suit.
○ It must have determined the rights of the parties with regard to
all or any matters in controversy in the suit.
○ Such determination must be of a conclusive nature.
○ There must be a formal expression of such adjudication.
 Decree: Illustrations
Decrees:
I. Order of abatement of suit.
II. Dismissal of appeal as time barred.
III. Dismissal of suit / appeal for want of evidence or proof.
IV. Rejection of plaint for non payment of court fees.
V. Granting or refusing to grant costs or installment.
VI. Modification of scheme under S.92 of the Code.
VII. Order holding that appeal is not maintainable.
VIII. Order holding that right to sue does not survive.
IX. Order holding that there is no cause of action.
X. Order refusing one of several reliefs.
 Not a Decree: Illustrations
Not Decrees:
I. Dismissal of appeal for default.
II. Appointment of Commissioner to take accounts.
III. Order or remand.
IV. Order granting or refusing interim relief.
V. Return of plaint for presentation to proper court.
VI. Dismissal of suit under Order 23 Rule 1.
VII. Rejection of application for condonation of delay.
VIII. Order holding an application to be maintainable.
IX. Order refusing to set aside sale.
X. Order directing assessment of mesne profits.
Decree: Classes
Code recognizes the following classes of decrees:

I. Preliminary Decree;
II. Final Decree and
III. Partly preliminary and partly final decree.
Preliminary Decree
● An adjudication which decides the rights of the parties with regard
to all or any of the matters in controversy in the suit but does not
completely dispose of the suit.
● Preliminary decree is only a stage in working out the rights of the
parties which are to be finally adjudicated by a final decree. Till
then the suit continues.
Preliminary Decree
Code provides for passing of preliminary decrees in the following suits:
1. Suits for possession and mesne profits.
2. Administration Suits.
3. Suits for Pre-emption.
4. Suits for Dissolution of partnership.
5. Suits for accounts between principal and agent.
6. Suits for partition and separate possession.
7. Suits for foreclosure of a mortgage.
8. Suits for redemption of a mortgage.
Final Decree
A decree may be said to be final in two ways:
1. When within the prescribed period no appeal is filed against the
decree or the matter has been decided by the decree of the
highest court; and
2. When the decree, so far as regards the court passing it, completely
disposes of the suit.
3. A final decree is one which completely disposes of a suit and finally
settles all questions in controversy between parties and nothing
further remains to be decided thereafter.
The Code of Civil Procedure:
Interim Orders
By
G. Vaishnav Kumar,
Asst. Professor, PLC, Hyderabad.
Introduction
Introduction
● Interim – For the time being.
● Orders passed by a court during the pendency of a suit or
proceeding.
● Interlocutory: Not that which decides the cause, but that which
only settles some intervening matter relating to the cause.
Types of Interim Orders
 Payment in Court: Security for Costs:
Order 24 Order 25

Temporary Commissions: Order

Injunctions: Order 39 26

INTERIM
ORDERS
Interlocutory Orders: Arrest before
Order 39 Judgement: Order 38

Attachment before
Receiver: Order 40
Judgement: Order 38
Commissions: Order 26
 Commissions: Order 26
Section 75: Commissions canbe issued for the following purposes:

I. To examine witnesses;
II. To make local investigations;
III. To adjust accounts;
IV. To make partition;
V. To hold investigation;
VI. To conduct sale; or
VII. To perform ministerial act.
Commissions: Order 26
Powers of Commissioner:

I. To summon and procure the attendance of parties and their witnesses and
examine them.
II. Call for and examine the documents.
III. Enter into any land or building mentioned in the order.
IV. Proceed ex parte if the parties do not appear before him in spite of the order
of the court.
Commissions: Order 26
Limitations of Commissions:

● Judicial functions cannot be delegated.

Report of Advocate Commissioner: Evidentiary Value

It will constitute an important piece of evidence and cannot be rejected except on

sufficient grounds.
Temporary Injunctions:
Order 39
Temporary Injunctions: Order 39
● Injunction: order of the court directing a party to do something or
refrain from doing something.
● Prohibiting a party from doing any act (Prohibitory Injunction).
● Ordering a party to carry out certain act (Mandatory Injunction).
Temporary Injunctions: Order 39
● Types of Injunctions:
○ Temporary Injunction (Order 39).
○ Permanent / Perpetual Injunction (Specific Relief Act 1963.)
● Another type:
○ Ad Interim Injunction. (Till the disposal of the application)
○ Interim Injunction. (Till the disposal of the suit).
● Injunction is issued against the parties and not against the third
parties / strangers to the suit.
Temporary Injunctions: Order 39
Grounds for obtaining:

● Property in dispute in a suit – danger of being wasted, damaged,

alienated by a party to the suit or wrongfully sold in execution of a
decree or.
● Where defendant threatens or intends to remove or dispose of his
property with a view to defrauding his creditors, or
Temporary Injunctions: Order 39
Grounds for obtaining:

● Where a defendant threatens to dispossess the plaintiff or

otherwise cause injury to the plaintiff in relation to any property in
dispute in a suit, or
● Where a defendant is about to commit a breach of contract, or
other injury of any kind, or
● Where a court is of the opinion that the interest of justice so
requires.
Temporary Injunctions: Order 39
Principles for granting:

● Whether the plaintiff has a prima facie case.

● Whether the plaintiff would suffer irreparable injury if his prayer is
not granted.
● Whether the balance of convenience is in favour of the plaintiff.
Temporary Injunctions: Order 39
● The above tests are known as Triple Test.
● Injunctions can be granted ex-parte also.
● Breach of Injunction: Civil prison upto 3 months and attachment
for a period of one year.
Receiver: Order 40
Receiver: Order 40
● Receiver is considered to be an officer of the court who helps the
court to protect and preserve the subject matter of suit till the time
the court decides the matter.
● liable to take care of the property just as a prudent man will take
care of his own personal property.
● He should follow the directions of the court or else his property
can be attached by the court.
Receiver: Order 40
● Under order 40 of CPC, The Receiver is an independent and
impartial person who is appointed by the court:
○ to administer/manage,
○ to protect and preserve a disputed property involved in a suit.
Receiver: Order 40
Purpose:

When a party in possession of the disputed property exhausts the

property or causes irreparable damages to it, the whole object of the
suit gets defeated because the subject matter ceases to exist or its
value gets affected.
Receiver: Order 40
Principles for appointment of Receiver:
1. Discretionary Power of the court.
2. Protective relief - object: protect & preserve the disputed property
till the disposal of the suit.
3. No appointment until Prima Facie case in favour of plaintiff.
4. One of the harshest remedies - deprives defendant of his property.
5. Appointment only when there is a possibility of wrong or injury.
6. Conduct of the party who makes the application for appointment
of a receiver to be considered.
Receiver: Order 40
Powers of the Receiver:
1. Collection of rents and profits arising out of the property.
2. Application and disposal of such rents and profits.
3. Execution of documents as the owner himself.
4. To institute and defend the suit.
5. Such powers as the court may deem fit.
Receiver: Order 40
Liabilities of the Receiver:
1. To submit the reports as specified by the court or,
2. To pay the amount due from him as directed by the court or,
3. Causes loss to the property due to gross negligence.
4. Any other duty which court directed him to do,
The Code of Civil Procedure:
Suits by or against the
Government
By.
G. Vaishnav Kumar,
Asst. Professor, PLC, Hyderabad.
Introduction
Introduction

● Government is topmost litigant in the country.

● Ss. 79-82 and Order 27 deal with suits by or against the government.
● Only procedure and machinery prescribed.
● Substantive rights not mentioned.
● Substantive rights must be determined in accordance with the
constitution.
Government Suits: Plaintiff &
Defendant
Government Suits: Plaintiff & Defendant

● Whenever a case is filed against a government or if it is filed by

the government, the plaintiff and the defendant:
○ Whenever the case is instituted by or against the central government, the
Union of India will be represented as the required plaintiff or defendant
respectively.
○ Whenever the suit is filed by or against the state government, the state
government will be required to act as the plaintiff or the defendant.
Statutory Notice: U/s. 80
Statutory Notice: U/s. 80

● Dealt U/s. 80 of CPC.

● If a suit is proposed to be filed against a public officer - two months
prior notice is mandatory.
● Without mandatory notice, the suit is not maintainable- liable to be
rejected.
● Object: To give an opportunity to the Govt. or public officer to
consider the legal position and to settle the claim put forward by
the prospective plaintiff if the same appears to be just and proper.
Statutory Notice: U/s. 80

● Mode of Service: Notice was delivered or left at the office of:

● If case is against the central government, (not related to the railways) -
notice should be delivered to the secretary of the government.
● If case is against the railways - the notice is to be served to the general
manager of that railways.
● If the case is against any of the state governments - the notice is to be
served either to the secretary to that government / the collector of the
district.
Statutory Notice: U/s. 80

● Contents of the Notice:

○ the cause of action,
○ the name, description & place of residence of the plaintiff and
○ the relief which he claims; and
○ the plaint shall contain a statement that such notice has been
so delivered or left.
The Code of Civil Procedure: Suits by
Indigent Persons

By
G. Vaishnav Kumar, Asst. Professor, PLC, Hyderabad.
Introduction
Introduction
❖ Indigent: Poor person; who has no means to pay.
❖ Enables – persons who are too poor to pay court fees and allows them to
institute suits without payment of requisite court fees.
❖ Also known as “Forma Pauperis” or “Pauper Suits”.
❖ Justice should not be denied to a person simply because he is too poor to pay
the court fees.
❖ Dealt under Order 33 of the CPC.
Object
Object
Order 33 was enacted to serve triple purpose:

❖ To Protect bonafide claims of an indigent person.

❖ To safeguard interest of revenue; and
❖ To protect defendant from harassment.
Indigent Person
Indigent Person
❖ Order 33 – “Indigent Person”
➢ If he is not possessed of sufficient means to enable him to pay the fee
prescribed by law for the plaint in such suit; or
➢ Where no such fee is prescribed, when he is not even entitled to property
worth Rs. 1000/-.
❖ Person includes – Juristic Person also.
Application by Indigent Person
Application by Indigent Person
❖ Application to sue as an indigent person should contain the following:
➢ The particulars required in regard to plaints in suits;
➢ A schedule of movable and immovable property belonging to the
applicant with the estimated value thereof; and
➢ Signature and Verification as provided U/o. 6 Rules 14 and 15.
❖ Suit commences as soon as application is presented.
Rejection of Application
Rejection of Application
Application to sue as indigent can be rejected on the following grounds:
1. Application not framed and presented in the prescribed manner.
2. Applicant – not an indigent.
3. Applicant – disposed off his property within two months before the date of
filing application to get permission to sue as indigent.
4. No cause of action.
5. Suit appears to be barred by law.
6. Where any other person has entered into an agreement with the applicant to
finance the costs of litigation.
Indigent Person: Inquiry
Indigent Person: Inquiry
❖ First instance inquiry to be made by Chief Ministerial Officer of the court.
❖ After filing of the application – court may examine the applicant regarding the
merits of the claim and the property of the applicant.
❖ After examining – notice to GP and opposite party to receive the evidence of
the indigency of the applicant.
Indigent Person: When permission
granted
Indigent Person: When permission granted
❖ Application is granted – shall be deemed to be a plaint in the suit and shall
proceed in the ordinary manner – plaintiff will not have to pay court fee or
process fee.
❖ Court may assign a pleader to indigent if he is not represented by a pleader.
❖ If rejected: no subsequent application; but can file regular suit.
Indigent Person: Recovery of
Court Fees & Costs
Indigent Person: Recovery of Court Fees & Costs

❖ Where indigent person succeeds – the court shall calculate the amount of
court fees and courts and recover from the party as ordered by the court.
❖ Where indigent person fails – Plaintiff fails or the suit withdrawn, the court
shall order the plaintiff to pay court fees and costs.
The Code of Civil
Procedure:
Interpleader Suits

By G. Vaishnav Kumar, Asst. Professor, PLC Hyderabad.

Introduction
Interpleader Suits: Section
88, O.35
Interpleader Suits: Section 88, O.35

❏ To interplead – to litigate with each other to settle a point

concerning a third party.
❏ Eg: ‘A’ is in possession of property claimed by ‘B’ and ‘C’
adversely. A does not claim any interest in the property
and is ready to deliver it to the rightful owner. A can
institute an interpleader suit.
Nature & Scope
Nature & Scope

❏ Real dispute is not between a plaintiff and defendant but

between the defendants who interplead against each
other.
❏ Plaintiff is not really interested in the subject matter of
the suit.
❏ Object: to get the claims of rival defendants adjudicated.
Conditions
Conditions
Before institution, the following conditions must be satisfied:

1. There must be some debt, sum or money or movable or

immovable property in dispute;
2. 2 or more persons must be claiming it adversely to one another.
3. The person from whom such debt, money or property is claimed
must not be claiming interest therein other than the charges and
costs and he must be ready and willing to pay or deliver it to the
rightful claimant; and
4. There must be no suit pending wherein the rights of rival
claimants can be properly adjudicated.
Procedure: O.35 R.1 to 4
Procedure: O.35 R.1 to 4

Plaint must also state:

❏ That the plaintiff claims no interest in the subject-matter

in dispute other than the charges and costs;
❏ The claims have been made by the defendants severally;
and
❏ There is no collusion between the plaintiff and any of the
defendants.
The Code of Civil Procedure: Suits Relating
to Public Nuisance & Public Matters
By
G. Vaishnav Kumar, Asst. Professor, PLC,
Hyderabad
Nature & Scope
Nature & Scope
● Section 91 of CPC – filing of a suit in the case of public nuisance or
other wrongful acts affecting the public at large.
● States that – suits can be filed for – declaration, injunction or such
other relief(s) as it may be appropriate.
Public Nuisance: Meaning
Public Nuisance: Meaning
● Nowhere defined in the code.
● An act or omission which causes common injury, danger or
annoyance to the public or to the people in general who dwell /
occupy property in the vicinity or which must necessarily cause
injury, obstruction, danger or annoyance to the persons who may
have occasion to use public rights.
Public Nuisance: Illustrations
● Obstruction of a public highway
● Pollutions of public waterways
● Storage of inflammable materials
● Endangering life, health or public property
● Ringing of bell day and night, etc.
Public Nuisance: Who can file suit
● Any of the following can bring a suit in relation to public nuisance:
○ Advocate General, or
○ Two or more persons with the leave of the court.
○ Any private person if he had sustained special damage.
Public Nuisance: Remedies
Public Nuisance: Remedies
● A person committing a public nuisance may be punished under
the IPC.
● Magistrates may remove public nuisance in certain circumstances
by exercising summary powers.
● A suit can be instituted for declaration, injunction or other
appropriate relief without proof of special damage, and
● A suit may also be filed by a private individual, where he has
suffered special damage.
The Code of Civil Procedure:
Suits by or against Minors &
Lunatics

By
G. Vaishnav Kumar, Asst. Professor, PLC, Hyderabad.
Suits by or against Minors &
Lunatics: Order 32
❖ A decree passed against a minor / lunatic without
appointment of a guardian is a nullity and void.
❖ Every suit by a minor instituted in his name through his
guardian or next friend. – If not then plaint will be taken
off the file.
❖ Suit against minor – court should appoint guardian ad
litem to defend the suit. Continues till – retirement,
removal or death of such guardian.
Qualifications of a Guardian /
Next Friend
❖ Major
❖ Sound mind
❖ Provided interest is not adverse to that of the minor
❖ Who gives consent in writing to act as such.
❖ In absence of a fit person – court may appoint any of its
officers to be such guardian.
Powers & Duties of guardian /
next friend
❖ No guardian of a minor for the suit shall, without the
leave of the court:
➢ Receive any money or other movable property on behalf of a minor
wither by way of compromise before or under a decree / order in
favor of the minor.
➢ Enter into any agreement or compromise on behalf of a minor with
reference to the suit.
Retirement, removal or death of
guardian / Next friend
❖ Retire: Guardian cannot retire without first procuring a
fit person for substituting him.
❖ Removal: Can be removed by the court if
➢ Has adverse interest to that of minor
➢ He is connected with the opposite party – unlikely to protect the
minor.
➢ Does not discharge his duty.
➢ Ceases to stay in India during the pendency of the suit.
➢ There is any other sufficiently justifiable cause.
The Code of Civil Procedure: Appeals
By G. Vaishnav Kumar, Asst. Professor, PLC Hyderabad.
Introduction
Introduction

★ An appeal is a creature of Statute, and the right to appeal is neither an

inherent nor a natural right.
★ It is a statutory right.
○ S.96 – Rt. to appeal from original decrees.
○ S.100 – Rt. to appeal from appellate decrees.
○ S. 104 – Rt. to appeal from orders.
○ S. 109 – Rt. to appeal to SC in certain cases.
 SECTION 109 SECTION 96

Appeal to Supreme Appeal from original

Court decrees

APPEALS UNDER
CPC

SECTION 104 SECTION 100

Appeal from
Appeal from Orders
appellate decrees
Appeal from Original Decrees
Appeal from Original Decrees

★ S. 96 – an appeal lies only from a decree.

★ No appeal lies from a decree passed by the court with the consent of the
parties.
★ An appeal may lie from an original decree which is passed ex-parte.
★ No appeal lies against the decree passed by Small Causes Court where the
subject matter does not exceed Rs. 10000/- except on a question of law.
Appeal from Original Decrees

★ No appeal lies against the award passed by Lok Adalat.

★ III- Party can appeal against the decree, if he is aggrieved by the order or
otherwise prejudicially affected by such decree – with the leave of the
court.
★ Rt. to Appeal can be waived by a party under legal and valid agreement – if
party has accepted the benefits under the decree.
Appeal from Original Decrees

★ Appeal – Continuation of proceedings.

★ Appellate Court - Re-examine questions of fact and law and may even
re-appreciate evidence.
★ In determining the appellate forum – the value of the subject matter of the
suit is material and not the claim in appeal.
Appeal from Original Decrees

★ Memorandum of Appeal – the party to draw a memorandum of appeal,

setting forth the grounds of objection to the decree appealed from.
★ Grounds without any explanation.
★ In Memorandum of Appeal – reference must be made to the judgement,
the issues and the findings thereon.
Appeal from Original Decrees

★ If delay in filing the appeal – petition for condonation of delay is must.

★ Cross appeals can be filed- within one month from the date of receipt of
notice.
★ If the appeal is dismissed as time barred / abated/ not maintainable, the
cross objections cannot be heard on merits –
★ Cross Objections - Contingent and dependent upon the hearing of the
appeal.
 DETERMINE THE
CASE

HEARING
TAKE ADDL. REMAND THE
OF CASE
EVIDENCE
APPEAL

FRAME ISSUES &

REFER FOR TRIAL
Appeal from Original Decrees: Hearing

Hearing of the appeal –

★ Determine the case – if evidence available, it can expand the decree /
narrow down the scope.
○ When appeal decree is passed, the original decree merges into it and the appellate decree
is final and binding.
○ The appeal may confirm, reverse, modify or substitute the original decree.
Appeal from Original Decrees: Hearing

Hearing of the appeal –

★ Remand the case to the court from where the decree was passed- the
court below to under take trial of the suit on the other issues / issues
pointed by appellate court.
○ An order of remand is interlocutory, which does not terminate the proceedings and can be
challenged by the aggrieved party after the final judgement.
Appeal from Original Decrees: Hearing

Hearing of the appeal –

★ Frame issues and refer them for trial to the court from whose the decree
the appeal is preferred, if that court has omitted to frame or try any issue
essential to the right decision of the suit.
Appeal from Original Decrees: Hearing

Hearing of the appeal –

★ Take additional evidence if
○ that evidence was refused to be admitted by the lower court.
○ The appellate court require the document to be produced / witness to be examined to
enable it to pronounce the judgement or for any other substantial cause.
○ The party who wants to produce additional evidence could not produce it earlier despite
exercise of due diligence or it was not within his knowledge before the decree was passed.
Appeal from Appellate Decrees
Appeal from Appellate Decrees

★ Also known As Second Appeals / Special Appeals.

★ Section 100 of The CPC - allows filing of second appeal in the HC, if HC is
satisfied that “the case involves a substantial question of law.”
★ Substantial Question of Law – sine qua non for the exercise of jurisdiction.
Appeal from Appellate Decrees:
Principles
Appeal from Appellate Decrees: Principles

★ A Second Appeal lies to the High Court. (from the decree passed by the subordinate
court).
★ Such an appeal is maintainable only on a substantial question of law.
★ An appeal lies also against an ex parte decree.
★ No Second appeal on the question of fact, question of law, or mixed question of fact
and law.
★ No Second Appeal lies in money decree, where the amount does not exceed Rs.
25,000/-.
★ The Memorandum of appeal must state substantial question of law.
★ The HC should formulate a substantial question of law while admitting appeal.
Appeal from Appellate Decrees: Principles

★ The appeal will be heard only on such question.

★ The HC however has power to hear the appeal on other substantial question of law
not formulated by it at the admission stage by recording reasons.
★ At the hearing the respondent can argue that such question does not involve the
appeal.
★ A substantial question of law does not mean a question of general importance but a
question arising between the parties to the appeal.
★ In certain circumstances, a HC can also decide an issue of fact.
★ Procedure at the hearing will be same as that of the first appeal.
★ No letters patent appeal lies against the decision in the second appeal.
Appeal against Orders
Appeal against Orders

★ Dealt U/s. Ss. 104 to 108 & Order 43.

★ Certain orders are appealable.
★ Other orders not appealable but can be attacked in appeal from final
decree.
★ Order – the formal expression of any decision of a civil court which is not a
decree.
★ Adjudication of a court which does not fall within “decree”, is an order.
Appeal against Orders: Illustrations

★ An order returning a plaint to be presented before proper court. (O.7. R.10).

★ An order rejecting an application to set aside the dismissal of a suit for
default (O.9 R.9).
★ An order rejecting an application to set aside ex parte decree (O.9 R.13).
★ An order of remand.
★ An order granting or refusing to grant interim injunction. (O.39 R. 1 & 2).
★ An order discharging, varying or setting aside injunction. (O.39 R. 4).
Appeal against Orders

★ Limitation period – In High Court -90 days.

★ In other courts – 30 days from the date of order.
★ Forum of Appeal – the same court in which appeal would lie
against final decree.
Appeals to Supreme Court
Appeals to Supreme Court

★ Art. 132, 133 and 134-A of the Constitution and Sections 109 and
112, R/w. Order 45 deal with appeals to Supreme Court.
Appeals to Supreme Court: Conditions

★ A judgement, decree or final order must have been passed by the

High Court.
★ A substantial question of law of general importance must have
been involved in the case and
★ In the opinion of the High Court, the said question needs to be
decided by the Supreme Court.