Introduction (External & Applicability)

1) CPC 1908 came into force with effect from 1st January, 1909.
2) CPC 1908 extends to whole of India except Jammu & Kashmir, Nagaland
& Tribal areas.
3) The CPC is enacted to consolidate and to amend the law relating to
procedure of civil courts.
4) CPC is divided into two parts 1 consists of 158 section enacted by
Parliament and Part II consists of schedule which comprises of rules and
orders made by various high courts to simplify the procedure of civil
courts.
5) If there is any conflict between Part I and Part II, in that case Part I shall
prevail over Part II.

Important Terms

1) Cause of Action: -
 In general terms it means reasons of dispute.
 As per CPC 1908, it means every fact or reason which would be
necessary for the plaintiff to prove before the court that his
rights are infringed by the defendant.
2) Decree Holder: -
 It means any person in whose favour a decree or order has been
passed by the court.
 It also includes a person who is not a party to the suit (third
party) [Sec 2(3)].
3) Judgement debtor: -
 It means any person against whom a decree or order has been
passed by the court.
 It does not include deceased judgement debtor and legal
representative of deceased judgement debtor.
4) Decree: -
 It is defined under “Sec 2(2)” of CPC 1908.
 It is a final order of the court (it is a formal expression of an
adjudication).
 It concludes the matter.
 It determines the rights of the parties.
 It is with respect to all or any of the matter in controversy.
 Against decree person can appeal.
 Decree can be either preliminary or final decree.

Preliminary Decree Final Decree

1) In case of preliminary In no further proceedings
decree further are pending and suit is
proceedings are still completely disposed off.
pending before the
suit can be completely
disposed off.
2) It does not depend It is dependant and
 upon the final decree. subordinate to the
preliminary decree.
3) It determines what is It determines the result to
to be done. be achieved with the help
of preliminary decree.

 Note 1: - Appeal can be made against preliminary decree even if

final decree is passed.
 Note 2: - If preliminary decree is kept aside because of certain
issues for example appeal is made against preliminary decree, in
that case, final decree is automatically superseded (i.e cancelled).
 Note 3: - Copy of decree need to be given to both the parties
within 15 days of Judgement.
 Note 4: - Definition of decree does not include cancellation order
and appealable order.
5) Order: - Sec 2(14)
 Any formal expression issued by the court in the form of directions
or instructions which is not a decree is an order of the court.

 Distinguish between Decree and an Order

Decree Order
1) It is defined under Sec It is defined under Sec 2(14).
2(2).
2) It is a final order of the It is a formal expression of the
court. court which is not a decree.
3) It is a conclusive It does not conclude the
determination. matter.
4) It determines rights and It determines directions and
liabilities of the parties. instructions issued by the
court.
5) In a suit, there can be only There can be any number of
one final decree or few orders in a suit.
preliminary decrees.
6) Person affected by the Person affected by an order
decree can appeal to the cannot appeal against order
higher authority unless it except appealable order
is expressly barred by the defined under Sec (104).
court.

6) Appealable Order: - Sec 104

 Generally, no appeal can be made against any order passed by the
court.
 However, in certain exceptional cases which are defined under Sec
104 appeal can be made against order.
 Following are the exceptional cases:-
  When court order the party to pay compensation in respect of any
false claim or court order to pay any unreasonable amount in that
case appeal can be made against such order.
 When court order for arrest or detention in such case where final
order is till pending appeal can be made against such order.
 When court order the party not to do something through an
injunction order without sufficient reasons and grounds, appeal can
be made against such injunction order.
 When court refused to initiate a suit filed under sec 91 (suit relating
to public nuisance or any unlawful activity which affects public at
large and under sec 92 (suit relating to breach of trust, trust created
for charitable or religious purpose) appeal can be made against such
refusal order.
 Any other order which CPC permits.
Note: - No appeal can be made against any order passed in appeal
under this sec 104.

7) Judgement: - Sec 2(9)

 As per CPC 1908 judgement means a statement given by a judge
on the grounds of a decree or order.
 The statement consists of reasons and grounds relating to the
decree passed by the court.
 Judgement must be dated and signed by the preceding officer.
 It must be pronounced within 30 days from the conclusion of
hearing.
 If not pronounced, it can be pronounced in next 30 days.

Decree V/s Judgement

Decree Judgement
1) Defined under Sec 2(2). Defined under Sec 2(9).
2) Decree is what court order It consists of legal grounds and
the parties to do which reasons regarding such decree.
shall conclude the matter.
3) Decree comes into Judgement comes into
existence as soon as the existence as soon as it is
judgement is passed. pronounced by the court after
the conclusion of hearing.
4) When court orders the For example: - dependant
dependant to pay Rs. breached the terms of contract
5,00,000 to the plaintiff it which was enforced on 15th
is a decree which shall January, 2015. Therefore, he is
dispose the suit. liable to compensate to the
plaintiff.

Question: - Explain the Structure of Civil Courts

Structure of Courts: - Sec 3

 Supreme Court

High Court

District Court

OR
Subordinate Court

OR

Lower Grade
Court

OR
Inferior Court

OR
Small cause Court

Note: - For the purpose of CPC 1908, the district court is subordinate to the
high court and every civil court of grade inferior is subordinate to district court and High court.

Defence (Written Statement)

1) The defendant has to file a written statement of his defence within a

period of 30 days from the date of receive service of summon.
2) If he fails to file, the written statement within the prescribed time
period he is permitted to file the same on such other date as may be
specified by the court along with the reasons in writing, however the
time period for filing the written statement should not exceed 90 days.
3) Any document which need to be produced in the court on the date of
hearing, the duplicate copy of such document needs to be attached
along with the written statement.
 4) If not attached, it shall not be considered as an evidence on the date of
hearing unless the court permits.
5) The above rule does not apply to those documents produced for cross
examination of the plaintiff or his witness or to refresh the memory of
plaintiff and his witness.

Appearance and Consequences of non-appearance: -

 If both the parties do not appear, when the suit is called on the date
of hearing, in that case court may pass an order that suit is
dismissed.
 If on the date of hearing plaintiff is absent and defendant is present,
in such a case court may dismiss the suit.
 However, court may not dismiss the suit if dependant, is admitting
the claim of plaintiff, in that case decision shall be passed in the
favour of plaintiff.
 If defendant is absent in spite of service of the summon and plaintiff
is present on the date of hearing, in such case court may proceed
the matter by passing an ex-parte decree.
 Defendant has four remedies available if an ex-parte decree is
passed against him.
1) He may file an appeal against the ex-party decree under sec 96
of CPC (sec 96 deals with first appeal).
2) He may file an application for review of the judgement.
3) He may apply for setting aside the ex-party decree.
4) He can file a suit against ex-parte decree on the grounds that is
obtained by fraud.

Note: - However, suit cannot be filed in case of non-service of summon

because in such a case, court will issue the second summon.

Question: - Explain Jurisdiction of Courts

1) Jurisdiction: -
 It means the authority within which a court has to decide, matters
that are brought before it for adjustication.
 This authority/limit is imposed by statute, constitution or by a
commission established by government.
 If no such limit is imposed or defined, the jurisdiction is said to be
unlimited.
 There are four types of jurisdiction which are as follows.
 Jurisdiction over subject matter: - This type of jurisdiction is imposed
by statute. In this court will entertain only those subject matters
which fall under its jurisdiction.
For eg: - All capital market/investor related matters shall be
entertained by SEBI. Similarly, a small cause court can decide
matters relating to promissory note, or suit for price of work done.
2) Territorial Jurisdiction: -
It is imposed by government and therefore, court cantry (decide)
matters falling within the territorial limits of its jurisdiction.
3) Jurisdiction over person: - It is imposed by the constitution. All
persons of whatever nationality are subject to the jurisdiction of the
civil courts except foreign representatives or foreign diplomat
except with consent of central government.
4) Pecuniary Jurisdiction: - (Sec 6)
It is imposed by statue or by government. As per sec 6, court shall
decide only those suits in which the compensation amount or value
of property does not exceed its pecuniary jurisdiction.
Note: - There is no limit on pecuniary jurisdiction of district court,
high court and supreme court.
5) Jurisdiction is further classified into three categories on the basis
of power
a) Original Jurisdiction: - Court before which a suit is filed for the
first time is having original jurisdiction.
For eg: - In India, all lower grade courts consist of original
jurisdiction.
b) Appellate Jurisdiction: - Court in which only appeal can be filed
against a decree passed by subordinate court.
For eg: - Securities Appellate Tribunal has appellate jurisdiction
against the decision given by SEBI.
c) Original and Appellate Jurisdiction: - A court which entertains
appeal as well as original matters is having both the jurisdiction.
In India, Supreme Court, High Court and District Court have
both the jurisdiction.
Note: - Sec 9 of CPC 1908 states that the court is having
jurisdiction to try (decide) all suits of civil nature except those
suits which are either expressly or impliedly barred.
A suit is expressly barred if Parliament (legislature) specify the
same. An it is impliedly barred when statute provides/ specifies the
same.

Case Study: -

In case of Rex V/s Bolton court held that civil court held that civil
court has jurisdiction to entertain a suit unless it is barred. Every
person has a right to file a suit of civil nature whenever there is an
infringement of civil rights. It was further held that civil courts have
jurisdiction to decide all civil cases and such jurisdiction shall be
determined at the commencement stage and not at the conclusion
of proceedings.

Question: - What is place of filing of suit (Place of suing) Sec 15-20

Nature of Suit Place of filing of suit

1) If dispute is relating to Such matter needs to be filed in
Immovable property (sec such court within whose
16). jurisdiction such property is
 situated.
2) If dispute is relating to Such matter can be filed in any
immovable property and court provided matter need to
such property is situated be filed for 100% value of
in more than one court of property.
jurisdiction
(sec 17).
3) If dispute is relating to Matter need to be filed in such
immovable property and court which is nearest to the
jurisdiction of such property. Parties need to file a
property is uncertain (Sec written application informing to
18). the court that as the
jurisdiction was uncertain &
therefore matter is filed before
such court.
4) In case, matter is relating Matter need to be filed in such
to any damages, injuries court within whose jurisdiction.
suffered by any person or Such wrongful activity/cause of
its movable property (sec action took place or within
19). whose jurisdiction defendant
resides or having place of
business.
5) In case of Breach of Matter need to be filed in such
contract court within whose jurisdictions
cause of action arised i.e.
where the breach was
committed or court within
whose jurisdiction defendant
resides or having place of
business.
6) In case suit is relating to Matter need to be filed in such
corporation court within whose jurisdiction
(body corporate) the registered office or principal
office or subordinate office of
such corporation is situated.
7) Other Cases (Sec 20) Matter can be filed in such
court within whose jurisdiction
cause of action or within whose
jurisdiction defendant resides
or having place of business.
Note: - As per Sec 15 of CPC
1908, every suit shall be filed in
the court of the lowest grade to
try (decide) it.

Questions: - Explain Doctrine of Res-subjudice

Sec 10: - Doctrine of Res-subjudice (stay of suit)

1) Sec 10 provides that no court shall proceed with the trial of any
suit in which the matter in issue (i.e. cause of action) is similar
 and between the same parties, where such suit is pending in the
same or any other court in India.
2) To prevent courts of similar jurisdiction from simultaneously
deciding two parallel suits in respect of same cause of action,
sec 10 is enacted.
3) The purpose of sec 10 is to avoid conflict of decisions given by
two different courts in same cause of action.
4) The institution of second suit is not barred by sec 10. As per sec
10, the trial for subsequent suit cannot be proceeded.
5) However, If the matter is pending before foreign courts, in such
case, such matter can be brought before Indian courts, because
sec 10 is not applicable upon foreign courts.

Following are the essential conditions for sec 10

a) There must be two suits filed at different times

b) The cause of action in the later suit, is similar in the earliest suit.
c) Both the suits should be between the same parties.
d) Earlier suit is still pending in the same court but not before a
foreign court.

Note: - If all the above conditions are fulfilled, the later suit should
be stayed till the disposal of earlier suit and the judgement of earlier
suit shall be used as Res-judicata for the later suits

Question: - Explain Doctrine of Res- Judicata

Sec 11: - Doctrine of Res- Judicata

1) Sec 11 deals with the doctrine of Res- Judicata i.e. bar or

restriction on repetition of cases of the same issue i.e. same
cause of action.
2) The object of sec 11 is that there must be a limit or and to
litigation on the same issues.
3) In simple words as per sec 11, if any matter or case which is
already decided by a court of competent jurisdiction, in that
case such matter between the same parties for the same cause
of action shall not be considered as fresh suit by any other court
at same level or level below.
4) Sec 11 does not prohibit the parties to make an appeal apply for
review or revision.
5) Sec 11 states that once a res (suit) is judicata (adjudicating) it
shall not be adjucated again.
6) The rule of res-subjudice is related to a matter which is pending,
whereas res-judicata relates to a matter which is adjudicated i.e.
decided.
7) Res-subjudice bars the trial of a suit in which the cause of action
is similar to the previous pending suit, whereas rule of res-
judicata bars the trial of the suit, in which cause of action is
 already decided because of previous suit between the same
parties.
8) Following are the essential conditions for sec 11
a) The cause of action in both the suits should be same.
b) Parties to the suit should be same.
c) The court which decided the earlier suit must be competent
to decide the later suit.

Note: - A consent or compromise decree is not a decision by

court. It is an acceptance of something to which the parties had
agreed. The court does not decide anything. The compromised
decree has the seal of the court on the agreement of the
parties. Therefore, principle of res-judicata is not applicable
upon consent or compromised decree. But when the court on
the basis of facts comes to a conclusion that the parties decided
that, the consent decree should have the effect of final decree,
in such case the principle of res-judicata may apply to it.

What is Reference, Review & Revision?

Sec 113: - Reference

As per Sec 113 of CPC 1908, subject to any conditions as may be

prescribed, court at any time before passing a judgement can refer
any matter for opinion to the High court. And High court may make
such order as it deems fit.

Note: - Parties to the suit cannot apply for reference U/S 113.

Sec 114: - Review

As per sec 114, Of CPC it states that any person considering himself
affected by a decree may apply for a review of judgement to the court which passed the decree.

Application for review under section 114, is made under following

cases: -

a) When the applicant discovered some new facts or evidences

which was not produced by him in any previous proceedings.
b) When there is any material error or mistake in any document or
record submitted previously or
c) Any other sufficient reason which court may deem fit.

Sec 115: - Revision

 As per Sec 115, the high court may call for the record of any
case which has been decided by any court, subordinate to
such high court and in which no appeal lies and such
subordinate court. Exercised its authority beyond the
jurisdiction.
 Failed to exercise a jurisdiction so vested.
 Abused the jurisdiction i.e. court exercised jurisdiction
illegally.
Question: - What are the Appeal provisions under CPC, 1908?

1) Right of Appeal is not a natural or Inherent right attached to

litigation. Such a right is given by the statute or by rules under
such statute (The Rangoon Case)
2) There are four kinds of Appeal provided under the CPC, 1908: -
a) Appeal from original decree (original appeal) [Sec 96-99]
b) Second appeal [Sec 100]
c) Appeal from orders [Sec 104]
d) Appeal to Supreme Court [Sec 109-112]

A) Original Appeal/ First Appeal (Appeal from original decrees)

 Appeal against original decree is made in the court,
superior to the court passing the decree. An appeal may
lie against original ex-parte decree. When the decree has
been passed with the consent of parties, no appeal lies.
Similarly, appeal cannot be made in any suit of small
cause where the compensation amount or value of
property does not exceed Rs. 10,000/-.
B) Second Appeal: - [Sec 100]
 As per sec 100 of CPC 1908, an appeal lies to the high
court against every decree passed by subordinate court
and the high court is satisfied that the case involves a
substantial question of law.
 Second Appeal can also be made against ex-parte decree.
C) Appeal to the Supreme Court: -
Under following cases, appeal can be made to the supreme
court.
 Appeal shall be made to the supreme court against any
decree passed by high court while exercising original
jurisdiction.
 Appeal shall be made to the supreme court against any
order/ decision passed on appeal by high court while
exercising appellate jurisdiction.
 When supreme court on its own grants special leave
under sec 112 of CPC to the affected party.
D) Appealable Orders: -
 Appeal against orders Sec (104).

Question: - Write a note on Temporary Injunction

Temporary Injunction [Order XXXIX] (0.39)

1) When plaintiff anticipates that defendant is going to cause any

loss or damage to the property in such case plaintiff can apply to
the court to prevent the defendant from doing any activity
which may affect the plaintiff’s property.
2) The Court may grant temporary injunction to restrict the
defendant from doing any of the following activity.
 a) When defendant threatens or intend to remove or dispose
plaintiff’s property.
b) When defendant is causing any damages oriented to cause
any damages to the property in dispute.
c) When defendant threatens to dispossess the plaintiff or
otherwise cause injury to the plaintiff in relation to the
property in dispute.
3) It would be necessary for the plaintiff to satisfy the court that
substantial and irreparable injury would be suffered by him, if
such temporary injunction till the disposal of the suit is not
granted and such loss or damage or harm cannot be
compensated in monetary terms.
4) All evidences and facts in relation to the property should be
submitted through an affidavit.
5) Provisions of temporary injunction are governed by CPC 1908
under order 39.

Affidavit: -

 An affidavit is a written statement of the dependant

(maker) on oath agreed before any court or magistrate
or any oath commissioner appointed by the court or
before the notary public officer.
 An affidavit can be used in the following cases: -
a) When witness is presented before the court.
b) When court may at any time on its own order the
parties that all the facts related to the case must be
proved by an affidavit.

Joinder and Misjoinder

 When any person joins any pending suit either as a plaintiff

or defendant, such person shall be considered as joinder.
 When any person wrongfully any suit that is the cause of
action is not same, such person shall be called as misjoinder.
 To avoid misjoinder, following factors are essential: -
1) Cause of action should be similar
2) The right to relief must arise out of same activity or
transaction i.e. relief to be provided must be similar.
3) There should be common question of law or fact (i.e.
there should same matter in issue.)

Question: - What is Summary Procedure under Order 37

Summary suit summary procedure (order 37)

1) As per order 37, summary procedure means all those summary

suits which shall be disposed off of with less legal formalities.
2) Summary suits are filed in matters relating to promissory notes,
bills of exchange, dishonour of cheque, breach of law, non-
payment of work performed.
 3) A summary suit is filed by presenting a plain in the court
containing the following specifications.
a) It must represent that the suit is filed under order 37 of CPC
1908.
b) The summon of the suit are to be issued to the defendant
which should be in prescribed form no: 40 along with a copy
of plaint.
4) Defendant is required to appeal within 10 days from the service
of summon. On default of his appearance, it is assumed that he
has admitted the allegations made in the plaint and the plaintiff
gets entitled to a final order granting him to pay a sum of money
within the specified date as prescribed by the court.
5) In case of summary suit, the defendant is not entitled to defend
the suit but defendant can apply to defend the suit and such
leave to defend may be granted unconditionally or upon such
terms as the court deems fit.
6) However, such permission shall not be granted where
a) When the defendant has admitted, the claim of plaintiff and
deposited the same in the court.
b) The court is satisfied with the facts disclosed by the
defendant that he is the guilty party.
7) The limitation period in case of summary suit is equal to 1 year
from the date of default.
 Whereas limitation period in case of ordinary (breach of
contract) is 3 years from the date of default.

Note: - In a summary suit, defendant is not entitled as right

to defend the suit. A summary suit is supposed of be a faster
remedy than an ordinary suit because summary suits are
must easier to establish for the plaintiff and more difficult for
the defendant to defend than ordinary suits.

Question: - Explain suit by or against the mirror

1) Minor is a person who has not completed

18 years 21 years (In case Guardians

appointed by court as a custodian of minor’s property)

2) If minor is plaintiff, suit shall be filed by his next best friend

(parents, guardians) provided, he should be major and of sound
mind.
3) If minor is defendant in such case, court shall appoint
representative who shall assist court in such matter.
4) If minor after attaining majority can dismiss suit but if minor
wishes to continue than he shall discharge his friend from all
obligations.

Question: - Explain suit by or against a corporation?

 Signature or verification of pleading

 In suits by or against a corporation, any pleading may be

signed and verified on behalf of the corporation, by the
secretary or by any director or other principal officer of
the corporation who is able to depose to the facts of the
case. (O.29, R.1).

Service of Summons

Subject to any provision regulating service of process, where the suit

is against a corporation, the summons may be served:

a) On the secretary or any director or other principal officer of the

corporation, or
b) By leaving it or sending it by post addressed to the corporation
at the registered office or if there is no registered office then at
the place where the corporation carries on business. (O.29, R.2)

Power of the Court to require personal attendance

 The court may at any stage of the suit, require the

personal appearance of the secretary or any director, or
other principal officer of the corporation who may be
able to answer material questions relating to the suit.
(O.29, R.3).