Definitions:

Decree: Section 2(2)

Essentials elements of a Decree
The decree is a decision of the court. For any
decision of the court to be a decree, the following
essential elements are required:
There must be an adjudication.
The adjudication should be done in a suit.
It must determine the rights of parties regarding
the matter in dispute.
The determination of the right should be of
conclusive nature.
There must be a formal expression of such
adjudication.
A decree shall be deemed to include
1. Rejection of a plaint(order7rule 11)
2. Determination of any question under Section 144 of the Act.(it in
included in the definition of decree for the purpose of giving
right to appeal.)

The decree might not include

1. Any adjudication from which an appeal lies as an appeal from an
order(sec 104& order 43 rule 1)(like order returning a plaint to
present in proper court)
2. Any order of dismissal for default.
Note : the distinction between a decree and appealable order lies in
the fact that in the decree a second appeal lies in some cases but no
second appeal lies from an appealable order.
Illustration: In a suit between A and B wherein A claims that a
particular property ‘P’ belongs him while B claims that the said
property belongs to him. After hearing all the arguments, the court
will rule in the favor of either A or B. The final decision of the court
regarding the above claim i.e. whether the property belongs to A or
B, is a decree.
Adjudication
For a decision of the court to a decree, there must be an
adjudication. The matter in dispute should be judicially
determined. As held in the case of Madan Naik v.
Hansubala Devi, if the matter is not judicially determined
then, it is not a decree.
So, if the decision is of administrative nature then it can
not be considered as a decree. Also, any order for
dismissal of suit due to default in the appearance of
parties or order for dismissal of an appeal cannot be
considered as a decree.
As held in the Deep Chand v. Land Acquisition Officer, the
adjudication should be made by the officer of the Court
and if it is not passed by an officer of the court then it is
not a decree.
Suit
For any decision to be considered as a decree,
the adjudication must have been done in suit.
The term “suit” for this context can be
understood as “any civil procedure which has
been instituted by the presentation of a plaint”.
The decree can only be in a civil suit. If there is
no civil suit, there can be no decree.
There are several specific provisions which
enable certain applications to be treated as
suits such as proceedings under the Hindu
Marriage Act, the Indian Succession Act etc.
and the decisions therein are to be considered
as a decree.
Rights in controversy
The rights of parties which are in controversy must
be determined by a formal adjudication. The rights
determined under this circumstance are substantial
rights and not procedural rights. The parties to the
rights in controversy should be the plaintiffs and
defendants and, if an order is passed upon the
application made by a third party who is a stranger
to suit then it is not a decree.
The matter in controversy should be the subject
matter of the suit regarding which the relief is
sought. Any question regarding the status and
characters of party suing, the jurisdiction of the
court, maintainability of suit or any other
preliminary matter is covered under this.
Conclusive determination
The determination of rights in controversy in an
adjudication should be conclusive in nature. As
held in the case of Narayan Chandra v. Pratirodh
Sahini, the determination should be final and
conclusive regarding the court which passes
it. That’s why an interlocutory order which does
not finally determine the rights of parties is not
considered as a decree.
The main point to be kept in mind is that
whether the decision made is final and
conclusive in essence as well as substance. If it
is so, then the decision will be considered as a
decree, else not.
Formal Expression
The adjudication should be expressed formally
and such formal expression should be given in
the manner prescribed by law. The decree
should be drawn separately and it should follow
the judgement. No appeal lies the judgement if
the decree is not formally drawn upon the
judgement.
Decisions considered as a decree
The decisions held to be decree are as follows:
•Order of abatement of suit
•Dismissal of appeal as time-barred;
•Dismissal of suit or appeal due to the
requirement of evidence or proof;
•Rejection of plant due to non-payment of court
fees;
•Order granting costs and instalments;
•An order refusing costs or instalments;
•An order refusing maintainability of appeal;
•Order denying the survival of right to sue;
•Order stating that there is no cause of action;
•An order refusing to grant one or several reliefs;
Decisions not considered as a decree
The decisions which are not considered as a
decree are as follows:
Dismissal of appeal for default;
Appointment of Commissioner in order to take
accounts;
Order for remand;
Order granting interim relief;
An order refusing the grant of interim relief;
Returning of plaint in order to present it to the
proper court;
Application rejected for condonation of delay;
Order holding an application to be maintainable;
Order of refusal to set aside the sale;
The order issuing directions for the assessment
Types of Decree
The Code of Civil Procedure recognises the following three types of
decrees.
•Preliminary Decree
•Final decree
A partly preliminary and partly final decree
Preliminary Decree
A decree is stated as a preliminary decree when the rights of parties
regarding all or any of the matter in dispute are determined in the
adjudication but it does not dispose of the suit completely. The
preliminary decree is only a prior stage
A preliminary decree is passed by the courts mainly when the court
has to adjudicate upon the rights of the parties and then, it has put the
matter on hold unless the final decree of that suit is passed
As held in the case of Mool Chand v. Director,
Consolidation, a preliminary decree is only a stage to
work out the rights of parties until the matter is finally
decided by the Court and adjudicated by a final decree.
The Supreme Court in the case of Shankar v.
Chandrakant held that the preliminary decree is a decree
in which the rights and liabilities of parties are declared
but the actual result is left to be decided in further
proceedings.
A preliminary decree can be passed by the court in the following
suits as provided by the Code of Civil Procedure, 1908
Order 20 Rule 12: Suit for possession and Mesne profit
When there is a suit related to possession of immovable property or
for rent or mesne profit then in such cases preliminary decree can be
passed.
Order 20 Rule 13: Administration Suits
When a suit is of the nature of administration suit, then a court is
empowered to pass a preliminary decree.
Order 20 Rule 14: Suits of pre-emption
When there is a suit for claiming pre-emption regarding sale or purchase of
a particular property then the court can pass a preliminary decree.
Order 20 Rule 15 : Suit filed for dissolution of a partnership
When there is a suit for dissolution of the partnership or for the partnership
account to be taken, then the court may pass a preliminary decree.
Order 20 Rule 16 : Suits related to accounts between the principal and agent
In a suit related to the pecuniary transaction between the principal and agent
or any other matter, if required, the court may pass a preliminary decree.
Order 20 Rule 18: Suit for partition and separate possession
When the suit is related to partition or for separate possession of share
then the court may pass a preliminary decree.

Order 34 Rule 2: Suits related to the foreclosure of a mortgage

When there is a suit related to the foreclosure of mortgage then under
Rule 2 of Order 34, a court is empowered to pass a preliminary decree.
Order 34 Rule 4: Suits related to the sale of the mortgaged property
In suits related to the sale of the mortgaged property, the court is
empowered under Rule 4 of order 34 to pass a preliminary decree.
Final Decree
The final decree is a decree which disposes of a suit completely and
settles all the matter in dispute between the parties. The final decree
does not leave any matter to be decided further.
It is considered as a final decree in the following ways.
When no appeal is filed against the decree within a prescribed time
period.
When the decree passed by the court disposes of the suit completely.

Can there be more than one final decree?

Ordinarily, in one suit there is one preliminary and one final
decree. In the case of Gulusam Bivi v. Ahamadasa Rowther, the
Madras High Court in the light of Order 20 Rule 12 and
18 stated that the code nowhere contemplates more than one
preliminary or final decree.
In the case of Shankar v. Chandrakant, the Supreme Court finally
settled the conflict of opinion and stated that more than one
final decree can be passed.
Partly preliminary and partly final decree
A decree passed under the Code of Civil Procedure may be partly
preliminary and partly final. This happens some part of the decree is
preliminary decree while the rest is a final decree.
Illustrations
If there is a suit of possession of an immovable property along with
the issue of mesne profit, and the court is obliged.
Passes a decree deciding the possession of the property.
Directs for an enquiry of mesne profit.
The first part deciding the possession of the property is final while
the part regarding the mesne profit is preliminary because it is
executable only when amount due is determined.
Deemed decree:
An adjudication which does not formally fall under the definition of
decree stated under section 2(2) of the Code of Civil Procedure but
due to a legal fiction, they are deemed to be decrees are considered as
deemed decrees.
Rejection of plaint and determination of the issue of restitution of
decree are deemed decree.
Order and Decree
S. No. Decree Order

An order can be passed in a suit

The decree is passed only in a suit
instituted on plaint as well as from a
1. which is commenced by the
proceeding commenced on a petition
presentation of the plaint.
application.

Decree determines the right of An order may or may not finally and
2.
parties in dispute conclusively. conclusively determine such rights.

3. A decree can be preliminary or final. An order cannot be preliminary.

In a suit, there can be only one

decree except for the suits where a A number of orders can be passed in
4.
preliminary and final decree is a suit or proceeding.
passed.

Every decree is appealable unless Only the orders specified in this code
5.
expressly provided. are appealable.

The second appeal lies to the High

There is no provision of the second
6. Court against the first appeal of a
appeal in case of appealable orders,
decree.
Judgement and Decree
S.No. Judgement Decree
Judgement is the statement For decree, a statement of
1. of the judge on the ground the ground is not required to
of a decree or an order. be given by the judge.
The judgement does not
A decree must be a formal
2. require to have a formal
expression.
expression.
The relief granted is
A decree determines the
required to be stated
3 rights in dispute between
preciously in the
the parties.
Judgement.
A judgement is passed in a
A decree is passed after
4. stage prior to passing a
issuing the judgement.
decree.
Judgement is pronounced in
A decree can be passed only
5. civil as well as criminal
in a civil suit.
matters.
(3) "decree-holder" means any person in whose favour a decree has been
passed or an order capable of execution has been made;

[(7-A) "High Court", in relation to the Andaman and Nicobar Islands, means
the High Court in Calcutta.
(8) "Judge" means the presiding officer of a Civil Court;

(9) "Judgment" means the statement given by the Judge on the grounds of a
decree or order; it includes:
•Concise statement of the case
•Points of determination
•Decision
•Reasons of decision

(10) "judgment-debtor" means any person against whom a decree has been
passed or an order capable of execution has been made;

(11) "legal representative" means a person who in law represents the estate
of a deceased person, and where a party sues or is sued in a representative
character the person on whom the estate devolves on the death of the party
so suing or sued;
(12) " mesne profits " of property means those profits which the person in
wrongful possession of such property actually received or might with
ordinary diligence have received therefrom, together with interest on such
profits, but shall not include profits due to improvements made by the
person in wrongful possession;

(13) "movable property" includes growing crops;

(14) "order" means the formal expression of any decision of a Civil Court
which is not a decree;

JURISDICTION

Introduction
The word jurisdiction is not defined under the Code of Civil Procedure. It
has been derived from Latin terms “Juris” and “dicto” which denote “I speak
by the law “Jurisdiction means the authority to decide. It also denotes the
authority vested with a court to administer justice not only in respect to the
subject-matter of the suit but also to the local and pecuniary limits of i its
jurisdiction. When it is said that a court has jurisdiction to try a suit it means
that it is competent to try it.
Jurisdiction implies two things:
d
•jurisdiction over the subject-matter of the suit,
•and a power to make an order.
As per the proviso of section 9 of the code, the court shall have
jurisdiction to try all suits of civil nature excepting suits of which
cognizance is either expressly or impliedly barred. A statute, therefore,
expressly or by necessary implication can bar the jurisdiction of civil
courts in respect of a particular matter.

Scope
Supreme Court in the landmark judgement of Official Trustee v. Sachindra
Nath, h as made the following observation:
“When a court is held to have jurisdiction to decide a particular matter it
must not only have jurisdiction to try the suit brought but must also have
the authority to pass the orders sought for. It is not sufficient that it has
some jurisdiction in relation to the subject-matter of the suit. Its
jurisdiction must include the power to hear and decide the question at
issue, the authority to hear and decide the particular controversy that has
arisen between the parties.”
The power to create or enlarge jurisdiction is legislative in
character, so also the power to confer a right of appeal or to take
away the right of appeal. Parliament alone can do it by law and no
court, whether superior or inferior or both combined, can enlarge
the jurisdiction of a court or divest a person of his rights of revision
and appeal. Similarly, the consent of parties cannot bar a competent
court’s jurisdiction to try the matter.

The agreement between parties to absolutely oust the jurisdiction

of the competent court would be unlawful and void, being against
public policy (ex dolo malo non oritur actio that means no man can
be permitted to take advantage of his own wrong) . But if two or
more courts have jurisdiction to try the suit, it is open to the parties
to select a particular forum and exclude the other forums.
And, therefore, the parties may agree among themselves that the
suit should be brought in one of those courts and not in the other
since there’s no inherent lack of jurisdiction within the court. Such
an agreement would be legal, valid and enforceable.
Kinds of Jurisdiction
Civil and criminal jurisdiction
Civil Jurisdiction means the jurisdiction which is concerned with disputes of
a “civil nature”. While, Criminal jurisdiction, relates to crimes and
punishment to offenders.
Territorial jurisdiction
All the courts and tribunals have fixed local or territorial limits, where they
can’t exercise their jurisdiction beyond that.These limits are fixed by the
Government. Like, the High Court has jurisdiction over the territory within
the State it is situated.
Pecuniary jurisdiction
The Code provides that a court will have jurisdiction only over those suits
the amount or value of the subject-matter of which does not exceed the
pecuniary limits of its jurisdiction. High Courts and District Courts have no
pecuniary limits for jurisdiction, as they have unlimited pecuniary
jurisdiction.
Jurisdiction as to subject-matter
Different courts have been empowered to decide different types of suits.
Certain courts are precluded from entertaining suits. As District Judge or
Civil Judge (Senior Division) only has jurisdiction in respect of testamentary
matters, divorce cases, probate proceedings, insolvency proceedings, etc.
Original and appellate jurisdiction
Original jurisdiction is jurisdiction inherent in, or conferred upon, to a court
of the first instance. In exercise of which, the court of first instants decides
suits, petitions or applications. Appellate jurisdiction is the power or
authority conferred upon a superior court to re-adjudicate by way of
appeal, revision, etc. for causes which have been adjudicated by courts of
original jurisdiction.
Exclusive and concurrent jurisdiction
Exclusive jurisdiction is what confers sole power on one court or tribunal to
try, deal with and decided a case. No other court or authority can render a
judgment or pass an order for such kind of matters. Concurrent jurisdiction
is a jurisdiction which may be exercised by different courts or authorities
between the same parties, at the same time and over the same subject-
matter .It is, therefore, open to a litigant to invoke jurisdiction of any such
court or authority.
Foreign Jurisdiction
Foreign jurisdiction means jurisdiction exercised by a court outside India in
a foreign country. A judgement rendered or decision given by a foreign
court is a “foreign judgement”.
jurisdiction of Civil Courts
Under Section 9 of the Code of Civil Procedure, “a civil court has jurisdiction
to try all suits of civil nature unless they are barred.” Section9 of the Code
reads as under:
The Court shall (subject to the provision herein contained) have jurisdiction
to try all suits of a civil nature excepting suits of which their cognizance is
either expressly or impliedly barred.
Explanation I – A suit in which the right to property or to an office is
contested is a suit of civil nature, notwithstanding that such right may
depend entirely on the decision of the question as to religious rites or
ceremonies.
Explanation II- For the purpose of this section, it is immaterial whether or
not any fees are attached to the office referred to in Explanation I or whether
or not such office is attached to a particular place.

Conditions
“A civil court has jurisdiction to try a suit if the following conditions are
satisfied:
The suit must be of civil nature; and The cognizance of such a suit should
not have been expressly or impliedly barred.
Each word and expression casts an obligation on the court to exercise
jurisdiction for enforcement of the right. The word ‘civil’ according to the
dictionary means, “relating to it is defined as, “relating to providing rights
and remedies sought by civil actions as contrasted with criminal
proceedings”.

Suit expressly barred

A suit can be said to be “expressly barred” when it is barred by any
enactment till the time being in force. The legislators have the authority to
bar the jurisdiction of civil courts with respect to a particular class of suits
of a civil nature, provided that, in doing so, it keeps itself within the field of
legislation conferred on it and does not contravene any provision of the
Constitution.”
Suit impliedly barred
“A suit is said to be impliedly barred when it is barred by general principles
of law. Where a specific remedy is given by a statute, it thereby deprives the
person who insists upon a remedy of any other form than that given by the
statute. Where an Act creates an obligation and enforces its performance in
a specified manner, that performance cannot be enforced in any other”
manner. Similarly, certain suits, though of a civil nature, are barred from
the cognizance of a civil court on the ground of public policy. “The principle
underlying is that a court ought not to countenance matters which are
injurious to and against the public welfare.”
Proceedings under SARFAESI Act, 2002
The Civil Court’s jurisdiction to entertain any suit or proceeding in respect
of any matter under SARFAESI Act, 2002 is totally barred as per Section 34
of the act, which confers the jurisdiction on Debt Recovery Tribunal or the
Appellate Tribunal.

Suits not termed as Civil Suit

The following are some of the instances which cannot be termed as suits of
civil nature:
•Suits related to Right of Privacy;
•Suit where the principal question is relating to caste;
•Suits relating purely to religious rites or ceremonies;
•Suits for mere establishing dignity or honour;
•Matters to be determined by special Tribunal or under the authority of an
act of legislature are expressly barred;
•A tenant who is dispossessed otherwise than in due course of law.
The cognizance of a suit is impliedly barred whether by general principles of
law or on grounds of public policy. Where a right, not pre-existing in
common law, is created by a statute which itself provided machinery for
enforcement of that right and finality of such statutory provision is intended
then, even in the absence of an exclusionary provision the civil court’s
jurisdiction is impliedly barred.
If a right pre-existing in common law, is recognized by the statute and a
new statutory remedy for its enforcement provided, without expressly
excluding the civil court’s jurisdiction then both the common law and the
statutory remedies might become concurrent remedies. Thus, the removal
of the civil court’s jurisdiction would depend on whether the right was pre-
existing in common law or not.
Civil Suits Not Barred
The following are some of the instances where civil suits are not barred:
Suit for Damages.
For possessions and mesne profits
Suit for correction of date of birth
Suits under Consumer Protection Law.
Suit for a refund of charges collected by railway.
Suit for declaration for no liability to pay revenue in case of ferries resumed
by government.
•Exercise of equity jurisdiction
•Suits for recovery
•Suit for declaration of title and possession
•Suits under section 20(6) of Minimum Wages Act, 1948
•Recovery of debt due to Bank & Financial Institutions Act.

Important Case Laws

Shri Panch Nagar Parak v. Puru Shottam Das “Supreme Court held that without
any express statutory provisions, the court needs to inspect the reason, rules and
related provisions of the Act so as to decide the bar of the jurisdiction of Civil
Courts.”
In the matter of State of A.P. v. Manjeti Laxmi Kanth Rao the Supreme Court laid
down test for exclusion of the jurisdiction of civil courts where a suit is expressly
barred from any special law or enactment. Firstly, the intention of the legislature is
to be considered which bars the jurisdiction of civil courts either expressly or
impliedly. This implies the Court should initially attempt to decide the exact
purposes behind the bar of jurisdiction of the Civil Courts, and its applicability.
During the trial of the suit, if the court is of the opinion that the rule which bars the
jurisdiction of the civil courts is valid and binding. Whereby, a reasonable
alternative is provided under the same act, the civil court shall not have the
authority to pass an order under the same act..
 Homework for students:
Study the following case-
1. Dhulabhai v. Province of M.P
Burden of proof
It is well-settled that it is for the party who seeks to oust the
jurisdiction of a civil court to establish it. It is equally well-settled
that a statute outsings the jurisdiction of a civil court must be
strictly construed. Where such a contention is raised, it has to be
determined in the light of the words used in the statute, relevant
provisions and the object and purpose of the” enactment.
Exclusion of jurisdiction of civil court
Form the above discussion, it is clear that the jurisdiction of a civil
court is ambiguous except to the extent it is excluded by law or
arising from such law.
In a landmark judgement of Dhulabhai v. State of M.P. , Chief Justice
Hidayatullah summarised thefollowing principles relating to the
exclusion of jurisdiction of civil courts:
When a tribunal is constituted through a special enactment, the
jurisdiction of civil court’ must be held to be excluded if there is
adequate remedy to do what the civil courts would normally do in a
suit. Such a provision, however, does not exclude those cases where
the provisions of a particular Act have not been complied with or
the statutory tribunal has not acted in conformity with fundamental
principles of judicial procedure.
Objection to jurisdiction
As per section 21 objection as to jurisdiction would not be entertained by
the Appellate or Revisional Court unless the same was raised in the trial
court. Even if, such objection is taken at the earliest opportunity the decree
of the trial court will not be set aside or the execution case will not be
struck off unless there has been a failure of justice. With the enactment of
sub-sec. (2) to section 21, it is now provided that even lack of pecuniary
jurisdiction is regarded as technical and can be waived by the party by not
raising objection at the earliest opportunity.
Jurisdiction as Preliminary Issue
The issue regarding jurisdiction can be raised before the filing of a written
statement by filing a petition and the court has to raise a preliminary issue
regarding jurisdiction to decide the issue. However, Gujarat High Court has
held that in view of the amendment of Order 14 Rule 2 of the code, stated it
is not proper to hear the issue regarding jurisdiction as a preliminary issue
and the said issue has to be decided along with other issues during
evidence stage.
Lack of Pecuniary or Territorial Jurisdiction
If the court finds that it has no pecuniary or territorial jurisdiction to try the
suit, the proper order is not a dismissal of the suit but returning the plaint
for presentation in a proper court.
Current Judicial System in India
The Supreme Court, being the highest judicial body in the country
holds the last say in any case filed in any lower court, or directly into
the supreme court, the only exception is the power of pardon, which
lies with the president in criminal cases, who can suspend the
sentence awarded even by the supreme court. Supreme Court is a
court of record and has the power to punish for its contempt (under
Article 129, Constitution of India). Original Jurisdiction (Art. 131) of
the Supreme Court comes into play in the matters of dispute
between either 2 states, or between center or state, or between the
center and more than 2 states, contesting the suit. Supreme Court is
given powers to decide such cases in the first instance only, i.e, they
can directly be filed there. Supreme Court is the Highest Court of
Appeal in the country.

Second inline comes, the High Courts. High Courts are also
constitutional courts established under Part VI, Chapter V, of the
Indian Constitution. High Court stands at the head of State’s Judicial
administration.
High Courts are also courts of Record and have the power to punish
for contempt. With regard to original jurisdiction, powers of the High
court is very narrow and limited, only some cases like Election
Petitions directly come into the high court, otherwise, primarily High
Court is an appellate court. High Courts also have revisional
jurisdiction conferred under the Civil and Criminal Procedure Code.
Administratively, Each High Court has powers of superintendence
over all courts within its jurisdiction. It can call for returns, from
such courts, make and issue general rules and prescribed formats to
regulate their practices and proceedings and determine the manner
and form in which book entries and accounts shall be kept.

Last in line, comes the Subordinate Courts. Chapter VI of Part VI of

the Indian Constitution has made provisions for subordinate courts
related to the judicial system. The structure and Functions of
Subordinate Courts are more or less uniform throughout the
country. These courts deal with all disputes of civil or criminal
nature as per the powers conferred on them. These courts have been
derived principally from two important codes prescribing
procedures, i.e., the Code of Civil Procedure, 1908 and the Code of
District or Additional District Judge, Civil Judge (Senior Division)
and Civil Judge (Junior Division) on the civil side and on criminal
side, Sessions Judge, Additional Sessions Judge, Chief Judicial
Magistrate and Judicial Magistrate, etc., as laid down in the
CrPC.

The Hierarchy of these civil courts vary in different states.

IN Delhi, for instance, there are very broadly following levels of
civil courts.
District Judge & his collateral additional District Judge
Senior Civil Judge
Civil Judge
Small Cause Courts.
Civil cases up to the monetary value of three Lakhs are filed
before the Civil Judges. The Civil cases having a monetary value
between three Lakhs and twenty Lakhs are filed before the
District Judge or additional district Judge. The Civil cases having
a monetary value above twenty Lakhs are filed directly in the
High Court.
The Small Cause Courts are established to adjudicate upon small
cause matters such as guardianship and custody matters which can be
adjudicated in a summary trial that is, without a protracted and
extensive civil trial.

Such as courts made under State Lokayukta Acts, Special Courts

under Essential Commodities and Narcotic Drugs and Psychotropic
Substances Act (EC & NDPS Act), also special tribunals dealing
with the dispute of tax, Labour, Copyright cases. Also, at remote
levels, panchayat courts are constituted, and they compose a system
of alternative dispute resolution. They were recognized through the
Madras Village Court Act of 1935, in various provinces.
 Doctrine of Res Sub Judice
Section 10 deals with Doctrine of Res Sub-Judice. ‘Res’ means
matter or litigation and Sub-Judice means pending (under
judgment). Conjoining the two, it implies that the rule of Res Sub-
Judice relates to a matter which is pending judicial enquiry. In other
words, this rule applies where a matter is already pending before a
competent court for the purpose of adjudication Section 10 of CPC
deals with the stay of civil suits.
Stay of Suit
No Court shall proceed with the trial of any suit in which the matter
in issue is also directly and substantially in issue in a previously
instituted suit between the same parties, or between parties under
whom they or any of them claim litigating under the same title
where such suit is pending in the same or any other Court in India
having jurisdiction to grant the relief claimed, or in any Court
beyond the limits of India established or continued by the Central
Government and having like jurisdiction, or before the Supreme
Court. The ingredients of Section 10 are as follows:-
1. Court shall not proceed with the trial of any suit:- It is such
court where subsequent litigation has been instituted and not the
court which has taken the adjudication for previous litigation.
Technically speaking, section 10 applies to those litigations which
come within the ambit of section 9 read with section 26(2) of the
Code. The term ‘trial’ in this sense implies to all the proceedings of
a civil suit. So, the subsequent litigation needs to be stayed
notwithstanding the stage at which it is.
Matter directly and substantially in issue:- It means the rights
litigated between the parties i.e. the facts on which the right is
claimed and the law applicable to the determination of that issue.
The words “matter in issue” used in Section 10 do not mean that
entire subject-matter of the subsequent suit and the previous suit
must be the same. These words mean all disputed material
questions in the subsequent suit which are directly and substantially
in question in the previous suit.
‘Matter in issue’ with respect to the Evidence Act, 1872 is of two
types:-
Matter directly and substantially in issue:-‘directly’ means
immediately, without intervention. ‘Substantially’ implies essentially
or materially.
3. Same Parties:- The previously instituted suit must
have been a suit between the same parties or between
the parties under whom they or any of them is claiming.
Party is a person whose name appears on the record at
the time of the decision.
Same title:- It means same capacity. Title refers to the
capacity or interest of a party that is to say whether he
sues or is sued for himself in his own interest or for
himself as representing the interest of another.
5. Previously instituted suit must be pending:- The
previously instituted suit between the parties must be a
pending one: (a) in the same Court in which the
subsequent suit is brought, or (b) in any Court in India,
or (c) in any Court beyond the limits of India established
or constituted by the Central Government, or (d) before
the Supreme Court.
Illstrations
‘A’ an agent of ‘S’ at Jaipur agreed to sell S’s goods in Bangalore. ‘A’
the agent files suit for balance of accounts in Bangalore. ‘S’ sues the
agent ‘A’ for accounts and his negligence in Jaipur; while case is
pending in Bangalore. In this case, Jaipur Court is precluded from
conducting trial and can petition Bangalore Court to direct stay of
proceedings against Jaipur Court.
Nature and Scope:
Section 10 declares that no Court should proceed with the trial of
any suit in which the matter in issue is directly and substantially in
issue in a previously instituted suit between the same parties and
the Court before which the previously instituted suit is pending is
competent to grant the relief sought.
The Rule applies to trial of a suit and not the institution thereof. It
also does not preclude a Court from passing interim orders, such
as, grant of injunction or stay, appointment of receiver. It, however,
applies to appeals and revisions.
Object
The object of the rule contained in Section 10 is to prevent courts of
concurrent jurisdiction from simultaneously entertaining and
adjudicating upon two parallel litigations in respect of the sAame
cause of action, the same subject-matter and the same relief. The
policy of law is to confine a plaintiff to one litigation, thus obviating
the possibility of two contradictory verdicts by one and the same
court in respect of the same relief.

Conditions
1) There must be two suits, one previously instituted and the other
subsequently instituted.
2) The matter in issue in the subsequent suit must be directly and
substantially in issue in the previous suit.
3) Both the suits must be between the same parties or their
representatives.
4) The previously instituted suit must be pending in the same court
in which the subsequent suit is brought or in any other court in
India or in any court established or continued by the central
Government or before the Supreme Court.
5) The Court in which the previous suit is instituted must have
jurisdiction to grant the relief claimed in the subsequent suit.
6) Such parties must be litigating under the same title in both the
suits.
Inherent Power to stay:
Even where the provisions of Section 10 of the code do not strictly
apply, a civil court has inherent power under Section 151 to stay a
suit to achieve the ends of justice. Similarly, a Court has inherent
power to consolidate different suits between the same parties in
which the matter in issue is substantially the same.
Suit pending in foreign Court
Explanation to section 10 provides that there is no bar on the
power of an Indian Court to try a subsequently instituted suit if the
previously instituted suit is pending in a foreign Court.

Gujarat High Court in Sohal Engg Works v. Rustain Jehangir Vakil

Mills, held that Section 10 would apply only if the whole of the
subject-matter in both the suits is identical, and not merely where
only one of many issues in the two suits is identical.
Contravention
A decree passed in contravention of Section 10 is not a nullity, and
therefore, cannot be disregarded in execution proceedings.
Interim orders
An order of stay of a suit does not take away the power of the court
from passing interim orders. So, in a stayed suit, it is open to the
court to make interim orders, such as attachment before
judgement, temporary injunction, the appointment of a receiver,
amendment of a plaint or written statement, etc.
Res Sub-Judice and Lis Pendens
Generally, Res sub-judice means, there must not be two suites
under trial at the same time between the same parties on same
subject matter for the same cause of action in two deferent
compatible courts, the court must in this situation stay the later filed
suit. This above-stated procedure is called Res sub-judice. And, Lis
pendens means, during the pendency of any suit or proceeding in
any court which is not collusive and in which any right to immovable
property is directly and specifically in question, the property cannot
be transferred or otherwise dealt with by any party to the suit or
proceeding so as to affect the rights of any other party thereto
under any decree or order which may be made therein.
Here we can see that Lis pendens prevent the sail of Immovable
property when the suit is under trial and, Res Sub-judice prevents
run multiple suits at the same time with same parties, subject matter
and the same cause of action in different compatible courts.
Res Judicata meaning (Section 11)
Res means “subject matter” and judicata means “adjudged” or decided and
together it means “a matter adjudged”.
In simpler words, the thing has been judged by the court, the issue before a
court has already been decided by another court and between the same
parties. Hence, the court will dismiss the case as it has been decided by
another court. Res judicata applies to both civil and criminal legal systems.
No suit which has been directly or indirectly tried in a former suit can be
tried again.
Res Judicata example
‘A’ sued ‘B’ as he didn’t pay rent. ‘B’ pleaded for the lessening of rent on
the ground as the area of the land was less than the mentioned on the
lease. The Court found that the area was greater than shown in the lease.
The area was excess and the principles of res judicata will not be applied.
Objective of res judicata
The doctrine of res judicata is based on three maxims:
a) Nemo debet bis vexari pro una et eadem causa ( no man should be
punished twice for the same cause)
b) Interest reipublicae ut sit finis litium (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)
Principle of Res Judicata
The principle of res judicata seeks to promote the fair
administration of justice and honesty and to prevent the law from
abuse. The principle of res judicata applies when a litigant attempts
to file a subsequent suit on the same matter, after having received a
judgment in a previous case involving the same parties. In many
jurisdictions, this applies not only to the specific claims made in the
first case but also to claims that could have been made during the
same case.

Pre-requisites for Res Judicata

Prerequisites of res judicata includes:
A judicial decision by proficient court or tribunal,
Final and binding and
Any decision made on the merits
A fair hearing
Earlier decision right or wrong is not relevant.
Nature and Scope of Res Judicata

Res judicata includes two concepts of claim preclusion

and issue preclusion. Issue preclusion is also known as
collateral estoppel. Parties cannot sue each other again
after the final judgment on the basis of merits has
reached in civil litigation. For example, if a plaintiff wins
or loses a case against the defendant in the case say A,
he cannot probably sue the defendant again in case B
based on the same facts and events. Not even in a
different court with the same facts and events. Whereas
in issue preclusion it prohibits the relitigation of issues
of law that have already been determined by the judge
as part of an earlier case.
The principle of res judicata is founded upon the principles of
justice, equity, and good conscience and it applies to various civil
suits and criminal proceedings. The purpose of this principle was
to inculcate finality into litigation.
Failure to Apply
When a court fails to apply Res Judicata and renders a divergent
verdict on the same claim or issue it will apply a “last in time” rule.
It gives effect to the later judgment and it does not matter about
the result that came differently in the second time. This situation is
typically the responsibility of the parties to the suit to bring the
earlier case to the judge’s attention,
Doctrine of Res Judicata
The double jeopardy provision of the Fifth Amendment to the U.S.
Constitution protects people from being put on a second trial after
the case has been judged. So the doctrine of res judicata addresses
this issue and it bars any party to retry a judgment once it has been
decided.
Section 11 of the Civil Procedure Court incorporates the doctrine
of res judicata also known as “ rule of conclusiveness of judgment”.

The doctrine of res judicata has been explained in the case

of Satyadhyan Ghosal v. Deorjin Debi. The judgment of the court
was delivered by Das Gupta, J. An appeal was made by landlords
who attained a decree for ejectment against the tenants who were
Deorajin Debi and her minor son. However, they have not been yet
able to get possession in execution soon after the decree was
made. An application was made by the tenant under Section 28 of
the Calcutta Thika Tenancy Act and alleged that they were the
Thika tenants. This application was resisted by the landlords saying
they were not Thika Tenants within the meaning of the Act.

The tenants moved to the High Court of Calcutta under the Civil
Procedure Code. The court applied the principle of res judicata to
achieve the finality in litigation.
Constructive Res Judicata
The rule of constructive res judicata in Section 11 of the Civil
Procedure Code is an artificial form of res judicata. It provides that
if a plea has been taken by a party in a proceeding between him
and the defendant he will not be permitted to take pleas against
the same party in the following proceeding with reference to the
same matter. Hence this rule is known as the rule of constructive
res judicata which in reality is an aspect of augmentation of the
general principles of res judicata.
In the case of State of Uttar Pradesh v. Nawab Hussain M was a
sub-inspector and was dismissed from the service of D.I.G. he
challenged the order of dismissal by filing a writ petition in the
High Court. He said that he did not get a reasonable opportunity of
being heard before the passing of the order. However, the
argument was negatived and the petition was dismissed. He again
filed a petition on the ground that he was appointed by the I.G.P.
and had no power to dismiss him. The defendant argued that the
suit was barred by constructive res judicata. However, the trial
court, the first appellate court as well as the High Court held that
the suit was not barred by the doctrine of res judicata.
The Supreme Court held that the suit was barred by constructive res
judicata as the plea was within the knowledge of the plaintiff, M and
he could have taken this argument in his earlier suit.
Res Judicata and Estoppel
Estoppel means the principle which prevents a person from
asserting something that is contrary to what is implied by a
previous action. It deals in Section 115 to Section 117 of the Indian
Evidence act. The rule of constructive res judicata is the rule of
estoppel. In some areas the doctrine of res judicata differs from the
doctrine of estoppel –
Estoppel flows from the act of parties whereas res judicata is the
result of the decision of the court.
Estoppel proceeds upon the doctrine of equity, a person has
induced another to alter his position to his disadvantage can not
turn around and take advantage of such alteration. In other words,
res judicata bars multiplicity of suits and estoppel precludes
multiplicity of representation of cases.
Estoppel is a rule of evidence and is enough for the party whereas
res judicata expels the jurisdiction of a court to try a case and
prevents an enquiry.
Res judicata forbidden a person averring the same thing twice in
the litigations and estoppel prevents the person from saying two
opposite things at a time.
According to the principle of res judicata, it presumes the truth of
decision in the former suit while the rule of estoppel precludes the
party ton deny what he or she has once called truth.

Can Res Judicata be waived?

In the case of P.C. Ray and Company Private Limited v. Union of
India it was held that the plea of res judicata may be waived by a
party to a proceeding. If a defendant does not raise the defence of
res judicata then it will be waived. The principle of res judicata
belongs to the procedure and either party can waive the plea of res
judicata. The court can decline the question of res judicata on the
ground that it has not been raised in the proceedings
Res Judicata landmark cases in India

Daryao v. State of Uttar Pradesh

In the historic case of Daryao v. State of Uttar Pradesh, the doctrine of res
judicata is of universal application was established. The Supreme Court of
India placed the doctrine of res judicata on a still broader foundation. In
this case, petitioners filed a writ petition in the High Court of Allahabad
under Article 226 of the Constitution. But the suit was dismissed. Then
they filed independent petitions in the Supreme Court under the writ
jurisdiction of Article 32 of the Constitution.
The defendants raised an objection regarding the petition by asserting
that the prior decision of the High Court would be operated as res judicata
to a petition under Article 32. The Supreme Court dismissed and
disagreed with the petitions.
The court held that the rule of res judicata applies to a petition under
Article 32 of the Constitution. If a petition is filed by the petitioner in the
High Court under Article 226 of the Constitution and it is dismissed on
the basis of merits, it would be operated as res judicata to bar a similar
petition in the Supreme Court under Article 32 of the Constitution.
•Devilal Modi vs. Sales Tax Officer

•Avtar Singh v. Jagjit Singh

Exceptions to res judicata

Cases where Res Judicata does not apply

The principle of res judicata does not apply in the Writ of Habeas Corpus
as far as High Courts are concerned. Article 32 gives power to the
Supreme Court to issue writs and some power is given to High Courts
under Article 226. The Courts need to give proper reasoning while
applying the doctrine of res judicata. There are some exceptions to res
judicata which allow the party to challenge the validity of the original
judgment even outside the appeals. These exceptions are usually known
as collateral attacks and are based on jurisdictional issues. It is not
based on the wisdom of the earlier decision of the court but the
authority to issue it. Res judicata may not be applicable when cases
appear that they need relitigation.
•Installment Supply private limited vs. Union of India

•In cases of income tax or sales tax, the doctrine of res judicata does not
apply. It was discussed in the case of Instalment Supply private limited vs.
Union of India where the Supreme Court held that assessment of each year
is final for that year and it will not govern in the subsequent years. As it
determines the tax only for that particular period.

•Beliram and Brothers v. Chaudhari Mohammed Afzal

In the case of Beliram and Brothers v. Chaudhari Mohammed Afzal, it was
held that a minors suit cannot be brought by the guardian of the minors.
However, it was brought in collaboration with the defendants and the
decree obtained was by fraud within the Indian Evidence Act, 1872 and it
will not operate res judicata.

• Application of res judicata on PIL

As the primary object of res judicata is to bring an end to litigation so there
is no reason not to extend the principle of public interest litigation. But to
understand this concept we have to see Explaination VI, according to this if
anyone files a suit in representative capacity and bonafide for common
interest of public then res judicata shall apply that means bonafide
litigation should be there in the absence of it res judicata shall not apply.
•Not apply on writ of habeas corpus- Lallubhai v. union of India
Fresh petition can be filed on new grounds.

•Dismissal in limine – no res judicata

•Dismissal of SLP- if in limine without speaking order then no res judicata.

•Ex parte decree- res judicata applies.

•Compromise decree- there is a controversial view of several courts but we

can say that RJ not applies on such decree because it is not final heard and
determined but rule of estoppel shall apply.

•Change in circumstance- not apply

Example- petition by husband for divorce was dismissed for want of
evidence, then petition by wife will not barred if she state that she is not
inclined to return to matrimonial home.

•Change in law- will not apply (case most be decided upon the law as it
stands when judgment is pronounced)
•Interim orders- yes
Explanation I .-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.
Explanation II .-For the purposes of this section, the competence of
a Court shall be determined irrespective of any provisions as to a
right of appeal from the decision of such Court.
Explanation III .-The matter above referred to must in the former
suit have been alleged by one party and either denied or admitted,
expressly or impliedly, by the other.
Explanation IV.-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.
Explanation V.-Any relief claimed in the plaint, which is not
expressly granted by the decree, shall, for the purposes of this
section, be deemed to have been refused.
Explanation VI .-Where persons litigate bona fide in respect of a
public right or of a private right claimed in common for themselves
and others, all persons interested in such right shall, for the purposes
of this section, be deemed to claim under the persons so litigating.
[ Explanation VII .-The provisions of this section shall apply to a
proceeding for the execution of a decree and references in this
section to any suit, issue or former suit shall be construed as
references, respectively, to a proceeding for the execution of the
decree, question arising in such proceeding and a former proceeding
for the execution of that decree.
Explanation VIII .-An issue heard and finally decided by a Court of
limited jurisdiction, competent to decide such issue, shall operate
as res judicata in a subsequent suit, notwithstanding that such Court
of limited jurisdiction was not competent to try such subsequent suit
or the suit in which such issue has been subsequently raised.
When foreign judgment not conclusive .-A foreign judgment shall be
conclusive as to any matter thereby directly adjudicated upon between the
same parties or between parties under whom they or any of them claim
litigating under the same title except-
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an
incorrect view of international law or a refusal to recognise the law
of [India] in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed
to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in
India.
14. Presumption as to foreign judgments .-The Court shall presume, upon
the production of any document purporting to be a certified copy of, a
foreign judgment, that such judgment was pronounced by a Court of,
competent jurisdiction, unless the contrary appears on the record; but such
presumption may be displaced by proving want of jurisdiction.
15. Court in which suits to be instituted .-Every suit shall be instituted in
the Court of the lowest grade competent to try it.
16. Suits to be instituted where subject-matter situate .-Subject to the
pecuniary or other limitations prescribed by any law, suits-
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or
charge upon immovable property,
(d) for the determination of any other right to or interest in immovable
property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or
attachment, shall be instituted in the Court within the local limits of whose
jurisdiction the property is situate:
Provided that a suit to obtain relief respecting, or compensation for wrong
to, immovable property held by or on behalf of the defendant may, where
the relief sought can be entirely obtained through his personal obedience,
be instituted either in the Court within the local limits of whose jurisdiction
the property is situate, or in the Court within the local limits of whose
jurisdiction the defendant actually and voluntarily resides, or carries on
business, or personally works for gain.
Suits for immovable property situate within jurisdiction of different
Courts .-Where a suit is to obtain relief respecting, or
compensation for wrong to, immovable property situate within the
jurisdiction of different Courts, the suit may be instituted in any
Court within the local limits of whose jurisdiction any portion of the
property is situate.
18. Place of institution of suit where local limits of jurisdiction of
Courts are uncertain .-(1) Where it is alleged to be uncertain within
the local limits of the jurisdiction of which of two or more Courts
any immovable property is situate, any one of those Courts may, if
satisfied that there is ground for the alleged uncertainty, record a
statement to that effect and thereupon proceed to entertain and
dispose of any suit relating to that property, and its decree in the
suit shall have the same effect as if the property were situate within
the local limits of its jurisdiction:
Provided that the suit is one with respect to which the Court is
competent as regards the nature and value of the suit to exercise
jurisdiction.
(2) Where a statement has not been recorded under sub-section
(1), and an objection is taken before an Appellate or Revisional
Court that a decree or order in a suit relating to such property was
made by a Court not having jurisdiction where the property is
situate, the Appellate or Revisional Court shall not allow the
objection unless in its opinion there was, at the time of the
institution of the suit, no reasonable ground for uncertainty as to
the Court having jurisdiction with respect thereto and there has
been a consequent failure of justice. 19. Suits for compensation
for wrongs to person or movables .-Where a suit is for
compensation for wrong done to the person or to movable
property, if the wrong was done within the local limits of the
jurisdiction of one Court and the defendant resides, or carries on
business, or personally works for gain, within the local limits of the
jurisdiction of another Court, the suit may be instituted at the
option of the plaintiff in either of the said Courts.
20. Other suits to be instituted where defendants reside or cause
of, action arises .-Subject to the limitations aforesaid, every suit
shall be instituted in a Court within the local limits of whose
jurisdiction-
.
(a) the defendant, or each of the defendants where there are more than
one, at the time of the commencement of the suit, actually and voluntarily
resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of
the commencement of the suit, actually and voluntarily resides, or carries
on business, or personally works for gain, provided that in such case
either the leave of the Court is given, or the defendants who do not reside,
or carry on business, or personally work for gain, as aforesaid, acquiesce
in such institution; or
(c) the cause of action, wholly or in part, arises

21. Objections to jurisdiction

21-A. Bar on suit to set aside decree on objection as to place of suing .-

No suit shall lie challenging the validity of a decree passed in a former suit
between the same parties, or between the parties under whom they or any
of them claim, litigating under the same title, on any ground based on an
objection as to the place of suing.
22. Power to transfer suits which may be instituted in more than one
Court .-Where a suit may be instituted in any one of two or more Courts
and is instituted in one of such Courts, any defendant, after notice to the
other parties, may, at the earliest possible opportunity and in all cases
where issues are settled at or before such settlement, apply to have the
suit transferred to another Court, and the Court to which such application
is made, after considering the objections of the other parties (if any), shall
determine in which of the several Courts having jurisdiction the suit shall
proceed.

23. To what Court application lies .-(1) Where the several Courts having
jurisdiction are subordinate to the same Appellate Court, an application
under section 22 shall be made to the Appellate Court.
(2) Where such Courts are subordinate to different Appellate Courts but to
the same High Court, the application shall be made to the said High Court.
(3) Where such Courts are subordinate to different High Courts, the
application shall be made to the High Court within the local limits of whose
jurisdiction the Court in which the suit is brought is situate.
24. General power of transfer and withdrawal .-(1) On the application of
any of the parties and after notice to the parties and after hearing such of
them as desired to be heard, or of its own motion, without such notice,
the High Court or the District Court may, at any stage-
(a) transfer any suit, appeal or other proceeding pending before it for trial
or disposal to any Court subordinate to it and competent to try or dispose
of the same; or
(b) withdraw any suit, appeal or other proceeding pending in any Court
subordinate to it; and
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court subordinate to it
and competent to try or dispose of the same; or
(iii) re-transfer the same for trial or disposal to the Court from which it
was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under
sub-section (1), the Court which [is thereafter to try or dispose of such
suit or proceeding] may, subject to any special directions in the case of an
order of transfer, either retry it or proceed from the point at which it was
transferred or withdrawn.
A suit or proceeding may be transferred under this section from a Court
which has no jurisdiction to try it.]
[25. Power of Supreme Court to transfer suits, etc .-(1) On the application
of a party, and after notice to the parties, and after hearing such of them
as desire to be heard, the Supreme Court may, at any stage, if satisfied
that an order under this section is expedient for the ends of justice, direct
that any suit, appeal or other proceeding be transferred from a High Court
or other Civil Court in one State to a High Court or other Civil Court in any
other State.
(2) Every application under this section shall be made by a motion which
shall be supported by an affidavit.
(3) The Court to which such suit, appeal or other proceeding is transferred
shall, subject to any special directions in the order of transfer, either re-
try it or proceed from the stage at which it was transferred to it.
(4) In dismissing any application under this section, the Supreme Court
may, if it is of opinion that the application was frivolous or vexatious,
order the applicant to pay by way of compensation to any person who has
opposed the application such sum, not exceeding two thousand rupees,
as it considers appropriate in the circumstances of the case.
(5) The law applicable to any suit, appeal or other proceeding transferred
under this section shall be the law which the Court in which the suit,
appeal or other proceeding was originally instituted ought to have applied
to such suit, appeal or proceeding.
Order 1

Introduction – Joinder, Re-joinder and Misjoinder

Order 1 of the Code of Civil Procedure provides for Joinder and
Misjoinder. Whereas Rule 1 deals with joinder of plaintiffs, And Rule
9 deals with Misjoinder and Non-Joinder of parties.
Order 8 Rule 9 deals with the Re-joinder of parties which provides
for a second pleading by the defendant in reply to replication filed
by the plaintiff.

JOINDER:
There is constantly an apprehension while filing a civil suit as if all
the parties of the suit have been taken into consideration for an
account or not. In addition, if any party or parties are missing, can
be taken into consideration and can be added or joined later in a
suit as another issue. provided, Code of Civil Procedure, 1908 have
a remedy to add party or parties to the suit (missing) by the process
of the “JOINDER” of parties and the rest depends upon the discretion
of the court under Order 1 rule 2 and order 1 rule 3 and this has to
be read with the other provisions of the act that orders 2 rule 3 and
rule 4 of the civil procedure code, 1908.
The order I Rule 1 of Code of Civil Procedure, 1908 states that:

“1. Who may be joined as plaintiffs

All persons may be joined in one suit as plaintiffs where
(a) any right to relief in respect of, or arising out of, the same act or
transaction or series of acts or transactions is alleged to exist in such
persons, whether jointly, severally or in the alternative; and
(b) If such persons brought separate suits, any common question of law or
fact would arise.”
NON-JOINDER:
Non-Joinder is an error or omission to join of some person or party or
parties which is an essential party/parries as party/parties to a suit, he
may be plaintiff or defendant who ought to need to be joined in the eyes of
law as a necessary party as the final verdict or order cannot be possible by
the hon’ble court to give any effective decree which has been not
implemented

Non-Joinder of parties basically refers to a situation where the necessary

party are missing which are an essential party without whom the decree
would be difficult to pronounce.
In this contrast, the necessary parties is much needed not only for Court’s
convenience in deciding the case properly but for the plaintiff or
defendant as in addition the court shall only in the presence of these
parties/party only be able to decide or pass any decree effortlessly and
effectively.
Consequences of Non - Joinder of Necessary Parties
The non-presence of a necessary party means that those parties which are
not present in the present suit and from which the relief is claimed are not
present in the suit, because of which the court is not able to pass any
appropriate judgment or decree. If the court found it legally viable and
just, the court may grant relief in favour of the plaintiff by passing a
decree regarding the suit between the parties.

The defendant has to claim a non-joinder of parties at the earliest, in the

written statement. In the case of Laxmishankar Harishankar Bhatt vs.
Yashram Vasta, the Supreme Court was of opinion that “the Court has the
authority to refuse the dismissal of the suit on the mere grounds of non-
joinder of party/parties as to the nonjoinder are the important party to the
suit instituted as the plea of non-joinder found to be in huge
indistinguishable..
The Hon'ble court also upheld a significant principle that is that in any suit
claiming property, until all the claiming parties or co-owner are
party/parties to the suit are present of are parties to the suit, the suit
shall stand unmaintainable.

MISJOINDER:
The non-necessary parties or the misjoinder are parties of the party which
are added mistakenly or irrelevantly added for irrelevant purposes and
therefore there is no relief can be made. The presence of the necessary
party/ parties are vital and important to pass any decree between the
parties. When any party or parties are added mistakenly to the suit under
code of civil procedure, 1908 are terms as misjoinder. And the party
which was added mistakenly to the suit or misjoinder has nothing to do so
with the suit then in that condition the party added mistakenly are known
as misjoinder. In addition, the case where the misjoinder has joined the
suit, he court should not dismiss the suit instead, should or may order any
decree as the order or decree should not bind the misjoinder and the
claim or relief should be for only the necessary party only. As there is no
need or any possibility to dismiss the suit on the grounds of misjoinder of
the party as it does not affect any kind of interest of the parties to the
suit.
Further, in addition to the above, the code of civil procedure deals with
misjoinder under the provision of order 1 rule 3, as however, the necessary
party are important for any decree or judgement pass by the court as the
concept of non-joinder and misjoinder is always dependent upon the
parties of the suit.

Misjoinder of causes of action can be further categorized into three parts

namely:
Misjoinder of plaintiffs and causes of action.
Misjoinder of defendants and causes of action.
Misjoinder of the claim.
CONCLUSION
The non-joinder and misjoinder of the parties are not only fatal to the suit
but also the parties are important for the suit to pass any decree or
judgments. As stated in rule 9 of order 1 of CPC, 1908 which says that no
suit can be defeated of dismissed on the grounds of misjoinder and non-
joinder of the parties in the suit. The court is the one who has the power or
authority to decide on the suit whether the suit is maintainable or not as
non-joinder plays a major role in the passing of any further decree as non-
joinder are the important parties to the suit without whom the proper
decree cannot be passed or difficult to conclude for the hon’ble judge in
the matter of the suit filed with the court. And as the misjoinder are the
parties which are added with unintentionally or are not important to the
suit filled or added mistakenly to the suit hence the presence of the
misjoinder are not necessary and the present does not affect the decree
passed by the hon’ble court.