825.

Modules

Transfer of Suits

Jurisdiction of Courts

Pecuniary Jurisdiction (S.3,6)

Suit of Civil Nature (S.9) VIP

Res Judicata (S.11) Read with Sub-judice (S.10) (Stay of Suit)

Bar of Suits (S.12)

Foreign Judgements (S.13,14). Sec. 86 of Evidence Act. Short answer from this.

Essentials of Suit. Short answers.

Cause of Action + Joinder of Causes of Action.

First Hearing focussed on ADR processes. Long Answers present in it.

Ex-Parte Proceeding (absence of party).

 Essentials of Suit

The Essentials of a suit are as follows:

• Parties should always exist for suits to be instituted.

• Cause of Action
• Subject Matter
• Matter in Issue
• Title
• Relief

ESSENTIALS OF SUIT

Parties Subject Matter Title Relief

Cause of Action Matter in Issue

Proforma
Defendent Property Legal Capacity
Non Disclosure Personal Right Right
(OVIIR11) Material Propositions
Joinder of Essential for
Plaintiffs Right is subject Adjudication of Suit
Matter Property is
Non Proving
Joinder of Subject matter
defendant

Necessary
Parties

Proper Party

Misjoinder
of Parties

Parties

In any civil suit there has to be person who is aggrieved and one who has made him/her
aggrieved.

Ex. Plaintiff vs Defendant, Claimant vs Respondent, Applicant vs Respondent, Appellant vs

Respondent.

There can be more than one parties (Plaintiff or Defendant) in a civil suit. In this event we
will have to do joinder of parties.
Joinder of Plaintiff is given under Order I Rule 1 and Joinder of Defendants is given under
Order I Rule 3.

• Joinder of Plaintiffs
All persons may be joined as plaintiffs in one civil suit as per the law given under
Order I Rule 1. When more than one person is affected by the same act or transaction
or series of acts or transaction in a way that they get a right to relief in their favour
then they can be joined as plaintiffs in a civil suit. Also, if they filed separate suits
then a common question of law or fact would have arisen.

• Joinder of Defendants
Under Order I Rule 3 all persons can be joined as defendants if any right to relief
arises out of or in respect of their same act or transaction or series of acts or
transactions against such persons. Also, if separate suits were brought against such
persons then a common question of law or fact would arise.

• Necessary Party
It is the party without whom the suit cannot have been instituted effectively and in
his/her absence the suit will become infructuous, or the decree would become
inexecutable.

• Proper Party
A proper party is a person who is important in a suit but isn’t essential like the
necessary party. Ex. A tenant is a proper party for the sale of property between seller
and buyer.

• Misdescription of Parties
Wrongfully mentioning the name of a person in a suit, it is given under Order 1 Rule
10. The court can take suo-moto action.

• Proforma Defendant and Transposition of Parties

Whenever there are two or more parties who have joint interest in the subject matter
of the suit and one of them is not willing to become a plaintiff the other plaintiff can
make him a co-defendant. However even if he is a co-defendant his conflict of interest
is with the other defendants and not with the plaintiff as with the plaintiff he has a
joint interest. Such a defendant is a necessary party in a suit without whom the suit
would become infructuous and the decree inexecutable.

Such a defendant can always be transposed by the court from the position of
defendant to that of the plaintiff. Under Order I Rule 10 (2).
Cause of Action

Every person may have some civil legal rights, either conferred by the law or acknowledged
by the law. Such rights may be right in rem or right in personam. Whenever an existing legal
right of a person is violated by another person it will be a case where he gets the locus standi
to file a civil suit for the enforcement of that right. The fact that the civil legal right existed in
that person and the fact that the said right was violated by the other person will be called the
Cause of Action of that party/person.

Thus, Cause of Action is:

1. Existence of a legal right.

2. Violation of the said legal right.

Rejection of plaint vs. Dismissal of suit

Subject Matter

Wherever some property is involved in the suit, the property will be considered as subject
matter of the suit but if the suit is with respect to some pure personal rights then since no
property is involved the right itself will become the subject matter.

Matter in Issue

In every suit the parties involved have to prove certain facts which will help the court in
deciding the case. Such facts which go on to prove the rights of the parties will be called
matters in issue. For example, in a suit for possession, ownership will be the title of the party.
The gift deed or succession certificate or the document will be the evidence for the matter in
issue of the party being the done or successor. These matters in issue will be proof of the title.

Ownership

Donee Succession Sale

Succession
Gift Deed Sale Deed
Certificate
Title

In any suit the parties contest the suit in a particular legal capacity which relate to the subject
matter of the suit. This legal capacity of the parties will be called title of the particular party.
For example, if A claims that ‘a house belongs to him’ because he is the owner and B has
dispossessed him from the house. Here the legal capacity in which A claims the house is
ownership the title will be owner.

Relief

Ubi Jus Ibi Remedium (Where there is a right there is a remedy).When a legal right is
violated the substantive law provides various remedies available. When a suit is filed, and the
remedy is claimed it will become a relief.

Section 9: Courts to try all civil suits unless barred.

The basic purpose of Sec. 9 is to declare the jurisdiction of a civil court regarding their
competence to try civil suits. On the one hand it states that any individual with a civil cause
of action has a right to file a civil suit in any civil court and on the other hand it says that if it
is a civil court then it shall have jurisdiction to try all civil suits.

The provision enables courts as well as individuals to bring suits of all civil nature.

Exceptions

However, at the same time the section requires that for such triviality there shall be:

1. A matter in the form of a suit of civil nature.

2. It should be examined that the cognizance of the matter (Of the said suit) shall not be
expressly or impliedly barred by some law.
3. Also, if it is a suit of civil nature and it is not barred the court can only exercise its
power subject to the provisions of CPC.

Abdul Gafur vs State of Uttarakhand (2008 SC)

Every civil court has inherent power to have jurisdiction over the civil disputes and every
individual has an ‘inherent’ right to file a civil suit in a civil court. However, such power and
right has to be exercised subject to section 9.

Rajasthan State Road Transport Corporation vs Balmukund Bairwa (2009 SC)

The essence of Section 9 also lies in the maxim Ubi Jus Ibi Remedium. There has to be an
effective procedure provided for obtainment of the relief from the court and for that purpose
the jurisdictional principles should be clearly stated. According to Sec. 9 the court will
presume that it has jurisdiction in the case, and it is for the party (Defendant) who objects the
jurisdiction to prove the lack of jurisdiction of the court. It is the same court which will
decide upon whether it has jurisdiction or not.

Most Reverend PMA Metropolitan and Ors. vs Moran Mar Marthoma (1995 SC)
Exceptions

1. Suit of Civil Nature

Section 9 uses the words “Suit of civil nature” instead of the words “civil suits”. The
word nature has been used to give an expansive application to the jurisdiction of the
court, there can be cases wherein the suit involves issues which are of a pure social or
pure religious nature as well as some issues which are pure legal issues pertaining to
the violation of some legal right. Here since all the issues are not of pure legal nature
it is not a pure civil suit. Thus, the ambit of sec. 9 had to be increased to include such
suits. A suit will be a suit of civil nature if the material issues to be determined by the
court is pertaining to violation of a legal right even if determination of such legal
rights would depend upon some social or religious questions.

Examine all the Issues

Examine Issues pertaining

to violation of any Civil
Legal Right

If the Examination result If yes

is No then it ends

Issues of Pure Civil

Issues of Pure Civil Suit nature + Social or
religious nature

Issues Pertaining to
violation of Legal Not Dominant
Rights are DOMINANT

Determination
depends on other legal
issues

Determination
depends upon some
socio religious
question
 2. Expressly or Impliedly Barred

There may be a statute which creates a law on a particular subject matter and in the
same law it may create a special court or tribunal and specify expressly that the
disputes pertaining to that particular law would be tried only by that tribunal or court.
This the case of express bar. It bars the jurisdiction of that tribunal or court and
simultaneously bars the jurisdiction of other courts to try suits pertaining to the
special law.

There can be cases where there is no express declaration of the finality clause or
exclusive jurisdiction clause then the court will conduct an examination as to what is
the purpose of that special law and also the purpose of creating the tribunal and from
that it has to be inferred as to whether the legislature intended to create exclusive
jurisdiction or not. If yes then it will be a case of implied bar.

TYPES OF JURISDICTIONS

There are 3 kinds of jurisdictions territorial, subject matter and pecuniary jurisdiction.

1. Pecuniary Jurisdiction

In cases of Pecuniary jurisdiction there has to be a particular money value limit of the
suit which the court can try. The various courts fall in hierarchy of subordination and
every court has been assigned a particular limit of suit valuation up to which it can try
the suits. It is provided under Sec. 3 that district court is subordinate to high court and
civil judges court is subordinate to district court and small causes court is subordinate
to both district court and high court.

Sec. 6 clearly states that a court cannot try a suit of value-more than its pecuniary
limits. It is implicit in Sec. 6 that a court having a higher pecuniary jurisdiction is free
to try a suit of lower valuation, however, Sec. 15 declares that out of the several
courts of jurisdiction in a particular case, the suit shall be instituted in the court of
lowest grade.

2. Subject Matter Jurisdiction

There may be cases where a particular court has been assigned exclusive jurisdiction
with respect to a particular subject matter and jurisdiction of other courts in those
matters is excluded. In such cases if the suit is tried by a court which does not have
the subject matter jurisdiction then it will be said that the court had an inherent lack of
jurisdiction by virtue of Sec. 9.
 By virtue of Sec. 21 (1) and (2) lack of territorial and pecuniary jurisdiction
respectively does not make the decree passed by the court a void or invalid decree and
it can be executed.

3. Territorial Jurisdiction

Sec. 16,17,18 (Immovable Property)

Sec. 19 (Tort, movable property, and other wrongs)
Sec. 20 (Residuary Provision)

The main jurisdictional principle that is to be followed in CPC is that of equity acts in
personam i.e.., whoever seeks equity (Relief) from the other person should follow that
person i.e.., should locate wherever the person is to be found, that is wherever the
defendant actually and voluntarily resides, or carries on business, or personally works
for gain. Here the issue is that the plaintiff has not yet proved his cause of action and
he is simply alleging the wrong done by the defendant. At this stage it is the
defendant’s place where he will have to go and file the suit. Although plaintiff does
not have absolute freedom of choice to file the suit and he has to follow the
jurisdictional principles of equity acts in personam, place of cause of action and place
where the immovable property is situated as the case may be. But when such places
are determined the plaintiff has complete freedom to choose the jurisdiction.

The proviso to Sec. 16 brings in the principle of equity acts in personam. That is,
apart from the place of situation of the property the suit can also be filed at the place
of residence, business or work of the defendant. The requirement of the proviso is:

1. The suit property should be in possession of the defendant or his agent.

2. The decree of the suit will be as such as can be executed purely by personal
obedience of the defendant (Judgement debtor)

If the decree would be such as, that can be performed or executed only by doing
something upon the suit property. For instance, transfer of possession, partitioning the
property, preventing the commission of any wrong against the property etc then it
cannot be a case of personal obedience. On the other hand, if the decree is such as can
be executed without specifically doing specific act pertaining to the property, rather it
can be executed independent of the suit property by taking personal action against the
defendant. For instance, by arresting the judgement debtor, by payment of fine by
judgement debtor etc.

Section 23 (3) judicially overruled under Durgesh Sharma Vs Jayshree 2008 SC.

1. Only the Supreme Court has the power to pass orders of transfer of a suit from
jurisdiction of one High Court to the jurisdiction of another high court.
 2. A High Court’s jurisdiction is limited by the principle of territoriality i.e.,
territorial jurisdiction and therefore a High Court cannot pass an order which is
incidental beyond the territory of the High Court.

3. If the High Court passed the order of transfer under Sec. 23 (3) then such order
will be incidental upon the territory outside the jurisdiction of that High Court
which is not permissible.

4. Such power is already granted to the Supreme Court under Sec. 25. Sec. 23 (3) has
to be read subject to Sec. 25.

Retrying of suit is also called De-Novo trial.

RES JUDICATA

Sec. 11 Res Judicata is based upon the policy of reducing multiplicity of proceeding and also
to promote and conserve the finality of judgements and legal status/rights. Once a judgment
has been passed upon the same issues between same parties then if the judgement was proper
i.e., the judgement was passed after a proper hearing then the rights between the parties once
having been heard and decided shall not allow to be litigated in a court of first instance or of
concurrent jurisdiction again. It is about faith in the finality of judicial decisions and also
certainty of legal status as well as reducing the burden of the courts by reducing the
multiplicity of proceedings.

Res Judicata is a broad principle as based upon the above purposes; Section 11 is the most
explicit application of Res Judicata but otherwise also the principle is applicable in order to
prevent the multiplicity of proceedings. Other examples of Res Judicata are OXXIIR9, OIIR2
Rule on foreign judgement.

Court Competent to Try Such Subsequent Suit/Issue

Section 11, apart from the other essential requirements requires that the former court should
have been competent (Pecuniary and Subject Matter) to try the present suit. Thus, the party
raising an objection of Res judicata should also prove that if the present suit with its present
valuation and context had been filed in the former court on the day of institution of the
former suit then the former court on that date would have been competent to try the present
suit. The section nowhere requires explicitly that the former court should have had the
jurisdiction to try the former suit and the present court would have the jurisdiction to try the
present suit.
Same Title

Every individual has some distinct legal status with respect to either his person or some
property this legal status is acquired by him by some legal process. Ex. Purchase, will,
succession, gift etc. Every distinct legal status will give rise to a particular set of legal rights
and the violation of each of these rights will give rise to a distinct cause of action. In order to
prove the cause of action the right has to be proved and in order to prove the right, the title
has to be proved and in order to prove the title the matter in issue has to be proved. Once
cause of action has been proved the relief will be granted.

For instance, A is a purchaser of some property and B has deprived him of that possession
then the cause of action is his legal right to ownership and possession and the violation of that
right. In order to prove the cause of action the title and ownership of A has to be proved and
in order to prove the ownership the matter in issue i.e., the process by which the ownership
has been acquired has to be proved. The purchase has to be proved in A’s case. Once this is
proved it will be said that the cause of action has been proved and once the cause of action is
proved the relief of possession and declaration of ownership shall be granted. Every distinct
title gives right to s distinct cause of action and does not bind a person to club together his
various titles or cause of action. Hence, if the first suit was against the same defendant
pertaining to the same subject matter under one title and second suit is against the same
defendant pertaining to the same subject matter but under a different title then Res Judicata
will not apply.

Title is the legal capacity with respect to a particular subject matter whereas matter in issue is
a process by which the said title has been acquired.

A principle B agent. The terms of the contract were that B will not commit tort while taking
care of the property neither to his own nor to the neighbour, but B did commit a tort. A files a
suit for breach of contract which was dismissed because the contract could not be proved. A
filed another suit under law of tort claiming damages.

Section 11 emphasises upon the additional requirement of the former court to have been
competent to try the present suit. However, there may be anomalies because of this for
instance if the former court had a lesser pecuniary jurisdiction and by the time the present suit
is filed the valuation of suit rises beyond the pecuniary limit of the former court. It is in this
light that explanation VIII was added in Section 11 in 1976.

Sulochna Amma vs Narayan Nair 1994 SC

Rajendra Kumar vs Kalyan 2000 SC

In this judgement it was interpreted that if the lack of competency of the former court is
because of some other reason and not because the former court is a court of limited
jurisdiction then Res judicata will not apply. As per these judgements limited jurisdiction is
interpreted in a way that if the former court does not pecuniary or subject matter jurisdiction
to try the present suit then also Res judicata will apply.

Cause of
Action

Suit 1 Suit 2

Contract Legal Right

Breach Violation

Relief

Suit 1 Suit 2

Damages Damages
(Liquidated) (unliquidated)
Difference between Res Judicata and Estoppel

ESTOPPEL RES JUDICATA

Doctrine of Estoppel is a result of an act of a Res Judicata is a result of a decision of a

party. court.

Estoppel stops misrepresentations. Res Judicata stops multiplicity of suits.

It is a rule of evidence. It is a rule of procedure.

Estoppel creates doctrine of equity. Res Judicata is doctrine of public policy.

It prohibits contradictory statements by It prohibits a person from saying same thing

parties. twice.
It binds only the party making the statement. Res Judicata binds both parties to the
litigation.

Stare Decisis and Res Judicata

STARE DECISIS RES JUDICATA

Operates between strangers also. It applies between parties and privies.

It involves legal principles/interpretation of It involves specific causes of action/facts.

law.
For Stare Decisis once any interpretation of Application of Res Judicata same fact, same
law has been done it will apply as legal title, same parties etc are needed to be
principle in future cases. proved.

Foreign Judgement

Section 13 is a broad manifestation of Res Judicata. As per Sec. 13 any foreign judgement
between the same parties litigating under the same title will be a conclusive proof upon the
same matter in a suit in India. Provided the matter was directly adjudicated by the foreign
court. Direct adjudication here means, the adjudication should have been upon such issues
which were actually raised in the foreign court. In the cases of foreign judgement, the rule of
constructive res judicata will not apply. As per Sec. 13 conclusive proof only of the matter
directly adjudicated will apply in the Indian suits if the same matter was actually raised in the
Indian court.
Section 13 also provides that the matter so adjudicated will be a conclusive proof it means
that the party upon whom the burden of proof lies shall not be required to prove any further
evidence if the certified copy of the foreign judgment is proved in the court. Moreover, the
opposite party will not be allowed to give evidence to disprove that particular fact. However,
the court is not prohibited from conducting the trial as such as even if the foreign judgment is
conclusive the court will take evidence of the foreign judgement itself in the form of a
certified copy. Unlike res judicata Sec. 13 does not bar the competency of the Indian court to
try the suit or issue. It is more like a rule of evidence.

Satya vs Teja 1975 (SC)

Y. Narasimha Rao vs Venkatlakshmi 1991 (SC)