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CPC Notes year 2021

Civil procedure code (Galgotias University)

Studocu is not sponsored or endorsed by any college or university

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CPC NOTES

UNIT1

Introduction- Definetion and jurisdiction

Introduction

Diff. b/w procedural and substantive law

Procedural Law versus Substantive Law comparison chart

Procedural Law Substantive Law

Definition Deals with and lays down the ways Deals with those areas of law which establish
and means by which substantive the rights and obligations of individuals , what
law can be enforced individuals may or may not do

Powers No independent powers Independent powers to decide the fate of a

case

Application Can be applied in non legal Cannot be applied in non legal contexts
contexts

Regulation By statutory law By Act of Parliament or goverment

implemation

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History of the code

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Important Definitions
Decree

Decree Holder Judge

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Judgement Judgement Debtor

Order Foreign Judgement

Foreign Court

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Legal Representative Mesne Profits

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Public Officer

h. Every officer in the service or pay of the government or remunerated by fees or commission for the
performance of any public duty.

Jurisdiction of the Civil Courts

Section 9 of CPC

Section 9 of the Code of Civil procedure deals with the jurisdiction of civil courts in India. It declares
that the court shall have jurisdiction to try all lawsuits of civil nature accepting suits of which their
cognizance is either expressly or impliedly barred.

Conditions

A Civil court has jurisdiction to decide a suit if two requirements are fulfilled:

1. The suit must be of a civil nature.

2. The cognizance of such a suit should not have been expressly or impliedly barred.

https://www.legalbites.in/jurisdiction-under-code-of-civil-procedure-1908/

Kinds of Jurisdiction

1. Civil and Criminal Jurisdiction 4. Jurisdiction as to Subject-matter

2. Territorial Jurisdiction 5. Original and appellate Jurisdiction

3. Pecuniary Jurisdiction

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6. Exclusive and Current Jurisdiction 7. Foreign Jurisdiction

Bar on suits- suits of civil nature (sec-9)

Bar on the suits discusses the scope of section 9 of CPC by outlining the suits impliedly bared, civil
suits not barred and it also deals with important case laws.

Civil suits are suits between subject and subjects dealing with civil rights. It is a subject matter of the
suit and not the status of the parties to the suit which decides whether the suit is one of civil nature or
not.

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Doctrine of res sub judice and res judicata

(https://www.legalbites.in/res-sub-judice-res-judicata/
Doctrine of res sub judice

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Doctrine of Res judicata

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Foreign judgement

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Place of suits
Suits and Sec 15 Sec16

Sec 17 Sec 18, 19 Sec19

Sec 20

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Jurisdiction and suits

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Transfer of cases

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Unit 2

Institution and Trial of suit

Institution of suits and summons

SUITS (http://www.legalservicesindia.com/article/2212/Institution-of-Suit-and-its-Essentials.html#:~:text=First%2C
%20a%20suit%20under%20the,be%20proved%20by%20an%20affidavit.&text=Third%2C
%20the%20stages%20of%20institution,and%20iii)%20presentation%20of%20plaint. )
‘Suit’: Meaning within the purview of the Civil Procedure Code, 1908:
The term ‘suit’ has not been defined in the Civil Procedure Code, 1908. According to Chamber’s 20th
Century Dictionary (1983), it is a generic term of comprehensive signification referring to any
proceeding by one person or persons against another or others in a court of law wherein the plaintiff
pursues the remedy which the law affords him for the redress of any injury or enforcement of a right,
whether at law or in equity. In the Black’s Law Dictionary (7th Edition) this term is defined as the
proceeding initiated by a party or parties against another in the court of law. According to some other
views, ‘suit’ includes appellate proceeding also; but it does not include an execution proceeding.
Ordinarily, suit under the CPC is a civil proceeding instituted by the presentation of a plaint.

Institution of Suit: the Provisions under the Civil Procedure Code, 1908:
Section 26(1), CPC says that every suit shall be instituted by the presentation of a plaint or in such
other manner as may be prescribed. Sub-section (2) provides that in every plaint, facts shall be proved
by affidavit. The procedural framework relating to the institution of a suit is give below:
i. Preparing the plaint
ii. Choosing the proper place of suing
iii. Presentation of the plaint

Preparation of the Plaint:

‘Plaint’ is not defined in this Code. It may, however, be described as ‘a private memorial tendered to a

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Court in which the person sets forth his cause of action, the exhibition of an action in writing’. Order 7
is related to the format of Plaint. According to Rule 1 the particulars to be contained in a plaint are:

a) the name of the Court in which the suit is brought;

b) the name, description and place of residence of the plaintiff;
c) the name, description and place of residence of the defendant, so far as they can be ascertained;
d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that
effect;
e) the facts constituting the cause of action and when it arose;
f) the facts showing that the Court has jurisdiction;
g) the relief which the plaintiff claims;
h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so
allowed or relinquished; and
i) a statement of value of the subject matter of the suit for the purposes of jurisdiction and of court-
fees, so far as the case admits
Choosing the proper place of suing:
A defect of jurisdiction goes to the root of the matter and strikes at the authority of a court to pass a
decree. A decree passed by the Court in such cases is a coram non judice. So choosing the proper court
is the next which depends on the contents of the pliant. Section 9 of CPC has declared that the courts
shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is
either expressly or impliedly barred. The jurisdiction of a court is decided by the legislature; parties by
the framing of the plaint cannot interfere into the extent of this jurisdiction. They can choose one of
some of the courts having same jurisdiction. In Ananti v. Chhannu,the Court has laid down the correct
law on this point:
The Plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts he will
get his relief from the forum chosen.

Presentation of the Plaint: Commencement of the Suit:

Section 26 and Order 4 contain the provisions relating to the institution of a suit. Rule 1 of Order 4
goes as:
(1) Every suit shall be instituted by presenting a plaint in duplicate to the Court or such officer as it
appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Order VI and VII, so far as they are
applicable.
(3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements
specified in sub-rules (1) and (2).
Section 26 provides that every suit shall be instituted by the presentation of a plaint or in such other
manner as may be prescribed. Order 4 Rule 1 lays down the procedure for institution of suit; but does
not speak of any ‘other manner’ for the purpose. The amendment makes it clear that unless the plaint is
filed in duplicate it will be deemed to be incomplete. Sub-rule (3) has been inserted in order to curtail
unnecessary adjournments for due compliance of the provisions of sub-rules (1) and (2) after the filing
of the plaint.
The plaint may be presented either by the affected person himself, or by his advocate or by his
recognised agent or by any person duly authorised by him. A proceeding which does not commence
with a plaint is not a suit within the meaning of Section 26 and Rule 1 of Order 4.
I. Time and Place of Presentation:
Generally, the presentation of a plaint must be on a working day and during the office hours. However, there is
no rule that such presentation must be made either at a particular place or at a particular time. A judge, therefore,
may accept a plaint at his residence or at any other place even after office hours, though h is not bound to accept

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it. But if not too convenient, the judge must accept the plaint, if it is the last day of limitation. Thereafter, the
particulars of a suit will be entered by the court in a book kept for the said purpose, called the Register of Civil
Suits. After the presentation, the plaint will be scrutinised by the Stamp Reporter. If there are defects, the
plaintiff or his advocate will remove them. Thereafter the suit will be numbered.

II. Registration of Suits:

Rule 2 of Order 4 provides that the Court shall cause the particulars of every suit to be entered in a book to be
kept for the purpose and called the register of civil suits. Such entries shall be numbered in every year according
to the order in which the plaints are admitted.

Essentials of the Institution of Suits:

There are four essentials of a suit:
i. Opposing parties, i.e., parties to the suit;
ii. Subject-matter in dispute;
iii. Cause of action; and
iv. Relief

Parties to suit: Order 1:

In a civil suit, the presence of both the plaintiff, who files the suit, and the defendant, who is sued, is
necessary. In each case there are two categories; first one is the necessary party and the other is proper
party. A necessary party is one whose presence is indispensable to the constitution of the suit, against
whom the relief is sought and without whom no effective order can be passed. A proper party is one in
whose absence an effective order can be passed, but whose presence is necessary for a complete and
final decision on the question involved in the proceeding.

Joinder of parties: Rules 1, 2, 3, 3A:

All persons may be joined in one suit as plaintiffs or defendants as the case may be, 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/ against such persons, whether jointly or severally or in the
alternative; and
b. If such persons brought separate suits, any common question of law or fact would arise (Rules 1, 3).
Example: Where A assaults B, the latter may sue A for tort, as individually affects him. The question of
joinder of parties arises only when an act is done by two or more persons or it affects two or more
persons. Thus, if A assaults B and C, or A and B assaults C or A and B assaults C and D, the question
of joinder of parties arises.
The plaintiff may, at his option, join as parties to the same suit all or any of the persons severally, or
jointly and severally, liable on any one contract, including parties to bills of exchange, hundis and
promissory notes (Rule 6). When the plaintiff is in doubt regarding the joinder of persons from whom
he is entitled to obtain redress, he may join two or more such defendants (Rule 7). It shall not be
necessary that every defendant shall be interested as to all the relief claimed in any suit against him
(Rule 5). As per Rule 12(1), where there are more plaintiffs than one, any one or more of them may be
authorised by any other of them to appear, plead or act for such other in any proceedings; and in like
manner, where there are more defendants than one, any one or more of them may be authorized by any
other of them to appear, plead or act for such other in any proceeding. Sub-rule (2) says, the authority
shall be in writing signed by the party giving it and shall be filed in court.

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(Ans can be acc to marks)

· Misjoinder and non-joinder: Rules 9 and 13:

As per Rule 9 no suit can be defeated by reason of the misjoinder and non-joinder of parties unless such party is a necessary party.
Rule 13 says that all objections regarding the misjoinder and non-joinder of parties shall be taken at the earliest possible opportunity
and, in all cases where issues are settled, at or before such settlement.

· Representative Suits: Rule 8:

i. Meaning: In a suit if there are numerous persons having the same interest in one suit one or more of such persons may, with the
permission of the court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested; such a
suit is called the ‘representative suit’.
ii. Object: To facilitate the decision of questions in which a large number of persons are interested without recourse to the ordinary
procedure.
iii. Conditions: As per Rule 8(1), Where there are numerous persons having the same interest in one suit,—
(a) one or more of such persons may, with the permission of the court, sue or be sued, or may defend such suit, on behalf of, or for
the benefit of, all persons so interested;
(b) the court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the
benefit of, all persons so interested.
iv. Formalities to be followed:
a. In such case, the permission of the Court must be obtained [sub-rule (1)].
b. The plaint must show that the suit is representative in character.
c. The court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff’s expense, give notice of
the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or
any other cause, such service is not reasonably practicable, by public advertisement, as the court in each case may direct [sub-rule
(2)].

d. Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the court to
be made a party to such suit [sub-rule (3)].
e. No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule
(3) of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that
Order, unless the court has given, at the plaintiff’s expenses notice to all persons so interested in the manner specified in sub-rule
(2) [sub-rule (4)].
f. Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the court may
substitute in his place any other person having the same interest in the suit [sub-rule (5)].
g. A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is
instituted, or defended, as the case may be [sub-rule (6)].
h. For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not
necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they
sue or are sued, or defend the suit, as the case may be [Explanation].

· Power of the Court to order separate trials:

Where it appears to the Court that any such joinder may embarrass or delay the trial, the Court may order separate trials or make

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such other order as may be expedient in the interest of justice (Rules 2, 3A).
· Power of the Court to give judgment in case of joinder of parties: Rule 4:
Judgment may be given without any amendment—
(a) for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to;
(b) against such one or more of the defendants as may be found to be liable, according to their respective liabilities.

· Special Powers of the Court: Rule 10, 10A, 11:

i. While trying a suit, the court may, if satisfied that a person or body of persons is interested in any question of law which is directly
and substantially in issue in the suit and that it is necessary in the public interest to allow that person or body of persons to present
his or its opinion that question of law, permit that person or body of persons to present such opinion and to take such part in the
proceedings of the suit as the court may specify (Rule 8A).
ii. The Court may make corrections to the pleadings of both parties if it seems to be wrong before the Court (rule 10).
iii. The court may, in its discretion, request any pleader to address it as to any interest which is likely to be affected by its decision on
any matter in issue in any suit or proceeding if the party having interest which is likely to be so affected is not represented by any
pleader (Rule 10A).
iv. The Court may give the conduct of a suit to such persons as it deems proper (Rule 11).

Subject-matter in dispute:
‘Subject-matter’ means the bundle of facts which have to be proved in order to entitle the plaintiff to
the relief claimed by him. This term includes the course of action. According to sub-rules (4) and (5) of
Rule 1, where the court is satisfied (a) that a suit must fail by reason of some formal defect, or (b) that
there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a
suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw
from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject
matter of such suit or such part of the claim. Where the plaintiff (a) abandons any suit or part of claim
under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in
sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from
instituting any fresh suit in respect of such subject matter or such part of the claim.
Examples: a) Where the suit is instituted for the recovery of immovable property with or without rent,
the subject-matter is that immovable property.
b) Where the suit is instituted for the compensation for wrong done to one movable property, the
subject-matter is that movable property.
More specifically on the basis of the subject-matter the jurisdiction of a Court is determined in some
cases. For example, a Presidency Small Causes Court has no jurisdiction to try suits for specific
performance of a contract, partition of immovable property, foreclosure or redemption of a mortgage
etc. Similarly, in respect of testamentary matters, divorce cases, probate proceedings, insolvency
proceedings etc. only the District Judge or Civil Judge (Senior Division) has jurisdiction.

Cause of action: Order 2, Rules 3, 6 and 7:

Cause of action may be defined as ‘a bundle of essential facts, which is necessary for the plaintiff to
prove before he can succeed.’ A cause of action is the foundation of a suit. It must be antecedent to the
institution of a suit and on the basis of it the suit must have been filed. Every fact constituting the
cause of action should be set out in clear terms. A cause of action must include some act done by the
defendant since in the absence of such an act no cause of action can possibly accrue. If a plaint does
not disclose a cause of action, the Court will reject that plaint.
Relief: Order II, Rules 1-2, 4-5:
Relief is the legal remedy for wrong. According to Rule 1 of Order 2 every suit shall as far as
practicable be framed so as to afford ground for final decision upon the subjects in dispute and to
prevent further litigation concerning them.

Institution of Special Suits:

There are some special suits in which the process of instituting the same differ a little from the general
suits. Some important ones are mentioned below.

Suits by or against the Government: Sections 79-82:

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In such case the authority to be named as plaintiff or defendant, as the case may be, shall be in the case
of Central Government, the Union of India and in the case of a State Government, the State.

Suits by or against military or naval men or airmen: Order 28:

In such case if such officer actually serving under the Government cannot obtain leave of absence for
the purpose of prosecuting or defending the suit in person, he may authorise any person to sue or
defend in his stead. The authority shall be in writing and shall be signed by the officer in accordance
with Rule 2.

Suits by or against minors and persons of unsound mind: Order 32:

Such suits can be said to have been instituted in the name of the minor or the person of unsound mind
by a person who in such suit shall be called the next friend of the minor or the person of unsound mind
when a plaint is presented and not when a guardian ad litem is appointed.

Suits by indigent persons: Order 33:

In such case the person claiming himself as indigent must apply to the Court for the permission in
order to sue as an indigent person.

Suit against dead person:

According to one view, a suit against a dead person (dead at the time of institution of the suit) is non
est and of no legal effect. The other view is such suit is not void ab initio and can be continued against
the legal representatives of the defendant if they have been brought on record in accordance with the
law
Interpleader Suit and General Suits: A Comparative Approach:Section 88
and Order 35 are related to the Interpleader Suits. Section 88 defines it and Order 35 gives the
description of procedural formalities.

Interpleader Suit
General Suit
a) In such suit the real dispute is not between the plaintiff and the defendant but between the
defendants who interplead against the ordinary suit.

a) In general suits or ordinary the real dispute is between the plaintiff and the defendant.

b) If two or more persons adversely claiming some debt, sum of money or other property movable or
immovable in dispute, from a person who does not claim any interest therein except the charges and
costs incurred by him and is ready to pay or deliver the same to the rightful claimant, may file an
interpleader suit.

b) In ordinary suit the plaintiff claims the relief or compensation from the defendant. The defendant
can also apply for set-off and/or counter-claim.

c) In order to institute such suit there must be some debt, sum of money or other property movable or
immovable.

c) An ordinary suit can be instituted in the cases other than those where some debt, sum of money or
other property movable or immovable is related.

d) The Court may exempt the plaintiff from the suit if all liabilities have already been discharged by
the plaintiff and may proceed to try the suit in the ordinary manner regarding the determination of the
actual owner of the property in dispute.

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d) In such suits neither the plaintiff nor the defendant can be exempted from the suit before the final
order is passed.

Bar of Suits:
Sections 10, 11 and 12 provide certain limitation. The provisions of Sections 10 (Stay of suit / res sub
judice) and 11 (res judicata) clarify that in these cases institution of suit is not barred; but the trial is
barred by law. Section 12 puts a bar on the institution of suits in cases, where a plaintiff is precluded
by rules from instituting a further suit in respect of any particular cause of action, he shall not be
entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.

SUMMONS

Meaning of term Summons

The term summons has not been defined in Code of Civil Procedure 1908 but according to Black’s law
dictionary:
Summons means a writ stating an action is commenced against him in court.
In code of civil procedure 1908 summons can be issued to following persons:
Summons To Defendant - Order 5 of Code and Section 27 to 29 of Civil Procedure 1908
When any party (Plaintiff) filed a suit against another party i.e. Defendant. The Defendant has to be
informed that the suit is filed against him and it is necessary to appear before court of justice to defend
himself in such situation the court send an intimation document to defendant is said to be summons to
defendant.
The summons of Defendant can served for two purposes i.e. Either for settlement of issues or for final
settlement of the suit.
Summons TO Witnesses – Order 16 and Section 27 to 31 of Code of Civil Procedure
The summons shall issue by the Court to any person to give evidence as witness or produce document
which is in his possession before court on particular date such intimation document is said to be
summons of Witness.The summons of Witnesses can served for two purposes i.e. Either for giving his
oral evidence or for final production of documents.
Herein we are going to discuss with Summons to defendant in this article.
Important Conditions in relation with summons of Defendant.
There are certain conditions must take into consideration such as:

1. Summons shall be issued by the Court in which the suit is pending before it for appearance of
defendant and opportunity to answer the plaintiff’s claim.
2. Summons may be served within within 30 days from institution of suit.
3. Every summons shall be signed by the presiding Judge or its officer with seal of the court.
4. Copy of plaint should be accompanied with summons.
5. The Summons to defendant must show its purpose of issuance.

When Summons is not necessary to issue

When the Plaintiff’s claim in a suit is admitted by the Defendant before issuance of summons then
there is no need of issue of summons and court shall pronounce judgment in favor of plaintiff ( Order
12 Rule 6 Of C.P.C.)
Liability of Defendant:

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It is duty of defendant to appear and file his defence in pleading i.e. written statement within 30 days
from the date of service of summons but the Court may be extent such period up to 90 days from such
service. If defendant fails to file such written statement then the court has empowered with pronounce
judgment against such defendant, subject to its discretion to call for proof of fact pleaded by the
plaintiff. ( Order 8 Rule 1 of CPC)

Appearance and Exemption from Personal Appearance- Order 5 Rule 4 , Section 132, 133 of
C.P.C.

The Defendant after receiving of summons he may appear either personally or through his pleader or
through any other pleader accompanied by any person authorized to answer on behalf of the defendant.
But it shall not be necessary to appear personally to defendant if he fall under the benefit of
exemption as follows If:

1. Defendant is woman who is not appearing in public according to custom and manner of the
country.
2. Defendant is any one holding official character such as The President of India, The Vice
President of India, Speaker Of parliament or State Legislative Assembly, The Judges of High
Court or Supreme Court, Minister of Union or States etc.
3. The Defendant resides not residing in local limits of jurisdiction of the court
4. The Defendant residing outside such local limits beyond 50 miles or 200 miles (if any
conveyance is available) from such court.
5. The defendant is appear before court in representative character then other defendants may be
exempted.( Order.1 Rule. 8)

Modes Of Service of Summons

There are certain modes of service of summons, The Court always endeavor to speedy trial but it also
make sure that the reasonable opportunity must be given to the parties of the suit hence the summons
to defendant can be served on any following modes:
1. Summons issued by the court personally to the Defendant or his agent.

It is ordinary way to serve summons to the defendant, after institution of suit the court may issue
summons to the defendant and such summons shall be delivered by the officer of the court (Belief
of court) to the Defendant personally or through his agent if any or in absence of the defendant in
his ordinary residence the summon shall serve on his adult member of his family (Adult male
member by Bombay High Court Amendment)

After such service the officer of the court (Belief of court) shall obtain signature of the Defendant
or his agent or adult member of his family to whom served personally and return original copy of
summons to the court with his report.

2. Service of Summons through Courier services (R.P.A.D. Service)

The High court of concerning territory shall make rules for such services. The service of summons
can be made through Register Postal acknowledgement due or Speed post or courier services. It is
addition to the direct service of summons (Order 5 Rule 9(4) Of CPC)

3. Service of summons by plaintiff (By Hand Service)

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The court may allow service of summons through the plaintiff on his application. Such service is
valid service and rule of direct service by Court is applicable to such mode of service of summons.
(Order 5 Rule 9-A Of CPC)

4. Service Of Summons By Substituted Service – (Order 5 Rule 20 Of CPC)

When the court is satisfied the Defendant keeping himself away from service of summons in
ordinary way the court shall serve summons by following ways:

a. Affixing Copy of summons tin conscious part of the Court House.

b. Affixing Copy of summons tin conscious part of the Defendants House
c. Advertisement in local newspaper where the defendant is ordinarily resides or carry on
business or work personally for gain.

5. Service Of Summons Through Electronic Message- (Order 5 Rule 9 (3) Of CPC)

It is admissible now a days for expediency and speedy service of summons, The Service of
summons on Defendant can be made by giving a copy of summons to the defendant through
any electronic media such as Emails or Fax under rules prescribed by the High Court.

6. Service of Summons in Special Case - Order 5 Rule 21-30, Section 28 , Order 29 Rule 2 and
Order 30 Rule 3 of C.P.C.
For better understanding we shall refer these special cases herein under:

Sr.No. If Defendant Service Of Summons

Resides Outside Jurisdiction of
1 Serve through the court where he resides
Court or state
Serve through Electronic mail ,fax or
2 Resides in foreign Country
courier
Resides in Presidency town of Serve through Small Causes Court situated
3
Mumbai, Kolkata or Chennai therein
Serve through Head of department where
4 Is public servant
he is working as public servant
5 Is Soldier, sailor or airman Serve through his commanding officer
6 Is Corporation Serve through Manager, secretary ,director
Serve through Firm, one or more partners
7 Is Partnership Firm
having control over it
Serve through officer incharge of jail
8 Is in prison
authority

Interest and costs (sec- 34, 35, 35A, B)

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Certain provisions like Section 34, 35,35A and 35B provides remedy to the winning party in terms of
monetary compensation incurred in maintaining litigation expenses.
Section 34- Interest
Interest as defined in Section 34 of Code of Civil Procedure reads as: Where and in so far as a decree
is for the payment of money, the court may, in the decree, order interest at such a rate as the court
deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the
decree, in addition to any interest adjudged on such principal sum for any period prior to the institution
of the suit,[ with further interest at such rate not exceeding six percent, per annum as the Court deems
reasonable on such principal sum], from the date of the decree to the date of payment, or to such
earlier date as the Court thinks fit.
Section 35- “Costs”
Section 35 of the Code of Civil Procedure provides for the costs. The provision grants right to the
discretion of the court that it may grant order for paying the cost to the winning party for the expenses
incurred in maintaining the suit or to pay for the amount that the winning party has incurred while
drafting legal notices and contracts.
This amount is subjected to be paid by the losing party. This remedy shall not to be treated as any
reward to the winning party on one side and as a punishment to the losing party on the other side. All
the necessary direction with regard to that shall be given by the court. In cases where the Court refuses
to grant the cost, it shall give in writing for doing so. Costs are at the discretion of the court. It must be
exercised reasonably if the court deems fit to do so and not by caprice or chance. This discretion of the
court must be exercised considering the facts and circumstances of the case.
Section 35A- Compensation in respect of false or vexatious claims
If any suit or other proceedings including an execution proceeding but any party objects to the claim of
defense on the ground that the claim or defense or any part of it, as against the objector, false or
vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, as against
the objector, such claim or defense is disallowed, abandoned or withdrawn in whole or in part, the
Court may after recording its reasons for holding such claims defense to be false or vexatious make an
order for the payment to the object or by the party by whom such claim or defense has been put
forward, of cost by way of compensation. The condition precedent for applying this section is that the
suit filed must be false or vexatious and the objection should be raised by the other party that the suit
filed was wrong and was within the knowledge of party filing the suit. Such claim must be withdrawn
or rejected by the court. The maximum amount that can be awarded under this provision is 30,000. But
this monetary punishment does not exempt the guilty party from any criminal liability.
That party may be held liable for false claim or defense as per the provision of law. Under this section,
an appeal may be filed against the compensatory cost but no appeal lies against the order refusing to
award compensatory cost because of the misconduct of other party as well. This also includes those
who have been wrongfully made party to the suit, are entitled to get the costs as well as where the
plaintiff withdraws from a suit or abandons a part of claim without the permission of the court, he shall
be entitled to pay the cost as to be decided by the court.
Section 35B- Costs for Causing Delay
This Section was inserted via amendment act of 1976. This Section provides for the fines that are
imposed upon the defendant for causing delay. As is evident from the present condition of judicial
system, one of the reasons for a large number of pending cases is that the lawyers use different tactics
to delay the judicial process. This section shows a strict behavior against these types of acts. It
empowers the court of law to impose compensatory costs on the either party who are responsible for
causing delay and consuming court’s time at any stage of litigation. Besides, this cost will have no
effect upon the outcome of litigation. The payment has been a condition precedent for the further

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preceding of the court. In certain cases where the party is unable to pay the cost due to unavoidable
circumstances like public holiday or bank strikes, then in such cases, the court can extend the time. But
despite this provision, it was observed that these provisions are not sufficient enough to discomfort the
delaying habit of lawyers. Imposing more harsh law is the need of the hour.

Pleading- fundamental rules of pleading

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Plaint and written statement

What is Plaint?
Plaint is written statement of plaintiff’s claim. Through plaint, plaintiff describes his cause of action
and other necessary particulars to seek remedy from court for redressed of his grievances. In English
practice, A private memorial tendered in open court to the judge, where the party injured sets forth his
cause of action.
Origin of word of Plaint
Middle English: from Old French plainte, feminine past participle of plaindre ‘complain’, or from Old
French plaint, from Latin planctus ‘beating of the breast’.
Before drafting a Pliant/Written Statement, especially the following Sections of the Code of Civil
Procedure, 1908 (Act No. V of 1908) should be followed:
Section 15: Courts in which suits to be instituted
Section 16: Suits to be instituted where subject-matter situate
Section 17: for immovable property situate within jurisdiction of different Courts
Section 18: of institution of suit where local limits of jurisdiction of Courts are uncertain
Section 19: Suits for compensation for wrongs to person or movables
Section 20: Other suits to be instituted where defendants arises or cause of action arises
Section 26: Institution of suits

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Before drafting a Pliant/Written Statement, especially the following Orders of the Code of Civil
Procedure, 1908 (Act No. V of 1908) should be followed:
Order 1: Parties to Suits
Order 2: Frame of Suit
Order 3: Recognized Agents and Pleaders
Order 4: Institution of Suit
Order 6: Pleadings Generally
Order 7: Plaint
Order 8: Written Statement and Set-Off Continue

Necessary Contents of Plaint

Followings are the necessary contents of plaint;
(i) Plaint should contain name of that court in which suit is brought.
(ii) Plaint should contain name, description and residence of plaintiff.
(iii) Plaint should contain name, description and residence of defendant.
(iv) When plaintiff or defendant is minor or person of unsound mind, plaint should contain a
statement to that effect.
(v) Plaint should contain those facts, which have constituted cause of action. In addition to this,
it should also be described in plaint when cause of action has arisen.
(vi) Plaint should contain those facts, which show the court has jurisdiction. (vii) Plaint should
contain that relief, which plaintiff claims.
(vii) When plaintiff has allowed set off or has relinquished a portion of his claim, plaint should
contain that amount, which has been so allowed or so relinquished.
(ix) Plaint should contain statement of value of subject-matter of suit not only for purpose of
jurisdiction, but also for purpose of court-fees.
(x) Plaint should contain plaintiff’s verification on oath.

Parts of Plaint The Plaint has got 8 parts:

1. Cause Title
2. Statements showing cause of action
3. Particular date of cause of action Statement about Jurisdiction
4. Relief or Prayer
5. Valuation of Statement
6. Schedule in the Case of Immovable Property
7. Verification

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Parts of Written Statement (WS)

The Written Statement has got 5 parts:
1. Cause Title
2. Objection as to point of law3
3. Para wise denial
4. Actual Fact
5. Verification
Particulars of a Plaint for Filing
1. Plaint
2. Firisti Form with all supporting Documents with date
3. Process Fee-Minimum 2 Taka
4. A copy of Plaint is to submit for each Defendant
5. Summons, 3 Copies for each Defendants (a) Served by Peada, (Pricess lserver) (b)Served by Post
Office Copy (Reserved in the office with paint)
6. Postal Stamp with Registered with A/D form and Postal Stamp of 8 Taka
7. Vokalatnama
Particulars of a Written Statement (WS) for Filing
1. Written Statement
2. Firisti Form with all supporting Documents with date
3. 3 copy of Written Statement for each Plaintiff
4. Vokalatnama
Amendment of Pleadings
Amendment of pleading is possible in any stage of the suit with the permission of the Court. Order VI,
Rule 17 of the Code of Civil Procedure, 1998. Even amendment of Pleading is also possible in appeal
stage, but it must be before delivery of judgment.

Return and rejection of plaint

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Set-of
Set-off is related to debts. It is the reciprocal claim made by the defendant. Set-off can be used only
under the suit for recovery of money. This can be better under by an example. Suppose, A files a suit
against B claiming that the latter is Rs.20,000 due to him. Now, B also has a claim against A that he is
Rs.10,000 in debt to the former, i.e., A is Rs.10,000 in debt of B. Here, both are mutually indebted to
each other, and they both have to pay off the debts due to each other. Instead of filing a fresh suit
altogether, B files a set-off claim along with the written statement in response to the plaint filed by A.

Set-off is dealt under Order VIII Rule 6, and it says that such written statement along with a set-off
should be considered by the Court as much as plaint because it too has a subject matter that is in
dispute. However, there certain conditions that have to be met for filing a set-off by the defendant.
They are:

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 The suit initiated must be for recovery of money. So, set-off can be filed only in money suits.
 The defendant must claim only the amount that he has already lent to the plaintiff. The
defendant cannot claim the money he has not already lent. It means the money should be
ascertained.
 The ascertained money should be legally recoverable by the defendant from the plaintiff. It
should not be barred by any laws of limitation.
 The recoverable money by the defendant should be defendant or defendants if there are many,
and in the same way, it should be recovered from the plaintiff or plaintiffs if there are many.
 The set-off should be filed only in the court which has financial jurisdiction.

Counter claim
Counter-claim is dealt under Order VIII Rules 6-A to 6-G of the Code of Civil Procedure 1908. It is a
claim which is separate and independent from that of the plaintiff. It is also cross-claim but not
necessarily arise out of the same cause of action contained in the plaint. Unlike set-off, a counter-claim
need not be mandatorily related to the recovery of money. It could be regarding any civil disputes.

The characteristics of counter-claim are as follows:

 Counter-claim also should accompany a written statement. If it is not filed along with the
written statement, the court usually does not allow the defendant to file the counter-claim at a
later stage in the suit, if his intention is to prolong the proceedings of the suit. Nonetheless, the
counter-claim can always be filed as subsequent pleading under Rule 9 of the same Order.
 Counter-claim was brought into existence to avoid multiplicity of proceedings and thereby save
a lot of court’s valuable time.

For example, A files a suit against B and B also wants to file a suit against A for a completely different
subject matter. Instead of filing a separate suit, B makes a counter-claim against A. Here, a lot of time
is being saved since the counter-claim proceedings are being carried on by the original suit
proceedings.

 The counter-claim is treated on par with the plaint, and the plaintiff should file a written
statement in response to the counter-claim. The court can pronounce final judgement both on
the original claim and the counter-claim.
 For the defendant, the counter-claim can be filed by the defendant against the plaintiff. In some
instances, he can claim from co-defendants along with the plaintiffs. But a counter-claim solely
to claim from the co-defendants is not entertained by the courts.
 The counter-claim should be filed only when the subject matter is not barred by the Limitation
Act.

Earlier, set-off or counter-claim were supposed to be filed for only money suits. But an amendment to
CPC in 1976 has covered the concept of counter-claim under Order VIII Rules 6-A to 6-G as discussed
above to include other civil natured claims against the plaintiff and also to save the time by reducing
suits between the same parties.

As a final note, set-off can be used for recovering money in suits related to money and counter-claim
can be used for any civil natured claims. Both have to be filed along with the written statement, and
both have to be filed by the defendant against the plaintiff. These two concepts are so similar in nature
that they tend to reduce the burden of filing a fresh suit against the plaintiff with regard to their claims.

Joinder, rejoinder, misjoinder

As above or from the link https://www.legalbites.in/joinder-re-joinder-and-misjoinder/

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Misjoinder of causes of action- Multifariousness

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Unit 3

Appearance, Examination and Trial

Appearance and examination of parties

Appearance Order 9

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Examination

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Discovery, inspection and production of document

Discovery – Order 11
Under Civil Procedure Code, 1908 discovery basically means a pre-trial procedural aspect wherein
each party is given an opportunity to obtain evidence from the opposite party or parties. In other
words, we can say that it is a formal process wherein the parties get a chance to exchange information
regarding the witnesses and evidence which will be presented before the court during the trial.

The main purpose of discovery is to make the parties aware of the case, that means there shall not be
any ambiguity between parties while the trial is going on. Both the parties shall be clear about the
plaint made and issues thereby.

There are various types of discovery:-

1) interrogatories;

2) requests for production of documents and inspection;

3) requests for admissions;

4) depositions;

5) subpoenas duces tecum;

6) physical and mental examinations.

Nature and scope

The scope of this section is basically determined by the extent of discovery which can be made by the
party with the intervention of the court. The information which is obtained during the discovery is not
needed to be admissible in court. As per the requirement, parties can obtain an order from the court for
the discovery of required facts/ documents from the opposite party to understand the purpose of the
case. Thereby, the scope or extensibility of applying this section depends upon the nature of the case
and material which is asked by the other party. So it is the discretion of the court to decide whether the
application is covered as per the scope provided to the section under the code or not.

But there are certain limits to the extensibility of the discovery of the documents. If they are redundant
or overly burdensome, they are not called for discovery.

Therefore, it is understood that this procedure is provided to compel the other party to produce
documents on which they are relying on, other than the evidence. When such particulars regarding the
case are asked through questions, then they are termed as interrogatories. And if the other party is
requesting documents then it is the discovery of documents.

Discovery of documents

When the adversary party is simply compelled to disclose the documents which are under its
possession or power, then that is called as the discovery of documents. The discovery of documents is
covered under the Rule 12-14 Order XI of the code.

Who may seek discovery?

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Any party to a suit under oath may apply for an order from the court for the discovery of documents
which are related to the matter in question of the suit from the adversary party.

Against whom discovery may be ordered?

An appropriate court can order any party of the suit to dispose of the documents which are in its power
or possession to the asking party. However, the party need to be related to the suit.

Conditions
While the discovery of documents is being asked, two conditions need to be taken care of by the
court:-

1. The discovery ordered is necessary for the fair disposal of the suit.
2. The discovery will save costs.

Objection against discovery

The party can raise an objection if the documents required to submit comes under the purview of the
privileged documents. However, objecting by filing an affidavit would not be enough, the party who is
objecting also needs to give proper reasoning behind such objection. The proper reasoning will enable
the court to decide the objection raised by the party. It is open to the court to inspect the documents and
check the viability of the objection raised by the party. Another objection which can be filed is that
discovery is not necessary at this stage of the suit.

Admissibility of document
The documents which are asked under the discovery of documents are not always admissible in court.
The documents may be admissible in the case if they are relevant to the case and which may have
some impact on the issues dealt under the case.

In Gobinda Mohun v. Magneram Bangur & Co, it was held that:

“Rule 12 of Order 11 is considerably wider than Order 13, Rule 1 of the Code. The right to obtain
discovery of an adversary’s documents is a very wide one and is not limited merely to those documents
which may be held to be admissible in evidence when the suit is ultimately tried.

It is true that in a suitable case a defendant may object to the production of a document on the ground
that it relates solely to his title, but if on the other hand, that document may have some bearing in
support of the plaintiff’s title, such objection cannot be validly raised. If an order for discovery is made
under Rule 12 of Order 11 all the documents relating to the case should be embodied in the affidavit
of documents by the person against whom the order for discovery is made. If however, the defendant
considers that he is entitled to protection in respect of the production of any particular documents
which may be entered in the affidavit under Order 11, Rule 13 of the Code, he will be at liberty to raise
such objection at the proper stage of the proceedings if and when he is ordered to produce such
documents under Order 11, Rule 14 or to give inspection of them under Order 11, Rule 18.

The Calcutta High Court sought to distinguish the Judgment of the A.P. High Court in P.
Varalakshmamma v. P. Bala Subramanyam 1958 wherein it was held that:

It is lawful for the Court, under Order 11, Rule 14, Civil P.C., at any time during the pendency of any
suit to order the production of a document. The words “at any time” are very significant and important.

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Rule 14 does not require that the order for production should be made only after an order of discovery
is obtained under Order 11 Rule 12 C.P.C.”.

Documents disclosing evidence

The document which is related to the evidence of the adverse party can not be ordered by the court.
Such orders can be detrimental to the administered party which is restricted under the code.

Affidavit of documents
The documents under this rule are provided with the affidavit as under the Form No. 5 in Appendix C
with required variations as per circumstances.

Privileged documents
Privileged documents are covered under “crown privilege” which is based on the doctrine of “public
welfare is the highest law”. However, even if this doctrine is given the importance, it does not mean
that justice shall not be paramount. Thereby when parties use it as an umbrella of defence, then under
such circumstances, the court has the right to verify the admissibility of such defence. After checking
the document, the court can decide on the matter. Mere assertion by the party will not be entertained or
accepted by the court.

Oppressive discovery
While ordering the discovery of the documents it shall not be an oppressive order by the court. The
court while using its discretion power shall consider two questions:

1. Whether it is important to order such discovery;

2. Whether it is impossible for the administered party to give the documents ordered under
discovery.

Rules as to discovery
The general rules for the discovery of the documents are as follows:

1. Any party can get an order from the court for the discovery of the documents or for
inspection of documents.
2. It is the discretion of the court to pass such an order.
3. The court can use its power any time during the suit, either suo moto or by the application of
the party.
4. The court shall not pass an order for the discovery, inspection or production until the written
statement has been filed by the defendant.
5. No such order shall be passed if the application is made by the defendant until he has not
filed a written statement.
6. Discovery of the document shall not be made if the court is not of the opinion that this order
will lead to fair disposal of the suit or useful for saving cost.
7. A party to whom an order of discovery of documents has been passed, as a general rule, shall
produce all the documents which are under his possession related to the suit.
8. If the parties are taking any legal protection under the privileges provided under the code,
then the court shall verify such documents and give the protection.
9. Failure to comply or default from the side of the parties to the order for discovery, production
or inspection, can lead to adverse inference on the party.

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Inspection of documents

Under Order XI Rule 12-21 of the CPC, the rule for the inspection of discovery is provided. As
per Rule 12 of the code the party can compel other parties to produce the documents without filing an
affidavit to apply to the court, relating to any matter of question-related to the suit. However, such
documents need not be admissible in court unless they give out some connection in a matter of
controversy.

As per the Rule 15-19 of Order XI of the code, the inspection of documents can be divided into two
categories:

1. The documents which are referred to in the affidavits or pleadings of the parties.
2. The documents which are not referred to in the pleadings of the party but are in the power or
possession of the parties.

And the parties are allowed to get the inspection of the former category documents, not the latter one.

Production, impounding and return of documents- Order 13

Production of documents
As per Rule 1 of Order XIII, the parties or their pleaders shall produce the documents at or before the
settlement of disputes.

Admission of documents
Subject to the provisions of the Code the admission of the documents are allowed as evidence in the
suit when the following particulars are made:

1. The number and title of the suit,

2. The name of the person producing the document,
3. The date on which it was produced, and
4. A statement of it having been so admitted;

The endorsed documents shall be signed by the Judge.

Where the admission of documents in evidence is:

 An entry in a letter-book or a shop book; or

 Other accounts which are in current use, or
 Entry in a public record produced from the public office or by a public officer, or
 An entry in a book or account belonging to a person other than a party on whose behalf the
book or account is produced; under such circumstances, the person can produce a copy of the
document, after the proper examination, comparison and certification as per Rule 17 of Order
VII of the Code.

Further, the documents admitted into evidence shall be part of the record of the suit.

Firsyt hearing and framing of issues

At the first hearing of the suit
The Court shall ascertain from each party or his pleader whether he admits or denies such allegations
of fact as are made in the plaint or written statement (if any) of the opposite party, and as are not

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expressly or by necessary implication admitted or denied by the party against whom they are made.
The Court shall record such admissions and denials.
2. Oral examination of party, or companion of party. —
(1) At the first hearing of the suit, the Court—
(a) shall, with a view to elucidating matters in controversy in the suit examine orally such of the parties
to the suit appearing in person or present in Court, as it deems fit; and
(b) may orally examine any person, able to answer any material question relating to the suit, by whom
any party appearing in person or present in Court or his pleader is accompanied.
(2) At any subsequent hearing, the Court may orally examine any party appearing in person or present
in Court, or any person, able to answer any material question relating to the suit, by whom such party
or his pleader is accompanied.
(3) The Court may, if it thinks fit, put in the course of an examination under this rule questions
suggested by either party.
Substance of examination to be written. – The substance of the examination shall be reduced to
writing by the Judge, and shall form part of the record.

Framing of issues

Admission and affidavit

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Admission
Done through three ways
1. Oral or documentary evidence available at the behest of the parties
2. Written submissions made by the parties
3. Agreement between the parties to recognize or accept particular evidence in
whatsoever form

Affidavits

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Adjournment

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Judgement and decree

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Injunction
Meaning:
An Injunction is a judicial process whereby a party is required to do, or refrain from doing, any act. It
is the remedy in the form of an order of the court addressed to a person that either prohibits him from
doing or continue to do such act. Thus, Injunction is a relief that (prevents or restricts from doing an
act) or (may include the order from doing any act for the purpose of prevention).
An injunction is a command that the court consider as essential to justice or it prohibits an act that is deemed to
be contrary to good conscience. It is an extraordinary solution, reserved or special circumstances i.e. when
temporary preservation of the status quo becomes necessary.
An injunction is ordinarily and properly elicited from other proceedings. The injunction is a supplementary
remedy in the action against the tenant.
Injunctive relief is denial within the discretion of the court rather than a matter of right. An injunction will be
granted based on varies with the facts of each case.

Kinds of Injunction:
A temporary or interim injunction restrains a party temporarily from doing the specified act and can be
granted only until the disposal of the suit or until the further order of the court. It is regulated under the
provisions of Order -XXXIX of CPC and may be granted at any stage of the suit.

Permanent Injunction restrains a party forever from doing the specified act and can be granted only on
the merits at the conclusions of the trial after hearing both the parties to the suit. It is governed by
Section-38 to Sec-42 of Specific Relief Act,1963.

MAJOR DIFFERENCES BETWEEN PERMANENT AND TEMPORARY INJUNCTIONS

 A temporary injunction is granted at any point during the suit for a specified period of time, or as adjudged by the
court.
 A permanent injunction, on the other hand, is granted after the examination of the facts and merits of the case by the
decree of the court.
 Rules 1 to 5 of Order 39 of the Civil Procedure Code, 1908, governs temporary injunctions. Whereas, permanent
injunctions are covered in sections 38 to 42 of The Specific Relief Act, 1963.
 A temporary injunction is a temporary order and non-conclusive rather than a permanent solution. Whereas a
permanent injunction deals with the finality of a judgment, thereby providing a conclusive and long term solution.
 A temporary injunction may be one-sided. But a permanent injunction focuses on the Plaintiff as well as the Defendant.
It hears both the sides and then provides an appropriate solution.
 The court can revoke the temporary injunction order. But in the case of a permanent injunction, it is non-revocable by
the court that decides to pass such order.

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 A lack of immediate response or request by the Plaintiff may lead to a dis-approval of the grant of an injunction order.
Whereas a permanent injunction order allows the parties to elaborate, explain and provide details at a later and more relaxed
pace, provided there are sufficient and valid grounds for the same.
A temporary injunction is simply an order by the court and permanent injunction is a decree

Injunction are also:

i. Preventive, prohibitive or restrictive i.e. when they prevent, prohibit, or restrain someone from
doing something; or
ii. Mandatory i.e. when they compel, command or order person to do something.

Who may apply and against whom Injunction may be issued?

Both plaintiff and defendant may apply for Injunction against each other. An injunction may be issued
only against a party and not against any stranger or a third party.

It also cannot be issued against a court or judicial officers.

Circumstances where Injunction can be granted:

1. To maintain status -quo.

2. Against transfer of property.
3. Disposal of goods.
4. Making construction
5. Effecting recovery of dues.
6. Attachment of property.
7. Appointing receiver or commission
8. Against Prosecution etc.

Case: ManoharLal vs Seth HiraLal AIR 1962; SC held, even if case not covered on grounds of 0-39,
Temporary Injunction can be granted in exercise of Inherent Powers Under Section 151 of CPC.
Consequences of disobedience or breach of an injunction:
O 39 Rule 2-A: If Rule 1 and Rule 2 of Order 39 are not complied then:

 Property of guilty be attached.

 Detention in civil prison not exceeding 3 months.
 Limit of attachment:

a. Not more than 1 year.

b. If disobedience or breach continues – Property may be sold.

Case: Ram Prasad Singh vs Subodh Prasad Singh[2] , it was held by the court that a person is liable
to be proceeded against O39, R2-A,CPC even if he was not personally a party to the suit provided he is
known to have been agent or servant of the defendant and to have violated the order of injunction in
spite of knowledge that there was such an order.

Ex-parte Injunction:
Rule 3 of O-39 requires that the applicant to issue a notice to the opposite party before an injunction is
granted. Though the court has the power to grant an ex-parte injunction without issuing a notice or
granting a hearing to the party, who will be affected by such order, the said power is to be exercised

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sparingly and under exceptional circumstances.

Case: Morgan Stanley vs. Kartick Das, (1994) 4 SCC 225 (241-242),

The Supreme Court indicated the following factors which should weigh with a court in the grant
of an ex-parte Injunction:

1. Whether irreparable or serious mischief will ensure to the plaintiff.

2. Whether the refusal of an ex-parte injunction would involve greater injustice than grant of it
would involve.
3. The court will also consider the time at which the plaintiff first had notice of the act
complained of so that the making of an improper order against a party in his absence is
prevented.
4. The court will consider whether the plaintiff had acquiesced for some time and in such
circumstances, it will not grant an ex parte injunction.
5. General principle like prima facie case, balance of convenience and irreparable loss would also
be considered by the court.

The above stated guidelines were followed in Union of India vs. Era Educational Trust, AIR 2000
SC 1573[3]
An order issuing or refusing to issue an Injunction is subject to appeal in view of Order-XLIII. Thus,
any order passed in exercise of the powers in Rule 1 (including ex- parte orders) would be appealable
as indicated in order XLIII, Rule 1.

Revision against the order refusing to grant ex parte injunction, is not covered under by clause (i) and
(ii) of second proviso of section-115. Refusal to exercise jurisdiction by the revisional court is proper
i.e. No revision is permissible in such a case.
Grounds of Temporary Injunction:
O39 R1 provides that Temporary Injunction may be granted by court:

1. Property in dispute is in danger of being WASTED, DAMAGED or ALIENATED by any party to the suit, or WRONGFULLY SOLD IN
EXECUTION OF DECREE.
2. Where defendant: THREATENS or INTENDS TO REMOVE or DISPOSE OF HIS PROPERTY with a view to defraud creditors.
3. Where defendant: THREATENS TO DISPOSSESS the plaintiff or otherwise CAUSE INJURY to the plaintiff in RELATION TO THE
PROPERTY IN DISPUTE
4. Defendant is about to COMMIT BREACH OF PEACE OR CONTRACT OR OTHERWISE (Order 39 Rule 2).
5. Where the court is of opinion that INTEREST OF JUSTICE, so required.

Conditions for granting Temporary Injunction:

Injunction is discretionary remedy and thus, before granting of the temporary injunction, the following conditions are required to be
satisfied:

1. Prima Facie Case is in the favour of the plaintiff and against the defendant.
2. Irreparable injury is likely to be caused to the plaintiff, which cannot be compensated for in terms of money.
3. Balance of convenience is in favor of the plaintiff and against the defendant.
4. There is a bona fide dispute raised by the applicant and there is a probability of the applicant being entitled to the relief claimed by him.

Thus, the burden is on the plaintiff praying for the relief. Mere proof of one of the above conditions does not entitle a person to an order of temporary
Injunction.

Case- Dalpat Kumar vs Prahlad Singh and Ors.[1] the Apex Court, while considering the question of balance of convenience observed that the
court while exercising discretion in granting or refusing injunction should exercise sound judicial discretion and should attempt to weigh substantial
mischief or injury likely to be caused to the parties , and in the case of refusal of injunction should compare it with that which is likely to be caused to
the opposite party, if the injunction is granted.

Sec 114 Review of Judgemnet

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Right under Section 114 of CPC is substantive right and the order 47 of CPC will provide the details of
the procedure.

As per the section 114 of CPC-

“Review – Subject as aforesaid, any person considering himself aggrieved-

 By a decree or order from which an appeal is allowed by this Code, but from which no appeal
has been preferred,

 By a decree or order from which no appeal is allowed by this Code, or

 By a decision on a reference from a Court of Small Causes,

may apply for a review of judgment to the Court which passes the decree or made the order, and the
Court may make such order thereon as it thinks fit.

What is the Review of Judgment?

The dictionary meaning of review is ‘to examine or to study again’. So, the review of judgment is to
examine or study again the facts and judgment of the case. Review of judgment is the substantive
power of review by the court mentioned in Section 114 of CPC. This section doesn’t provide any
limitations and conditions for review. The limitations and conditions are provided in Order 47 of the
Civil Procedure Code. Order XLVII contains nine rules which impose some condition for the review.

The power to review is conferred by law and inherent power to review vests in court only. A
Government officer has no inherent power to review his/her orders.

What is the time limit for filling the Review application of Judgment?

As per the Supreme Court Rules, 1966, the Review application shall be filed within the 30 days from
the day the judgment or order passed.

And for appeal against any sentence or judgment in High court, shall be filed within 60 days from the
day of judgment. For the appeal against the death sentence or capital punishment, the limitation period
is 30 days from the passing of order.

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https://blog.ipleaders.in/review-judgement-cpc/ - For more detail

Appointment of reciver

Who is a receiver under the civil procedure code?

Under order 40 of CPC, The Receiver is an independent and impartial person who is appointed by the
court to administer/manage, that is, to protect and preserve a disputed property involved in a suit.

For example, in a dispute between A and B for an immovable property, if the court thinks that it is in
the best interest of both the parties that possession should be taken from B and given to an independent
person, the court may appoint a receiver who can manage the property till the time the suit is being
decided. Such a receiver appointed by the court would be responsible for the maintenance of the
property. He can collect the income accruing like rent or any other profits and utilize it to maintain the
property. After deducting the expenses incurred in maintenance from the income received from the
property, the receiver will have to submit the remaining income, if any, in the court.

What is the purpose of the appointment of a receiver?

When a party in possession of the disputed property exhausts the property or causes irreparable
damages to it, the whole object of the suit gets defeated because the subject matter ceases to exist or its
value gets affected. Therefore, when the court is of the opinion that the property in dispute must not go
to either of the parties, pendente lite, the court appoints a receiver who is entrusted with the protection
and preservation of such property. It is a form of interim protection which the court provides to the
parties who makes the application till the time the court adjudicates the matter.

What is the role of a receiver?

The Receiver is regarded as an officer of the court and is the extended arm and hand of the court. He is
entrusted with the responsibility to receive disputed property or money given by the court and manage

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such property or money till the time a decree is passed or the parties have compromised or any other
period as the court deems fit. The property or fund entrusted to the receiver is considered to
be custodia legis i.e. in the custody of the law. The Receiver has no power other than those entrusted to
him by the court while appointing him.

Who can appoint a receiver?

According to the civil procedure code, the court before which the proceedings are pending can appoint
a receiver if it appears just and convenient to the court to appoint such receiver [section 51(d)]. It is
within the discretionary power of the court to appoint the receiver. For example, in a suit, the trial
court can appoint a receiver. Whereas, in appeal, the appellate court can appoint a receiver.

However, the discretion is not absolute, arbitrary or unregulated. The expression “just and convenient”
does not mean the appointment is based on the whims and wishes of the judge on any grounds which
stand against equity.

How does the court decide whether to appoint a receiver or not?

Court has to keep the following principles in mind before appointing a receiver:

1. Appointment of a receiver is a discretionary power.

2. It is a protective relief to the plaintiff. The object is to protect and preserve the disputed
property till the time the suit is pending in the court.
3. A receiver should not be appointed unless the plaintiff shows prima facie that he has a strong
case against the defendant and it is more than likely that he will succeed in the suit.
4. Appointment of a receiver is one of the hardest remedies as it deprives the defendant of his
right to possession before the final decree. Therefore, the
5. court should not resort to it merely on the ground that it will do no harm. There should be
strong apprehension that there is a danger to the property or the plaintiff will be in worse of a
situation if the appointment of a receiver is delayed.
6. The court should appoint a receiver only when there is a possibility of wrong or injury. Also,
if it is shown that the subject matter is not in the possession of any of the parties and it is in
the common interest of both the parties to appoint a receiver for the protection and
preservation of the property.
7. The court should look at the conduct of the party who makes the application for appointment
of a receiver. The party should come to the court with clean hands and their conduct should
be such that they are not disentitled to this equitable relief.

The above principles were introduced by the Madras Court in the case of T. Krishnaswamy Chetty vs
C. Thangavelu Chetty And Ors., AIR 1955 Mad 430. These principles are now well established in the
Indian jurisprudence.

Who can apply for the appointment of the receiver?

Generally, a plaintiff files the application for appointment of a receiver but defendants can also file
such application. A third party is not allowed to file the application but if he is interested in the
protection and preservation of the property, he can also make an application after taking permission
from the court.

Who can be appointed as a receiver?

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A person who is independent, impartial and totally disinterested should be appointed as a receiver.
Such a person should not have any stake in the disputed property. Generally, parties to the suit are not
appointed as receiver by the court. But in extraordinary circumstances, a party to suit can be appointed
as receiver.

When can a receiver be appointed?

The court can appoint receiver whenever the court is of the opinion that either party should not hold
the property in dispute. The court can appoint a receiver before or after a decree and can remove any
person from the possession or custody of the property and commit the same property in the custody or
management of the receiver.

Under the code itself, the receiver can be appointed to prevent the ends of justice being defeated.
[section 94(d)]. Similarly, for the execution of a decree, the court has the power to appoint a receiver.
[section 51(d)].

There are provisions in special acts which provides for the appointment of a receiver by the court. For
example, section 84 of the Companies Act, 2013 provides for the appointment of a receiver. Similarly,
section 69A of the Transfer of Property Act, 1882 also provides for the appointment.

What is the process of appointment of a receiver?

The process of appointment of a receiver is provided by the courts in their respective court rules. The
high court has the power to make rules for the superintendence and control of the subordinate courts.

For instance,

In chapter XIX of the Delhi High Court (Original Side) rules, 1967, the following process is provided:

1. Application for appointment shall be made in writing and shall be supported by affidavit.
2. Receiver other than the official receiver has to give security.
3. The security is to be given to the satisfaction of the registrar.
4. He has to provide personal bonds with the number of surety required by the registrar. The
personal bond will be double the amount of annual rental value of the property or the total
value of the property which the receiver is going to administer.
5. Within a week of appointment, the receiver will have to submit a report providing the details
regarding the property such as inventory of property or books of account etc.
6. The registrar will give directions on where to invest the money received by the receiver from
the property. Generally, such money is submitted in scheduled banks or government bonds.

What are the powers of the receiver?

Under order 40 rule 1(d) powers of the receiver are provided as following:

1. Collection of rents and profits arising out of the property.

2. Application and disposal of such rents and profits.
3. Execution of documents as the owner himself.
4. To institute and defend the suit.
5. Such powers as the court may deem fit.

Also, there are indirect powers which a receiver enjoys being the hand of the court. For example, If a
person obstructs or interferes with the receiver’s right to possession, it will amount to obstruction in a

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court proceeding and such a person can be made liable for contempt of court. Similarly, property in the
hands of the receiver cannot be attached without the leave of the court.

The court has the discretionary power to not confer all the rights on the receiver. Even if the court has
given all the powers to him, he should take the advice of the court in all important decisions related to
the property to protect himself.

Without the permission of the court, the receiver cannot:

 Grant lease on the property.

 Bring suits except for suit for rent. A suit will be dismissed if not permitted by the court.

What are the duties of the receiver?

Under order 40 rule (3), duties of a receiver are provided as follows:

1. Furnish security to account for what he will receive from the property as income.
2. Submit accounts (half yearly) for such period or form as directed by the court. The account
basically includes the income received and expenses incurred for the protection and
preservation of the property.
3. Pay the amount due to the court.
4. Take responsibility for any reduction in the value of the property because of the receiver’s
willful negligence.
5. Discharge the duties personally and should not delegate or assign any of the rights entrusted
to him by the court.

The receiver has to fulfil all the duties and responsibilities entrusted to him by the court. Otherwise,
the court can take action against him and make him personally liable for any loss which might occur
due to his negligence or wilful failure to protect and preserve the property.

What are the liabilities of a receiver?

According to Order 40 rule (4), When a receiver fails:

1. To submit the reports as specified by the court or,

2. To pay the amount due from him as directed by the court or,
3. Causes loss to the property due to gross negligence.
4. Any other duty which court directed him to do,

The court may order the attachment of property of the receiver to recover the loss caused due to his
willful default or negligence.

The court, after recovering all the losses from the proceeds received after selling receiver’s property,
will pay the balance (if any) to the receiver.

The receiver is bound in keeping down the expenses and taking care of the property in his possession
as a prudent man would observe in connection with his own property under similar circumstances.

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Sec 115 Revision

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Sec 89
The case/ dispute between parties shall go to trial only when there is a failure to reach a resolution.
Section 89 of the Code of Civil Procedure States that:

(1) Where it appears to the court that there exist elements of a settlement which may be acceptable to
the parties, the court shall formulate the terms of settlement and give them to the parties for their
observations and after receiving the observation of the parties, the court may reformulate the terms of a
possible settlement and refer the same for

(a) arbitration;

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(b) conciliation

(c) judicial settlement including settlement through Lok Adalat; or

(d) mediation.

Examination in chief
Examination in Chief
The Examination of a witness by a party who calls him shall be called his examination in Chief.
Examination in Chief is the first examination after the witness has been sworn or affirmed. It is a
province of a party by whom the witness is called to examine him in chief for the purpose of eliciting
from the witness all the material facts within his knowledge which tend to prove the party’s case.
Examination in Chief is also known as Direct Examination.

Legalities involved in Examination in Chief

a) A question based on supposition of fact not proved is improper.
b) Counsels are allowed to ask apparently irrelevant and consequentially inadmissible questions upon
the promise to follow them up at the proper time by proof of other facts, which true, would make the
question put legitimately operative.
c) The party examining a witness in chief is bound at his peril to ask all material questions in the first
instance, and if he fails to do this, it cannot be done in reply.
d) If a question as to any material fact has been omitted upon the examination in Chief, the usual
course is to suggest the question to the court which will exercise its discretion in putting it to the
witnesses
e) There was no question of cross-examining the plaintiff travelling beyond the evidence of the
plaintiff given in examination-in-chief and thereby giving an opportunity to make out a case in cross-
examination
f) The corollary of it is that if a judge felt that a witness has committed an error or a slip it is the duty
of the judge to ascertain whether it was so, for, to err is human n the truth and the chances of erring
may accelerate under stress of nervousness during cross-examination.
g) But in exceptional circumstances there can be a cross examination of witnesses whose chief
examination has been not been done.
h) But this situation is uncertain to quite an extent and there have been descending opinion regarding
this.
i) On the examination-in-chief, a witness can only give evidence of facts within his own knowledge
and recollection.
j) In all cases the facts from the examination in chief must be relevant. The answer must be upon a
point of fact as opposed to point of law.
k) The conlusions of a witness as to the motives of other persons are inadmissible, motives being
eminently inferences from conduct.
l) Leading questions may not ordinarily be put in examination in chief.
m) In cases where the witness proves to be hostile, he may be cross examined by the party calling him.
There are other legal provision of the Indian Evidence Act which are applicable here and are referred
to in the later part of the project.

Objectives of Examination In Chief

(1)Legally sufficient to meet the burden of proof, (2) understood and remembered, (3) convincing, (4)
able to withstand cross-examination, and (5) anticipatory and contradictory of evidence that the

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opposition will present. Think of direct examination as your opportunity to construct persuasive
arguments. The questions that will be asked shall subtly convey your argument. Conversely, use the
arguments that you want to make at the end of the case to guide you in planning and preparing the
questions you will ask on examination in chief.

There are multiple objectives to examination in chief. The more significant are as follows:
A. Major Objectives
(a) the evidence must be admissible;
(b) the witness needs to present as persuasive and credible;
(c) each and every element of the offence must be proven beyond a reasonable doubt through the
witnesses oral evidence and exhibits.

B. Minor Objectives
In addition, you are also trying to achieve the following slightly less essential, but still important,
objectives:
(1) present a logical, complete and coherent theory of the offence;
(2) present each witness in the best possible light;
(3) use the evidence of one witness to support another so that a seamless cloth may be woven of the
proven fact;
(4) fill in gaps in the evidence and attempt to explain any inconsistencies;
(5) shut down potential cross-examination thereby limiting the exposure of witnesses.
(6) allow the defence as little room to move as possible by minimizing the possibilities of a defence
being supported through cross-examination of witnesses
Legal requirements for an examination in chief

Competency of your witness - The first legal requirement is that your witness must be competent to
testify. To qualify as competent, a witness must have: (1) Understanding of the nature and obligation of
the oath or affirmation to tell the truth, (2) Perception (knowledge) of the the relevant event, (3)
Recollection (memory) of the relevant event, and (4) Ability to communicate

Relevance of your witness' testimony - The second legal requirement for your direct examination is
that your witness' testimony must be relevant. Relevant evidence is evidence that has some (any)
tendency; however slight, to make the existence of a fact of consequence to the case more or less
probable than it would be without it.

Authenticity of matters of evidence to show that the item in question is what its proponent claims it is -
The third requirement for your direct examination is that matters of evidence must be authenticated.
You authenticate an item of evidence by making a prima facie showing that it is genuine.

Proper evidentiary foundation or predicate for the admissibility of the evidence - Certain items of
evidence require special foundations to establish admissibility. For example, if your evidence is
hearsay and, thus, presumptively inadmissible prima facie, but will be required to establish its
admissibility under one of the hearsay exceptions.

Over and above this, the lawyer conducting examination in Chief must also be careful to stick to the
legalities as mentioned above.
Lawyers’s Preparation For The Examination In Chief:

(A) Planning Ahead: What is the Witness’ Role?

1. The Theme of the Case.
2. The Order of Witnesses
3. What witness says

(B) Preparing the Witness

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1. Prior Testimony.
2. Current Testimony.
3. The Use of Documents to Refresh Recollection.
4. The Cross-Examination Drill.
5. The Rules of Evidence and the Need for Objections

(C) The Direct Examination:

1. Organizing the Direct.
2. The Form of the Question.
3. The Use of Non-Verbal Evidence.
4. To overcome with the mistakes that the witnesses have made.

Art of Preparing A Structure For Examination In Chief:

Outline. The questions should be written in the lingo of the ear, not the eye. There needs to be a trial book maintained whose help needs to be taken.
The entire process must look impressive and spontaneous to some extent. Maintaining eye contact is necessary.
2. Clarify. To make your questions clear, add only one new fact to each question. Compound questions invite objections. So do questions that are
vague and ambiguous.
3. Build evidentiary bridges. There needs to be a connection between the witnesses one wants to present in the examination in chief. One needs to
inter relate the witnesses to make it easy for the judges.
4. Employ transitions and signposts. There needs to be proper use of phrases to connect the matter in issue. Use of conjunction and transitions like
From here we move to would help the judges understand the matter in a better way.
5. Make repetition persuasive. Repetition must be artful. There must be a repetition of things which are necessary. But such a repetition must be in
such a way the opponent cannot object to the repetition.
6. Stretch the important parts. To dramatize a key point in examination in chief, learn how to "stretch-out" your questions. The things which are
important should continue for a long time. At the same time, these aspects should remain fresh in the judges mind due to its prolonged nature of
presentation.
7. Learn to mirror. Mirror some of the good characteristics of the witness. Adopting some of the characteristics of the witness, e.g., language, smile,
tone of voice, eye-contact, etc. puts the lawyer on a better conversational level with his witness.
8. Have your foundations ready. Be prepared to authenticate and lay foundations for any exhibits that are going to be introduced to the witnesses.
The goal should be smooth introduction of your tangible exhibits and a persuasive "tell and show" as you use the exhibits to add to the issue
concerned.
9. Make your witness' personal knowledge clear. The non-expert witness must speak from personal knowledge. The lay witness can give lay opinion
rationally based on the witness' personal perceptions. But a lay witness is not allowed to draw conclusions that call for technical, scientific, or other
specialized knowledge.
10. Deflate the potential cross-examination. The examination in Chief must indirectly counter all the rebutting or all probably questions which may
crop out of the cross examination. Hence one has to be cautious with the questions put forward.
12. Utilize open-ended questions for the important parts of the story. Questions starting with what, when, how, where etc are open ended questions.
They help in giving a vivid description of the issue. And it also benefits the witness to answer at ease.
13. Avoid questions that suggest the answer to your witness. Leading questions should not be allowed to ask in the court, except for certain
circumstances.

There are Golden Rules given by David Paul Brown for the Examination of witnesses: These golden rules alert the lawyer to ask questions according
to the type of their witnesses. He has given several guidelines which a lawyer can follow for a worthwhile examination in Chief.

Dealing with the direct examination of a hostile witness, adverse party, or a person identified with an adverse party.
A hostile witness can be as unpredictable as a wild mustang stallion. If you don't rein him in, he can do more damage than good. The hostile witness
can be asked leading questions with the permission of the court.

Cross examination
The Provisions of Order 18 Rules 1 and 2 of the Code of Civil Procedure, 1908 ("CPC") envisages the
order of examination of witnesses and the right to begin. The witness can be examined in chief by way
of his affidavit, thereafter he can be cross-examined. After completion of cross examination, if there

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are any aspect that are required to be clarified or any ambiguity that is required to be ruled out, the
witness may be subjected to re-examination.
Firstly, the evidence in chief shall be on par with the pleadings. It cannot be in the form of arguments
or submissions. In this regard a decision is reported in Harish Loyalka And Another vs Dileep Nevatia
And Others [2019 SCC OnLine Bom 68], wherein it has been observed as follows;
"The provisions of Order 18 Rule 4 of the CPC require that the "examination in chief" shall be on
affidavit. This means that the affidavit in lieu of examination in chief can contain, and contain only,
such material as is properly admissible in examination in chief, in a manner no different than if the
witness was in the witness box and his direct evidence was being taken by his advocate. An affidavit
that contain arguments and submissions is neither an affidavit within the meaning of CPC Order 19,
Rule 3, nor an affidavit in lieu of examination in chief within the meaning of CPC Order 18, Rule 4"
Secondly, cross-examination is generally considered to be the most difficult branch of the multifarious
duties of the advocate. The true question, therefore, in trials of cases is not whether it is possible that
the testimony may be false, but whether there is sufficient probability of its truth, that is, whether the
facts are proved by competent and satisfactory evidence. By competent evidence it is meant, that which
the law requires, as the fit and appropriate proof in the particular case, such as the production of proof
which ordinarily satisfies an unprejudiced mind beyond reasonable doubt.
Finally, Order 18 Rule 17 of CPC enables the Court, at any stage of a suit, to recall any witness who
has been examined (subject to the law of evidence for the time being in force) and put such questions
to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 CPC can be exercised
by the Court either on its own motion or on an Application filed by any of the parties to the suit
requesting the Court to exercise the said power. The power is discretionary and should be used
sparingly in appropriate cases to enable the Court to clarify any doubts it may have in regard to the
evidence led by the parties. The said power is not intended to be used to fill up omissions in the
evidence of a witness who has already been examined.

Appeal
Appeal is provided under Section 96 of the CPC, which says that except as provided in CPC or any
other law for timbering in force, an appeal shall lie from any decree passed by court exercising
Original Jurisdiction to appeal Court authorized to hear the appeal from the decision of the Court i.e.
Section 96 makes it clear that no appeal lies from appeal decree passed by the Court with the consent
of the parties. However, an appeal may lie fro original decrees which is passed exparte i.e. without
hearing of the parties. No appeal lies against the decree passed by small cause court, if the value of the
subject-matter does not exceed Rs. 10,0004 except on appeal question of law. Ordinarily, only appeal
party to the suit adversely affected by appeal decree or any of his representatives in interest may file an
appeal. However, appeal person who is not appeal party to the decree or order may prefer an appeal
with leave of the court, if he is bound or otherwise prejudicially affected by such decree or odder, as in
such an eventuality he may be said to be an “aggrieved person.”5

Essentials of appealing cases

An appeal is a proceeding where a higher forum reconsiders the decision of a lower forum, on
questions of law & fact with jurisdiction to confirm, reverse, modify the decision or remand the matter
to the lower forum for fresh decision in compliance of its directions. The essentials of appealing cases
can be narrowed down to 3 elements:

 A decree passed by a judicial/administrative authority;

 An aggrieved person, not necessarily a party to the original proceeding; and
 A reviewing body instituted for the purposes of entertaining such appeals.

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Right To Appeal: A Statutory And Substantive Right

Right to appeal is statutory and substantive right. It is not merely appeal procedural right. Statutory
right means must be conferred by statute unless it provides there won't be any right to appeal. While
right to institute a suit is not conferred by law. The right is inherent. But right to appeal has to be
conferred by appeal statute. Where statute provides for right to appeal, it may constitute appeal
machinery where shall the appeal lie. While the same isn't true for right to sue. A civil suit has to be
filed subject to condition of jurisdiction. An appeal is appeal substantive right. Right to appeal can't be
taken retros0pectively because general rule of specific interpretation. Substantive law operates
prospectively unless an express statute provides so.

Who can appeal?

1. Any party to the suit, who is adversely affected by the decree or the transferee of interest of such
party has been adversely affected by the decree provided his name was entered into record of suit.
2. An auction purchaser from an order in execution of a decree to set aside the same on the grounds of
fraud.
3. Any person who is bound by the decree and decree would operate res judicata against him.

Kaleidoscope India Pvt. Ltd. v. Phoolan Devi AIR 1995 Delhi 316
In this case, the Trial Court judge prohibited the exhibition of film both in India and abroad. Session
Judge permitted the exhibition of film in abroad. Subsequently, a party who moved in appeal did not
have locus standi. It was reversed by division bench saying that its not proper on the part of judge as
he entertained the suit on which party has no locus standi.9

Leading Case Law on Right to Appeal

Sadhu Singh v. Dharam Dev 1981 SCC 510
In this case, in Punjab there used to appeal right of preemption and in Muslim Personal Law, if appeal
person wants to sell immovable property, he must ask the person who have adjoining property.

In 1973, an Act was passed, Punjab Premption Repeal Act, 1973 by which premptory right was
abolished. Provision: “No Court shall pass appeal decree in any preemption suit.” In this case, decree
has already been passed by Court of Original jurisdiction and matter was pending in appeal.
The issue before the Court was that: Whether the appellate Court can pass appeal decree?
It was held that the lower Courts decree would get merged into appellate Courts decree. Where decree
is drawn on appellate order and once act passed, no premptory right. In this proceeding the appellate
Court is deprived of power to pass appeal decree.

Conflicting situation when legislation is passed - There may be two situations:

1. A right to appeal exist on the date of institution of suit and subsequent law passed taking right to
appeal.
2. No right to appeal on the date of institution of suit but subsequently law passed granting right to
appeal.
2. State of Bombay v. Supreme General Films and Exchange AIR 1960 SC 980
In this case it was held that right to appeal cannot be taken away, if available on the date of institution
of suit and subsequently law passed taking away right to appeal.

Delhi Cloth & General Mills v. I T Commissioner AIR 1927 PC 242

Where right to appeal is created subsequently shall not be available to a litigant if the suit was
instituted prior to such creation.

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Veeraya v. Subbia Choudhry AIR 1957 SC 540

Right to appeal get vested on the date suit is instituted. A new right to appeal gets created can't be
availed by the parties to a proceeding which commenced earlier during the creation of new rights.

Distinction between suit and appeal

Suit Appeal

An appeal only reviews & corrects

Where a cause is created and issues
the proceedings in a case already
are disputed on questions of both
constituted but does not create a
facts and law, it is known as a suit.
cause.

A suit is an attempt to achieve an

As per Dayawati v. Inderjit, it is
end via a legal procedure instituted
the continuation of a suit in certain
in a Court of law for enforcing
situations.
one’s right/claim.

An appeal is filed in an Appellate

A suit is filed in the lowest Court in Court for the purposes of
its respective hierarchy for trial. reviewing the decision of the
inferior Court.

The distinction between appeal and revision

Appeal Revision

A revision to High Court is

An appeal lies to a Superior Court
available only in those cases and
from every original decree unless
against such orders where no
expressly barred.
appeal lies.

There is no such right of

A right of appeal is one of substantive
revision because revisional
nature conferred by the statute.
power is purely discretionary.

An appellate jurisdiction can be

exercised only through a
memorandum of appeal filed before The revisional jurisdiction can
the Appellate Court by the aggrieved be exercised suo motu as well.
party and cannot be exercised suo
motu.

An application for appeal is An application for revision is

maintainable on legal grants as well maintainable on the ground of
as on question of fact. jurisdictional error.

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An appeal abates if the legal A revision may not abate and the
representative of the deceased are not High Court has a right to bring
brought on record within the time the proper parties before the
allowed by law. Court at any time.

The High Court or the revisional

A Court of appeal can, in the exercise Court cannot, in the exercise of
of its powers, set aside the findings of its revisional powers, set aside
facts of subordinate Courts. the findings of facts of
subordinate Courts.

First appeal

Section 96 of the CPC provides that an appeal shall lie from a decree passed by any Court exercising
original jurisdiction to the authorized appellate Courts, except where expressly prohibited. A combined
reading of Sections 2(2), 2(9), & 96 of the CPC indicates that a regular First appeal may/may not be
maintainable against certain adjudications.

Second appeal

Section 100 provides for a second appeal under this code. It states that an appeal shall lie to the High
Court from a decree passed in the first appeal by a subordinate Court, excepting the provisions
speaking to the contrary. The scope of exercise of jurisdiction under this section is limited to a
substantial question of law framed at the time of admission of appeal or otherwise.

https://blog.ipleaders.in/first-appeals-under-the-code-of-civil-procedure-1908/

order 33

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Section 133
Section 133 CPC Description

1 The following persons shall be entitled to exemption from personal appearance in Court, namely-

(i) the President of India;

(ii) the Vice-President of India;

(iii) the Speaker of the House of the People;

(iv) the Ministers of the Union;

(v) the Judges of the Supreme Court;

(vi) the Governors of States and the administrators of Union Territories;

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(vii) the Speakers of the State Legislative Assemblies/

(viii) the Chairman of the State Legislative Councils;

(ix) the Ministers of States;

(x) the Judges of the High Courts; and

(xi) the persons to whom section 87B applies.]

2 Where any person 3[*] claims the privilege of such exemption, and it is consequently necessary to
examine him by commission, he shall pay the costs of that commission, unless the party requiring his
evidence pays such costs.

Limitation act
Law of limitation:-
The Code of Civil Procedure confers a right to appeal, but does not prescribe a period of limitation for
filing an appeal. The Limitation Act, 1963, however, provides the period of filing up appeals. It states
that the appeals against a decree or order can be filed in a High Court within ninety days and in any
other court in thirty days from the date of the decree or order appealed against.

It is for general welfare that a period be put on litigation. Further, it is a general principle of law that
law is made to protect only diligent and vigilant people. Equity aids the vigilant and not the indolent.
Law will not protect people who are careless about their rights. (Vigilantibus non domientibus jur A
subventiunt). Moreover, there should be certainty in law and matters cannot be kept in suspense
indefinably. It is, therefore, provided that Courts of Law cannot be approached beyond fixed period. In
civil matters, the limit is provided in Limitation Act, 1963.

The 'Law of Limitation' prescribes the time-limit for different suits within, which an aggrieved person
can approach the court for redress or justice. The suit, if filed after the exploration of time-limit, is
struck by the law of limitation. It's basically meant to protect the long and established user and to
indirectly punish persons who go into a long slumber over their rights.

The statutory law was established in stages. The very first Limitation Act was enacted for all courts in
India in 1859. And finally took the form of Limitation Act in 1963.

A citizen is not expected to master the various provisions which provide for limitation in different
matters but certain basic knowledge in this regard is necessary. For instance, Section 12 of the
Limitation Act lays down certain guidelines regarding computation of limitation period. It says that in
computing the period of limitation for any suit, appeal or application, the day from which such period
is to be reckoned, shall be excluded.

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Further, the day on which the judgment complained of was pronounced and the time requisite for
obtaining a copy of the decree, sentence or order appealed from shall be excluded. However, any time
taken by the court to prepare the decree or order before an application for a copy thereof is made shall
not be excluded.

Section 14 of the act, similarly, says that in computing the period of limitation for any suit, the time
during which the plaintiff has been prosecuting in civil proceedings, whether in a court of first instance
or of appeal or revision against the defendant shall be excluded where the proceedings relate to the
same matter in a court which is unable to entertain it on account of defect of jurisdiction or other cause
of a like nature.

a. Law of Limitation bars the remedy, but does not extinguish the right
The Limitation Act, 1963 makes specific provisions for exclusion of certain time in some
cases for computation of the prescribed period of limitation.These provisions are as
under:
i. Exclusion of time in legal proceedings (section 12).
ii. Exclusion of time during which leave to sue or appeal as a pauper is applied for
(section 13).
iii. Exclusion of time bona fide taken in a court without jurisdiction (section 14).
iv. Exclusion of time in certain other cases (sections 15, 16 & 17).
b. Provisions relating to persons under legal disability under the Limitation Act, 1963
Legal disability [Section 6]: Law of limitation relating to legally disabled persons is
explained below:
i. If a person entitled to institute a suit or make an application is a minor, insane or
idiot at the time of cause of action, the period of limitation to file a suit or to
make an application will start when such disability ceases.
ii. Where one legal disability is followed by another legal disability, the disabilities
are successive and the limitation period will run when all the legal disabilities are
ceased.
iii. If a legal disability continues up to a death, then period of limitation will run for
legal representative (who is not legally disabled) from the date of death.
iv. Where a person under disability dies after the disability ceases but within the
period allowed to him under this section, his legal representative may institute the
suit or make the application within the same period after the death, as would
otherwise have been available to that person had he not died.

Objective

The Law of limitation prescribes a time period within which a right can be enforced in a Court of Law.
The time period for various suits has been provided in the schedule of the Act. The main purpose of
this Act is to prevent litigation from being dragged for a long time and quick disposal of cases which
leads to effective litigation. As per the Jammu and Kashmir Reorganisation Act, 2019, provisions of
the Limitation Act will now apply to the whole of India. The Limitation Act, 1963 contains provisions
relating to the computation of time for the period of limitation, condonation of delay, etc. The
Limitation Act contains 32 sections and 137 articles and the articles are divided into 10 parts.

Condonation of delay

Condonation of delay means that extension of time given in certain cases provided there is sufficient
cause for such delay. Section 5 talks about the extension of the prescribed period in certain cases. It
provides that if the appellant or the applicant satisfies the court that he had sufficient cause to not
prefer the appeal or application within that period, such appeal or application can be admitted after the

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prescribed time. This Section further mentions that an application made under any of the provisions of
Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). The explanation states that in
ascertaining or computing the period prescribed when the applicant or appellant has been misled by
any order, practice or judgment of the High Court. It will be a sufficient cause within the meaning of
this section.

However, If a party does not show any cogent ground for delay then the application, suit or appeal will
be rejected by the court.

In the case of State of Kerala v. K. T. Shaduli Yussuff, the court held, whether or not there is sufficient
cause for condonation of delay is a question of fact dependant upon the circumstances of a particular
case.

Legal disabilities

Legal disability [Section 6]: Law of limitation relating to legally disabled persons is explained
below:

i. If a person entitled to institute a suit or make an application is a minor, insane or idiot at

the time of cause of action, the period of limitation to file a suit or to make an
application will start when such disability ceases.
ii. Where one legal disability is followed by another legal disability, the disabilities are
successive and the limitation period will run when all the legal disabilities are ceased.
iii. If a legal disability continues up to a death, then period of limitation will run for legal
representative (who is not legally disabled) from the date of death.
iv. Where a person under disability dies after the disability ceases but within the period
allowed to him under this section, his legal representative may institute the suit or make
the application within the same period after the death, as would otherwise have been
available to that person had he not died.

Effect of Acknowledgement
As per Section 18 of the Limitation Act, 1963, following are the requirements for a valid
acknowledgement:

i. There must be admission or acknowledgement.

ii. Such acknowledgement must be of an existing liability in respect of a property or right.
iii. It must be made in writing and signed by the party against whom such property or right
is claimed, and
iv. It must be made before the expiry of period of limitation.

If all the above conditions are satisfied, a fresh period of limitation shall be computed from the
time when the acknowledgement was signed.

https://www.taxmann.com/post/blog/5042/all-about-the-limitation-act-
1963/

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%20Remedy&text=The%20law%20of%20limitation%20only,a
%20defence%20to%20such%20actions

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