LL.B. (Hons.

) 7th Semester
Code of Civil Procedure & Law of Limitation-I (C.P.C.)
Unit – I
Syllabus: Introduction: definition: Decree, Judgement, Order, Foreign Court, Foreign Judgment, Men Profits,
Affidavit, Suit of a civil nature, Plaint, Written Statement, Legal Representative, Important Concepts: Res-sub-
justice, Resjudicata, Caveat, Inherent Power, Courts.
2013
Longs
Q.1. Discuss the concept of suits of a civil nature with the help of suitable examples.
nhokuh izd`fr ds okn ds fl)kUr dh mi;qDr mnkgj.kksa ds ek/;e ls foospuk dhft,A
Q.2. What are the provisions under C.P.C. regarding plaint? Discuss.
okn i= ds ckjs esa nh-iz-la- ds vUrxZr D;k&D;k micU/k gSa\ foospuk dhft,A
Shorts
1. Decree vkKfIr
2. Judgement fu.kZ;
3. Inherent powers of court U;k;ky; dh vUrfuZfgr “kfDr;kW
4. Res-judicata izkM~-U;k;
5. Representative suit. izfrfuf/k oknA
2014
Longs
Q.1. Define judgement. What are the ingredients of judgment? When judgment can be pronounced by the
court? Discuss.
fu.kZ; dks ifjHkkf’kr dhft,A fu.kZ; ds vko”;d rRo D;k D;k gSa \ U;k;ky; }kjk fu.kZ; dc lquk;k tk ldrk gS \ O;k[;k
dhft,A
Q.2. Define written statement. What are the provisions under C.P.C. regarding written statement ? Discuss.
fyf[kr dFku dks ifjHkkf’kr dhft,A lh0iz0la0 ds vUrxZr fyf[kr dFku ds ckjs esa D;k&D;k micU/k gSa \ O;k[;k dhft,A
Shorts
Affidavit “kiFk&i=
2017
Longs
Q.1. Define Judgment. What are the ingredients of judgment? Discuss.
fu.kZ; dks ifjHkkf’kr dhft,A fu.kZ; ds vko”;d rRo D;k&D;k gSa\ O;k[;k dhft,A
Q.2. Define Res Judicata. What are differences between Res Judicata and Estoppel? Discuss.
izkMU;k; dks ifjHkkf’kr dhft,A izkMU;k; ,oa focU/ku esa D;k&D;k vUrj gSa\ O;k[;k dhft,A
Shorts
1. Preliminary Decree
izkjfEHkd vkKfIRk
2. Affidavit
“kiFki=
3. Constructive Res judicata
Ikzyf{kr izk³U;k;
4. Order
vkns”k
Assignment/Test
Unit – I
Longs
1
Q.1. Define decree what are its essentials and how does it differ from order.
fMdzh dks ifjHkkf’kr dhft,A blds vko”;d rRo D;k gSa vkSj ;g vkns”k ls fdl izdkj fHkUu gSA
Q.2. “Res-judicata is a principle of public good” commit what are its essentials? How does it differ from
estoppels.
^^izkM~-U;k; ,d lkoZtfud fgr dk fl)kUr gSA^^ O;k[;k dhft,A blds vko”;d rRo D;k&D;k gSA focU/ku vkSj blesa D;k Hksn
gSA
Q.3. Define suit of civil nature with its essential elements.
nhokuh izd`fr ds oknksa dh blds vko”;d rRoksa ds lkFk O;k[;k dhft,A

LONG ANSWERS –
Q.1- Define decree what are its essentials and how does it differ from order.
Ans.-

This answer shall include following points.

1. Decree [S. 2(2) of C.P.C.] – means the formal expression of an Adjudication.
2. Conclusively determine right of the party.
3. Controversy in the suit may either preliminary or final.
4. Essential elements of decree
a. Adjudication
b. Adjudication must have been done in suit
c. Determination of Right of parties
d. Conclusive in nature
e. Class of decree
i. Preliminary
ii. Final
iii. Partial
5. Decision which are not decree
Decree6.[S. 2(2) of C.P.C.]
A ‘Decree’ has been defined in Section 2 (2) of the C.P.C. According to it, a decree means the formal
expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights
of the parties with regard to all or any of the matters in controversy in the suit and may either preliminary or
final. It shall be deemed to include the rejection of a plaint and the determination of any question witness
section 44, but shall not include –
a. Any adjudication from which an appeal lies as an appeal from an order. Or
b. Any order of dismissal for default.
Explanation – A decree is preliminary when further proceedings have to be taken before the suit can be
completely disposed of. It is final when such adjudication completely disposes of the suit. It may be party
preliminary and party final.
Essential Elements of a Decree – In order that a decision of a court may be a “decree’, the following elements
must be present :
1. There must be an adjudication.
2. Such adjudication must have been done in a suit.
3. It must have determined the rights of the parties with regard to all or any of the matters in controversy in
the suit.
4. Such determination must be of a conclusive nature; and
5. There must be a formal expression of such adjudication.
The following decisions are held to be decrees :-
i. Order of abatement of suit;
ii. Dismissal of appeal as time barred;
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iii. Dismissal of suit of appeal for want of evidence or proof;
iv. Rejection of plaint for non-payment of court-fees;
v. Granting or refusing to grant installment;
vi. Modification of scheme under Section 92 of the Code
vii. Order holding appeal not maintainable.
Decision which are not decrees :- Illustrations
The following decisions, on the other hand, are held not to be decrees :-
i. Dismissal of appeal for default;
ii. Appointment of Commissioner to take accounts;
iii. Order of remand;
iv. order granting interim relief;
v. Return of plaint for presentation to proper court;
vi. Dismissal of suit under Order 23, Rule 1;
vii. Refusing to wind up a company.
Classes of decrees – The code recognizes the following classes of decrees :
1. Preliminary decree;
2. Final decree; and
3. Party preliminary and party final decree.
1. Preliminary decree – Where an adjudication decides the rights of the parties with regard to all or any of
the matters in controversy in the suit, but does not completely dispose of the suit, it is a preliminary
decree. A preliminary decree is passed in those cases in which the court has first to adjudicate upon the
rights of the parties and has then to stay its hands for the time being, until it is in a position to pass a
final decree in the suit. In other words, a preliminary decree is only a stage in working out the rights of
the parties which are to be finally adjudicated by a final decree. Till then the suit continues.
[Awadhendra Prasad Vs. Raghuvansh Mani]
The code provides for passing of preliminary decrees in the following suits :-
a. Suits for possession and mesne profits Or. 20 R. 12
b. Administration suits Or. 20, R. 13
c. Suits for pre-emption Or. 20, R. 14
d. Suits for dissolution of partnership Or. 20, R. 15
e. Suits for accounts between principal and agent Or. 20, R. 16
f. Suits for partition and separate possession Or. 20, R. 18
g. Suits for Foreclosure of a mortgage Or. 34, Rr. 2-3
h. Suits for Sale of mortgaged property Or. 34, Rr. 4-5
i. Suits for redemption of a mortgage Or. 34, Rr. 7-8
The court observed in the case of Narayan v. Laxmi Narayan Air 1953 TC, The above list is, however
not exhaustive and a court may pass a preliminary decree in cases not expressly provided for in the code.
The Supreme court in Phoolchand v. Gopal Lal has observed that there is nothing in the code of
Civil Procedure which prohibits passing of more than one preliminary decree, if circumstantiates justify
the same and it may be necessary to do so.
The question whether a decision amounts to a preliminary decree or not is one of great
significance in view of the provisions of Section 97 of the Code which provides that : Where any party
aggrieved by a preliminary decree … does not appeal from such decree, he shall be precluded from
disputing its correctness in any appeal which may be preferred from the final decree.
Since the passing of a preliminary decree is only a stage prior to the passing of a final decree, if
an appeal preferred against a preliminary decree succeeds, the final decree automatically falls to the
ground for there is no preliminary decree thereafter in support of it. It is not necessary in such a case for
the defendant to go to the Court passing the final decree and ask it to set aside the final decree.
2. Final Decree – A decree may be said to be final in two ways -

3
 a. When within the prescribed period no appeal is filed against the decree or the matter has been
decided by the decree of the highest court; and
b. When the decree, so far as regards the court passing it, completely disposes of the suit.
It is in the latter sense that the words “Final decree” are used here.
A final decree is one which completely disposes of a suit and finally settles all questions in
controversy between parties and nothing further remains to be decided thereafter. Thus, in a suit for
recovery of money, if the amount found due to the decree-holder is declared and the manner in which
the amount is to be paid has also been laid down, the decree is a final decree. Similarly, a decree passed
for a sum representing past mesne profits and future mesne profits at a particular rate, without
directing any further enquiry is final decree.
Ordinarily, there will be one final decree in a suit. Special circumstances, however may require
passing of more than one final decree in the same suit.
_________________________________________________________________________________________
Q.2- “Res judicata is a principal of public good”. Comment. What are its essentials? How does it differ
from estoppels .
ANS.
This answer shall include following points.
“Res judicata
1- Final Judgment of competent Court of Law.
2- Doctrine of Res judicata – based on 3 Maxim
a. Nemo debt bis vexari Prouna et endem cours
b. Interest republicae utsit finis litium
c. Res judicat pro vertitate occipiter
3. Essential element of Res Judicata Sec. 11
a. Former suit & Subsequent Suit
b. Diversity & Substantially in issue
c. Parties in both must have litigated
d. Court decide the former suit must competent to try subsequent suit.
e. Matter heard and finally decided by the Court

RES JUDICATA [S-11 OF C.P.C.]

Res judicata means that a final judgment of a competent court of law may not be disputed on the issue it
has finally settled by the parties or their successors in any subsequent legal proceeding according to section-11
of code of civil procedure :-
No court shall try any suit or issue in which the matter directly and substantially in issue in as former
suit between the same parties, or between parties under whom they or any of them claim litigating under the
same title, in a Court competent to try such subsequent suit or the suit or the suit in which such issue has been
subsequently raised. And has been heard and finally decided by such court.
Object :- The doctrine of res judicata is based on three Latin maxims :-
a. nemo debet bis vexariprouna et endem causa, that is no one shall be vexed twice over tor the
same cause of action;
b. interest republicae utsit finis litium :- that is , it in the interest of state that there should be an end
to litigation; and
c. res judicat pro vertitate occipiter that is a judicaial decision must be accepted as
correct.
1. The first maximum expresses the concept of private justice. It looks to the interest of the litigant. Who
should be protected from a vexatius multiplicity of suits otherwise a party of means and capacity may
overawe his adversary by constant dread to litigation. The principle of res-dudicata is intended not only
to prevent a new decision but also to prevent a new investigation so that the same person can not be
harassed against and again in various proceedings upon the same question.
4
2. The second maxim is the result of public policy that there should be an end to litigation otherwise if suit
were allowed to be filed endlessly for the same cause of action nit would be plainly impossible for the
existing courts to cope with ever growing litigation.
3. The third maxim is also based on public policy, the judicial decisions must be accepted as correct. In
other words, it enacts a rule of conclusiveness of judgments as to the points decided in every subsequent
suit between the same parties. The doctrine of res-judicata is a universal doctrine laying down the
finality of litigation between the parties when a particular decision has become final and binding
between the parties. It was decided by the Supreme Court in the case of Lal Chand V. Radhe Kishan that
justice, equity and good conscience is one of the bases of this doctrine.
Essential Elements of Res-judicata [S. 11] :-
1. There must be two suits one former suit and the other subsequent suit;
2. The matter directly and substantially in issue in the subsequent suit or issue must be the same matter
which was directly and substantially in issue either actually or constructively in the former suits.
3. The parties to the suit or the parties under whom they or any of them claim must be the same in both the
suits;
4. The parties in both suits must have litigated under the same title.
5. The Court which decided the former suit must be competent to try subsequent suit subject to the
provisions of Expl. VIII or the suit in which such issue is subsequently raised and
6. The matter directly and substantially in issue in the subsequent suit must have been heard and finally
decided by the court in the former suit.
a. Former Suit :- The expression ‘former suit’ as used in Section 11 necessarily implies that there must be
two suits or proceedings for the application of the section. In view of explanation I former suit means
previously decided suit although in point of time it might have been instituted subsequently.
Explaining former suit the Supreme Court of India observed in Venkateswara Prabhu V.
Krishna Prabhu that former suit according to Explanation I of Section 11. Civil Procedure Code makes
it clear that if a decision is given before the institution of the proceedings which is sought to be barred
by res judicata and that decision is allowed to become final or becomes final by operation of law a bar of
res judicata would emerge. In this case the Supreme Court affirmed its earlier decision in Lonankutty
V. Themman, AIR 1976 S.C.
Date of commencement of a litigation is not material for the purpose of res-judicata, what is
material is the date when a judge is called upon to decide the issue or the date of decision. [Shodan
Singh v. Daryao Kumvar AIR 1966 S.C.].

b. Matter directly and substantially in issue :- Matter in issue may be divided as follows-
i. Matters directly and substantially in issue and
ii. Matters collaterally or incidentally in issue.
Again matters directly and substantially can be divided into two categories :-
1. Matters actually in issue (Explannation III)
2. Matters constructively in issue (Explanation IV)

Matter in Issue

Matters directly and Matter Collaterally on

Substantially in issue incidentally in issue

Actually in issue Constructively in issue

(Explanation III) (Explanation IV)
5
 i. Matter directly and substantially in issue :- When can a matter be said to be directly and
substantially in issue? In order to answer this query, the help of Explanation III can in sought. A matter
will be directly and substantially in issue if it has been alleged by one party and either denial or admitted
expressly or impliedly, by the either in the former suit. The matter may not operate res-judicata in
subsequent suit unless it was directly and substantially in former suit.
According to Mulla, every matter in respect of which relief is claimed in a suit is necessarily a
matter “directly and Substantially in issue.
ii. Matter Collaterally or incidentally in issue :- It was decided by the court in the case of Bank
of India v. M/s Mehta Brothers, AIR S.C. 1991 Del. That if any matter is collaterally or incidentally
in issue it will not operate as res judicata.
c. Same Parties :- Third essential element of Res judicata is that the former suit have been suit between
the same parties under whom they or any their claim. This element is base on well known principle that
decrees and judgments bind only parties or privies.
d. Litigating under the same title :- The parties to the subsequent suit must have litigated under the same
title in the former suit. Same title means “Same Capacity”. It has been held in a number of cases that a
verdict against a man saving in one capacity will not stop him when he sues in another distinct capacity,
and in fact is a different person in law.
e. Competency of the Court trying former issue :- The previous suit must have been decided by the
competent court, the decision given by it would operate as resjudicata in subsequent suit. Competency
of court means as regards the pecuniary limit as well as the subject matter of the suit. Competency in S-
11 has no reference to the territorial jurisdiction of the court.
f. Heard and Finaly Decided :- This is final condition for application of the rule of res-dudicata is that
the matter directly and substantially in issue in the subsequent suit must have been heard and finally
decided by the court in the former suit.
The expression “heard and finally decided” implied that :
i. The court has exercised its judicial mind and has after argument and consideration came to a
decision on a contested matter; and
ii. Its decision has become final.
Therefore, the requirement of the section is that there should be final decision on which the court has exercised
its judicial mind. A decision is not a final if it is subject to the decision of High Court.

Q.3. Define suit of civil nature with its essential elements.

Ans.
This answer shall include following points.
Suit of Civil Nature Sec. 9
1. Court shall have Jurisdiction to try all suit of Civil Nature.
2. Cognizance is either expressly or impliedly barred.
3. Relevant case on the Sec. 9 is
 Dhulabhai Vs. State of U.P.
 P.K. Development Authority Vs. R. Bhadra
4. Object of the suit of Civil Nature enforcement of Civil Right of citizen.
5. Civil Court exercise general Jurisdiction of civil nature.

(a) Suit of a civil nature—Section 9 of the Code lays down that the courts shall have jurisdiction to try all
suits of civil nature excepting suits of which their cognizance is either expressly or implidly barred. A suit of a
civil nature is sit of the object of which is the enforcement of a civil right or a civil obligation, that is, the right
or obligation of a citizen. Rights which do not inherit in a person, a citizen of a State, but exist only by virtue of
his being a member of estate or religious community, are not civil rights. It follows that a suit is of civil nature
6
if the principal question in the suit relates to a civil right, or a right to property or to an office. It is the subject-
matter of the suit which determines whether or not a suit is one of a civil nature.
The explanation appended to S.9 shows that if the principal or the only question in the suit relates to a
caste question or to religious rites or ceremonies, the suit is not a civil nature, since it deals not with rights of
persons but with matters purely social. But when a caste question or a question relating to religious rites or
ceremonies is not the principal but only a subsidiary question in the suit and the principal question is of a civil
nature, e.g., it relates to a right to property or to an office or to any civil right, and such question of civil nature
cannot be decided without decided the caste question or the question or the question relating to religious rites or
ceremonies, the court has the power to determine the caste question or the question relating to religious rites or
ceremonies to enable it to decide the principal question.
By C.P.C. (Amendment) Act, NO. 104 of 1976, the number of the original Explanation under Section 9
has been numbered as Explanation I and Explanation II has been newly inserted which runs as follows :
For the purposes of this section, it is immaterial whether or not any fees are attached to the office
referred to in Explanation I or whether or not such office is attached to particular place.
Exclusion of Civil Court’s Jurisdiction—Civil Courts exercise general jurisdiction of civil nature as conferred
by Section 9 and it is well established that the exclusion of such jurisdiction is not to be readily inferred. The
question of exclusion of civil court’s jurisdiction has been considered by the Supreme Court in many cases. In
case of Dhulabhai v. State of M.P. (AIR 1969 SC 78), has laid down the principles for considering the exclusion
of civil court’s jurisdiction which are as under—
(i) Where the statute gives a finality to the orders of the special tribunals the civil court’s jurisdiction must be
held to be excluded if there is adequate remedy to do what the civil courts would be normally do in a suit.
Such a provision, however, does not exclude those cases where the provisions of the particular Act has not
been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of
judicial procedure.
The decision given in the recent case of P.K. Development Authority v. R. Bhadra, AIR 2002 Ori. 207 is
quite pertinent in this regard. The Court found that the person aggrieved by an order of demolition passed under
Section 91 of the Orissa Development Authority Act, 1982 has adequate and efficacious remedy in the shape of
appeal before the State Government. The legislative in its wisdom made the decisions under the Act conclusive
and final with a further stipulation that same shall not be questioned in any Court of law. It was pointed out that
it was not for the High Court to question that wisdom. The High Court observed that “Thus the conclusion is
irresistible that without exhausting the remedies under the said Act, a person cannot knock at the door of a
Civil Court that the Civil Court has no jurisdiction to entertain such a suit.”
(ii) Where there ins an express bar of the jurisdiction of the court, an examination of the scheme of the
particular Act to find the adequacy or the sufficiency or the remedies provided may be relevant but it
is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the
examination of the remedies and the scheme of the particular Act to find out the intendment become
necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the
statute creates a special right or a liability and provides for the determination of the right or liability
and further lays down that all questions about the said right and liability shall be determined by the
tribunals so constituted, and whether remedies associated with actions in civil courts are prescribed
by the said statute or not.
(iii) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals
constituted under the Act. Even the High Courts cannot go into that question on a revision or
reference from the decision of the Tribunals.
(iv) When a provision is already declared unconstitutional or the constitutionality of any provision is to
be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is
within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(v) Where the particular Act contains no machinery for refund of tax collected in excess of
constitutional limits or illegally collected a suit lies.

7
(vi) Questions of the correctness of the assessment apart from its constitutionality are for the decision ofa
the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or
there is an express prohibition in the particular Act. In either case the scheme of the particular Act
must be examined because it is a relevant enquiry.
(vii) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions
above set down apply.
In this connection see also Raja Ram Kumar Bhargava v. Union of India, AIR 1988 SC752, and State of
M.P. v. Gyasiram, AIR 1933 MP155.

8
 LL.B. (Hons.) 7th Semester
Code of Civil Procedure & Law of Limitation-I (C.P.C.)
Unit – II
Syllabus: Initial Steps in a Suit: Jurisdiction and place of suing, Institution of suit, Pleading:
Meaning, Object, General Rules, Amendment of Pleading, Plaint and Written statement, Parties
to a suit, Discovery, Inspection and Production of documents, Appearance and non-appearance
of parties, First hearing.
2013
Longs
Q.1. What are the provisions under C.P.C. relating to place of suing? Discuss.
okn nk;j djus ds LFkku ds lEcU/k esa nh0iz0la0 ds vUrxZr D;k&D;k micU/ksa gSa\ foospuk dhft,A
Q.2. “Every pleading must state all the material facts and material facts only.” Comment. Give
exception, if any.
^^izR;sd vfHkopu esa lHkh lkjoku rF;ksa vkSj dsoy lkjoku rF;ksa dk gh vfHkopu fd;k tkuk pkfg,A^^ foospuk
dhft,A viokn ;fn dksbZ gks rks crkb,A
Shorts
1. Written statement
fyf[kr dFku
2014

Longs
Q.1. “Every pleading must state facts not law.” Comment.
ÞizR;sd vfHkopu esa rF;ksa dk vfHkdu fd;k tkuk pkfg, fof/k dk ughaAÞ foospuk dhft,A
Q.2. Explain the provisions of C.P.C. which are applied in determining the forum for the
institution of suit relating to immovable property.
A, who resides in Lucknow sells a plot of land situate at Gorakhpur to B who resides at
Barabanki for Rs. Fifty lacs. B had paid half price to A. A now wishes to file a suit for
recovery of remainder amount. What should he do? Give reason for your answer.
flfoy izfØ;k lafgrk ds mu micU/kksa dks le>kb, ftudh vpy lEifRr ls lEcfU/kr okn nk;j djus ds okn
LFky ds fu/kkZj.k ds fy, ykxw fd;k tkrk gSA
v] tks y[kuÅ dk fuoklh gSA viuk xksj[kiqj esa fLFkfr ,d edku ipkl yk[k #i;s esa ckjkcadh fuoklh ds
i{k esa csp nsrk gSA c ewY; dh vk/kh jkf”k pqdk nsrk gSA v] c ls cdk;k /kujkf”k izkfIr djus ds fy, okn
nk;j djuk pkgrk gSA mls okn dgk¡ nk;j djuk gksxk \ dkj.k lfgr mRrj nht,A
Shorts
1. Oral pleading ekSf[kd vfHkopu
2. Facta probanda QSDVk izkscS.Mk
3. Facta probantia QSDVk izkscSfU”k;k
4. Cause of action okn dk dkj.k
5. Verification of pleadings vfHkopuksa dk lR;kiu
1. Additional Pleas vfrfjDr dFkusa
2. Process vknsf”kdk
3. Execution fu’iknu
4. Non-joinder vla;kstu
9
 2017
Longs
Q.1. Define Plaint. “Every pleading must state fact not Law”. Discuss.
Okkn&i= dks ifjHkkf’kr dhft,A ÞizR;sd vfHkopu esa rF;ksa dk vfHkdFku djuk pkfg, fof/k dk ughaAÞ O;k[;k dhft,A
Q.2. What are the provisions under the Code of Civil Procedure, 1908, regarding place of suing? Discuss.
nhokuh izfØ;k lafgrk] 1908 ds vUrxZr] eqdnek nkf[ky djus dk LFkku] ds ckjs esa D;k&D;k micU/k gSa\ O;k[;k dhft,A
Shorts
1. Process
vknsf”kdk
2. Written Statement
fyf[kr dFku
3. Cause of action
Okkn dk dkj.k
4. Oral pleadings
ekSf[kd vfHkopuksa
Assignment/Test
Unit – II
Longs
Q.1. What are the fundamental rules of pleadings? Discuss the rule ‘Plead facts not law’ with the help of
suitable examples. What are the exceptions to this rule? Explain.
vfHkopu ds vk/kkjHkwr fu;e D;k gS\ mi;qDr mnkgj.kksa dh lgk;rk ls fu;e ^rF;ksa dk vfHkopu dhft, fof/k dk ugh^ dh
foospuk dhft,A bl fu;e ds viokn D;k gS\ O;k[;k dhft,A
Q.2. What are the provisions relating to place of filing a suit. Write in detail. “The principle behind the
provisions of Sec. 20(a) and sec 20(b) of the code of civil procedure is that the suit be instituted at a
place where the defendant able to defend the suit without undue trouble”. Comment.
okn nk;j djus ds LFkku lEcU/kh izko/kku D;k gSA foLrkj ls fy[ksAa ^^flfoy izfdz;k lafgrk dh /kkjk 20¼d½ ,oa 20 ¼[k½ ds
izko/kkuksa ds ihNs vUrfuZfgr fl)kUr ;g gS fd okn dks ,sls LFkku ij nk;j fd;k tk, tgkW izfroknh okn dk cpko fcuk
vlE;d dfBukbZ ds dj ldsA^^ fVIi.kh dhft,A
Q.3. Explain Plaint and Written Statement with its essential elements.
Okkni= rFkk fyf[kr dFku dh vko”;d rRoksa lfgr foospuk dhft,A

Answers
Question 1: What are the fundamental rules of pleading? Discuss the rules ‘Plead facts not law’ with the help
of suitable examples. What are the exceptions to this rule? Explain.
Answer1:
This answer shall include following points.
Fundamental Rules of Pleading.
1. Pleading must state fact’s not law.
2. Pleading must state all the material fact.
3. Pleading must state only the fact.
4. Pleading must state consciously.

Fundamental Rules of Pleadings :- Some fundamental rules of pleadings have been prescribed in Civil
procedure code (Act V of 1908). They are as follows :-
1. A pleading must state facts and not law;
2. A pleading must state all the material facts and material facts alone;

10
3. A pleading must state only the fact on which the party pleading relies and not evidence by which they
are to be proved.
4. A pleading must state facts concisely but in a precise form with certainty.
1. A Pleading must state facts and not law :- One of the fundamental rule of pleadings is that “Every
pleading must stats facts and not law” This rule has following two aspects :-
a. Alternative aspects:- Alternative aspect of this rule directs that the pleadings must state only
the facts.
b. Negative aspects:- Negative aspect of this rule directs that law must not be stated in the
pleadings. It includes –
i. The provisions of law
ii. Conclusions of law and
iii. Conclusions of mixed facts and law
The reason behind this rule is that it is the duty of the court to examine and then find out of pleas
of law which may possibly apply to the facts stated in the pleadings.
Exceptions :-

a. Custom – If a plaintiff asserts his right or claim on the basis of a custom, he will have to plead
it.
b. Legal pleas – The general rules does not deprive a plaintiff to mention legal pleas like ‘the
suit is barred by the res judicata or by limitation etc. such pleas can appropriately be stated in
the pleadings by the plaintiffs.
c. Inference of law - Where the object of stating inference of law is to throw light upon the facts
so as to make them more intelligible and understandable, such inference or law can be stated in the
pleading in exception of the general rule.
d. Question of law and fact – All such issues, in which the mixed question of law and fact is
involved, can be stated in the pleading such issues are not allowed to raised thereafter.
2. A pleading must State Material Facts only – Material facts means all facts upon which the plaintiff’s
cause of action or the defendants’ defense depends.
In Udhav Singh v. Madhav Singh AIR 1976, the Supreme Court has defined the expression
“All the primary facts which must be proved at the trial by a party to establish the existence of a cause of
action or his defense are material facts.
Material facts are primary and basic facts which must be pleaded by the party in support of the
case set up by it. Since the object and purpose is to enable the opposite party to know the case it has to
meet, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state material
facts, hence, will entail dismissal of the suit.
Exceptions :-
a. Condition Precedent
b. Presumption of Law
c. Facts not essential for the cause of action
3. Plead facts not Evidence :- The pleading should contain a statement of material facts on which the
party relies but not the evidence by which those facts are not proved.
a. Facta Probanda :- The facts required to be proved (Material facts) and;
b. Facta Probantia :- the facts by means of which they are to be proved (particulars or evidence).
The pleadings should contain only facta probanda and not facta probantia.
Exception :- Facta probantia may be stated in writ petitions and suit relating to election.
4. Concise Form :- The fourth and the last general principle of pleadings is that the pleadings should be
drafted with sufficient brevity and precision. The material facts should be stated precisely and
coherently.
The words “in a “concise form” are definitely suggestive of the fact that brevity should be adhered to
while drafting pleading.
11
 Every pleading should be divided into paragraphs and sub-paragraphs. Each allegation should be
contained in separate paragraphs. Dates, Totals and numbers must be mentioned in figures as well as in
words.
All material facts must be stated in a summary form, as briefly as the nature of the case requires.
Immaterial averments and unnecessary details must be omitted and material allegations and not
necessary particulars must be included.
________________________________________________________________________________________
Question 2: What are the provisions relating to place of filing a suit. Write in detail. “the Principle behind the
provisions sec. 20 (a) and sec. 20 (b) of the code of civil procedure is that the suit be instituted at a place where
the defendant be able to defend the suit without undue trouble”. Comment.

Answer :

This answer shall include following points.

Place of Suing
1. Sec. 15 every suit shall be instituted in the Court of Lowest grade.
2. Sect. 16-18- Relating to Immovable Property.
3. Sec. 19 Suit for compensation for wrong to a person.
4. Residuary sec. Sec. 20
5. Sec. 16 a to e Jurisdiction in which immovable Property situated.
6. Sec. 17 Court within any portion of the property situated and provided pecuniary
Jurisdiction of such Court.
7. Sec. 18 Court has pecuniary Jurisdiction and Jurisdiction as regard subject matter of
the suit. Sec. 19 Court at the option of the Plaintiff.
8. Where Court of Action wholly or partly arises.
9. Defendant Reside carries on business or personally work for gain.

Place of Suing
According to Section 15, every suit shall be instituted in the court of the lowest grade competent
to try section 16 to 18 deal with suits relating to immovable property. S-19 applies to suits for compensation for
wrong to a person or to movable property. S-20 is a residuary section and covers all cases not dealt with S-15 to
19.
Sno. Nature of Suit Place of Suing
1. Every suit Court of the lowest grade competent to try it
(Section 15)
2. Suit for
i) Recovery of Court within whose jurisdiction the immovable
ii) Partition of; property is situate [Section 16(a) to (e)]
iii) Foreclosure, sale or redemption of
mortgage of or charge upon;
iv) Determination of any other right to or
interest in;
v) Compensation for wrong to immovable
property-
3. Recovery of movable property under actual Court within whose jurisdiction the immovable
distraint or attachment. property is situate [Section 16(f)]
4. i. Relief respecting; or Court within whose jurisdiction –
ii. Compensation for wrong to – i. the property is situate; or
- immovable property held by or on behalf of ii. the defendant resides, or carries on business or
the defendant; where the relief sought can be personally works for gain (proviso to Setion 16)
12
 entirely obtained through his personal [equitacts in personam]
obedience –
5. i. Relief respecting; or Court within whose jurisdiction any portion of the
ii. Compensation for wrong to – property is situate, provided that the entire claim is
immovable property situate within the within the pecuniary jurisdiction of such court
jurisdiction of different courts – (section 17)
6. Where it is uncertain within the jurisdiction of Any of those courts, provided that the court has
which of two or more courts any immovable pecuniary jurisdiction and jurisdiction as regards the
property is situate – subject matter of the suit. (Section 18)
7. Compensation for wrong to – In either of the courts at the option of the plaintiff
i. Person, or (Section 19)
ii. Movable Property –
if the wrong is done within the jurisdiction
of one court and the defendant resides or
carries on business or personally works for
gain within the jurisdiction of another court –
8. Any other suit – (Section -20) i) Where the cause of action wholly or partly arises;
or
ii) The defendant resides, carries on business or
personally works for gain; or
iii) Where there are two or more defendants, where
any one of them resides, carries on business or
personally works for gain, provided that –
a) either the leave of the court is obtained
b) the defendants, who do not reside, carry on
business or personally work for gain acquiesce
(Section-20)

Q.3. Explain Plaint and Written Statement with its essential elements.
Ans. This answer shall include following points.
Plaint and Written Statement
1. Name of the Court
2. Name, Description and place of residence of the Plaintiff.
3. Name description and place of residence of the defendant.
4. Facts Constituting cause of Action
5. Court Jurisdiction.
6. Value of the Suit
Written Statement – O-VIII
1. Defendant has to submit Written Statement within a period of 30 days from the
date of service of summon.
2. Period may be extended upto 90 days.
3. In case of Kailash Vs. Nankhu Su. Co. observed or –VIII R-1 fixing time for
filing written statement are directory not mandatory.

Particulars to be contained in plaint—The plaint shall contain the following particulars:-

(a) The name of the Court in which the suit is brought ;
(b) The name, description and place of residence of the plaintiff;

13
 (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 minor or a person of unsound mind, a statement to the
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 the value of the subject-matter of the suit for the purposes of jurisdiction and of
Court-fees, so far as the case admits.
Written Statement

As the pleading of the plaintiff is his plaint, so the pleading of the defendant is his written
statement. ‘Written Statement’ is the pleading filed by the defendant in a suit stating his ground of
defence.
Order VIII, Rule I makes it obligatory on the defendant to submit his written statement within a
period of thirty days from the date of the service of summons. But if the defendant fails to submit his
written statement within the said period of thirty days, the period may be extended by the Court but it
will not exceed ninety days counted from the date of the service of the summons. In other words, the
defendant failing to file the written statement within thirty days, though the period can be extended but
in no case it will exceed ninety days. The Court has to record the reasons in writing for extending the
time. It should be remembered that the written statement of one defendant does not bind the others.
It has been held by the Delhi High Court that non-appearance of counsel is no reason for the
party not to comply with the order of filing written statement, especially when the order requiring filing
of the written statement, is known to, and communicated to the party.
When the defendant failed to file written statement within 30 days under amended Rule 1 and no
prayer was made for extending time under the proviso, held time cannot be extended under Order VIII,
Rule 9 as filing of written statement is exclusively governed by Rule 1 of Order VIII. The right to file
the written statement is lost. It cannot be extended even under the exercise of inherent jurisdiction
under Section 151.
Whether the maximum period of 90 dads contemplated under this rule can further be extended?
The Supreme Court of India says ‘yes’, but subject to certain conditions. The Supreme corut observed
in Kailash v. Nankhu, that provisions of Order VIII, Rule 1 fixing time for tiling of written statement
are directory and not mandatory, since it is a part of procedural law. Rule 1 of the Order VIII spells out
disability on the defendant, it does not impose embargo on Courts powers. Extension of time beyond
90 days may be allowed:

(i) for the circumstances which are exceptional;

(ii) occasioned beyond the control of the defendant; and
(iii) grave injustice would be caused if the time was not extended.
(iv) Costs may be imposed and affidavit or documents in support of grounds pleased of by the
defendant for extension of time may be demanded, depending upon the facts and circumstances of
given case.

14
 Unit- III

Syllabus: Interim Orders: Commission, arrest before judgment, Attachment before judgments,
Temporary Injunctions, Interlocutory Order, Receiver, Security of costs.
2013
Longs
Q.1. What are the provisions under C.P.C. in respect of arrest and attachment before
judgement? Discuss.
fu.kZ; ds iwoZ fxj¶rkjh ,oa dqdhZ ds lEcU/k esa nh0iz0la0 ds vUrxZr D;k&D;k micU/ksa gSa\ foospuk dhft,A
Q.2. What do you mean by ‘Temporary Injunction’ and ‘Interlocutory order’? Discuss.
^vLFkk;h fu’ks/kkKk^ ,oa ^okndkyhu vkns”k^ ls vkidk D;k rkRi;Z gS\ foospuk dhft,A
Shorts
1. Commission deh”ku
2. Receiver fjlhoj
2014
Longs
Q.1. State the circumstances in which the court issues a commission.
mu ifjfLFkfr;ksa dk o.kZu dhft, ftuesa U;k;ky; deh”ku tkjh dj ldrk gSA
Q.2. Write short notes on the following:
(a) Security for costs
(b) Interlocutory order
(c) Receiver
2017
Longs
Q.1. Write short notes on the following:
fuEufyf[kr ij laf{kIr fVIif.k;k¡ fyf[k, %
(a) Interlocutary order
Okkndkyhu vkns”k
(b) Security for costs
[kpsZ ds fy, izfrHkwfr
(c) Receiver
vknkrk ¼fjlhoj½
Q.2. What are the provisions under C.P.C. regarding arrest and attachment before judgment? Discuss.
fu.kZ; ds iwoZ fxj¶rkjh ,oa dqdhZ ds ckjs esa nh-iz-la- ds vUrxZr D;k&D;k micU/k gSa\ foospuk dhft,A
Shorts
- No Shorts -
Assignment/Test
Unit – III
Longs
Q.1. What are the powers of the court to issue commission and what is its procedure? What is the meaning of
“commission to other courts”? In which cases court may issue commission?
deh”ku fudkyus dh U;k;ky; dh “kfDr;ka D;k gS ,oa bldh izfdz;k D;k gSA ^^vU; U;k;ky;ksa ds deh”ku^^ dk D;k vFkZ gS\
U;k;ky; fdu oknksa esa deh”ku tkjh dj ldrk gSA
Q.2. What are temporary injunctions and when the court can grant it? Explain referring to or 39 of the C.P.C.
15
 vLFkk;h O;kns”k D;k gksrs gS ,oa U;k;ky; bUgsa dc iznku dj ldrk gSA nhokuh izfdz;k lafgrk ds vkns”k 39 dk lUnHkZ nsrs gq,
Li’V djsaA
Q.3. Explain arrest before judgment and attachment before judgment.
fu.kZ; ds iwoZ fxj¶rkjh rFkk fu.kZ; ds iwoZ dqdhZ dh O;k[;k dhft,A

Ques. 1. What are the powers of the Court to issue commission and what is its procedure? What is the meaning
of “commission to other courts”? In which cases court may issue commission?
Answer 1:

This answer shall include following points.

1. Issue of commissions : Section 75
2. Provision mentioned in Order 26
3. To Examine witnesses : Section 76-78;
4. Provision mentioned Order 26, Rule 1-8
5. Court may issue a commission for the examination on interrogatories
6. To make Local Investigation.
COMMISSIONS : ORDER 26

(1) Issue of commissions : Section 75

Section 75 to 78 deal with the powers of the court to issue commissions and detailed a provisions have
been made in Order 26 of the Code. The power of the court to issue commission is discretionary and can
be exercised by the court either on an application by a party to the suit or of its own motion (suo motu).
(2) Purposes: Section 75
Section 75 enacts that a court may issue a commission for any of the following purposes:
(i) To examine witnesses;
(ii) To adjust accounts;
(iii) To adjust accounts;
(iv) To make partition
(v) To hold investigation;
(vi) To conduct sale; or
(vii) To perform ministerial act
(3)
(a) To Examine witnesses : Section 76-78; Order 26, Rule 1-8
As a general rule, the evidence of a witness in an action, whether he is a party to the suit or not, should
be taken in open court and tested by cross-examination. Inability to attend the court on grounds of
sickness or infirmity or detriment to the public interest may justify issue of commission. The court has a
discretion to relax the rule of attendance in court where the person sought to be examined as a witness
resides beyond the local limits of the jurisdiction of the court or on any other ground which the court
thinks sufficient , e.g., a witness, who being a paramhansa always remained in naked condition, can be
examined on commission. Similarly, if a party or a witness apprehends danger to his life if he appears
before the court, he can be examined on commission. On the other hand, where a party accused of fraud
seeks to examine himself on commission, the court may refuse the prayer since the opportunity of noting
his demeanour would be lost. The power, however, should not be exercised on the ground that the
witness is a man of rank or having social status and it will be derogatory for him to appear in person in
16
 court. Sections 75 to 78 deal with the powers of the court to issue commissions and detailed provisions
have been made in order 26 of the Code.
The court may issue a commission for the examination on interrogatories or otherwise of any
person in the following circumstances:
(i) If the person to be examined as a witness resides within the local limits of the court’s
jurisdiction, and (i) is exempted under the code from attending court; or (ii) is from sickness or
infirmity unable to attend court or (iii) in the interest of justice, or for expeditious disposal of the
case or for any reason his examination on commission will be proper.
(ii) If he resides beyond the local limits of the jurisdiction of the court, or
(iii) If he is about to leave the jurisdiction of the court, or
(iv) If he is a government servant and cannot, in the opinion of the court, attend without detriment to
the public service; or
(v) If he is residing out of India and the court is satisfied that his evidence is necessary.
The court may issued such a commission either suo motu (of its own motion) or on the
application of any party to the suit or of the witness to be examined. The evidence taken on commission
shall form part of the record. It shall, however, not be read in evidence in the suit without the consent of
the party against whom if is offered, unless (a) the person, who gave the evidence, is beyond the
jurisdiction of the court, or dead or unable from sickness or infirmity to attend to be personally
examined or exempted from personal appearance in court, or is a person in the service of the
government who cannot, in the opinion of the court, attend without detriment to the public service, or
(b) the court in its discretion dispenses with the proof of any of such circumstances.
(b) To make local investigation: Rule 9 & 10

The court may, in any suit, issue a commission to such person as it thinks fit directing him to make local
investigation and to report thereon for the purpose of (a) elucidating any matter in dispute or (b) ascertain the
market value of any property or the amount of any menses profits or damages or annual net profits.

The object of local investigation is not to collect evidence which can be taken in court but to obtain
evidence which from its very peculiar nature can be had only on the spot. Such evidence enables the court to
properly and correctly understand and assess the evidence or record and clarify any point which is left
doubtful. It also helps the court in deciding the question in controversy pending before it, e.g. whether the
suit premises is really occupied by the tenant or by strangers.

(c) To adjust accounts : Rules 11 & 12

In any suit in which an examination or adjustment of accounts is necessary, the court may issue a
commission to such person as it thinks fit directing him to make such examination or adjustment. The court, for
this purpose, shall issue necessary instructions to the Commissioner. The proceedings and the report (if any) of
the Commissioner shall be evidence in the suit.

(d) To make partition : Rules 13 & 14

Where a preliminary decree for partition of immovable property has been passed, the court may issue a
commission to such person as it thinks fit to make a partition or separation according to the rights declared in
such decree. The Commissioner shall , after such inquirty as may necessary, divide the property into the
required number of shares and a lot them to the parties. He will then prepare a report appointing the share of
17
each party and distinguishing the same by metes and bounds and transmit it to the court. The Court shall, after
hearing the objections of different parties, make the final allotment.

(e) To hold investigation : Rule 10-A

Where, in any question arising in a suit involves any scientific investigation which cannot, in the
opinion of the court, be conveniently conducted before the court, the court may, if it thinks it necessary or
expedient in the interest of justice so to do, issue a commission to such person as it thinks fit, directing him
to inquire into such question and report thereon to the court.
(f) To sell property : Rule 10-C
Where, in any suit, it becomes necessary to sell any movable property which ins in the custody of the
court pending the determination of the suit and which cannot be conveniently preserved, the court may, if ,
for reasons to be recorded, is of opinion that it is necessary or expedient in the interest of justice so do, issue
a commission to such person as it thinks fit, directing him to conduct such sale and report thereon to the
court.
(g) To perform ministerial Act : 10-B
Where any question arising in a suit involves the performance of any ministerial act which cannot, in the
opinion of the court, be conveniently performed before the court, the court may, if, for reasons to be
recorded, is of opinion that it is necessary or expedient in the interest of justice so to do, issue a commission
to such person as it thinks fit, directing him to perform that ministerial act and report thereon to the court.

Ques. 2: What are temporary injunctions and when the Court can grant it? Explain referring to or 39 of
the C.P.C.?
Answer 2: This answer shall include following points.
TEMPORARY INJUNCTIONS
1. Order 39, Rules 1-5
2. Definition- Injunction is a Judicial process where a party is required to do.
3. Object- Primary purposes of granting Interim Relief.
4. Type- two-
a. Temporary
b. Permanent
5. Plaintiff may file against a party not against stranger.

TEMPORARY INJUNCTIONS: ORDER 39, RULES 1-5

(1) General
Every Court is constituted for the purpose of administering justice among parties and, therefore, must be
deemed to posses all such powers as may be necessary to do full and complete justice to the parties before it
determination of his rights in a suit or any other proceedings. Therefore, a court undoubtedly possesses the
power to grant interim relief during the pendency of the suit. Temporary injunctions are thus injunctions
issued during the pendency of proceedings.
(2) Definition-
An injunction is a judicial process whereby a party is required to do, or to refrain from doing, any
particular act. It is a remedy in the form of an order of the court addressed to a particular person that either
prohibits him from doing or continuing to do a particular act (prohibitory injunction); or orders him to carry
out a certain act (mandatory injunctions).
(3) Object-
18
 The primary purpose of granting interim relief is the preservation of property in dispute till legal
rights and conflicting claims of the parties before the court are adjuacated. In other words, the object of
making an order regarding interim relief is to evolve a workable formula to the extent called for by the
demands of the situation, keeping in mind the pros and cons of the matter and striking a delicate balance
between two conflicting interests, i.e. injury and prejudice, likely to be caused to the defendant if the relief
is granted. The court in the exercise of sound judicial discretion can grant or refuse to grant interim relief.
The underlying object of granting temporary injuction is to maintain and preserve status quo at the
time of institution of the proceedings and to prevent any change init until the final determination of the suit.
It is in the nature of protective relief granted in favour of a party to prevent future possible injury.
(4) Types-- Injunctions are of two kinds (i) temporary; and (ii) permanent. A permanent injunction restrains a
party forever from doing the specified act and can be granted only on merits at the conclusion of the trial
after hearing both the parties to the suit. It is governed by Section 38 to 42 of the Specific Relief Act, 1963.
A temporary or interim injunction, on the other hand, restraints a party temporarily. from doing the specified
act and can be granted only until the disposal of the suit or until the further orders of the court. It is
regulated by the provisions of Order 39 of the Code of Civil Procedure, 1908 and may be granted at any
stage of the suit.
(5) Who may apply
It is not the plaintiff alone who can apply for an interim injunction. A defendant also may make an
application for grant of an injunction against the plaintiff.
(6) Against whom injunction may be applied
An injunction may be issued only against a party and not against a stranger or a third party. It also
cannot be issued against a court or judicial officer. Normally, injunction can be granted against persons
within the jurisdiction of the court concerned.
(7) Grounds (Rule-1)
Temporary injunction may be granted by a court in the following cases,--
(a) Where any property in dispute in a suit is in danger of being wasted, damaged or alienated by any
party to the suit, or wrongfully sold in execution of a decree; or
(b) Where a defendant threatens, or intends ot remove or dispose of his property with a view to
defrauding his creditors, or
(c) Where a defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in
relation to any property in dispute in the suit; or
(d) Where a defendant is about to commit a breach of contract, or other injury of any kind; or
(e) Where a court is of the opinion that the interest of justice so requires.
Q.3. Explain attachment before judgment.
Ans.-
This answer shall include following points.
Attachment before Judgment
1. Order 38, Rules 5
2. Object of the provision is to prevent any attempt on the part of the defendant in
a suit to defeat the realization of the decree against him.
3. Essential condition for attachment before judgment.
4. The defendant
5. To dispose what property
6. To dispose whole or any part of the property.
7. Order 38 Sub Rule 1 of Rule shall be void.

Attachment before judgment—

The provision as to attachment before judgment is contained in Order 38, Rule 5. The object of the
provision is to prevent any attempt on the part of the defendant in a suit to defeat the realization of the decree
19
that may eventually be passed against him. If the plaintiff succeeds in the suit, no fresh attachment is necessary
but if he fails, the said order of attachment is vacated. But an attachment before judgment does not affect the
rights of persons not parties to the suit, it such rights have been acquired before the attachment. The sole object
behind the order levying attachment before judgment is to give an assurance to the plaintiff that his decree if
made, would be satisfied. [Sardar G.R. Mahadik v. Devi Sahai, AIR 1982 SC 989]
Essential Condition for attachment before judgment
Before granting an order for attachment before judgment, the court should be satisfied that—
(1) The defendant (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the
whole or any part of his property form the local limits of the jurisdiction of the Court; and
(2) The object of the defendant in so doing is to obstruct or delay the execution of any decree that may be
passed against him.

There must be definite evidence on these points and not merely vague allegations. The plaintiff shall
specify the property required to be attached and the estimated value thereof.

The Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such
sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said
property for the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear
before the court.

The court may also in the order direct the conditional attachment of the whole or any portion of the
property so specified.

If an order of attachment before judgment is made without complying with the provisions of Sub-rules
(1) of Rule 5 of Order 38, C.P./C.l such attachment shall be void (O. 38, R 5(4)]
Under O. 38 5 (4), order of attachment without compliance with the provisons of sub-rule (1) will be
void. [Y. Vijai Lakshamma v. M/s Sakinala Lakshmaiah & Sons, AIR 1980 AP 176] .

Courts have repeatedly held that the remedy provided under Order 38, R.5 is an extra-ordinary one and
more care should be taken when granting in favour of an person whose right to recover the money will
fructify the decree in case the same is passed on being established. Thus where in an application for
attachment of the property on the ground that the guarantor was about to dispose of this property, there was
complete absence of adequate materials to support the ground, the relief was not granted. (Bhujanag Rao v.
C.V. Rao, AIR1993 Mad 246). For passing an order under this provision the intention of the defendant is
since qua non which has to be determined in the light of particular facts and circumstances of the case.
(Manohar Singh v. Hind Kumar, AIR 1991 MP 373).

20
 Unit – IV

Syllabus: Suit in Particular case: Suits by or against Government, Suits by indigent person,
Inter-pleader Suit, Summary Procedure, Suits relating to Public Nuisance.
2013
Longs
Q.1. Write short notes on the following:
(a) Interpleader suit
(b) Summary procedure
(c) Suit by or against government
fuEufyf[kr ij laf{kIr fVIif.k;kW fyf[k,%
¼d½ vUrj&vfHkopuh; okn
¼[k½ laf{kIr izfdz;k
¼x½ ljdkj ds }kjk ,oa fo:) oknA
Q.2. Can an indigent person file a suit under C.P.C.? Write the procedure in detail
D;k fu/kZu O;fDr nh0iz0la0 ds vUrxZr okn nk;j] dj ldrk gS\ izfdz;k dks foLrkj ls fyf[k,A
Shorts
1- Notice under section, 80 C.P.C. /kkjk 80 lh0ih0lh0 ds vUrxZr lwpuk
2- Public nuisance yksd vinw’k.k
2014
Longs
Q.1. What is the procedure for filing a suit against the government ? Discuss.
ljdkj ds fo#) okn nk;j djus dh izfØ;k D;k gS \ O;k[;k dhft,A
Q.2. State the provisions of C.P.C. relating to filing a suit of public nuisance and other
wrongful acts affecting the public.
yksd vinw’k.k ;k yksd ij izHkko Mkyus okys vid`R;&iw.kZ dk;Z ds fy, okn nk;j djus lEcfU/kr nhokuh
izfØ;k lafgrk ds izko/kkuksa dk mYys[k dhft,A

2017
Longs
Q.1. Can an indigent person file a suit under C.P.C.? When Court can reject an application for permission to
sue as an indigent person? Discuss.
D;k fu/kZu O;fä nh-iz-la- ds vUrxZr okn nkf[ky dj ldrk gS\ dc U;k;ky; fu/kZu O;fä ds rjg eqdnek nkf[ky djus ds fy,
vuqKk dk izkFkZuk&i= [kkfjt dj ldrh gS\ O;k[;k dhft,A
Q.2. Write short notes on the following:
fuEufyf[kr ij laf{kIr fVIif.k;k¡ fyf[k, %
(a) Suit by or against government
Lkjdkj ds }kjk ,oa fo#) okn
(b) Summary procedure
Lkaf{kIr izfØ;k
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 (c) Interpleader Suit
vUrj&vfHkopuh; okn
Shorts
1. Notice Under Section 80 C.P.C.
/kkjk 80 lh-ih-lh- ds vUrxZr lwpuk
2. Inherent Powers of Court
U;k;ky; dh vUrfuZfgr “kfä;k¡
Assignment/ Test
Unit – IV
Longs
Q.1. What is the procedure for filing a suit against the government? “Suit against government cannot be filed
without going a notice of claim” explain.
ljdkj ds fo:) okn nk;j djus dh izfdz;k D;k gS\ ^^jkT; ds fo:) okn fcuk uksfVl ds ugha nk;j fd;k tk ldrk gSA^^
O;k[;k dhft,A

Q.2. Can an indigent person file a suit under C.P.C.? Write the procedure in detail.
D;k fu/kZu O;fDr nh0iz0la0 ds vUrxZr okn nk;j dj ldrk gS\ izfdz;k dks foLrkj ls fyf[k,A

Q.3 Define Interpleader suit with its essential elements.

vUrjkfHkokph okn dh vko”;d rRoksa lfgr foospuk dhft,A

Ques. 1: What is the procedure for filing a suit against the Government? “Suit against government cannot
be filed without giving a notice of claim”. Explain.
Ans.-
This answer shall include following points.
Attachment before Judgment
8. Order 38, Rules 5
9. Object of the provision is to prevent any attempt on the part of the defendant in
a suit to defeat the realization of the decree against him.
10. Essential condition for attachment before judgment.
11. The defendant
12. To dispose what property
13. To dispose whole or any part of the property.
14. Order 38 Sub Rule 1 of Rule shall be void.
SUITS IN SPECIAL CASES
Suits by or against Government or public officers: Sections 79-82; Order 27
(a) General
Section 79 to 82 and Order 27 of the Code lay down procedure where suits are brought by or against the
Government or public officers. The provisions, however, prescribed procedure and machinery and do not deal
with rights and liabilities enforceable by or against the Government. Substantive rights are to be determined I
accordance with the provisions of the Constitution.
(b) Requirement of notice : Section 80 (1)
In ordinary suits, i.e. suits between individuals and individuals, notice need not be given to the
defendant by the plaintiff before filing a suit. Section 80 of the code, however, declares that no suit shall be
instituted against the Government or against a public officer in respect of any act purporting to be done by such

22
public officer in his official capacity, until the expiration of two months next after notice in writing has been
delivered to, or left at the office of—
i. in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to
that government;
ii. in ;the case of a suit against the Central Government where it relates to a railway, the General Manager
of the railway.
iii. in the case of a suit against the government of the State of Jammu and Kashmir, the Chief Secretary to
the government or any other officer authorized by the government in the behalf;
iv. in the case of a suit against any other State Government, a Secretary to that government or the Collector
of the district; and
v. in the case of a Public Officer, such public officer.
(c) Nature and scope
Section 80 of the Code enacts a rule of procedure and calcifies that no suit shall be instituted against the
Government or against a public officer until a statutory notice required by the section is served. The section
enumerates two types of cases: notice required by the section is served. The section enumerates two types of
cases:
(1) Suits against the Government ; and
(2) Suits against public officers in respect of acts done or purporting to be done by such public officers
in their official capacity.
Regarding the first class of cases, the notice must be given in all cases. Regarding the second class of
cases, however, notice is necessary only where the suit is in respect of any act ‘purporting to be done’ by such
public officer in the discharge of his duty, and not otherwise.
(d) Object of Notice-
The primary object underlying Section 80 is to afford an opportunity to the Government or the public
officer to consider the legal position and to settle the claim put forward by the prospective plaintiff if the same
appears to be just and proper. The Government , unlike private parties, is expected to consider the matter
objectively and dispassionately and after obtaining proper legal advice, it can take an appropriate decision in the
public interest within a period of two months allowed by the section by saving public time and money and
without driving a person to avoidable litigation. The legislative intent behind the provision is that public money
should not be wasted for unnecessary litigation. The section has been intended to alert the Government or a
public officer to negotiate just claims and to settle them if well-founded without adopting an unreasonable
attitude by inflicting wasteful expenditure on the public exchequer.
(e) Essentials
A notice under section 80 must contain (i) name, description and place of residence of the person giving
notice; (ii) a statement of the cause of action; and (iii) relief claimed by him.
In considering whether the essential requirements of the section have complied with, the court should
ask the following questions:
1. Whether the name, description and residence of the plaintiff are given so as to enable the authorities to
identify the person giving the notice?
2. Whether the cause of action and the relief and the relief which the plaintiff claims have been set out with
sufficient particulars. ?
3. Whether such notice in writing has been delivered to or left at the office of the appropriate authority
mentioned in the section? And
4. Whether the suit has been instituted after the expiration of two months after notice has been served, and the
plaint contains a statement that such a notice has been so delivered of left ?

Ques. 2- Can an indigent person file a suit under C.P.C.? Write the procedure in detail.

23
Ans.- This answer shall include following points.
Suits by indigent persons—

1. Order 33
2. Person who are poor or poor to pay Court fees and allow them to institute suit
without payment court fees
3. Content of Application Rule-2
4. Rejection of Application Rule-5
5. Inquiry – Rule (A).
6. Permission is Rejected 15-15
7. Revocation of Permission Rule 9
8. Realization of Court Fee Rule 4
9. Appeals by indigent persons: Order 44

(13) Suits by indigent persons: Order 33

(a) Nature and scope
Order 33 provides for filing of suits by indigent persons. It enables persons who are too poor to pay
court-fees and allows them to institute suits without payment or requisite court fees.
(b) Object
The provisions of Order 33 are intended to enable indigent persons to institute and prosecute suits
without payment of any court fees. Generally, a plaintiff suing in a court of law is bound to pay court fees
prescribed under the Court Fees Act at the time of presentation of plaint. But a person may be too poor to pay
the requisite court-fee. This order exempts such person from paying the court-fee at the first instance and allows
him to prosecute his suit in forma pauperis, provided he satisfies certain conditions laid down in this order.
(a) Indigent person: Meaning: Order 33 Rule 1
A person is an “indigent person” (i) if he is not possessed of sufficient means to enable him to pay the fee
prescribed by law for the plaint in such suit; or (ii) where not such fee is prescribed, when he is not entitled to
property worth one thousand rupees. In both the cases, the property exempt from attachment in execution of a
decree and the subject-matter of the suit should be excluded.
Explanation II enacts that the property acquired by the applicant after the presentation of the application for
permission to sue as an indigent person and the decisions thereon should also be taken into consideration for
deciding the question whether the application is an indigent person.
The word “person” includes juristic person.

(b) Contents of application: Rule 2

Every application for permission to sue as an indigent person should contain the following
particulars:
(1) The particulars required in regard to plaints in suits;
(2) A schedule of any movable or immovable property belonging to the applicant with the
estimated value thereof; and
(3) Signature and verification as provided in Order 6, Rules 14 and 15.

24
 The application should be presented by the applicant to the court in person unless exempted by the court.
Where there are two or more plaintiffs, it can be presented by any of them. The suit commences from the
moment an application to sue in forma pauperis is presented.

(c) Rejection of application: Rule 5

The court will reject an application for permission to sue as an indigent person in the following
cases:
(i) Where the application is not framed and presented in the prescribed manner; or
(ii) Where the application is not an indigent person; or
(iii) Where the applicant has, within two months before the presentation of the application, disposed of
any property fraudulently or in order to get permission to sue as an indigent person; or where there
is no cause of action; or
(iv) Where the applicant has entered into an agreement with reference to the subject-matter of the suit
under which another person has obtained interest; or
(v) Where the suit appears to be barred by law; or
(vi) Where any other person has entered into an agreement with the applicant to finance costs of the
litigation.
(d) Inquiry : Rule 1-A
In the first instance, an inquiry into the means of the applicant should be made by the Chief Ministerial
Officer of the court. The court may adopt the report submitted by such officer or may itself make an inquiry.
Where the application submitted by the applicant is in proper form and is duly represented, the court may
examine the applicant regarding the merits of the claim and the property of the applicant. The court shall then
issue notice to the opposite party and to the Government Pleader and fix a day for receiving evidence as the
applicant may adduce in proof of his indigency or in disproof thereof by the opposite party or by the
Government Pleader. On the day fixed, the court shall examine the witnesses (if any), produced by either party,
hear their arguments and either allow or reject the application.
(h) Where permission is rejected: Rules 15 to 15-A
Where the court rejects an application to sue as an indigent person, it will grant time to the application to
pay court fees. An order refusing to allow an applicant to sue as an indigent person shall be a bar to a
subsequent similar application. However, this does not debar him from suing in an ordinary manner, provided
he pays the costs incurred by the Government Pleader and the opposite party in opposing the application.

(i) Revocation of permission: Rule 9

The Court may, on an application by the defendant or by the Government Pleader, revoke
permission granted to the plaintiff to sue as an indigent person in the following caes:
(i) Where he is guilty of vexatious or improper conduct in the course of the suit; or
(ii) Where his means are such that he ought not to continue to sue as an indigent person; or
(iii) Where he has entered into an agreement under which another person has obtained an interest in the
subject-matter of the suit.
(j) Realization of court-fees: Rule 14
Where an indigent person succeeds in a suit, the State Government can recover court fees from the
party as per the direction in the decree and it will be the first charge on the subject-matter of the suit.
Where an indigent person fails in the suit, the court-fees shall be paid by him. Where the suit abates
25
 on account of the death of a plaintiff, such court fees would be recovered from the estate of the
deceased plaintiff.
(k) Appeals by indigent persons: Order 44
A person unable to pay court fees on memorandum of appeal may apply to allow him to appeal as an
indigent person. The necessary inquiry as prescribed in Order 33 will be made before granting or refusing
the prayer. But where the appellant was allowed to sue as an indigent person in the trial court, no fresh
inquiry will be necessary if he files an affidavit that he continues to be an indigent person.

Q.3 Define Interpleader suit with its essential elements.

Ans.
This answer shall include following points.
Interpleader suit
1. Section 88 Order 35
2. Interpleader means a proceeding devised to enable a person.
3. Object of Interpleader suit is to have claim of the Rival Claimant Adjudicated.
4. Following condition must be for interpleader suit
a. There must be debt- sum of money
b. Two or more person must be claiming
c. No suit is pending in which right of the parties can be decided.
5. Payment in Count
6. At the 1st hearing Court may declare that plaintiff is discharge form all the
liabilities to the defendant in respect of the things claim.
7. Agent and Tenant cannot institute interpleader.

Interpleader suit : Section 88; Order 35

‘Interpleader’ means “a proceeding devised to enable a person, if the same debt, duty or thing is
claimed adversely by two or more parties, to compel them to litigate the right or little between
themselves and thereby to relieve himself from the suit which they might otherwise bring against
them.” In simple language an interpleader suit is one is which the real dispute is not between a plaintiff
and defendant but between the defendants who interplead against each other, unlike in one ordinary
suit. Thus, for example, A is in possession of jewel box in which he has no interest at all, but is willing
to hand it over to the rightful owner. The box is claimed by both B and C. A may file an interpleader
suit against B and C and the Court will decide as to who is the rightful owner of the box between B and
C.
Where as person is under liability in respect of a debt or any money, goods or chattel, property
movable or immovable, and he is or expects to be sued for in respect of that debt, money, goods or
chattels, property movable or immovable adversely claimed by two or more persons he may apply to
the Court for relief by way of interpleader suit.
In view of what is stand just above in every interpleader suit there must be some debt or sum of
money or other property in dispute between the defendants only. The plaintiff has no interested in such
things at all other than for charges and costs and is willing and ready to pay or deliver the same to the
defendants as are declared to be entitled to it by the Court of law.
Object- The object of an interpleader suit is to have the claims of the rival claimants adjudicated. It is
a a process whereby the plaintiff calls upon the rival claimants to appear before the Courts and have
their respective claims decided. What the plaintiff will get of the decision in such a suit affords an
26
indemnity to the plaintiff on the payment of money or the delivery or property to the person whose
claim has been upheld by the Court.
Conditions for the Applicability of the Section—
The above discussion leads us to the conclusion that for filing of an interpleader suit following
conditions must the satisfied.
(a) There must be debt, sum of money or other property movable or immovable;
(b) Two or more persons must be claiming above things adversely to each other;
(c) The person from whom above things are claim has not interest therein other than for charges or
costs;
(d) The person from whom things are claimed is willing and ready to pay or deliver the things to its
rightful owner; and
(e) No suit is pending in which the rights of all parties can properly be decided.
Additional particulars in an Interpleader Suit
In every interpleader suit the plaint shall, in addition to other statements necessary for plaint state:
1. That the plaintiff claims no interest in the subject matter in dispute other than charges or costs;
2. The claim made by the defendants severally; and
3. That there is no collusion between the plaintiff and any one of the defendants.
Payment in Court—
Where the thing claimed is capable of being paid into the Court, or placed in the custody of the
Court, the plaintiff may be required to so pay or place it before the Court does not nullify the whole
proceedings.

Procedure at First Hearing

At the first hearing the Court may declare that the plaintiff is discharged from all the liability to
the defendants in respect of the things claimed, award him of this costs and dismiss him from the suit,
or if the justice or conveniences so him of his costs and dismiss him from the suit, or if the justice or
convenience so require retain all the parties until the final disposal of the suit.
Where the Court finds that the admission of the parties or other evidences are sufficient to enable
it to decide the title of thing claimed it will adjudicate the matter, where, however, it is not so, it will
direct that issue or issues between the parties be framed and tried.
Who cannot file Interpleader Suit—
An agent and tenants may not institute the suit in certain circumstances. An agent cannot sue his
principle or a tenant his landlord for the purpose of compelling them to interplead with any persons
other than persons making claim through such principles or landlords. The reason for this rule seems to
be that ordinarily an agent cannot dispute the title of this principle, so also a tenant cannot dispute the
title of his landlord during the subsistence of the tenancy.
Illustration
(a) A deposits a box of jewels with B as his agent C alleges that jewels were wrongfully obtained
from him by A, and Claims them from B. B cannot institute an interpleader suit against A and C.
(b) A deposits a box of jewels with B as his agent. He then writes to C for the purpose of making
the jewels a security for a debt due from himself to C. A afterwards alleges that C;s debt is
satisfied, and C alleges the contrary. Both claim jewels from B. B may institute an interpldear
suit against A and C.

--------THE END-------
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