CONTENTS UNIT-I: INTRODUCTION 1. Definitions 2. Jurisdiction of c 3. Res subjudice 4. Res judicata 5. Place of suing 6. Institution of suits 7. Parties to the suit UNIT I: PLEADINGS AND TRIAL 1. Pleadings .Plaint ‘Written statement Service of Summons 5. Appearance of partes and non-appearance of parties Discovery, Inspection and Production of documents ‘Admission Tmpounding and retum of documents Affidavit 10. Payment into court 11, Security for cost 12. Transfer of suits 13. Judgment 14, Remand 15. Commissions 16, Amest and attachment before judgment 17. Temporary injunction and Interiocuory Order 18, Appointment of Receiver 19. Appeals 20, Reference 21. Review 22. Revision 23. Caveat 24. Inherent power of courts UNIT IIL: SUITS IN PARTICULAR CASES ‘Suits by or agains the government or the public officers in their oficial capacity Suits by indigent persons Suits by or against minors and persons of unsound mind Interpleader su Summary suits Suits by aliens Suits by or agains foreign rulers, ambassadors and envoys Suits by or against rulers of former Indian states Suits relating to public nuisance Sena n ene10. Suits relating to publi trusts 1. Suits by or against military or naval men or airmen 12. Suits by or against corporations 13. Suits by or against firms 14, Suits by or against trustees, executors and administrators 15. Suits relating to family matters 16. Suits relating to mortgages 17. Friendly suits 18, Suits involving a substantial question of law as to the interpretation of the constitution (rs to the validity of any statutory instrument UNIT IV: EXECUTION 1 2 3. 4. Stay of execution 5. 6 1 Appeals 4. Computation of period of limitation 5. Acquisition of ownership by possession.UNIT-1 The ‘Code of Civil Procedure’ is a procedure law, ie., an adjective law. The Code neither creates nor takes away any right. It only helps in proving or implementing the ‘Substantive Law. The Code contains 158 Sections and $1 Orders. The object ofthe Code is to consolidate (all the laws relating to the procedure to be adopted by the Civil Courts) and ‘amend the law relating to the procedure of Courts of Civil Procedure. The procedural laws. ‘are always retrospective in operation unless there are good reasons to the contrary. The reason is that no one can have a vested right in forms of procedure. The Code of Civil Procedure is not retrospective in operation. The Code is not exhaustive. Definition: Scction-2(2) “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 ofthe matters in controversy inthe suit and may be either Preliminary or final, It shall be deemed to include the rejection of a plait and the determination of any ‘question within Section-144, but shall not include:~ 4) any adjudication from which an appeal lies as an appeal from an order, oF ') any order for dismissal for default. Explanation: A decree is preliminary where further proceedings have to be taken before the ‘suit can be completely disposed of. Iti final when such adjudication completely disposes of ‘the suit. It may be partly preliminary and partly final. Decree (Section-2 (2)] and Order [Section-2 (14)] Essential Elements of a decree: The decision of a Court can be termed as a “decree” upon the satisfaction ofthe following elements:- I There must be an adjudication 1. Such adjudication must have been given in a suit TIL It must have determined the rights ofthe parties with regard to all or any ofthe matter in ‘controversy in the suit JV, Such determination must be of a conclusive nature and ‘V. There must be formal expression v of such adjudication 8) An Adjudication: Adjudication means “the judicial determination of the matter in dispute”. If there is no judicial determination of any matter in dispute or such judicial determination is not by a Court, it is not a decree; eg. an order of dismissal of suit in ‘default for non appearance of parties, or of dismissal of an appeal for want of prosecution are ‘ot decrees because they do not judicially deal with the matter in dispute.b) In a Sult: Suit means a Civil proceeding instituted by the presentation of a Plant. Thus, every suit is instituted by the presentation of Plaint. Where there is no Civil suit, there is no decree; e.g, Rejection of an application for leave to sue in forma pauper is not a decree, because there cannot be a plaint in such case until the application is granted. Exception: But where in an enactment specific provisions have been made to treat the applications as suits, then they are statutory suits and the decision given thereunder are, therefore, decrees; eg. proceeding under the Indian Succession Act, the Hindu Marriage Act, the Land Acquisition Act, the Arbitration Act, et ©) Rights of the parties: The adjudication must have determined the rights ic., the substantive rights and not merely procedural rights of the partes with regard to all or any of the matter in controversy in the suit. “Rights ofthe parties” under section 2(2) ‘The rights of the parties inter se (between the parties) relating to stans, limitation, jurisdiction, frame of suit accounts, ete “Rights im matters in procedure” are not included in section 2(2); e.g, An order of dismissal for non-prosecution of an application for execution, or refusing leave to sue in forma pauperis, or & mere right to sue, are not decrees as they do not determine the rights of. the parties. 4) Conclusive Determination: The determination must be final and conclusive as regards the Court, which passes it ‘An interlocutory order which does not finally decide the rights of the partes is nota decree; eg, An order refusing an adjournment, or of striking out defence of a tenant under the relevant Rent Act, or an order passed by the appellate Court under Order 41, rule 23 to decide some issues and remiting other issues to the trial Court for determination are not decrees because they do not decide the rights ofthe parties conclusively. Bu, An order dismissing an appeal summarily under Order-41, or holding it to be not maintainable, or dismissal ofa suit for want of evidence or proof are decrees, because they conclusively decide the rights of the parties othe suit. ‘© Formal Expression: There must be a formal expression of such adjudication. The formal ‘expression must be deliberate and given inthe manner provided by law. Decree means “formal expression of an adjudication conclusively etermines the rights of the parties with regard to all or any of the matters in ‘controversy in the suit”. It may be preliminary o final. ‘The term “suitis not defined in the code, However in *Hansraj- vs- Dehradun- Mussoorie Electric Tramways Co Lid, Privy couneil defined ‘suit’ as a civil ‘proceeding instituted by the presentation of a pai D Under certain enactments, specific provisions have been made to treat applications as suits.eg:- proceedings under Indian Succession Act, Hindu ‘Marriage Act, Land Acquisition Act, Arbitration Act. EtcProvisions ia the Code for passing ofthe Preliminary Decrees: «Suits for possession and mesne profit; Order 20 Rule 12 ». Administrative Suits; Order 20 Rule 13 «Suits for ,Pre-emption; Onder 20 Rule 14 4. Suits for dissolution of Parmership; Order 20 Rule 15 «Suits for accounts between principal and agent; Order 20 Rule 16 £. Suits for pation and separate possession; Order 20 Rule 18 £8, Suits for foreclosure of a mortgage; Order 34 Rules 2-3 Besides above the Court has a power to passa preliminary deeree in cases not expressly provided in the Code. Whether there can be more than one preliminary decree? Debate was concluded by Supreme Court in *Phoolchand -vs- Gopal Lal, A.LR. 1967, S.C. 1470, the Apex Court has decided that “C-P.C. does not prohibits passing ‘of more than one preliminary decree if circumstances justify the same and it may be necessary to do So”. That nothing in this code prohibits passing more than one preliminary decree. FINAL DECREE: Decree may be said to be final in two ways, (when within prescribed period no appeal is filed or matter has been decided by the decree ofthe highest Court (i) when the decree, so far as regards the Court passing it, completely disposes. of the suit. 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. In such case itis not necessary for the defendant to go to the Court to sel aside the final decree. **Sital Parshad -vs- Kishori Lal Partly Preliminary & Partly Final Decree:- Eg suit for possession of immovable property with mesne profit (decree for possession of property (final)and Gi directs an enquiry in to the mesne profit (preliminary)Deemed decree: e.g. rejection of plaint & the determination of questions under section 144(Restiution); Adjudication under 021 R58, R98 or R100 are deemed decrees. Rejection of plalnt:- ‘Though does not preclude the plaintiff from the presenting afresh plaint onthe same ‘cause of action, Section 2(2) of CPC specifically provides that rejection of plain shall be deemed to bea decree. Judgement: section 2(9) “Statement given by a judge on the grounds ofa decree or order” “Balraj Taheja -vs- Sunil Madan Essential of judgement: (Other than small causes Court (concise statement of the case (Gi) properties for determination decision thereon (Gv) reasons for such decision Orders 2(14): “Formal expression of any decision of a civil Court which is not a decree” or “Adjudication of a Court whichis nota decree isan order" larties between order and decree are 1. both relates to maters in controversy 2. both are decisions given by Court 3. oth are adjudications of a Court of law 4. both are a formal expressions of a decision. Distinetion:- DECREE, ‘ORDER. 1. canbe passed oaly ina suit “May originate fom sult petition or application7% Conclusively determines the _ | May/ Not conclusively determines tighs ofthe parties ‘3. may be preliminary , final parly | There cannot be a order preliminary preliminary o final “© in every suit there can be one | A number of order may be passed decree ‘3 every decree is appealable Every order is not appealable only those orders specified inthe code are Appealable © second appeal lies to the High [No second appeal in case of Court appealable orders Definition: Decree Holder See 2 (3): “Decree-Holder” means any person in whose favour a decree has been passed or an ‘order capable of execution has been made Definition: Judgment Debtor See 2 (10): “Judgment-Debtor” means any person against whom a decre has been passed or an ‘order capable of execution has been made Detinition: Legal Representative See 211): “Legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate ofthe deceased and where a party sues or issued in a representative character the person on whom the ‘state devolves on the death ofthe party so suing or sued Definition Mesne Profit See 2 (12): “means profits” of property means those profits which the person in wrongful possession of such property actully received or might with ordinary diligence have received therefom, together with intrest on such profits, but shall not include profit, profit received by a person in wrongful possession together with interest > shall not include profits, due to improvements made by him Test to ascertain mesne profits is not “what the plaintiff has lost but what the defendant gained,Principles to be followed: 1..No profit to be given toa person in wrongful possession 2. Restoration of status before dispossession of decree holder, In *Lucy -vs- Mariappa, It was held that Interest is an integral part of mesne profit. Interest is allowed in ‘computation of mesne profit itself tl the date of payment. **Mahant narayanan dasjee ~vs- Tirupathi devasthanam. > Interest shall not exceed 6%4per annum. ‘Terms not defined in the code:~ Affidavit: “Declaration of facts (by party), reduced to writing, affirmed or swom before an officer having authority to administer Oaths”. ‘Appeal: “Judicial examination of the decision by a Court on the decision of an inferior Cour” ‘Cause of Action: “a bundle of essential facts which is necessary for the plaintiff to prove before he ean succeed”, Caveat “official request that one should not take a particular action without issuing notice to the party lodging the caveat & without affording an opportunity of hearing him’. Execution:-“a process of enforce or giving effect to the judgement , decree or order ofa Court” ‘Summons: “a document issued from an office of a Court of justice, calling upon a person to attend before the judge / office to give evidence / produce documents JURISDICTION OF CIVIL COURTS Jurisdiction - definition ~*power or authority of a Court to hear &determine a cause, tw adjudicate & exercise any judicial power in relation to (Or “Extent ofthe authority of Court to administer justice prescribed with reference to its” In SUOI v. Tarachand Gupta and *Officil Trustee v. Sachindra it was held that jurisdiction must include the power to hear and decide the question at issue, the ‘authority to hear and decide the particular controversy that has arisen between the parties. Kinds of jurisdiction 101 pecuniary jurisdiction 2. territorial jurisdiction and 3. jurisdiction as to subject-matter Jurisdiction of Court may be original or appellate. In the exercise of original jurisdiction a Court entertains original suits, while in the exercise of its appellate {jurisdiction it entertains appeal. The Munsif's Court and the Court of small causes have only original jurisdiction the District Judge's Court and the various other Courts have appellate jurisdiction, ‘SECTION 9: SUITS OF CIVIL NATURE: Civil nature pertains o private rights and remedies ofa citizen, Cours to try all civil suits unless barred— The Courts shall (subject tothe provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of ‘hich their cognizance is either expressly or impliedly barred. Explanation LA suit in which the right to property orto an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the where an Act creates an obligation and enforces its performance in a special manner, ‘that performance cannot be enforced in any other manner. “Indian Airlines v. Sukdeo Rai > certain suits, though of civil nature are barred from the cognizance of civil Court on the ground of public policy. ‘Who may decide the Jurisdiction of « Court? AR Antulay v. RS.Nayak > Civil Court has inherent power to decide its own jurisdiction Burden of proof Lies on the party who seeks to oust the jurisdiction of civil Court, And it must be construed strictly ‘Abdul v. Bhawani. SECTION }: RES SUBJUDICE (Stay of Suit) Stay of suit— No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same partes, or between parties under whom they or any of them claim litigating under the same ttle where such suit is pending inthe same or any other Court in India having jurisdiction (o grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. ‘Section 10 prevents Courts of concurrent jurisdiction from simultaneously entertaining ‘and adjudicating upon two parallel litigation in respect of same cause of action, same ‘subject matter and same relief. It must be noted thatthe second suit isnot dismissed as barred, it is only the trial of ht suit that is not proceeded with and is stayed. The section is no bar to the institution of a second suit. A decree passed in contravention of section 10 is nullity. 2Conditions for the applicability of Section 10: In order to attract the application of this section it is necessary that the following conditions must be fulfilled. 1. A previously instituted suit is pending in a Court. (includes appeal) 2. The mater in issue in the second sutis also directly and substantially in issue in a previously instituted suit. 3. ‘The previously instituted suit must be pending in the same Court in which the subsequent suit is brought, or in any other Court in India or in any Court beyond the limits of India established or continued by the Central Government or in the ‘Supreme Court. ‘4. The Court in which the previous suit is pending has competent jurisdiction to grant the relief claimed in the subsequent suit ‘5. The parties in the two suit are the same and 6. The parties must be litigating under the same tile in both the suits. ‘Life Pharmaceuticals (P) Lid v. Bengal Medical Hall > No discretion left to the Court. The order staying proceedings in the subsequent suit ‘must be stayed. ‘The words “matte in issue” in sec 10 means the entire matter in coniroversy and not one ‘of the several issues in the case. Jn *Kunthi sankara Eaman v. Vankappa Bhatia, Je was held that where the carler suit was for recovery of rent fora certain period and the subsequent suit i fr recovery of rent for subsequent years and for ejectment, the matter in issue in the two suits would not be deemed to be the same and sec10 would not be spplicable, ‘SECTION 11: RESJUDICATA 2 Section 11 of the CPC embodies the doctrine of Resjudicata of the rule of conclusiveness ‘ofa judgment. In the absence of such rule, there will be no end to litigation and the parties ‘would be put to constant trouble, harassment and expenses. This doctrine is bases on the ‘maxim “ex captio res judicata” means “one suit and one decision is enough for any single dispute”. The doctrine is a fundamental concept based on public policy and private interest ‘The Doctrine of Res Judicatais based on 3 maxims viz 1L*Nemo debet lis vexari pro una et eadem causa” means “No man should be vexed twice for the same cause”. 2"Interestrepublicae ut sit fins ltium”- It is in the interest ofthe state that there should ‘an end to litigation 3. "Res judicata pro vertate ocipitur”- A judicial decision must be accepted as correct be‘The first maxim looks tothe interest of the litigant, who should be protected from a vexatious multiplicity of suits, for otherwise a man possessed of wealth and capacity to fight may ‘overawe his adversary by constant dread to litigation. ‘The second maxim is based on the ground of public policy that there should be an end to litigation, “Ex Capt Res Judicata” -one suit and one decision is enough for any single dispate(roman law) Principle based on the of giving finality to judicial decisions. Explanations under section 1 to Vill | former suit denote decided prior tothe suit in question and not institution, Indian origin of res judicata:- ‘The principle of resjudicata (matter already decided) is founded on the ancient principles of Prangnyaya (previous judgment) The principle is thus enunciated in Brihaspati Samiti” “if. person who has been defeated in a suit according to law files his plaint once again he ‘must be told that he has been defeated already, this is called plea of prang-nyaya”. ‘Section 11: No Court shall try any suit or isue in which the matter directly and substantially in isoue has been directly and substantially in issue ina former suit between the same parties, ‘of between parties under whom they or any of them claim, litigating under the same til, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Cour. Explanation I- The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II- For the purposes of this section, the competence of a Court shall be determined irespective of any provisions as to a right of appeal from the decision of such ‘Court. Explanation Ill- The matter above referred to must in the former suit have been alleged by ‘one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV- Any matter which might and ought to have been made ground of defence or autack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V- Any relief claimed in the plain, which isnot expressly granted by the decree, shall, forthe purposes of this section, be deemed to have been refused. Explanation VI- Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, ll persons interested in such right shall, forthe purposes ofthis section, be deemed to claim under the persons so litigating.6 Explanation VIL- The provisions ofthis section shall apply to a proceeding forthe execution ‘of a decree and reference inthis section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VITL-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit notwithstanding that such Court of limited jurisdiction was not competent 10 ty such subsequent suitor the suit in which such issue hasbeen subsequently raised. Section 11, C.P.C. embodies the rule of conclusiveness as evidence or bars as a plea of an issue tried in an earlier suit founded on a plaint in which the matter is directly and ‘substantially in issue and became final In a later suit between the same patie or ther privies in a competent Court to try such subsequent sut in which the issue has been directly and substantially reviewed and decided in the judgment and decree in the former suit would ‘operate as res Judicata. ‘Section 11 does not create any right or interest inthe property, but merely operates asa bar to ‘ay the same issue once over. In other words, it aims to prevent multiplicity of the proceedings and accords finality to an issue, which directly and substantially had arisen in the {ormer suit between the same parties or thei privies, decided and became final so that parties are not vexed twice over; vexatious litigation would be put to an end and the valuable time of the Cour is saved. I is based on public policy, as well as private justice. They would apply, therefore, toi all judicial proceedings whether civil or otherwise. It equally applies to all quasi-judicial proceedings ofthe tribunal other than the civil Courts. Res Judicata and Res Sub-Judice: The rule of res Judicata in section 11 is clearly distinguishable from the rule of res sub-Judice ‘enshrined in section 10. The former relates to a matter already adjudicated upon, ie. a matter ‘on which judgment has been pronounced, while the latter relates to a matter which is pending Judicial enquiry. ‘The rule in section 10 bars the trial of a suit in which the matter directly and substantially in issue is pending judicial decision in a previously instituted suit by staying the trial of the latter suit; section 11 bars altogether the trial ofa suit or an issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit. Essential conditions to invoke section 11: (1) the mater must be directly and substantially in issue inthe two suits; (2) the prior suit must have been between the same partes or persons claiming under them; (@) such parties must have litigated under the same tte inthe former suit; (4) the Court which determined the earlier suit must be competent to try the later suitor the suit in which such issue is subsequently raised; and16 (6) the question directly and substantially in issue in the subsequent suit should have been heard and finally decided inthe earlier suit. 1. Directly and substantially in issue: ‘The matter directly and substantially in issue inthe subsequent suit must be the same matter which was directly and substantially in issue, either actually or constructively, in the former suit, The rule of res Judicata only requires the identity of the matter in issue. In order that this condition may be fulfilled it must have been alleged by one party and either denied ‘or admitted, expressly or by necessary implication, by the other. The principle of res Judicata, docs not depend on whether the cause of action in the two suits ar identical. Causes of action in the two suits may be different, but the testis whether the matter directly and substantially in issue is the same in both suits and whether the parties are the same or the suit is between parties claiming under them and litigating under the same tile. The expression “cause of action” used inthis connection means thatthe matter in dispute is substantially the same, and. the parties are the same o litigating under the same title Its the matter in isove directly and substantially, either actually or constructively, and not the subject-matter that forms the test of res Judicata. If the causes of action in the two suits are different, the matter in issue in them will not be the same and hence the decision in the former suit cannot operate as res Judicata, The words ‘directly and substantially in issue" in section 11, C.P.C. are not confined tothe relief granted inthe former suit or to the property ‘which was its subject-mater. The words in section 11 also clearly imply thatthe decision on ‘8 matter not essential forthe relief finally granted in the former suitor which did not form fone of the decisions cannot be said to have been directly or substantially in issue in the former case. Thus where certain reliefs were granted in a suit tothe plaintiff itis not open to the defendant to raise any plea in a subsequent suit which will interfere withthe relief in the prior suit. The principle of res Judicata does not extend to anything more than tis. Collaterally or incidentally in issue: ‘The expression “collaterally or incidentally in issue” means only ancillary to the itect and substantial issue and refers to a matter in respect of which no relie i claimed but ‘which is putin issue to enable the Court to adjudicate upon the matter which is directly and substantially in issue. Collateral and incidental issues are auxiliary issues, while direct and substantial issues are the principal ones. It is only those matters which are directly and substantially in issue that constitute res Judicata and not the matters which are in issue only ‘collaterally or incidentally Constructive resjudicata:- Al the issues must be raised in a suit. What ought to have the presumption i that the plaintiff abandoned is remedy. if ought not raised ‘*The State of Uttar Pradesh v. Nawab Hussain: In this case the petitioner was dismissed from service. He filed a writ petition for ‘quashing the disciplinary proceeding on the ground that he was not afforded a reasonable ‘opportunity to meet the allegations against him and the action taken against him was mala fide, The petition was dismissed. Thereafter he filed a suit in which he challenged the orderv ‘of dismissal on the ground, inter alia, that he had been appointed by the Inspector General of Police and that the Deputy Inspector General of Police was not competent to dismiss him by virtue of Article 311(1) of the Constitution. twas an important plea which was within the knowledge of the respondent and could well have been taken in the writ petition, but he contented himself by raising the other pleas that he was not afforded a reasonable opportunity to meet the case against him in the Two conflicting decrees passed by the two competent Courts on the same subject matter. ‘Subsequent decision was hit by section 11 and decree being a nullity. ‘*Nathai vs Joint Director of Consolidation, AllahabadPry 1 party in spite of service of notice on him, Petitioner filed writ petition under Article 226 was dismissed. Again another writ ‘was fled under Article 32. Dismissed w/ 11-resjudicata. Mlustrations: A filed a suit against B for declaration that he is entitled to certain land as heirs ‘of C dismissed. claiming same property under adverse possession based by constructive resjudicata, ‘A’ filed against “B’ to recover money on a promissory note B contended ‘obtained by undue influence. Objection overruled and sut is decreed. B cannot challenge the pro-note on coercion / undue influence ough to have taken in former suit. + Management of Sonepat Co-op. Suga Mills Ld v, Ajit Singh, AIR 2005 SC1050 ‘The principle of res judicata is a procedural provision. A jurisdictional question if wrongly decided would not atract the principles of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking procedural principle. * Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626. ‘There is distinction between issue estoppel and res judicata. Res judicata debars a ‘Court from exercising its jurisdiction to determine the lis if it ha attained finality whereas the ‘doctrine of issue estoppel is invoked against the party. If such issue is decided against him, he would be estopped from raising the same in the later proceedings. The doctrine of res judicata creates a different kind of estoppel vz. estoppel by Accord. * Sumer Mal v, State of Rajasthan, AIR 2000 Raj | First writ petition filed on the ground of apprehended bias and subsequent second petition was filed on allegations of actual bias, is not barred by res judicata; G.N. Nayak v. ‘Goa University, AIR 2002 SC 790. Section 11 of the Code of Civil Procedure has no doubt some technical aspects for instance the rule of constructive res judicata may be said to be technical but the basis of which the said rule ests is founded on the consideration of public policy. * Smt, Rehana Parveen v. Naimuddin, AIR 2000 MP 1 ‘The technical principle of res judicata would not be operative moreso, if substantial ‘change in circumstances is averred and found prima facie justified. * Harbhagwan v, Sma, Punni Devi, AIR 1999 P&H 223 ‘Assuming, the cause of action in both the suits was based upon ttl inthe suit land and was akin in all the cases, yet, as referred to above, in as much the earlier two suits were23 dismissed as withdrawn with permission to file fresh on the same cause of action, third suit will not be barred by any principle of law. * Singhai Lal Chand Jain v. Rashtriya Swayam Sewak Sangh, Panna, JT 1996(3) SC a Where the Sangh has been duly represented in the previous Court proceedings and ‘were litigating bonafide which resulted in failure cannot be allowed to lay any objection in ‘execution or to plead nullity of decree hence doctrine of res judicata applies. The decree of When two or more Cours have jurisdiction, the suit can be filed before any one of such ‘Courts and itis binding and enforceable. Objection as To Jurisdiction: Section 21:- Decree of Court without jurisdiction is nullity ‘Hiralal vs Kali Nath if objection is merely technical, unless raised atthe earliest possible opportunity, they will ‘not be entertained in appeal/revision forthe first time. ‘Section 21-A bar of suit: (inserted by amend act 1976): [No substantive suit can be filed set aside a decree passed by a Court on an objection as to the place of suing. INSTITUTION OF SUIT: ORDER I ‘Sections 26-35B and orders | to 20 (procedures relating to suits) (Orders | &2 partes to suit & frame of suit “Suit” mans any proceeding by one person(s) against another or others in a Court of law ‘wherein the plaintiff pursues the remedy which the law afford him for the reduces of any injury or the enforcement of a set whether at law or in equity “*Krishnappa vs shivappa” Essentials ofa suit: 1. opposing parties 2. subject mater in dispute 3. cause of sction 4. relief Institution of Sue (order 4- sec 26) sections 26, 2(16), 04 RI ‘> Every suit must be instituted by presentation of plant in duplicate by the plaintiff or recognized agent or person duly authorized by him. *Ram Gopal vs Ram Sarup Din Ram vs Hari Das Generally, presentation of plaint must be on a working day and during office hours. ‘Thereafter entered in register of civil suits then scrutinized by stamp reporter. If defects, plaintfVadvocate can remove them. Thereafter the suit shall be renumbered. Parties to sult order II: Joinder of partes: the question of joinder of parties arises only when an act is done by two ot ‘more persons or it affects twolmore persons. OTR! joinder of plaintifs: all persons may be joined in one suit as plaintiffs ifthe following 2 conditions are satisfied. 1. The right to relief alleged to exist in each plaintiff arises out of the same act or transaction and 2. The case is of such nature, if such persons brought separate suits, any common ‘question of law or fact would arse. ‘In *Krishna vs Narsinghrao, it was held that both the conditions should be fulfilled Rate 3:- who may be Jolned as defendants? Ilustrations: if “A? entered into contract separately with B, C, D for supply of goods they are not joinder of defendants. Rules 2 & 3-A:- where it appears to the Court that any joinder of plaintiffs or defendants ‘may embarrass or delay the trial, it may pass an order for Separate trials [Necessary & Proper Parties: ‘*Ramesh vs Municipal Corp, of Bombay > Necessary Party is one whose presence is indispensable to the constitution of the suit, ‘against whom the relies sought and without whom no effective order can be passed. Proper2 arty is one whose absence an effective order can be passed, but whose presence is necessary for a complete and final decision on the question involved inthe proceedings. In the absence of necessary party no decree can be passed. But in the absence of the proper party decree can be passed (his presence enables the Court to adjudicate more effectually and completely). Example: in a partition suit by son against the father, all sharers are necessary parties and grandsons are proper parties. Rule 9: Non Joinder or Mis-Joinder of Parties: ‘A person who is either a necessary or a proper party toa sut if not been joined as a party to the suits known as non joinder. Mis joinder: if two / more persons are joined as plaintiff defendants in contravention of O1 I and 3 and they are neither necessary nor proper parties. ‘Faganath vs Jaswant Singh > A suit cannot be dismissed only on the ground of mis joinder or non joinder of parties. However, this rule does not apply in case of non joinder of necessary party. “*Naba kumar vs radha shyam > Ifthe person who is likely to be affected by the decree is not joined as a party ina suit appeal the suit or appeal i liable tobe dismissed on that ground alone. Rule13; All objections as to non joinder or mis joinder of partes must be taken atthe earliest ‘opportunity, else they will be deemed to have been waived. Rule10; striking ou, addition and substitution of parties: test- not whether the plaintiff agrees or objects the addition of parties but whether the presence of such party is required for full and complete adjudication of the dispute. Representative Suit: Order I Rule 8: ‘When number of person have similar interest in a suit, one or more of them can sue or be sued on behalf of themselves and others with the permission of the Court or upon a direction from the Court In *Srinivasa vs Raghava, It was held that the object of the provision isto save the time and ‘expense to ensure a single comprehensive trial of question in which numerous persons are imerested to avoid multiplicity of suits. ‘*TN housing Board vs Ganspathy > Provisions should be contented liberally. To apply the rule, following conditions must exist.2» Parties must be numerous “Must have same interest in the suit Permission must have been granted / direction must have been given by the Cour. ‘Notice must have been issued to the parties whom it is proposed to represent in the suit According to Order 23 Rule 3-B no agreement or compromise can be entered in a representative suit without the leave of the Court because it would affect the interest of the ‘other partes. If personal notice isnot possible, publication in news paper can be done to the parties concerned a the expense ofthe plainti As far as applic ‘with representative suit. And where a represenative ‘would operate as rsjudicata. ty of Resjudicata to representative suit, Explanation VI of see 11 deals has been decided such decision ‘ORDER 2: FRAME OF SUIT ‘The object ofthe provision is that as far as possible all matters in dispute between the parties relating to the same transaction should be disposed of in the same suit. Where there is ‘common question of law and fact, separate suits are neither necessary nor desirable. And the Not applicable to arbitration proceedings * Devendra vs State of Uttar Pradesh > Not applicable to petition under Article 226. oinder of cause of scton: rales 3 6: ‘A plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such ‘causes of action in the same suit. (2) Where causes of action are united, the jurisdiction of the ‘Court as regards the suit shall depend on the amount or value ofthe aggregate subject-matters atthe date of instituting the suit Enables joinder of several cause of action in one suit inthe following: |. One plaintiff, one defendant, several cause of action 2. Joinder of plaintiffs (two or more plaintiff), several eause of action conditions, (@eause of action must have arisen ffom same act or transaction. (b) Common question of law / fact must have been involved. 3. Joinder of defendants and cause of action (a)cause of action must have arisen from ‘same act or transaction. (6) Common question of law / fact must have been involved. 4. Joinder of plaintiffs, defendants and cause of action 5. If plaintiffs are not jointly interested mis joinder suit bad if defendants not jointly imerested 7 objections as to mis joinderof cause of action must be taken at the earliest opportunity ‘otherwise deemed to have been waived.a UNIT- PLEADINGS AND TRIAL PLEADINGS - ORDER VI: Pleading is defined as plaint or written statement "Mogha' definition — “Pleadings ae statements in wrtcg drawn up and filed by each party to ‘8 case, stating what are his contentions will be atthe trial and giving all such details as his ‘opponent needs to be known in order to prepare his answer". Object of pleadings is to narrow down the area of conflict and to see where the two sides differ and to prevent miscarriage of justice. In *Ganesh Trading Co v. Moji Ram it was held that the object are meant to give to each side imimation of the case of the other, to enable Court to determine what is really at essence ‘between partes and to prevent deviation from the course which litigation on particular cause ‘of action must take. Rule 2 Basic ral of pleadings (GOLDEN RULES) 1. Should state facts and not law In *Kedar Lal v. Hari Lal Te. was held itis the duty ofthe parties to state only the facts on which they rely upon for their claims and it isthe duty of the Court to apply the law. 2. Facts stated should be material facts: Material facts: all facts which the plaintiffs cause of action or the defendants defence depends. ‘Ramachandran v. Janakiraman > Material facts are primary and basic facts which must be pleaded by the party in support of the case. To identify a particular fact is a material fact or not depends on the facts and circumstances of each case. 3. Pleadings should not state evidence: ‘The third principle of pleadings is thatthe evidence of facts, as distinguished from the facts, themselves, need not be pleaded. In other words, the pleadings should contain a statement of ‘material facts on which the party relies but not the evidence by which those facts are to be proved. *Sheshadri vs. Pai2 > The pleadings should contain a statement of material facts on which the party relies but not the evidence by which those facts are to be proved. Facts are of two types: (@) 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. The material facts ‘on which the plainif relies for his claim or the defendant relies for his defence are called facta probanda and they must be stated in the plaint or in the writen statement, as he ease may be, But the fats or evidence by means of which the material facts are to be proved are called facta probantia and need not be stated in the pleadings. They are not the “fact in issue", ‘bat only relevant fats required to be proved at the trial in order to establish the fact in issue. 4, Facts should be stated in concise form: ‘The fourth and the last general principles of pleadings i that he pleadings should be drafted with sufficient brevity and precision. The material facts should be stated precisely succinctly ‘and coherently. The words “in a concise form” are definitely suggestive of the fact that brevity should be adhered to while drafting pleadings. thas been uniformly held that pleadings in India should not be construed very strictly. They have to be interpreted liberally and regard must be had tothe substance of the matter than the form thereof. ‘Amendment of pleadings: - Rules 17 0 18 Amendment of pleadings is basically forthe purpose of bringing about final adjudication in a ‘suit and to avoid multiplicity of proceedings. I isin the interest of justice that a suit shall be ‘decided on all points of controversy and accordingly, itis needed thatthe party shall be allowed to alter or amend their pleadings during the pendency of the suit. There can be'a situation where there is change of circumstances in the course of pendency of a proceeding and if a matter in issue arises upon such change of circumstance, then amendment becomes necessary. Amendment of pleadings is provided under Order VI Rule 17 ofthe Code of Civil Procedure, 1908, which reads as under: ‘According to Order VI Rule 17 of the Code of Civil Procedure, 1908, the Court may allow the amendment at any stage of the proceedings and for such purpose it may impose ‘conditions i.e. in the form of cost or any other condition, The Court has been given discretion in this regard and the mandatory guidelines upon the Court as well as upon the party secking ‘amendment is that they shall make only such amendments which are necessary. for determination of real controversy between the parties to the suit. At the same time, the Proviso to Order VI Rule 17 puts a mandate upon the Court not to allow such amendment after the tail has begun (je. if issues have been settled), if its finds thatthe party could have raised the pleadings by due diligence at an earlier point of time. However, the Proviso need not be given a very rigid effect in all cases asthe same is subject to the diseretion of the Court. The main object of the legislation is to enable the Court to3 allow amendment at any stage. The purpose of the Proviso cannot do away with the intent of the legislation. Thus if an application for amendment of pleadings has been fled afer tral has begu, the Cour will normally be tilted agains the applicant, iit could be raised by due diligence at any earlier stage of proceedings. But in proper cases if the point to be amended is very essential tothe suit, the Court may, in the interest of justice and equity, allow the tmendment on such conditions as the Court deems fit and proper in the facts and ‘reumstances ofthe particular cas, It was held by the Hon'ble Supreme Court in Salem Advocate Case’, that by the 2002 ‘Amendment, which added the Proviso 10 Order VT Rule 17, te burden of poof has been shifted upon the applicant who makes the application for amendment after the trail has commenced, to prove that despite due diligence he could not have raised the issue before the commencement of tral. This is forthe purpose of preventing frivolous application to delay the proceedings. PLAINT: ORDER VIT Rule 1. Particulars to be contained in plaint: ‘The plant shal contain the following particulars = (a) the name of the Court in which the suit is brought; (©) the name, description and place of residence ofthe plaintiff (©) the name, description and place of residence of the defendant, so far as they can be ascertained; (@) where the plaintiff of the defendant is 8 minor or a person of unsound mind, a statement to that effet; (©) the facts constituting the cause of action and when it arose; (0 the facts showing thatthe 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 s0 allowed or relinquished; and (0 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. Rule 2: In money suits ‘Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed. But where the plaintiff sues for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant, o for rmovables in the possession of the defendant, or for debts of which the value he cannot,™ after the exercise of reasonable diligence, estimate, the plaint shall state approximately the ‘amount or value sued for. Role 3. Where the subject-matier of the suit is immovable property: ‘Where the subject-matter of the suit is immovable propery, the plant shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plant shall specify such boundaries or numbers. Rule 4: When plaintiff sues in representative characer the plaint shall show not only that the has an actual existing interest in the subject-matter, but that he has taken the steps (if any) necessary to enable him to institute a suit concerning Rule 5: Defendant's interest and lability tobe shown - ‘The plaint shall show thatthe defendant is or claims tobe interested in subject-matter, and that he is lable tobe called upon to answer the plaintiff's demand, Rule 6: Grounds of exemption from limitation law Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed, Provided that the Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plant, if such ground isnot inconsistent with the grounds set out in the plant Rule 7, Relief tobe specially- Every Plant shall state specifically the relief which the plaintiff claims either simply or in the altermative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent aif it had been asked for. ‘And the same rule shall apply to any relief claimed by the defendant in his writen statement Rule 8, Relief founded on separate grounds Where the plaintiff seeki relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, they shall be stated as far as may be separately and distinctly, Rule 9, Procedure on admitting plaint- Concise statements- (1) The plaintiff shall endorse onthe plait, or annex thereto, alist ofthe documents (if any) which he has produced along with it; and, if the plaint is admitted, shall present, within such time as may be fixed by the Court or extended by it from time to time, a8 many copies) on plain paper of the plant as there are defendants, unless the Court by reason of the length of the plaint or the number ofthe defendants, or for any other sufficient reason, permits him to present alike number of concise statements ofthe nature of the claim made, ‘or ofthe relief claimed in the suit, in which case he shall present such statements.