I.!

Purpose of Civil Procedure

-! Procedural laws prescribe procedure for the enforcement of rights and
liabilities. Effect of substantive laws to a large extent depends on the quality
of procedural laws (simple, expeditious and inexpensive)
-! Object of the code is to consolidate and amend laws relating to the procedure
of Courts of Civil judicature. It contains all the laws of procedure to be
adopted by civil courts.
-! Designed to facilitate justice and further ends, and is not a means for
penalization or punishment.
-! Reasonable elasticity of interpretation
-! “A procedural law is always sought in aid of justice, not in contradiction or to
defeat the very object which is sought to be achieved. A procedural law is
always subservient to the substantive law. Nothing can be given by a
procedural law what is not sought to be given by a substantive law and
nothing can be taken away by the procedural law what is given by the
substantive law.” – SC in Saiyad Mohd Bakar v. Abdulhabib Hasan (1998) 4
SCC 343 at p. 349
-! Courts should not adopt a hyper-technical view in interpreting the CPC, since
they must be construed liberally and in such a manner as to render the
enforcement of substantive rights effective.
-! Laws of procedure based on the principle that as far as possible no proceeding
in a court of law should be allowed to be defeated on mere technicalities.

-! There are two parts to the code – the body containing 138 Sections
(substantive part) and the First Schedule, containing 51 Orders and Rules
(procedural part). The body cannot be amended except by legislature and the
First Schedule can be amended by High Courts.
-! The CPC is not retrospective in operation.

Definition clause
-! Section 2 of the Code
-! A definition clause is some sort of statutory dictionary – a legislative device
with a view to avoid making different provisions of the statute needlessly
cumbersome. (Indira Nehru Gandhi v. Raj Narain). Where a word is defined
in a statute and that word is used in a provision to which that definition is
applicable, the effect is that wherever the word defined is used in that
provision, the definition of the word is substituted. The normal rule may be
departed from if there be something in the context to show that the definition
should not be applied or when the context strongly suggests its departure.
-! Decree – decision of the court with 5 elements:
(i)! there must be an adjudication (i.e. judicial determination of the matter
in dispute) – the judicial determination must be made by a court. Thus
an order passed by an officer who is not a court is not a decree.;
(ii)! such adjudication must have been done in a suit (there is no definition
of suit in the Code, but in Hansraj Gupta v. Official Liquidators of The
Dehra Dun-Mussoorie Electric Tramway Co. Ltd. The word suit is
defined as ‘a civil proceeding instituted by the presentation of a plaint’.
Thus, every suit is instituted by the presentation of a plaint) – when
there is no civil suit, there is no decree;
 rights of the parties relating to status, limitation, jurisdiction etc.
actual legal rights and duties a person
(iii)! it must have determined the rights (substantive rights and not
procedural rights) of the parties (only the parties to the suit) with
regard to all or any of the matters in controversy (the subject matter of
the suit with reference to which some relief is sought – however, it
covers any question relating to the character and status of a party
suing, to the jurisdiction of the court, to the maintainability of the suit
and to other preliminary matters which necessitate an adjudication –
interlocutory (interlocutory = given provisionally during the course of
a legal action) matters of procedure which do not decide the
substantive rights of the parties are not decrees) in the suit;
(iv)! Such determination must be of a conclusive nature (an order to dismiss
an appeal summarily under Order 41 is a decree inasmuch as it decides
the rights of parties conclusively – the crucial point which requires to
be decided in such a case is whether the decision is final and
conclusive in essence and substance. If it is, it is a decree); and
(v)! There must be a formal expression of such adjudication (the decree
follows the judgment and must be drawn up separately).
-! Test: to decide whether an order of a court is a decree the Court should take
into account pleadings of the parties and the proceedings leading up to the
passing of an order. the courts in order to find out whether order is decree may have to
consider the circumstances under which the order was made and the
-! Three classes of decree: words were used
(i)! Preliminary (the Code provides for passing preliminary decrees in the
following Orders – Order 20 Rule 12, 13, 14, 15, 16, 18 and Order
34 Rule 2-3, 4-5, 7-8 – in Phoolchand v. Gopal Lal, there is nothing in
CPC that prohibits the passing of more than one preliminary decree –
but this is only in partition suits);
(ii)! Final (this is when the decree completely disposes of the suit) – there
can be more than one final decree in a suit (held by SC in Shankar v.
Chandrakant);
(iii)! Partially preliminary and partially final.

-! Deemed decree – this creates statutory fiction where the adjudication does not
fulfill the requirements of Section 2(2), and therefore is not a decree – but it
can be ‘deemed’ to be a decree, and requires to be treated as such. Order 21
Rule 58, Rule 98 – deemed decrees. Also the adjudication under Section 144
(Restitution) is a deemed decree.
-! In terms of ‘dismissal for default’, it means default for non-appearance, for
want of prosecution of suit or appeal, and for other reasons.
-! Appealable orders – specified in Section 104 and Order 43 Rule 1. The
difference between a decree and an appealable order is that in the case of a
decree, a Second Appeal lies in some cases, but no Second Appeal lies from
an appealable order.
-! Judge – the term ‘Court’ is not defined in the CPC. It is a place where justice
is judicially administered.
-! Judgment – essential elements: every judgment should contain
(i)! a concise statement of the case;
(ii)! the points for determination;
(iii)! the decision thereon; and
(iv)! the reasons for such decision. A judgment must be intelligible and
must show the whole process of legal reasoning and show that the
 judge has applied his mind. The judgment need not be a decision on all
the issues in a case (e.g. a judgment on the constitutional validity of a
statute)
-! Judgment and decree: the difference between the two is that in a decree, the
judge is not required to give a statement, but it is necessary for him to give a
statement in a judgment. Similarly, it is not necessary that there should be a
formal expression of the order in the judgment, though it is desirable to do so.
Order 20 Rule 6-(1) states that the last portion of a judgment should contain
the specific relief granted. Therefore, the judgment contemplates the stage
prior to the passing of a decree or an order, and after the pronouncement of the
judgment, a decree follows.
-! Order – the adjudication of a court which is not a decree is an order. An order
is founded on objective considerations and as such the judicial order must
contain a discussion of the question at issue and the reasons which prevailed
with the court which led to the passing of the order.
-! An order and a decree are similar. The adjudication of a court can be one or
the other, but not both. The common elements are (1) both relate to matters in
controversy; (2) both are decisions given by a court; (3) both are adjudications
of a court of law; and (4) both are formal expressions of a decision.
-! Differences: (i) a decree can only be passed in a suit that is instituted by the
presentation of a plaint – in the case of an order it can be passed even in a suit
that originated from an application or a petition. (ii) A decree is an
adjudication which conclusively determines the rights of the parties regarding
the matters at controversy, but an order may not conclusively determine such
rights. (iii) There cannot be a preliminary order. (iv) in the case of a suit or
proceeding, a number of orders can be filed, but in most proceedings 2 decrees
(preliminary and final) or 1 decree is filed; (v) every decree is appealable
unless expressly provided, but every order is not appealable unless it is
specified in the Code; and (vi) There may be two appeals in the case of
appealable decrees, but no Second Appeal is possible in the case of appealable
orders.
-! Decree holder: the decree holder may not necessarily be the plaintiff. Where
a decree for specific performance is passed, such a decree is capable of
execution, both by the plaintiff as well as the defendant, and therefore, either
of the parties is a decree holder.
-! Foreign Court: Two conditions are required – (i) the court must be situated
outside India; and (ii) it must not have been established or continued by the
Central Government.
-! Foreign judgment: crucial determining factor is the date of judgment – for
example, the judgment of a court which was a foreign court at the time of its
pronouncement would not cease to be a foreign judgment by reason of the fact
that subsequently the foreign territory has become a part of the Union of India.
-! Legal Representative: the scope of the term is very wide e.g. executors,
administrators, reversioners, Hindu coparcenors, residuary legatees, etc.
-! Mesne profits: the object of mesne profits is to give compensation to the real
owner of the property, since when the rightful owner is deprived of his right to
possession of his property he is entitled to restoration of possession as well as
damages for wrongful possession. (Lucy Kochuvareed v. P. Mariappa
Gounder). Mesne profits can be claimed with regard to only immovable
property, and a decree for mesne profits can be passed against a trespasser or
 against a person against whom decree for possession is passed, or against a
mortgagor in possession of mortgaged property after a decree for foreclosure
has been passed against him, or against a mortgagee in possession of property
even after a decree of redemption is passed.
-! When a plaintiff has been dispossessed by several persons, every one of them
would be liable to pay mesne profits. In assessing the mesne profits, usually
the court will take into account what the defendant has gained or reasonably
might have gained by the wrongful possession of the property. The test to
ascertain mesne profits is not what the plaintiff has lost by dispossession, but
what the defendant has gained or might have gained reasonably and with
ordinary prudence. The principles that would guide a court in determining the
amount of mesne profits are: (i) no profit by a person in wrongful possession;
(ii) restoration of status before dispossession of decree holder; and (iii) use to
which a decree holder would have put the property if he himself was in
possession.
-! Interest is an important part of mesne profits, and the rate of interest (as a part
of mesne profits) is left to the discretion of the court – limitation is six per cent
per annum. Mesne profits should be net profits and allow for deductions such
as cost of cultivation, rent, land revenue, etc.
-! Public Officer – retired government servants, Port Commissioners, Municipal
councilor, officer of a corporation etc. are not public officers.
-! The items that are not defined in the Code, but which are important
include the following:
o! Affidavit: it is a declaration of facts, reduced to writing and affirmed
or sworn before an officer who has the authority to administer an oath.
It should be drawn up in the first person and contain no inferences.
o! Appeal: this is defined as the judicial examination of the decision by a
higher court of the decision of a lower court. It is a complaint as well
as a remedy. The right of appeal cannot be exercised by a person
unless it is granted clearly and expressly by a statute. Similarly, it
cannot be taken away except by an express statutory provision.
o! Cause of action: a bundle of essential facts which is necessary for the
plaintiff to prove before he can succeed. It is the foundation of a suit,
and must be antecedent to the institution of the suit – and on the basis
of it a suit must have been filed. If a plaintiff does not disclose the
cause of action of a suit then the court will reject the plaint.
o! Caveat: it is an official request that a court should not take a particular
action without issuing notice to the party lodging the caveat and
without affording an opportunity of hearing him.
o! Civil: civil proceedings are proceedings in which a party asserts civil
rights conferred by a civil law.
o! Execution: the process of enforcing or giving effect to the judgment,
decree or order of a court.
o! Summons: it is a document issued from an office of a court of justice,
calling upon the person to whom it is directed to attend before a judge
or an officer of the court for a certain purpose. It legally obligates
someone to attend a court of law at a specified date. When a plaintiff
files a suit, the intimation sent to the defendant by the court is known
as a summons. Summons can also be issued to witnesses.
 o! Written statement: it is the reply of a defendant to the plaint filed by
the plaintiff. Thus, it is a pleading of a defendant dealing with every
material fact of a plaint. It may contain new facts as well as legal
objections to the claim of the plaintiff (it is the plaint of a defendant).

II.! JURISDICTION OF CIVIL COURTS

-! Fundamental principle of English law that has found its application in the
Indian legal system is ubi jus ibi remedium – wherever there is a right, there is
a remedy.
-! Jurisdiction means the power or authority of a court of law to hear and
determine a cause or a matter. It is the power to entertain, deal with and decide
a suit, an action, petition or other proceeding.
-! The main case relating to jurisdiction in India was Official Trustee v.
Sachindra Nath where the Supreme Court said its jurisdiction must include the
power to hear and decide the question at issue, the authority to hear and decide
the particular controversy that has arisen between the parties (at p. 828)
-! Consent cannot confer, nor can it take away jurisdiction. This was stated in the
leading case of A.R. Antulay v. R.S. Nayak with regard to the jurisdiction of
the High Court of Bombay. If the court has no inherent jurisdiction, neither
acquiescence nor waiver nor estoppel can create it (Dhirendra Nath v. Sudhir
Chandra)
-! A decree that is passed without jurisdiction is non est and its validity can be
set up whenever it is sought to be enforced as a foundation for a right, even at
the stage of execution of the decree or in collateral proceedings. The SC stated
that the defect of want of jurisdiction cannot be cured by consent of parties in
the case of Kiran Singh v. Chaman Paswan.
-! Difference between lack of jurisdiction and irregular exercise of jurisdiction –
it is within the jurisdiction of a court to decide ‘wrongly’. (Ittyavira Mathai v.
Varkey Varkey – SC said a decree cannot be considered to be a nullity if the
suit is time bound, because of the very reason that it is within the jurisdiction
of the court to decide wrongly. If the parties do not approach the court with
the error, then later they cannot claim nullity of the decree).
-! All administrative actions should be simply lawful whether or not
jurisdictionally lawful.
-! The jurisdiction of a court is decided on the basis of the averments made in the
plaint. Note: a suit against a trespasser lies in the civil court and not the
revenue court.
-! On the question of jurisdiction, one must always have regard to the substance
of the matter and not to the form of the suit. When a court is of limited
jurisdiction and has jurisdiction to try only the collateral issue in the case, it
can consider it prima facie and the jurisdiction of a civil court to decide such
issue finally is not taken away. (LIC v. India Automobiles & Co.)
-! In the case of Ananti v. Chhannu, the SC said – if the jurisdiction is only one
relating to the territorial or pecuniary limits, the plaint will be ordered to be
returned for presentation to the proper court. If, on the other hand, it is found
that, having regard to the nature of the suit, it is not cognizable by the class of
court to which the court belongs, the plaintiff’s suit will have to be dismissed
in its entirety.
 -! Note: Whenever the jurisdiction of a court is challenged, that court has
inherent jurisdiction to decide the said question, and it is bound to determine
whether the matter comes within its jurisdiction or not (Bhatia Coop. Housing
Society Ltd. V. D.C. Patel)

Different kinds of jurisdiction (territorial, subject matter, pecuniary)

-! Territorial jurisdiction: every court has its own local or territorial limits
beyond which it cannot exercise its jurisdiction. A court also has no
jurisdiction to try a suit for immovable property situated beyond its local
limits.
-! Pecuniary jurisdiction: the Code provides that a court will have jurisdiction
only over those suits the amount or value of the subject matter of which does
not exceed the pecuniary limits of its jurisdiction. Some courts have unlimited
pecuniary jurisdictions (e.g. High Courts and District Courts). But there are
other courts which have the jurisdiction to try suits up to a particular amount.
-! Jurisdiction as to subject-matter: Different courts have been empowered to
decide different types of suits. Certain courts are precluded from entertaining
certain suits. E.g. a Presidency Small Causes Court has no jurisdiction to try
suits for specific performance of a contract, partition of immovable property,
foreclosure or redemption of a mortgage, etc. Similarly, with respect to
divorce cases only the District Judge or Civil Judge has jurisdiction.

Condition precedent to exercise of jurisdiction

-! Section 9 says that a civil court has jurisdiction to try all suits of a civil nature
unless they are barred.
-! A civil court has jurisdiction to try a suit if two conditions are fulfilled:
o! The suit must be of a civil nature
-! Note: the expression ‘civil nature’ is wider than the expression ‘civil
proceeding’ (Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma) –
1995 SC case at p. 2022-23 (landmark case). A suit of a civil nature is one
where the principal question relates to the determination of a civil right and
enforcement thereof. It is not the status of the parties to the suit, but the
subject-matter of it which determines whether the suit is of a civil nature. This
covers private rights and obligations of a citizen and not political and religious
questions.
-! Test to see whether a suit is one of a civil nature: in which the right to property
or to an office is contested is a suit of a civil nature, notwithstanding that such
right may depend entirely on the decision of a question as to religious rights or
ceremonies.
o! The cognizance of such a suit should not have been expressly or
impliedly barred.
-! A suit is said to be expressly barred when it is barred by any enactment for the
time being in force (Umrao Singh v. Bhagwati Singh). But every presumption
should be made in favour of the jurisdiction of a civil court and the provision
of exclusion of jurisdiction must be strictly construed. If there is any doubt
about the jurisdiction of a civil court, the court will lean towards an
interpretation which would maintain the jurisdiction.
-! A suit is said to be impliedly barred when it is barred by general principles of
law. When a specific remedy is given by a statute, it thereby deprives the
person who insists upon any other remedy than the one which is prescribed by
 the statute. Similarly, certain suits, though of a civil nature, are barred from
the cognizance of a civil court on the ground of public policy (Indian Airlines
Corp v. Sukhdeo Rai). The principle underlying this, given in Union of India v.
Ram Chand is that a court ought not to countenance matters which are
injurious to and against the public weal. Therefore, no suit shall lie for
enforcement of a right upon a contract hit by Section 23 of the Indian Contract
Act, 1872. Similarly, political questions belong to the domain of public
administrative law and are outside the jurisdiction of civil courts.
-! The party which seeks to oust the jurisdiction of a civil court needs to
establish it. Also, it is well-settled that a statute ousting the jurisdiction of a
civil court must be strictly construed (Firm of Illuri Subbayya Chetty & Sons
v. State of AP).

Note: during the exclusion of jurisdiction, even if the jurisdiction of a court is barred
expressly or impliedly, this does not mean that the jurisdiction of the court is
completely excluded. The court is allowed to examine whether the provisions of the
Act and the Rules have been complied with, or the order is contrary to law, mala fide,
ultra vires, perverse, arbitrary, violative of the principles of natural justice, based on
no evidence, etc. Such actions of the court are not said to be under the Act, but de
hors the Act and the jurisdiction of the court stands (given in Secy. Of State v. Mask &
Co.).

From various decisions of the SC, the following general principles relating to the
jurisdiction of a civil court emerge:
1.! A civil court has jurisdiction to try all suits of a civil nature unless their
cognizance is barred either expressly or impliedly.
2.! Consent can neither confer nor deny the jurisdiction of a court.
3.! A decree passed by a court without jurisdiction is a nullity and the validity
thereof can be challenged at any stage of the proceedings, in execution
proceedings or even in collateral proceedings.
4.! There is a distinction between want of jurisdiction and irregular use of it.
5.! Every court has the inherent power to decide a question of its own jurisdiction.
6.! Jurisdiction depends on the averments in the plaint, and not in the averments
in the written statement of the defendant.
7.! For deciding jurisdiction of a court, the substance of a matter and not its form
is important.
8.! Every presumption should be made in favour of jurisdiction of a civil court.
9.! A statute ousting jurisdiction of a court must be strictly construed.
10.!The burden of proof to disprove a court’s jurisdiction is on the party who
questions it.
11.!Even when the jurisdiction of a civil court is barred, it can still decide whether
the provisions of an Act have been complied with or whether an order was
passed dehors the provisions of law.

Res Sub Judice

-! Section 10 deals with the stay of civil suits. No court shall proceed with the
trial of any suit in which the matter in issue is also directly and substantially in
issue in a previously instituted suit between the same parties and that the court
in which the previous suit is pending is competent to grant the relief claimed.
 -! No court should proceed with the trial of any suit in which the matter in issue
is directly and substantially in issue in a previously instituted suit between the
same parties and the court before which the previously instituted suit is
pending is competent to grant the relief sought. This rule applies to trial of a
suit and not the institution thereof. It also does not preclude a court from
passing interim orders such as grant of injunction or stay, appointment of
receiver, etc.
-! The object of the rule is to prevent courts of concurrent jurisdiction from
simultaneously entertaining and adjudicating upon two parallel litigations in
respect of the same cause of action, the same subject-matter, and the same
relief. The policy of law is to confine a plaintiff to one litigation thus
preventing the possibility of two contradictory verdicts by one and the same
court in respect of the same relief. (Balkishan v. Kishan Lal) – to protect a
person from multiplicity of proceedings and to avoid a conflict of decisions.
-! The section gives effect to the rule of res judicata. (given in S.P.A. Annamalay
Chetty v. B.A. Thornhill)
-! The following conditions must be satisfied for the application of this section:
o! There must be two suits, one instituted after the other.
o! The matter in issue in the second suit must be directly and substantially
in issue in the previous suit.
o! Both suits must be between the same parties or their representatives.
o! The first suit must be pending in the same court in which the second
suit is brought or in any other court in India or in any other court
beyond the limits of India established or continued by the Central
Government or before the Supreme Court.
o! The court in which the previous suit is instituted must have jurisdiction
to grant the relief claimed in the second suit.
o! Such parties must be litigating under the same title in both suits.
-! Section 10 does not take away power of the court to examine the merits of the
matter. If the court is satisfied that the second suit can be decided purely on
legal point, it is open to the court to decide such a suit.
-! If the decision in a previously instituted suit would operate as res judicata in a
subsequent suit, then the subsequent suit must be stayed.
-! A civil court has inherent power under Section 151 to stay a suit to achieve
the ends of justice, even if it is not strictly prohibited under Section 10.
Similarly a court has inherent power to consolidate different suits between the
same parties in which the matter in issue is substantially the same.
-! A decree passed in contravention of Section 10 is not a nullity, and therefore
cannot be disregarded in execution proceedings (Pukhraj D. Jain v. G.
Gopalakrishna). Section 10 lays down a rule of procedure which can be
waived by a party. Hence if the parties waive their right and expressly ask the
court to proceed with the subsequent suit, they cannot afterwards change the
validity of the subsequent proceedings.

Res judicata

-! Section 11 embodies the doctrine of res judicata, or the rule of conclusiveness

of a judgment as to the points of facts, or of law, or of both in every
subsequent suit between the same parties. Once a matter is finally decided by
 a competent court, no party can be permitted to reopen it in a subsequent
litigation.
-! The doctrine has been very simply explained by Justice Das Gupta in
Satyadhyan Ghosal v. Deorjin Debi. He says that the principle is based on the
need of giving a finality to judicial decisions.
-! The doctrine is conceived in the larger public interest which requires that all
litigation must, sooner or later, come to an end. The principle is also founded
on justice, equity and good conscience which require that a party who has
once succeeded on an issue should not be harassed by a multiplicity of
proceedings involving the same issue. (Lal Chand v. Radha Krishnan)
-! The leading case on res judicata is the Duchess of Kingstone case.
-! The doctrine is of universal application. In the case of Daryao v. State of UP
the SC placed it on a broader foundation – the rule of res judicata applies also
to a petition filed under Article 32 of the Constitution and if a petition filed by
a petitioner in the High Court under Article 226 of the Constitution is
dismissed on merits, such decision would operate as res judicata so as to bar a
similar petition in the SC under Article 32 of the Constitution.

Difference between res sub judice and res judicata

-! Whereas res judicata applies to a matter adjudicated upon, res sub judice
applies to a matter pending trial; and
-! Res judicata bars the trial of a suit or an issue which has been decided in a
former suit, res sub judice bars trial of a suit which is pending decision in a
previously instituted suit.

Res judicata and Estoppel

-! The doctrine of res judicata is often treated as a branch of the law of estoppel
– it is really estoppel by verdict or estoppel by judgment (V. Rajeshwari v.
T.C. Saravanabava)
-! The differences between res judicata and estoppel are as follows:
o! Res judicata flows from the decision of a court, but estoppel flows
from an act of parties.
o! Res judicata is based on the principles of public policy (that there
should be an end to litigation) but estoppel is based on principles of
equity (that one who, by his conduct, has altered the position of
another party to his disadvantage, cannot turn around and use this
alteration to his advantage). Res judicata prevents multiplicity of
litigations, but estoppel prevents multiplicity of representations.
o! Res judicata ousts the jurisdiction of a court to try a case whereas
estoppel is only a rule of evidence and shuts the mouth of the party.
o! Res judicata prevents a party from claiming the same thing twice in
successive litigations, while estoppel prevents him from saying one
thing at one time and the opposite at another.
o! Res judicata presumes conclusively the truth of the decision in the
former suit, while the rule of estoppel prevents a party from denying
what he has once called the truth.

Res judicata and Stare Decisis

-! Stare decisis means to stand by decided cases; to uphold precedents – those
things which have been so often adjudged ought to rest in peace.
 -! Res judicata and stare decisis are members of the same family. Both relate to
adjudication of matters; final determination of contested questions and have
binding effects in future litigation. Both the doctrines are the result of
decisions of a competent court of law and are based on public policy.
-! However, the differences between the two are as follows:
o! Res judicata is based on conclusiveness of judgment and adjudication
of prior findings but stare decisis rests on legal principles.
o! Res judicata binds parties and privies while stare decisis operates
between strangers also and binds courts from taking a contrary view on
the point of law already decided.
o! Res judicata relates to a specific controversy and stare decisis touches
legal principles.
o! Res judicata presupposes judicial finding upon the same facts as
involved in subsequent litigation between the same parties, whereas
stare decisis applies the same principle of law to all parties.

Note: Res judicata differs from Order 2 Rule 2 (prohibition of splitting of claims)
of the Code in the following ways:
-! The former refers to a plaintiff’s duty to bring forward all grounds of attack in
support of his claim whereas the latter only requires a plaintiff to claim all
reliefs flowing from the same cause of action.
-! While the former rule refers to both the parties and precludes a suit as well as
a defense, the latter refers only to a plaintiff and bars a suit.

Section 11 is mandatory but not exhaustive. It should be applied and interpreted

liberally.

-! Matter in issue is the facts on which the right is claimed and the law
applicable to the determination of that issue.
-! Matters in issue can be
o! Directly and substantially in issue
!! Actually in issue
!! Constructively in issue
o! Collaterally or incidentally in issue
-! When there are findings on several issues or where the court rests its decision
on more than one point, the findings on all the issues or points will be res
judicata.
-! The question on whether a matter is directly and substantially at issue will
depend on the plaint, the written statement, issues and judgment. It depends on
whether a decision on the issue would materially affect the decision of the
suit.
-! The principle underlying Explanation IV is that where the parties have had
the opportunity of controverting a matter that should be taken to be the same
thing as if the matter had been actually controverted and decided. The object is
to ensure that all the grounds of attack and defense must be taken in the suit.
-! Constructive res judicata has been explained by Workmen v. Board of
Trustees, Cochin Port Trust – when any matter which might and ought to have
been made a ground of defence or attack in a former proceeding but was not
so made, then such a matter in the eye of the law, to avoid multiplicity of
 litigation and to bring about finality in it is deemed to have been
constructively in issue and, therefore, is taken as decided.
-! Res judicata between co-defendants
o! There must be a conflict of interest between co-defendants
o! It must be necessary to decide that conflict to give relief to the plaintiff
o! The question between co-defendants must have been finally decided;
and
o! The co-defendants were necessary or proper parties in the former suit.
-! If these conditions are satisfied, the adjudication will operate as res judicata
between co-defendants. (Munni Bibi v. Tirloki Nath)
-! A defendant in a suit against whom no relief is claimed is called a pro forma
defendant.
-! Before a decision may operate as res judicata under Explanation VI the
following conditions should be met:
o! There must be a right claimed by one or more persons in common for
themselves and others not expressly named in the suit;
o! The parties not expressly named in the suit must be interested in such
right;
o! The litigation must have been conducted bona fide ad on behalf of all
parties interested; and
o! If the suit is under Order 1 Rule 8 all conditions laid down therein
must have been strictly complied with.
-! In order that a decision in a former suit may operate as res judicata the court
which decided that suit must have been either:
o! A court of exclusive jurisdiction
o! A court of limited jurisdiction
o! A court of concurrent jurisdiction
-! The test in such cases is whether the second suit could have been decided by
the first court. If the answer to the question is yes, then the decision will
operate as res judicata. If no, then res judicata has no application.
-! If the previous suit has been dismissed on a technical ground such as a non-
joinder of the necessary party, the fifth and final condition of res judicata is
not fulfilled (the matter should have been heard and finally decided) and the
suit is not barred – since the decision is not on merits.
-! The doctrine of res judicata has no application in taxation matters.
-! Res judicata also has no application in writs of habeas corpus.
-! Dismissal for default will not operate as res judicata between the parties in
subsequent proceedings.
-! Dismissal in limine – by one word ‘dismissed’ is no res judicata.
-! Dismissal of SLPs is also not subject to res judicata between the parties and
will not bar a fresh petition under Article 32 or Article 226 of the Constitution.
-! Withdrawal of a suit – not res judicata
-! The doctrine of res judicata applies to static circumstances and not changing
circumstances.
-! With regard to interim orders, the doctrine of res judicata applies to different
stages of the same proceeding. If any interlocutory order decides a controversy
in part between parties, such decision would bind the parties and operate as res
judicata at all subsequent stages of the suit.

Foreign Judgment
Foreign Court: court situated outside India and not established or continued by the
authority of the Central Govt.
Foreign Judgment: adjudication of a foreign court upon a matter before it.

Section 13 embodies principle of Res Judicata in foreign judgments

Common rules adopted to adjudicate upon disputes with a foreign element, judgments
of foreign courts or as a result of intl. conventions.

Jurisdiction on a Foreign Court:

Foreign court must have jurisdiction, or else will not ne recognized or enforced in
India. Jurisdiction=Territorial Competence of Courts.

Foreign Judgments are binding except:

a.! where it has not been pronounced by a court of competent jurisdiction
b.! where it has not been given on the merits of the case
c.! where proceedings are founded on incorrect view of intl. law/ lack of
recognition of indian law
d.! where proceedings are against natural justice
e.! where it has been obtained by fraud
f.! where it is sustained based on a breach of indian law.

Foreign Judgment not by a competing court: section 13(a)

Judgment passed by a court which has no jurisdiction is null and void. In case of
foreign judgments, it must be made by a competent court both by the law of the
constituting state and in an international sense it must have directly adjudicated upon
the matter.

If suit dismissed in foreign country, fresh suit in india.

If suit decreed in foreign country, defendant precluded from putting in issues of same
matters of direct and substantial issue.

Gurdyal Singh v. Rajah of Faridkot:

Suit filed by A when B was neither residing nor domiciled in Faridkot. Hence
Faridkot had no jurisdiction, bases on mere personal claim. Had B resided at F,
the court would have full jurisdiction.

Court has no jurisdiction to pass a decree in respect of immovable property I a foreign

state.

Foreign Judgment not on merits: section 13 (b)

Merits= when judge looks at evidence and based on that decides the case. therefore
judgments that take place due to lack of evidence or non appearance of a party does
not = judgment on merits. Foreign judgment must be given on merits to operate as res
judicata.

Foreign Judgment against Intl. Law or Indian Law: section 13(c)

Judgments based on incorrect view of intl. law or refusal to recognize indian law is
not conclusive. The mistake must be apparent prima facie.

Foreign judgment opposed to natural Justice: section 13 (d)

Judicial process needs to be observed without irregularities in procedure- impartial
persons, fair action, without bias etc.
Any judgment based on bias or partiality etc= null and void.

Foreign Judgment obtained by fraud: section 13 (e)

Will not operate as res judicata
A.V. Papayya Sastry v. Govt. of A.P.: defined fraud. Said that decree obtained
by playing fraud is a nullity.
Satya v. Teja Singh: Husband obtained decree of divorce from an American
court claiming he was domiciled there. On realizing that he was not S.C.
declared decree to be null.

Foreign Judgment founded on breach of Indian law: section 13 (f)

Not enforced in India. Foreign law and judgment cannot offend our public policy.

Presemption as to Foreign Judgment: Section 14

Court presumes that judgment was pronounced by a competent court on the
production of any document claiming to be a certified copy of a foreign judgment
unless the contrary appears on record.
Narsimha Rao v. Venkata Laksmi: mere Photostat copy of judgment not
admissible, needs to be certified by a representative of America’s central Govt.

Submission to Jurisdiction of Foreign Court:

Voluntary submission of party to jurisdiction of foreign court.
May be express or implied. Question of submission is a question of facts and must be
decided in light of facts and circumstances.

If a foreign judgment is delivered by a court having jurisdiction in the matter, it

would operate as res judicata. It is conclusive as to matter adjudicated upon
between same parties subject to exceptions enumerated in Section 13 clause (a) to (f).

Difference between irregularities and not affecting foreign Judgment:

Former: decree passed by court is null
Latter: decree passed is merely irregular or wrong but not without jurisdiction and
cannot be ignored.

Enforcement of Foreign Judgment:

1.! By instituting a suit on the judgment: court cannot go into the merits of the
original claim and is conclusive. Should be filed within 3 years of date of
Judgment.
2.! By instituting execution proceedings: in specified cases mentioned in
SECTION 44-A, which states that if a decree of a superior foreign court has
been filed, the decree should be executed as If it had been passed by the indian
court.
An award passed by a foreign arbitrator and enforceable in a country where it
was made is enforceable in India.

A conclusive foreign judgment may be enforced by taking out execution

proceedings in India.

Institution of Suits

Sections 26- 35-B and orders 1- 20.

ORDERS 1,2 and 4- parties to suit, frame of suit and institution of suit.

Elements of a suit:
1.! opposing parties
2.! subject- matter in dispute
3.! cause of action
4.! relief

ORDER 1: parties to a suit.

PLAINT: a pvt.memorial tendered to a court in which the person sets forth his cause
of action, in writing.

JOINDER OF PLAINTIFFS: Rule 1

All persons may be joined in one suit as plaintiff if the 2 conditions are met:
1.! right to relief in each plaintiff arises out of the same act/ transaction
2.! if the persons brought diff. suits, common questions of law/ fact would arise.

JOINDER OF DEFENDANTS: Rule 3

All persons may be joined in one suit as defendant if the 2 conditions are met:
1.! right to relief in each defendant arises out of the same act/ transaction
2.! if the persons brought diff. suits, common questions.

If a joinder of parties may delay proceedings/ the trial, court can pass an order for
separate trials.

Difference bet. Necessary and Proper parties:

Former: one whose presence is indispensible to the constitution of the suit, against
whom relief is sought, without whom no effective order can be passed.
Latter: in whose absence an effective order can be passed, but presence is necessary
for final decision.

2 tests to determine if a party is a necessary party:

1.! must be a right to relief against this party, in respect of the matter in question.
2.! should not be possible to pass an effective decree in absence of this party.

Rule 8 order 1: not necessary that all interested partied be joined in a suit.

Non- joinder or Misjoinder of parties: Rule 9

When a person who is a proper or a necessary party has not been joined to the party to
the suit.
In case of proper parties, suit cannot be dismissed only on the grounds of mis/ non-
joinder. But in case of necessary parties, suit can be dismissed on that ground alone.

BUT in Prabhakar Rao v. State of A.P., S.C. held that interests of necessary
parties who had not been joined were identical with those who were and that
they were sufficiently and well represented and therefore the petition could not
be dismissed on that ground.

No decree/order under SEC. 47 can be reversed in appeal on account of mis/non-

joinder, not affecting the merits of the case, as long as the party is not a necessary
party.

Objections as to mis/non- joinder of parties: Rule 13

Must be taken at the earliest or deemed o be waived.

Striking out/adding/ substituting parties: Rule 10

RULE 10(1) of Order 1: adding or substituting plaintiffs
After filing the suit, plaintiff discovers that he cannot get relief without joining some
other person/ plaintiff OR where some other person and not the original plaintiff is
entitled to relief.
To bring a case within this, 3 conditions:
1.! filed under name of wrong person as plaintiff
2.! mistake is bona fide
3.! substitution/ addition of plaintiff necessary to determine real matter of dispute

RULE 10 Sub Rule 2 of Order 1: striking out or adding parties

On 2 grounds-
1.! person OUGHT to have been joined as plaintiff/ defendant, and is not
2.! without the presence of the person, the matter of the suit cannot be decided

RULE 10(2) of Order 1: Power and duty of court

2 considerations kept in mind before the court exercises its powers on joining parties-
1.! plaintiff is DOMINUS LITIS- best judge of his interest
2.! if the court is satisfied that the presence of a particular person is necessary.

If a statue makes a person a necessary party and provides tha non- joinder will cause
dismissal of petition, Court cannot use powers of Order 1 Rule 10.

Razia Begum v. Anwar Begum- A sought declaration that she was B’s wife. C
claimed the same and sought to be added as party defendant. Court granted this
prayer since, the declaration sought for the status of marriage and legitimacy of
children. Thus test is not whether plaintiff agrees to be a part of the part, but
that the relief claimed by the plaintiff will directly affect the intervener in the
enjoyment of his rights.

Ramesh Hiracchand v. Municipal Corp. of Greater Bombay- party cannot be

added to introduce a new cause of action.
Court can order transposition of cases on an application or SUO MOTO. It is not
allowed if it alters the nature of the suit or causes prejudice to the opp. Party.

Representative suit: Rule 8

It is a suit filed by/against one or more persons on behalf of themselves and

others having the same interest in the suit.

It is an exception to the general principle. When a no. of persons are similarly

interested in suit, one/ more, with the court’s permission or order can sue/ or be sued
on behalf of the others. The plaintiff in a representative suit need not take prior
permission of other persons whom he seeks to represent.

ORDER 1 RULE 8- does not compel representation. If a person, himself has no right
to sue, he cannot proceed to sue on behalf of the others. It is merely an enabling
provision.

4 conditions for this rule to apply:

1.! parties must be numerous: number of persons should be capable of being
ascertained.
2.! They must have the same interest in the suit: common interest, common
grievance. Need not be proprietary, joint or concurrent- they need not have the
same cause of action or interest arising from same transactions.
T. N. Housing Board v. T. N. Ganapathy- it was contended that representative
capacity could not be maintained as separate demand notices were issued
against each of the allottees, giving rise to separate cause of action. S.C. held
that al of them had the same interest.
3.! Permission must have been granted by the court: if this is not fulfilled, suit
does not become representative. Court has discretion- sufficient community of
interest is essential to adopt procedure laid down in RULE 8.
4.! Notice must be issue to parties that are being represented: duty of court to
ensure that notice is provided, that it is printed in a newspaper that I read by
all persons.

Sub rule 3 of Rule 8: addition/ substitution of parties.

Sub rule 5: any person in representing capacity who does not proceed with due
diligence will be substituted by the court with another person having the same
interest.

RULE 8 is mandatory and non compliance will not maintain the suit.

Under sub rule 4, no par of the claim in a rep. suit can be abandoned under sub rule
1, and no such suit can be withdrawn under sub rule 3 of RULE 1 ORDER 23 and
no agreement/ compromise can be recorded in any suit under ORDER 23 RULE 3 ,
unless the court has given notice to the persons.
RULE 8-A: court can permit a person/ body of persons to present his opinion or to
take part in the proceedings.
RULE 11: court can five conduct of a suit to a person as it deems fit.
RULE 12: Parties can authorize one or more people to appear/ plead/ act for them.
A decree passed in a rep. suit is binding and acts as RES JUDICATA.
Costs may be paid out of the property belonging to the community represented in the
suit an the court’s direction.
The decree is the same as is passed in a regular suit.

Frame of Suit: Order 2

The suit must include the whole of plaintiff’s claim, and as far as practicable all
matters should be disposed off finally. (RULE 1-2)

ORDER 2 RULE 2: every suit must include the whole claim, and if the plaintiff
omits to sue for or intentionally gives up a part of his claim, he is not allowed to sue
for that part later. Relinquishment of claim may not be express, there could be implied
conduct too. It applies ONLY to suits.

Before the bar of ORDER 2 RULE 2 is invoked, 3 conditions should be satisfied:

1.! same cause of action in the second suit
2.! plaintiff was entitled to more than one relief based on that cause of action
3.! plaintiff, without leave of court, omitted to sue for the relief of second
suit: if omission is with permission of the court, the subsequent suit is not
barred.

Mohd. Khalil v. Mahbub Ali- test for bar to a subsequent suit- founded upon
cause of action.

Joinder of claims: Rules 4-5

RULE 4: plaintiff cannot join claim, without permission, EXCEPT:
1.! claims for mesne profits or rent in respect of property/ any part claimed
2.! claims of breach of contract under which property/ any part is held
3.! claims involving same cause of action

RULE 5: deal with suits by/ against administrators, executors and heirs
No claims shall be joined with them unless:
1.! in case of personal claims regarding the estate he represents
2.! he was jointly entitled/ liabled with the deceased whom he represents.

Joinder of causes of action: Rule 3, 6

RULE 3: enables joinder of several causes of actions in one suit in certain

circumstances like:
1.! 1 plaintiff, 1 defendant, several causes of actions: plaintiff can unite several
causes of actions. But if delay or embarrassment is apprehended, court can
separate trials
2.! joinder of plaintiffs and causes of actions: 2 or more P and several causes of
actions can be united. Must be read with ORDER 1 RULE 1.
2/ more P and 2/ more cause of actions, only on 2 conditions:
a)! cause of action arises from same act/ transaction
b)! common questions of law/ fact
3.! joinder of defendants and cause of actions: 1 P and 2/more causes, P can
unite only if D are jointly interested in the causes of the action. Should be read
with ORDER 1 RULE 3.
 2 or more Ds can be joined on 2 conditions:
a)! relief claimed based on same act/ transaction
b)! common questions of law/ fact

4.! joinder of Ps, Ds, and causes of action: if plaintiffs are not jointly interested,
suit will be barred for misjoinder, if defendants are not jointly interested, suit
will be barred for multifariousness.

Objections as to misjoinder of causes of action: Rule 7

Must be taken up at the earliest, or will be waived.

Institution of Suit: ORDER 4

section 26 Order 4: institution of suits.
Order 1: parties to a suit
Order 2: rules relating to framing of a suit, splitting & joinder claims etc.

Section 26 Order 4 Rule 1:

Plaint must be presented, but plaintiff, advocate or agent.
Must be presented to the court of an appointed officer.
Plaint is then scrutinized by the Stamp Reporter after which suits are numbered.
Must contain necessary particulars which will be entered in the register of civil
suits.
ORDER 33: suits of indigent persons.
Suit against minor: when a plaint is presented an not when a guardian is
appointed.
Suit against dead person: dead at the time- no effect, but not void ab initio. Can be
continued by legal representatives, if they are on record

PLEADINGS
Order 6; Rules 1-18
Pleading is a plaint or written statement. Statements drawn up and filed by a party,
stating his contentions, and all relevant details his opponent ought to know.
Plaintiff-Pleading is plaint. Cause of action set out with all the particulars.
Defendant- Pleading is written statement. Every material fact alleged by plaintiff dealt
with, along with new facts and any objections to claims.
Object of pleadings is to bring both parties on the same page insofar as the issues are
concerned. Virendra Kashinath v. Vinayak N Joshi AIR 1999 SC 162-two fold
objective, to appraise the other side about the facts and issues, and allow court to
determine what the issue between the parties is.
Rules of Pleadings (Rule 2)
i.! Only facts and not law
ii.! Material facts only (facts that are necessary to set up the case of the party)
iii.! Evidence should not be stated
iv.! Facts should be stated in concise form with sufficient precision and
brevity. No ambiguity.

Rule 4- In case of fraud, misrepresentation, breach of trust, etc; material facts as well
as particulars need to be furnished in pleadings.
Rule 6- Condition precedent implied in the material facts, no need to specifically state
it. Non-performance of such condition however, needs to be specifically pleaded.
Rule 7- No departure of pleadings, except by way of amendment.
Rule 8- Bare denial of contract only denial of fact of contract, not its legality, validity
or enforceability.
Rule 9- No need to set out documents at length unless words are material.
Rule 10- Malice, Fraudulent intention, knowledge or any other mental condition to be
alleged only as a fact without giving circumstances.
Rule 11- when notice is at stake, only state the giving of such notice, not how or when
it was given.
Rule 12-Implied contracts/relations may be pleaded as a fact, and the circumstances
from which they are inferred are to be pleaded generally.
Rule 13-Facts presumed or burden of proof need not be stated.
Rules 14-15-Pleading should contain address, verified and signed.
Rule 16-Court may strike out unnecessary, vexatious, frivolous, unnecessary
pleadings.
Rule 17-Court may allow amendments to pleadings.
In Writ petitions: Pleading should contain material facts as well as the evidence in
support. Bharat Singh v. State of Haryana AIR 1988 SC 2181
By and large, pleadings should be construed liberally by Courts, where they should
focussed more on the substance than on the rigour of the form. Ram Sarup v. Bishnu
Narain Inter College.
Power of Court under rule 16 to strike out pleadings is extraordinary in nature and
caution must be exercised. Sathi Vijay Kumar v. Tota Singh (2006) 13 SCC 353
Objection to pleading should be taken at the earliest. KC Kapoor v. Radhika Devi AIR
1981 SC 2118
Power to amend pleadings under rule 17 not exhaustive of the Court’s power in that
regard. Wide discretion given to Court to allow amendments. However, it must meet
the ends of “justice” State of AP v. Pioneer Builders AIR 2007 SC 113
2 questions to be considered- No injustice done to other parties; and purpose is to
determine real issue between parties. Usha Balasaheb v. Kiran Appasso AIR 2007 SC
1633
Merits of amendments not to be discussed at time of discussing the prayer for
amendment. Sampath Kumar v. Ayyakannu (2002) 7 SCC 559
Original cause of action should not be completely altered by amendment. Inconsistent
facts or contradictory allegations cannot come in by way of amendment. Delay should
be compensated by costs.
Reasons for allowing/disallowing the amendment must be properly suitably recorded.
Res judicata doesn’t apply. No appeal lies, either. Revision however, is possible.
Time extension granted for amending pleadings may be granted at court’s discretion.

PLAINTS AND WRITTEN STATEMENTS

Order 7- Plaint; Order 3-Appearance of parties; Order 5-Summons to

defendant, also Sections 27-29; Order 8-Written statement
Order 7
Particulars: Rules 1-8
Name of court; Names and addresses of plaintiffs; facts constituting cause of action,
reliefs claimed by plaintiff; details of set-off; precise amount in case of recovery of
money; description of property; interest and liability of defendant; grounds upon
which exemption from limitation is claimed, if any; approximate valuation of
movable parties; statement of value of subject matter; specifying if plaintiff/defendant
is minor or of unsound mind.
Cause of action is the bundle of essential facts that the plaintiff must prove in order to
succeed, every fact necessary to establish in order to obtain a judgement. Sadanandan
v. Madhavan AIR 1998 SC 3043 Time of cause of action arising must also be
specified. Distinct causes of action in respect of distinct claims must be stated
separately.(Rule 8)
Reasons for jurisdiction must be stated. Relief founded on different claims must be
set forth separately. Once one relief is omitted from the set of reliefs, no ground to ask
for the omitted reliefs later. Reliefs can be asked for either simply or in the
alternative. Relief granted cannot be greater than that claimed by court even if he is
entitled to it. Subsequent events might be taken cognisance of to give plaintiff to
amend his relief, if the Court finds them material. Amarjit Singh v. Khatoon
Quamarain AIR 1987 SC 741
Plaint can be returned by Court. (Rule 10)
Plaint can be rejected on the following grounds (Rule 11):
i.! Where there is no cause of action
ii.! Where the relief claimed is undervalued
iii.! Where the plaint is insufficiently stamped
iv.! Where the suit is barred by law
v.! Where the plaint is not filed in duplicate
vi.! Where other statutory provisions are not complied with
vii.! Other grounds- This list is not exhaustive-There are other relevant grounds,
like a vexatious or mischievous claim, for example.

Rule 12: Procedure to reject plaint. Reasons must be recorded by court.

Rule 13: Effect of rejection of plaint. Plaintiff can still present a fresh plaint after
initial rejection.
Order is appealable.
Rules 14-17: Documents that the plaintiff seeks to rely upon must be produced by the
plaintiff at the time of filing the plaint.
Order 3: Agents and Pleaders
Rule 1: Party may appear in court in person or by his agent, or by a pleader acting on
his behalf. Court can however, for good reasons of its own, direct parties to appear in
person. Jagraj Singh v. Birpal Kumar AIR 2007 SC 2083
Rule 2: Meaning of authorised agent (refer Orders 27, Rule 2; Order 3, Rules 2 & 4;
Section 2(2) and 85)
Pleader has authority to act on behalf of his clients. Power however, to be exercised
bona fide and for benefit of client. Tripartite relationship with Court, client and the
public. Jamilabai Abdul Kadar v. Shankarlal AIR 1975 SC 2202
Counsel can be represented by another counsel on his behalf.
Rules 3, 5-6: service of process
Order 5; Sections 27-29: Summons
Summons must be sent to defendant when suit is filed, to intimate that the suit has
been filed, and intimating him to appear before the court. (Section 27 and Order 5)
Rules 1-2: Every summons to be signed by judge and be sealed with the seal of the
Court. Must also be accompanied by plaint.
Section 27, Order 5, Rule 1: When summons is served, defendant must appear in
court 30 days from date of service of summons and file his written statement. No
summons if defendant present at time of presenting plaint.
Rule 3: Appearance of defendant
Exemptions from appearance: Sections 132-33, Rule 4
Rules 5-8: Contents of summons-sufficient time to appear before court and answer
claim; directions to produce his witnesses; order to produce all documents in his
possession which he intends to rely on in the case.
Rules 9-30: Service of summons
Personal/direct service: Rules 10-16, 18
Wherever possible, summons must be delivered to defendant in person. Summons
may be served to a family member of the defendant when there is no likelihood of
finding him at his place of residence. Servant is not a family member. Summons may
be served on the agent in charge of immovable property, if suit is for immovable
property, and defendant cannot be reached personally. In case of two defendants,
both of them must be served. Summons may be served to person’s business manager
or agent, when person does not reside in court’s jurisdiction, and suit is against
business. Service must be made by delivering a party. Acknowledge and delivery
both must be recorded.
Rule 9: Service by Court-Summons can be served by approved courier service,
registered post, speed post, acknowledgment due (RPAD), courier service, fax,
message, email or any other possible means of transmission. Refusal of acceptance is
valid service. When defendant outside court’s jurisdiction, summons to be served by
an officer of the court within whose jurisdiction he resides.
Rule 9-A: Service of summons could be made by plaintiff.
Rules 17, 19-20: Substituted service of summons.
Rules 21-30: Service of summons in special cases
Order 8: Written Statement
Rule 1- Time limit of 90 days to file written statement is directory, not mandatory.
Court has power to extend the time limit, in cases it deems exceptional. Salem
Advocate Bar Association (II) v. Union of India (2005) 6 SCC 344
Rules 1-5; 7-10: General rules of pleadings apply here in same fashion
Special rules of defence over and above general rules: New facts that the plaintiff
would not expect to be raised-void transaction; other grounds of defence etc must be
raised. (Rules 2-5; 7-10)
Denial must be specific. Each allegation must be dealt with specifically. No vague or
evasive denial. Court could construe evasive denial as admittance of a fact. Badat &
Co. v. East India Trading Co. AIR 1964SC 538 Court could pass decree in his
absence if he does not file WS in given time. Separate claims of counter-claim and
set-off need to be stated distinctly. However, the Court may not grant decree against
the defendant merely because no WS has been filed. Facts in the plaint also need to
be proved and Court needs to be convinced that a judgment can be passed in favour
of the plaintiff. Balraj Taneja v. Sunil Madan AIR 1999 SC 3381
Rule 6: Set-off
Set-off is a cross-claim for money that partly offsets the original claim. Available to
defendants.
Two kinds:
i.! Legal set-off, and,
ii.! Equitable set-off
Rule 6 deals with legal set-off. Not exhaustive provision and does not prevent Court
from allowing independent adjustment of Rule 6.
Conditions: suit for recovery of money; sum of money be ascertained; sum must be
legally recoverable; must be recoverable by defendant(s); must be recoverable by
defendants from plaintiffs; must not exceed pecuniary jurisdiction; both parties must
fill in defendant’s claim to set-off
Defendant is put in the position of a plaintiff with respect to the amount claimed as
set-off. Two suits, tried together. Plaintiff’s suit failing for any reason does not affect
defendant’s claim for set-off, which he can still claim by proving.
Equitable set-off also allowed under the law, for an unascertained sum of money,
provided the cross-claims arise out of the same transaction. Even a time-barred claim
may be allowed if there is fiduciary relationship between parties. Order 20, Rule 19(3)
allows equitable set-off.
Rules 6A-G: Counterclaim
Counterclaim is a claim made by a claim made by the defendant in a suit against the
plaintiff. Cross-action, where defendant has to have a claim for a separate suit.
Modes of setting up counterclaim:
i.! Written statement filed under Rule 1
ii.! Amending WS with Court’s permission
iii.! Subsequent pleading under Rule 9

Counterclaim may be filed against co-defendants as well, but not solely against co-
defendants. Rohit Singh v. State Of Bihar AIR 2007 SC 10
Counterclaim of defendant to be treated as plaint. Counterclaim decided on merits
irrespective of fate of plaintiff’s suit. If no reply from plaintiff, then Court may
pronounce judgement against plaintiff in his absence.
Unlike a set-off, it’s not a defence. It’s a cross-action. Amount must be recoverable at
the date of WS; unlike set-off, where it must be recoverable at the date of suit

Order 9: Appearance of Parties

Rule 1 requires parties to attend in person or through their pleaders. Rule 12 provides
that where plaintiff/defendant doesn’t appear in person, Court may dismiss suit if it’s
the plaintiff, or proceed ex partei it’s the defendant.
Rule 3: If neither appears, suit may be dismissed. Fresh suit for same cause of action
is not, however, barred. (Rule 4) Plaintiff may satisfy Court with sufficient cause for
non-appearance and apply to set aside dismissal.
Rules 6, 10: Where plaintiff appears and no defendant despite summons being served,
Court proceeds ex parte. If some, but not all plaintiffs present, court may proceed as if
all are present.
Rules 7-11: Where defendant appears and no plaintiff; if plaintiff’s claim not
admitted, then suit dismissed. But if plaintiff’s claim is admitted partly or wholly,
then Court passes decree against the defendant for that part of the claim and dismisses
the rest of the suit.
If plaintiff is absent, then he may appeal for dismissal and establish sufficient cause
for dismissal. Notice must however; be served to the other party.
Rules 2, 5: Where summons is not served
Plaintiff’s failure to pay for costs for service of summons might lead Court to dismiss
suit.(Rule 2) If plaintiff later shows sufficient cause for such failure, then order may
be set aside and suit may be heard.
Rule 6-Service of summons to the defendant- where no service, fresh summons to be
issued; where not sufficient time for appearance after service, hearing postponed to
later date.
Remedies for an ex parte decree:
1.! Order 9, Rule 13: apply to set it aside
2.! Section 96(2)/Section 115: appeal against decree, or apply for revision if there
is no appeal
3.! Order 47, Rule 1: apply for review
4.! File suit on grounds of fraud

Remedies are concurrent and can be pursued simultaneously.

Rule 13: Defendant may apply to set aside ex parte decree. Any one of defendants
may apply if there is more than one defendant. “Defendant” wide enough to apply to
any person adversely affected by the decree. Application to be made to court that
passed decree.
Grounds: Summons was not duly served, or there was sufficient cause for his non-
appearance. If summons not filed, decree to be set aside.
Sufficient cause must be shown to set aside ex parte decree. Reasons must be
supported and recorded for ex parte decree. Test is whether defendant honestly
intended to be present. Application to be made within 30 days of passing of decree.
Application to be made by defendant or his representatives.
Court has wide discretion to impose conditions upon passing of such a decree. VK
Industries v. Electricity Board AIR 2002 SC 1151. No inherent power to set aside
decree.
Res judicata applies if dismissal is on merits, but not if it’s for default of appearance,
or circumstances have changed. Raj Kumar v. Prescribed Authority (1983) 2 SCC 254
Execution does not disentitle decree from being set aside.
Filing of appeal in appellate court does not affect jurisdiction of trial court to entertain
application to set aside.
Open to revision, and review.

Order 10: Hearing

Rule 1A-C: Court ascertains if parties admit or deny allegations or facts; records
admissions and denials; directs parties to settle disputes through ADR mechanisms
out of court; If no settlement, case heard in court.
Rule 2: Oral examination of parties to ascertain real controversy
Order 14: Issues
Rule 1: Issues are material propositions of fact or law affirmed by one party and
denied by the other.
Rule 2: Court must pronounce judgement on all issues.
State of Gujarat v. Jaipalsingh Jaswant Singh Engineers and contractors- Issues are
the guiding force in the conduct of the trial, from the evidence to the judgement
Materials for framing issues: Rule 3- Allegations on oath made by parties through
their pleadings or otherwise; answers to interrogatories; documents produced by
parties.
Order 15: Disposal of Suit
The court may dismiss the suit if:
i.! Parties are not at issue on any point of fact
 ii.! Where summons have been served to both parties and either party fails to
appear without sufficient cause for the same
iii.! Where party/pleader makes admissions which are sufficient to dispose of
the case
iv.! If one of many defendants admits claim of the plaintiff, judgment may be
instantaneously pronounced against them.
v.! Where after framing of issues, Court feels that no further arguments are
required.

Discovery, Inspection and Production

Order 11-Discovery; Order 12-Admissions; Order 13-Production, impounding

and return of amendments; Order 19-Affidavits
Order 11: Discovery
Discovery by Interrogatories (Rules 1-11)
Party to a suit may administer to the other side a series of questions to acquire
information relating to facts. These questions are called interrogatories.
Purpose is to ascertain the nature of the opponent’s case for supporting one’s case or
for destroying the other side. This power should be exercised liberally without the
restrictions of technicalities. Interrogatories may be administered by a plaintiff to a
defendant, or vice-versa. Raj Narain v. Indira Gandhi AIR 1972 SC 1302
Interrogatories may be objected to if they are scandalous, irrelevant, malafide,
privileged, etc. (Rule 6)
General principles:
i.! Interrogatories administered with leave of the court and subject to the
conditions and limitations prescribed by the court. (Rule 1; Section 30)
ii.! Particulars of interrogatories to be submitted to court, which Court shall
decide on within 7 days of filing application. (Rule 2)
iii.! May be administered by one plaintiff to another plaintiff to another or by a
defendant to another, provided there is some issue between them. (Rule 1)
iv.! More than one set of interrogatories may not be delivered, unless ordered
by court, which might, in special cases, allow more than one set to be
administered to the same party. (Rule 1)
v.! Where party is corporation or body of persons, interrogatories may be
delivered to an officer/member of the body. (Rule 5)
vi.! Interrogatories should be answered by a filled in affidavit within 10 days
of service of interrogatories, or within the period court allows. (Rule 8)
vii.! Interrogatories must be related to or have a reasonable nexus with any
matter in question in the suit. (Rules 6,7)
viii.! Must be questions of fact
ix.! Interrogatories which do not relate to any matter in the suit may be treated
as irrelevant. (Rules 6,7)
x.! Interrogatories cannot be allowed at a premature stage. (Rule 20)
xi.! Interrogatories may be objected to on grounds of being vexatious,
scandalous, irrelevant, unreasonable, injurious to public interest, etc. May
also be struck off on those grounds. (Rule 6,7)
 xii.! Costs of interrogatories to be borne by party administering. But party at
fault may be asked to bear cost of interrogatories of the other party. (Rule
3)
xiii.! Any of the answers of a party to interrogatories may be used as evidence
in trial. (Rule 22)
xiv.! If no answer given to interrogatories, suit could be dismissed, or defence
could be struck off. (Rule 11)

Interrogatories which are scandalous, vexatious, irrelevant, mischievous, or non bona-

fide; involve disclosures injurious to public interest; more in the nature of cross-
examinations; which are on questions of law; which are fishing in nature are not
allowed.
Rule 7- An order may be obtained to make a party answer by affidavit, or orally, if
there has been non-compliance with the answering of interrogatories.
Not appealable. R
Revision at the discretion of High court.
Discovery of Documents: Rules 12-14
Rule 12: A party can apply to the Court to compel the opposite party to disclose any
documents in their position or power relating to any matter in question in the suit.
If court makes order, other party must comply to make an affidavit, failing which
penalties of Rule 21 apply.
Any Document that throws any light on the matter in the proceeding is a document
relevant to the matter in question. Any document which may be directly or indirectly
enable a party to advance his case is a relevant document. But if documents are
irrelevant/immaterial, then application could be rejected. Central Bank of India v.
Shivam Udyog AIR 1995 SC 711
Two conditions: i. Necessary for fair disposal of suit, ii. for saving costs (Rule 12)
Discovery may be objected to if it’s not necessary to the stage of the suit at that point.
(Rule 12 proviso)
Document needs to be admissible in evidence, but it cannot be a document which is a
part of the other party’s evidence. Central India Spg. Wvg. & Mfg. Co. Ltd. v. Gip Rly
AIR 1927 Bom 367
If there is non-compliance with order to produce documents, adverse influence drawn
against him. Hiralal v. Badkulal AIR 1953 SC 225
A party against whom discovery of documents has been ordered is bound by the order
to produce documents. He can object on the grounds that he is entitled to legal
protection with respect to the document. (Rule 13)
If such an objection is made, Court may inspect the document, for the purpose of
deciding the validity of the claim of privilege, unless it relates to matters of state.
(Rule 19)
Inspection of Documents: Rules 15-19
Two categories: Documents referred to in pleadings/affidavits; other documents in
possession that are not mentioned in pleadings.
Documents referred to in the pleadings can be demanded for inspection without
Court’s intervention. Within 10 days, other party should make documents available
for evidence. If he fails to do so, the Court may make an order of inspection. (Rules
17, 18)
The other documents can only be obtained by an application to the Court along with
affidavit outlining the reasons. (Rules 18(2))
Confidential documents: Confidential communications b/w lawyer and client; public
official records relating to affairs of state. If such privilege is claimed, Court may
inspect documents to examine the validity of such a claim. (Rule 19(2))
The court may classify a discovery as premature and postpone it. It is premature when
the documents relate to an issue or matter that is yet to be decided by the court. The
issue shall be decided before discovery is allowed in this case. (Rule 20)
Non-compliance with an order for discovery may result in suit being dismissed or
defence being struck off. However, there needs to be a notice and a reasonable
opportunity to be heard before such order is passed. (Order 21)
This power should be exercised only in the most exclusive cases as a last resort.
Babbar sewing Machine Co. v. Triloki Nath Mahajan AIR 1978 SC 1436
Admissions: Order 12
Rule 1: Admission may be given by a party on notice.
Post discovery/inspection, any party may be called to admit the genuineness of any
document. In case of refusal/neglect to admit this, costs to prove genuineness shall be
borne by the party neglecting/refusing (Rule 2, 3, 8)
Any document which is required to be admitted is not denied specifically is said to be
admitted against the other party. The Court however, at its discretion, may ask for that
document to be proved otherwise in court. (Rule 2A)
Rules 4-5: Notice to admit facts: A party may be asked to admit certain facts for the
purpose of the suit mentioned in a notice to be filed not less than 9 days before date
fixed for hearing. If the party refuses/neglects to admit such facts, then cost of
proving the facts lies on that party. Admission must be accepted or rejected as a
whole.
Judgement on admissions (Rule 6)
Court can pronounce a judgement on the admission made by parties, without waiting
for a determination of any other question between the parties. (Rule 6)
This power is however, discretionary, and the Court may choose to ask for clear
proof, even for admitted facts. Razia Begum v. Sahebzadi Anwar Begum AIR 1958 SC
886
Production, impounding and return of documents (Order 13)
Rule 1: Production of documents
Parties must produce all documentary evidence in original, on or before settlement
of issues. The court must also receive such documents. (Rules 1(1), 1(2))
The court has the power to receive any document at a later stage if the genuineness is
beyond doubt and it is relevant/material to decide the real issue in controversy. No
documents, public or private which are above suspicion should be excluded if they are
necessary for the exclusion of the case . Billa Jagan Mohan v. Billa Sanjeeva (1994)
SCC 659
Rules4-7
Particulars on documents admitted: number and title of suit; name of person
producing document; date on which produced; statement of its having been admitted.
(Rule 4)
Rules 7-9
Documents not admitted in evidence to be returned to person producing them. (Rule7)
Rule 9 allows for return of a document to a party producing it after the suit or appeal,
or even during the pendency of suit provided the necessary undertaking to produce
original when required is filled.
Rules 3, 6: Rejection of documents-The court may reject any documents it considers
immaterial or irrelevant after recording the reasons to do so.
Rule 8: Enables courts to impound a document for sufficient cause, and keep it in the
custody of the court for such conditions and period it deems fit.
Affidavits: Order 19
Essentials: declaration made by a person; must relate to facts; must be in writing;
must be in first person; must have been sworn or affirmed before a Magistrate or any
other authorised officer.
Must state facts that one is able to prove to personal knowledge. Rule 3(1) allows the
deponent to state facts in interlocutory applications which are based on belief. The
court can, under Rule 1 order for any fact to be proved by way of an affidavit, subject
to the right of the other party to produce the deponent for cross-examination. (Rule 2)

Interim Order/ Interlocutory Order

Those orders passed by a court during the pendency of a suit or proceeding which do
not determine finally the substantive rights and liabilities of the parties regarding the
subject matter of the case.
They protect rights of parties between the commencement of the proceedings and the
final adjudication.
Interim Orders are as follows:

1.! payment in court: ORDER 24

2.! security for costs: ORDER 25
3.! commissions: ORDER 26
4.! arrest before judgment: ORDER 38
5.! attachment before judgment: ORDER 38
6.! temporary injunctions: ORDER 39
7.! interlocutory orders: ORDER 39
8.! receiver: ORDER 40

Payment in Court: Order 24

The defendant can deposit in the court at any stage, such a sum of money, which he
thinks, will satisfy the plaintiff’s claim. Tis is paid to the plaintiff unless the court
directs otherwise. This deposit is unconditional and the plaintiff gains no interest on
it.

Security for Costs: Order 25

Rule 1 Order 25: court can order the plaintiff to give security for the payment of
costs of the defendant. This is at the court’s discretion.
Rule 10 Order 41: security for costs of appeal.

Failure to furnish security: Rule 2

If security is not furnished in the given time, court can dismiss the suit. Sub rule (2)
empowers the court to restore the suit.

Commissions: Order 26
Issue of commissions: Section 75
Sections 75-78: power of court to issue commissions along with detailed
provisions in Order 26.
Purposes: Section 75
Court can issue a commission to:
1.! examine witnesses: Sections 76-78, ORDER 26, RULES 1-8
2.! make local investigation: RULES 9-10- to obtain peculiar evidence
3.! adjust accounts: RULES 11&12
4.! make partition: RULES 13&14- of immovable property
5.! hold investigation: RULE 10-A- investigation that cannot be conducted before
the court
6.! conduct sale : RULE 10-C- to sell movable property in the custody of the
court
7.! perform ministerial act: RULE 10-B- any ministerial act that cannot be
conveniently performed by the court, like accounting/calculation.

Powers: Rules 16-18

The commissioner may:
1.! summon and procure attendance of parties
2.! call for and examine documents
3.! enter into any land/ building mentioned in the order
4.! proceed ex parte if the parties do not appear before him

Expenses: Rule 15
Court can order the party seeking the commission to deposit a certain sum of money
within a fixed period.

Commissions for foreign tribunals: Rules 19-22

If a foreign court wishes to examine a witness, the H.C. can set up a commission to do
so.

Report of the commissioner has evidentiary value, the court can decide what value to
put against it.
Limitations for the commissions set out in Section 79 and Order 26 do not apply to
the S.C. or the H.C.

Arrest Before Judgment: ORDER 38 RULES 1-4

Court has the power to issue a warrant to arrest the defendant and bring him before
the court to show cause why he could not furnish security for his appearance. He can
avoid being arrested if he pays the entrusted officer the sum specified in the warrant.

2 conditions to be satisfied before the court exercises it power:

1.! plaintiff’s suit must be bona fide & cause of action unimpeachable to his
proving the allegations
2.! that unless this power is exercised, the defendant will remove himself or his
property from the ambit of the powers of the court

Security: Rules 2-4

Court can order defendant to deposit court money or property sufficient to the claims
against him or furnish security for his appearance at any time when called upon.
Failing to do so, the court can commit him in civil prison until the decision of the suit,
or till when the decree is executed.
An order for arrest of a defendant before judgment cannot be obtained in any
suit for land or immovable property in clauses (a) to (d) of SECTION 16. Thus
there can be no arrest.

An order passed under RULE 2, 3 or of OREDER 38 is APPEALABLE.

Under RULE 1 of ORDER 38, an order of arrest made can be considered to be ‘case
decided’ under SECTION 115, and is REVISABLE.

Arrest on insufficient grounds: Section 95

If an order of arrest of the defendant is obtained on insufficient grounds by the
plaintiff, the court can order the plaintiff to pay a compensation amount not exceeding
Rs. 50, 000 for the expense or injury including injury to reputation caused to him.

Attachment Before Judgment: Order 38 Rules 5-13

To prevent any attempt on the part of the defendant to defeat the realization of the
decree that may be passed against him.
Sardar Govindrao v. Devi Sahai- S.C. observed that sole object behind the order
levying attachment before judgment is to give assurance to the plaintiff that his
decree if made would be satisfied.

Grounds: Rule 5
The plaintiff can specify the property required to be attached, unless the court directs
otherwise. Court may also direct conditional attachment.
If an order is made not complying with RULE 5(1), it is void.
Provisions of ORDER 21 also apply to attachment before judgment- EXECUTION
PROCEEDINGS.

The court should be satisfied with 2 conditions before passing such an order:
1.! that the defendant is about to dispose off whole or part of his property
2.! that the disposal is with the intention of obstructing or delaying the execution
of the decree

Mode of attachment: Rule 7

In the same manner provided for attachment of property in execution of a decree.

Exemption from attachment: Rule 12

No agricultural land in the possession of an agriculturist.

Rights of third party: Rule 10

If they are not parties to the suit, rights of persons existing prior to the attachment
does not get affected.

Adjudication of claims: Rule 8

Any claims preferred to the property attached before judgment, shall be adjudicated
upon as in case of claims to property attached in execution of a decree for payment of
money.

Reattachment in execution: Rule 11

Provisions of ORDER 21 apply to an attachment made before judgment, continuing
after judgment.

The plaintiff DOES NOT get title by effecting attachment before judgment.

Removal of attachment: Rule 9

If the defendant furnishes security or the suit is dismissed

An order passed under ORDER 38 RULE 5 is APPEALABLE.

An order guaranteeing or refusing attachment before judgment is a case decided

within the meaning of SECTION 115 and is revisable by the H.C.

A suit for damages is maintainable for wrongful attachment of property.

Attachment on insufficient grounds: Section 95

If an order of attachment before judgment of the property of the defendant is obtained
on insufficient grounds by the plaintiff, the court can order the plaintiff to pay a
compensation amount not exceeding Rs. 50, 000 for the expense or injury including
injury to reputation caused to him.

Temporary injunctions: Order 39 Rules 1-5

It is a judicial process whereby a party is required to do or refrain from doing any
particular act or orders him to do a particular act.
They are issued during pendency of proceedings at maintain status quo at the time of
the proceedings.

Types:
1.! temporary: restrains a party temporarily from doing the specified act and can
be granted only till the disposal of the suit till further orders of the court.-
ORDER 39
2.! permanent: 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 parties
to the suit.- SECTIONS 38- 42 of SPECIFIC RELIEF ACT.

Both plaintiff and the defendant can apply for interim injunction against the other and
can be granted against only a party to the suit, no third person or officer etc.

Grounds: Rule 1
Temporary injunction can be granted in the foll.:
1.! property in dispute in danger of being wasted, damaged, alienated or
wrongfully sold
2.! defendant threatens/ intends to remove/ dispose property to defraud his
creditors
3.! defendant threatens to dispossess the plaintiff or cause any injury to them
relating to the property
4.! defendant about to commit breach of contract
5.! interest of justice so requires

Principles:
It’s at the discretion of the court. Court must be satisfied about the foll. to pass a
temporary injunction:
1.! Prima Facie Case: applicant must make out a prima facie case in support of
the right claimed by him.
2.! Irreparable injury: applicant will suffer from irreparable injury if the
injunction is not granted
3.! Balance of (in) convenience: balance of convenience must be in favour of the
applicant, the hardship caused to the applicant by refusing the injunction will
be greater than that which is caused to the opposite party by granting it.
4.! Other factors: injunction may be refused on the grounds of delay, laches or
acquiescence or if the applicant has not come with clean hands or where
monetary compensation is adequate.

Inherent power to grant Injunction: RULE 1 ORDER 39. In case where case is
not covered by Order 39, interim injunction can be granted by the court in exercise of
inherent powers under SECTION 151.

Notice: Rule 3
Notice is given to the opposite party by the court before granting an injunction.

Ex parte Injunction: Rule 3 Order 39

Requires the plaintiff to issue a notice to the opposite party before the injunction is
granted. Court has the power to grant an ex parte injunction without issuing a notice.

Recording of reasons: PROVISIO OF RULE 3

Interim orders have no precedential value.

Res Judicata applies to different stages of the same suit; hence if an interim injunction
is once granted/ refused, the order will operate throughout the proceeding.

When a court grants interim injunction, which results in injustice to the opposite
party, it is not only the right, but also the duty of the court at the time of passing the
final order to undo the injustice and restore the STATUS QUO.

An order granting/ refusing to grant injunction is subject to appeal, even if it is ex

parte.

An order granting/ refusing to grant injunction is a case decided under SECTION 115
hence giving way to a REVISION.

Breach of Injunction: Rule 2-A

SECTION 94(c) and RULE 2-A of ORDER 39
Penalty may be either arrest( not more than 3 months) or attachment of his
property(not more than one year) or both.

Injunction on insufficient grounds: Section 95

If an order of temporary injunction has been obtained on insufficient grounds by the
plaintiff, the court can order the plaintiff to pay a compensation amount not exceeding
Rs. 50, 000 for the expense or injury including injury to reputation caused to him.
Interlocutory Orders: Order 39 Rules 6-10
Court has power to order sale of any movable property which is the subject matter of
the suit or attached before judgment which is either perishable or has sufficient case
to be sold at once.
It can also order for detention, preservation or inspection of any property which is the
subject matter of the suit or as to which any questions may arise.

Receiver: Order 40
Receiver is one who receives money of another and renders account. An impartial
person appointed by the court AT ITS DISCRETION to collect and receive, pending
the proceedings, the rents, issues and profits of land, or personal estate which it does
not same reasonable to the court that the other party should collect or receive.

Appointment: Rule 1(a)

Principles before appointing a receiver:

1.! its at the discretion of the court
2.! it is a protective relief, to preserve the property in dispute.
3.! Not unless the plaintiff prima facie proves that his chances of succeeding are
very high.
4.! ONLY granted for the prevention of the manifest of a wrong
5.! It should be in common interest to appoint a receiver
6.! Conduct of party who makes application of appointment of a receiver should
be carefully looked into.

Powers: Rule 1(d)

Powers of the receiver:
1.! to institute and defend suits
2.! to realize, manage, protect, preserve and improve the property
3.! to collect, apply and dispose off the rents and profits
4.! to execute documents
5.! such other powers as it thinks fit

He cannot be sued without the leave of the court.

Duties: Rule 3
Furnish security as court thinks fit to account for what he shall receive as property.
Has to pay amount due from him as per direction of the court.
He is bound to discharge his duties personally and not delegate work.

Liabilities: Rule 4
Receiver is expected to exercise the same diligence in keeping down expenses and in
caring for the estate in his possession as if it were his own property. If he fails to
submit accounts/ pay the amount due/ causes loss to property, court can direct his
property to be attached and sold and get the money due from him.
The court can even remove the receiver from his post.

Appeal: an order appointing or refusing to appoint a receiver is appealable.

Revision: An order passed on an application appointing or refusing to appoint a
receiver is a case decided under SECTION 115 hence giving way to a REVISION.
Hence where no appeal lies, the revision is maintainable.

Trial

Sections 30 to 32 and Orders 16 to 18: necessary provisions for summoning,

attendance and examination.
Order 16: summoning and attendance
Order 16-A: special provisions for attendance of witnesses confined or detained
in prisons.
Order 17: adjournments
Order 18: provisions for hearing of suits and examination of witnesses.

Summoning and attendance of witnesses: order 16

Summons to witnesses: Rule 1
Sub Rule (1) of Rule 1- Parties are required to submit a list of witnesses in court
whom they propose to call to give evidence or produce documents. Should be filed 15
days within which the issues are framed.

Sub Rule (3) of Rule 1- empowers court to permit a party to call any witness whose
name has not been mentioned in the list, if sufficient cause of omission is shown to
the court.

Rule 1-A- enables a party to bring any witness to give evidence or to produce
documents without applying for summons.

Rules 2 to 4: travelling and other expenses and remuneration for witness for his
attendance in court.

Content of Summons:
1.! time & place at which he is required to attend
2.! purpose of his attendance- whether for evidence or documents or both
3.! if for producing document, it should be described with reasonable accuracy

Service of Summons: Rule 8

Reasonable time should be given to witness to prepare and travel. Rule 7-A provides
for direct service of summons and the procedure.

Failure to comply with Summons: Rule 10

Court can enforce the attendance of any person by:
1.! issuing a warrant for his arrest
2.! attaching/ selling his property
3.! imposing a fine not exceeding Rs. 5000
4.! order him to furnish security for his appearance, which, if defaulted, could
commit him to civil prison
Rule 10: consequences for non- appearance by a party.

Attendance of witnesses in prisons: Order 16-A

Such an order can be made unless the prison is 25 kms from the courthouse, on which
the court will use its discretion.

Summons to produce documents: Section 30

Adjournments: Order 17
Court grants adjournment on its discretion, in case of sickness of party, witness or
advocate, non- service of summons etc. It can be denied accordingly.
Court should not be too technical in granting adjournments, neither should it refuse if
sufficient cause is given.
No adjournment is granted more than 3 times to a party: Provisio to Sub Rule (1)
Order 17
Salem Advocate Bar Association v. UOI- S.C held that in extreme and
exceptional situations, this strict rule does not apply.

Court can direct the party seeking adjournment to pay costs or higher costs to the
opposite party.

Failure to appear: Rule 2

Provides that where parties fail to appear even on the adjourned day, the court may
either proceed to dispose off the suit of to proceed with the case even in absence of a
party wherein the evidence is substantial under Rule 2.

To pass an order under Rule 3, 3 conditions have to be followed:

1.! the adjournment must have been granted at the insistence of a party
2.! the adjournment must have been granted to enable the party to
a)! produce evidence
b)! attendance of the witness
c)! perform any act to further the progress of the suit
3.! party must have failed to perform any of the acts for which the time had been
granted.

Hearing of Suit: Order 18

Trial in open court- Section 153-B
Evidence of witnesses is taken orally in open court.

Trial in camera- contradictory to trial in open court, but may be a requirement in

some cases.

Right to Begin and Reply: Rules 1-3

Party having the right to begin will state his case and produce evidence in support of
it.

Recording of evidence: Rules 4- 13

After a 2002 amendment, oral evidence can now be recorded by the court
commissioner. This is eventually submitted to the court.
In appealable cases, the judge takes down the evidence in the language of the court/
English, which is read to the witness, interpreted and then signed by the judge.

In non- appealable cases, the judge can mechanically record the evidence.

Examination de bene esse: Rule 16

Examination of a witness before hearing, due to reasons such as if he is leaving the
jurisdiction of the court or reasons established before the court, which can lead it to
believe why the evidence needs to be taken immediately.

Evidence recorded by another Judge: Rule 15

Successor may deal with the evidence and proceed with the suit, if the judge cannot
do so.

Oral Arguments: Rule 2 (3-A, 3-D)

Court may allow parties to orally argue after fixing a time limit at its discretion.

Written Arguments: Rule 2 (3-A, 3-B, 3-C)

Court may allow a party to submit written arguments a copy of which is supplied to
the other side.

Judgment and Decree

Judgments

Rules 1 to 5 Order 20- judgments

Rules 6 to 19 Order 20- decrees
Rules 6-B and 20- furnishing of copies of judgment and decree to parties on
application made by them or payment of specified charges.
Sections 34, 35: interests and costs
Sections 35-A and 35-B: provisions for compensatory costs for false and
vexatious claims or defenses that cause delay.

Section 2(9): judgment is final decision of the court intimated to parties and to the
world by a large forma pronouncement.

Pronouncement of Judgment: Rule 1

Once hearing is over, should be no break bet. Reservation and judgment, within 30
days of conclusion of hearing. If it is not practical due to extraordinary circumstances,
60 days. Due notice of day fixed for judgment needs to be given to parties and must
be dated and signed by the judge.

Rule 2: a judge can pronounce a judgment which is written but not pronounced by his
predecessor.
Anil Rai v. State of Bihar- judgment given after 2 years of conclusion of hearing.
Action was strongly deprecated by S.C.
Should answer questions, which arise from the pleadings, nothing else. Judgment
cannot be contradicted by filing an affidavit.
Copies of Judgment should be made available to the parties immediately after the
pronouncement.

Contents of Judgment: Rule 4&5:

EXCEPT for Court of Small causes (where only 2 and 3 apply) , judgments SHOULD
contain:
1.! concise statement of the case
2.! points for determination
3.! decision
4.! reasons for such a decision

Important to record reasons in support for judgment to safeguard against injustice and
arbitrariness.

Rule 5-A: parties not represented by pleaders. Court should inform the parties as to
which appeal lies against the judgment pronounced, the period of limitation for filing
that appeal, and place this on record.

Rule 20: certified copies of judgment and decrees to party.

Alteration in Judgment: Rule 3

Judgement once signed cannot be altered/ amended EXCEPT to:
1.! correct clerical/ arithmetic mistakes (SECTION 152)
2.! on review (SECTION 114)

Decree: Sec 2(2)

Elements of a decree:
1.! Adjudication
2.! Suit
3.! Rights of parties in controversy
4.! Conclusive determination
5.! Formal expression- all requirements must be complied with.

Classes of decrees:
1.! Preliminary: rights of the parties are adjudicated upon, without complete
disposal of the suit.
2.! Final: a decree is said to be final in 2 ways:
a)! when no appeal is filed within the prescribed time/ matter has been
decided by the highest court.
b)! When the decree completely disposes off a suit.

Deemed Decree: Order 21, Rule 58(3)

Order will have the same force and subject to same conditions of an appeal, as if it
were a decree.

Drawing up of a decree: Rule 6-A

Should be drawn up within 15 days from the date of judgment.

Contents of the decree: Rule 6

1.! no. of the suit
2.! names and description of parties
3.! particulars of claim
4.! relief granted
5.! amount of costs incurred, by whom, and out of what property/ proportions are to
be paid
6.! date of judgment pronounced
7.! sign of the judge (RULE 8- sign of successor over predecessor’s decree)

Decrees in special cases: Rules 9-19

Interest: Section 34

Charge that is paid to borrow for use of money.

Interests awarded by the court are divided as below:

1.! interest prior to filing of the suit: only when there is an agreement bet. Parties,
expressed or implied, or under statutory provisions
2.! interest from the date of the suit to the date of the decree: at the discretion of
the court.
3.! interest from date of decree till the payment: discretion of the court

Rate of interest:
Is at the discretion of the court. In case of an agreement, the court awards interest
accordingly.

Compound interest is not allowed by the court under SECTION 34, but can be
altered if there is an agreement. In some cases, inflation is considered too.
When the decree does not provide for interest, it will deemed to have been refused.

Interest in writs: Under Art. 32, 226, 227, 136

Costs: SECTIONS 35, 35-A, 35-B, ORDER 20-A

General costs: Sec. 35- litigation expenses

Misc. Costs: Order 20-A- expenses incurred in giving notices, typing charges,
inspection of records etc.
Compensatory costs: 35-A
Costs for causing delay: 35-B- to put a check on delaying tactics of litigating parties.

APPEALS

Sections 96, 100, 104, 109-Right of appeal

Order 41; Sections 96-99, 107: First appeals
Essentials of appeal: A decision; a person aggrieved; a reviewing body ready and
willing to entertain appeal.
Right of appeal not inherent right. Creation of statute. It is a substantive right, not a
right of procedure. As a creation of statute, conditions can always be imposed on the
exercise of such a right. Vested right which exists from the date the lis commences
and is to be governed by the law prevailing at the date of the institution of the suit.
Deep Chand v. Land acquisition Officer AIR 1994 SC 1901
An appeal is a continuation of a suit. Decree passed by an appellate court will be
construed as a decree of the court of first instance. Appellate court possesses the same
powers and duties as a court of first instance. The appellate court can come to its own
conclusion on the matter after reviewing the evidence as a whole and conduct the
entire proceedings before the court again. Ramankutty v. Awara (1994) 2 SCC 642
Difference between appeal and revision:
Right of appeal carries with it a right of rehearing of law and fact; right of revision
granted to superior court so that it may satisfy itself that a particular decision has been
decided according to law. The right of revision does not allow the High Court to
substitute its own view for the view of the original court.
First appeal lies against a decree passed by a court exercising original jurisdiction;
while a Second appeal lies against a decree passed by a first appellate court.
First appeal can be filed in a Court which may or may not be a High Court, Second
appeal is only applied to a High Court. First appeal can be filed ion a mixed question
of fact and law. Second appeal only on a substantial question of law
Section 96
Under this section, two conditions for appeal: subject matter of appeal must be a
‘decree’ under Section 2(2); party appealing must have been a party adversely
affected by such a decree. Normally, only a party to a suit may be adversely affected
by a decree, but another person who is not a party to a decree may prefer an appeal
against the court is he is prejudicially affected by it. State of Punjab v. Amar Singh
AIR 1974 SC 994
An appeal can be filed by a plaintiff against another plaintiff if the matter in
controversy in the suit forms subject matter of the dispute between the plaintiffs.
Similar principle applies to appeal filed by defendant against another defendant.
A party cannot file an appeal if he waives his right to appeal or agrees not to file an
appeal, provided such agreement is valid in law. However, where there is no statutory
right of appeal, no appeal lies even with agreement of the parties. Ameer Ali v.
Inderjit Singh (1871) 14 Mia 203 (PC)
Section 96(2) allows the defendant to file an appeal against a decree passed ex parte
against him. In such an appeal, the appellate court is competent to go into the question
of propriety or otherwise of the ex parte decree.
Section 96(3) disallows any appeal against a consent decree. Once a decree has been
passed with the consent of both parties, 96(3) becomes operative and binds them,
acting as an estoppel between the parties.
Section 96(4) does not allow any appeal against a decree passed in a petty suit where
the subject matter of the suit is less than ten thousand rupees and suits are cognisable
by courts of small causes.
An appeal lies against a preliminary decree. There is no appeal against a final decree
if the preliminary decree has not been appealed, since the preliminary decree forms
the foundation of the final decree. (Rule 97)
An appeal lies only against a ‘decree’ or ‘order’ under the Code. Finding not
amounting to a ‘decree’ or an ‘order’ has no appeal lying against it.
Order 41, Rule 22 explanation allows respondent to file cross-objections against any
finding recorded against him even though the ultimate decree may be in his favour.
Form of Appeal:
Appeal- judicial examination by a higher court. Memorandum of appeal- grounds to
invite higher judicial examination.
Memorandum of appeal must be filed. Requirements in Rule 1 must be complied
with-grounds of objection to decree appealed from in the form of a memorandum;
must be signed by the appellant/pleader; must be presented to the court/officer; must
be accompanied by a certified copy of decree and judgement; if appeal against money
decree, decretal amount must be deposited or its security thereof.
Rule 2- No grounds to be urged except the ones set out in the memorandum.
The Court may return or reject the memorandum for amendment if it’s not in proper
form. (Rule 3)
Rule 4- If a decree proceeds upon a ground common to multiple defendants/plaintiffs,
any one may file an appeal, and the Court can reverse or vary the decree in favour of
all plaintiffs/defendants.
Rule 9- Court from whose decree an appeal lies shall entertain the memorandum of
appeal; shall make an endorsement, and shall register the appeal in register of appeals.
Rule 10- Appellant may be required to furnish security for the cost of the appeal or
the cost of the suit or both.
Period of filing appeal: 90 days from date of decree-High Court; 30 days from date if
decree- Any other appellate court.
Rule 3-A- where appeal is filed after expiry of period of limitation, must be
accompanied by an application that the applicant had sufficient cause for not
preferring the appeal within time.
Once appeal has been filed, and sufficient grounds are established for appeal, the
Court may order stay of proceedings under the decree or its execution (Rule 5)
3 conditions for the stay are given under 5(3), (4):
Application has been made without unreasonable delay; substantial loss will result to
the applicant unless such an order is made; security for due performance of decree or
order has been given by applicant. Rule 6-staying sale of immovable property
Rule 11- Power of appellate court to dismiss appeals summarily. This power must
however, be used sparingly. Reasons for doing so must be recorded. Appeal cannot be
dismissed partly. It must be admitted or dismissed wholly. Ranjit Bhagala v.
Krishnarao
Rules for abatement of appeal identical to rules for abatement of suits.
If appeal is not summarily dismissed, date of hearing is fixed and notice of date and
copy of memorandum sent to respondent. (Rules 12, 14)
Rule 16(1)- Appellant has right to begin. 16(2)-Appellant entitled to reply once the
court hears the respondent against the appeal.
Rule 17(1)-Appeal may be dismissed for default if appellant does not appear for
hearing. Cannot however, be dismissed on merits.
Rule 19- An appeal dismissed for default may be restored if it is proved that the
appellant was prevented by any sufficient cause from appearing when the appeal was
called. The Court may then restore the appeal on terms as to costs or otherwise as it
sees fit.
Rule 17(2)- no appearance of respondent-appeal heard ex parte. Rule 21 for
application of rehearing of appeal if sufficient cause or lack of notice is established.
Rule 20(2)-Court could, at its discretion direct a person to be joined as a respondent if
it thinks that person was a party to the trial in the lower court and would be interested
in the result of the appeal.
Rule 22-respondent who has not filed an appeal against the decree may object to the
said decree by filing cross-objections in the appeal filed by the opposite party.
Optional and voluntary.
If a decree is passed partly against him and partly for him, he may prefer an appeal
against the part that’s against him. Two appeals now exist, called “cross-appeals”
Cross-objection is like a cross-appeal in almost every way. While cross-objection
forms part of the same record, cross-appeals form two distinct and separate
proceedings. N. Jayaram Reddy v. Revenue Divisional Officer Substantive right, not
procedural.
Rule 22(4)-Cross appeals may only be filed when appeal is filed, admitted by
appellate court and notice is issued on the respondent.
Cross-objections: Same form as memorandum of appeal; should be served on party
thereby affected; should be filed within one month of service of notice of hearing of
appeal; period may be extended by the court at its discretion. (Rule 22)
22(1)-Allows cross-objections to be filed against decree and against finding not
amounting to decree.
Appeal and cross-objections to be heard together. To be disposed of by a common
judgement incorporating both. (Rule 22(5))
Appeal is a substantive right that does not exist unless specifically conferred. Cross-
objection has all the trappings of an appeal. Court fee is also payable on cross-
objection like on an appeal. Cross-objection is heard even if an appeal is withdrawn or
dismissed. Superintending Engineer v. B. Subba Reddy (1999) 4 SCC 423 (use this
case for any feature of cross-objection)

Powers of Appellate Court

Section 107, Rules 23-29, 33
Section 107(1)(a), Rule 24- Enables the appellate court to dispose of a case finally.
Where the evidence on record is sufficient to pronounce judgement, it may do so,
regardless of the fact that the trial court’s judgement may have been on a different
matter altogether. Generally, a case should be disposed of on the basis of the evidence
available and not be remanded for fresh evidence, as far as possible. Sunder Singh v.
Narain Singh
Power to Remand- Rule 23 – If the trial court has decided the suit on a preliminary
point and not decided the other issues, the appellate court may reverse the decree and
send it back to the trial court to decide on the other issues.
23-A- Case has been decided on merits by trial court, but Appellate court can send it
back for remand in the interest of justice.
Conditions: i. suit must have been disposed of by preliminary point, ii. the decree
must have been reserved under appeal
Remand cannot be ordered because the appellate court found the decision of the lower
court unsatisfactory; contrary to law; scanty materials for basis of decision, the appeal
must be decided in accordance with law. Sunder Singh v. Narain Singh
The order of Remand reverses the decision of the lower court, and reopens the case
for retrial by the lower court. Order of remand is appealable.
The power of remand should only be exercised when it is absolutely imperative, and it
should not be taken lightly. Correctness of order of remand can be challenged later on
in an appeal arising out of the final decree.
Power to frame issues and refer them for trial (Rule 25, 26, Section 107(1)(c)):
When a lower court has omitted to frame any issue; try any issue; or determine a
question of fact essential to the suit, the appellate court may frame issues and refer
them for trial to the lower court and direct that court to take the additional evidence
required. (Rule 25, Section 107(1)(c))
The evidence and findings formed thus shall form part of the record in the suit, and
any party may file a memorandum of objection to any finding of the lower court
within a time fixed by the appellate court. (Rule 26)
Rule 23-A v. Rule 25- whole case doesn’t go back to trial court, only some issues are
remitted to the trial court for its consideration; final order under 23-A, interlocutory
order under 25; 23, 23-A is appealable, 25 not appealable.
Power to take additional evidence (Section 107(1)(d), Rules 27-29)
Section 107(1)(d) allows the appellate court to take additional evidence or allow it
subject to the provisions of Rule 27.
Conditions: i. person seeking admission of additional evidence should be able to
establish that the evidence could not have been produced earlier, even with best
efforts; ii. the party affected by the addition of evidence should be able to rebut such
evidence; iii. The evidence must be relevant for the determination of the issue. N.
Kamallam v. Ayyaswamy
Rule 27- Additional evidence may be admitted when the lower court has improperly
refused to admit evidence; where such evidence was not within the party’s
knowledge, and they could not, with due diligence, produce it at the time of the earlier
decree; where the appellate court itself requires such evidence to either pronounce
judgement or for any other substantial cause. Yudistir v. Ashok Kumar
Rule 27(2)- Reasons must be recorded by appellate court for admitting any additional
evidence.
Rules 28-29- Modes of admitting additional evidence
Power to modify decree (Rule 33)
Rule 33 gives the appellate court the power to pass whatever order it deems fit, not
only between the appellant and the respondent, but also between two respondents or
two appellants. It allows the court to give whatever relief to any of the respondents as
the case may require.
The wide ambit of Rule 33 allows the Court to step in and make orders where other
Rules like Rule 22 with regard to cross-objections, may fail. The sweep of power
under this section is wide enough to allow the appellate court to pass any order to
meet the ends of justice. Requirements: parties before lower court must also be there
before appellate court; the question must have properly arisen out of the judgement of
the lower court. Any objection against any part of the appeal can be heard by the
appellate court by any party to the appeal if these requirements are met. Mahant
Dhangir v. Madan Mohan
Section 107(2): Appellate court has all the powers of an original court. Since appeal is
a continuation of a suit, an appellate court can do whatever an original court can do,
in the pursuit of justice. It is empowered to reappreciate evidence, return a plaint or
memorandum of appeal, allow amendments in pleadings, etc. Ramankutty. v. Avara
Duties of Appellate Court
1.! Duty to decide appeal finally in accordance with the law after consideration of
whole evidence. It must establish that its judicial mind to the case as a whole.
State of Tamil Nadu v. Kumaraswami
2.! Duty not to interfere with a decree of lower court for technical errors, merely
on account of technical or material defects, when said decree is otherwise
correct on merits. (Rule 99)
 3.! Duty to re-appreciate evidence, oral as well as documentary, and arrive at its
own conclusion. The finding of the trial court should not be disturbed lightly,
unless the trial court’s appraisal of evidence was so materially erroneous.
(Section 107(2)) Radha Prasad v. Gajadhar Singh
4.! Duty to record reasons in support of its judgement, which must be self-
contained with reasons in support of its findings. The evidence in light of its
determination must be discussed and it must reach its own conclusion. The
Supreme Court however, has the discretion to record its reasons, since there is
no further appeal from it, and it may exercise that discretion as it wishes to.
State of Punjab v. Surinder Kumar
5.! Other duties of an appellate court include that an appeal must not be dismissed
on technical grounds; it cannot be dismissed partly; it cannot grant a stay
against the execution of a decree if the appeal is time-barred; money suits
should not generally be stayed; when other matters involving a common
question or identical points are pending, a summary dismissal is not justified,
etc.

Judgement (Section 98, Rules 30-34)

Rule 30: The judgement must be announced in open court, and a copy of the whole
final judgement must be made available for thje perusal of the parties or their pleaders
after pronouncement.
Rules 31-32: The judgement of the appellate court must be in writing, and should
state i. the decision; ii. reasons for the decision; iii. The points for determination; iv.
Relief to which appellant is entitled is decree of lower court is reversed and it shall be
signed by the judge or judges concurring.
Rule 34: Any judge dissenting from the judgement shall state in writing the decision
or order which he thinks should be passed on the appeal, along with his reasons.
Decree(Rules 35-37)
Rule 35: The decree shall contain date and day of judgement; number of the appeal;
names and descriptions of parties and a clear description of relief granted; costs and
who is to pay, and the signature of the judge who delivered the judgement.
Rules 36-37: Certified copies of the judgement and decree shall be sent to the lower
courts and shall be furnished to the parties at their own costs.
Letters Patent Appeal
An appeal lies against an order passed by a single judge of the high court to a division
bench of the high court under the Letters Patent of the High Court concerned,
provided such an appeal is not barred by any statute, and provided that the other
conditions of appeal are satisfied. The appeal can be filed within 30 days from the
date of the judgement of the single judge. The provisions of Order 41 apply to Letter
Patent Appeals also. Umaji Keshao v. Radhikabai
Appeals to Supreme Court (Sections 109,112)
Sections 109 and 112 provide for an appeal to the Supreme Court under certain
circumstances, and Order 45 prescribes the procedure for such appeals.
Second Appeals
Section 100: Provides for the filing of a second appeal to the High Court from every
decree passed in appeal by any court subordinate to it, if the High Court is satisfied
that it involves a substantial question of law. An appeal may lie ex parte. The
memorandum of appeal shall precisely state the substantial question of law. Where
the High Court is satisfied that a substantial question of law exists, it shall formulate
such question. Appeal shall be heard on such question, and respondent shall be
allowed to argue at the hearing, that no such question is involved.
The term substantial question of law was defined in the case of Chunilal V Mehta v.
Century Spg. & Mfg. Co., where it was held that such a question is one that would be
one that is of general public importance, that directly and substantially affects the
right of parties, and whether it is an open question that has not been settled in law.
Substantial question must be one between the parties involved, and not a question of
general importance. High court formulates the substantial question of law. Duty on
appellant is to precisely state in the memorandum the substantial question of law, and
the duty of the Court is to formulate such a question. The appeal is to be heard on the
substantial question of law formulated by the court.
There is no second appeal to the High Court except on the ground mentioned in
Section 100. (Section 101). There is also no second appeal where the subject matter of
the suit for recovery of money does not exceed 25, 000 rupees. (Section 102)
Section 100-A- No Letters of Patent Appeal lies against a single judge in a second
appeal to the High Court.
Second appeal: Period of limitation-90 days.
High Court may determine, when required, to decide any issue of fact necessary for
the disposal of the appeal, where there is sufficient evidence, and such issue has not
been determined by the trial court or appellate court or by both; has been wrongly
determined by such court by reason of its decision on the substantial question of law.
Provisions relating to first appeals also apply to second appeals.
Appeals against Orders
Section 104-108; Order 43
Order-formal expression of any decision of a civil court that not a decree. (S. 2(4))
Appeals can only be made against those orders that are appealable under S. 104(1)
Section 105-Every order whether appealable or not, except an order of remand can be
attacked in an appeal from the final decree on the ground that, i. there is an error,
defect or irregularity in the order; ii. that such error or defect affects the decision of
the case.
Res judicata would apply where an interlocutory order has not been challenged, and
no party would later be allowed to challenge such order at a subsequent stage of the
proceedings.
Limitation period: 90 days
Section 106: Appeals from orders in cases where they are appealable, shall lie to the
court to which an appeal would lie from the decree in the suit in which the order is
made. Where an order like that is made by a court other than the High Court in its
appellate jurisdiction, an appeal shall lie to the High Court.
Provisions to first appeals applies to appeals from orders also.
Letters Patent Appeal: Shah Babulal v. Jayaben D. Kania, the Supreme Court held
that section 104 applies the High court from subordinate courts. If a Single Judge of
the High Court exercises original jurisdiction and makes an order, an appeal is
maintainable under Letters Patent Appeal. But if such an order is passed by a court
subordinate to the High Court and a Single judge of the High Court decides the appeal
against that order, no Letters Patent Appeal maintainable.
Review
Section 114; Order 47
Review cannot be confused with the appeal powers of a court, and does not imply
rehearing of a case.
Review is a reconsideration of the judgement by the same court, and by the same
judge.
A person aggrieved by a decree or order may apply for a review of a judgement.
(Section 114, Order 47, Rule 1)
A person aggrieved is a person who has a genuine grievance because an order has
been made which prejudicially affects his interests. Adi Pherozeshah Gandhi v. HM
Seervai
Circumstances of Review:
i.! A decree or order from which no appeal lies is open to review (Section
114(a)) An application for review against a Court of Small Causes is open
to review.
ii.! Where appeal is provided, but it is not preferred by the aggrieved party.
(Rule 1(1)(a)) Mere existence of appeal no ground to reject an application
for review.

Grounds of Review:
1.! Discovery of new or important matter/evidence
a.! It must be established that the new evidence in question could not have
been discovered by the applicant even with all due diligence at the
time when the decree was passed. The party must show that there was
no remiss on his part in adducing all possible evidence before the trial.
Sardar Balbir Singh v. Atma Ram Srivastava; the evidence must also
be relevant, and of such a nature so as to possibly alter the judgement
Nundo lal v. Punchanon Mukherjee
2.! Mistake or error apparent on the face of the record
a.! No error can be said to be evident on the face of it if it requires an
argument or examination to establish it, and is not self-evident. Delhi
Admin, v. Gurdip Singh; Thungabadhra Industries Ltd. v. Govt. of AP
Examples: where court decides against a party on matters not in issue;
where judgement is pronounced witout notice to the parties; where the
want of jurisdiction is apparent on the face of the record, etc.
3.! Any other sufficient reason
a.! It must mean a reason sufficient on grounds, at least analogous to those
given in the rule. Examples: where the statement in the judgement is
not correct; where a party had no fair notice or opportunity to present
his evidence; where the decree has been passed under a
misapprehension of the circumstances, etc.

Review may be made by the same court, and the same judge that tried the earlier
matter. If the judge who decided the matter is available, he alone has jurisdiction to
consider the cae, and review the order passed by him.
The power of Review is no inherent power. It must be conferred by law either
explicitly or by necessary implication.
Application of review should be in the form of a memorandum of appeal. (Rule 3)
The date for determining if the terms of the code are fulfilled is the date when the
application for review is filed.\
There is no provision in the Code for a suo moto power of review of the court.
AR antulay v. RS Nayak, Supreme Court held that it may exercise suo moto power of
review in an appropriate case.
Procedure:
The first stage commences with an ex parte application by the aggrieved party. The
Court may reject it at once if there is no sufficient ground or may issue rule calling
upon the opposite party to show cause why review should not be granted. (Rule 4(1))
The application shall then be heard by the same court and the same judge who passed
the decree or made the order, unless he is no longer attached to the court or precluded
from hearing it by absence or other cause for a period of 6 months. (Rule 5)
At the third stage, the matter will be reheard by the court on merits either at once or at
any time fixed by it. After rehearing the case, it may either confirm or vary the
original decree. (Rule 8)
Limitation period: 30 days
Order granting application for review is appealable, order rejecting application is not.
No second appeal from an order made in appeal from an order granting review.
An order granting review may amount to judgement and Letters Patent Appeal is
competent.
An application for review is revisable.
Provisions of Order 47 do not apply to writ petitions filed in the High Court filed
under Article 226 of the constitution. There is nothing in article 226, however, to
preclude the High Court from exercising the inherent power of review present in
every court of plenary jurisdiction to prevent a miscarriage of justice to correct grave
and palpable errors committed by it.
Power of Supreme Court to review its judgements not curtailed or affected by the
Code.
Appeals to Supreme Court
Articles 132, 133, 134-A of the Indian Constitution; Sections 109, 112; Order 45
Rule 3
Conditions for appeal(Section 109):
1.! A judgement, decree, or final order must have been passed by the High Court
2.! A substantial point or question of law must be involved in the case
3.! In the opinion of the High Court, said opinion needs to be decided by the
Supreme Court. It is not enough that there is a substantial question of law
that’s involved, there must be a necessity that such a question needs to be
decided by the Supreme Court. Such a necessity may exist if a different view
has been expressed by another High Court.

Procedure:
An appeal to the Supreme Court must be applied by way of a petition which should
state the grounds of appeal and pray for the issue of a certificate, i. that the case
involves a substantial question of law of general importance, and ii. that in the
opinion of the High Court, the said question needs to be decided by the Supreme
Court.
Amendment to Constitution: Article 134-A-Every high court passing or making a
judgement, decree, order or sentence, may if it deems fir to do so, either suo moto or
shall, if an oral application is made, by the party aggrieved, immediately after the
passing of such decree, order, judgement, final order, or sentence determine if such a
certificate is to be awarded or not.
Rules 7, 9 and 12: When certificate is granted, the applicant should furnish security
for the costs of the respondent and also deposit expenses for translating, printing,
indexing, etc. within the stipulated period. The court may revoke acceptance of
security, and also has the power to refund the balance of the deposit after the
necessary deductions of expenses.
Once the directions regarding furnishing of security and making of deposits are
carried out, the court shall declare the appeal admitted, give notice to the respondent
and transmit record to the Supreme Court.(Rule 8) The Court may order further
security to be furnished or costs deposited if the amount given earlier seems to be
inadequate. (Rules 10, 14)
The pendency of an appeal to the Supreme Court does not affect the right of the
decree-holder to execute the decree unless the court directs otherwise.
Rules 15 & 16 deal with the execution of a decree by the Supreme Court.
Section 112 saves the powers conferred on the Supreme Court by the Constitution and
declares that nothing in the Code would affect these powers.

Review

Section 114- substantive right to review

Order 47- Procedure

It means to reconsider/ judicial re-examination of the same case, at the same court by
the same judge.

A person who is neither a party nor a decree order binds him, cannot apply for review
as the decree or order does not prejudicially affect him.

A review is maintainable in the foll. cases:

1.! in which no appeal lies
2.! in which appeal lies but is not preferred- when aggrieved party does not prefer an
appeal. Whereas, if an appeal is preferred and disposed off, no review lies against
the decision of the court.
3.! In which Court of small Causes allows review of the judgment.

Grounds of Review:
1.! discovery of new matter or evidence: such evidence must be relevant and of
such nature that it could alter the judgment: is decided on the facts of the case,
can be error of fact or law.
2.! mistake/ error in the face of the record
3.! any other sufficient reason: a reason sufficient on grounds, at least analogous to
those specified in the rule.

The judge can only review his old case. the law insists that if he is available, he alone
should hear his review petition.
In case he is not available, his successor/ any other judge can hear the petition.

Review is not an inherent power, so if there is no power of review, the order cannot
be reviewed.
Application should be in form of Memorandum of Appeal, the substance is decisive.
A.R. Antulay v. R.S. Nayak- S.C. may exercise power of review SUO MOTU in
an appropriate case.

Procedure:

1.! First stage: ex parte application by the aggrieved party.

2.! Second stage: the application for review is then heard by the same court, by the
same judge who passed the decree.
3.! Third stage: matter is reheard on the merits by the court. Based on this the
original decree is either confirmed or varied.

On review, a case can be subjected to revision.

ORDER 47 does not apply to writs filed under Art 226 of the constitution.

Revision

Section 115: High Court has powers to entertain revision in a case decided by
any subordinate court, wherein the subordinate court:
1.! exercised a jurisdiction not vested in it (CLAUSE a)
2.! failed to exercise jurisdiction vested in it (CLAUSE b)
3.! acted in the exercise of the jurisdiction illegally (CLAUSE c)

Revision and Writ:

Revisional power under Section 115 id to file a writ of CERTIORARI, but is not as
wide, since it can be exercised only in the case of a jurisdictional error.

Revision and Power of Superintendence:

Revision under Section 115 and petition under Art. 227 of the constitution are 2
separate and distinct proceedings.
Revisional power is only judicial, power of superintendence is both judicial and
administrative.
Revisional power is only statutory and can be taken away by legislation, whereas
power of superintendence is constitutional and cannot be taken away or curtailed by a
statute.
Revisional powers of the high court are restricted and can be exercised on conditions
laid down in Section 115, but not to supervisatory powers under Art. 227.

Appeal and Revision:

APPEAL REVISION
Lies to a court superior to current court Application lies only to the High Court
Lies only from decrees and appealable Lies from any decision of the High Court
orders from which no appeal lies
Substantive right Discretionary right
Abates, if legal reps of a party are not Does not Abate. Can bring parties to
brought on record record at any time
On the question of fact/ law or fact and Only on the grounds of judicial error
law
Memorandum of appeal must be filed Filing of appeal not necessary

First Appeal and Second Appeal:

FIRST APPEAL SECOND APPEAL
Decree passed by court exercising Decree passed by court exercising
original jurisdiction appellate jurisdiction
Lies to a superior court Lies only to the High Court
On grounds of fact/ law/ fact and law On grounds of substantive question of
law
Decree mount less that Rs. 3000. First Does not lie
appeal is maintainable
Can decide issues of fact Only in certain cases
Period of limitation: 90 days if H.C., 30 Only 90 days, since only H.C.
days if any other court
A letters patent appeal is maintainable Not maintainable
Second appeal and Revision:
SECOND APPEAL REVISION
Substantive question of law Jurisdictional error
Lies only in the H.C. under SECTION Powers of H.C. only if no appeal lies to
100 the H.C.
H.C. can interfere with subordinate court, Cannot interfere with order passed by
if contrary to law subordinate court as long as its within its
jurisdiction
Can decide question of fact Cannot decide question of fact
H.C. Cannot refuse to grant relief merely H.C. may decline to interfere in revision
on equitable grounds if it satisfied that substantial justice has
been done.

Appeal and reference:

APPEAL REFERENCE
Right conferred to suitor Power vested in the court
To a superior court. Always made to the H.C.
Grounds of appeal are wider Grounds of reference are narrow
Filed only after decree is passed or Made pending a suit, appeal or execution
appealable order is made proceeding

Appeal and review:

APPEAL REVIEW
Lies to superior court Lies to the same court
Heard by diff. Judge Same subject matter, same Judge
Grounds are wider Grounds are narrow
2nd appeal lies on substantial question of 2nd review, does not
law

Reference and Review:

REFERENCE REVIEW
Subordinate court refers the case Application made by aggrieved party
Only H.C. can decide these mattersThe court which passed the decree can
decide
Is made pending a suit, appeal or Filed only after decree is passed
execution proceeding
Grounds are diff. Grounds are diff.
Review and Revision:
REVIEW REVISION
Passed by same court that passed the Can be passed only by H.C.
decree
Even when appeal lies Only in case where no appeal lies to the
H.C.
Application made only by the aggrieved Can be exercised by the H.C. even SUO
party MOTU
Diff. grounds Diff. grounds
Order granting review is appealable Order passed is not appealable

Reference and Revision:

REFERENCE REVISION
Referred to H.C. by a subordinate court Jurisdiction of H.C. invoked either by
aggrieved party or SUO MOTU
Grounds relate to reasonable doubt on a Grounds relate to jurisdictional errors of
question of law subordinate court

Conditions before revisional jurisdiction can be exercised by the H.C.:

1.! case must have been decided
2.! the court that has decided the case should be subordinate to the H.C.
3.! The order should not be an appealable one
4.! Subordinate court must have
a)! exercised jurisdiction not vested in it by law
b)! failed to exercise jurisdiction vested in it
c)! exercise of jurisdiction illegally or with material irregularity: manner in
which decision was reached.

If an alternative remedy is available, the court may not entertain revision.

The period of limitation is 90 days from the decree or order sought to be revised.

Suo Motu exercise of power:

Swastik Oil Mills Ltd. v. CST- S.C held that once these powers are invoked, the
actual interference by the court must be on sufficient grounds.

Interlocutory Orders:
The fall into 2 classes:
1.! appealable under SECTION 104, hence no revision
2.! non- appealable- and subject to revision under SECTION 115

A revision does not abate on the death of the applicant or on account of failure of
applicant to bring on record the heirs.

Procedure:
No established procedure in the CODE.
Grounds of revision can be expressed as an appeal, involving objections regarding
jurisdiction.
Once it is admitted, it has to be decided on merits and should not be dismissed on the
grounds that it should not have been admitted in the first place