ORDER-S.2(14) AND DECREE-S.2(2).
Decree
is a formal expression of the Court of an adjudication which, so far as the
Court expressing it conclusively and finally decides the rights and liabilities
of the parties in a suit on any or all matters in controversy.
Decree
is – (a)Preliminary Decree- further proceedings are required e.g. Suit for
Partition- here Partition is decree now further proceedings required to
ascertain the share and property to be divided. It is Appealable and if not
appealed cannot be challenged after the final adjudication – Sec.97;
(b)Final
Decree- which conclusively decides the suit e.g. Money Decree, etc.; and
(c)Partly
Final and Partly Preliminary- where a part of the Decree is final but other
part preliminary e.g. in a suit of possession and mesne profit [O20R12]. A Decree where possession is
ordered but further proceedings are required to ascertain the mesne profit to
which the Decree-holder is entitled. Here decree of possession is final whereas
for mesne profit decree is preliminary.
Deemed
Decree – S.2(2) provides two types of final
adjudication which are not decree but Deemed Decree – (a) Rejection of a
Plaint; and (2) Restitution, i.e. determination of any question u/S.144, but
they are Appealable. Distinction is
so made because, these are not decided on merits, but are both decided on
preliminary issues, but are final and conclusive.
Further,
Sec.2(2) provides two determination which are not decree – (a) any adjudication
from which Appeal lies as an Appeal from Order; and (2) any order of dismissal
in default.
Types
of Decree –
(a) Exparte Decree – can be set-aside u/O9r13,
or Appealed against u/S.96(2.)
(b) Consent & Compromise – Sec.96(3)
& O23 – not Appealable.
(c) Preliminary Decree – S.2(2), e.g.
O20r13, O20r14/15/16/18, O34r2/4/5/7/8, suit for pre-emption. Sec. 97 provides
the Preliminary decree is appealable when made, and if not appealed then the
party is barred from appealing after the final decree.
(d) Partly Final and Partly Preliminary – two
decrees – one preliminary & one final, e.g. O20r12 – Decree for possession and mesne profits.
(e) Contingent Decree – 046r2 + Sec. 113
(Reference), where an open question of law, the Court may frame such a question
and refer the issue to the High Court for decision. The Court refereeing shall
also give its opinion and decide the matter. If the opinion is upheld the
decree shall become final, but if it is decided by the High Court otherwise
then the Lower Court decree shall be reversed. Generally the Court referring
the question stays the suit, but O46r2 enables the Court to give its own
opinion alongwith the reference and decide the suit accordingly. A contingent
decree is therefore in-executable unless confirmed by the decision of the High
Court.
(f) Void Decree & Illegal and Irregular
Decree – Void decree is passed in inherent lack of jurisdiction i.e. subject
matter jurisdiction is lacking and therefore, the decree is void ab-initio.
Illegal or Irregular decree is passed by Court with inherent lack of pecuniary
or territorial jurisdiction which makes the Decree irregular and is not void-abinito.
A
void decree can be set-aside by both incidental or collateral suit. Incidental
can be Appeal or Revision whereas collateral is a fresh suit. But such a decree
cannot be set-aside in an Execution Proceeding [S.47-Power of Executing Court].
Irregular or Illegal Decree can only be challenged in an incidental proceeding
that too if there is an inherent failure of justice due to such lack of
jurisdiction [Sec. 21]. *
Balwant N. Vishwamitra & Ors. v. Yadav Sadashiv Mule [2004 SC]
ORDER
– Formal expression of any decision of Civil Court which is not a Decree i.e.
any formal expression of any decision which does not decide the suit on merits
means not being on COA of the suit.
TEST
– (a)nature of suit; (b) substantive law rights (c) what order made and to what
it relates; (d) Appealable as order or not.
APPEALABLE ORDERS / APPEAL AGAINST
ORDER – SEC. 104-106 & O43
Appeals shall lie from the following [Sec.104]–
(a) Order
u/S.35A – Compensatory Cost against false and vexatious claim or defence.
(b) Order
u/S.91-92 refusing leave to defend – Leave of the Court to sue against any
public nuisance and other wrongful acts affecting the public AND suit against
breach of any express or constructive trust created for public purposes of a
charitable or religious character. [If the leave granted then not
appealable, but if refused it is an appealable order].
(c) Order
u/S. 95 – Order awarding compensation for obtaining arrest, attachment or
injunction on insufficient grounds.
(d) Order awarding fine or directing the arrest
or detention in civil prison except arrest and detention in execution
proceeding.
(e) Order which are expressly made Appealable
under this Code i.e. O43r1.
[No
appeal shall lie from any order passed in Appeal under this Section.]
O43r1
further list is provided –
(a) O7r10-return of plaint, except where
O7r10A is followed.
(b) O9r9-rejecting the setting aside of dismissal
of suit.
(c) O9r13-rejecting the setting aside of
exparte decree.
(d) O11r21-Order of dismissal for
non-prosecution i.e. non-compliance of order for discovery of document.
(e) O21r34-Order on objection to the draft
of a document or of an endorsement.
(f) O21r72 or 92-Order setting aside or
refusing to set-aside sale in execution.
(g) O21r106(1)-Order rejecting the setting
aside of any Order under execution proceeding, provided such order under
execution is not appealable.
(h) O22r9-Order refusing to set-aside
abatement of the suit or refusal to set-aside dismissal of suit.
(i) O22r10-Order refusing or giving leave
to be substituted.
(j) O25r2-Order refusing to set-aside order
of dismissal of suit for not furnishing security for cost in a suit.
(k) O23r5or7-Order rejecting the
Application to sue as indigent person.
(l) O35r3,4or6-Order in interpleader suit.
(m) O37r2,3,6-Order in summary suit
(o) O39r1,2,2A,4,10-Order in Temporary
Injunction & Interlocutory Order of depositing the money, deliverable
property in the Court.
(p) O40r1or4-Order in appointing receiver AND
attachment & sale of receiver’s property.
(q) O41r19&21-Order refusing to readmit
(R.19) or rehear an appeal (R.21).
(r) O41r23or23A-Order remanding a case
where an appeal lies from the Decree.
(s)
O47r4-Order granting application for review.
ESSENTIALS OF A SUIT
1. Parties
– Plaintiff/Petitioner/Applicant - Defendant/Respondent (including Proforma
Defendant/ Respondent)
[Proforma-
the Defendant/ Respondent is actually/ should be made as a Plaintiff but he/she
does not want to file the case (Parties have joint interest in the subject
matter), is made Proforma party, to make the suit comprehensive and for
bringing before the Court, all the necessary parties.]
2. Cause
of Action – Existence of a legal right and violation by other party.
[Must
be a CIVIL LEGAL RIGHT existing for one and recognised by law. Right in rem or
in personam]
3. Subject
matter – the property or right w.r.t. which the suit has been filed.
4. Matter
in issue – the issues/ questions which need to be proved by one or negated by
the other to decide the case in their favour.
5. Title
– the legal capacity to suit, the nature of right asserted upon the subject
matter.
6. Relief – Declaration, possession, mesne
profit, injunction, etc.
PLAINT
AND SUIT
Plaint
is the written document which contains the averments and pleading
regarding the COA, whereas the Suit is the whole proceeding up-till passing the
judgment. FURTHER, the Appeal, Review, Revision is the extension of suit.
INSTITUTION
OF THE SUIT – Sec. 26, Order IV and Order VI Rule 15&17
Suit
is instituted when it is presented before the PROPER OFFICER of the Court (not
necessarily proper officer – but FILING COUNTER). It must be in DULICATE. The
Plaint must be verified (VERIFICATION-O6r15) and accompanied alongwith
AFFIDAVIT (O6r16).
* Bikaji
Kushao Joshi v. Brijlal Nandlal (1955 SC)
Non-filing
of verification, no ground for rejection, but the Court must allow amendment.
* Salem
Advocate Bar Association, Tamil Nadu (2) v. U.O.I (2005 SC)
By Affidavit additional responsibility is
attached to the parties to plead truthfully and not to conceal any material
fact.
Affidavit required in Suit as well as
Application
Affidavit
is not an evidence, but mere declaration that the party is deposing truly.
SUIT
– INSTITUTION
Sec. 9 –
EVERY COURT have jurisdiction to TRY AND DECIDE all SUIT OF CIVIL NATURE excepting
suit of which their cognizance is EXPRESSLY OR IMPLIEDLY BARRED (subject to
provision herein contained).
Sec.
9 - flows
as an UNDER-CURRENT from Sec 10 – 25.
-
it provides competence and not jurisdiction i.e. triability of the suit.
-
Jurisdiction here means triability and not territorial or peculiar.
- Ubi
jus ibi remedium
[If
there arises any issue regarding traibility, the Court to make a presumption of
jurisdiction frame an preliminary issue, and the onus of proof lies upon the
defendant to prove and other matter in issue to be decided later once
jurisdiction is proved. If jurisdiction not proved, the Court shall return the
Plaint (O7r10) this must be a SPEAKING ORDER (O7r12)]
*
RSRTC v. Bal Mukund Shah Bairwa (2) (2009 SC)
Sec.
9 basis lies in latin maxim ubi jus ibi
remedium. Also, every Civil Court have a Plenary jurisdiction to try all
suit of civil nature, unless expressly or implied barred (under CPC or any
Special Provision or Law)
SUIT OF CIVIL NATURE
Phrase
used is Suit of Civil Nature and not Civil Suit, as the former has wider scope
and extent (EXPANSIVE APPLICATION). It will include suit involving predominantly
civil nature (i.e. suit involving any civil legal right) although the suit runs
along a social and religious issue/ question or is even bases on some social and
religious right. The nature and existence of civil legal right is to be seen
and not the source, even if social or religious, but if it effects the civil
legal right of the party, it shall be regarded as Suit of Civil Nature.
EXPLANATION
I & II to Sec. 9 – Right to any PROPERTY or OFFICE contested is a Suit of
Civil Nature, and it is immaterial as to of any fees is attached to such office
or not.
* Most Reverand PMA,
Metropolitian & Ors. V. Moran Mar Mothomma (1995 SC)
(1) Sec. 9 is both positive and negative in
language
(2) ‘Shall’ be read as mandatory and not
discretionary upon the Court.
(3)
The REAL TEST is existence/ affecting any MATERIAL CIVIL LEGAL RIGHT, and
immaterial is any social or religious right is involved/ connected/ attached.
EXPRESS AND IMPLIED BAR
The
Jurisdiction of the Civil Court is ousted by any Special Law only if express
terms/ provisions are provided. The Jurisdiction of Civil Court and Tribunal or
Special Court may also co-exist (like Consumer Protection Act). However,
express provision ousting the jurisdiction of the Civil Court shall be
subjected to 4 exception – (1) statute is ultra-virus; (2) tribunal has
violated some provisions of the statute; (3) tribunal has violated Principles
of Natural Justice; or (4) statute does not provide adequate relief.
JURISDICTION
Subject matter Territorial Pecuniary
No provision Sec. 16-20 Sec. 3,6,15
‘express
and implied bar u/s. 9’
NON-JUSTICIABLE JUSTICIABLE
[Decree passed is void, as there [Not void decree perse,
but it must
is
Inherent Lack of Jurisdiction] must be actual failure of justice]
TERRITORIAL
JURISDICTION
Sec.
16 – Immovable Property [Sec.16 (a) to (e)] and
Movable Property [Sec.16 (f)]
(a)recovery
of immovable property with/without rent or profits.
(b)partition
of immovable property. [movable can also be clubbed together]
(c)foreclosure,
sale; or redemption of immovable property under mortgage or charge
[any charge upon the property or its usufructs].
(d)determination
of any other right as to immovable property. [residuary clause within sec. 16]
6
imp. Cases – 1.Rt. to Enjoyment of Property; 2.Rt. to
declaration of ownership or possessory title; 3.Rt. to injunction against
trespass; 4.Rt. to easement; 5.Rt. to eviction by the landlord; & 6.Rt. to
Specific Performance.
[if eviction
of tenant, it is residuary and not recovery of possession u/s. 16 (a)
because, the tenant has overed his stay and is not an illegal trespasser – JURIDICAL
Possession.
Specific Performance
of immovable then Sec.16(d) but if movable property, then will fall under
Contracts i.e. Sec.20]
(e)any
wrong done to immovable property (e.g. compensation for nuisance, mischief, etc.)
(f)recovery
of movable property under distraint or attachment.
[Distraint is similar to rt to lien, i.e. where property is held
in lieu of some payment made.]
PROVISO
* Harshad Chiman Lal Modi v. DLF Universal
Ltd. (2005 SC)
–
‘equity acts in personam’ i.e. wrong is committed upon property and the
relief claimed is in pure personal obedience then the Plaintiff has to
follow the defendant and file suit as per sec. 20.
SEC.17
- where subject matter situated in different jurisdiction, can be filed in any Court
in whose jurisdiction any of the portion of the property is situated provided that the pecuniary
jurisdiction of the Court must be adhered to i.e. the entire subject matter is
triable by that Court.
SEC.18
– where property situated is alleged to be
uncertain as to in whose jurisdiction falls, the suit be filed in any Court,
and upon such suit, the Court being satisfied, record a reason to that effect
and proceed with the suit. Provided,
the Court has the jurisdiction to try the suit of that nature (subject matter)
and value (pecuniary).
[SEC.18(2)
– in the above provision, if the Court records a wrong reason or fails to
record any reason, or the Court lacked territorial or pecuniary jurisdiction,
and later it is proved in Appellate or Revisional Court, it shall not make the
judgment void, as they are all justiciable or technical error,
however, if the error relates to subject matter of the court i.e. the
Court lacked subject matter jurisdiction, this is non-justiciable or non-technical error which renders the judgment
void called INHEREANT LACK OF JURISDICTION]
Sec. 19
– Suit related to torts or affection right as to movable property.
Where
any wrong or tort is done to a person or property, the jurisdiction is of the
Court (1) where the defendant resides (actually and voluntary resides
or carries on business or personally works for gains); (2) where
the wrong committed; (3) if upon property, then where the property
situated, any of the above. If all three are different places, then suit
may be filed in any of the three jurisdiction.
Sec. 20
- Residuary [Equity acts in personam –
follow the Defendant]
”Subject to the above
limitations” (after following sec. 16-19), the party
to follow sec. 20, i.e. suit to be filed in Court in whose jurisdiction –
(a)
defendant or each of
defendant actually and voluntarily resides, carries on business or
personally works for gains [here any permutation and combination may be
allowed, the Plaintiff is free to file in any jurisdiction, provided the place
is common to the defendant and each of the defendant.] [cases of single
defendant will also fall under sec. 20(a)]
(b)
any of the defendant (where more) – actually and voluntary resides, carries on
business or personally works for gains, provided,
the leave of the Court is acquired or acquired acquiesce from the other
defendant who neither actually and voluntary resides, carries on business nor personally
works for gains in that Court’s jurisdiction.
(c)
where the CAUSE OF ACTION wholly or in part arose.
EXPLANATION
– A Corporation shall be deemed to carry on business at its Sole or Principle
Office in India, or in respect of
the cause of action arising where it has also a subordinate office, at such
place.
[Company/
Corporation will only have business and not residence or work, also company/
corp. is a juristic person and not natural being. Also, if there is sole
office, then where the sole office is situated, if there are principle office
and branch office then the principle branch. And, if there are principle office
and branch office and COA arises at one or more branch office then suit may be
filed in the jurisdiction of that branch office and not any other branch office
or even principle office.]
[ACTUALLY
AND VOLUNTARY RESIDES – Intention to live, not mere visits or any forced living
like jail.
CARRIES
ON BUSINESS – transaction with the sole purpose of earning profit, done by own
self or any authorized agent.
PERSONALLY
WORKS FOR GAIN – physical or mental labour in return of remuneration which may
be monetary or in kind.]
SECTION
21
Technical
Defect – Objection as to Territorial
Jurisdiction [S. 21(1)] or Pecuniary
Jurisdiction [S.21(2)] shall not be allowed by the Appellate or Revisional
Court, unless such objection taken at the trial at the earliest possible
opportunity, and if there is settlement of issues, then such objection be taken
at or before such settlement AND there is consequent FAILURE OF JUSTICE.
Also,
Objection as to Territorial Jurisdiction of an Executing Court [S.21(3)] [Sec. 39 is also attracted here as to see the
competence of the Executing Court] shall not be allowed by the Appellate or
Revisional Court unless taken at the earliest possible opportunity AND there is
consequent FAILURE OF JUSTICE.
Sec.
99 & Sec. 21 * Kiran Singh v. Chaman Paswan [1954 SC]
Sec.
99 provides that the Appellate Court must set aside the decree where it finds
any material irregularity or defect upon the merits or error/defect on
jurisdiction. But, it is an enabling provision, whereas Sec. 21 puts in
additional condition, which is therefore a prohibitory provision.
Therefore, there is no real conflict, Sec. 21 merely regulates and provides 1
extra condition over Sec. 99
Same
is the connection between Sec. 21 and Sec. 11 of the Suit Valuation Act.
FAILURE OF JUSTICE
Party
to prove that due to the lack of jurisdiction, was prevented from leading
evidence properly, which had an adverse effect on the final determination of
the suit.
OBJECTION RAISED AFTER SETTLEMENT OF ISSUES
The
parties may raise issue as to jurisdiction at or before settlement of issues.
This can be raised as a matter of right. But, where an issue is raised after
settlement of issues and before the Judgment, the parties are to pray to the
Court for amendment of the pleading, which is discretionary upon the Court to allow
or to reject. The provision attracted here is O6r17, which the Court may subjected
to cost. [Also O7r10 is attracted
i.e. Return of Plaint]
Sec. 21A – Bar
on suit to set aside decree on
objection as to place of suing.
Proceedings
are (1) Incidental Proceedings; and
(2) Collateral Proceedings.
Incidental based upon the suit, in
continuation, after/ because of the suit, e.g. Appeal, Review, Revision.
Collateral is parallel, independent and collateral,
e.g. another fresh suit.
Sec.
21A can be read as complimentary to Sec. 21. Sec. 21A substantiates the
principle given under Sec. 21 which broadly relates to Res-Judicata. Where a
party is prevented from objecting the decree based only upon Technical defects,
the same party is prevented from bringing in a fresh suit upon the same ground.
The Spirit of both the sec. 21 and 21A is same.
TRANSFER
OF CASES – SEC. 22, 23, 24 & 25
Sec. 22
– Power to transfer the suit where filed before more than one Court. Objection
is to be raised at or before settlement of issues and Court shall consider and
see as to in which Court the suit shall be tried. More comprehensive case shall
be chosen to include all the subject matter.
Sec.
23 – To what Court application for transfer shall
lie.
Several Court to one Superior Court, then
transfer between such Subordinate Court, the Application u/S. 22 shall lie to
above Superior Court. [Sec. 23(1)]
Where
Subordinate Courts under jurisdiction of different Superior Court but to same
High Court, then the Application u/S. 22 shall lie to such High Court. [Sec.
23(2)]
* Durgesh Sharma v. Jai Shri [2008 SC]
High
Court has jurisdiction limited only to its territorial jurisdiction. The power
to transfer cases from one Court to another before different High Courts, the
Application shall lie only upon the Supreme Court. [Sec. 25 amended and Sec.
23(3) declared as void.]
Sec.
25 declared comprehensive enough and Sec. 23(3) even though not repealed in
1976 is void. Sec. 25(2) that the Application u/S. 22 shall be made by a motion
alongwith affidavit. Sec. 25(3) states that the S.C. may order DE-NOVO trial
(i.e. fresh) or in continuation from its current stage. Sec. 25(4) provides `2,000/-
for any frivolous or vexatious application. Sec. 25(5) finally declares that
the law of the original court shall be applicable.
Sec.
24 – General Power of transfer and withdrawal
(1)The
District Court or the High Court on application or suo moto –
(a)Transfer for trial (suit or appeal) or
dispose (other proceeding) to any subordinate Court
(b)withdraw
– try and dispose; transfer for trial and disposal; re-transfer for trial or
disposal.
(2)
transfer or withdraw – de-novo trial or in-continuation.
(3)
Additionals and Assistants are subordinate w.r.t. this section and proceedings
includes proceedings for execution.
(4)
can transfer and withdraw from Court of Small
Causes.
(5) transfer
and withdraw possible even from Court which do not have jurisdiction.
TEST
IN TRANSFER OR WITHDRAWL
Judicial Mind of the Court
*** Forum Convenience
Balance of Convenience, prove irreparable
losses and who suffers greater losses.
Prove
all three – (1) Balance of Convenience; (2) Irreparable losses and greater
material losses than the adverse party; (3) Adverse party under no material
losses.
RES JUDICATA – SECTION 11
Based
on the principles of Estoppel, but not exhaustive, other provisions on the same
principle are – Sec. 10 (Re-subjudice), O2r2, Sec. 13-14 (Foreign Decree).
Latin Maxims – ‘interest repulicae ut sit finis litium’ i.e. it is in the interest
of State that there must be an end to litigation.
‘exceptio
res judicatae’ i.e. previous judgment will be a bar to any subsequent suit.
‘nemo
debit lis rexari pro cuna et etadem causa’ i.e. no person shall be vexed
twice for the same cause.
‘res judicatae pro veritate occipitar’
i.e. judicial decision should be accepted as correct and final.
All
above rests its base on the principle that a matter once heard and finally
decided, cannot be opened at same court or any other Court of first instance.
In other terms, matter once heard and decided finally bars any subsequent
collateral or parallel proceedings, only incidental proceedings is allowed
subject to just limitation prescribed by law.
No
Court shall try any suit
or issue in which the matter substantially and directly in issue has
been directly and substantially in issue in any former suit, between the
same parties or parties under whom they or any of them claim, litigating
under the same title, in a court of competent jurisdiction competent
to try such subsequent suit or the suit in which such issue has been
subsequently raised and has been heard and finally decided by such Court.
ISSUES
(1)
No Court shall
Mandatory
upon the Court decide on Res Judicata, by making it as a preliminary issue and
stall trial upon merits, until plea of Res Judicata is decided.
(2)try
– suit or issue(directly or substantially)
The
Subsequent Court is barred from trying altogether any suit or even any issue
which has been formally decided as provided under this section.
(3)
suit or issue – former and subsequent
Suit
or issue must be same in the former as well as subsequent suit. The whole suit
may be filed again in a parallel Court, or even one or more issue previously
decided, may be framed as issue(s) in a subsequent suit.
(4)
substantially and directly in issue
Discussed
later, and distinction from collaterally and incidentally in issue.
(5)
between same parties or parties under whom or any of them claim
Parties
to the two suits may be themselves or under (inheritance, succession, customs,
usages, etc) or through them (transfer- title or interest).
(6)
litigating under same title
Same title relates to both, the former suit
as well as the subsequent (present) suit. Title means legal capacity
under which a party claims, which relates to his locus standi.
Four concepts needs to be studied here
together- (1)matter in issue (2)title (3)COA (4)relief. Based upon the COA, a
party files a suit under a TITLE, which is proved by proving the MATTER IN
ISSUE, which ultimately entitles the party to the RELIEF CLAIMED, which is
necessarily establishment of his TITLE.
When deciding upon title, the above 4 needs
to be correctly examined and decided by making a chart comparing each of the 4
arising in the two suits in question. If the title proves to be different, res
judicata will fail even if other 3 still remains the same.
For
res judicata to prove, apart from other, one of the main factor is title. It is
so much so important that even if the subject matter and/or parties are the
same, yet if they are claiming under a different distinct legal capacity, the
res judicata of the former suit between the same parties will not apply, merely
because there is different title under which the parties claim.
CONSTRUCTIVE RES JUDICATA – EXPLANATION IV
Res
judicata as a concept, if studied keeping in mind its principle and purpose,
imposes a duty upon the parties to plead a suit comprehensively as well as to contend
every possible contention which will turn the case in their favour. [Link can
be drawn here with Order 7 and Order 8, which makes it mandatory upon the
Plaintiff and Defendant to open every possible line of action against the
adverse party and even Order 6 Rule 17, with after due limitation allows
Amendment of pleading to enable parties to plead the case comprehensively]. The
repercussions to the above mandates is seen in Section 11 and substantiated by
Explanation IV to the main section.
Explanation
IV clearly mandates that any matter which might and ought to be made a line of
action shall be deemed to have been decided by the Former Court, whether raised
or not. The duty therefore is upon the parties to plead comprehensively and on
every matter in issue. Two concepts need to be dealt here – matter directly
and substantially in issue and matter collaterally and incidentally in
issue.
Matter directly and
substantially in issue – those issue which directly
relates to or goes to prove or disprove the matter in issue. These issue needs/
ought to be raised, for which the parties must be extra cautious, reason being,
Res judicata will apply of any former suit upon subsequent suit, not only on
the suit but even on the issue, which were directly and substantially in issue,
even if the party failed to raise and prove in the former case. The party
therefore, will not be allowed to correct their mistake of not raising and
proving a direct and substantial issue in a subsequent case. This application
under Section 11 substantiated by Explanation IV is called CONSTRUCTIVE RES
JUDICATA.
Matter collaterally and
incidentally in issue – are issues which do not
directly relates to the matter in issue and any adjudication upon these issue
will be futile and worthless and res judicata will not apply upon any
subsequent suit. Here the Court must be extra cautious to frame only upon those
matters in issue which are relevant to the COA and subject matter of the suit.
EXPLANATION III AND EXPLNATION
IV
Explanation
III adds another important principle to the main section, whereby the parties
to the former suit are case upon the duty to deny and controvert properly an
issue so relevant under Explanation IV. Following figures depicts these
explanations brought together-
The following four needs to be proved to apply CONSTRUCTIVE
RES-JUDICATA -
(1) issue should be directly and
substantially in issue in the former suit.
(2) issue should be directly and
substantially in issue in the present/ subsequent suit.
(3) party was aware of the issue at the
time of former suit and if not aware then must have knowledge or with due
diligence must have known about the issue to be raise in the former suit.
[ultimate TEST is of DUE DILIGENCE AND KNOWLEDGE]
(4) having proved the above three, it has
to be proved that the issue must and ought i.e. a legal duty to have been
raised in the former suit as provided under EXPLNANATION IV.
(7) former court competent to
try such subsequent suit or issue
The
Former Court must have jurisdiction to try present as well as former suit.
Former here connotes the suit which has been decided earlier, not necessarily
first [Suit filed in Court B may be decided before Court A, even though the
suit was filed in Court A prior to that of Court B]
Competency
relates to pecuniary and subject matter jurisdiction. More
importantly subject matter as it is non-justiciable error which makes
decree void, on the other hand, the other two- territorial and pecuniary
error are justiciable and merely technical and not a ground for
declaring decree void unless it leads to failure of justice.
IMPORTANTLY, property and its value is ever
increasing and therefore, the pecuniary jurisdiction will be effected if a
property suit decided by Civil Court in 1950, will be valued much higher in
2013, therefore, the Former Court will be incompetent to try the subsequent
suit. SIMILARLY, a suit decided by Probate Court upholding a Will, and if later
a dispute arises as to declaration and possession of the property, here too the
Former Court (Probate Court) lacks subject matter jurisdiction to try
the present suit i.e. purely Suit of Civil Nature to be decided by Ordinary
Civil Court. The plain provision of Sec. 11 therefore creates an anomaly which
needs to be done away with. Therefore, EXPLANATION VIII was added to negate
this effect by declaring that the Former Court of ‘Limited Jurisdiction’
shall not be a ground to raise the plea to that the “Former Court not having
jurisdiction to try the subsequent suit.” If the Former Court had the
jurisdiction to try the former suit at that time then the suit is said to be
decided by a Court of Competent Jurisdiction, even if practically it cannot try
the former suit, had it been filed then (at the earlier date).
Pertinent
to mention here is that Explanation VIII was not required for the cases of lack
of territorial and pecuniary jurisdiction because, lack of the above two
jurisdiction is justiciable, and unless there has been proved consequential
failure of justice, lack of above jurisdiction of the Court does not makes a
decree void. [Section 18 CPC] And
even if party fails in the trial to object upon these issues, a parallel suit
is still barred under [Section 21 and 21A]
COURT
OF LIMITED JURISDICTION needs to be carefully examined while deciding on this
point, basing all the relevance of the cases named below.
* Sulochanna Amma v. Narayanan Nair [1994
SC]
* Rajendra Kumar v. Kalyan (Dead) by L.R.
[2000 SC]
Held
that the bare reading of the provision of Sec. 11 leads to a gap regarding
Former Court competent to present suit, and Explanation VII therefore, negates
such an anomaly and is practically a saving clause to the main section.
(8) heard and finally decided
6
topics needs to be directly studied under this chapter [yes means res judicata applies and no means res judicata will not apply].
Ex-parte consent abated non-speaking arbitration appeal
Decree decree order awards
(YES) (NO) (NO) (NO) (NO) (YES*)
Heard
and Finally Decided means and connotes where
actual formal trial has been conducted and the suit is comprehensive and
formally heard and decided. It directly means taking/ leading of evidence by
the parties and adjudication by the Court by appraisal of evidence and based upon
the proved facts of the case, which means a formal decree upon true and proved
facts is drawn.
Based
upon the meaning the above 6 topics demarcated as yes- where RJ applies and
other cases where RJ do not apply. Ex-parte decree and appeal depends upon the
each and every case. The defendant is free to defend the case, but in default
his right is restricted by ex-parte proceedings, and even if it not completely
barred to defend, yet it is held as if the matter is heard and finally decided,
as the defendant cannot be allowed to take advantage of his mistake. Similarly,
in appeal (is continuation of appeal), and dismissal of the appeal applies as
RJ, but if rejected on technical grounds then
the Trial Court’s Decree is final, unless applied for correct appeal/
Revision, etc. Same applies in cases of Review.
Appeal, Revision (to the High Court) and Review (1 review only but includes 2
review in Supreme Court, Review Petition and Curative Petition)
are all consequential proceedings
i.e. to say are all consequential upon a Decree from Trial Court, and when
filed are said to open the trial afresh. Therefore, their decision is final
over and serve as res judicata, and the trial court’s judgment stands modified,
if any made by the Court thereunder.
* Sheodan Singh v. Daryao Kunwar (Smt.) [1965 SC] P.B.
Gajendragadhkar, C.J.; 4 Judge Bench delivered by Wanchoo J.
The
judgment of this case is limited to the facts and circumstances of its own
facts and limited application, but important as Court took many legal fiction
and extra caution in deciding appeal.
*
Narhari v. Shankar [1950 SC]
One
suit and two appeal, and even if one is dismissed on technical ground, it will not
serve as res judicata on the other appeal, as being dismissed on technical
ground which is not heard and finally decided.
QUICK FACTS
Withdrawal
of Suit under Order 23 – if without permission/ leave
of the Court, estoppel will allow, i.e. the broad principle of Res Judicata,
but not Sec. 11
Consent
Decree, Abated – not heard and finally decided, the
formal trial is not concluded in the above cases. In Consent Decree estoppel
will allow but not Sec. 11; and in case of abatement if party affords
reasonable excuse for delay to the Court, the suit may be continued.
Arbitration
Awards – Sec. 11 limits to the Court i.e. Civil Court
established under law established by law and not quasi-judicial body governed
by other legislations, therefore, awards can be called in the court and be
finalised, but as per sec. 11 it will not be applicable in its true nature, but
its nature and spirit and always be called in.
Non-speaking
order – they is itself nothing in the eyes of law.
Non- speaking order is void, and bad in the eyes of law, and without reason,
res judicata cannot derive its authority. Therefore, res judicata on
non-speaking order is not applicable.
Interim
Order – Preliminary Issue i.e. technical issues like
jurisdiction, court fee, impleadment of parties, etc. are decided at the
preliminary stage and not on the merits of the case. Therefore, res judicata
will apply on these preliminary issues but not on merits, as all the matter in
issue are decided together at the end of trial. But Res judicata still applies
on interim orders.
Writs
– RJ u/S. 11 CPC is not writs applicable on writs, but the broad principles of
estoppel do apply. And on the Writ of Habeas Corpus, Res Judicata
never applies.
Erroneous
Judgment – Court may pass judgment which fall short of
judicial prudence, they are error or even failure of justice, yet Res Judicata
to apply, as no court has the authority to over-ride over a parallel Court.
BUT
– Wrongful Appraisal
of Facts Res judicata will
apply and only remedy
–
Wrongful Appraisal of Evidence available to the party is Appeal.
Per
Incuria–
Wrongful Interpretation of Law – Res Judicata will not apply
* Isabella Johnson (Smt.) v. M.A. Susai
(Dead) by L.R. [1990 SC]
* Mathura Prasad Bajoo Jaiswal v. Dossbai N.B. Jeejeebhoy [1970
SC]
SHORT
COMMENTARIES
Plea
of RJ – at any stage in W.S. or O6r17 (if allowed by the Court but generally
allowed)
Suo-moto
by Court – No, because Court has no reason to try Sec. 11, it is only the
parties who will contend on such a point/ issue.
Waiver
– If plea not raised by the party means waiver, but if raised cannot be
withdrawn.
CONSTRUCTIVE
RES JUDICATA AND INCONSISTENT PLEADINGS
Inconsistent
Pleadings are different pleading or sets of pleading which are mutually
destructive and negates one another so much so that a valid defense as they
counter each other with in the same document. It is the responsibility of the
Court to strike out, or order amendment of such inconsistent pleadings.
And
Constructive Res-judicata applies on issue which must could and ought to be
raised. Therefore, by a comparison, Constructive Res judicata will not apply on
inconsistent pleadings, rather the Court shall order or allow amendment to the
document.
EXPLANATION
1– Former
suit – decided first even if filed later.
2– Court
Competent to be decided irrespective of whether appeal allowed from such court
or not.
3– issue
admitted or denied, expressly or impliedly, not necessary to be decided, but
must be
4– issue
directly and substantially in issue which could
or ought to have been raised-CONSTRUCTIVE RESJUDICATA.
5– Relief
claimed and decree silent, deemed as if rejected/ not granted.
6– Person
litigating bonafide in respect of private right or public right claimed in
common to themselves, deemed litigating under the person so litigating.
7– Provision
of Sec. 11 applies to execution proceedings as well.
8– More
of a saving clause, and establishes the concept of Court of Limited
Jurisdiction.
STAY OF SUIT – SECTION 10 – RES
SUB JUDICE
No
Court shall proceed with the trial of any suit in which a matter directly and
substantially in issue, is also directly and substantially in issue in other
suit between the same parties or between whom they or any of them claims
litigating under the same title in a Court in India having jurisdiction to
grant such relief, or in any Court beyond India but established by or under the
Central Government or before the Supreme Court.
(1) shall
proceed with the trial
The
section provides that the trial is required to be stayed and there is not a
complete bar. The purpose is to injunct different Courts from trying the same
matter in issue and thereby running the risk of conflicting judgment on the
same issue. Therefore, when a plea of Sec 10 is raised, the Court is duty bound
to examine whether the same issue(s) are already being tried by another Court
and is such fact is asserted, the Court shall stay the whole suit until that
issue in the other Court is decided.
The
Court where the issue is being tried earlier must have all jurisdictions i.e.
pecuniary, territorial and subject matter jurisdiction, otherwise it will be a
valid ground for rejection which the party can plead, and the other Court where
the issue can be tried, will try the suit and stay u/S.10 will be set aside. Court
need not on the face of Application u/S. 10 stay the suit, but Court may look
into the stage at which the matter in other Court is pending and if the stage
in the other Court is younger to the present Court, then the latter Court may
reject the application and still try the suit, and let the same plea be taken
in the other Court.
(2) matter
in issue same – former and latter court
Need
to examine the matter directly and substantially in issue, but the stage is
still young, and after preliminary examining the issues, the Court will stay
the proceedings, because the suit is not dismissed and can be opened any time
later if the other suit is rejected, dismissed on technical ground, and if the
present suit is deemed to be necessary.
(3) between
same parties or between whom they or any of them claim litigating under the
same title
Same
discussion as provided u/S. 11 on the same topic
(4)
pending in a Competent Court –
(a) Court in India
(b) Court outside India but established by
or under the Central Government
(c) Supreme Court
Explanation – No
bar upon any Court to try a suit which is already pending in a Foreign Court.
ORDER 2 RULE 2
(1)Every
suit filed must include the whole claim and all reliefs arises out of same
cause of action, but a party may relinquish any relief or part of the relief
for bringing the suit within jurisdiction of a particular Court.
(2)
Any portion of such relief omitted or intentionally relinquished by any party,
shall put a bar not to be claimed by another suit.
(3)
Where a party entitled to many relief, omits to plead the same in a suit shall
not afterwards be allowed to bring in another suit claiming such relief, unless
it was omitted earlier by the leave of the Court.
Relief
– (1) Alternative; and (2) Consequential
Alternative
relief are those, which a party is to plead together and in the alternative to
one another. The parties must be vigilant as to what all relief arises/ accrues
against their COA and therefore all must be pleaded together, even if mutually
opposite. Consequential relief is one after the other, it necessarily implies
that if relief A is granted it can/ may be followed by another relief B, and
many a times they may accrue owing to two different but connected cause of
action.
On
the preliminary discussion above, it is clear that alternative relief a.k.a. conjunctive
relief must all be claimed together. On the other hand, consequential relief
are generally consequential upon the earlier raised plea, and until the earlier
plea is decided in favour, the relief which is consequential on such
adjudication will not accrue. Therefore, the cause of action differs in such
reliefs.
TEST * Mohd.
Khalil v. Mehboob Ali Mian [1948 SC]
The
main test under this provision is – the Cause of action must be the same; and
knowledge or due diligence as to the relief available (which could or ought to
have been claimed). And if the above are proved the bar of O2r2 will apply on
subsequent suit.
SEC.11 AND O2r2
Section
11 provides matter in issue in a latter suit as barred if decided by a former
court. O2r2 on the other hand, bars a remedy which ought and could have been
raised and pleaded in former court against the same COA.
* Suresh Kakker v.
Mahender Nath Kakkar [2008 Del. HC]
Rejection
of a plaint is Demurrer’s Claim i.e. dismissal on technical grounds and
therefore is not heard and finally decided. Therefore, no value for Sec. 11 or
O2r2.
O2r2
must be read together with Sec. 12 which
provides that where a plaintiff is precluded under the Code from further
instituting a suit, he shall be precluded from filing a fresh suit in respect
of such cause of action.
JOINDER OF CAUSE OF ACTION –
ORDER 2 RULE 4
The
parties are generally free to sue as many suits as cause of action arises. But
parties being the same and cause of action arising between the same parties,
they may join the two claims, but
only with the leave of the court, which is discretionary. Exception are named
in O2r4, where the Code itself provides that even after accruing from different
COA, the parties are free to join the cause of action for the recovery of
immovable property and plead within a same suit –
(a) Mesne
profits – right to possession accrues due to dispossession or wrongfully keeping
the entitled person out of the possession to the property (Cause of Action 1), whereas mesne profit accrues due to
wrongful gain from the same property held without the legal right to possess
(Cause of Action 2). The transaction
or series being the same, yet there are two COAs.
* Kunjan Nair v. Narayan Nair [2004 SC]
(b)
damages for breach of contract under which the
property or part thereof was held.
(c) claim
the relief of which is based on the same cause of action (yet consequential)
FOREIGH JUDGMENT – SECTION
13-14
Foreign Court-Sec. 2(5) – means
situated outside India or which is
not established by or under the Central Government. Foreign Judgment-Sec. 2(6) – means judgment of a foreign court.
S.13
– A foreign judgment shall serve as a conclusive proof as to any matter directly
adjudicated upon between the parties or between whom they or any of
them claims under the same title, except
(1) such foreign court was not competent to
try that issue.
(2) where not decided on merits of the case.
(3) judgment found inconsistent with any
international law.
(4) judgment causes an apparent failure of
justice.
(5) obtained by fraud.
(6)
in ignorance of any law in India.
Section
14 puts on mandatory obligation upon the Court that it shall presume
upon production of any document purporting to a copy of the foreign judgment,
that it was so passed by the foreign court and was pronounced by Court of
competent jurisdiction unless, contrary appears on the record, or the
adverse party proves want of jurisdiction of the foreign court.
Relevant
Sec. 2(5), 2(6), 13, 14 CPC
and Sec. 76, 86 I.E.Act (Objection
& Conclusive Proof)
Res
Judicata is a broad manifestation of Res Judicata, and triability is not barred
rather it is Rule of Evidence that any document purported to be certified copy (S.76 I.EAct) of the foreign judgment, he opposite party can object
on truth and genuineness of such document. But when Court is satisfied about
the veracity of such a document, it will establish conclusive proof of that
foreign judgment (S.86 I.E.Act) and
hereinafter the burden shifts on the other party to prove otherwise. The
opposite party may prove the any of the 6 exceptions provided under Sec.13 or
any other defense lawfully available.
ISSUES
(a)Shall
be a conclusive proof
The
certified copy of the foreign judgment once established as per the provision of
the Indian Evidence Act, will be a conclusive proof, meaning thereby,
party need not to lead any further evidence, and the opposite party is also restricted
from denying the judgment, and now the only defense available to the opposite
party is the exceptions provided under clause
(a) to (f) of Sec. 13 CPC. Even when any of the above exception is proved,
the foreign judgment is reduced from being a conclusive proof to just a piece
of relevant fact which needs other evidence to corroborate in order to prove
the case.
Foreign
Court may presume jurisdiction upon itself by –
(b)any
matter thereby directly adjudicated
Only
matter in issue raised/admitted/ rebutted/ adjudicated directly in the suit and
does not include Constructive judgment. Meaning thereby that there must
have been trial on the issue and it must be decided upon the merits of the
case.
(c) same parties
or between parties claiming under them or any of them.
(d) under
the same title
SECTION 44A
– Execution of Foreign Court’s money decree.
A Money Decree passed by a Foreign Court is
directly executable in India whole or part which is not unsatisfied. Sec. 44A
was brought in by Amendment Act, 1937.
Issues
(a)
Foreign Court – Sec. 2(5)
(b)
Money Decree – Explanation 2 provides decree in
which relief granted is a sum of money, but specifically excludes any charge,
fine, penalty or any arbitration award.
(c)
Reciprocating Territory – Explanation 1 any
territory which the Central Government may be notification in the official gazette
declare to be reciprocating territory.
(d)
District Court – such execution shall be filed
in before the District Court, alongwith a certified copy of the foreign
judgment as to the exact money value to be executed, or if a part is satisfied,
then a certificate drawn by that foreign court, providing the value satisfied
and remaining value which stands due.
(e) Sec.
13 – once the District Court is presented with the certified copy (S.76 IEA),
it has to make conclusive proof of the judgment (S.86 IEA), and here the only
defense available to the adverse party is the ground available u/S. 13(a) to
(f). if the adverse party proves any one of the ground, the foreign judgment
stands as merely an evidence and cannot be executed.
ORDER 1 – PARTIES TO THE SUIT
Parties
– Proper and Necessary.
Necessary
and Proper parties are both germane in deciding a suit. Proper party is party
interested in the subject matter of the suit but non-inclusion of a proper
party will not vitiate the trial or hinder in execution of the decree but
inclusion will always facilitate proper adjudication. On the other hand, a
necessary party is a pivotal to adjudication of the suit and non-inclusion of a
necessary party will leave the decree devoid of its full legal capacity as the
necessary party can stop the due execution of the decree. The same has been
derived from the 1992 SC judgment in the case of Ramesh Hira Chand v.
Municipal Corporation Greater Bombay and reiterated in 2004 in Balwant
N. Vishwamitra v. Yadav Sadashiv Mule (Dead) through L.R.
Two
Tests – (1) Party’s right or interest in reference to
the Matter in Issue is important to be decided; and (2) Party’s legal capacity
or legal connection to the subject matter in the suit & he/she will
obstruct execution of decree.
Illustration
Sub-tenancy – if lawful then Necessary
Party but if unlawful then only Proper Party.
Other
Necessary Party- all partners to the Partnership Firm, all Co-parcenors, all of
several beneficiaries, joint owners, joint tenants, etc.
NON-JOINDER
OF NECESSARY OR PROPER PARTY – Sec. 99 O1r9, O1r13
Sec. 99 provides that appeal shall not lie
only on the ground of non-joinder of parties, unless there affected merits of
the case.
O1r9 provides that on mis-joinder or
non-joinder of proper parties, no appeal shall lie.
But respective Proviso to the above provision provide that the mandates provided
shall not apply on the cases of non-joinder of necessary party.
O1r13
lastly provides that the objection of non-joinder or mis-joinder shall be taken
at the earliest possible opportunity, and in trial on or before settlement of
issues. Otherwise, parties have to plead for amendment of pleading, which not
as a matter of routine but cautiously is allowed as non-joinder of necessary
party will vitiate the trial and therefore, in the interest of justice,
necessary parties may be impleaded subject to cost.
JOINDER OF PARTIES
O1 r1 – O1 r2 -
Joinder of Plaintiffs and order for
separate trial.
O1 r3 – O1 r3A - Joinder of Defendants
and order for separate trial.
(1)
Cause of Action arising of same act or transaction or series of acts
or transactions be joined together in one trial; or
(2)
if they file a separate suit a common question of law or fact would
arise.
(O1r1
for many Plaintiffs; O1r3 for many
Defendants; and O1r1 & O1r3 for
many Plaintiff on one side and many Defendant on other side)
O1r2
Court deems that trial will embarrass or delay the trial – option – let
Plaintiffs to choose or order separate trials.
O1r3A
(1976 Amendment) Court deems embarrass or delay the trial –
order separate trial or order as may deem fit.
O1 r12 –
where more than one plaintiff or more than one defendant, as the case may be,
one or all may authorise other to appear, act or plead on their behalf. Such authorization
must be in writing and signed produced before the Court.
Mis-description
of Parties – O1 r10
(1) Suit in the name of wrong Plaintiff –
at any stage if bona fide mistake
allow amendment as to just terms.
(2) Court may strike or add parties – suo moto or on application of parties,
just order name of parties who ought not to be joined (strikeout), ought to
have been made a party (Necessary Party) or party who may be necessary in order
to enable the Court to effectually and completely (comprehensively) decide the
case, order amendment of parties.
(3) Incompetent parties not to be sued without
next friend.
(4) Where Defendant added, the parties may
order Plaintiff to amend the plaint as to make it proper with respect to the
added party.
(5)
New defendant added – limitation to be computed on the date service of summons upon
the new defendant.[Sec. 21 of Limitation Act, 1963]
REPRESENTATIVE
SUIT – O1 r8
Numerous person having same interest in one
suit – (a) one person may, with the permission of the Court sue or be
sued or defend on behalf of or for benefit if all persons so interested; (b) the
Court may order one person out of many to sue or be sued or defend on
behalf of or for benefit of all the persons so interested.
Notice of Motion – at Plaintiff’s expense
personal notice to all the persons so interested or where large number and
personal service not possible such public advertisement.
Any person so interested may apply to be
made a party to a suit.
No such suit shall be abandoned; withdrawn
or compromise, agreement or satisfaction can be entered by such person unless
the Court has given at Plaintiff’s expenses notice to all such persons
interested.
Court deems that the person representing
not proceeding with due diligence, may substitute any other person who is so
represented.
Decree under this provision shall be
binding upon all persons who were so represented.
Explanation
– For same interest in one suit need not establish that the same cause of
action arises in respect to or against all. Same Interest a broader term
than Cause of Action. Cause of action necessary mean violation of legal right,
whereas the same interest means that the person was having same legal relation
to the subject matter although it did not actually violate his right.
Illustration,
nuisance in a residential complex, Nuisance may be committed by any annoying
act done by a person, here all persons of the residential complex will have the
same legal relation to the subject matter and is sufficient to file a
representative suit, although it is not be questioned as to did it cause
nuisance to all the person of the complex.
Representative
Suit and Public Interest Litigation
In
a Representative Suit, all the person- be it numerous Plaintiffs or Defendants,
must have same interest to the subject matter, whereas Public Interest
Litigation on the other hand are pro-bono-publico.
Therefore, for PIL there need not be any relation of the Petitioner to subject
matter and he may be acting purely for a public cause without any locus standi in the case.
FRAME OF SUIT –
O2r1 – Frame of suit shall as far as
practicable be framed so as to afford ground for final decision upon all
subjects in dispute and to prevent further litigation concerning them.
JOINDER
OF CAUSE OF ACTION – O2 r3
There
are several cause of action, between jointly interested (Plaintiffs)
or jointly against (Defendants) may unite the cause of action under one
single suit. And when cause of action so joined, the jurisdiction shall be in
accordance to be the combined or aggregate value of the subject matters at the
time of institution of the suit.
4
possibilities – (1)Plaintiff and Defendant; (2) Plaintiffs and Defendant; (3) Plaintiffs
and Defendants; and (4) Plaintiff
and Defendants. This is called Multifarious
suit. [Hindi – Bahulayatawadi]
TEST – Examine
individual COA w.r.t. to all parties and see whether there is commonality of COA
against the defendant and on separate suit, will there be a same question of
law or fact arising from the same COA.
Where
joinder of COA embarrass or delay trial the Court may order separate trial or
make such order(s) as necessary – O2r6
O2 r7
– all objection of misjoinder of COA to be taken at earliest possible
opportunity and if there is a stage of settlement of issues, then on or before
settlement of issues. [there is no non-joinder of cause of actions]
ISSUE OF SERVICE OF SUMMONS –
O5
R.1 – Suit
duly instituted, summons be issued upon the Defendant to appear and answer the
claim and to file W.S. within 30 days. Provided, where Defendant appear and
admits, then no summons required. Also provided that where Defendant fails
within 30 days, time may be enlarged not later than 90 days from the date of
service. Summons state Defendant may appear – (a)appear in person; (b)through
duly instructed pleader; or (3)pleader accompanied person able to answer all
such questions. Every summon shall be signed by the judge and duly stamped.
R.2 – A
copy of the Plaint shall be annexed to the summon, otherwise not valid service.
R.3 – Court
if it deems necessary shall order any party to appear in person.
R.4 – No
party to appear in person, unless – (a) he resides within local limits of the
Court; or (b) within 50 miles or such a distance not more than 200 miles distance from Court
house, provided 5/6th of the total distance can be covered by any public
conveyance.
R.5 –
Summons to be either of – (a) settlement of issues; or (2)for final disposal,
provided in Court of Small Causes, the summons should always be of final
disposal.
R.6/7
– The summons to appear and answer shall order the defendant to produce all
documents or copies as required u/O7r1A, in his possession on which he intend
to rely. Also, if the summons is of final disposal, then Defendant to produce all
witness upon whose evidence he intends to rely.
SERVICE OF SUMMONS – R.8–30
Modes
of Service – (a)R.9-14-personal service of summon; (b)R.15-extended service; or
(c)R.20-substituted service.
PERSONAL
SUMMON – O5r9-14
R.9
Where the defendant resides within the local limits of the Court or his
authorised agent (to accept summons), the summons shall be served by proper
officer or one of his subordinate or courier service as approved by the Court.
Service by proper officer, courier service approved by the High Court,
registered post acknowledgment due, any other means of transmission of
documents (including fax message or electronic mail services), and all such
service is made at the expense of the Plaintiff. Where the acknowledgment of
the summons is received back or postal article with a message as “not
received”, the Court shall deem it to be duly served.
R.9A DASTI SUMMON
– Plaintiff personally serve a copy upon the Defendant with receiving on one
copy of such Plaint, if still such summons not served or refused, the Court shall
on application re-issue summons by the process of the Court.
Mode
of Service – signed and sealed by the Judge. Where several defendants on each
and every defendan.t Wherever practicable, summons be served upon defendant in
person unless his agent is authorized.
EXTENDED
SERVICE – O5r15
Where
defendant is absent from his residence, service be made to any adult member of
the family – male or female who is residing with him. [A servant is not a
member of the family]. Any irregularity is not material irregularity.
Any
person who is being served shall sign the original acknowledgment slip.
Where
the defendant cannot be found or refuses to accept the summons, the serving
officer shall affix a copy of the summons on the outer door or any conspicuous
part of the house in which defendant resides, business or work. And endorse report
thereon or annexed stating that he has so affixed a copy on AFFIDAVIT [R.17].
The serving officer shall state the manner, time and place of service on
AFFIDAVIT [R.18]. Where serving officer have not been verified on AFFIDAVIT and
may if has been so necessary EXAMINE ON OATH, or cause him to be examined by
any other Court [R.19].
SUBSTITUTED
SERVICE – O5r20
Court
to affix a copy of summon in the conspicuous part of Court premises or upon
some conspicuous part of property of defendant where he resides, business or work,
if it Court is satisfied that – (a)defendant has been keeping out of the way of
service; or (b)any other reason that the defendant cannot be served. The Court
may even order service by an advertisement in the newspaper, the newspaper
shall be daily newspaper circulating in the locality in which the defendant is
residing, work or business [R.20(1A)].
Substituted service has the same effect as of personal service.
R.21
– Defendant residing within jurisdiction of another Court. The Court where suit
is filed may issue summon to the other Court (except the High Court) within
whose jurisdiction the Defendant resides by one of its officer or by post or
courier service or fax message or electronic mail service or other means as may
be provided by the rules of High Court.
R.23
– The Court receiving such summon
U/R21 shall proceed as if summon is issued by it.
R.24
– Where the defendant is in prison, the summon be served by any method provided
above to the Officer in Charge of the Prison.
R.25
– Where defendant resides beyond India – summons be served to his address where
he is residing.
R.27
– Officer or Authority – to the head of the Officer.
R.28
– Service on soldiers, sailor or airmen – to the Commanding Officer.
SUBSTITUTION OF LETTER FOR
SUMMONS – R.30
The
Court may substitute a summon by a letter signed and sealed by the Judge where
the Defendant is entitled as a mark of consideration for his position.
Such letter shall contain all the particulars required to be stated in summon
and shall be as summon in all respect as summon. And such summon shall be sent
by post or special messenger selected by the Court or in other means as the
Court may deem fit and where the defendant has an agent authorized, shall be
delivered or sent to such agent.
RULES
OF PLEADINGS GENERALLY – ORDER 6
Pleadings
mean Plaint and Written Statement called Foundation Documents, and it
includes Replication, Rejoinder, Counter Claim or Set-off because all are part
and parcel of same scheme of Plaint & Written Statement [R.1].
Pleading
to state only material facts and not evidence. They must be paragraphed, each
allegation paragraphed separately and numbered consecutively. And also numbers,
dates and sums to be in figure as well as words [R.2].
Form
of Pleadings as in Appendix A, and is no format, than as like character
[R.3].
Allegation
of misrepresentation, fraud, breach of trust, wilful deceit or undue influence –
not whole incident be narrated, but only particulars [R.4].
Condition
precedent must be distinctly stated in the Pleadings, if not then deemed as if
non-existent [R.6].
Departure
from the Pleadings is not allowed unless amendment u/O6r17 [R.7].
Denial
of contract does not mean challenging the legality of the contract, therefore,
if legality of contract not challenged, later no such allegation will be
allowed [R.8].
Where
contents of documents are material, whole document need not be pleaded, rather
only effect or inferences, and document be attached [R.9].
Malice,
knowledge, etc. alleged, whole particular need not be stated, only the fact of
that state shall be pleaded [R.10].
Where
notice is alleged, whole need not be pleaded, only fact that notice was served
is enough [R.11].
Implied
contract or relation through letters, plead only fact, rest may be annexed
[R.12].
Facts
which the Court needs to presume as related to Presumption of Law, mere fact
may be pleaded [R.13].
Pleading
to signed by the party and his pleader, or if absent, signed by duly
authorized person[R.14].
R.14A
– Registered Address – The official
address which the either party submits for service of summons, notices, etc.
R.15
– Verification of Pleadings Every Pleading shall be verified and signed at the
foot, stating that the person making to be acquainted with the facts of the
case. That the person verified of his own knowledge and what he verifies is
true to his knowledge or on the information received. Verification must state
the person signing it, and the date of such verification. An affidavit must be
attached alongwith such pleading [Salem Advocates Bar Association, Tamil
Nadu v. U.O.I (2005 SC)].
O6r16
– Striking-out Pleading – The Court
may at any stage of the suit strike out or amend any matter in the pleading –
(a)which are unnecessary, scandalous,
frivolous or vexatious; or
(b)tend to prejudice, embarrass or delay
the fair trial; or
(c)which
otherwise is abuse of power of the Court.
O6r17
– Amendment of Pleadings
Court
may at any stage of the trial allow either party to alter or amendment of
pleading, subject to terms, which are necessary for purpose of determining real
questions in controversy between the parties. Provided, no Application be allowed after the trial, unless the
Court is of considered view that such party even without due diligence could not
have raised before the trial.
Test – Real Controversy Test i.e.
effective and final disposal of the suit, the burden of proof is on the Applicant
and the Court is liberal if the test is passed. In the test 2 things needs to be examined – (1)Cause of Action; and (2)Balance
of interest between the parties.
Alteration
or amendment can be of – Cause Of Action, Matter in Issue or Relief.
COA
– not materially amendable, only can substantiate or clear.
MiI
– always possible, but to further the final and effective disposal. Therefore,
the merits of the Application w.r.t. MiI and COA, shall be examined, and any
inconsistent pleading opposite to the one already pleaded shall never be
allowed.
Relief
– relief can always be amended, subject to O2r2 as well as provisions of the
Specific Relief Act.
Some guidelines –
(a) bonafide
omission.
(b) amendment necessary due to subsequent
change of circumstances.
(c) amendment of MiI or Relief, general
tilt is towards allowing the amendment.
(d) irreparable losses if not granted and
the right is clearly accrued upon the Applicant.
(e) merits of application shall be dealt
and not that of the case.
(f) allowing or rejecting the application
shall be a reasoned order.
(g) Against the order on application of
above provision, no Appeal shall lie, only Revision is available.
(h) Amendment under this provision will
relate back to the original date of filing.
(i) totally inconsistent or mutually destructive
pleading shall not be allowed, also rule of estoppel will apply.
(j) Amendment to the law – substantive,
the amendment of pleadings may be necessary.
Procedural,
they are not pleaded, and it normally applies retrospectively, therefore,
amendment under this provision will usually not be necessary.
(k)
Amendment can be even made by the Appellate Court.
* Ravajeetu Builders & Developers v.
Narayanswamy & Sons. [2009 SC]
Real
Controversy Test and Balance of interest.
O6r18
– If amendment or alteration ordered by the Court within a time period, or if
no time, then 14 days, the party fails to make such amendment, he/she shall not
be allowed to amend later than so time so fixed or provided, unless extended by
the Court.
PLAINT – O7
Plaint
is a written document, whereas a suit is the entire proceeding before the Trial
Court and beyond i.e. Appeal, Revision, etc., which are extension of suit.
Plaint is merely a document, containing all the averments, allegations, COA and
relief claimed by the Plaintiff for violation of his civil legal right.
Plaint
to contain certain particulars – (a) to (i) [R.1]
Plaint
for recovery of money shall state precise amount be claimed, except where claim
is mesne profit or sum due from
unsettled accounts [R.2].
Plaint
subject matter being immovable property, description sufficient to identify the
property, by local maps, boundaries, numbers, figures, or govt. record of
settlement [R.3].
Plaint
in Representative Character – must state the actual interest in the subject
matter, and steps taken to file in representative character [R.4].
Defendant’s
interest or liability to be shown in the Plaint [R.5].
Plaint
barred by limitation law, ground of exemption in the favour must be pleaded
separately [R.6].
Relief
is to be specifically stated either claimed in specific or in the alternative
and not ask general or other relief, which the Court may always be given as the
Court may deem fit [R.7]. Also, relief claimed on separate grounds, or based
upon separate COA, must be separately and specifically prayed [R.8].
O7r9
– The Court when admitting the Plaint, shall order issue of summons
u/O9r5 upon the Defendant and in this respect the Plaintiff shall file process
fees [i.e. requisite fees for service of summons upon the defendant(s)]
alongwith as many copies as there are Defendants, within 7 days from the
date of such order.
RETURN OF PLAINT – O7r10,10A,10B
and O43r1(a)
O43 R1(a)
– The order for return of Plaint is an appealable order.
R.10
– At any stage Court may return Plaint for presenting before the Proper Court
(subject to Rule 10A-10B). Therefore, the return of plaint is on the ground
only of no jurisdiction of the Court to try the suit. Hence, even Court of
Appeal or Revision may when setting aside the decree order return of plaint to
the proper court [Section 21 - lack
of jurisdiction + inherent failure of justice].
Here,
when returning the plaint the Court must endorse the date of its
presentation and return, name of the party presenting and reasons
for such return [bonafide litigation Section
14 of Limitation Act, 1963].
R.10A
– Where the Defendant appears and prays to return, the Court must give notice
to the Plaintiff [Rule10A(1)].
The
Court when returning the plaint on application by plaintiff, may – (a)specify
Court in which he proposes to present the plaint; (b)praying that the present
Court must fix such date before such Court; and (c)requesting that notice of
the date so fixed may be given to him & to the defendant [Rule10A(2)].
Present
Court may allow the above (b) & (c) [Rule10A(2)]
and such other Court not bound to hear at such date of hearing, rather some
other date [Rule10A(3)].
R.10B
– Appeal against order of return is rejected, the Plaintiff may file fresh suit
at proper court, but subject to Limitation Act 1963.
Therefore,
after Return Plaintiff has 3 remedies – (1)Appeal u/O.43r1(a); (2)Application
u/O.7r10A(2); or (3)Fresh Suit
REJECTION OF PLAINT – O7r11-13
6
cases are provided for Rejection of Plaint –
(a)
non-disclosure of COA
Non-Disclosure
of COA & Non-Proving of COA
Non-disclosure
is non clarity in disclosing the COA i.e. the Plaint does not reveal or
disclose the COA, and therefore is a ground for rejection of the Plaint,
subject to ‘in the interest of justice’ clause. Rejection is non-disclosure, so
technically it is deemed as if no suit was ever instituted. The Court will
reject a plaint for non-disclosure of COA u/O7r11, and since it is not on merits of the case, Res Judicata u/S. 11 will not apply; also, O7r13 enables parties to file a fresh
suit if rejected u/O7r11. WHEREAS,
Non-Proving the COA is failure on merits of the case to establish once claim
against the COA prayed. This is dismissal on merits and res judicata applies
upon such decision.
* Mayar H.K. Ltd. V. Owner & Parties,
Vessel M.V. Fortune Express [2006 SC]
Owing
to the above steps, it is more in the interest of justice that the Court may
not reject the Plaint for non-disclosure of COA rather make objection and allow
amendment.
* Rup Lal Sathi v. Nacchattar Singh Gill [1982 SC]
* Popat Kotecha Properties v. SBI Staff Association [2005 SC]
Cause
of Action is the pivot of every suit and therefore the Court need not be harsh
in case of non-disclosure of COA, rather it may itself examine the COA, and in
order of it, may examine the whole Plaint as a document to bring to surface the
COA, and can even examine the Plaintiff’s witness (but orally and without
oath). But the Written Statement or the defence witness shall not be
examined at this stage.
(b) relief
claimed is undervalued
(c)
relief claimed is valued correctly, but not properly stamped – non-payment of appropriate
court fee.
PROVIDED,
the Court may allow above correction within specified
time shall not be extended, unless
the Plaintiff afford sufficient reason that he was prevented by any cause of
exception nature and the refusal to enlarge time will grave injustice. [S. 148(enlargement of time)/149(Court fee on any document under
this Code)/ 151(inherent power of
the Court)] anytime or period granted BY THE COURT to
do something under the Code, Court may grant time but maximum is 30 days. And
beyond 30 days as granted under Sec. 148 and 149, the Plaintiff/ parties can
still seek further time u/S. 151
inherent power of the Court (for the ends of justice or to avoid abuse of
power).
U/S. 149, the Court Fee paid at any
subsequent date with the permission of the Court is deemed as if it was paid at
the First Instance (Legal Fiction) and the purpose is to remove the rigour
of the Limitation Act, 1963 as held in Buta
Singh v. UOI [1995 SC].
(d)
suit appears in the statement in the Plaint to be barred by any law.
Claim
of rejection under this provision is a Demurrer’s
Claim, i.e. adduced from the “statement made in the Plaint”. The
parties are not allowed to lead or plead any evidence. The onus is to prove the
limitation of law based upon the express contents stated in the Plaint, e.g.
Limitation Act, O2r2, Sec. 80, Sec. 11, Sec. 88, O22r9, O23r3, etc.
* Prem Lata Nahata & Anrs. V. Chandi
Prasad Sikaria [2007 SC]
The
Court distinguished between rejection and defect. For provision (d) it must be
proved that the suit on the face of it i.e. “where the suit appears from the
statement in the Plaint” is barred by provision of this Code or any law.
Therefore, if the claim needs to be dealt in by going into the merits, it will
be done in the trial and therefore, will not fall under rejection under O2r6(d).
(e) not
filed in duplicate – Sec. 26/ O4 r1-2
– presented before the proper officer (filing counter) in duplicate, affidavit,
signed, subject to all provision u/O 5
& 6.
(f) where
plaintiff failed to comply with provisions of O7r9 – as many copies as
Defendant and summons order issued u/O7
r5, and requisite fee for summons is to be paid ( i.e. process fees for
service) (within 7 days).
Note: The provision of Order 7 and Order 9 needs
to be looked in totality and a strong nexus must be built between the two.
WRITTEN STATEMENT, COUNTER
CLAIM & SET-OFF – ORDER 8
R.1 – Written
Statement to be filed within 30 days, provided if fails, Court may for reasons
to be recorded in writing allow any other date, not beyond 90 days, therefore
it is 30 + 60 days in total. Further, time may be granted u/O.8r10 ‘make such order in relation to the suit as it thinks fit’
[Salem Advocates Case].
R.9
– Subsequent Pleadings
No pleading subsequent to the Written
Statement of a defendant shall be presented except by leave of the Court and
upon such terms as the Court may impose, but the Court may require a
written statement or additional written statement from any person and may fix
time not more than 30 days. Two exceptions still exist to above rule that the
Defendant can still base defense of – (1) Counter-claim; & (2) Set-off.
THEORY OF ASSUMED TRAVERSE where
Replication filed, the theory of deemed Admission is not applicable on the
Plaintiff rather, it shall be assumed otherwise, that the Plaintiff rebuts the
claim set out in Replication.
O8 R10
– provides that where Written Statement is required u/R.1 or where subsequent
pleadings is required under u/R.9, but the Defendants fails the Court shall
pronounce judgment against him or make such order in relation to the suit as it
thinks fit and on the pronouncement of the judgment a decree shall be drawn up.
O8r5
is an enabling provision i.e. “…it will be lawful for the Court to pass…”,
whereas O8r10 is actual authority
i.e. “…the Court shall pass a judgment or any other order…”. O8r10 is available in 3 cases – (a)no
W.S. u/O8r1 or Replication u/O8r9; (b)exparte judgment and decree
on admission or deemed admission u/O8r5(2);
and (c)exparte Decree on non-appearance of defendant on first date of hearing
(W.S. filed or not) u/O9r6(1)(a).
{Exparte
Decree - remedy – setside O9r13 or Appeal S.96(2). When setside, Application to
be made within 30 days Art. 123 of Limitation Act, 1963, but since it is
application therefore remedy of Sec. 5 Limitation Act is also available,
therefore, the Applicant have to file 2 separate applications – (1) Application
for Condonation of Delay u/s.5 Limitation Act (made the other Application is
filed after 30 days); and (2) Application for Setting aside exparte Decree u/O9r13
* Malkiat Singh v. Joginder Singh [1997 SC]}
R.1A
– Defendant to produce all relevant documents which he ought to produce, and if
he does not possess, then a statement as to in whose possession the document
is. The consequences of this rule is that the Defendant cannot later in the
trial use such documents as evidence which he did not produce. However, the Section
159 India Evidence Act provides 2 exceptions – (1) document produced for
cross-examination of Plaintiff’s witness; and (2) documents to refresh the memory
of any witness. [also O7r14 is attracted here].
R.2
– The Defendant to plead as a ground of defense –
(a) that suit is not maintainable, OR that the transaction is void or
voidable in point of law.
AND
(b)
all such ground of defense, which if not raised, would take plaintiff by
surprise, OR would raise issue of
fact not arising from Plaint e.g. fraud, limitation, fact showing illegality.
DENIAL
– R.3/4/5
Denial shall be specific to each and every
averment, numbered consecutively after Preliminary Submission, except damages.
Evasive
Denial – evading from denying goes against the
Defendant and is considered as Deemed
Admission.
Admission is imputed in three
cases – (a) silent; (2) evasive denial – which
is not denying with necessary implications, called Deemed Admission; and (3) admitted specifically.
O8r5
CPC and Sec. 58 Indian Evidence Act – The
Court has the discretion to pass judgment in above cases unless Court requires
the Plaintiff to prove. Also if Defendant does not enter any pleading at all,
the Court has the discretion to pass judgment. O8r5 and S.58 I.E.Act has almost same wordings, that the parties
need not proved the facts which are admitted, unless Court still order the
parties to prove.
But not against disabled, and the Court
shall even make sure that the Defendant is or is not in need of pleader.
However,
if a judgment is pronounced under this provision a decree shall follow.
In
the above cases, nexus is important between O8r5 / O8r10 / O9r6(1)(a); i.e. to say that where the party
appears but does not replies (silent) or replies evasively or even
chooses not to file a written statement even after order of the Court, the
Court shall hear the matter and on reason being recorded, may pass adequate
order as provided u/O8r10 or
O9r6(1)(a). The consequence of this being that the proceedings shall be
order ex-parte (even when Defendant is actually present).
Two remedies are available in above cases
of exparte decree - (1) setting aside the decree; or (2) Appeal.
Article
123 of Limitation Act, 1963 provides the limitation period for setting aside
ex-parte decree is 30 days, otherwise, the other remedy
available is Appeal u/S. 96(2).
[Yet since setting aside ex-parte decree is
by Application relief u/S. 5 of Limitation Act, 1963 is available i.e.
Condonation of Delay]
Note: The provision of Order 8 and Order 9 needs
to be looked in totality and a strong nexus must be built between the two.
SET-OFF – R.6
Set-off can be explained by reading its
ingredients/ essentials –
(a) Original Suit is/ Plaintiff claim
for money (ascertained or unascertained);
(b) against which Defendant claims
ascertained sum of money legally recoverable against plaintiff;
(c) the defendant may claim at or before
the first hearing and not afterwards, unless permitted by the Court;
(d) both Plaintiff and Defendant fills
the same character; and
(e)
not exceeding pecuniary jurisdiction of the Court.
Illustrations,
Set-off
can be Legal (O6r6) and Equitable
(O20r19) [use of word “setoff admissible under O6r6 or otherwise”]. This
otherwise is a concept developed in English Equity Courts, but in India
no provision except O20r19 points to it. The provision above, empower the Court
to order set-off where although not covered under O6r6, still in the interest
of justice, set-off is required on the ground of Equity. The concept developed in Britain in English Equity Court
and in India is implied under O20R19 and interpreted in judicial decisions.
* Clarke v. Rathnavellu [1865 PC]
* U.O.I. v. Karamchand Thapar &
Brothers [2004 SC]
R.C. Lahoti, J.
held –
(a) the original suit shall be money suit
and it can be ascertained or unascertained amount.
(b) Equitable set off can be claimed for
both ascertained or unascertained amount.
(c) the claim for equitable setoff should
arise from the same transaction.
(d) for legal setoff court fee is payable,
but for equitable setoff Court fee is not payable.
(e)
Equitable is on the discretion of the Court whereas Setoff if proved is a
matter of right.
COUNTER CLAIM – R.6A-6G
Apart
from Defense and Set-off the Defendant may set out Counter Claim along with the
Defense. Counter Claim is any claim set out of COA apart from main suit, on
which a separate suit will be maintainable, the rider being that the Counter
Claim arising before or after the main suit, but must be claimed (arisen)
before filing the defense and after W.S. filed, no amendment allowed to set out
counter claim. Counter Claim is a separate claim independent of main suit,
therefore, rules of pleading like Plaint and W.S. will be reversed on the
parties and apply. Also, the Counter Claim is subjected to jurisdiction of the
Court [R.6A]. The Counter Claim shall be separate stated [R.6B]. Also, if the
Plaintiff object that such Counter Claim be separate filed as a fresh suit, he
may file an Application on the merits of which the Court shall pass appropriate
order [R.6C]. The Counter Claim is separate therefore, if the original suit is stayed,
discontinued or dismissed, yet the Counter Claim nevertheless be proceeded with
[R.6D]. The original plaintiff is like defendant for any counter claim,
therefore, if he fails to reply or does not denies specifically, it will deemed
as admitted and judgment accordingly may be made [R.6E]. Relief established in
setoff or counter claim, shall be adjusted to the original suit [R.6F]. And the
rules of Written Statement are applicable on the Plaintiff in replying to the
Counter Claim [R.6G].
Case
Laws – Defendant failing to file a W.S. cannot later apply u/O9r13 to file
counter claim * Ramesh Chand Ardwakia v. Anl Panjawani [2003 SC].
–
If Plaintiff dies and is substituted by L.R. in the main suit, then a separate application
for substitution in Counter Claim is not required * Organic Insulations v. Indian Rayon Corpn.
Ltd. [2003 SC]
–
If Counter Claim exists between the Co-defendant or Proforma Defendant and materially
against Plaintiff, then can be claimed, but if only against Co-defendant or
Proforma Defendant and only incidentally against the Plaintiff, then it
cannot be claimed. * Rohit Singh & Ors. v.
State of Bihar (now Jharkhand) [2006 SC].
O8r7
– Separate defence, setoff or counter claim shall as far as possible be stated
separately and distinctively.
O8r8
– Any new ground of defence or setoff or counterclaim arising after the
presentation of suit shall be pleaded in the written statement.
APPEARANCE OF PARTIES AND
CONSEQUENCES OF NON-APPEARANCE – O9
O9r1
- On date as appearing in the summons, the Defendant must be present in person
or through pleader, and then shall be heard unless adjournment to a future date
fixed.
O9r2
– Defendant absent and proved O7r9
not complied with (summons not served). The Court may – (1)reject the Plaint O7r11(f); or (2) dismiss the suit for
non-prosecution by the Plaintiff.
Provided,
the Court shall not dismiss even after non-summoning the Defendant appears.
Also,
the Court must not be rigid in rejecting or dismissing the suit, and may allow
adjournment in the interest of justice.
O9r3
– Where neither party appears suit be dismissed for non-prosecution. [Not
always- Court need not be rigid.]
O9r4
– Where suit dismissed as in under above Rule 2 or 3, the Plaintiff may – (1)
file fresh suit [subject to Law of Limitation]; or (2) move an Application for
setting aside dismissal order (within 30 days) showing just reason for
non-appearance.
O9r5
– Original summons returned, party to file fresh summons within 7 days and if
not , then suit may be dismissed, unless – (1)plaintiff failed to find
residence after best efforts; (2)defendant is avoiding service of process;
& (3) sufficient cause.
Suit dismissed under O9r5, the
Plaintiff may file fresh suit (subject to limitation act).
O9r6
– Plaintiff appears but Defendant do not, the Court may –
(a)summons were duly served but defendant
fails to appear – may order ex-parte.
(b)summons not duly served – order fresh
summons and adjourn.
(c)summons served but not in due time –
order fresh summons and adjourn;
AND
w.r.t. (b) & (c) Court shall order the Plaintiff to pay the costs
occasioned by postponement.
O9r7
– The Defendant may appear on the next hearing and on proving reasonable ground
for previous non-appearance, the Court may set aside ex-parte order.
O9r8
– Defendant appears but Plaintiff does not – the court may (1)dismiss for
non-prosecution; (2)if Defendant admits whole, decree in favour of Plaintiff
against whole.; or (3) Defendant admits part, order the part admitted.
O9r9
– suit dismissed under O9r8 wholly or partly, the Plaintiff barred from
bringing a fresh suit, may appeal or apply to set aside after due reason are
showed for previous absence.
O9
R13 – SETTING ASIDE EXPARTE DECREE
Defendant does not appear, and ex-parte
decree is passed.
Defendant may apply to set aside the decree
provided he proves – (1) summons were not duly served; or (2)sufficient reason
afforded for non-appearance + subject to cost (Court may set aside).
Article
123 of Limitation Act, 1963 provides the limitation period for setting aside
ex-parte decree is 30 days, otherwise, the other remedy
available is Appeal u/S. 96(2).
EXAMINATION OF PARTIES-O10 /
ISSUES-O14 / DISPOSAL AT FIRST HEARING-O15 / ADR-S.89/O10A,1B,1C.
SETTLEMENT OF ISSUES – O14
R.1 – Material
Preposition of fact or of law affirmed by one and denied by other is an Issue. Material Preposition which a
Plaintiff must raise to show his right to claim and the Defendant must raise to
constitute his defence. The issues can be – (1)of fact; or (2) of law, but
actually it is of law and fact both (mostly raised to the initial stages like
R.J., etc). And Each and every material proposition affirmed by one and denied
by other shall constitute a separate issue. Issues are framed at the first
hearing of the suit, where the Court shall examine the Plaint, Written
Statement, from examination of u/O10r2 and after hearing parties or their
pleader, such material preposition on which they are at variance.
R.2 – Court
shall pronounce judgment on all issues, except preliminary issues, i.e., (1)jurisdiction
of the Court; & (2)a bar to the suit created by law for the time being in
force.
R.3 – Court
shall frame issues on – (a)allegations made by the parties on oath or person
present on their behalf in the Court or their pleaders; (b)allegations made in
the pleading or in answers to the interrogatories delivered in the suit; &
(c)the contents of documents produced by either party.
R.4 – Court
where deems necessary to examine examination of some person not before the
Court or any without inspection of any document, may adjourn the framing of
issues, not more than 7 days and
compel such person to be present or such document to be presented before the
Court.
R.5 – The
Court has the power to – (a)to amend or add any issue which it deems necessary
for determining the matter in controversy before passing a decree; or (b)strike
out any issue which appear to it to be wrongly framed or introduced.
R.6 – FRIENDLY SUIT – Where the parties to a
suit agree as to a question of fact or of law, may frame such an issue and agree
in writing that such shall be decided by the Court and be binding upon them.
Such issue in finding in affirmative or in negative for the following – (a)a
sum of money specified in the agreement; (b)some property specified in the
agreement; or (c)one or more parties shall do or abstain from doing some
particular act specified in the agreement.
R.7 – If
the Court deem it fit to pronounce the judgment on issue submitted to it under
above Rule, it shall record and try the issue and state its finding or decision
thereon in the same manner.
EXAMINATION OF PARTIES – O10
R.1 – Record of admission and denial on the
first date of hearing such allegations as are made in the Plaint or the Written
Statement. Such admission or denial shall be ascertained from the party or
their pleader.
R.2 – On
first hearing the Court – (a) shall examine any party who can elucidate the matter
in controversy so as to bring out the real controversy; and (b) may examine any
person, able to answer any material question relating to the suit,
R.3 – The
Judge shall record the substance of the examination in writing.
R.4 – If
the pleader or any person accompanying the pleader refuses or is unable to answer
any material question to the suit, the Court may postpone the hearing for any
future date not later than seven days, and compel any person who is able to answer
such question to be present on such date.
ALTERNATIVE DISPUTE RESOLUTION
– SEC. 89 & O10 R. 1A / 1B / 1C
R.1A
– After recording admission and denial, the Court shall direct the parties to opt for any mode of settlement outside
the Court available u/S. 89. And on the option of the parties, the Court may
fix a date of appearance before such forum or authority as may be opted by the
party.
Sec. 89
– After admission and denial but before settlement of issue, the Court shall
formulate the terms of settlement and give the parties for their observations and after receiving
the observations of the parties, the Court may reformulate the terms of
possible settlement and refer the same for – (a)arbitration; (b)conciliation;
(c)judicial settlement including settlement through Lok Adalat; or
(d)mediation.
R.1B
– The parties shall appear before Conciliatory forum or authority for
settlement of suit outside Court.
R.1C
– Where suit referred as u/R1A and the Conciliatory forum or authority is
satisfied that it would not be in interest of justice to proceed with the
matter (failure of ADR method), the matter shall again be referred to the Court
on the date fixed by it.
DISCOVERY AND INSPECTION – O11
Application
for Discovery by Interrogatories (R.1) or Discovery of Documents (R.12) can be
made to the Court for the purpose to be decided within 7 days. Each party can
only submit one set of interrogatories, each to be answered by party whose name
shall appear at the bottom. Interrogatories are to be answered within 10 days
from such delivery of interrogatories by way of Affidavit, against which no
exception is allowed, however, if any party objects to any interrogatory as
scandalous or irrelevant or not exhibited as bonafide or any privilege is
prayed shall be written in the affidavit.
Documents
prayed against a party must give notice to the Applicant of any day for
inspection of such document within 10 days. Any objection, if any, will be
prayed before the Court. And non-compliance shall be reported to the Court
which may order discovery of document or exempt if it falls within the matters
of State.
And
this Order applies to minor parties and their Next-Friend/ Guardian in toto.
DISPOSAL AT FIRST HEARING – O15
R.1 – Where
it appears that the parties at not at issue of law or of fact, the Court may at
once pronounce judgment.
R.2 – One
of several defendants, and issue not against one defendant, the Court may at
once pronounce judgment upon which a decree shall follow, and shall proceed
with the suit w.r.t. other defendants.
SUMMONS CAN BE – (1) SETTLEMENT
OF ISSUES; & (2) FINAL DISOSAL OF THE CASE.
R.3 – Issue
framed and the Court is of the view that no further evidence or argument is
required, the Court may pronounce judgment at once provided no injustice will
result, irrespective of the fact that the summons were issued was for settlement
of issues. VICE-A-VERSA, where the summons were issued for final disposal of
the suit, but where the finding is not sufficient, the Court shall fix a date
for the production of such further evidence, or for further argument.
R.4 – Summons
were for final disposal, and either party fails to produce evidence, the Court
may proceed to pronounce judgment at once, or it may adjourn the matter for any
future date.
INTERPLEADER SUIT – SECTION 88,
O35
Two
person claim adversely any right to (1)debt, (2)sum of money or (3)property-
movable or immovable, from another person, such other claims nothing but lawful
charges or cost and is ready to deliver the subject matter to its rightful
owner, may file a suit against all the claimants for the purpose of determining
as to whom does the property vests and claim indemnity for himself. Provided, the Court shall not entertain
any such suit, if there is any other more comprehensive suit (suit in which
rights of all the parties may be effectively decided) pending between the same
parties.
O35 r1
– Interpleader shall plead- (1)no right other lawful charges or costs and is
ready and willing to return the subject matter to its rightful owner; (2)there
exists adverse party claiming against each other; & (3)he is not in
collusion with any of the party.
O35r2
– Subject matter be paid in the Court if possible or be placed in the custody
of the Court as the Court may order
O35r4 –
Procedure at First Hearing
The
Plaintiff may be discharged from all liabilities after payment of lawful
charges and one of the Defendant be made Plaintiff or if the Court deem fit
proper order retaining all the parties with record of reasons.
On
Admissions, may adjudicate the case, or if not possible may frames issues
between Plaintiff or Defendant or may add Plaintiff alongwith original
Plaintiff (i.e. Interpleader), and shall proceed trial in ordinary manner.
Agents and Tenant cannot sue
their Principal or Landlord as interpleader – O35 r5. Except,
where the agent of tenant makes their Principal or landlord interplead with any
3rd person who himself derives his authority from such principal or
landlord.
Charges
of the Interpleader are paid as a charge upon the subject matter or any other
effectual remedy.
INTEREST AND COST – SEC. 34
&
SEC. 35/ 35A/ 35B – ORDER 20A & 25
S.34
– Interest can be three –
(1) Prior to filing of the suit, i.e., from
the date of COA to the date of filing – it will be as stipulated between the
parties or as per mercantile usage or as per Negotiable Instruments.
(2) Interest pendente lite i.e. during the pendency of the suit, meaning from
the date of filing till the date of decree – it will be as per the contract
between the parties or if no contract then reasonable interest.
(3)
Interest from date of decree till payment i.e. future or further interest – it
will be rate not exceeding 6 percent, or as per term contracted or the rate at
which Nationalized Bank lend money.
Sec. 35
- The Court has the discretion to impose cost of and incident to all
suits and full power to determine – (1) by whom; (2) out of what property;
(3) what extent; and (4) all directions in regard to above 3. The discretion to
impose cost is of effected by the fact that the Court did not had the
jurisdiction to try the suit.
Where
the Court directs that cost shall not follow, it has to record reason in
writing.
Therefore,
the Court is not duty bound to give reason as to on what basis and by what
criteria the Court is imposing cost of a particular value, instead, the Court is
duty bound to make a speaking order where it dispenses from imposing cost.
Sec.
35A – Compensatory costs in respect of false or
vexatious claims or defense.
* Such a compensatory cost can be imposed
in any suit or any proceeding including execution proceeding but excludes
Appeal or Revision, for any false or vexatious claim or defense made,
disallowed, abandoned or withdrawn.
* Amount shall not exceed `3000.
* Such a Civil liability does not exempt
the person from any criminal liability.
*
Such a civil liability does not do away the person from any subsequent suit for
damages or compensation.
Sec.
35B – Cost for causing delay
* If any person fails to appear or seeks
adjournment on the fixed date of hearing, the Court may subject him to cost;
and such a Cost must be reasonable enough to reimburse the other party in
expenses of attending the Court on that date of hearing, and shall be payable
on that or the next date of hearing so fixed.
*
The cost under this provision if paid shall not be included in the cost at the
final disposal, but if it is unpaid, then a separate decree of that amount and
name and address of the person by whom payable and shall be duly executed.
ORDER XXA –
Specific heads given as to expenditure incurred of notice, summons, other
notice (where summons not allowed by Court), tying, writing, printing or
pleadings filed, charges on inspection, expenditure on producing witness, in
appeal, charges for obtaining decree. The award of costs under this rule shall
be in accordance with such rules as the High Court may make in this behalf.
ORDER
XXV – SECURITY FOR COST
COMMISSIONS – SECTION 75-78 /
ORDER 26
Commission may be issued – Sec. 75 –
(a)to examine any person;
(b)to make a local investigation
(c)to examine or adjust accounts; or
(d)to make a partition
(e)to conduct sale of property-subject to
speedy and natural decay and is in the custody of the Court
(f)to
perform any ministerial act.
Sec. 76
– Commission to another Court can be issued even beyond jurisdiction not being
High Court for any of the above purpose. The Court receiving a commission shall
duly execute it and return or as for is provided in the commission.
Sec. 77
– in lieu of issuing commission the Court may issue a letter of request to
examine a person residing at any place not within India.
Sec.
78 – Commission issued by foreign court.
Execution and return of commission from –
(a)Court situated in any part of India to
which provisions of CPC do not apply.
(b)Court established and controlled by the
authority of Central Government outside India.
(c)
Court of any State or Country outside India
ORDER
26 – COMMISSION
O26
r1-8 – Commissions to examine witnesses
O26 r9-10 –
Commissions to make local investigation
To elucidate any matter in dispute; or ascertainment of
market value; or amount of mesne profit; or damages; or annual rent.
O26
r10A-10C– Commissions for scientific investigation, performance of ministerial
act and sale of movable property
O26
r11-12 – Commissions to examine accounts
O26
r13-14 – Commissions to make partitions
O26 r15-18B –
General Provisions
* Before issuing any commission the fees of
the commission shall be deposited before the Court by the party at whose
instance or for whose benefit the commission is issued.
* Commissioner if not a Civil Judge not to
impose penalty, but penalty may be imposed by the Court on such application by
the Commissioner.
* Commissioner may apply to the Court (not
being a High Court) within whose local limits the witness resides for issue of any
process.
* The provisions of this Order shall apply
to proceedings in execution of a decree or order.
*
Court may fix a date on or before which the commission shall be returned and
shall not be extended except where the Court for reasons to be recorded, is
satisfied that there is sufficient cause for extending the date.
O26 r19-22 –
Commissions issued at the instance of foreign tribunals
*
High Court to issue commission if it is satisfied that a foreign court has
issued a commission for examination of witnesses.
ATTACHMENT
– SEC. 60-67
Sec.60
provides for the list of property which are liable to be attached.
NOTICE
– SEC.80–82
S.80
– No suit against Government except notice of 2 months before filing. Suit must be in respect of act done in
official capacity. Notice in writing be
delivered to left in the office of – (a)Secretary of Central Govt. if against
Central Govt.; (b)Chief Secretary of Govt. of State of Jammu and Kashmir.; (c)
General Manager of Railway if against Railway; & (d) Secretary of State or
Collector of District. AND particulars required are – (a)name, description and
resident of Plaintiff; and (b)cause of action and relief claimed.
S.81
– The public officer is exempt from arrest and detention u/O38, and also if the
Court is satisfied that the public officer cannot absent himself from his duty,
it may dispense with the personal appearance of such public officer.
S.82
– No execution can be filed in any suit decreed against the Government unless 3 months have elapsed computed from the
date of decree.
PUBLIC NUISANCE AND OTHER
WRONGFUL ACT – SEC. 91
Public
nuisance or other wrongful act affecting or likely to affect public right, suit
can be filed by – (a) Advocate General; or (b) two or more person with leave of
the Court (called RELATORS).
REVISION
– SEC. 115
HC
may call record of any case decided/pending in any subordinate court under its
jurisdiction, from which no appeal lies where it is proved – jurisdiction
exercised no vested; vested but not exercised; or in exercised with illegality
or material irregularity.
Revision
not automatic stay of suit, no revision to be exercised where appeal lies.
Also, revision to be exercised against a material order which effects the
merits of the case (and shown that such order would have tilted the case in
favour of the Petitioner).
Case
decided means – order made or any issue decided.
MISCELLANEOUS
RESTITUTION – SEC.144
[self-explanatory section, if need arises will be added later]
ENLARGEMENT
OF TIME – 148
Court
has the power to enlarge time which it has granted for any act provided or
given under this Code, but not more than 30
days. The enlargement is of time which is not given in the code, if time is
given in the code itself, the Court cannot enlarge such time u/S.148, rather
any act provided under the Code, where no time is prescribed, then over and
above the time fixed by the Court, a further extension of 30 days can be
allowed by the Court on its discretion.
CAVEAT – SEC. 148A
Caveat
is an precautionary measure, a caution or warning giving notice to the Court,
that no step be taken in any suit or proceeding, unless the Caveator is heard
or given notice of. Once filed, a Caveat remains in force till 90 days.
POWER
– TO MAKEUP COURT FEE DEFICIENCY – SEC. 149
The
Court has been given an inherent power to make up for the deficiency of the
Court Fee. Not filing proper Court Fee is a ground for dismissal of suit in
default, but Sec. 149 provides one last opportunity to the Plaintiff to pay for
the deficiency in the Court fee and here a legal fiction is created that such
Court Fee even though paid later is deemed as if paid on the first hearing.
Sec. 149 is r/w Sec. 151 as inherent power of the Court.
INHERENT
POWER – SEC.151
Nothing
under this Code shall prevent the Inherent Power of Court to make such orders
as may be necessary for the ends of justice or to prevent abuse of
the process of the Court.
Sec.
151 does not provide any residuary or inherent power to the Court, it merely
acknowledges that a Civil Court has vide amplitude of power conferred to meet
the ends of justice, which are not contemplated by the Code, but for practise
i.e. procedural purpose may arise to be followed or devise to them is necessary
for the ends of justice or to prevent abuse.
* Manohar Lal v. Seth Hira lal [1961 SC]
The Supreme Court explained the vide
amplitude of the power of the Civil Court as acknowledged by Sec. 151, however,
it provided certain limitations to this power –
(a) not to do what is prohibited by the
Code;
(b) where specific provisions are provided,
the Court shall follow the provision and refrain from interpreting or expanding
power under this provision;
(c) not to reduce or read down any specific
provision; or
(d)
inherent power is restricted to procedural matter as sec. 151 is part of a procedural
code.
AMENDMENT
OF JUDGMENTS, DECREES OR ORDERS – SEC.152 & GENERAL POWER TO AMEND – SEC.
153
ADJOURNMENT – O17
Adjournments
if sufficient reasons are afforded for it by the parties, but not more than
three times to a party during hearing of the suit. Provided cost may be imposed
upon the party, unless reasons are beyond his/her control.
HEARING OF SUIT AND EXAMINATION
OF WITNESSES – O18
[self-explanatory section, if need arises will be added later]
AFFIDAVIT – O19
Affidavit
may be ordered by the Court to any party to prove any fact by it. The affidavit
is confined to facts on to the personal knowledge of the Deponent (one who
signs the affidavit/ or deposes before the Court).
JUDGMENT AND DECREE – O20
[self-explanatory section, if need arises will be added later]
EXECUTION – O21
[self-explanatory section, if need arises will be added later]
DEATH, MARRIAGE AND INSOLVENCY
OF PARTIES – O22
No
abatement of suit if the right to sue survives [R.1]. Also where there are
several plaintiff or several defendants, and any of the party dies, but the right
to sue survives upon remaining plaintiff or suit survives against remaining
defendant, the Court may record as to this effect and the suit shall continue
[R.2].
Where
one of many plaintiffs dies and right to sue does not survive on remaining
plaintiff(s) or a sole plaintiff dies, the Legal representatives may file an
Application for substitution i.e. Application to be made a party to the suit before
the Court. The time limit for such substitution is 90 days after which the suit
shall abate [R.3].
Where
one of the defendant dies and right to sue does not survive against remaining
defendant or sole defendant dies and the right to suit survives, the Court on
an Application on this behalf shall cause the legal representative of the
deceased to be made party and shall proceed with the suit. Any person made
party may make any defence appropriate to his character as legal representative
of the deceased defendant. If no Application moved in 90 days the suit shall
abate [R.4].
Even after 90 days, within next 60 days the
Plaintiff can apply for 2 Applications – (1) for setting aside abatement &
(2) for substitution of parties.
Even after 90+60 days, the party can file 3
Applications – (1) for condonation of delay u/S. 5 Limitation Act; (2) for
setting aside abatement; & (3) for substitution of parties. [And each
application to be decided on its own merits.]
* Mithai Lal Dalsangar Singh v. Annabai
Devram Kimi [2003 SC]
Court held – (1)after expiry of 90 days
suit will automatically abate; (2)after death the Court will not conduct trial
rather the suit is in ‘suspended animation’; (3)if after abatement, Application
is filed for substitution will amount to setting aside abatement, or if
Application for setting aside abatement filed will amount substitution
Application; and (4)even if one L.R. is substituted the whole suit will be
revived.
Question
as to legal representative shall be determined by the Court. Provided, where
such question arose in Appellate Stage, the Court shall frame such question and
direct any subordinate Court to try the question and return the record with evidence
[R.5].
No abatement by reason of death
after final hearing and before pronouncement of judgment [R.6].
R.9
– Effect of abatement or dismissal.
Where
a suit is abated or dismissed under this Order, no fresh suit shall be brought
on the same cause of action. The Plaintiff or any person may apply for setting
aside such abatement.
Explanation
– Nothing in this rule shall be construed as barring, in any later suit, a
defense based on the facts which constituted the cause of action. Meaning
thereby that such abatement is estopped from being tried a fresh on same cause
of action, but it is not res judicata on issue(s).
WITHDRAWAL AND COMPROMISE OF
SUIT – O23
Withdrawal
can be two – abandoning the suit or claim or withdrawal to file afresh on
defects (R.1).
The
Plaintiff may abandon the whole suit or against any of the party or parties or
any part of claim or claims. But no suit of any minor can be abandoned without
the leave of the Court.
The
Plaintiff may also withdraw any suit or part thereof, or against any one of the
Defendant with the leave of the Court to file a fresh if he can prove there is
some ‘formal defect’. Formal Defect is any defect not apparent on the face or
merits of the case, e.g. non-joinder of proper party, no proper valuation of
the suit property, etc.
If
any suit is abandoned or withdrawn without the leave of the Court, no fresh
suit can be filed on the same cause of action. But, if the suit is withdrawn
with the leave of the Court, the Plaintiff can claim the benefit of Sec.
14(3) of the Limitation Act, 1963, thereby time wasted will be excluded
which is vested in any former suit in good faith.
The
parties to the suit may also enter into a compromise in writing and signed by
the parties, the Court upon which may pass a decree on such terms of agreement,
compromise or satisfaction. It is further allowed that the compromise need not
be only on the subject matter of the suit, rather it can be any compromise between
the parties, but not hit by any provision of the any law e.g. Indian Contract
Act (R.3).
And
where a suit has been passed upon such Compromise, it cannot be set-aside on
the ground of unlawful agreement (R.3A). Further, no compromise or agreement is
allowed in a Representative Suit without the leave of the Court. And
Representative suit here includes – (a) O1r8- Representative; (b) Sec.91 &
92- Suit against public nuisance or public or religious charitable institution;
(c) Manager of property of HUF w.r.t such property; & (d) any other suit
under this Code or any other law for the time being in force (R.3B).
But O23 does not apply on
Execution Proceedings (R.4).
SUIT BY OR AGAINST MINOR AND
PERSON OF UNSOUND MIND – O32
A
minor cannot sue or be sued directly. He can sue through a next friend (R.1).
Or he can be sued through a next friend called Guardian ad-litem i.e. Guardian of Litigant appointed by the Court
(R.3). Next friend can be his natural or legal guardian, appointed by the
Court.
Next
Friend/ Guardian of a minor can be any person – (a)of a sound mind; (b)of age
of majority; (c)does not have any interest adverse to the minor; (d)is not the
opposite party in the suit; and (e)gives his/her consent in writing (R.4).
Security me be required from the Next-Friend/ Guardian if he so represents a
minor in the suit.
The
Next-Friend/ Guardian may not retire unless he has given a suitable name to
replace him/her (R.8). He/she can be removed, if – (a)interest adverse to
minor; (b)so connected to opposite party as to prejudice the minor of proper
representation; (c) does not does his duties; (d)ceases to reside in India; or
(e)any other sufficient cause (R.9).
On
retirement, removal or death of Next-Friend or Guardian, the suit may be stayed
until another suitable Next-Friend/ Guardian is appointed (R.10).
R.14
– The Rules u/O32r1-14 except (2A) shall be applicable where any party is
adjudged unsound by the Court. Rule 2A provides for security to be furnished by
Next-Friend when so ordered.
* Ram
Chander v. Man Singh [SC 1967]
Decree
passed when no Guardian is appointed is a nullity and void, and no legal
consequences arises. Also, if during pendency, minor attains majority but
decree passed, it will be valid decree, as removal of Guardian is not
automatic, rather application is to be made to the Court, if the person so
represents wishes.
SUITS BY INDIGENT PERSONS – O33
The
Plaintiff is not capable of filing the Court Fees, therefore, an Application is
made to file the suit as ‘Forma Pauper’, where if allowed, the Plaintiff is
exempted from depositing the court fees for the time being, but it is not permanent
exemption. If with the Written Statement this status is successfully rebutted
or later during the trial it is proved that the Plaintiff has acquired some
property, or at the end of the proceeding, the Plaintiff is liable to pay the
Court Fees, and it is deemed as the fees was paid at the first instance.
The
general rule for being defined as indigent is – (a) property (movable or
immovable) below `1,000/-; (b) no other sufficient means to pay the Court Fees;
(c) even if the Plaintiff has any other property it is exempted from attachment
as provided u/S.60.
R.11
– It is provided that to sue as indigent person is not permanent exemption,
rather it becomes a debt upon the Plaintiff, and if not paid can be recovered
by the District Collector from whatever property the Plaintiff has.
SUMMARY PROCEDURE – O37
Summary
Procedure is a suit which can be made in – (a)High Court; (b)City Civil Court;
(c)Court of Small Causes; or (d)Any Court which the High Court may notify.
Summary Procedure can be filed in cases of –
(a)suits upon bills of exchange, hundies
and promissory notes.; or
(b)suits in which Plaintiff only seeks to
recover a debt or liquidated demand in money only with or without interest,
arising from –
(i)written contract,
(ii)on an enactment
where sum is fixed amount of money other than penalty; or
(iii)on a guarantee, where sum against Principal is in
respect of a debt or liquidated demand.
Two
summons are provided under this provision – (1)summons for appearance; &
(2)summons for judgment.
Within
10 days from 1st service the Defendant must appear in the Court, and
on such appearance the Plaintiff will serve the 2nd service, which
contains the Pleading, documents, etc. The Defendant may herein file an
Affidavit of any possible ground of defence. The Court shall allow or reject
such leave to defend which can be conditional or unconditional.
The
Decree, if passed may be set-aside by the Defendant by an Applicant (R.4).
ARREST AND ATTACHMENT BEFORE
JUDGMENT – SECTION 95 & O38
[self-explanatory section, if need arises will be added later]
TEMPORARY INJUNCTIONS AND INTERLOCUTORY
ORDERS – O39
Injunction is an order of the Court where
by a party may be required to do or to refrain from doing a particular act. Injunction
can be divided into 2 classes –
(1) according to time – (a) Perpetual [Sec.36-42 SRA] or (b) Temporary
[Sec. 37 SRA & Sec. 151, O39 CPC]
(2)
according to nature – (a) Mandatory
[Sec.39 SRA] or (b) Preventive [Sec.42 SRA]
Grounds
on which injunction can be claimed are –
(a)property in dispute is in danger of being
wasted, damaged or alienated, by any party to the suit wrongfully;
(b)where defendant threatens or intends to
remove or dispose-off his property with a view of defrauding his creditors;
(c)where defendant threatens to dispossess
the plaintiff;
(d)where the defendant is about to commit
of breach of contract or anticipatory breach;
(e)where
in Court’s opinion – in the interest of justice.
Applicant to prove –
(a)prima facie case is in the favour of
Applicant;
(b)balance of convenience is in his/her
favour;
(c)irreparable losses will be suffered if
relief (injunction) is not granted;
(d)Applicant has been acting bonafide.
* Dalpat v. Prahlad [1992 SC]
INTERLOCUTORY ORDER – R.6-10
Interlocutory
Order is one which is passed during the pendency of the suit, and before the
merits has been heard and decided. The rules 6 to 10 provides certain
interlocutory orders – e.g. order to sale a movable property which is subject
to speedy natural decay; or appointment of receiver.
APOINTMENT
OF RECEIVER – O40
Receiver
is the Officer of the Court appointed to take care of the property. Who manages
the property a.k.a. “Custodio legis”.
Remuneration is given to the receiver and security is taken from him.
Court
if it may deem proper may – (a)appoint a receiver of any property before or
after decree; (b)remove any person from the possession or custody of property
[Provided, Court cannot not remove from possession any person which the party
do not have the right to remove, e.g. tenant, lessee, etc.]; (c) commit the
same to the possession, custody or management of the receiver; or (d) empower
the receiver to all such rights and duties which are necessary for the
management like bring and defend suit, realization, preservation, protection, management
and improvement, and collection of rents and profits and application and
disposal of the same, and also execution of documents as the owner himself has.
The
Receiver is entitled to remuneration for the services which the Court may fix
by general or special order [R.2].
R.3 – Duties
of the receiver – (a)furnish such security as the Court may think fit duly to
account to which he shall receive in respect of the property; (b) submits his
account at such period and in such form as the Court directs; (c) pay the
amount from him as the Court directs; and (d) be responsible for any loss
occasioned to the property by his wilful default or gross negligence.
R.4 – If
the receiver fails to furnish account as and when required, or fails to pay
amount, or occasions loss to the property, the Court may order his property to
be attached and sold to realise the amount due.
R.5
– Collector may be appointed as Receiver when the property is land paying
revenue to the Govt. or land of which revenue is assigned or redeemed and the
Court considers that the interests of those concerned will be promoted by the
management of the Collector.
* Anthony C. Leo v. Nandlal Bal Krishan [1996
SC]
(1)
A receiver is an impartial person, an Officer of the Court appointed for the
purpose of taking care of the property; and (2) The appointment of the receiver
is a protective relief and the receiver acts under the supervision of the
Court. As long as the property is in the custody of the receiver it is said to
be ‘custodio legis’ i.e. in the
custody of the Court.
APPEALS – GENERAL RULES – SEC.
107-108
The
Appellate Court has the powers to – (a) to determine the case finally; (b) to
remand a case; (c) to frame issues and refer them for trial; (d) to take
additional evidence or to require such evidence to be taken [S.107(1)(a)-(d)].
And Other powers as conferred by this Code to Original Courts [S.107(2)].
FIRST APPEAL – APPEALS FROM
ORIGINAL DECREE – SEC. 96-99A / O41
[S.96]
Appeal from Original Decree called First Appeal shall lie from any
decree passed by any Court exercising original jurisdiction to the Court
authorized to hear appeal from such court. Also, Ex-parte Decree are appealable
[90(2)], BUT, Consent Decree are not Appealable [96(3)]. Also, no Appeal shall
lie from decree when amount or subject matter does not exceed `10,000 except
where it involves question of law [96(4)].
[S.97]
Where no decree from preliminary decree was made, then it shall not be a ground
in Appeal from final decree.
[S.99]
No decree to be reversed or varies or modified for error or irregularity not
affecting merits of jurisdiction, but nothing here to apply to non-joinder of
necessary party. [Nexus of Sec 21 and 99 be read here, Sec99 shall be read as
may and irregularity of jurisdiction shall not be material unless there is consequential
failure of justice (Kiran Singh v. Chaman Paswan-1954 SC)]
[S.99A]
No decision u/S. 47 to be reversed or varied or modified on account of any
error, defect, irregularity in any proceeding relating to order, unless has
prejudicially affected the case.
O41 – Appeal to be accompanied with a
Memorandum signed by the Appellant and their pleader, grounds must be specifically
stated. And if common judgment of various suit, then a common appeal to lie.
The memorandum shall on order be amended or if not complied may be rejected and
it shall be a reasoned order. If appeal made after the time allowed, it shall
be accompanied with Application u/S. 5 Limitation Act for condonation of delay.
AND Appeal in not an automatic stay of execution, unless applied & ordered
or ordered by the Appellate Court.
Stay of execution shall made if proved –
(a)material/substantial losses; (b)application made without unreasonable delay;
& (c)security has been given by the Appellant for due performance if the
appeal is dismissed.
R.17
– (1)Dismissal of Appeal for Appellant’s default; and (2) hearing Appeal exparte.
O43r19–O9r7
– Setting aside dismissal order by Appellant/ Plaintiff.
O43r21–O9r13
– Setting aside exparte decree. [these two order of refusal to set-aside
dismissal order or refusal to set-aside exparte decree]
O43r22
–Cross Objection, where there is no Cross Appeal filed by the Respondent, but
his objection to the Appeal shall be dealt as Cross Objection and all claims
shall be dealt as a cross-appeal within 30 days from the date of service of
summons.
SECOND APPEAL – APPEAL FROM
APPELLATE DECREES – SEC.100-103 / O42
Second
Appeal is filed before the High Court and is allowed only in cases of the case
involves ‘substantial question of law’ or a second appeal may lie from
an appellate decree passed ex-parte. Substantial
Question of law means a question which involves interpretation of any point of
law in controversy upon which the decision of the suit/ appeal is based. But in
no case an appeal shall lie from a decree whose subject matter in the original
suit does not exceed `25,000/-.
The
High Court may, if the evidence on record is sufficient – determine any issue –
(a) which has not been determined by the Appellate Court or both Original and
Appellate Court; or (b) has been wrongly decided by such Court(s) by reason of
a decision on such question of law as is referred to in Sec. 100 (substantial
question of law).
APPEAL FROM ORDERS – SEC.104-106
/ O43
5
cases provided u/S.104 where Order is Appealable i.e. S.35A, S.91/92, S.95, order
awarding fine, or directing civil prison or detention, and the fifth category
is open to incorporate all such order which the Code makes Appealable and the
whole such list is provided in O43r1. The rules of First Appeal as u/O41 shall
apply in Appeal from orders.
APPEAL BY INDIGENT PERSON – O44
Any
person entitled to Appeal but is unable to pay the Court Fees can alongwith the
Memorandum of Appeal file an Application to sue as Pauper Appeal. If the
Application is rejected, the Court may grant time to the Appellant to file the
requisite court fees.
REFERENCE
– SEC. 113 / O46
An
open question of law which the Court frames and refers the matter to the
High Court for its decision. The Court referring may give its opinion alongwith
the reference. The suit below is generally stayed but the Court is competent to
pass the decree based upon its opinion which will be called a Contingent Decree, but it is not
executable unless the opinion upheld by the High Court, and the decree is liable
to be revered if the question of law is decided otherwise.
REVIEW – SEC. 114 / O47
Review is to revisit one’s own decision.
Sec. 114 provides three cases where review can be filed in the same Court which
passed the decision in such decree or order and the Court may make order
thereon as it thinks fit. These 3 cases are –
(a) on a decree or order from which is
Appeal is allowed but no Appeal from that decree or order has been filed;
(b) on a decree or order from which no
appeal is provided by this Code; and
(c)
by a decision on a reference from Court of Small Causes.
Further 4 grounds are provided under O47r1 in which Review can be filed –
(a) discovery of new and important matter
which after the exercise of due diligence was not within the knowledge or could
not be produced by the parties;
(b) discovery of new and important evidence
which after the exercise of due diligence was not within the knowledge or could
not be produced by the parties;
(c) mistake or error apparent on face of
the record; and
(d)
for any other sufficient reason.
O47r2
further enables the party who is not appealing from a decree can apply for
Review of the decree notwithstanding the decision of the appeal, provided it
is not made on grounds common to the Applicant or Appellant, or when as
Respondent, the Applicant can present those grounds.
Limitation
for Review is 30 days from the date of Decree. Review rejected, then
Rejection order is not Appealable, but Revision can be filed. And always Appeal
is open. But if the Review is allowed, then it is Appealable.
Decree
by 2 Judge bench, and if Review again before 2 Judges and they are divided
opinion as to 1:1, then it if we ordered as Rejected.
Second
Review – Curative Petition before the Supreme Court if
the only case where there is Second Review, it is not provided in CPC rather in
the Constitution of India, and can only be filed if certificate of Senior
Advocate is obtained as to a substantial question of law is involved and needs
interpretation, and is always heard by a 5 Judges Bench. * Rupa Ashok Khurra v. Ashok Khurra [2002 SC]
NAME
OF THE CASE
|
YEAR/
BENCH- JUDGE
|
REMARKS
|
Bhikaji Kushao Jodhi v.
Brijlal Nandlal
|
1955 SC
|
Non-filing of Verification-
not failure of suit – allow amendment.
|
Salem Advocate Bar Association,
Tamil Nadu (2) v. U.O.I.
|
2005 SC, Y.K. Sabharwal, J.,
3Judges
|
Affidavit – Additional
responsibility; required in suit as well as Application; & Affidavit if
not evidence.
|
RSRTC v. Bal Mukund Shah
Bairwa (2)
|
2009 SC
|
Sec. 9 essence lies in latin
maxim – ‘ubi jus ibi remedium’
|
Most Reverand PMA,
Metropolitian & Ors. v. Moran Mar Mothoma
|
1995 SC, R.M. Sahai, J.,
3Judges
|
Sec. 9 – is both positive and
negative; shall be read as mandatory; & ‘Suit of Civil Nature’ is expansive
than Civil Suit.
|
Harshad Chiman Lal Modi v.
DLF Universal Ltd.
|
2005 SC
|
Pure Personal Obedience
u/S. 16 provides ‘equity acts in
personam’.
|
Kiran Singh v. Chaman Paswan
|
1954 SC
|
Sec. 21 and Sec. 99 are not
in inherent conflict. Sec. 21 substantiates Sec. 99 by putting one extra
condition.
|
Durgesh Sharma v. Jai Shri
|
2008 SC
|
Sec. 23(3) declared void
and Sec. 25 established superior as only Supreme Court has the power to
transfer cases from one Court to another when they are under different
Jurisdiction.
|
> Sulochanna Amma v.
Narayanan Nair 1994 SC
> Rajendra Kumar v. Kalyan
(Dead) by LR 2000 SC
|
Explanation VIII removes the
anomalies arising out of the language of the main section, and therefore is
actually a saving clause. Court of Limited Jurisdiction means pecuniary and
subject matter jurisdiction of the former court to try the present/
subsequent suit.
|
|
Sheodan Singh v. Daryao
Kunwar (Smt)
|
1965 SC; 4 Judge Bench P.B.
Gajendragadhkar, delivered by Wanchoo J.
|
The case is limited to its
own facts and limited in scope. [substantial- special case will always
remember – lot of legal fiction were taken into account]
|
Narhari v. Shankar
|
1950 SC
|
One suit, 2 appeal, even if
one rejected on technical ground, it will not apply as res judicata, as
dismissal on technical ground is not heard and finally decided.
|
Isabbela Johnson (Smt.) v.
M.A. Susai (Dead) by LR
|
1990 SC
|
Per-Incuria
i.e. absence of knowledge of law/ wrong interpretation of law will not
attract Res Judicata and there Sec. 11 will not apply.
|
Mohd. Khalil v. Mehboob Ali
Mian
|
1948 SC
|
Test of O2r2 defined – same
COA action and knowledge & due diligence that the relief ought and could
have been pleaded.
|
Suresh Kakker v.s Mahendra
Nath Kakkar
|
2008 Del. HC
|
Demurrer’s
Claim i.e. Rejection on technical ground is not a
formal decree drawn upon merits.
|
Kunjan Nair v. Narayan Nair
|
2004 SC
|
Mesne profit accrues from
separate cause of action, then the cause of action to possess the immovable
property.
|
Ramesh Hira Chand v.
Municipal 1992 SC
Corporation Greater Bombay
Balwant N. Vishtwamitra v.
Yadav 2004 SC
Sadashiv Mule (Dead) through
L.R.
|
Proper Party and Necessary
Party
|
|
Mayar H.K. Ltd. v. Owner
& Parties, Vessel M.V. Fortune Express
|
2006 SC
|
In case of non-disclosure of
COA, the Court need not be unruly harsh and rigid and allow amendment to
better convey COA in the Plaint.
|
Rup Lal Sathi v. Naccahattar
Singh Gill 1982 SC
Popat Kotecha Properties v.
SBI Staff 2004 SC
Association
|
To bring the COA to surface,
the Court may examine the whole Plaint, witnesses (orally without oath), but
not the Written Statement or defendant’s witness.
|
|
Ravajeetu Builders &
Developers v. Narayanaswamy & Sons.
|
2009 SC
|
The Test for amendment of
pleadings u/O6r17 is –
(1) Real Controversy Test
(COA); &
(2) Balance of interest
|
Clarke v. Rathnavellu 1865 Privy
Council
U.O.I. v. Karamchand Thapar
& Bros. 2004 SC; R.C. Lahoti,
J.
|
Setoff is of 2 kinds – legal
(O8r6) & equitable [O20r19(3)]
|
|
Anthony C. Leo v. Nandlal
Balkrishan
|
1996 SC
|
Receiver is an officer of the
Court and property is called as custodio
legis i.e. in the custody of the Law/ Court.
|
Balwant N. Wishwamitra v.
Yadav Sadashiv Mule
|
2004 SC
|
Against an illegal or
irregular decree only incidental proceedings are available and can only be
challenged if there is consequential failure of justice.
|
Rupa Ashok Khurra v. Ashok
Khurra
|
2002 SC
|
Curative Petition, is
provided under Constitution of India and not under CPC.
|
Manohar Lal v. Seth Hira Lal
|
1961 SC
|
Supreme Court held that Sec.
151 acknowledges the inherent power, which is vested in its mere existence as
Civil Court, and also provided certain limitation to this inherent power.
|
Dalpat v. Prahlad
|
1992 SC
|
There can be no straight
jacket formula for granting Temporary injunction, it depends upon facts and
circumstances of each case, which has to be examined by the Court by its
sound judicial discretion.
|
Handwritten Revision Notes on CPC, 1908
thanks a ton
ReplyDeleteThanks lot sir... plz upload about all law subjects notes..
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