CODE OF CIVIL PROCEDURE

1. Introduction and Definitions

Introduction-The code of Civil procedure is an adjective law. It regulates the
procedure to be followed by Civil courts. The object of the code is to consolid
ate and amend the laws relating to the procedure of the courts of Civil judicatu
re. It is a consolidated code collecting all the laws relating to the procedure
to be adopted by Civil courts. The code can be divided into two parts - 1. The
body of the Court containing 158 sections, 2. The first scheduled containing 51
orders and rules. The sections deal with the provisions of a substantive natur
e, laying down the general principles of jurisdiction, the first scheduled relat
es to the procedure and the method, manner and mode in which the jurisdiction ma
y be exercised.

Definitions
The adjudication of a court of law may be divided into decrease and orders. Und
er Section 2 (2) the term decree is defined. It is defined as the formal expres
sion of an adjudication which conclusively determines the rights of the parties
with regard to matters in controversy and may be either preliminary of final. T
he essential elements of a decree are as follows
1. Adjudication-it is the judicial determination of the matter in dispute. If
there is not judicial determination it is not a decree. Such a judicial determi
nation must be made by the Court.
2. Suit-the expression suit is not defined in the code. The word suit has been d
efined by the courts. The word suit ordinarily means a Civil proceeding institu
ted by the presentation of a plaint. Every suit is instituted by the presentati
on of a plaint and it means that when there is no Civil suit there is no decree.
3. Determines the rights of parties-the adjudication must have determines the r
ights of the parties with regard to all or any of the matters in controversy in
the suit. The word rights means substantive rights and the term parties means p
arties to suit on that is the plaintiff and the defendant. The expression matte
rs in controversy refers to the subject matter of the suit the reference to some
relief which is sought. However, it is not solely limited to the merits of the
case and may also include other ancillary issues.
4. Conclusive determination-the determination must be of a conclusive nature and
the decision must be final in essence and in substance.
5. Formal expression-the formal expression of a decree must be deliberate and g
iven in the manner provided by law. If a decree is not formally drawn up in ter
ms of the judgment then there is no decree.
There are basically three types of decrees
1. Preliminary decree
2. Final decree
3. Partly preliminary and partly final.
Preliminary decree-when and adjudication decides the rights of the parties with
regard to all or any of the matters in controversy in the suit, but does not com
pletely dispose of the suit, it is a preliminary decree. A preliminary decree i
s passed in those cases in which the Court has first to adjudicate upon the righ
ts of the parties and has then to remain inactive until it is in a position to p
ass a final decree. There is a conflict of opinions as to whether there can be
more than one preliminary decree in the same suit. In case of an appeal against
a preliminary decree the final decree automatically falls to the ground for the
re is no preliminary decree thereafter in support of it.
Final decree-a decree may be said to be final in two ways-when there has been no
appeal filed against the decree or when the matter has been decided by the high
est Court, or when the Court passing it completely disposes of the suit. A fina
l decree is one which completely disposes of the suit and finally settles all th
e questions in controversy between the parties and nothing further remains to be
decided thereafter. Ordinarily there will be only one final decree in the suit
. However, where two or more causes of action are joined together there can be
more than one final decree.
Partly preliminary and partly final-a decree may be partly preliminary and partl
y final and this may be explained by way of example. In the suit for possession
of immovable property with mesne profits, the decree for the possession of the
property is final but the decree for an inquiry into mesne profits is preliminar
y.
Judge-a Judge is the presiding officer of a Civil court. A court is a place wher
e justice is judicially administered.
Judgment-judgment means the statement given by the Judge on the grounds of a dec
ree or order. The essential elements of a judgment is that there should be a st
atement of the grounds of the decision. Every judgment must contain-a concise s
tatement of the case-the points for determination-the decision thereon-the reaso
ns for such acquisition. A judgment they be distinguished from a decree in the
sense that a judgment means the statement given by the Judge of the grounds of a
decree or order. A judgment contemplates a State prior to the passing of a dec
ree or an order, and after the pronouncement of a judgment a decree shall follow
.
Order-an order means the formal expression of any decision of a Civil court whic
h is not a decree. A judicial order must contain the discussion of the question
at issue and the reasons which prevailed with the Court to pass the order. The
distinction may be drawn between a decree and order on the following grounds
1. A decree can only be passed in the suit which commenced by the presentation o
f a plaint. An order may arise from a petition or application.
2. A decree conclusively determines the rights of the parties however an order
may not finally determines such rights
3. There cannot be a preliminary order
4. In certain suit is one preliminary decree and the other final decree may be
passed, however a number of orders may be passed in the same suit.
5. Every decree is appealable but every order is not unless specified.

Mesne profits- Mesne profits of property means those profits which a person in w
rongful possession of such property actually received or might have received, to
gether with interest on such profit but shall not include profit gained from imp
rovements made to the property by the person in wrongful possession. It is a co
mpensation which is penal in nature because every person is entitled to possess
property and gain profit from it. If a person is wrong fully deprived of such p
roperty then he is entitled to the property and the profit which accrued from it
. The calculation of mesne profit is done by the Court. And the following prin
ciples guide the Court in determining the amount of mesne profit
1. No profit by a person in wrongful possession
2. Restoration of status before dispossession of the decree holder
3. Use to which the decree holder would have put the property if he himself was
in possession.

Other Definitions
Decree holder-a person in whose favour a decree has been passed or an order capa
ble of execution has been made is called a decree holder. A decree holder does
not necessarily have to be a party to the suit.
Judgment debtor-a judgment debtor is any person against whom a decree has been p
assed or in order capable of execution has been made.
A legal representative is a person who in law represents the estate of the decea
sed person. The expression legal representative is inclusive in character.
See Takwani, pp. 8-27

Jurisdiction of Civil Courts

Where there is a right, there is a remedy. (Ubi jus ibi remedium). Therefore, a
litigant having a grievance of a Civil nature has the right to institute a Civil
proceeding in a competent Civil court. Jurisdiction may therefore be defined a
s the power or authority of a court to hear and determines the case, to adjudica
te and exercise any judicial power in relation to it. In other words, jurisdict
ion is the authority by which a court has to decide matters before it or take co
gnisance of matters presented to it.
Types of Jurisdiction
1. Territorial or local jurisdiction-every Court has territorial limits within
which it can exercise its jurisdiction.
2. Pecuniary jurisdiction-a court will have jurisdiction only over those suits
the amount or value of the subject matter of which does not exceed the pecuniary
limits of its jurisdiction.
3. Jurisdiction as to subject matter-certain courts are precluded from entertai
ning certain suits based on the subject matter of the suit
4. Original and appellate jurisdiction

Section 9- Jurisdiction of Civil Courts - Under this section the Court shall hav
e jurisdiction to try also is unless it is specifically barred by law. Civil Co
urt has the jurisdiction to try the suit if two conditions are fulfilled
a. The suit is of a Civil nature
b. The cognisance of such a suit should not have been expressly order impliedly
barred.
Suit of a Civil Nature-Meaning-the word Civil has not been defined in the Court
but it pertains to private rights and remedies of a citizen has distinguished fr
om criminal or political. The word nature has been defined as the fundamental q
ualities of a person or a thing; identity or essential character; sought, kind,
character. It is thus wider in content.
Nature and Scope - the expression suit of a Civil nature will cover private righ
ts and obligations of a citizen. A suit in which the principle question relates
to cast or religion is not a suit of a Civil nature. To understand the ambit a
nd scope it is necessary to look to the explanations under section 9. Illustrat
ions of suits of a Civil nature are-suits relating to right to property-suits re
lating to right of worship-suits relating to taking out of religious procession-
suits relating to right to share in offerings-suits for damages for Civil wrongs
etc.
Cognisance not barred-a suit is said to be expressly barred when it is barred by
any enactment for the time being in force. It is open to a competent legislatu
re to bar jurisdiction of Civil Courts with respect to a particular class of sui
ts of a Civil nature.
Shall has to jurisdiction-every presumption should be made in favour of the juri
sdiction of a Civil court. It is settled that it is for the party who seeks to
oust the jurisdiction of a Civil court to make the inevitable implication that t
he Court has no jurisdiction to try the matter. Case of doubt as to jurisdictio
n the Court should lean towards the assumption of jurisdiction.
See Takwani pp. 30- 42
Res Sub Judice and Res Judicata
Section 10 of the Court of civil procedure deals with the State of Civil suits.
It provides that no Court shall proceed with the trial of any suit in which the
matter in issue is also directly and substantially in issue in the previously i
nstituted suit between the same parties and that the Court in which the previous
suit is pending is competent to grant of the relief claimed.
Section 11 on the other hand relates to a matter already adjudicated upon. It b
ars the trial of a suit or an issue in which the matter directly and substantial
ly in issue has already been adjudicated upon in the previous suit.
The object of section 10 is to prevent the courts of concurrent jurisdiction fro
m simultaneously entertaining and adjudicating upon to parallel litigations in r
espect of the same cause of action, the same subject matter and the same relief.
The policy of the law is to confine the plaintiff to one litigation, thus the
possibility of two contradictory verdicts is negated. It intends to protect the
person from multiplicity of proceedings and avoids a conflict of decisions.
Certain conditions must be fulfilled for the application of this section.
1. There must be to suits, one previously instituted and the other subsequently
instituted
2. The matter in issue in the subsequent suit must be directly and substantiall
y in issue in the previous suit
3. Both the suits must be between the same parties or their representatives
4. The previously instituted suit must be pending in the same Court in which th
e subsequent suit is brought in or in any other Court in India or any other Cour
t beyond the limits of India established or continued by the Central Government
or before the Supreme Court
5. The Court in which the previous suit is instituted must have jurisdiction to
grant the relief claimed in the subsequent suit
6. Such parties must be litigation under the same title in both the suits.
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Res Sub Judice
S. 10 - No Court shall proceed with the trial of any suit wherein the matter in
issue is directly and substantially in issue in a previous suit instituted betwe
en
1. The same parties
2. Parties mitigating under the same title, which is pending in a court of comp
etent jurisdiction which can grant relief. The objective of Section 10 is the p
revention of parallel litigation. The test for section 10 is where the decision
of the previous instituted suit would act as Res Judicata. (Annamalay v. Thommi
l)
Indian courts may try the suit is the previous suit was instituted in a foreign
Court. The inherent jurisdiction of the Court under section 157 applies to sect
ion 10. Section 10 does not bar the institution of a suit only of trial. It is
merely a matter of procedure which can be moved by the party. Once unchallenge
d it cannot be challenged later and that the people not be considered void. (Ga
nga Prasad case).
Res Judicata
Res judicata is based on the rule of conclusiveness of judgment and comes from t
he Latin maxim 'ex capito res judicata', which means that one decision is enough
for one dispute. In the S Ghosal case the Supreme Court held that the rule of
res judicata was based on the need of giving finality to judicial decisions.
Section 11 states that no Court shall try any suit or issue in which the matter
substantially and directly in issue has been directly or substantially in issue
in a former suit between the same parties under the same title in a competent Co
urt where such issue has been heard and finally decided. Certain rules exist fo
r res judicata wherein the appeal provision is not in deciding provision of Cour
t, the matter in issue must have been alleged and denied or admitted and any mat
ter which might and ought to have been raised will be deemed to have been raised
.
Res judicata is based on the following Latin maxim is
1. Nemo dabet lis vexari pro una et eadem causa
2. Untuest republicae ut sit finis litium
3. Res judicata pro veritate acceptiur
The scope of res judicata extends to Civil suits, execution, arbitration, interi
m orders and criminal proceedings. In the case of Daryao v. State of Uttar Prad
esh the Court held that res judicata also applies to writ petitions.
The waiver of res judicata is possible since it is only a matter of procedure an
d a party may choose to waive it (Life Insurance Company Vs Indian Automobiles).
The meaning of the matter in issue is the right which has been liquidated upon
by the parties. This includes matters which are directly and substantially in i
ssue and matters which are collaterally or incidentally in issue. Matters direc
tly and substantially may be either actually or constructive.
In the Amalgamated Coalfields Case the Court held that a matter cannot directly
being issue if the judgment stands whether or not the facts existed. In the Pand
urang case is a fact is important it is substantial to the case. However in bot
h cases it was held that there is no hardened fast rule for the direct and subst
antial test. The Pandurang case also held that if a decision is on several poin
ts each of them would act as res judicata.
It has been held that if a matter is collaterally in issue and such issue might
and ought to have been raised then it would act as res judicata. The object is
to ensure that all points are taken up at the first instance by the prosecution
and the defence. The landmark judgment in this regard is the Workmen CP Trust c
ase.
The meaning of a suit under the ambit of res judicata is a Civil proceeding inst
ituted by the plaint. In the Pandurang case the Court held that any proceeding
wherein a person pursues the remedies available and if such a right is liquidate
d upon it is a suit.
The meaning of the term issue may be either an issue of fact or an issue of fact
and law and in both cases res judicata would operate. It was held in the case
of Mathura Prasad v. Dossibai, that where the Court has decided upon up your que
stion of law unconnected to facts res judicata would not be applicable. It held
that "where the decision is on a question of law, that is, the interpretation o
f statutes, it will be res judicata to subsequent proceedings between the same p
arties. However where the question is one purely of law and relates to the juri
sdiction of the Court... res judicata cannot bar the affected party from challen
ging its validity."
Parties are the ones that are
1. Parties actually present
2. Parties claiming under parties present
3. Representatives.
The term same title means the same capacity such as the owner or the heir. The
test is identity of title in the two litigations and not identity of the subject
matter. The question is whether the parties are litigation under the same titl
e as in the previous suit. If the right claimed is the same although the ground
s are different res judicata would apply.
If a case has already been heard and decided such a case is deemed to have been
decided on merits. In cases of lack of jurisdiction, normal appearance of parti
es, not joiner and of parties, mis joinder of parties the power of res judicata
would not apply.
Place of Suing
Section 15 states that every suit shall be instituted in the Court of the lowest
grade competent to drive. This is with reference to the pecuniary jurisdiction
of the Court. If the valuation is false or knowingly incorrect than the suit m
ay be returned to the Court of competent jurisdiction (order VII, rule 10).
Section 16 states that suits for the recovery of
1. Immovable property with or without rent or profits
2. Partition of immovable property
3. For foreclosure, sale or redemption in case of markets or charge upon immova
ble property
4. Determination of any right or interest in immovable property
5. For compensation of wrong vis-a-vis immovable property
6. For recovery of property under attachment etc.
This shall be instituted in a Court within the territorial jurisdiction of which
the property lies. The proviso to this is that the suit for relief vis-a-vis o
ur immovable property is held by the definition where the relief is based on per
sonal obedience may be instituted where the person resides of works.
Section 17 states that if the property is within the jurisdiction of several cou
rts the suit may be instituted in any court. Section 18 states that if there is
uncertainty about location of the Court then the Court may record it and carry
on with the proceedings.
Section 19 deals with immovable property wherein the suit can be brought either
where the wrong was committed or where the defendant resides or carries out busi
ness or works for gain. A suit for compensation of wrong is to a person of immo
vable property.
Section 20 states that in all other cases it is where
1. The cause of action arises
2. All the defendants reside
3. When one of the many defendants State if the leave of the Court is taken wit
h the acquiescence of the defendant
The jurisdiction of a Court cannot be ousted by agreement since this is against
public policy. The objection as to lack of jurisdiction does not apply to terri
torial or pecuniary flaws and cannot be raised in a revision of appeal unless ra
ised earlier.
Section 21 (1) states that no objection to the place of suit is allowed unless i
t is taken in the Court of first instance, taken at the earliest available oppor
tunity or there has been a consequent failure of justice. It must also be noted
that the effect of jurisdiction can be waived.
In the case of Karan Singh vs Chaman Paswan, when the case is decided on merits,
it is not liable to be reversed purely on technical grounds unless there is a f
ailure of justice. The effect of the jurisdiction and place are to be taken as
technical. The judgment of the Court may be set aside only if there is prejudic
e and the prejudice has to be something more than just been heard in a different
forum.
Objections as the subject matter is a sine qua non for the crying Court is expr
essly or implied the forbidden than the decision is null and void. Section 21 (
3) makes it applicable to execution proceedings. Section 21-A states that no su
it challenging the former suit is to take place in the place of filing. This sh
all apply pro tanto to pecuniary jurisdiction.
Institution of Suit
The definition of a suit as laid down by the Pandurang case is a Civil proceedin
g initiated by the plaint. (Order IV, Rule 1; section 26) A suit can be present
ed at any time and it is usually during working hours to an officer appointed by
the Court.
Parties to a suit under Order I, Rule 1 are all those who may be joined as plain
tiff where
1. Any right to relief alleged to exist in each plaintiff arises out of the sam
e act or transaction
2. If separate cases were brought the common question of fact or law would aris
e.
Under Order 1, Rule 2-the Court may order separate trial is joined the would cau
se delay or embarrass the trial. Under Order 1, Rule 3 all those may be joined
as defendants whose
1. Right to relief claimed against them arises out of the same act or transacti
on
2. A common question of fact of law would arise. (These provisions are similar
to those applicable to plaintiff's under Order 1,Rule 3 A)
Under Order 1, Rule 6 the plaintiff may at his option joined as parties to suit
all or any people severally or jointly and severally liable in a contract.
Non-Joinder and Mis joinder of Parties
A necessary party as laid down in the case of Banares limited vs Bhagwan Das is
one must fulfil the following requirements
1. They must be some right to some relief against such party in respect of the
matter
2. It would not be possible to pass and effective decree in the absence of such
a party.
A proper party is one without whom an effective order can be passed but whose pr
esence is necessary for a complete and final decision on the proceedings.
Under Order 1, Rule 9 in cases of non joinder or mis joinder of parties the suit
cannot be dismissed for the same. Proviso is that it does not apply to necessa
ry parties.
In the case of BP Rao vs State of Andhra Pradesh, the affected parties are not p
arty to the suit and no ground for reversal of the same is possible unless the p
arty is a necessary party as the non suit parties rights are adequately represen
ted. This is in line with section 99 and section 99-A where there is no reversa
l for non joinder or mis joinder of parties unless the jurisdiction or merit is
affected.
Under Order 1,Rule 13 unless the defence of non joinder or mis joinder is taken
at the earliest step the right would be considered as waived.
Under Order 1, Rule 10 if a suit is instituted in the name of the wrong plaintif
f or some other plaintiff is to be added the Court may do so. There are two pre
requisite conditions
1. The suit filed in the wrong name was a bona fide mistake
2. Substitution of addition is essential for the determination of the real matt
er in dispute.
Also under this rule the Court is empowered to add people if
1. Such person ought to have been joined as plaintiff or defendant
2. Without his presence the suit cannot be fully decided.
The test for a Court adding a party is whether the suit will effect legal intere
st of the person sought to be added. (Razia Begum Case & Ramesh vs Bombay Munic
ipal Corporation).
Representative Suits
Under Order 1, Rule 8 the suit filed by one or more persons on behalf of others
having the same interest in the suit. Certain conditions must be fulfilled in c
ases of representative suits
1. Parties must be numerous
2. They must have the same interest in the suit
3. Permission must be granted or direction must be given by the Court
4. Notice must be given to the parties to be represented in the suit.
In the Tamil Nadu housing board case although separate notices were given to all
a lot please, the cause of action was considered as one and representative suit
s were allowed.
Frame of suit (Order II, Rule I) - the plaintiff has to include in his suit the
entire claim and all the claims the plaintiff is entitled to from that cause of
action. Under Order II, Rule 2 is the plaintiff is not sue for any portion of t
he claim and then he is not entitled to sue later. Under Order II, Rule 2 a pla
intiff may not alter the frame of the suit unless leave of the Court is taken.
Certain conditions are needed to be fulfilled
1. Same cause of action
2. More than one claim
3. Entitled to sue.
Joinder of claims (Order II, Rule 4) for immovable property wearing a suit canno
t live for anything other than the following
1. Claim for mesne profits or arrears of rent
2. Claim for breach of contract
3. Claims in which the relief sought is on the same cause of action. (Claims i
ncidentally and collaterally in issue may be included in the same suit)
Under Order II, Rule 3 The joinder of the cause of action the plaintiff may unit
e in the same suit several causes of action against the same defendant and vice
versa.
Under Order II, Rule 7 a claim of mis joinder of a cause of action is to be base
d at the earliest instance.
Pleadings
Under Order 6, Rule 1 are pleadings is a plaint or a written statement. Under O
rder 6, Rule 2 the pleadings shall contain only a statement in a concise form of
the material facts on which the party relies on for his claim or defence. Ther
e is no need for evidenced by which it is to be proved. There are four rules of
pleadings which may be listed as follows
1. Pleadings should State facts and not law
2. Facts should be material facts
3. No evidence
4. Should be concise.
In the Madhavrao Scindia Case it was stated that all primary fact it must be pro
ved at the trial to establish the cause of action or defence must be included in
the readings. Facts are not to be taken as evidence and all facts are consider
ed as facta probanda.
Alternate and inconsistent pleadings. Pleadings can have alternate pleadings in
the plaint or written statement. It can also raise inconsistent pleadings but
are allowed as long as they are maintainable in law. Under Order 6, Rule 7 unle
ss there is amendment no party is allowed to make subsequently inconsistencies.
Amendment of pleadings - In the case of Kisandas v. Vithoba the amendment was al
lowed if two conditions were satisfied
1. It should not be unjust to the other side
2. It is necessary to determine the real questions in controversy.
Under Order 6, Rule 17 lead to amend would not be allowed in the following cases
1. Amendment is not necessary to determine the real question in controversy
2. If the amendment introduces totally new and inconsistent elements which chan
ges the fundamental character of the case
3. If the amendment will take away the legal right that has accrued
4. If the amendment is not in good faith.
Leave to amend may be sought that any stage and since it is not a decree there i
s no appeal and only revision.
Plaint and Written Statement
A plaint (Order 7) is the statement of claim with which the suit is instituted.
The particulars of a plaint under Order 7, Rule 1 there be listed as follows
1. Name of the Court by the suit is brought
2. Name, description and place of residence of plaintiff and defendant
3. If plaintiff or defendant is a minor or of unsound mind that should be liste
d
4. Facts constituting the cause of action and when it arose
5. Facts showing Court has jurisdiction
6. Value of subject matter for purposes of valuation and for pecuniary jurisdic
tion
7. Relief claimed either simply or in alternative
8. If set off or relinquishment
Rule 2-Money Suits
1. Exact amount claimed
2. If mesne profits or amount yet to be decided then approximate value
3. No suit for pendente lite or future interest.
Rule 3-immovable property-description of property
Rule 4-representative suits-show actual existing interest in subject matter and
that all steps to institute it having taken
Rule 5-show's defendant's interest and liability in subject matter
Rule 6-grounds for exemption from limitation law that period of limitation has e
lapsed
Rule 11-grounds for rejection of plaint
1. Where cause of action not disclosed
2. Where relief claim the is under valued and plaintiff fails to do so in time
given by Court
3. Stamp duty not proper and not corrected in time
4. Suit appears to be barred U2 statute by submissions in plaint
5. Not filed in duplicate
6. Failure to comply with Rule 9
Cause of action-every facts needed to be proved for a particular case. Rights d
etermined on date of filing suit-if cause of action rises later-not permissible.
Rule 9-when plaint is admitted by Court filing of copies to pay requisite fees f
or the service of summons on the defendant within seven days.
Rule 10-return of plaint for want of territorial jurisdiction or pecuniary juris
diction.
Rule 10 A-No need to serve summons if suit is return and the date of appearance
fixed by the returning officer. There is also no need for fresh summons since n
otice is given then and there.
Rule 11-The Court should look only at plaint and nothing else
Rule 13-Rejection of plaint on grounds mentioned in Rule 11 does not preclude a
fresh plaint
Rejection of plaint is a decree under section 2 (2) and is therefore appealable
under section 96.
The characteristics of return of plaint may be listed as follows
1. Under Order 7, Rule 10
2. Want of jurisdiction for return of plaint
3. May be returned at any stage
4. Same suit can be re filed
5. Return of plaint order
The characteristics of rejection of plaint may be listed as follows
1. Under Rule 7, Order 11
2. Rejection can take place on grounds like undervaluation, non-payment of cour
t fee etc.
3. Usually requested initially
4. Rejected plaint cannot be the filed - new suit
5. Rejection is a deemed decree
Issue and Service of Summons
Section 27 states that when the suit is instituted the summons is issued to the
defendant to appear and answer the claim and served in the prescribed manner and
it is not to be more than 30 days from the institution of the suit.
Order Five, Rule 1 and 2 states that every summons shall be signed by the charge
and sealed with the seal of the Court and must be accompanied by the plaint. T
he proviso to Rule 1 states that no summons if needed if the defendant is presen
t when the plaint is present.
Mode of service of summons
1. Personal or direct service-Rule 12-whenever practicable-service on defendant
or agent authorised to accept service
2. Rule 13-in the suit related to work of business and the defendant is not wit
hin jurisdiction limits of the Court the summons may be served on his agent who
carries out his work.
3. Under Rule 15 when the defendant is not available and no agent of his exists
and there is no likelihood of him being available within reasonable time it may
be served on any adult member of his family and does not include his servant.
Under Rule 11 service has to be made on all defendants.
Service through the Court under Rule 9 is summons to the defendant within the ju
risdiction of the Court by the Court officer or through an approved courier serv
ice. The summons may also be sent through registered post, speed post, courier,
fax, e-mail or any other permissible means of transmission.
If the defendant is outside the jurisdiction it may be sent to the Court which h
as jurisdiction. Further, service by the plaintiff is allowed under Rule 9 A.
There are two modes of substituted service
1. Where the defendant or agent refused to sign the acknowledgement slip or
2. Where the serving officer after due diligence cannot find the defendant who
is absent from the residence and there is no likelihood of him returning within
reasonable time and no agent is available.
In any of these cases the serving officer made a fix a copy on some conspicuous
part of the premises. This action has to be declared as duly served under Rule
19.
If there is reason to believe under Rule 20 that defendant is avoiding service t
hen the summons may be a fix or served in any other manner. But this may only b
e done after inquiries are made and followed up upon. There must be satisfactio
n of avoidance of summons which must be proved to the Court to satisfy the preco
ndition under Rule 20.
Written Statement
A written statement signifies the reply to the plaint filed by the plaintiff. U
nder Order 8, Rule 1 within 30 days of the service of summons which can be exten
ded to 90 days the written statement must be filed.
Special rules of defence
1. Produce all documents supporting the defence or set of or counterclaim
2. New facts etc. must be raised here
3. Rule 3-should deal specifically with every given fact not admitted
4. Rule 4-denials should not be vague or evasive and denials should be specific
, clear and explicit
5. Under Rule 5 every allegation which is not deny is taken to be admitted. Ben
dat vs East India Company stated that the combined effect of rules 3,4,5 specifi
cally deal with every allegation of fact and deny the same explicitly and to hav
e the point of substance. If the denial is evasive the fact shall be taken to b
e admitted and no other proved is needed.
6. Even if the defendant does not give a written statement the plaintiff will s
till have to prove the case.
Set Off
Under Rule 6 a set off occurs when a cross claim offsets an initial claim. The c
onditions for the same may be listed as follows
1. It must be for the recovery of money
2. The sum of money must be ascertained
3. The some must be legally recoverable
4. Must be recoverable by all defendants
5. Must be recoverable from all the plaintiff's
6. Must not exceed the courts pecuniary jurisdiction
7. Both parties must fill same character as in the plaintiff suit.
The effect of a cross suit is that the defendant becomes the plaintiff and vice
versa. Under Rule Six there is no need for a separate suit and it can be includ
ed in the initial suit in the written statement.
An equitable set off is where is the amount is an ascertained then the amount ca
n be demanded if both demands arise out of one and the same transaction or right
so connected then they may be considered. This is permitted under Order 20, Ru
le 19 (3).
A legal set off as the following characteristics
1. For an ascertained some of money
2. Can be claimed as a right under order 8, Rule 6
3. Cross demands need not arise out of the same transaction
4. Must be legally recoverable and not time barred
5. Legal so needs court fee
Equitable set off
1. For an unascertained some
2. Is on the discretion of the Court under order 20, Rule 19 (3)
3. Only when the claim arises out of the same transaction
4. It is permitted even if it is time barred days it is based on a fiduciary re
lation
5. No court fee.
Counterclaim
A counterclaim is a claim by the defendant against the plaintiff. A counterclai
m has to be a claim that could have been the subject matter of another suit and
it is essentially a cross action.
In the case of Laxmibai v. Nanabhai, even though a counterclaim may not have all
the particulars of a plaint it is in a sense a plaint from the defendant. Rule
68 provides for a counterclaim however it has to be within the pecuniary jurisd
iction of the Court.
A counterclaim (Rule Six A) as the effect of a cross suit and the Court can pron
ounced judgment on both.
A set off as the following characteristics
1. It is a statutory defence against the action of the plaintiff
2. It must be for an ascertained some of money or else it must arise out of of
the same cause of action
3. It is a ground of defence which would if established answer the plaintiff su
it in toto or pro tanto
4. When in the defendant's written statement the demand is for an amount lower
or equal to that of the plaintiffs claim
A counterclaim has the following characteristics
1. It is substantially across action
2. There is no need for unascertained some of money or for it to be from the sa
me cause of action
3. A counterclaim is a ground of offence independent of the plaintiff suit and
it is used to enforce claim that is effectually an independent action
4. If the claim is for a larger amount the excess amount is actually a counterc
laim.
Appearance and Nonappearance of Parties
Under Order Nine, Rule 1 the parties to the suit are to attend the Court in pers
on for by leader on the day fixing the summons.
Under Rule 12 where there is nonappearance of parties and no sufficient cause th
e suit may be dismissed or proceeded upon ex parte as the case may be.
Under Rule 2 the suit may be dismissed for non-payment of costs.
Under Rule 3 where neither party appears the Court may dismissed the suit.
Under Rule 4 the dismissal under Rule fee is not apart to a fresh suit and the C
ourt may also set aside Mr sufficient cause is found.
When only the plaintiff appears and the defendant does not, under Rule Six, the
plaintiff has to prove service and then the Court can proceed ex parte and the c
ase can be decided on the basis of the plaint.
Under Rule 10 if two or more plaintiffs exist and one does not appear the Court
may proceed as if all the plaintiffs are present.
When only the defendant appears, Rule 8,states that if only the defendant appear
s and does not admit the plaintiffs claim the suit may be dismissed otherwise an
appropriate order may be passed.
Rule 9 preclude a fresh suit for dismissal under Rule 8 however the application
for restoration of the suit is permitted.
Under Rule 11, when there is more than one the Court will proceed and it will be
ex parte against the non appearing defendant.
Under Rule seven is a matter is adjourned ex parte and the defendant can show su
fficient cause the clock can be set back and the trial will resume from the prev
ious time and it will be as if he appeared the previous time.
An ex parte decree is one which is passed in the absence of the defendant. The
remedies to the same may be listed as follows
1. Application to set aside the decree under order Nine, Rule 13
2. Appeal under section 96 (2)
3. Application for review under order 17, Rule 1
4. Filing of the suit for fraud.
Under order Nine, Rule 13 the application can be made on the grounds that
1. The summons was not duly served
2. He was prevented by sufficient cause from appearing when the suit was called
for hearing.
The proviso is that if it cannot be set aside against one of several then it wil
l be set aside against all. A further proviso is that it cannot be applied wher
e there is mere the regularity and it can be proved that the defendant had notic
e. If an appeal against an ex parte decree is decided on any grounds other than
withdrawal it would not be allowed. The limitation period for the same is 30 d
ays from the date of the decree.
In cases where the decree is set aside against all the defendants
1. Where it is joint and indivisible
2. Where it would lead to inconsistent decree is is not set aside
3. Where relief cannot be given effectually otherwise
4. Where decree proceeds on common grounds.
The effect of setting aside a decree is that the suit starts de novo and the ex
parte evidence cannot be considered. An appeal lies against an order rejecting
an application to set aside an ex parte decree. When an ex parte decree is appe
al against the Court should go into whether the Court was justified in ex parte.
Further revision is also allowed against an order setting aside an ex parte de
cree. A resume also be filed.
First Hearing
In the Sangram Singh case the court held that the day the Court goes into the co
ntentions and frames the issues is the first hearing. Order 10, Rule 1 is where
the Court asks whether claims or allegations in the plaint and written statemen
t are accept it or denied. Under Rule 2 there is an oral examination of the par
ties to elucidate matters in controversy.
Issues under Order 14, Rule 1 arise when a material proposition of fact or law i
s affirmed by one party and denied by another. Material propositions are those
propositions of fact or law which the plaintiff might allege to show a right to
sue or for the defendant to constitute the defence. Each such material proposit
ion affirmed and denied is the subject matter of a distinct issue.
Under Rule 1 issues are of three times-of fact, of law and mixed issues. Under
Rule 2 if there is a mixed question then a pronouncement must be made on all iss
ues. However if the decision of law is sufficient to decide the case it may be
accepted.
Importance of issues
1. Issues guide in leading of evidence
2. The Court cannot refuse to adjudicate and decide on a point where the issue
is framed and evidence led
3. The Court should not framed issues not in the pleadings
4. Issues restricted to material facts-facta probanda and not subordinate facts
used to prove material propositions.
5. One issue should cover only one fact or law
6. In appeal only adjudication on issues framed is possible.
In the case of State of Gujarat v. Jaipal Singh the court held that issues are t
he backbone of the suit and enlightened the way to proceed as to what is the con
troversy, what evidence may be lead and where lies the truth. Commission framed
issues is not necessarily fatal but it does effect the disposal of material pla
ced before the Court.
Temporary Injunction
The temporary injunction is the judicial process whereby a party is required to
do or not to do a particular Act. It may be in either of the following forms
1. Prohibitory
2. Preventive or restrictive
3. Mandatory.
Temporary injunction's are made to maintain the status quo and prevent change an
d provide protective relief to prevent future possible injury. The injunctions
are of two kinds-temporary and permanent. A permanent injunction restrain is a
party from doing any specific Act and is granted on merits at the conclusion of
the trial.
A temporary injunction on the other hand is granted only to the disposal of the
suit and it cannot be granted against the third party. The grounds for a tempor
ary injunction under Order 39, Rule 1 may be listed as follows
1. Where any property is in dispute and is in danger of being wasted, damaged,
alienated or wrongfully sold in execution of a decree
2. When the defendant threatens or intends to remove or dispose of his property
with a view to defraud his creditors
3. Where the defendant threatens to dispossess the plaintiff or cause injury to
the plaintiff in respect to any property in dispute
4. Where the defendant is about to commit a breach of contract or other injury
of any kind under Rule 2
5. When the Court feels that it is in the interest of justice under section 94
and 101.
The principles to issue a temporary injunction as have been laid down in the HPC
L v. Narayan as adapted from the American Cyanamid case may be listed as follows
1. Existence of a prima facie case-the plaintiff has to establish before the Cou
rt that the Court should be guided by the plaintiff's case as revealed in the pl
aint and the affidavits etc.
2. Irreparable injury-the plaintiff has to show that if the temporary injunctio
n is not granted then irreparable injury would be suffered and that no other rem
edy is open to him other than a temporary injunction
3. Balance of convenience-the plaintiff must establish that the comparative inj
ury that will be caused by refusing the injunction is greater than what it would
be to the opposite party by granting it.
4. Other factors also need to be considered but it is largely left to the discr
etion of the Court.
The injunctions which can be granted are therefore against transfer of property,
disposal of goods, construction, recovery of dues, attachment, appointment of t
he receiver etc.
And injunction which cannot be granted is one which causes administrative inconv
enience or public mischief. No injunction against the recovery of tax, suspensi
on or transfer of an employee will be granted. Where an injunction is not grant
ed under order 39 it can be granted under section 15.
A proviso to Rule 3 is that an ex parte temporary injunction may be granted and
the reasons stated in writing and the court has to consider whether the and went
on for some time before the plaintiff moves the Court, whether the and was done
in good faith, whether it is for a limited period and all the other norms that
exist for a normal temporary injunction. There is no presidential value for inj
unctions. It is appealable under order 43, Rule 1 and if it is decided upon in
the case it may go for revision under section 115.
The remedy for a breach of injunction is under section 94 (2) and order 39, Rule
2 A which is either arrest or attachment. Interlocutory orders under order 39,
Rule 6 deals with the sale of movable property in a case where it is subject to
spoil or decay or for any other good cause. Rule 7 deals with detention, prese
rvation, inspection of any property.
Receiver
Order 14, Rule 1 states that if the Court feels that it will be just and conveni
ent it may appoint receiver. The principles to be followed in this regard may b
e listed as follows
1. At the discretion of the Court
2. Protective relief-preservation of property in dispute pending judicial deter
mination
3. Not to be appointed unless the plaintiff has a Prima Facie Case
4. Depending on the conduct of the plaintiff
Powers of the receiver(The powers of the receiver are largely left to the discre
tion of the Court)
1. To institute and defend suits
2. To realise, manage, protect, preserve and improve property
3. To collect, apply and dispose of rent and profit
4. Execute documents
5. Any other powers.
Withdrawal and Compromise of Suit
Under order 23, Rule 1- The plaintiff may abandon his suit or any part of his cl
aim without relief of the Court. However he is then precluded from filing a fre
sh suit.
Under Order 23, Rule 1 without relief of the Court of plaintiff may abandon his
suit or any part of his claim without believe of the Court on the following grou
nds
1. Formal defect-defect of former or procedure-not affecting the merits of the
case-mis joinder, want of notice, improper valuation etc.
2. Other grounds- ejusdem generis
The effect of such withdrawal is to remove the power of res judicata and it also
applies to appeals and revisions.
Compromise of suit is where it is open to parties to compromise. Order 23, Rule
3 comes into play when the Court is satisfied that the suit has been adjusted w
holly or in part by any lawful agreement in writing between the parties. If the
defendant satisfies the plaintiff in respect of any part of the subject matter
the Court shall record the same and pass a compromise decree.
The Court must be satisfied that the agreement is lawful and the decree can be p
assed in accordance with it. A compromise decree cannot operate as res judicata
but may act as estoppel. Under Rule 3 A low suit questioning the legality of a
compromise decree is possible and there is no appeal against a compromise decre
e passed the consent. But under order 43, Rule 1 A and order recording a compro
mise decree can be challenged.
Abatement of Suit-Death, Insolvency and Marriage of Parties
The suit against a dead person is non est or stillborn. Under order 22, Rule 1 a
nd if the sole plaintiff dies the suit can be continued by the legal representat
ive or his heirs if the right to sue survives. Under Rule 2 where several plain
tiff's exist the remaining plaintiff may continue the suit if the right to sue s
urvives. Under Rule 6 if the death of the plaintiff parkers after hearing and b
efore the judgment there is no abatement of the suit. The rules applicable to t
he defendant are similar.
Under Rule for an application may be made to bring the legal representatives or
heirs of the defendant as parties within 90 days. An application may also be ma
de setting aside abatement if the plaintiff is ignorant of the demise of the def
endant.
Under Rule 5 the right to sue and the right to relief survives is the cause of a
ction survives and there is no abatement of the suit. Therefore if it is a pers
onal action the suit will abate and this is based on the Latin maxim 'actio pers
onalis moritur cum persona'.
In Veerappa v. Elevyn it was held that if a case is based on personal action lik
e tort and even if it is partly personal the suit would abate. This applies to
appeals as well.
Under Rule 10 A in it is the obligation to communicate the death of the party to
the reader. Under Rule 9 if the suit abates or is dismissed due to failure to
bring the legal representatives on record no fresh suit on the same cause of act
ion is possible. It would only be possible to set aside the abatement. This do
es not act as res judicata.
Insolvency
Under Rule 8 the suit does not abate if the plaintiff is considered insolvent si
nce it may be continued by the receiver. If the defendant becomes insolvent Rul
e a does not apply and application may be made for the stay of the suit. Under
Rule 10 the demolition of interest during the pendency of the suit of interest i
n the subject matter passes to another.
Trial
Summoning and attendance of witnesses. Order 16, Rule 1 states that parties to
the suit will have to present a list of witnesses to the Court within 15 days of
the framing of issues.
Rule 1 (3) also provided that witnesses outside the list may be called insuffici
ent cause may be shown. Summons are then issued.
Rule 1 A states that a party may call witnesses without the assistance of the Co
urt but need to confirm to Rule 1 (3). Rule 1 and Rule 1 A. operate in differen
t spheres when the party wants the system of the Court to get witnesses Rule one
applies otherwise Rule 1 A. applies.
Consent to summons under Rule 5 may be listed as follows
1. Time and place
2. Purpose
3. Documents required from him.
Rule 8. states that service of summons is in the same manner as laid down in ord
er 5. Rule 10 states that the Court has the power to enforce attendance of any
person and may
1. Issue warrant of arrest
2. Attach and sell property
3. Impose fines
4. Furnish securities.
Adjournment
Order 17, Rule 1 states that the hearing should continue on a day-to-day basis a
nd an adjournment can only be made for unavoidable reasons and not more than thr
ee times. It is normally granted for sickness, non service of summons, preparat
ion for case, withdrawal of appearance by counsel etc. Adjournments may be refu
sed if the council is in another Court or if it is under the ruling to proceed a
t the previous hearing. Rule 1 states that costs may be imposed for adjournment
s. In case of a failure to appear on the adjourned day the suit will be dispose
d as per order nine or otherwise. If majority of the evidence is taken in the C
ourt may proceed with the case.
Hearing of Suit
Under order 18 evidence is generally taken in open Court only before and under t
he supervision of a Judge. However a trial may be held in camera if it is neede
d for the administration of justice
Remaining portions are (See Takwani)
1. Judgments, order, decree
2. Review, reference, revisions
3. Appeals
-------------------------------------------------------------------------
Appeals
First Appeal
An appeal is the judicial review of the decision of an inferior Court by a highe
r Court. The three basic elements of an appeal are
1. A decision
2. An aggrieved person
3. A reviewing body.
It is not an inherent or natural right but it is the creation of a statute and i
t is substantive and not procedural. A single right of appeal is a universal re
quirement. The difference between the suit and an appeal as was laid down in th
e Ganga Bai case is that a suit derives from an inherent right but the right to
appeal is not inherent and needs the sanction of law for maintainability.
An appeal may do three things
1. Reverse the order
2. Modify the order
3. Dismiss the order.
But it must be noted that after the appeal the applet order is the operative ord
er. The characteristics of a first appeal may be listed as follows
1. First appeal applies against the decree passed by the Court exercising origi
nal jurisdiction
2. First appeal may be filed in a superior Court which may or may not be the Hi
gh Court
3. First appeal may be made on a question of fact, law or a mixed question
4. Letters patent appeal may lie against the judgment of a single Judge to a di
vision bench.
It may be distinguished from a second appeal in the following ways
1. A second of the lies against the decree of the first appeal
2. A second appeal may be made only to the High Court
3. The only grounds for a second appeal is that there is a substantial question
of law.
4. There is no letters patent appeal in second appeal.
Section 96 states that unless otherwise an appeal shall be provided from every d
ecree passed by a Court exercising original jurisdiction and
1. It may lie from an ex parte decree
2. May not lie from a compromise decree
3. No appeal is possible from a Court of small causes where the value of the su
it is less than Rs.3000/-unless there is a substantial question of law.
The two conditions for an appeal are that
1. There must be a decree
2. There must be an adversely affected party.
If there is an agreement not to appeal it is legally valid and then no appeal ca
n be forwarded. A compromise decree is also considered as an estoppel either im
pliedly or directly against an appeal. An appeal is possible from a preliminary
decree as well as from a final decree.
Under section 97 in the final decree the preliminary decree cannot be challenged
if not appealed against and the preliminary decree cannot be objected against i
n the final decree. An appeal is possible only against the decree and not again
st the judgment unless the decree is not drawn up. Further, the finding of the
Court cannot be questioned..
The form of an appeal under Order 41, Rule 1 may be listed as follows
1. In the form of a memorandum
2. It must be signed
3. Must be present it to the Court
4. Must be attached with a certified copy of the decree
5. Must be attached with a certified copy of the judgment unless the Court disp
enses with it
6. If it is a money decree then the amount or security is to be furnished.
Rule 4 states that if the grounds are common to all the plaintiffs or defendants
and is overturned for one it is overturned for all. Further, Article 116 of th
e limitation and states that the time for appeal to the High Court is 90 days.
Condonation - Rule 3 A states that if there is a delay in filing the appeal than
the application must state reasons for the delay so that they may be condoned.
Stay - Rule 5 talks about the stay on execution pending appeal is grounds are pr
oved but does not states that a mere appeal is enough. The principles for a sta
y may be listed as follows
1. Application for stay without delay
2. Substantial loss unless the stay is given
3. Security for performance given
4. In case of a money decree security is necessary.
Cross objection - Order 41, Rule 22 states that where the defending party is in
favour of appeal and the other party is in favour of revision, the party in favo
ur of revision and has not appeal may file cross objections in the same appeal.
A cross objection may be filed in the following cases
1. Where revision could have been preferred to an appeal
2. Where the party is aggrieved by a finding in the judgment even though the de
cree is in his favour.
It is very similar to cross appeals and the only difference is that in a cross a
ppeal there exist two distinct and independent proceedings. Rule 22 states that
it has to be filed within 30 days. Rule 33 states that even if the cross objec
tion is not made the Court has the power to make necessary changes to the decree
. The principles of a cross objection may be listed as follows
1. It is a substantive right given by a statute
2. It is like an appeal filed under Order 41, Rule 1
3. Even is an appeal is withdrawn or dismissed for default the cross objection
may be heard and decided upon.
Section 107 and Rule 24 allow for the final disposal based on the evidence on bo
ard. The Court may also proceed on grounds other than those in the trial.
Remand
Under Order 41, Rule 23 is the trial court has decided on a preliminary issue wi
thout recording the finding on other issues the appeal Court may send back for a
retrial if the decree is reversed. The conditions for a remand may be listed a
s follows
1. Disposal on a preliminary point
2. Decree is reversed.
Rule 23 A states that even if the finding is made on other issues is a remand is
necessary in the interests of justice it may be made. But an order for remand
is appealable under Order 43, Rule 1.
Rule 23 deals with that the trial as per the orders of the appellate Court. Rul
e 25 states that if the lower court has failed to
1. Frame any issue
2. Try any issue
3. Determine any question of fact essential for the right decision,
The appellate court mainframe issues, refer for trial and the lower court should
try and returned the evidence and findings.
The difference between Rule 23 and Rule 25 is that in Rule 23 the whole case goe
s back, the final order cannot be considered except under review and is appealab
le part in Rule 25 only the issues are returned, there is an interlocutory order
and it is not appealable.
Rule 27 deals with additional evidence, it states that
1. When the lower court has improperly refused to admit evidence
2. And where such evidence was not within the knowledge of the party or could n
ot be produced by him after due diligence at the trial
3. All where the appellate Court re opens the case additional evidence needs to
be forwarded.
Rule 33 empowers the appellate Court to pass any decree or order which ought to
have been passed or make any such decree or order that the case may require and
it is similar to the inherent power of the Court under section 151. It is a wid
e and discretionary power which is necessary in the interests of justice.
Section 99 states that if a decree is correct on merits or jurisdiction it shoul
d not be upset for technical reasons.
Letters Patent Appeal - There is no permission in the Court of civil procedure f
or appeal from a single to a division bench and it is generally covered by High
Court rules governing letters patent appeal. But Section 100-A states that ther
e may be no letters patent appeal from a decree and order of a single judge exer
cising appellate jurisdiction but this will not apply to article 226 and article
227 of the Constitution.
Second Appeal
Section 100 states that the second appeal is allowed if the High Court is satisf
ied that it involves the substantial question of law. The conditions of a secon
d appeal may be listed as follows
1. Substantial question of law
2. The memorandum must precisely states such question
3. Such question is formulated at the time of admitting the suit
4. Appeal heard only on that question
5. May hear on other substantial questions of law if it feels the need.
The differences between a second appeal and revision may be listed as follows.
A second appeal has the following characteristics
1. The ground for a second appeal is a substantial question of law
2. It is filed against the decree of the first appeal
3. It can interfere with an order if it is legally wrong
4. It can decided any issue of fact
5. It has no discretionary power and it cannot decline to grant relief.
A revision can be made on the
1. Grounds of a jurisdictional error
2. Only in cases where no appeal lies
3. If the order is legally wrong but within the jurisdiction of the Court then
the revision court cannot interfere
4. The court cannot decide and issue of fact
5. The Court may decline to grant relief if substantial justice is done.
On the issue as to what constitutes a substantial question of law the Chiminlal
Mehta Case states that if it is of general importance or defeat directly and sub
stantially affects the right of the parties and is an open question not finally
settled by the Court it would be a substantial question of law. Substantial que
stion of law means a substantial question of law as between the parties and not
just of general importance.
Under section 101 there is no second appeal except on the grounds which have bee
n laid down in section 100. Section 102 states that there is no second appeal w
here the subject matter is less than Rs. 25000/-and limitation period is 90 day
s.
Section 103 states that the Court may decide on facts if they have not been deci
ded either by the trial court or the appellate Court or that it has been wrongly
determined by reason of its decision on a substantial question of law. It must
be noted that there is no letters patent appeal against a second appeal.
Appeal from Orders
Appealable orders are stated under section 104. This section states that an ord
er awarding compensatory costs may be appeal against under section 35 A in only
on grounds that the order should not be made or that the order has been made for
a lesser amount.
An order refusing leave to institute the suit under section 91 against a public
nuisance is appealable. An order refusing leave to file a suit for breach of tr
ust under section 92 is appealable.
An order granting compensation for obtaining arrest, attachment or injunction on
sufficient grounds covered under section 95 is appealable.
An order imposing a fine order directing arrest or detention in civil cases exce
pt if it is for the execution of a decree is appealable.
Under order 43, Rule 1, the returning plaint is to be presented to the proper Co
urt under section 107. The order rejecting the application to set aside dismiss
al for the defendant is covered under Order 9, Rule 9. An order refusing the ap
plication to set aside an ex party decree is covered under order 9, Rule 13. Ea
ch of these are appealable.
An order dismissing a suit for non-compliance with order for discovery or an ord
er object into the draft of a document or endorsement is appealable. An order s
etting aside order refusing to set aside the sale or rejecting application to se
t aside the order is appealable. An order passed ex party in an execution procee
ding and order to set aside abatement or dismissal of a suit is appealable. An
order giving or refusing to give leave to continue foreign agent or and assignee
is appealable.
An order rejecting an application in appealable cases to set aside dismissal of
a suit for not furnishing security for costs is appealable. An order rejecting
an application for permission to sue and indigent person is appealable. An orde
r to deposit money of furnished security for appearance of the defendant or for
attachment of property before the judgment is appealable. An order granting or
refusing a temporary injunction is appealable. An order for attachment or deten
tion of a person violating a temporary injunction is appealable. An order disch
arging, being, setting aside a temporary injunction is appealable. An order for
deposit of money or goods to be delivered is appealable. An order for the appo
intment of a receiver is appealable. An order refusing to restore the suit for
not appearance of the defendant is appealable. An order refusing to hear an app
eal ex party is appealable. An order of remand is appealable. An order grantin
g an application for review is appealable.
Under section 105, Rule 1-A every order appealable or otherwise can be attached
in an appeal from the defendant on the grounds that
1. There is an error, defect, irregularity in the order
2. Such error, defect all irregularity has affected the decision.
Section 106-Forum of appeal-same court where appeal from decree would lie.
Section 104-no appeal from an order made in appeal-letters patent appeal only fo
r original side.
Appeal to the Supreme Court
Under section 109 a judgment, decree or final order passed by the High Court in
which the substantial question of law is of general importance and in the opinio
n of the High Court the Supreme Court needs to decide the matter the matter may
lie in appeal to the Supreme Court.
Under order 45 the appellate has to file a petition praying for a certificate st
ating that there is a substantial question of law of general importance which ne
eds the decision of the Supreme Court.
Reference, Review and Revision
Reference
Under section 113 a subordinate Court may state a case and refer it to the High
Court foreign opinion if there is a doubt over a question of law. The condition
s for the use of review may be listed as follows
1. It must be a pending suit or appeal in which the decree is not subject to ap
peal or a pending proceeding in execution of such decree
2. A question of law or usage having force of law must arise
3. The Court must have a doubt as to a question of law.
A question of law is of two types
1. Doubts over validity of Act, ordinance and regulation
2. Other questions.
Proviso to section 113-In the first case if
1. Necessary to decide such question to dispose of the case
2. The subordinate Court feels that it is ultra vires
3. No pronouncement by the Court of ultra vires nature. Then reference becomes
mandatory.
Only a Court can refer either on application or suo motu under Order 46, Rule 1.
Under Rule 3 the Court may answer the substantial question of law but the Cour
t cannot make an order on the merits of the case.
Under article 228 the transfer of a case may either dispose of itself or a refer
ence since article 228 deals with a substantial question of law as to the interp
retation of the Constitution. The different therefore between section 113 and a
rticle 228 is that under section 113 the Court can go into the case and give its
opinion party in a reference under article 228 the Court has no such power sinc
e the case is transferred immediately to the Court of reference.
Review
Section 114 and Order 47. Once a judgment or order is made it cannot be altered
or changed as under order 20, Rule Five. If there is a glaring omission, paten
t mistake or grave error due to judicial fallibility a review can be adopted in
case of such manifest error on the face of judgment.
A review can lie under
1. Rule 1-where no appeal is allowed from a decree or an order similarly where
appeal is dismissed for being barred by time or passed by an incompetent Court
2. A review is permitted where the appeal was allowed but not preferred. There
is however no bar on the right to appeal.
But where an appeal is preferred before a review the review is not permitted. B
ut if the review is taken and the initial stage then the appeal is allowed. If
the review is granted and the order or decree is reversed the appeal will lapse
and vice versa.
Grounds for review
1. Discovery of new and important matter or evidence
2. Mistake or error apparent on fact of record
3. Any other sufficient reason.
Characteristics of the evidence
1. Evidence which after due diligence was not within his knowledge or could not
be produced
2. Maybe one of fact or law and has to be apparent on the face of it and should
be self-evident. No need for examination or arguments
3.Ejusdem generis
Limitation- Thirty days from decree or order
The order granting review is appealable under order 43, Rule 1 but no second app
eal lies from it. The only appeal that will lie is a letters patent appeal. Th
is provision is similar to that which exists in article 137 of the Constitution.
In the case of North India Caterers the Court held that the finality of a judgme
nt delivered will not be reconsidered except where a glaring omission or patent
mistake or grave error has crept in.

Revision
Section 115 - empowers the High Court to entertain revision in any case decided
in a subordinate Court in certain cases.
The High Court may call for records of any case decided by a subordinate Court t
o which no appeal lies if the subordinate Court appears to have
a. Exercise jurisdiction not vested by law;
b. Failed to exercise jurisdiction so vested;
c. Acted in exercise off its jurisdiction illegally or with material irregulari
ty.
Only applicable where the order if made in favour of the revisioner would have f
inally disposed of the suit.
1. No stay.
2. Non appealable cases only.
3. Case decided means - any order made or deciding an issue in course of th
e suit.
In Major Khanna v Brigadier Dhillon, the court held that revision will apply whe
re no question of jurisdiction decision can be corrected. It also held that Sect
ion 115 is like the writ of certiorari but the writ is wider in scope.
In the Pandurang case it was held that â It is not for the court to correct mistake
s of fact or law unless they have relation to the jurisdiction. Findings on ple
as like res judicata or limitation which oust the jurisdiction, Section 115 will
applyâ ¦.â

Section 115 Article 227

Only Judicial Judicial as well as administrative
A statutory power which may be taken away Constitutional, can't be taken a
way
Review is restricted to conditions in s.115 No Such Restriction

Conversion of appeal to revision -reliable water supply case -if in a case... do

es not... the memo of appeal may be treated as a revision and vice versa by invo
lving the inherent power under Section 115.
Appeal Revision
Lies to Superior Court not necessarily the High Court Applies only to the High
Court
Appeal lies only from decree and appealable orders Lies only from non appea
lable orders
Abates if L.R not brought on Does not abate High Court may bring any person
or parties at any time.
It is a substantive right conferred by statute It is a discretionary power
Lies a question of fact, law or mixed Only on jurisdiction error
Memorandum of appeal must be filed No need to file application. High Court
can suo motu take cog.
In an appeal there is a right to hear law as well as facts Only for satisfa
ction that case decided according to law. No power to reexamine or re asses or
review evidence unless it relates of jurisdiction

Second Appeal Revision

Lies on substantial question of law Lies on grounds of jurisdictional error
Lies only under section 100 Applies in cases where no appeal.
It can interfere with the decree if illegally wrong As long as the jurisdict
ion, can't interfere even if illegally wrong.
Can decide question of fact under section 103. Can't unless linked to jurisdict
ion.
Can't refuse to grant relief on... grounds. Discretionary power may forego i
f substantial ...

Appeal Reference
Right conferred on suitor Power vested in Court
Can be filed in Supreme Court not necessarily High Court Only to High Cou
rt.
Grounds for appeal are wider Grounds Narrow.
An appeal can lies only after decree or an order Reference in a pending s
uit
Appeal Review
Superior Court Same Court
Different judge Same subject matter reconsidered by same judge
Grounds wider Narrow
Second appeal on substantial question of law No second review

Reference Review
Subordinate Court that refers the matter Application made by party
High Court can only decide on the matter Same Court which decided that ca
se.
Reference made in a pending suit Review made only afterthedecreeis passed
.

Reference Revision
Case referred to High Court by subordinate Court Jurisdiction of High Cou
rt invoked by parties
Reference related to reasonable doubt on question of law Relates to juris
dictional error

Review Revision
Review by same Court Only to High Court
Can be made where appeal lies Only in cases where no appeal lies
Party is to apply Can be suo motu
Order granting review is appealable Order passed in exercise of revisional j
urisdiction not appealable

Conditions for granting of revision -

1. Decided case - Major Khanna case -understood as part of proceedings as w
ell. Therefore revision can lie against interlocutory orders.
2. Must not be appealable
3. By subordinate Court
4. Grounds under section 115 to be satisfied
5. Period of limitation - 90 days.
6. No letters patent appeal from an order in revision of jurisdiction.

READ THESE SECTIONS FROM WHEREVER:

1. LIMITATION ACT-SECTION 2-9, SECTION 11-26
2. GENERAL CLAUSES ACT-SECTION 5,9, 10, 27.
3. SUIT VALUATION ACT-SECTION 1-4, 8,11.
4. COURT FEES ACT-SECTION 1, 2, 6, 7
5. LEGAL SERVICES AUTHORITIES ACT-SECTION 2, 12,13,19-22, 22A-E, 27,28
6. ARBITRATION AND CONCILIATION ACT-SECTION 2, CHAPTER 2, 3,5, 9,SECTION 61
-64,,67,72,76,82.
ALSO DO CAVEAT AND MODE OF EXECUTION IDEALLY FROM TAKWANI
MORE THAN HALF THE NOTES ARE FROM
VISHROV
SO I HAVE TO ACKNOWLEDGE THE ASS⠦⠦⠦⠦⠦⠦⠦..