Civil Procedure

CIVIL PROCEDURE
V. S. Deshpande*
Revised by Dr. V. Sudesh''"1'
The key to the understanding of this subject lies in the very name "Civil
P r o c e d u r e . " Both the words "civil" and "procedure" are words of
classification. They define the residuary nature of civil procedure by
demarcating it from the other parts of law, which together with civil
procedure go to form the legal system of India. In the legal context, the
word "civil" is used in contradistinction to such words as "military,"
'criminal" and "revenue". The procedure with which we are concerned
relates to civil proceedings as distinguished from some other kinds of
proceedings such as military proceeding or a criminal proceeding or a
revenue proceeding. By and large, civil, military, criminal and revenue
procedures would fall into different compartments of law, which may be
called civil law, military law, criminal law and revenue law. In a wide sense,
the term "civil law" would denote the whole law of the state governing the
relations among its citizens inter se or between the state and the citizens as
distinguished from international law which operates among states inter se.
But in a narrower sense, civil law is only a part, though the most important
one, of the law of a state as distinguished from other parts of the law of the
state which relate to armed forces, crimes and land revenue. It is only when
revenue law is administered by separate tribunals that it retains its
distinction from civil law. But whenever it is administered by civil courts it
would be indistinguishable from civil law. This would be apparent from the
law relating to land revenue which is administered by revenue officers and
which excludes the jurisdiction of the civil courts contrasted with certain
other taxation laws which either expressly give jurisdiction to civil courts to
hear appeals etc., from the orders of the.taxing officers or which are brought
into civil courts collaterally such as by way of writ petitions under article 226
of the Constitution.
The word "procedure" as used in law is contrasted with substantive law.
The classification cuts across another classification, which is made according
to the sources of the law, namely, the division of law between statute law
and case law. For, both substantive law and the law of procedure may be
contained in statutes as well as precedents. It is not always easy to define
* Formerly Chief Justice, Delhi High Court.
'·'''■' Associate Research Professor, Indian Law Institute, New Delhi.
180 INDIAN LEGAL SYSTEM
clearly the nature of the law of procedure and to demarcate it from

substantive law. To a large extent, substantive law consists of rules relating
to rights and obligations of the state and individuals while the law of
procedure provides the manner in which these rights and obligations are
enforced. To some extent, the distinction between substantive law and law
of procedure is conterminous with the distinction between a right or
obligation on the one hand and a remedy on the other. But this distinction
is subject to well known exceptions. For instance, substantive law may deal
with remedies. The Specific Relief Act, for instance, is mainly concerned
with defining what specific remedies or reliefs are available in particular legal
situations entitling a person to claim the possession of specific immovable
property or of specific movable property or the performance of a contract.
On the other hand, substantive rights may form a part of what is usually
regarded as law of procedure. For instance, certain rights of appeals are
given by the Code of Civil Procedure, which is otherwise concerned mainly
with procedure and not with substantive rights.
What then is the place of a procedure in law? Procedure has to be
invoked only when the law has to be enforced. Prior to its enforcement, the
law may remain only a formulation of rules of conduct. But when these rules
have to be actually applied and enforced, then this can be done only
according to the procedure established by law. That is why Salmond 1
observes as follows:
The law of procedure may be defined as that branch of law
which governs the process of litigation. It is the law of actions -
jus quod ad actiones pertinet - using the term "action" in a wide
sense to include all legal proceedings, civil or criminal. All the
residue is substantive law, and relates, not to the process of
litigation, but to its purposes and subject matter. Substantive law
is concerned with the ends which the administration of justice
seeks; procedural law deals with the means and instruments by
which those ends are to be attained. The latter regulates the
conduct and relations of Courts and litigants in respect of the
litigation itself; the former determines their conduct and relations
in respect of the matters litigated.
The classic example that illustrates the distinction between the
substantive law and the law of procedure relates to the law of limitation and
prescription. The law of limitation lays down the periods during which suits
and applications may be filed for enforcement of rights and obligations
arising out of the various kinds of causes of action. If a suit or an application
is not filed within the prescribed period of limitation, then it cannot be filed
thereafter. For, most practical purposes, the expiry of the period of
1. Salmond, Jurisprudence, 9th ed., p. 648.

CIVIL PROCEDURE 181
limitation may disable a person from enforcing the rights or obligation,

which was to be the subject matter of the suit or the application concerned.
But in the eye of law, the right or the obligation is not affected by the expiry
of the period of limitation. For, the limitation was prescribed only for the
enforcement of the right or obligation. Therefore, a time-barred debt may in
certain circumstances be pleaded as a defense or by way of a set-off. It may
also be a good consideration for a contract. On the other hand, prescription
has the effect of creating and destroying rights. Salmond calls it "the
operation of time as a vestitive fact." Positive or acquisitive prescription
creates a right when, for instance, a user as of right for twenty years creates
an easement in favour of the dominant owner and adverse possession for a
period or twelve years creates a title in favour of the possessor. Negative or
extinctive prescription destroys an existing right. For instance, in view of
section 27 of the Limitation Act, 1963, the right of property is itself
extinquished if a suit for possession of such property is not instituted within
the period prescribed for such a suit. Similarly, the non-user of a continuous
easement for more than two years has the effect of destroying the right of
easement itself.
The Supreme Court was faced with the question whether the power
given to the government to make rules under section 96 (1) (b) of the
Employees State Insurance Act, 1948 to "prescribe the procedure to be
followed in proceedings before such court" included the power to make rule
17 limiting the time during which an application to the court is to be made
to twelve months from the date on which the cause of action arose. After
considering the broad distinctions between substantive law and procedural
law, Reddy, J., speaking for the court observed in Bharat Barrel and Drum Mfg.
Co. Ltd. v. The Employees State Insurance Corporation2 as follows:
It appears to us that there is a difference between the manner in
which the jurisprudential lawyers consider the question and the
way in which the Judges view the matter. The present tendency is
that where a question of limitation arises, the distinction between
so-called substantive and procedural statutes of limitation may
n o t p r o v e to be d e t e r m i n i n g factor but what has to be
considered is whether the statute extinguishes merely the remedy
or extinguishes the substantive right as well as the remedy.
Instead of generalizing on a principle the safest course would be
to examine each case on its own facts and circumstances and
determine for instance whether it affects substantive rights and
extinguishes them or whether it merely concerns a procedural
rule only dealing with remedies, or whether the intendment to
prescribe limitation is discernible from the scheme of the Act or
is inconsistent with the rule-making power, etc.
2. 1971 (2) SCC 860 at 868-869.

Apart from the implications inherent in the term procedure

appearing in section 96 (1) (b) the power to prescribe by rules
any matter falling within the ambit of the term must be the
"procedure to be followed in proceedings before such court."
The w o r d ' i n ' , emphasized by us, furnishes a clue to the
c o n t r o v e r s y that the procedure must be in relation t o
proceedings in court after it has taken seisin of the matter, which
obviously it takes when moved by an application presented
before it. If such be the meaning the application by which the
court is asked to adjudicate on a matter covered by section 75(2)
is outside the scope of the rule-making power conferred on the
Government.
Section 28 of the Contract Act declares that every agreement which
limits the time within which a party to a contract may enforce his right is
void to the extent to which it is contrary to the law of limitation. Public
policy requires that parties should not be allowed to prescribe by contract a
period of limitation shorter than the one which is allowed by law for the
enforcement of a contract. But neither section 28 nor any public policy
seems to make illegal a clause in an insurance policy that if the claim arising
out of such policy is not made within the time prescribed in the policy, then
the claim itself shall become void. Such a contract extinguishes the right
itself and is not concerned with shortening any period of limitation for the
enforcement of such a right. It is not, therefore, contrary to any law.
The distinction between substance and procedure also arises in another
context. Several statutes provide that "an order under the Act" is appealable
under the Act. Clause 10 of the Letters Patent of the High Courts of Delhi
and Punjab and Haryana corresponding to similar clauses of the Letters
Patents of the other High Courts provides for an appeal against "a
judgment". It is not every order or every judgment that is appealable. It is
only those, which affect the merits of the questions between the parties by
determining some right or liability that are appealable. Those orders are only
procedural, and not judgments, which are only steps taken towards the final
adjudication and for assisting the parties in the prosecution of their case in
pending proceedings and do not affect any right or liability of the parties.
They are not appealable. This distinction between the substance and
procedure cuts across the other classification between a final order on the
one hand, and a preliminary or interlocutory order on this other hand. Two
divergent views used to be held by two groups of high courts as to how the
substance should be distinguished from procedure in this context. On the
one hand was the view of the Full Bench of the Nagpur High Court in
Manohar v. Baliram^ and a Full Bench of the Rangoon High Court in
3. AIR 1952 Nagpur 357.

CIVIL PROCEDURE 183
Dayabhai v. Murugappa Cbettiar.4 According to this view, which was relied

upon by a Division Bench of the Delhi High Court in Gokul Cband D.
Morarka v. Company Law Board,5 a judgment means a decision in an action,
whether final, preliminary or interlocutory, which decides, either in whole or
partially, but conclusively the controversy which is the subject of the action
between the parties. O n the other hand is the view of the Calcutta and
Madras High C o u r t s . The locus classicus expressing this view is the
observation of Sir Richard Couch, C.J., injustices of the Peace for Calcutta v.
Oriental Gas Co.:b
We think that 'judgment'...means a decision which affects the
merits of the question between the parties by determining some
right or liability.
It would be seen that the meaning of "judgment", according to the
second view, is wider than the meaning placed upon it by the first view.
Having considered both the views, the Supreme Court has preferred the
wider to the narrower view in Shanti Kumar R. Canji v. The Home Insurance Co.
of New York7 followed in M/s Mazda Theatres Pvt. Ltd. & another v. M/s New
Bank ofIndia Ltd. and others?
The distinction between procedure and substance becomes material in
still another context, namely, whether the statutory provision concerned is
directory or mandatory. As a rule a statutory provision which merely lays
down the manner or form of doing a thing would be considered directory
while a statutory provision concerning a right or power for doing anything
may be considered to be mandatory. Of course the legislature may intend
even statutory procedure to be mandatory if the object is that the procedure
must strictly be followed. The general rule is illustrated by the decision in
Municipal Corporation of Delhi v. Bhagwan Das? Under the Prevention of Food
Adulteration Act, 1954 the food inspector has been given the power to seize
samples of food articles suspected to be adulterated. In doing so he has to
follow the procedure prescribed under sub-section (7) of section 10 of the
Act of calling one or more persons to be present to witness the seizure. The
question was whether non-compliance with this procedure vitiated the
seizure altogether. In answering the question the court found that it was
beyond the power of the food inspector to ensure compliance with this
procedure in every case. For, other persons may not be available. If available
they may not agree to witness the seizure. It was, therefore, held that the
procedure was directory in the sense that it should be complied with as far
4. AIR 1935 Rangoon 267.

5. ILR (1972) II Delhi 369 at 379.
6. (1872) 8 Bengal Law Reports 433.
7. AIR 1974 SC 1719.
8. ILR (1975) I Delhi I.
9. I L R (1972) I Delhi 285.
as practicable. It was not mandatory because the food inspector may not be
able to comply with it in a particular case. It could not be the intention of
the legislature to completely defeat the exercise of the power of seizure by
the food inspector by requiring him to comply with the impossible.
The difference between the power to amend the Constitution and the
procedure to be followed in amending the C o n s t i t u t i o n assumed an
unexpected importance in the construction of article 368 of the Constitution
in /. C. Golak Nath v. State of Punjab10. According to the analysis of the
decision made by Gajendragadkar P.Bin his Tagore Law Lectures on "The
Indian Parliament and the Fundamental Rights" 11 the following three views
havr been expressed:
1. Wanchoo J., and four of his colleagues agreed with the previous
decisions of the Supreme Court in Sankari Prasad v. Union of India12
and Sajjan Singh v. State ofRajasthan1* that article 368 conferred
power on Parliament to amend the Constitution and also prescribed
the procedure in that behalf.
2. Hidayatullah J held that article 368 was sui generis and conferred
power on Parliament to amend the Constitution and also prescribed
the procedure for it. H e , however, t h o u g h t that the p o w e r
conferred by article 368 was a legislative p o w e r and not a
constituent one.
3. According to Subba Rao CJ and his four colleagues, article 368 dealt
with merely the procedure for amending the Constitution and did
not confer power in that behalf.
Substantive rights have, however, often sprung out of procedure. For,
the most important quality of a right is its enforceability. Therefore, if
procedure exists for the enforcement of a right the effect is that the right
itself has been conferred on a person who can put the machinery of
enforcement into action. It would be possible, therefore, to infer the
existence of a power or a right even without an express conferment of the
same if the procedure prescribed by the statute is sufficient for the
enforcement of such right or power. Unless, therefore, there was anything
to the contrary in the Constitution, it was possible to argue that the
existence of the power of amendment could be inferred from the availability
of the procedure for amendment in article 368. "Because", as observed by
H . M. Seervai in his Chimanlal Setalvad Lectures on the position of the
judiciary under the Constitution 1 4 "in a sense the distinction between
10. AIR 1967 SC 1643: (1967) 2 SCR 762.

11. 77?e Indian Parliament and the Fundamental Rights, p. 158.
12. AIR 1951 SC 458: 1952 SCR 89.
13. AIR 1965 SC 845: 1965 (1) SCR 933.
14. The Position ofthe Judiciary under the Constitution ofIndia, p. 148.
CIVIL PROCEDURE 185
legislative and constituent power is procedural". The Constitution (Twenty-

fourth) Amendment Act, 1971 has, however, put the matter beyond doubt
by amending article 368 to make it clear that it gives power to Parliament to
amend the Constitution and also provides the procedure therefore.
T h e typical proceeding for the enforcement of civil rights and
obligations is a suit and the typical tribunal in which a suit is launched is a
civil court. Therefore, the basic statute covering almost the entire law of
procedure in India, namely, the Code of Civil Procedure, 1908 is concerned
almost wholly with the institution of a suit in a civil court, the progress of its
trial ending with orders or a decree and its further stages such as appeals,
reference, review and revision and the execution of decrees and orders. The
connected procedural enactments also deal with the civil court and suits.
For instance, the valuation of suits for the purpose of jurisdiction is
provided by the Suits Valuation Act and the payment of court fees on
plaints and memoranda of appeal is dealt with by the Court Fees Act. The
L i m i t a t i o n Act also prescribed periods of l i m i t a t i o n for suits and
applications in civil courts. The Evidence Act applies to evidence in courts,
civil as well as criminal. It is, however, realized that the essence of the
procedure laid down for the trial of a civil suit in all its stages is basic in its
character. It is, therefore, the guiding procedure for all proceedings other
than suits in any court of civil jurisdiction. Section 141 of the Code of Civil
Procedure, therefore, provides that the procedure provided in the Code shall
be followed as far as it can be made applicable in all proceedings in any
court of civil jurisdiction. For instance, the procedure for the compromise
of a suit under order 23, rule 3 of the Code of Civil Procedure was held to
be applicable mutatis mutandis to the compromise of a dispute regarding the
validity of an award pending before a court in view of section 41 of the
Arbitration Act and section 141 of the Code of Civil Procedure in Munshi
Ram v. Banwari Lai.15
The civil courts could not remain the exclusive tribunal for the
adjudication of all civil disputes for all time. Several factors contributed to
the establishment of tribunals other than civil courts for such purposes. The
growth of administrative tribunals replacing the ordinary civil courts in
various spheres is a universal phenomenon of the twentieth century in all
the states, the legal system of which are based on the English common law.
The civil courts were ill-adapted to the new tasks. They could not, for
instance, be expected to investigate, supervise, fix rates, grant or deny
licenses, issue regulations or co-relate all such activities. Many of the new
tasks required technical and expert knowledge of engineering, accountancy,
etc.
15. (1962) Suppl. 2 SCR 477.

Legal thinking itself has been greatly, though perhaps invisibly,

influenced by the procedure of the time being. As observed by Pollock and
Maitland:16
The behavior which is expected of a Judge in different ages and
by different systems of law seems to fluctuate between two
poles. At one of these the model is the conduct of the man of
science who is making researches in his laboratory and will use
all appropriate methods for the solution of problems and the
discovery of truth. At the other stand the umpire of our English
games who is there, not in order that he may invent test for the
powers of the two sides, but merely to see that the rules of the
game are observed.
As the learned authors pointed out the medieval English procedure was
strongly inclined towards the second model. But the need to temper it with
attributes of the first was felt through the course of time. Under the older
procedure the court was bound, as were the parties, by the formalities of the
procedure and had little or no discretion in using the rules of procedure. But
gradually it was realized that the judges must be deemed to have certain
"inherent" or "equitable" power to do justice and to prevent its being
delayed or defeated by technicalities. The modern procedure, as embodied,
for instance, in the Code of Civil Procedure, 1908, is a judicious mixture of
strictness of procedure and of discretionary powers enjoyed by the courts.
But their anxiety is to do justice. The rule of constructive resjudicata (section
11, explanation 4) and the rule prohibiting the splitting of causes of action
(order 2, rule 2) appear to work strictly against a plaintiff but they are
motivated by the salutary principle of preventing vexatious repetitions of
litigation. Section 151 is the outstanding assertion of the inherent power
which always exists in a court to do justice and prevent abuse of the process
of court. This power does not have to be conferred by the Code or any
other legislation.
Even when the Code does not apply in terms, a court has inherent
power to correct a palpable error and abuse of its process. Thus, in the
exercise of its writ jurisdiction a High Court was held to be competent to
recall its order which was passed without notice to a party who was to be
affected by it. 17
A basic principle of all litigation is that once it ends, it should not be
reopened. This applies not only to civil suits governed by the Code of Civil
Procedure but also to the decisions of quasi-judicial tribunals such as
industrial tribunals and labour courts. But a distinction must be drawn
between the following three kinds of termination of litigation:
16. The History ofEnglish Law, 2nd ed., pp. 670-671.

17. Shivdeo Singh v. State ofPunjab AIR 1963 SC 1909.
CIVIL PROCEDURE 187
(1) Where a suit or an application is simply withdrawn and is dismissed

as such without any decision on merits. Suits are regarded more
strictly in this respect than other types of litigation. Under order 23,
rule 1 (4) of the Code of Civil Procedure a plaintiff who withdraws
from a suit without permission of the court under sub-rule (3) loses
his right to bring a fresh suit on the same cause of action. This is
not, however, a general rule which can apply to other tribunals on
principle without there being a specific provision analogues to order
23, rule 1 (4) of the Code of Civil Procedure in the statute govern
ing the tribunal concerned. 18 A fresh application after the with
drawal of a previous one would not, therefore, be barred. On the
other hand, it is contrary to the common law principle of non-suit.
In the English common law, the plaintiff had a right to abandon his
claim by voluntarily withdrawing from the contest at the trial for
the express purpose of avoiding any judgment and reserving his lib
erty to bring a fresh action. This was called a non suit. When the
plaintiff was so non-suited, there was no decision on the merits of
his case at all. This basic requirement of resjudicata and finality was
lacking when the plaintiff was non-suited.19
(2) The general principle of resjudicata is well known. Once the matter
substantially in issue in a suit is finally decided, it cannot be re-
agitated in view of section 11 of the Code of Civil Procedure and
the principle underlying it. This principle is so basic and important
that it applies to all decisions whether of courts or of tribunals. The
Code of Civil Procedure (Amendment) Act, 1976 strengthens and
extends this principle by suitably amending section 11. It is not
necessary now that the court "deciding the suit" must be competent
to entertain a subsequent suit before its decision can act as res
judicata in the subsequent suit. Similarly, the doctrine of resjudicata
is now applied to independent proceedings as also to execution
proceedings. Lastly, an adverse finding against a party would not act
as res judicata though the decision of the suit itself has not gone
against him. The party is now enabled to file an appeal against such
an adverse finding.
(3) Sometimes distinguished from resjudicata is the principle of finahty.
If the court or the tribunal simply dismisses a petition, it may not
act as res judicata, because it does not give reasons on the principle
underlying the decision of the Supreme Court in Daryao v. The State
ofU.P.20 Nevertheless, it would be a final order which is appealable
18 Ashoka Marketing Limited v. Sh. B. D. Gupta and another ILK 1975 (2) Delhi 659.
19. Spencer Bower and Turner, The Doctrine ofResjudicata, pp. 32-33.
20. 1962 (1) SCR 574.
on the principle of Ramesh v. GendaL·.21 If the order is not appealed

against, then it becomes final. The same effect is obtained by the
expiry of period of limitation for appeal against an appealable order.
The order thus may become final even though it may not be res
jtidkata,
The next stage in the development of conferring more discretion and
freedom from strict rules of procedure was the establishment of quasi-
judicial or administrative tribunals. The presiding officers of some of these
tribunal are not mere umpires in adversary proceedings. They have to act
even when there is no real lis or a proceeding between two parties. The
income tax officer or the sales tax officer is both an investigator and a judge.
They are not, therefore, bound by the strict rules of civil procedure or
evidence in gathering the material of the subject matter for decision or for
giving a decision on the same. The industrial tribunal is not bound by the
contract between the parties but can make out a new agreement between the
parties on grounds of equitable principles of industrial adjudication. 22
It is thought by some that the statutory authorities exercising quasi-
judicial power are creatures of the statutes creating them and hence they
cannot have any inherent powers. But in so far as they exercise judicial
powers, there is no reason why they should not have the same inherent
power to prevent abuse of judicial process and to recall orders in the nature
of a nullity. 23
A typical civil proceeding in India is an adversary proceeding in which
two parties oppose each other in a & inter partes (a suit or an action between
parties). Such a proceeding may be before a tribunal may be prescribed by
statute, statutory rule or administrative instructions or it may be left to the
tribunal concerned to devise its own procedure. The modicum of such
procedure is provided by what are called the rules of natural justice. Broadly
these rules are as follows:
1. A person should know the nature of the case against him before
any action involving civil consequences is taken against him.
2. He should have an opportunity to rebut the case against him and
also to prove his own case or defence, that is to say, he should have
a right to be heard.
3. The tribunal should act in good faith, that is without bias or
interest. 24
21. AIR 1966 SC 1445.

22. Bharat Bank Ltd. v. Employees ofBbarat Bank Ltd. 1950 SCR 459.
23. Metal Fabricators v. B. D. Gupta 1976 (32) F.L.R. 118.
24. See Byrne Kinematograph Renters Society Ltd. (1958) All E.R. 579, referred to in Suresh
Kosby George v. University ofKerela 1969 (1) SCR 317 at 325.
CIVIL PROCEDURE 189
If the rules of natural justice are not followed in any quasi-judicial

proceeding, then the proceeding would be vitiated and would be subject to
judicial review on that ground.
The procedure governing a civil suit in a court proper is laid down in
the Code of Civil Procedure. Briefly, it consists of the following stages,
namely:
1. Pleadings,
2. Jurisdiction of court,
3. Trial of the suit,
4. Judgment and decree,
5. Appeals, revisions and review,
6. Execution of the decree.
1. Pleadings
It is a question of substantive law as to whether a person has a cause of

action to file a suit in a court of law and whether on his death, such a cause
of action survives to his legal representatives. He can file a suit only by
alleging a cause of action in a plaint. His allegations would be presumed to
be true by the court for the purpose of entertaining the suit. But if the
allegations, even when presumed to be true, do not amount to the stating of
a cause of action then the plaint is liable to be rejected for want of a cause
of action. In the plaint, the plaintiff must state all the material facts but not
the law or the evidence to prove them. The defendant may file a written
statement to admit or deny the allegations in the plaint. In respect of the
admitted facts, the parties are not at issue and the plaintiff is entitled to a
judgment against the defendant on the admitted facts forthwith. When the
defendant does not wish to admit any facts, he must traverse them and deny
them specifically. An evasive denial is not sufficient. Facts that are not
specifically denied may in certain circumstances be deemed to be admitted
by non-traverse. If the defendant admits certain facts pleaded by the
plaintiff but pleads new facts to displace the effect of the admission, such a
pleading is said to be by way of a confession and avoidance. A reply or a
third pleading is then called for from the plaintiff to deny the new facts
pleaded by the defendant. Otherwise no third pleading is called for. It is not
otherwise necessary for the plaintiff to deny facts pleaded by the defendant
in the written statement. The plaintiff is not deemed to admit them and the
burden of proof would be on the defendant to prove them. The pleadings
may be supplemented by the parties by making admissions of fact, answers
and interrogatories, oral statements before the court and by admissions and
denials of documents filed by them.
Amendment of pleadings
Since the purpose of a pleading is to state the materials facts out of which
issue arise for decision, parties should have full freedom to state and restate
their precise positions, so that only the relevant issues arise and they are also
sharply defined. This is why section 153 of the Code of Civil Procedure as
also order 6, rule 17 of the first schedule to the Code, enables the court to
allow the pleading to be amended at any stage of the proceedings for the
purpose of "determining the real question or issue raised by or depending
on such proceeding" or "the real questions in controversy between the
parties".
Rule 17 was omitted by the Civil Procedure Code (Amendment) Act,
1999 (not enforced). The CPC (Amendment) Act, 2002 has restored the
provision w.e.f 1-7-2002 with certain limitations. A new proviso has been
added to the rule, namely that n o application for amendment of the
pleadings shall be allowed after the trial has commenced, unless the court
comes to the conclusion that in spite of due diligence, the party could not
have raised the matter before the commencement of trial.
After reviewing the relevant case law including the Supreme Court
decisions in Nair Service Society Ltd v. Rev. Father K. C. Alexander,25 Jai Ram
Manohar Lai v. National Building Material Supply, Gurgaon,2b and Pirgonda
Hongonda Paúl v. Kolgonda Shidgonda Patil,17 a full Bench of the Delhi High
Court laid down the following propositions regarding amendments of
pleadings in Smt. Abnash Kaur v. Dr. Avinash Nayyar and others.2*
(a) Not only the whole of the claim based on a cause of action must be
pleaded but all causes of action against the same defendant may also
be pleaded in the same plaint. Indeed, if they are in the nature of
different grounds to prove the case of the plaintiff and to obtain the
proper relief, then they must be pleaded inasmuch as contructive res
judicata would bar t h e m from being raised in a subsequent
proceeding (order 2, rules 2 and 3 and section 11, explanation 4,
Code of Civil Procedure, and Rajdeo Singh v. Royal Studios).2"*
(b) Ordinarily, the plaintiff's case is restricted to the original cause of
action pleaded. But to avoid a multiplicity of suits and also in view
of the considerations enumerated in (a) above, subsequent events
may also be allowed to be pleaded during the pendency of a
proceeding by an amendment of the plaint.
25. (1968) 3 SCR 163 at 184.

26. (1970) 1 SCR 22.
27. (1957) SCR 595.
28. ILR (1974) II Delhi 133.
29. 1971 SCR 818.
CIVIL PROCEDURE 191
(c) Amendment of pleadings may only be disallowed in rare cases, such

as the following:
(i) When it is not necessary for determining the real questions in
controversy or where it is merely technical or useless and of no
substance;
(ii) Where the suit would be wholly displaced by the proposed
amendments;
(iii) Where the effect of the amendment would be to take away
from the defendant a legal right which has accrued to him by
lapse of time;
(iv) Where the amendment would introduce a totally different, new
and inconsistent case, and the application is made at a late stage
of the proceedings; and
(v) Where the application for amendment is not made in good
faith.
The courts must recognize, therefore, that allowing an amendment of
pleadings must be the general rule and it is only exceptional cases that a
amendment may have to be disallowed. Delay in making amendment, unless
malafide, can always be penalized by imposition of adjournment costs on the
applicant.
Extension of time to the parties to the proceedings
Section 148 and 149 of the Code of Civil Procedure give the courts an
equally large or even a larger discretion to extend time to the parties for
doing any act prescribed or allowed by the court or by some other statute or
by an order of the court. Section 148 has since been modified by the CPC
(Amendment) Act, 1999 by introducing a period of limitation not exceeding
30 days in total for which courts in its discretion can enlarge time for doing
any act prescribed or allowed by the Code. The words "not exceeding thirty
days in total" have been inserted with a view to curtail procedural delay
caused by any party to the suit or proceeding. Enlargement of time, whether
one-time or phased, cannot exceed 30 days. Even if a compliance of a
condition precedent is stipulated by the court before a party can get the
benefit of such extension, the court is not deprived of a further discretion to
relax the manner of compliance with the condition precedent by a party. A
suit cannot be dismissed, therefore, merely on the ground that the court
cannot excuse the non-compliance of the condition precedent. 30 Of course,
when a period for doing any act is prescribed by a statute, such as the
Limitation Act, then the court has to apply the statute and has no discretion
to relax its terms, e.g. section 55 (4), order 21, rule 85, order 21, rule 92, and
30. Mahant Ram Das v. Ganga Das (1961) 3 SCR 763.

order 34, rule 5, of the Code of Civil Procedure. 31

Sometimes, a statute does not prescribe any period of limitation for
performance of an act thereunder by a party. The question arises whether a
party can claim a right to do such an act at any time, however late. The
answer is that the court has the discretion in exercise of its inherent powers
recognized by section 151 of the Code of Civil Procedure, to insist that the
act be done within a reasonable time. What is reasonable time would, of
course, be a question of facts and circumstances in a particular case. Any
possible abuse of the process of the court is thus prevented.
Extension of the application of the Code
Section 141 of the Code states that the procedure provided in the Code in
regard to suits shall be followed, as far as it can be made applicable, in all
proceedings in any court of civil jurisdiction. Similarly, certain statutes
contain provisions that the provisions of the Code of Civil Procedures
would apply to the proceedings under those statutes, e.g., section 53 of the
Land Acquisition Act and section 41 of the Arbitration Act. The following
guidelines may be mentioned in construing these provisions:
1. The distinction between a court and persona designate is to be borne
in mind. Section 141 of the Code of Civil Procedure applied the
provisions of the Code only to courts but not to apersona designata.
When a statute mentions that the adjudication has to be by a court
or by the presiding officer of a court stating his judicial designation,
etc., then the provisions of the Code would apply to the proceedings
in the particular court. 3 2 O n the other hand, when a person is
named to adjudicated u p o n a matter, in view of his special
qualifications but not as a court or the presiding officer of a court,
he would be acting as a persona designata.
2. Provisions of the Limitations Act are applicable to proceedings
which are conducted under the Code of Civil Procedure, because
the Limitation Act refers to the proceedings in suits, appeals and
applications. The Supreme Court has held that the provisions of the
Limitations Act are meant to apply only to suits proper in civil
courts and to appeals and revisions which arise out of them under
the Code. 33 On the other hand, when the provisions of the Code
are applied to a proceeding by virtue of section 141 or statutory
provisions making them applicable, such application must be
restricted to the provisions of the Code. The provision of the
Limitation Act applying to proceedings under the Code are not
31. See Hukum Chand v. Bansilal and others (1967) 3 SCR 695.
32. Municipal Corporation ofDelhi v. Kuldiplal Bhandari ILR 1969 Delhi 497 F.B.
3 3. Nityanand M. Joshi v. Life Insurance Corporation AIR 1970 SC 209.
CIVIL PROCEDURE 193
attracted to such proceedings merely because the provisions of the

Code have become applicable. The applicability of the provisions of
the Limitation Act has to be judged independently of section 141 of
the Code of Civil Procedure and by construing the statutory
provision which make the provision of the Code applicable as also
the provisions of the Limitations Act concerned.34
2. Jurisdiction of the court
The word "jurisdiction" in relation to a court may be used in two senses,

namely, (1) the inherent jurisdiction of the court, and (2) supplementary
jurisdiction regarding place and the kind of suit concerned. The inherent
jurisdiction would depend on the nature of the subject matter of the suit. If
the suit relates to immovable property, then the court within whose
jurisdiction the property is situated would have jurisdiction to try the suit
even though the defendant may be out of its jurisdiction. 35 All other suits
must be instituted only in that court which has jurisdiction over the
defendant. Such jurisdiction would exist when the defendant is an Indian
citizen wherever he may be residing at the moment or where the defendant,
if a foreigner, resides or works for gain within the jurisdiction of the court.
A court would have, therefore, no jurisdiction over a non-resident foreigner,
who has not submitted to its jurisdiction.36 The rules of the Supreme Court
in England and those in the Code of Civil Procedure in India provide for
service of s u m m o n s to defendants residing abroad. These rules by
themselves do not confer jurisdiction on the court issuing the summons to
non-resident foreigners. They are only a machinery of service based on the
assumption that jurisdiction against a non-resident foreigner exist. This
should be clearly understood though it is not explicitly stated in these
rules. 37
Other factors can also go to constitute inherent jurisdiction but they
have not been universally established. Each case has, therefore, to be
examined on its own merits.
In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehmani& the Supreme
Court re-affirmed the well-established rule that:
34. R. P. Conduit Manufacturing Co. v. Union ofIndia C.R.s 167,168 & 169 of 1974 and 410
of 1972 decided by a Division Bench of the Delhi High Court on 2.11.77.
35. Perm v. Baltimore (1750) 1 Vas. Sen. 444.
36. See Sardar Guráial Singh v. Raja ofFaridkot 1894 LR 21 LA. 171 and Andbra Bank v. R.
Srinivasam 1962 (3) S C R 391.
37. Cheshire, Private International Law, 79 et seq. and 652, 7th ed.; Graupner in 12
International and Comparative Law Quarteny 367, (1963); In reDtdles, 1951 Ch. D. 842 at
851, per Lord Denning and In re Trepca Mines Limited 1960 (1) WLR 1273.
38. AIR 1970 SC 1475.
When the decree is made by a Court which has no inherent

jurisdiction to make it, objection as to its validity may be raised
in an execution proceeding if the objection appears on the face
of the record: where the objection as to the jurisdiction of the
Court to pass the decree does not appear on the face of the
record and requires examination of the questions raised and
decided at the trial or which could have been but have not been
raised, the executing Court will have no jurisdiction to entertain
an objection as to the validity of the decree even on the ground
of absence of jurisdiction. 39
Two examples were given by the Supreme Court to show when a decree
is nullity: - (1) where it is passed without bringing the legal representatives
on the record of a person who was dead at the date of the decree, (2) where
it is passed against a ruling prince without a certificate without which a suit
could not be instituted against him. With great respect, the first example
needs to properly understood. At page 611 of the Chitaley's Code of Civil
Procedure, volume 1, 8 th edition, the following query was raised in relation to
this example; "it is, however, difficult to see how, in a case, for instance, of
a decree against a dead person, the lack of inherent jurisdiction could appear
on the face of the record." A qualification to the example would be that, as
pointed out mjagdish Cbander Bhalla v. Lakshman Swarup Bhatnagar,w the
basis underlying the rule is that a party must be heard before a decree can be
passed against him unless he is properly proceeded against ex parte.
Therefore, if the party dies after he is heard, then a decree could be passed
against him even after his death.41 This is why order 22, rule 6 of the Code
of Civil Procedure says that the death of a party after the hearing of the
arguments is not a bar to the passing of a decree against him.
Territorial and pecuniary jurisdiction, on the other hand, is mainly a
matter of convenience. If an objection to it is not raised in the trial court, it
would be deemed to be waived and cannot be raised in appeal or revision
unless there has been a consequent failure of justice. Consequences of
violation of statutory provisions relating to jurisdiction as to the subject-
matter of the suit would depend on whether the statutory provision is
mandatory or merely directory. It is only when a court lacks inherent
jurisdiction either in the private international law sense or in relation to the
subject-matter of the suit that a decision by a court without such jurisdiction
would be void. A decision of a court with such jurisdiction, whether Indian
or foreign, acts as res judicata between the parties. A foreign judgment is,
39. Id at 1476-77 andJanendraMohan Bhadun v. Rabindmnath Chakravarti AIR 1933 Privy

Council 61 referred to.
40. ILR (1971) 1 Delhi 504.
41. N.P. Thtrugnanaru v. R.Jagan Mohan Rao AIR 1996 SC 116.
CIVIL PROCEDURE 195
however, liable to be impugned on certain special grounds such as refusal of

foreign court to recognise the relevant law of India or taking an incorrect
view of international law, contravention of rules or natural justice, fraud, etc.
A suit is liable to be stayed if the matter in issue therein is also directly or
substantially in issue in a previously instituted suit between the same parties.
But these matters do not go to the inherent jurisdiction of the court.
Therefore, if a court incorrectly refuses to stay a suit or incorrectly proceeds
to try a suit, the institution of which is barred by res judicata, then the
decision of the court is not per se void. For the matter of that, no decision of
a court, howsoever wrong it may be, is void in the sense that it may be
simply ignored. There are two ways of avoiding a decision. Firstly, the
decision may be a nullity on the face of the record because, for instance, it
was passed against a person who had died even before the arguments were
heard. As the record itself is sufficient to show the invalidity of the decision,
it would be unnecessary for any party to file a suit for setting aside the
decree as being without jurisdiction. Even an executing court can ignore
such a decision. Secondly, in all other cases, a decision would remain valid
unless some one who is entitled to challenged it within the time allowed by
law gets it set aside. A void decision can turn into a valid one simply because
there is no remedy left for challenging such a decision or for getting it
invalidated. H.W.R. Wade has argued that unlawful administrative action,
even if void, has got to be invalidated. Otherwise, it would have to be
accepted as valid simply because there is no remedy against it. 42 This
principle is applicable also to judicial decisions.43
(3) Trial of the suit
The essence of a hearing is that the defendant against whom the suit is filed
is served with a copy of the plaint so that he knows the allegations made and
the relief sought against him by the plaintiff. The summons is ordinarily
served on him through the process server of the court. To avoid delay, it
may also be served on him by registered post. An endorsement by the
process server or by the postman that the defendant has refused to accept
service may persuade the court to hold that the service is valid. But the
defendant can always show to the court that he was not served or that he
was prevented from appearance by sufficient cause. An ex parte decree
passed against him would be liable to be set aside under order 9 rule 13, on
that being done. If the plaintiff himself remains absent on a date of hearing,
his suit is liable to be dismissed and he would be precluded from filing
another suit on the same cause of action. He can also get the suit restored
under order 9 rule 4 if he shows to the court that he was prevented from
42. 83 Law Quarterly Review, 1967, p. 499 at 508 and 511.

43. Dhirendra Nath v. Sudhir Chandra 1964 (6) SCR 1001.
appearance by sufficient cause. If a defendant is shown to be evading service

or if for any other reason he cannot be served personally, a substituted
service can be effected on him by affixation of the summons to his last
known address or by publication of the summons by beat of drum or in a
newspaper. Such service shall be deemed to be as effective as personal
service. A party is entitled to appear in the court either by himself or
through a recognized agent or a pleader. According to the Advocates Act,
1961 advocates alone have a right to practise law before the courts unless
the court in any particular case permits some other person to appear before
it even through he is not an advocate. An advocate may be engaged for the
purpose of pleading or for the purpose of acting as well as pleading.
Parties have to summon their witness for deposing in court. If any of
them resides beyond 200 miles he can be got examined on commission. In
order to reduce delay in disposal of cases, the CPC (Amendment) Act, 1999
has inserted a new rule 4 A of order 26 which empowers the court to
appoint a commission for examination of any person resident within the
local limits of the jurisdiction of the court. A party himself cannot
ordinarily claim to be examined on commission. For, he is expected to go
into the witness-box in the court itself unless of course the court feels that
his presence can be dispensed with. If either the plaintiff or the defendant to
whom time has been granted fails to produce evidence or perform any other
act necessary for the furtherance of the suit, the court may under order 17
rule 3 decide the suit on merits on the materials before it whether the party
in default is present or not. Such a decree can be appealed against on merits.
The question of getting it set aside because the party was prevented from
appearing owing to sufficient cause does not arise. For, such a decree is not
ex parte under order 9 but is passed on merits under order 17 of the case.44
Once a suit is fixed for trial, that is, recording the evidence, then the
trial must go on from day to day. This salutary rule embodied in the proviso
to order 17 rule 1 (ii) and strengthened by the amendment of the Code in
1976 is often ignored by subordinate courts. Great harm is caused to the
parties by the failure to observe this rule. Splitting up the evidence enables
the parties to improve their case from time to time in the light of what has
been deposed by the witness who are examined from time to time. In order
to over come such situations sub- rule (1) of rule 1, order 17 has been
substituted by a new sub-rule.45 The effect of the new sub-rule is that it has
become obligatory for the court to record reasons for adjournment of the
hearing of the suit. The number of adjournments has been restricted to
three only during the hearing of the suit. The courts can now award actual
or higher costs and not merely notional costs against the party seeking
adjournment in favour of the opposite party.
44. Dayal Chandv. Sham Mohan ILR (1971) 1 Delhi 787.

45. Civil Procedure Code (Amendment) Act, 1999 w.e.f 1.7.2002.
CIVIL PROCEDURE 197
(4) Judgment and decree
At the conclusion of the hearing of the suit, the court shall pronounce
judgment in open court. The reasons for the decision are called a judgment
while the operative part of the judgment is called a decree.
A judgment may be arrived at after the discussion of the merits of the
case or in accordance with the agreement arrived at between the parties. If
such an agreement is legal and adjusts the suit wholly or in part, the court
shall order such agreement to be recorded and shall pass a decree in
accordance therewith so far as it relates to the suit. The decree based on
such a compromise has two facts. On the one hand, it is essentially an
agreement between the parties on which the imprimatur of the court has
been put. In this respect it is liable to be challenged on any ground on which
agreement itself could be challenged, namely, fraud, misrepresentation,
undue influence, illegality, want of consideration, etc. If the agreement is
invalidated by such a challenge, the decree would also be invalidated. O n the
other hand, so long as the compromise underlying the decree is not set aside
and stands valid, the decree passed on it would also stand valid. Such a
decree has the same effect as a decree on merits in respect of res judicata.*6
Any matter which is necessarily decided by such a decree would be res
judicata between the parties and cannot be re agitated in a subsequent suit
between them.
In passing a decree, the court has a discretion in granting appropriate
relief to the plaintiff to suit the findings made in his favour by the court.
The plaintiff may move the court to take into account events happening
subsequent to the filing of the suit through ordinary rule is that the relief is
to be given in respect of the allegations made in the plaint as it stood on the
date of the filing of the plaint. Subsequent events may also be made the
subject-matter of adjudication by amendments of pleadings.
(5) Appeals, revision and review
A decree is subject to a first appeal on all questions of fact and law. A

second appeal lies from the decree in first appeal only on a question of law.
Only those orders which are enumerated in section 104 or in order 43 rule 1
of the Code of Civil Procedure are subject to an appeal but not to a second
appeal. A further appeal would lie to the Supreme Court only if the High
Court certifies that the case involves a substantial question of law of general
importance which needs to be decided by the Supreme C o u r t . These
requirements introduced by the legislative amendments have greatly reduced
the number of appeals based on certificate granted by the high court as to
the fitness of the case for appeal to the Supreme Court. The Supreme Court
46. The Code of Civil Procedure, order 23 and rule 3.

under article 136 of the Constitution may also grant special leave to appeal
against the judgment of any court or tribunal. But this is not to be regarded
as a provision conferring right of appeal.
The letters patent of the various high courts provide for appeals to
Division Benches against judgments of the single judges of the high court in
exercise of ordinary civil jurisdiction as distinguished from decisions given
in exercise of special jurisdiction, the appealability of which is determined by
the special statute. The decisions appealable under the letters patent include
those which were given by the single judge of the High Court in the exercise
of the ordinary original civil jurisdiction which was conferred on the
Bombay, Calcutta and Madras High Courts by their respective letters patent.
Much of this ordinary original civil jurisdiction has since then been
transferred to city civil courts now working in Bombay and Madras. A
reverse process took place in Delhi. The Lahore High Court and thereafter
the Punjab High C o u r t had no ordinary original civil jurisdiction.
Consequently, the High Court of Delhi did not inherit any ordinary original
civil jurisdiction from the Punjab High Court when it was constituted in
1966 by the Delhi High Court Act, 1966, section 10(1) of which conferred
on it the same jurisdiction which the Punjab High Court enjoyed under the
letters patent. But by section 10(2) of the Act, the High Court of Delhi was
given ordinary original civil jurisdiction to entertain suits involving subject-
matter of the value of Rs. 25,000 (later raised to Rs. 50,000). Therefore, the
letters patent applied to only those judgments of the Delhi High Court
which are given in the exercise of a jurisdiction inherited from the Punjab
High Court but not to the jurisdiction which was taken for the first time by
the Delhi High Court under section 10 (2) of the Delhi High Court Act
from the subordinate courts and which was not possessed by the Punjab
High Court. Therefore, appeals against judgments by single judges in
exercise of ordinary original civil jurisdiction conferred on the Delhi High
Court by section 10 (2) of the Delhi High Court Act would continue to be
governed by the Code of Civil Procedure. Therefore, just as an appeal lay
there-under only against a decree or an appealable order passed by a
subordinate court, similarly an appeal would lie even against the judgment or
an order of a single judge or the High Court only under the Code of Civil
Procedure. N o difference to appealibility has been made by the enactment
of the Delhi High Court Act.47
W h e r e no appeal lies, the order of a subordinate c o u r t may be
canvassed in a revision filed in the high court on the ground that the
subordinate court exercised the jurisdiction not vested in it by law or that it
failed to exercise the jurisdiction so vested or that it acted in the exercise of
its jurisdiction illegally or with material irregularity. Any decree or order
47. See University of Delhi v. Hafiz Mobd. Said AIR 1972 Delhi 102.
CIVIL PROCEDURE 199
from which no appeal has been preferred may be reviewed by the court
which passed it on the ground that new and important matter or evidence
which, after the exercise of due diligence, could not be produced by the
party concerned at the time when the decree was passed or order was made,
has been discovered thereafter. A mistake or error apparent on the face of
the record or any other sufficient reason may justify a review or an
amendment or a correction of the decree or judgment so as to prevent an
abuse of the process of the court. But an order or a decree cannot be
reconsidered on merits simply because the court is of the view that it was
wrong on merits.
(6) Execution of decrees
Though it is for the plaintiff to ask for the appropriate relief in the plaint,
the court has the discretion to grant him such relief as would be suitable in
the light of the findings arrived at by the court. Such a relief may be of
various kinds such as payment of money, delivery of possession, injunctions,
specific performance, restoration of conjugal rights, declarations of various
kinds, etc. A merely declaratory decree is not capable of being executed. For,
the only relief granted thereby is the declaration. But whenever other reliefs
are granted by the court and the judgment-debtor does not of himself act
according to the decree, the decree-holder is entitled to move the court to
compel the judgment-debtor to carry out the directions made by the court
against him in the decree. This is called the execution of the decree. As the
appropriate relief in each case is conditioned to the particular facts and
circumstances of the case, the various forms in which decrees may be passed
and various modes in which they are to be executed need not be considered
to be exhaustive. For instance, a compromised decree may have its own
special terms. It would have to be executed according to its tenor even
though no specific provision or form in the Code of Civil Procedure would
apply to it. A decree for payment of money may be executed by
(1) attachment and sale of the movable and immovable property of the
judgment-debtor,
(2) attachment of the money payable to the judgment-debtor by his
debtors, namely, garnishes, who may be ordered to pay the money
to the decree-holder, and
(3) by arrest and detention of the judgment-debtor in civil prison if he
is able to pay the decretal amount but refuses to pay the same.
A decree for delivery of possession of a specific movable or immovable
property would be executed by the physical delivery of possession to the
decree-holder by removing the judgment-debtor from possession. A decree
for specific performance of a contract of sale or for execution of a
document or endorsement of a negotiable instrument would be executed by
the court ordering the judgment-debtor to do the needful. If the judgment-

debtor fails to do so, the court would itself execute the necessary document
as if it was executed by the judgment-debtor himself. A decree for
restitution of conjugal rights cannot of course be executed by compelling
the judgment-debtor to live with the decree-holder. But disobedience of
such a decree may be visited by attachment of property or by ordering the
making of periodical payments. Under Part III of the Specific Relief Act,
1963, preventive relief is granted to the plaintiff in two forms, namely,
(a) temporary injunctions under the provisions of the Code of Civil
Procedure, and
(b) perpetual injunctions under the provisions of Chapter VIII of the
Specific Relief Act, 1963.
Permanent injunctions may be either prohibitory or mandatory.
Disobedience of the decree for injunction may be visited by detention of the
judgment-debtor in civil prison or by attachment of the property of the
judgement-debtor or by the performance of the act concerned by the
decree-holder or by some other person appointed by the court at the cost of
the judgment-debtor. There is a subtle difference between a decree for
possession which is passed against the judgment-debtor who is in legal or
juridical possession of the property even though the possession may be
wrongful or illegal and a decree for mandatory injunction which may be
passed against a person like a bare licencee who has no legal or juridical
possession in the eye of law. Such a person may be ordered to quit and
vacate the property by simply removing himself from it. His possession of
the property does not amount to legal possession of the property but only
to interference with the enjoyment of the property by the legal owner. If the
judgment-debtor does not quit or vacate the property as ordered by the
court by way of a mandatory injunction, it would appear that he would have
to be physically removed from the property by an officer of the court. His
belongings would also have to be removed so that the property is vacated.
Any structures raised by him on the property would have to be removed at
his own cost. For, the execution of decree must be made, according to
section 51 (e) of the Code of Civil Procedure "in such other manner as the
nature of the relief granted may require" even if no specific mode of
execution is provided for in the Code. If a decree is expressed or meant to
be executable, then it has to be executed exactly in accordance with in terms
whether or not a specific provision or form in the Code of Civil Procedure
is applicable. It is only when a decree is merely declaratory or is not meant
to be executed that it can be termed inexecutable. An executable decree
cannot become inexecutable because the judgment-debtor does not allow it
to be executed or because none of the different modes of execution
specified in the Code of Civil Procedure suits the execution of this particular
decree. The suitable mode of execution is to be found from the language of
CIVIL PROCEDURE 201
the decree itself and the decree-holder has a right to the help of the court to
work out his rights exactly in accordance with the terms of the decree.
If a plaintiff proves to the satisfaction of the court that he does not
have the means to pay the court fees he may be allowed to sue informa
pauperis if the plaint discloses a cause of action. If the memorandum of
appeal discloses a prima facie case, he may be allowed to appeal informa
pauperis.
The Code of Civil Procedure provides a norm of procedure fair to the
parties. Though it is applicable in terms only to civil suits and courts proper,
section 141 of the Code makes applicable, as far as possible, the procedure
provided by the Code to all proceedings in any court of civil jurisdiction.
That is to say, to all proceedings of a civil nature which come before the
courts under different statutes even though the provisions of the Code may
not have been expressly made applicable to such proceedings by the statutes
concerned. Further, provisions of the Code, as far as may be, are often made
applicable by special statutes to proceedings which take place under those
statutes. Lastly, where the civil proceedings under a statute are not expressly
governed by any procedure whatever, the basic procedure laid down in the
Code is made applicable by way of analogy to such proceedings. The reason
why the procedure laid down in the Code is invoked whenever no other
procedure has been expressly made applicable is that the provisions of the
Code are based on general principles of fairness to the parties and as such
are usually found suitable for application to any adversary proceeding before
a court or a tribunal. The very nature of an adversary proceeding, however,
is such that the parties are at liberty to take advantage of all procedural
provisions. The court generally feels bound to allow such advantage to a
party who insists on having it. In the nature of things in every adversary
proceeding either both the parties have their strong and weak points or one
of the parties has more of the strong points and the other more of the weak
points. There is a temptation, therefore, for the parties to exploit the
technicalities of procedure for covering up the substantive weaknesses of
the merits of their sides in a judicial or a quasi-judicial proceeding. This
results in delaying the proceedings. The causes of such delays which
sometimes amount to an abuse of the judicial process are numerous. Some
of them relating to procedure may be mentioned as below:
(1) Objections to pecuniary or territorial jurisdiction: When a suit is to
be valued according to the value of the subject-matter, there may be
a tendency for the plaintiff to under-value it to save on court fees.
The plaintiff may also prefer to file a suit not where the defendant
resides but where the cause of action wholly or partly arises
particularly if the plaintiff resides there. Objections to the pecuniary
jurisdiction should be quickly decided bearing in mind that the
decision on such an objection does not really go to the merits of
the case but is concerned mainly to see that the state is not deprived
of legitimate court fee by deliberate under-valuation. Objections to
territorial jurisdiction are also not concerned with the merits of the
case. Section 21 of the Code, therefore, requires that they must be
raised in the court of first instance at the earliest opportunity and
before the issues are settled. They would not be allowed to be
raised at a subsequent stage. A decision on pecuniary or territorial
jurisdiction will not be a ground for reversal of the decision of the
trial court by an appellate or revisional court unless it has led to
failure of justice.
(2) Applications for transfer of a suit made under section 24 of the
Code: The High Court or the district court deciding upon such
transfer applications has to see on the one hand that justice is not
only done but is shown to be done. Therefore, a plausible fear in
the mind of a party that he may not receive impartial justice at the
hands of a particular judge may provide a ground for transfer even
though the mind of the judge may not be in fact prejudiced or is
able to rise above the possible prejudice. O n the other hand, the
zeal of the court in expediting the trial of the case and the brushing
aside of the dilatory tactics of a party by the court should not be
allowed to be stultified by such a transfer application.
(3) Pleas of facts raised by the parties should be carefully scrutinised.
The tendency to raise obviously false pleas should be curbed by
making the other party apply for special costs under section 35-A of
the Code.
(4) Framing of issue is an attempt by the court to p i n p o i n t the
controversy between the parties. The court should invite the parties
to scrutinize the issues and to suggest amendments so as to ensure
that every point in controversy is made a subject-matter of the
issue. If a point on which the judgment is based was not made an
issue, the appellate court may have to consider whether the parties
were prejudiced in leading evidence because of the absence of an
express issue or whether the point has in fact been tried though an
issue was not framed.
(5) Decrees should be prepared in accordance with the judgments in
good time. The judge should himself scrutinize the decree before
signing it. Even if the drawing up of a decree is left entirely to the
office, the judge should insist on seeing it himself. N o b o d y
understands the case better than the judge who has decided it. He is
responsible to see that the decree correctly expresses the operative
portion of the judgment. Time taken in drawing up the decree will
not prejudice the limitation available for filing an appeal against the
decree.
CIVIL PROCEDURE 203
(6) A plaint should be scrutinized when it is filed to see that it discloses

a cause of action. Similarly, when an appeal is filed the appellate
court must be satisfied that there is a prima fade case for the success
of the appeal. Otherwise the appellate court will have to dismiss the
appeal in limine. If the grounds of appeal are only of law arising out
of the judgment as it is, it is not necessary for the record of the trial
court to be sent for before the appeal is dismissed in limine. If on
the other hand any ground of appeal relates to a question of fact
which cannot be appreciated without reading the evidence, then the
record should be sent for. When the appeal is on questions of facts,
ordinarily it will not be expedient to dismiss it in limine because on
questions of facts generally it is necessary that both the parties
should be heard.
(7) Revisions should be strictly dealt with. Section 115 of the Code of
Civil Procedure has a very limited purpose behind it. The grounds
for entertaining the revision are deliberately restricted to the defects
of jurisdiction. A revision should not, therefore, be admitted only
for errors of law unless such an error goes to jurisdiction.
The Code of Civil Procedure (Amendment) Act, 1976 has further
n a r r o w e d the scope of section 115 to prevent its abuse. The
progress of a suit is constantly i n t e r r u p t e d often w i t h o u t
justification when a party interested in delaying it attempts to
challenge as many orders as possible against it by filing revisions
against them under section 115. The proviso to section 115 now
states that the high court shall not vary or reverse any order made,
or any order deciding an issue, in the course of a suit or other
proceeding, except where:
(a) the order, if it had been made in favour of the party applying
for revision, would have finally disposed of the suit or other
proceeding, or
(b) the order, if allowed to stand, would occasion a failure of
justice or cause irreparable injury to the party against whom it
was made.
The above clause (b) has been omitted by the Civil Procedure Code
(Amendment) Act, 1999 w.e.f. 1.7.02. This clause had a wide scope
for the exercise of the revision power with all types of interlocutory
orders presumably not intended. A new sub-section (3) has been
inserted to section 115 to the effect that mere filing of the revision
would not amount to stay of the proceedings unless so ordered by
the high court. The effect of sub-section (3) is that the practice of
sending records to the high court as a matter of routine in all cases
of revision has been restricted to cases in which the high court
demands the case-file.
(8) The deaths of defendants or respondents are often unknown to the

plaintiffs or appellants. It is the duty of counsel for the deceased
defendant or respondent to bring the fact of the death of his client
to the notice of the court so that the plaintiff or the appellant may
take steps to bring the legal representatives of the deceased on
record. If counsel fails to do so and yet appears in the case the
court as well as the plaintiff or the appellant would be misled into
t h i n k i n g that no defendant or respondent has died. Such a
circumstance would be sufficient cause for condoning the delay on
the part of the plaintiff or the appellant in making the application
for setting aside the abatement of the suit or the appeal and for
bringing the legal representatives of the deceased on record. If even
counsel of the deceased was not aware of the death of his client
then the court would not generally expect the plaintiff or the
appellant to have been aware of it and there would be sufficient
cause for the delay on the part of the plaintiff or the appellant in
applying for the setting aside of the abatement. 48
(9) Suits and appeals are some time filed merely to delay justice. A
party may know that ultimately the suit or the appeal may be
dismissed but may try to postpone the evil day by securing an
interim injunctions or stay till the disposal of the suit or the appeal.
The courts should be vigilant against such abuse or the process of
court. Temporary injunctions should be sought ex parte only if the
matter brooks no delay. But the courts are often persuaded to grant
ex parte injunctions without being convinced that irreparable injury
will result if it is not granted. Grant of an ex parte injunction is
inherently unfair to the opposite party. The court should, therefore,
insist that either a notice of the proposed application for a
temporary injunction is already given to the opposite party enabling
him to appear to contest the application when presented or that
such a notice is given to the opposite party before the application
for temporary injunction is granted so that the party may be heard
before it is to be granted. Order 39, rule 3 of the Code requires the
court to give notice to the opposite party before granting a
temporary injunction. The only exception is that the object of
granting the injunction would be itself defeated if notice to the
opposite party is given. It is extremely difficult to conceive of a case
in which such a notice would defeat the very object of the
injunction. An ex parte injunction should, therefore, become an
extremely rare event.
48. Satnam Singh v. Mohinder Singh AIR 1975 Delhi 104.

CIVIL PROCEDURE 205
(10) One of the reasons for the dilatoriness of the procedure of the
courts in India is the multiplicity of appeals. A contributory
feature of it is that appeals may be directly admitted by the
Supreme Court under article 136 of the Constitution from the
decision of any court or even a tribunal. The docket of the
Supreme Court is clogged by numerous such appeals. Time has
now come to ensure that the highest court in the land is relieved
of the necessity of doing justice in each individual case brought
before it. The mere fact that the decisions of a court or a tribunal
is wrong should not be sufficient ground for an appeal to the
Supreme Court. It is unfair to expect that the Supreme Court
should be able to deal with all the appeals brought to it under
articles 133, 134 and 136 and also with writ petitions filed under
article 32 of the Constitution. The Supreme Court of the United
States has evolved the practice that it would not give a reasoned
decision in a case brought before it unless it is necessary to do so
in the interest of the development of the law. There, the court
gives reasoned decisions in only about a fraction of the cases
brought before it, e.g., in only 126 cases out of about three
thousand cases in 1970-71. The rest of the cases are dismissed
without giving reasons not because they had been rightly decided
by the courts below but because it is not necessary that they
should be decided by the Supreme Court. The amendment of
article 133 of the Constitution now ensures that a high court
would not be able to certify a case to be fit for appeal to the
Supreme Court unless it involves a substantial question of general
importance which needs to be decided by the Supreme Court.
This amendment has considerably reduced the n u m b e r of
certificates granted by the high courts. The Supreme Court is also
becoming more strict in granting special leave to appeal. This
should gradually ensure that our Supreme Court entertains only
those cases in which reasoned decisions are required to be given in
the interest of the development of the law.
The Code of Civil Procedure (Amendment) Act, 1976 has also amended
section 100 of the Code to restrict the number of cases in which second
appeals may be filed in the high courts. Firstly, the memorandum of appeal
must precisely state the substantial question of law involved in the appeal.
Secondly, it is only if the high court is satisfied that the case involves a
substantial question of law that it will have jurisdiction to entertain the
appeal. Thirdly, the high court is required to formulate specifically the said
substantial question of law, and lastly, the hearing of the appeal is normally
restricted to such a question unless the high court for reasons to be
recorded deems it necessary to hear and decide any other questions for the
disposal of the appeal.
(11) Stay orders and temporary injunctions

A frequent cause of unjust delay in the proceedings of suits and appeals
used to be ex parte stay orders and temporary injunctions granted by the
courts. When only the applicant is before the court and he pleads urgency of
action, the court is often prevailed upon to pass an ex parte stay order or
grant an ex parte temporary injunction. It is hardly realized how unjust such
orders are. There are always two sides to every question and it is not
possible for the courts to know the other side of it when such an ex parte
order is passed by looking at only one side of the question. Order 39, rule 3
of the Code of Civil Procedure has, therefore, been amended in 1976 to
curtail the discretion of the court to grant an ex-parte temporary injunction.
The proviso added to it now states that where it is proposed to grant an
injunction without giving notice of the application to the opposite party, the
court shall record the reasons for its opinion that the object of granting the
injunctions would be defeated by delay and require the applicant
(a) to deliver to the opposite party, or to send to him by registered
post, immediately after the order granting the injunction has been
made, a copy of the application for injunction together with
(i) a copy of the affidavit in support of the application,
(ii) a copy of the plaint, and
(iii) copies of documents on which the applicant relies, and
(b) to file, on the day on which such injunction is granted or on the day
immediately following that day, an affidavit stating that the copies
aforesaid have been so delivered or sent.
It is hoped that the courts will take notice of the amendment and insists
that notice must be served on the other side however short it may be before
stay or temporary injunction is granted. Ex parte stay orders also caused a lot
of hardship and injustice in writ petitions entertained under article 226 of
the Constitution. That article has also been amended to ensure that ex parte
stay is not be granted except in extraordinary circumstances to prevent
irreparable hardship and injustice being caused to the petitioner.
Certain specialized types of litigation are unsuitable for the civil courts.
They unnecessarily increase the arrears of cases in the civil courts. The relief
to be granted by the civil courts is also not adequate. Typical examples are:
(i) Service cases, and (ii) industrial disputes. In view of articles 310 and 311
of the Constitution, the civil courts can interfere with the dismissal, removal
or reduction in rank of a civil servant only on procedural grounds. But often
the grievance of a civil servant is not redressed merely by ordering the
proper procedure to be followed. Even if the dismissal, removal or
reduction in rank is set aside, such punishment can be re-imposed after
following the correct procedure. By now the disciplinary rules of the
government ensuring fair procedure are generally well understood and they
CIVIL PROCEDURE 207
are broadly observed in practice. A civil servant trying to pick holes in the
procedure followed against him is, therefore, restricted to pettifogging. His
real grievance however, may be one of substance. This is to say, he may not
have got a fair deal from his superiors. This is a matter which cannot be
redressed by civil courts. O n the other hand, a tribunal of superior civil
servants can look into such grievances and can give relief. The civil servant
who is unable to pull on with a particular boss can be transferred to serve
under some other boss. The confidential reports of a civil servant can be
ordered to be written by different persons so as to ensure that his entire
career is not prejudiced by being accessed only by one person who may not
think highly of him. Litigation by civil servants should, therefore, be taken
away from the civil courts and should be sent to service tribunals. This will
relieve the congestion of cases in the civil courts and will also ensure more
satisfactory remedies to the civil servants.
Pursuant to the provision of article 323A of the Constitution, the Ad
ministrative Tribunal Act, 1985 was enacted by Parliament to set up Admin
istrative Tribunal for adjudication of disputes and complaints with regard to
recruitment and condition of services of persons appointed to public ser
vices and posts in connection with the affairs of the Union and the States.
Administrative adjudication, which is quasi-judicial in nature, is the main
function of Administrative Tribunals. The basic objective of enacting the
Administrative Tribunal Act was:
(i) To relieve congestion in the ordinary set of courts; and
(ii) To provide for speedy disposal of disputes relating to service
matters.
The Central Administrative Tribunals Act, 1985 provides that the Tribu
nal shall not be bound by the procedure laid down in the Code of Civil Pro
cedure, 1908 but shall be guided by the principle of natural justice and sub
ject to the other provisions of Administrative Tribunals Act and rules made
by the Central Government. The Tribunal shall have power to regulate its
own procedure including the fixing of places and times of enquiry. As a re
sult of the judgement of the Supreme Court in the case of L. Chandra Kumar
v. Union of India49 the appeals against the orders of an Administrative Tribu
nals lie before the Division Bench of the concerned high court. Administra
tive Tribunals are distinguishable from the ordinary courts with regard to
their jurisdiction and procedure. They are free from the shackles of many of
the technicalities of the ordinary courts. The aggrieved person can appeal
before the court personally. Government can also present its case through
its department officers or legal practitioners. The Tribunal consists of a
Chairman, Vice-Chairman and Members. The Members are drawn from
49. (1997) 3 SSC 261.

both judicial as well as administrative streams so to give the Tribunal the

benefit of expertise both in legal and administrative spheres.
Similarly industrial disputes whether decided by industrial tribunals or
labours courts should not be allowed to be contested by writ petitions and
appeals in the high courts and the Supreme Court. The Labour Appellate
Tribunal which used to entertain appeals from industrial tribunals was doing
good work before it was abolished. Since its abolition the whole law has
been laid down by numerous Supreme Court decisions. It is not now
necessary that these cases should come to the Supreme Court and the High
Courts. In the light of the law laid down by the Supreme Court and the High
Courts these cases would be very satisfactory decided by some newly created
labour appellate tribunals. This litigation also should, therefore, be
withdrawn from the Supreme Court and the high courts and entrusted to
such labour appellate tribunals.
Rendering justice between the parties and sometimes between an
individual and the state is the main business of the courts. The courts work
through the civil procedure. It is essential, therefore, that the procedure
should be simple, quick, inexpensive and just. With this object in view the
Law Commission of India has recommended from time to time suitable
changes in the procedure in their 14 th , 27 th , 40 th , 44 t h , and 55 t h Reports.
Ultimately, the Code of Civil Procedure (Amendments) Act, 1976 was
passed to give effect to these recommendations. Some of the changes
effected by this amendment which are not referred to above are as below:
(i) Section 25 of the Code of Civil Procedure now gives the Supreme
Court the power to transfer a suit from a civil court or a High Court
in one state to a High Court or civil court in another state. Prior to
the amendment, the power vested in the state government.
(ii) Personal liberty is extended by the new provision that freedom
from attachment of a portion of salary now available to public
servants will be available to all salaried employees under section 60
of the Code.
(iii) Formerly no suit could be filed against the state without giving it a
notice of 60 days under section 80 of the Code. The t h e o r y
underlying section 80 was that the government was the guardian of
public interest and before an individual is allowed to sue it, the
government should have an o p p o r t u n i t y of considering the
grievance of the individual. This object was not always fulfilled.
This rule has been substantially modified by the amendment of
1976. While notice should still be normally necessary, an important
exception is made when a suit prays for urgent or immediate relief
against the government. Such a suit may be filed with the leave of
the court without serving such a notice. The relief, interim or
otherwise, shall not, however, be granted by the court except after
CIVIL PROCEDURE 209
hearing the other side. Thus, all the three principles have been
harmonized, viz., (1) to give due notice as a rule before a suit is
filed, (2) to ensure that urgent and immediate relief is not denied by
insistence on such a long notice, and (3) that even for urgent relief
no ex parte order is passed.
(iv) Since the amendment of Civil Procedure Code in 1999, the
minimum pecuniary limit for appeal from original decree of courts
of small causes has been raised from rupees three thousand to
rupees ten thousand by section 9.
A c o m m i t t e e appointed by the Government of India u n d e r the
chairmanship of Krishna Iyer, J., has also made a report as to the legal aid to
be given to poor litigants. It is hoped that the state governments and the
central government would soon be able to implement this report by passing
adequate legislation. Article 39 A of the Constitution provides that the State
shall, provide free legal aid, by suitable legislation or schemes or in any other
way to ensure that opportunities for securing justice are not denied to any
citizen by reason of economic or other disabilities. In order to fulfil this
promise the Government has enacted the Legal Services Authorities Act,
1987.The Act constitutes legal service authorities at the National, State and
District level to provide free and competent legal services to the weaker
sections of the society.
In addition to the above the institution of Lok Adalats are functioning
as a voluntary and conciliatory agency which have proved to be very popular
in providing for speedier system of administration of justice. Every Lok
Adalat is deemed to be a civil court and for the purposes of holding any
determination, have the same powers as are vested in a civil court under the
Code of Civil Procedure, 1908. The award of the Lok Adalat shall be
deemed to be decree of a Civil Court.
The primary purpose of the Code of Civil Procedure has so far been to
be fair to the litigants. Over and above this purpose it is also necessary to
ensure that the procedure is not dilatory and expensive. The new reforms
would ensure that the procedure is not only fair but is also expeditious and
inexpensive. It would then be a true handmaid of justice. For, the end of all
law, including the law of procedure, is justice. The success of a legal system,
especially civil procedure depends on the achievement of these aims. Let us
hope that the civil procedure in India will soon achieve them.
Suggested Readings
1. A.N. Saha's, The Code of Civil Procedure, 6 th ed., Premier Pub. Co.,
Allahabad, 2004.
2. Expert Committee on Legal Aid, Processual Justice to the People.
3. Field's Law of Evidence, 12th ed., 2001.
4. Law Commission of India, Fifty-fourth Report 1973, on the Code of Civil

Procedure.
5. Law Commission of India, Fourteenth Report 1958, on Reforms of Judicial
Administration.
6. Law Commission of India, One Hundred and Eighty Ninth Report on
Revision of Court fees.
7. Law Commission of India, Twenty-seventh Report 1965, on the Code of Civil
Procedure.
8. Mulla, The Code of Civil Procedure, 16th ed., 2002.
9. Ratanlal & Dheeraj Lai, The Law ofEvidence, 21 st ed., 2004.
10. The Civil Justice Committee, Report 1924-25.
11. The Court Fees Act.
12. The Suits Valuation Act.

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CIVIL PROCEDURE

clearly the nature of the law of procedure and to demarcate it from

1. Salmond, Jurisprudence, 9th ed., p. 648.

limitation may disable a person from enforcing the rights or obligation,

2. 1971 (2) SCC 860 at 868-869.

Apart from the implications inherent in the term procedure

3. AIR 1952 Nagpur 357.

Dayabhai v. Murugappa Cbettiar.4 According to this view, which was relied

4. AIR 1935 Rangoon 267.

10. AIR 1967 SC 1643: (1967) 2 SCR 762.

legislative and constituent power is procedural". The Constitution (Twenty-

15. (1962) Suppl. 2 SCR 477.

Legal thinking itself has been greatly, though perhaps invisibly,

16. The History ofEnglish Law, 2nd ed., pp. 670-671.

(1) Where a suit or an application is simply withdrawn and is dismissed

on the principle of Ramesh v. GendaL·.21 If the order is not appealed

21. AIR 1966 SC 1445.

If the rules of natural justice are not followed in any quasi-judicial

It is a question of substantive law as to whether a person has a cause of

25. (1968) 3 SCR 163 at 184.

(c) Amendment of pleadings may only be disallowed in rare cases, such

Extension of time to the parties to the proceedings

30. Mahant Ram Das v. Ganga Das (1961) 3 SCR 763.

order 34, rule 5, of the Code of Civil Procedure. 31

Extension of the application of the Code

attracted to such proceedings merely because the provisions of the

2. Jurisdiction of the court

The word "jurisdiction" in relation to a court may be used in two senses,

When the decree is made by a Court which has no inherent

39. Id at 1476-77 andJanendraMohan Bhadun v. Rabindmnath Chakravarti AIR 1933 Privy

however, liable to be impugned on certain special grounds such as refusal of

(3) Trial of the suit

42. 83 Law Quarterly Review, 1967, p. 499 at 508 and 511.

appearance by sufficient cause. If a defendant is shown to be evading service

44. Dayal Chandv. Sham Mohan ILR (1971) 1 Delhi 787.

(4) Judgment and decree

(5) Appeals, revision and review

A decree is subject to a first appeal on all questions of fact and law. A

46. The Code of Civil Procedure, order 23 and rule 3.

(6) Execution of decrees

the court ordering the judgment-debtor to do the needful. If the judgment-

(6) A plaint should be scrutinized when it is filed to see that it discloses

(8) The deaths of defendants or respondents are often unknown to the

48. Satnam Singh v. Mohinder Singh AIR 1975 Delhi 104.

(11) Stay orders and temporary injunctions

49. (1997) 3 SSC 261.

both judicial as well as administrative streams so to give the Tribunal the

4. Law Commission of India, Fifty-fourth Report 1973, on the Code of Civil

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