1

SIMRANJEET SINGH
(CS, LLB, M.com, B.com)

Contents
Limitation Act, 1963 .................................................................................................................................. 2
Indian Evidence Act, 1892 ....................................................................................................................... 10
Civil Procedure Code, 1908 ..................................................................................................................... 17
Criminal Procedure Code, 1973 .............................................................................................................. 29
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SIMRANJEET SINGH
(CS, LLB, M.com, B.com)

Limitation Act, 1963

Introduction:

The object of the Limitation Act, 1963 is to prescribe the period within existing rights can be
enforced in courts of law.

The principal in which the law of limitation is base is “vigilantibus non dormientibus leges
subvenient” i.e. the, law aids the diligent and not the indolent. This is because with passage of
time all evidence of the facts may be lost.

Limitation Bars Remedy But does not Extinguish right:

The law of limitation only bars the remedy by way of the suit i.e., if the period of limitation
expires, the party entitled to file a suit for the enforcement of a right is debarred from doing so.
However, the original right on which the suit was to base is not barred. Thus, limitation only
bars the judicial remedy but it does not extinguish the right.

For example, where the recovery of a debt has become time barred by the lapse of the
prescribed period limitation, the right to the debt is not extinguished. If the debtor, without being
aware of the bar of time, pays the debt he cannot sue the creditor to refund the money to him on
the ground that his claims for the recovery of the debt had become time barred.

It may be noted that there is one exception to the aforesaid rule which is contained in Section 27
of the Limitation Act, 1963. It provides that where a person‟s right to institute the suit for the
possession of any property has become barred by limitation his riht to the property itself shall be
extinguished.

Limitation is the Statute of Repose, Peace and Justice:

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SIMRANJEET SINGH
(CS, LLB, M.com, B.com)

The statutes of limitation are statute of repose because they extinguish stale demands and quite
titles. They lay, at rest; claims which might otherwise have disturbed the peace of community.
They secure peace by ensuring security of rights and secure justice as by lapse of time
evidence may have been destroyed.

In S.C. Parashar v.Vasant Sen, the Supreme Court has rightly observed that the statute of
limitation is a statute of repose, peace and justice.

The intention of the law of limitation is not to give a right where there is not one, but to interpose
a bas after certain period to a suit to impose an existing right. The object is to compel the
litigant to be diligent in seeking remedies in court of law.

Concept of Time Barred [Section3]

Concept of time barred is incorporated in Section 3 of Limitation Act, 1963. According to this
section, every suit must be instituted, appeal must be preferred and application must be made
within the period of limitation as specified in the schedule II of Limitation Act.

The provisions of this section are absolute and mandatory. The court will not proceed with the
suit; application made beyond prescribed period of limitation and is liable to be dismissed when
the suit, appeal or application has become time barred.

Doctrine of Sufficient Cause for Extension of Time or Condonation of Delay [Section 5]

The general rule is that the suit, appeal or application must be made within the prescribed
period of limitation. However, there is an exception to this general rule which provides that the
court may admit an application or appeal even after the expiry of prescribed period of limitation,
if it is satisfied that the applicant or the appellant has been prevented by some sufficient cause,
from not making the application or preferring the appeal within the prescribed period of
limitation.
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SIMRANJEET SINGH
(CS, LLB, M.com, B.com)
It may be noted that doctrine of sufficient cause is not applicable in the following cases:

1. Application made under any of the provisions of Order XXI of CPC, 1908 and
2. Suits.

The expression „sufficient cause‟ had not been defined under the limitation Act, 1963. However,
a cause in order to be sufficient cause must be a cause which is beyond the control of the party
invoking this section.

For example, illness of the party, mistake of the counsel, mistake o law, and not ignorance of
law, etc. are some of the instance of sufficient cause.

The burden to prove sufficient cause for delay in filling an application or appeal lies on the party
applying for condonation of delay under section 5. However, it is the discretion of the court to
grant extension of time or not.

Period of Limitation in the case of Persons Under Legal Disability [Sec 6,7 & 8]

The period of limitation starts from the date on which the cause of action has arisen but in the
case of persons suffering from some legal disability, the period of limitation runs from the date of
the cessation of disability. The rules to this effect are contained in section 6, 7 and 8.

Section 6

Section 6 provides that a person is under a legal disability if such person is a minor, (the term
minor includes child in the womb) insane and idiot. In such cases, the persons will be entitled to
fresh starting point of limitation from the date on which the legal disability ceases to exist subject
to the following conditions:

1. Such a legal disability must be existing at the time from which the period of
limitation is to be commenced; and
2. The person under legal disability must be entitled to institute the suit or make an
application.
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SIMRANJEET SINGH
(CS, LLB, M.com, B.com)
Section 6 further provides the following:

1. If a person is affected by several disability at one point of time, then the person may
institute o suit or make an application after all disabilities have ceased.
2. If one legal disability is followed by another legal disability, then the person may institute
a suit or make an application after all disabilities have ceased.
3. If the legal disabilities continue up to the death of the person under such disability, then
his legal representative may institute the suit or make the application within the same
period after the death, as would otherwise have been allowed from the time specified in
the schedule to the Act.
4. It may be noted that section 6 does not apply to appeals.

Section 7

Section 7 is applicable where several persons are jointly entitled to institute the suit or make an
application for execution of a decree and out of the several persons, one or some of them are
affected by „ legal disability‟.

The period of limitation in such a case is to be reckoned, depending upon whether discharge
can be made with or without the consent of the person under legal disability. If the discharge
can be given with the consent of such person, he period of limitation will start only after the
disability is removed. On the other hand, where consent of the person under legal disability is
not required time will run against them all.

I may be noted that section 7 is not applicable to appeals.

Section 8

Section 8 is an exception to section 6 and 7 controls both these sections. According to Section
8, the period of limitation can not extend beyond three years from the date of cessation of legal
disability.

However, if the ordinary period of limitation computed from the original accrual of the cause of
action expires more than 3 years after the cessation disability, such period will be allowed.
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SIMRANJEET SINGH
(CS, LLB, M.com, B.com)
Continuous running of Time [Section 9]

Section 9 of the Limitation Act, 1963 provides that where the limitation period has started, no
subsequent disability or inability to institute a suit or make an application can stop it. The
section embodies the principle that once the time for filing suit or an application starts running, it
will continue to run till it has exhausted the full prescribed period. The running process can only
be stopped or suspended by express statutory exceptions.

„Disability‟ connotes legal disability. It is want of legal qualification to act i.e., want of capacity to
act. It is the state of being minor, insane and idiot. „Inability‟, on the other hand, connotes want
of physical power to act. Illness, poverty, ignorance, etc. are some of the instances of inability.

It may be noted that section 9 is applicable only to suit and application. It does not apply to
appeals.

Exclusion of Time in Legal Proceedings [Section 12]

Following period shall be excluded in computing the period of limitation for various proceedings
mentioned:

1. In computing the period of limitation prescribed for a suit, the day on which the
time begins to run shall be excluded.
2. In computing the period of limitation prescribed for an appeal the following
periods shall be excluded:
a) the day on which the period begins to run;
b) the day on which the judgment was pronounced;
c) the time required for obtaining the copy of decree, sentence, order; and
d) the time required for obtaining he copy of judgment.

3. In computing the period of limitation prescribed for an application for revision or

review or leave to appeal, the following shall be excluded:
a) the day on which the period begins to run;
b) The day on which the judgment was pronounced;
c) the time required for obtaining the copy of decree; and
d) the time required for obtaining he copy of judgment.
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SIMRANJEET SINGH
(CS, LLB, M.com, B.com)
4. In computing the period of limitation prescribed for an application to set aside an
award, the following period shall be excluded:
a) the day on which the period begins to run; and
b) the time required for obtaining a copy of the award.

5. In computing the period prescribed for any other application, only the day on
which the time begins to run shall be excluded.

Effects of Announcement of a Liability on Period of Limitation [Section 18]

Sometimes a liability may be acknowledged by the party against whom the liability is alleged
within the period of limitation. If this acknowledgement is made in writing, it would give rise to a
fresh period of limitation and it would run from the date of acknowledgement.

It may be noted that it is not necessary that an acknowledgement must contain an express or
implied promise to pay. What is necessary is that these should be admission of the subsisting
liability.

The essential requisites of a valid acknowledgement are as follows:

1) The acknowledgement must have been made before the expiration of the prescribed
period of limitation;
2) The acknowledgement must have been made by the party against whom the right is
claimed;
3) The acknowledgement must be in writing;
4) The acknowledgement must be in respect of some liability or a particular property or
right claimed in the suit or application; and
5) The acknowledgement is not required to be made to the creditors or the person entitled
to the property i.e. it may be made to any person, even to a stranger.

Effect of Part Payment of Principal Amount or Payment of Interest on Period of

Limitation [Section 19]
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SIMRANJEET SINGH
(CS, LLB, M.com, B.com)

Section 19 of the Limitation Act stipulates the law for the extension of the period of limitation
when part payment of the principal amount or payment of interest is made. As per this section,
where payment on account of the debt or of interest on a legacy is made before the expiration of
the prescribed period, by the person liable to pay the debt or legacy or by his agent duly
authorized in his behalf. A fresh period of limitation shall be computed from the time when the
payment was made. Further part payment of the principal amount or payment of interest money
is also required to be acknowledged and such acknowledgement must appear either in the
hands writing of the person making the payment or must appear in a writing signed by the
person making the payment.

It may be noted that where mortgaged land is in the possession of the mortgagee, the receipt of
the rent or produce of such land shall be deemed to be a payment.

Thus according to this section, a fresh period of limitation become available to the creditor when
part payment of debt or payment of interest is made by the debtor before the expiration of the
period of limitation.

Important Limitation Periods:

1. Suit for money payable or money lent – 3 years from the time when the loan is made.
2. Suit for specific performance of contract – 3 years from the date fixed for performance.
In case where no such date is fixed, 3 years shall be calculated from the date when the
plaintiff has notice that the performance is refused.
3. Appeal against the sentence of death passed by the Session Court or by the High court
in exercise or its original jurisdiction – 3- days.
4. Suits relating to Contract – 3 years.
5. Suit relating to movable property – 3 years.
6. Suit relating to possession of immovable property mortgaged – 12 years.
7. Suit for arrears of rent – 3 years.
8. Suits for an account and a share out of profits of a partnership firm – 3 years.
9. Suit in respect of wages due to seamen – 3 years.
10. Suit in respect of wages due to other employees – 3 years.
11. Suit in respect of price of food or drink sold by a hotel, restaurant, lodging house etc. – 3
years.
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SIMRANJEET SINGH
(CS, LLB, M.com, B.com)
12. Suit in respect of compensation for false imprisonment – 1 year.
13. Suit in respect of compensation for malicious prosecution – 1 year.
14. Suit to enforce payment of money secured by a mortgage – 12 years.
15. Suit for possession of immovable property – 30 years.
16. Suit for leave/ permission to appear and defend a suit under summary procedure – 10
days.
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SIMRANJEET SINGH
(CS, LLB, M.com, B.com)

Indian Evidence Act, 1892

Introduction

Indian Evidence Act, 1872 contains the general rules of evidence, which are applicable both in
civil as well as in criminal mattes.

Section 3 of the Act recognizes the two categories of evidence i.e., oral evidence and
documentary evidence. Oral evidence means and includes all statements which the Court
permits or required to be made before it by witnesses, in relation to matters of fact under
enquiry. Documentary evidence means and includes all documents, produced for the
inspection of the Court.

For the purpose of evidence, facts are divided into the following two categories:

Fact of Issue: The facts which are constituent of a litigated right, liability, or disability are called
facts in issue.

Relevant Fact: In order to prove the existence or non-existence of facts in issue, certain other
inter-connected fact may be given in evidence. They are called relevant facts.

Relevancy of Facts:

Meaning of ResGestae

The term Res Gestae means surrounding or accompanying circumstances which are
inseparable from the fact in issue and are necessary to explain the nature of the main act.

They includes acts or declaration accompanying or explaining the transaction or fact in issue.
The area of events covered by Res Gestae depends upon circumstances of each case.

Relevancy of Facts Forming Part of the same Transaction Section 6

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SIMRANJEET SINGH
(CS, LLB, M.com, B.com)

Section 6 lays down the requirement that the inter-connation between facts in issue and other
connected facts must be such that they form part of the same transaction. A transaction may be
defined as a group of facts so connected together so as to referred to by a single legal name as
a crime or a contract or a wrong or any other subject of enquiry which may be in issue.

In Rattan v. Queen, a man was prosecuted for murder of his wife. His defence was that the
bullet went off accidentally. There was evidence to the extent that he deceased, before her
death, telephoned to telephone operator and said “Get the police please”. Before the operator
could have connected the call to the police, the lady had given the address and the call
suddenly ended. Thereafter the police, the lady had given the address and the call suddenly
ended. Thereafter the police came to the house and found the dead body of the lady. Her call
and the words she had spoken to the telephone operator were held to be relevant as the part of
the same transaction.

Motive, Preparation and Conduct [Section8]

Every crime can be divided into the following three stages i.e., Motive, Preparation and
Conduct.

Motive: Motive is that part which induces or moves a Peron to act in a certain way. It is the
emotion supposed to have led to the act. There can be no action without a motive, which must
exist for every voluntary act.

The mere existence of the motive is by itself not an incriminating circumstance. In Tara Devi v.
State of U.P., it was held that motive of a woman to get rid of her husband was not enough to
convict particularly when her paramour was acquitted.

Preparation: Preparation means the means and measures necessary for the commission of
any offence.

Conduct: Conduct means attempt to commit the crime and actual commission of the crime.
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SIMRANJEET SINGH
(CS, LLB, M.com, B.com)

Inconsistent Fact [Section 11]

Section 11 provides that the fact which ordinarily have nothing to do with the fact of the case,
become relevant because of the reasons that they are consistent with the fact in issue.

Admission and Confession

Meaning of Admission [Section 17]

Admission is a statement given by a person admitting a fact which suggests as to the existence
of his liability. For the applicability of this provision, admission must be against the interest of
the maker.

Meaning of Confession

The word „Confession‟ is not defined in Indian Evidence Act, 1872. Hence the definition of
admission given in Sec. 17 is also applicable to confession. Thus, confession is a statement
given by an accused admitting his guilt.

If a confession is made to the Court, it is called the judicial confession, whereas where the
confession is made to any person outside the court, it is called extra judicial confession.

Important Provisions Pertaining to Confession

Confession must be free and on voluntarily basis [Sec.24]: Sec.24 provides that
confession should free and on a voluntary basis. It must not be caused by any inducement,
threat or promise.

Confession made to police officer will be irrelevant and inadmissible [Sec. 25] Sec. 25
provides that confession made to a police officer will be irrelevant and inadmissible.
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SIMRANJEET SINGH
(CS, LLB, M.com, B.com)

Section 26: Sec. 26 provides that a confession made to police officer in the immediate
presence of a Magistrate will be admissible.

It may be noted that a Civil Judge is not a Magistrate. A Civil judge has a power under CPC
where a Magistrate exercise poser under CrPC. Thus Sec 26 is applicable only when the
confession is made in a presence of Magistrate. It may further be noted that Sec. 26 is an
exception to Sec. 25.

Section 27: Sec. 27 provides that a statement in the form of confession to a police officer will
be admissible provided that the statement leads to the discovery of a fact connected with a
crime.

For example, A confesses to Police that he has murdered B with a revolver and that the revolver
is with C. The police recovered the revolver from C. Thus, in such a case Section 27 will be
applicable.

Section 30: Sec. 30 provides that when a statement in the form of a confession is given by co-
accused, then such statement may be used against another co-accused.

For example, A and B together murder C. There is allegation on them and B confesses before
a Judge that he has murdered C along with A. This is a statement of co-accused and thus can
be used against another co-accused i.e., A

Conclusion: Section 24 to 30 provides that the court may accept the confession in toto and
reject in toto. The court can‟t accept only the in-culpantory part while rejecting the ex-culpatory
part.

For example, A wife is supposed to murder her husband; she said that she wrongly
administered the poison in place of the medicine to be given to her husband. In addition, she
said that she murdered her husband with the help of some other person and drowns the dead
body in the well. There are two part of this statement i.e., one is in-culpatory and another is ex-
culpatory.
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SIMRANJEET SINGH
(CS, LLB, M.com, B.com)

Difference between admission and confession

Admissions are a genus of which confession are a specie. Confession is a special from of
admission. The main points of difference between them are as follows.

Admission Confession

1. Admission may be oral Confession even it is oral, it is

Recorded in writing and signed by

The parties.

2. Admission may be under compulsion also. Confession has to be voluntary.

3. Admission may be made by anybody Confession shall be by accused only.

Confession has to be done by self

Only.

5. It doesn‟t arise in case of admission Confession can bind even the co

Accused.

6. Admission is allowed in civil & criminal cases. Generally it is available only in

Criminal cases.

7. All admissions need not be confessions. All confessions are admissions.

Hearsay Evidence

Section 59 of Indian Evidence Act provides that except content of documents, all other facts
may be proved by oral evidence.
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SIMRANJEET SINGH
(CS, LLB, M.com, B.com)

Section 60 further provides that the oral evidence must be direct and it should not be indirect or
hearsay. Thus it can be sated that in all cases the evidence has to be that of a person who
himself witnessed the happening of a fact. Such a witness is called eye witness. Therefore, it is
normally said „hearsay evidence is no evidence‟

However, there are certain exceptions to the aforesaid rule that hearsay evidence is no
evidence. They are as under:

1. Res Gestae: As per this provision, statement of person may be proved through another
person who appears as a witness, if the statement is a part of transaction issue.

2. Admission and Confession: An admission of liability or confession of guilt is proved

through the testimony of the witness to whom such admission and confession was
made.

3. Dying Declaration: As per Section 32, statements are proved through testimony of the
witness to whom such statement has been made. This provision covers the testimony
related to dying declaration as well as the statements relating to a person under
disability. It may be noted that where a person making a declaration survives then the
statement made by him can‟t used as dying declaration.

4. The evidence given by witness in a judicial proceeding can be used as evidence in

subsequent proceedings.

Estoppel [Section 115]

Estoppels is a proposition of law by which a person is held by the representation made by him
or arising out of his conduct. The facts constituting the estoppel will be relevant and admissible.

Privilege Communication

There are certain mattes which a witness can‟t be compelled to disclose or even if the witness is
willing to disclose, he will not be permitted to do so. Such mattes are known as privileged
communication.
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SIMRANJEET SINGH
(CS, LLB, M.com, B.com)
Following are the fact of which evidence can‟t be given:

Communication During marriage [Section 122]

Section 122 prevents communication between husband and his wife from being disclosed.
Thus a wife or husband can‟t be permitted to disclose what her husband or his wife respectively
has stated with regards to the matters in issue. Such communication remains protected even
after the divorce. However communications made before the marriage or after the divorce are
not protected.

Professional Communication [Section 126]

Communication made by a client to his advocate for the purpose of his professional work is not
permitted to be disclosed.

Witness [Section 118]

Every person is a competent witness provided such person understands the questions posed to
him and can give logical and rational answer to those questions.

A child can also be a competent witness provided such a child is intelligent enough to
understand the questions and answer them in a logical and rational manner.

A Judge or a Magistrate can also be a competent witness provided such judge or Magistrate is
personally aware of the facts of the case.

Evidence in Respect of Certain Documents

Section 93 provides that where the language of document is apparently defective on the fact of
it, oral evidence can‟t be entertained to cure that defect.
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SIMRANJEET SINGH
(CS, LLB, M.com, B.com)

Section 97 provided that where the language of a document applies partly to one set of facts or
partly to another set of facts, but doesn‟t apply accurately to either set of fact, then evidence can
be given to show to which fact the document intended to apply.

Civil Procedure Code, 1908

Introduction
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SIMRANJEET SINGH
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Civil Procedure Code is the general law relating to civil suits.

The Code consists of two divisions. The first division, containing 158 Section, is the substantive
law i.e., the law which determines the rights and obligation of the parties to a dispute. The
second division, containing 51 Orders, each of which contains several Rules, is the procedural
law i.e., the law which prescribes the procedure for the enforcement of rights and obligation of
the parties to the disputes.

The first division, containing substantive law, can be amended only be the Parliament whereas
the second division, containing procedural law, can be amended only by the High Courts.

Concept of Decree, Order and Judgment

Decree

The term „decree‟ has been defined u/s 2(2) of Civil Procedure Code, 1908. It means the formal
expression of an adjudication which conclusively determines the rights of the parties with regard
to all or any of the matter in controversy in the suit.

A decree may be either preliminary or final. A decree is preliminary when a further procedure
has to be taken before the suit can be completely disposed off. It is final when such adjudication
completely disposes of the suit.

It may be noted that the term „decree‟ doesn‟t include the following:

 Any adjudication from which an appeal lies as an appeal from an order.

 Any order or decision of the dismissal of the suit for default.

Order
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SIMRANJEET SINGH
(CS, LLB, M.com, B.com)
The term „Order‟ has been defined u/s 2 (14) of the Civil Procedure Code. It means the formal
expression of any decision of the Civil Court which is not a decree.

Judgment

The term judgment has bee defined u/s 2 (9) of the Civil Procedure Code. It means the
statement given by the Judge on the grounds of a Decree or Order. Thus a judgment sets out
the ground and the reason for the Judge to have arrived at the decision.

Difference between Decree and Order

1. A Decree adjudicates and conclusively determines the rights of the parties, whereas an
Order doesn‟t do so.
2. A Decree is always appealable unless prohibited by the law, whereas an Order is not
appealable unless permitted by the law.
3. Law may provide even for second appeal in case of Decree, whereas second appeal is
not possible in the case of an Order.
4. A Decree may be final or preliminary whereas an Order can‟t be preliminary and it is
always final.

Appearance of Parties [Order 9]

When a suit is filed by the plaintiff, a summon is issued to the defendant to appear on a
particular date fixed by the court. The defendant is further directed through the summon to file
the written statement (reply) to the suit filed by a plaintiff.

On the date of hearing by the court, both the plaintiffs as well as the defendant are required to
present themselves before the court. If the plaintiff doesn‟t appear on the date of the hearing,
then the court may either dismiss the suit for default o decide it ex – parte on the merit of the
case. If the defendant doesn‟t appear on the date of hearing, the court may either adjourn the
hearing or decide it ex – parte on the merits of the case.

The ex – parte order or the order relating to the dismissal of the suit can be set aside provided
the plaintiff or the defendant, as the case may be, gives a sufficient reason for his non-
appearance on the date of hearing.
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SIMRANJEET SINGH
(CS, LLB, M.com, B.com)

Place of Filing of Suit

Section 15

Every suit shall be instituted in the court of lowest grade.

Section 16

Suits regarding immovable property are instituted in the court within whose jurisdiction, the
Immovable property is situated.

Section 17

Where immovable property is situated in the jurisdiction of different courts, the suit may be filed
in any of such courts.

Section 18

Where there is apparent uncertainty regarding the jurisdiction of the court, the suit may be filed
in any of such courts.

Section 19

Suit with regards to the compensation for wrongs done to the persons or suit pertaining to
movable property can be filed in the court having the jurisdiction over the place where the wrong
was committed or where the defendant resides.
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Section 20

Where above section i.e., Section 16, 17, 18 and 19 are not applicable, such suits may be filed
in the court having jurisdiction over the place where the defendant resides or where the cause of
action has arisen.

For instance, A resides at Shimla, B at Calcutta and C at Delhi. A, B and C being together at
Varanasi; B and C make a joint promissory note payable on demand , and deliver it to A. A may
sue B and C at Varanasi, where cause of action arose. He may also sue them at Calcutta
where B resides or at Delhi where C resides, but in each cases, if the non-resident defendant
objects, the suit can‟t be proceeded without the leave of the Court.

Section 20 further provides that in the case of a Company, the suit may be filed at any of the
following places:

 Place where the Principal office or the Head office of the Company is situated.
 Place where the cause of action has arisen, subject to the condition that the company
has a Branch office at such place.

Important Point

In the leading case of Hakam Singh v. Gammon (India) Limited, the Supreme Court held that
the parties, by an agreement, can not confer jurisdiction on a Court which it doesn‟t possess
under the law. However, the parties can agree that only a particular Court will try a suit, where
the two courts have jurisdiction to try a suit.

Important Doctrines

Doctrine of Res Sub-Judice [Section 10]

Section 10 of the Civil Procedure Code provides the doctrine of res sub-judice or the rule with
regard to stay of suit where things are under consideration by court. It provides that no court
shall proceed with the trial of any suit in which the mater in issue is also directly and
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(CS, LLB, M.com, B.com)
substantially in issue in a previously instituting suit between the same parties where such suit is
pending in the same or any other court in India. However, the pendency of a

Suit in Foreign Court doesn‟t bat the courts in India from trying a suit founded on the same
cause of action.

For the application of the doctrine of res sub-judice, the following conditions must be satisfied:

1. A previously instituted suit is pending in a Court;

2. The matter in issue in second suit is also directly and substantially the same as in the
previous suit;
3. The previously instituted suit is still pending in same court or any other court in India;
4. The parties in two suits are same; and
5. The court in which previous suit is pending has the jurisdiction to try such suit.

Section 10 is enacted to prevent courts of concurrent jurisdiction from simultaneously trying two
parallel suits in respect of same matter in issue.

A suit was instituted by the plaintiff company alleging infringement by the defendant company by
using trade name o medicine and selling the same in wrapper and carton of identical design
with same color combination etc. as that of plaintiff company. A subsequent suit was instituted
in different court by the defendant company against the plaintiff company with the same
allegation. The Court held that subsequent suit should be stayed as simultaneous trial of the
suits in different courts might result in conflicting decisions as issue involved in two suits was
totally identical.

[Wings Pharmaceuticals v. Swan Pharmaceuticals]

Doctrine of Res-Judicata [Section 11]

The doctrine of res-judicata or the Rule of conclusiveness of judgments is explained in Section

11 of the Civil Procedure Code. It provides that once the matter is finally decided by a
competent court, no party can be permitted to re-open it in subsequent litigation. The principle
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(CS, LLB, M.com, B.com)
underlines that no one shall be vexed twice for the same cause. It prevents two different
decrees on he same subject.

To apply this doctrine, the following condition must be fulfilled:

1. The matters in both the former and the latter suits should be directly and substantially
the same.
2. The former suit should have been decided;
3. parties in two suit are same; and
4. The court which determines the earlier suit must be competent to decide it.

The application of this doctrine is based on the public policy so that the patties would not be
harassed again and again on the same issue already decided. The court‟s time will also not get
vested on matter already decided.

It may be noted the Sect. 11 will not be applicable in those circumstances where the first suit
have been dismissed on technical ground and has not been decided on merit of the case.

Concept of set off, Equitable Set off and Counter Claim

Set Off

Order 8, Rule 6 deals with set off which is a reciprocal acquittal of debts between the plaintiff
and he defendant. It has the effect of extinguishing the plaintiff‟s climbs to the extent of the
amount claimed by the defendant.

Where in a suit for the recovery of money, the defendant‟s claims to set off against the plaintiff‟s
demand, any ascertained sum of money legally recoverable by him from the plaintiff, the
defendant may present a written statement containing the particulars of the debt sought to be
set off.

Equitable Set Off

This is not a concept of CPC deals with the concept of equitable set off. Where the defendant
claims set off in respect of an unascertained sum of money, where the claim arises of the same
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transaction, and then such set off is known as equitable set off. Generally, the suits emerge
from cross demands in the same transaction and this doctrine is intended to save the defendant
from having to take recourse to a separate cross suit.

Counter Claim

Order 8, Rule 6A of Civil Procedure Code deals with the Rule of Counter claim. This Rule
permits the defendant to set up the claim as a counter to the claim of the plaintiff, which arose
between the parties. This rule is applicable in the interest of public policy so as to minimize
litigation between the parties which could have been filed by the defendant separately.

Reference, Review and Revision [Section 113, 114 & 115]

Reference [Section 113]

A reference can be mad by a lower court to the higher court where the question of law is
involved in the suit and the lower court has a reasonable doubt about such question of law. The
application for reference can be made by any of the parties to the suit. Further the lower court
may also, on its own, refer the mater to the higher court.

The purpose of Sec. 113 is to enable the sub-ordinate courts to obtain, in non- appealable
cases, the opinion of High Court on questions of law for doing justice to the parties.

Review [ Section114]
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Section 114 of the Civil Procedure Code provides for the review of the case i.e., the
reconsideration of the decision given by a court.

The application for review can be filed where no appeal could be preferred against the order of
the court and also in those cases where the person concerned doesn‟t want o prefer such an
appeal, though such an appeal is maintainable.

It may be noted that application to review has to be filled before the same court which has given
the decision. It may further be noted that a court can exercise the power of review only if it is
specifically authorized to exercise such power under some law.

Revision [Section 115]

A petition of revision can be made before the High Court when the subordinate Court:

o Exercises a jurisdiction not vested in it by law;

o Fails to exercise jurisdiction vested in it by law or
o Acted in the exercise of jurisdiction with material irregularity.

Appeals

Appeal is an application by which a party requests an appellate court to set aside or modify the
decision of the subordinate court.

The Civil Procedure Code provides for following four kinds of appeals:

Appeals from original decree

Appeals from original decrees may be preferred from any decree, passed by any court
exercising original jurisdiction, to the court authorized the hear appeals from the decision of
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such courts on point of law as well as on points of facts. In this case, there is always a right to
appeal, until unless there is a specific prohibition to such a right.

Second appeals

Second appeals lies to the High Court from any decree passed in appeal by any court
subordinate to the High Court, if the High Court is satisfied that the case involves a substantial
question of law.

Appeals against the orders

In general, appeals against the order are not allowed. However, if it is specifically permitted
under the provisions of law, appeal can be filed against the order on ground of defects or
irregularity of law.

Appeal to Supreme Court

An Appeal can be filed to the Supreme Court in respect of those decrees which have been
passed by High Court in their original jurisdiction.

Injunction

An injunction is a judicial process by which one, that has invaded or threatened to invade the
rights of another, is restrained form continuing or commencing such wrongful acts. This is a
preventive relief granted as discretion of court.
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An Injunction may be a temporary or a perpetual Injunction. Temporary Injunction is regulated
by Order 39 of Civil Procedure Code whereas Perpetual Injunction is regulated by Section 38 of
Specific Relief Act, 1963.

A temporary injunction is such as is to continue until a specified time or until the further orders of
the court. It may be granted at any stage of the suit.

A perpetual injunction can only be granted by a decree made under hearing and upon the merits
of the case. In case of a perpetual injunction the defendant is permanently restrained from
doing any act which is against the right of the plaintiff.

Summary Procedure

Order 37 of Civil Procedure Code provides for a summary procedure in respect of certain suits.
The essence of the summary suit is that the defendant is not, as in an ordinary suit entitled to
defend the suit. The object underlying the summary procedure is to prevent unreasonable
obstructions by defendant who has no defence.

Summary suit can be filed in the following cases:

 Suits relating to Promissory Notes, Bill of Exchange Cheques, Hundis.

 Suit in which the plaintiff seeks only to recover a debt.

In summary suit, the defendant is not entitled to defend the suit until he enters appearance and
makes an application for leave to defend the suit, within 10 days from the date of summons
leave to defend may be granted to him unconditionally or upon such terms and conditions as the
courts thinks fit. However, leave to defend the suit shall not b granted in the following cases:

 Where the defence of the defendant is frivolous or vexations.

 Where part of the amount claimed by the plaintiff and accepted by the defendant has not
been deposited by the defendant in the court.

Suits By or Against Minor

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Order 32 of Civil Procedure Code deals with the provision relating to suits by or against minor.
The basic rule as regard suits by or against minor is that the law protects minors against their
immaturity and inexperience and also against the matured and experienced person.

Every suit by a minor shall be instituted in his name by a person who in such suit shall be

Called the next friend of the minor. Where a suit is instituted by minor without the next friend,
then the defendant may apply for dismissal of the suit. Where the defendant is a minor, the
court shall appoint a proper person to be a guardian for the suit of such minor.

A minor plaintiff, on attaining majority, shall elect whether he will or will not proceed with the suit.
Where he elects to proceed with the suit, he shall apply for an order discharging the next friend
and for leave to proceed in his own name. Where he elects to abundant the suit, he shall apply
for an order to dismiss the suit, on repayment of the costs incurred by the defendant.

Section 12

Section 12 of Civil Procedure Code provides that abatement of suit or its dismissal, for not
bringing the legal representative on record, bars further suit.
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Criminal Procedure Code, 1973

Introduction

The Criminal Procedure Code, 1973 is the general law relating to criminal procedures. The
Code prescribes the procedure for the trial of offences specified in the Indian Panel Code, 1860.
Thus, the main object of Criminal Procedure Code is to supplement the substantive law
contained in Indian Penal Code, by prescribing the suitable procedure.

Important Concepts

Offence [Section 2(n)]

Offences mean any act or omission made punishable by any law for the time being in force.

In simple terms, and offence is a wrong committed by any individual in a society. Following are
the four elements which constitute the offence:

 A human being;
 Mens Rea (guilty mind or intention);
 Illegal act i.e.; Actus Reas; and
 Injury to another person

Bailable and Non-Bailable Offecne [Section 2(a)]

Bailable offence means an offence which is shown as bailable in the first schedule of the
Criminal Procedure Code or which is me bailable by any other law for the time being in force.
Non-bailable offence means any other offence.
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Bailable offences are less serious than non-bailable offences. A Bail, in the case of bailable
offence, is a matter of right whereas a Bail, in case of non-bailable offence, depends upon the
discretion of the court.

Bail means the release of an accused from the custody of the officer of law and entrusting him
to the private custody of person who become bound as surety to produce the accused

to answer the charge at the stipulated time and date.

Anticipatory Bail [Section 438]

Anticipatory bail is a bail which is granted to a person who apprehends arrest but has not yet
been arrested. Where any person has reason to believe that he may be arrested on an
accusation of having committed a non-bailable offence he may apply to the High Court or the
Court of Sessions for a direction u/s 438. On such application, the Court may, if it thinks fit,
direct that in the event of such arrest, he shall be released on bail.

The Court grants the anticipatory bail subject to the following conditions:

1. That the accused shall make himself available for interrogation by a police officer as and
when required;
2. He shall not threaten the witness so as to make them hostile; and
3. He shall not leave India without the prior permission of court.

Cognizable and Non-Cognizable Offence/ Cases [Section 2(c) and 2(1)

Cognizable offence means an offence in which a person can be arrested by a police officer
without warrant. Cognizable offences are generally more serious in nature and heavily
punishable. In such cases, the police have hardly any time to obtain a warrant of arrest from a
court, as the offender may escape by the time of warrant is obtained or he may tamper with the
material evidence. Examples of cognizable offences are Murder, Dacoity, etc.

Non-Cognizable offence means an offence in which the police can‟t arrest a person without
warrant. Non-Cognizable offences are less serious in nature as compared to cognizable
offence. In cause of these offences injury cause to the society is comparatively small.
Examples of non-cognizable offences are simple hurt, undue influence at an election, etc.
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Complaint [Section 2(d)]

Complaint means any allegation made orally or in writing to a Magistrate with the view to his
taking action under Criminal Procedure Code, that some person, whether known or unknown,
has committed an offence.

It may be noted that the term complaint doesn‟t include a police report. Police report means a
report forwarded by a police officer to a Magistrate.

Investigation, Inquiry and Trial

Investigation [Sec. 2 (h)] : As per Criminal Procedure Code, investigation is to be conducted

always by a police officer or by any other authorized person. Investigation process consists of
the following steps:

1. Proceeding to the spot;

2. Ascertainment of facts and circumstances;
3. Discovery and arrest of the suspected person; and
4. Collection evidence.

Inquiry [Sec. 2(g)] : According to Criminal Procedure Code, inquiry is always conducted by the
Magistrate or by the court. An inquiry before trial to ascertain whether any offence has been
committed and whether he should be put upon the trial.

Trial: The word „trial‟ has not been defined under Criminal Procedure Code. It means the
judicial process in accordance with law, whereby the question of guilt or innocence of the
person accused of an offence is determined. Thus a trial ends either in conviction or acquittal.

Mens Rea

Mens Rea is one of the principles o criminal law that a crime is not committed if the mind of the
person doing the act in question is innocent. It is said that “ACTUS NON FACIT TEAM HISI
MENS SIT REA‟ i.e., the intention and act must both concur to constitute the crime and that is
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why it is said that guilty mind is necessary for liability in Criminal law. The general rule to be
stated is “there must be a mind at fault before there can be a crime”

Summons Cases and Warrant Cases [Section 2 (w) and 2(x)

Warrant case means a case relating to an offence punishable with death, imprisonment for life
or imprisonment for a term exceeding 2 years. Summons case means a case relating to an
offence and not being a warrant case.

Thus, it can be seen that the distinction between two terms is based on the quantum of the
Punishment that can be awarded. In other words, cases which are punishable with
imprisonment up to 2 years are summons cases and the rest are all warrant cases.

Further in a summons case, the court order is directly issued to a person to produce himself
before the court, whereas in a warrant case, the court order is issued to the police to produce
the person concerned before the court.

Summary Trial [Section 260]

Summary trial means speedy disposal of cases.

Sec.260 provides that summary trial can be conducted in respect of those offences which are
not punishable with death or imprisonment for life or imprisonment exceeding 2 years. In simple
words, we can say summary trial can be conducted only in respect of those offences which are
punishable with imprisonment for a term not exceeding two years.

Further, summary trials can be conducted only in respect of those offences in which the value of
property does not exceed Rs.200/-.

It may be noted that Summary Trial can be conducted only by a Chief Judicial Magistrate.
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Section 262 provides that if in a summary trial the accused is found to be guilty, he shall not be
sentenced to imprisonment for a period exceeding 3 months.

Information to the Police

Section 154

Any person aware of any cognizable offence may give information to the police. The
information so received shall be recorded in the manner prescribed under CrPC. The
information so recorded u/s 154 is known as First Information Report (FIR).

Where the concerned Police Officer doesn‟t record the aforesaid information, then the person
giving the information can do the following:

 Inform the Superintendent of Police regarding the refusal of the concerned police officer.
In such a case, the Superintendent of Police himself shall record the information and
investigate the mater.
 Inform the concerned Magistrate which, in turn, will take the action against the
concerned Police officer.

Section 155

If any person gives information to an Officer-in-Charge of the concerned police station of the
commission of a non-cognizable offence, the Officer shall enter the substance of such
information in a particular book prescribed by the State Government. The Officer, thereafter,
shall refer the information to the Magistrate for appropriate direction.

Sec. 155 (2) Provides that no Police Officer shall investigate a non-cognizable case without the
order of Magistrate having the power to try such offence.

Sec. 155 (4) Provides that where a case relates to two or more offences and one of them is
cognizable, the case shall be deemed to be a cognizable offence irrespective of the fact that
other offences are non-cognizable.
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Arrest of a Person

Arrest without Warrant [Section 41]

Section 41 of the Criminal Procedure Code lays down the circumstances in which police officer
may arrest a person without warrant. As per this, following persons can be arrested by a Police
Officer without warrant:

1. Who has been concerned in any cognizable offence; or

2. Who has in his possession without lawful excuse, the burden of proving which excuse
shall lie on such person, any implement of housebreaking ; or
3. Who has been proclaimed as an offender either under this code or by order of the State
Government; or
4. In whose possession anything is found which may reasonably or suspected to be stolen
property; or

5. Who obstructs a police officer while in the execution of his duty, or who has escaped, or
attempts to escape, from lawful custody; or
6. Who is reasonably suspected of being a deserter from any of the Armed Forces of the
Union; or
7. Who has committed any act at any place out of India which, of committed in India, would
have been punishable as an offence, and for which he is liable to be apprehended or
detained in custody in India: or
8. Who being a released convict, commits any breach of any rule, relating to notification of
residence or change of or absence from residence; or
9. For whose arrest any requisition, whether written or oral, has been received from
another Police officer, provided that the requisition specifies the person to be arrested
and the offence or other causes for which the arrest is to be made it appears there from
that the person might lawfully be arrested without a warrant by the officer who issues the
requisition.

Arrest on Refusal to Give Name and Residence [Section 42]

If any person who is accused of committing a non-cognizable offence doesn‟t give his name,
residence or gives a name and residence which the police officer feels to be false, he may be
taken into custody. However, such person can‟t be detained beyond 24 hours if his true name
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and address cannot be ascertained or fails to execute a bond or furnish sufficient sureties. In
that event he shall be forwarded to the nearest Magistrate having Jurisdiction.

Arrest by a Private Person [Section 43]

A private person may arrest or cause to be arrested any person who is his presence commits a
non-bailable or cognizable offence or who is a proclaimed offender.

Miscellaneous Provisions

Sentence of Imprisonment in Default of Fine [Section 330]

Where a fine has been imposed on an accused but the same has not been paid, them he can
be imprisoned in lieu of fine. However, this imprisonment shall not exceed 1/4th of the period of
imprisonment, which the Magistrate cab award as maximum imprisonment.

Limitation Period [Section 470]

In calculating the limitation period, the following period shall be excluded:

 The period during which the offender has been absent from India.
 The period during which the offender has avoided arrest by absconding.