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THE NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

VII TRIMESTER

THIRD YEAR
B.A., LL.B. (Hons.)

2019-2020 (July - September)

CIVIL PROCEDURE CODE (CPC) - I

Compiled by:

Nimisha Jha

Assistant Professor

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SYLLABUS

UNIT I: INTRODUCTION

1. The Scheme of Indian Courts

2. The Adversarial System

3. Function of Law of Procedure

4. Historical Background of Civil Procedure Code

5. Nature and Objectives of Civil Procedure Code

6. Commencement of The Code

7. Scope of The Code

8. Scheme of The Code

9. Retrospective Operation of The Code

10. Definitions- Decree, Judge, Judgement, Order, Decree-Holder, Judgement Debtor, Foreign
Court, Foreign Judgement, Legal Representative, Mesne Profit, Public Officer, Affidavit,
Appeal, Caveat, Cause Of Action, Civil, Court, Defendant, Execution, Issue, Jurisdiction,
Plaint, Plaintiff, Res Judicata, Res Sub Judice, Suit, Summons And Written Statement.

UNIT II: COMMENCEMENT OF SUIT

1. Place of Suing- Jurisdiction Of Courts, Forum Shopping, Bar Of Suit

2. Institution Of Suit- Essentials Of A Suit, Parties, Joinder, Non Joinder, Misjoinder Of


Parties, Striking Out, Adding And Substituting Parties, Transposition Of Parties,
Representative Suit, Frame Of Suit, Suit By Indigent Persons, Suit Against Minors, Suit
Against Dead Person, Register Of Suits.

3. Pleadings- Basic Rules, Forms Of Pleading, Amendment Of Pleadings, Amendment After


Commencement Of Trial, Doctrine Of Relation Back, Failure To Amend.

4. Plaint And Written Statement- Meaning, Admission, Return And Rejection Of Plaint, Agents
And Pleaders, Written Statement, Set Off, Counter Claim.

5. Summons- Meaning, Object, Essentials, Form Of Summons, Appearance In Person,


Exemption From Appearance In Person, Contents Of Summon, Mode Of Service Of Summons,
Refusal Of Summons, Objection As To Service Of Summons, Special Cases.

6. Appearance And Non Appearance Of Parties- Where Neither Party Appears, Where
Summons Is Not Served, Ex-Parte Decree.

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UNIT III: PRE TRIAL

1. First Hearing- Meaning, Object, Alternative Dispute Resolution, Issue, Framing Of Issues,
Object Of Framing Of Issues, Kinds Of Issues, Preliminary Issues, Amendment Of Issues,
Omission To Frame Issues.

2. Discovery, Inspection And Production Of Documents- Privileged Documents, Premature


Discovery, Admission Of Documents, Return And Rejection Of Documents, Impounding Of
Documents, Affidavit, Contents Of Affidavit, Evidence Of Affidavit, False Affidavit.

3. Interrogatories- Who May Administer?, Form of Interrogaries, Objections, Rules, Non


Compliance.

4. Admissions- Meaning, Nature, Object, Importance, Kinds of Admissions, Conclusiveness,


Notice to Admit Case, Notice to Admit Facts, Judgement on Admissions.

5. Interim Orders- Payment in Courts, Security of Costs, Commissions, Arrest Before


Judgement, Attachment Before Judgment, Temporary Injunctions, Interlocutory Orders,
Receiver.

6. Withdrawal and Compromise of Suits- Withdrawal Without Leave of Court, Withdrawal


with Leave of Court.

7. Death, Marriage and Insolvency of Parties- Devolution of Interest

UNIT IV: TRIAL

1. Summoning And Attendance Of Witnesses- Attendance Of Witnesses In Prison

2. Summons To Produce Documents

3. Adjournments- General Rule, Discretion Of The Court, When Adjournment May Be Granted
Or Refused, Power And Duty Of Court, Recording Of Reasons, Last Adjournment, Maximum
Adjournments, Cost Of Adjournments, Failure To Appear.

4. Hearing Of Suit- Trial In Open Court, In Camera, Right To Begin And Reply, Recording Of
Evidence, Oral Arguments, Written Arguments.

5. Judgment And Decree- Pronouncement Of Judgement, Copy Of Judgement, Contents Of


Judgement, Alteration In Judgement, Deemed Decree, Types Of Decree, Form Of Decree,
Contents Of Decree, Interest, Award Of Interest, Divisions Of Interest, Rate Of Interest, Costs,
Kinds Of Cost.

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UNIT V: SPECIAL SUITS

1. Suits By Or Against Government Or Public Officers

2. Suits By Aliens

3. Suits By Or Against Foreign Rulers, Ambassadors And Envoys

4. Suits By And Against Rulers Of Former Indian States

5. Suits By Or Against Soldiers, Sailors And Airmen

6. Suits By Or Against Corporations

7. Suits By Or Against Partnership Firms

8. Suits By Or Against Trustees, Executors And Administrators

9. Suits By And Against Minors And Lunatics

10. Suits Concerning Family Matters

11. Friendly Suits

12. Interpleader Suit

13. Suits By Indigent Person

14. Suits Relating To Constitutional Validity Of Statutory Instruments

15. Mortgage Suits

16. Summary Suits

17. Suits Relating To Public Nuisance

18. Suits Relating To Public Trusts

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TEXT BOOKS

1. Aiyar, V. (n.d.). Mulla on the code of civil Procedure. Bombay: N.M.Tripathi Pvt.

2. Bhagat, Y. P. (2017). Code of civil procedure: with exhaustive case law state and high court
amendments letters patent high court acts and orders (2nd ed). Gurgaon: LexisNexis.

3. Malik, S. (2014). The Code of Civil Procedure. New Delhi: Universal Law Pub.

4. Takwani, C. K. (2017). Civil procedure: with limitation act,1963 and chapter on commercial
courts (8th ed). Lucknow: EBC.

5. Narayana, P. S. (2010). The Code of Civil Procedure,1908. Hyderabad: Asia Law House.

REFERENCE BOOKS

1. Mulla, D. F., & Kant, S. (2016). Key to indian practice: a summary of the code of civil
procedure (11th ed). Gurgaon: LexisNexis.

2. Mulla, D. F., Prasad, B. M., & Mohan, M. (2016). Mulla The Code of Civil Procedure (18th
ed). Haryana: Lexis Nexis.

3. Sarkar, S. C., & Sarkar, P. C. (2017). Code of civil procedure: by S. C. Sarkar & P. C. Sarkar
(12th ed). Gurgaon: LexisNexis.

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UNIT I: INTRODUCTION

1. THE HEIRACHY OF INDIAN COURTS:

Civil Court System

The Indian Judicial System is one of the oldest legal systems in the world today. It is part of
the inheritance India received from the British after more than 200 years of their Colonial rule.
The framework of the current legal system has been laid down by the Indian Constitution and
the judicial system derives its powers from it. There are various levels of judiciary in India—
different types of courts, each with varying powers depending on the tier and jurisdiction
bestowed upon them. They form a hierarchy of importance, in line with the order of courts in
which they sit, with the Supreme Court of India at the top, followed by High Courts of
respective states with District Judges sitting in District Courts and Magistrates of Second Class
and Civil Judge (Junior Division) at the bottom.

The District Court of India are established by the State Government in India for every district
or more than one district taking into account the number of cases, population distribution in the
district. These courts are under administrative control of the High Court of the State to which
the district concerned belongs. The District Court is presided over by one District Judge
appointed by the State Government. In addition to the district judge there are many Additional
District Judge and Assistant District Judge depending upon the workload.

In every state, besides the High Court there are number of judicial Courts to administer justice.
These courts function under the complete control and supervision of the High Court. A state
has got exclusive Legislative competence to determine the constituent organization and
territorial jurisdiction of all courts subordinate to the High Court. The organization of
subordinate courts throughout the country is generally uniform. There are two type of law
courts in every district;

(i) Civil Courts

(ii) Criminal Courts

The court of the district judges is the highest civil court in a district. It exercises both judicial
and administrative powers. It has the power of superintendence over the courts under its
control. The court of the District judge is located at the district headquarters. It has power of
trying both civil and criminal cases. Thus he is designated as the District and Sessions Judge.

Below the court of the District Judge are the courts of Sub-judge, Additional Sub-Judge and
Munsif Courts, which are located in the sub-divisional and district headquarters. Most of the
civil cases are filed in the court of the Munsif. A case can be taken in appeal from the court of
the Munsif to the court of the sub-Judge or the Additional Sub-Judge. Appeals from the courts
of the sub- Judges and Additional sub-Judges shall lie in the District-Court. The Court of the

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District Judge has both original and appellate jurisdiction. Against the decision of the District
judge an appeal-shall lie in the High Court.

Civil Court has been categorized on the basis of Jurisdiction:

1. Subject Matter Jurisdiction: It can be defined as the Authority vested in the court to try and
hear cases of the particular type and pertaining to a particular subject matter.

2. Territorial Jurisdiction: The court can decide within the geographical limits of a court’s
authority and it cannot exercise authority beyond that territorial and geographical limits.

3. Pecuniary Jurisdiction: Pecuniary Jurisdiction is related to money, whether a court can try
cases and suits of monetary value/amount of the case or suit in question.

4. Appellate Jurisdiction: It refers to the authority of a court to rehear or review a case that has
already been decided by a lower court. Appellate jurisdiction is generally vested in higher
courts. In India, both the High Courts and the Supreme Court have appellate jurisdiction to
hear matters which are brought in the form of appeal before them. They can either overrule the
judgment of the lower court or uphold it.

Organization of Subordinate Courts

In India, throughout the country the structure and functions of the subordinate courts are more
or less uniform. Descriptions of courts indicate their functions. In pursuance of the powers
bestowed upon them the subordinate courts deal with all disputes of civil or criminal nature.
The proceedings before the subordinate courts are subject two important codes prescribing
procedures, the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973 and
further strengthened by local statutes.

The.administrative control over the members of the subordinate courts vests with High Courts
under Article 235 of the Constitution of India. In relation to such State to exercise further
powers bestowed under proviso to Article 309 read with Article 233 and 234 of the
Constitution, the State Government should frame rules and regulations in consultation with the
High Court. The members of the State Judicial Services are governed by these rules and
regulations. For the first time under the directive of the Supreme Court of India, the Central
Government has set up a National Judicial Pay Commission to examine the present structure
of emoluments and conditions of service of judicial officers in the states and Union Territories.
The Commission has made its recommendations to the State governments. The same, as a rule,
officer entrusted with power under both the statutes presides over the court and it is known as
Principal District and Session’s Court.

Depending upon workload, a District Court may have jurisdiction over more than one District.
Generally these courts have unlimited pecuniary jurisdiction and depending upon the power
bestowed on the incumbent officer-in-charge of the court, it can handle criminal cases.

In some states, these courts with unlimited pecuniary jurisdiction are called courts of civil judge
(senior division) while in other states they are described as courts of subordinate judge. Apart

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from these courts, there are other courts known as small cause courts. These are set up either
under the Provisional Small Causes Act at the District level or under the Presidency Town
Small Causes Court Act in Presidency/Metropolitan towns.

1. District Courts: These courts are primarily Civil Courts to hear generally the appeals from
the courts of original civil jurisdiction in the Districts and Tehsils (Talukas). However these
courts have also been given original civil jurisdiction under many enactments. This court
exercises jurisdiction within its territorial or local jurisdiction of the District. These courts are
again depending upon the workload classified into Principal District Court, I Additional
District Court, and II Additional District Court etc. The Principal District Judge of these courts
makes over all supervision of subordinate civil courts.

2. Session Court: The State is to establish a court of the session court for every district. The
court is to be presided over by a judge appointed the High Court. These courts are primarily
Criminal Courts, with jurisdiction to revise the orders from the subordinate Magistrates as well
as to try serious offences, as prescribed by law.

Nevertheless these courts have also been given original criminal jurisdiction under many
enactments. This court exercises jurisdiction within its territorial or local jurisdiction of the
District.

3. City Civil and Sessions Courts: These Courts are only in the Mumbai, Chennai and
Kolkata, and are primarily Civil Courts of original jurisdiction of higher monetary valued suits,
however these courts have also been given powers of certain appeals against its subordinate
small cause’s courts. The session’s courts are primarily Criminal Courts, with jurisdiction to
revise the orders from the subordinate metropolitan magistrates as well as to try serious
offences, as prescribed by law.

4. Principal Civil Judges (SD & JD) Courts: Depending on the monetary jurisdiction
assigned to the category of the court, all the civil litigation matters are filed before the courts
of the original civil jurisdiction, either the Senior Division or the Junior Division depending
upon the workload of the court. These courts again classified into I Additional Civil Judge
Senior Division, II Additional Civil Judge Senior Division and Civil Judge Junior Division, I
Additional Civil Judge Junior Division, II Additional Civil Judge Junior Division. Most of the
times there are more than one Judges of the Junior Division in every Tehsil, and of Senior
Division in every District.

5. The Chief Judicial Magistrates and other Judicial Magistrates’ First Class: In every
district the State government may, after consultation with the High Court, establish as many
Courts of Judicial Magistrates of the First Class and of the second Class, depending upon the
work load. The presiding of these courts shall be appointed by the High Court. The Chief
Judicial Magistrate heads over the other Judicial Magistrates of First Class in every tehsil.
Every Chief Judicial Magistrate shall be subordinate to the Sessions Judge and other Judicial
Magistrates shall, subject to the general control of the sessions Judge, be subordinate to the

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Chief Judicial Magistrate. These courts are primary criminal courts, where every offender is
first produced after arrest by the police.

6. Special Executive Magistrates: In every district the State Government may after
consultation with the High Court, establish, for local area, one or more Special Courts of
Judicial Magistrate of the First Class or the Second Class to try any particular case or particular
class of cases. Where any such special Courts have been established, no other court of
Magistrates in the local area shall have jurisdiction try any such case or class of cases. The
presiding officers of such courts are appointed by the High court. These and other Magistrates
of the Second class are appointed for trying of very minor criminal offences and quasi criminal
matters, and generally report directly to and are subordinate to the Chief Judicial Magistrates,
who also generally hears appeals against the orders passed by these magistrates.

7. Courts of the Metropolitan Magistrates: In every Metropolitan area, the State Government
may, after consultation with the High Court, establish courts of Metropolitan Magistrates, at
such places and in such numbers as it thinks necessary. The presiding officers of such courts
are appointed by the High Court. The Jurisdiction and powers of every such Magistrate shall
extend throughout the Metropolitan area. In every Metropolitan area, the High Court shall
appoint Metropolitan Magistrate as Chief Metropolitan Magistrate. The Chief Metropolitan
Magistrate and every Additional Chief Metropolitan Magistrate shall be subordinate to the
Sessions Judge and every other Metropolitan Magistrate shall, subject to the general control of
the Session Judge, be subordinate to the Chief Metropolitan Magistrate. Again another legacy
of the British Raj is the courts of original criminal jurisdiction in the presidency towns of
Mumbai, Kolkata and Chennai. Though under certain Acts, they have exclusive jurisdiction,
where every offender is first produced after arrest by the police.

8. Small Causes Courts: These courts, a legacy of the British Raj, are the courts of original
civil jurisdiction in minor civil matters and litigation and only in the presidency towns of
Mumbai, Kolkata and Chennai. Though under certain Acts, exclusive jurisdiction, irrespective
of the monetary valuation of the subject matter, is granted to these courts.

2. ADVERSARIAL SYSTEM:

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There are generally two types of judicial process, they are:

1) Adversarial Process and

2) Inquisitorial Process.

1. Adversarial Process of Dispute Resolution:

The contemporary Anglo-Indian adversary system has gradually evolved over several hundred
years. In fact this system is originated in Germany and England. The scheme of Indian
jurisprudence, in which, a judge delivers a decision in a controversy between parties who assert
contradictory positions during a judicial examination such as a trial or hearing. Indian
courtrooms have often been compared to battlefields or playing fields. The adversary system
by which legal disputes are settled in India promotes the idea that legal controversies are battles
or contests to be fought and won using all available resources.

In the Anglo-Indian adversary system, a party may not be judged without having been heard
or called. Parties must disclose in due time to one another factual arguments supporting their
claims, the means of evidence they produce and the legal arguments they rely upon so that each
party may organise his defence. Parties choose freely their advocate either to represent them or
to assist them in accordance with what the law allows or requires. Oral arguments are held in
public hearings, save where the law requires or allows that they be held in the judge's chamber.
The parties to a dispute or their advocates square off against each other and assume roles that
are strictly separate and distinct from that of the decision maker, usually a judge or jury. In his
decision, the judge may take into consideration grounds, explanations and documents relied
upon or produced by the parties only, if the parties had an opportunity to discuss them in an
adversarial manner. He shall not base his decision on legal arguments that he has raised sua
sponte without having first invited the parties to comment thereon. The decision maker is
expected to be objective and free from bias. Rooted in the ideals of the present Indian judicial
system, the modem adversary system reflects the conviction that everyone is entitled to a day
in court before a free, impartial, and independent judge. Adversary theory holds that requiring
each side to develop and present its own proofs and arguments is the surest way to uncover the
information that will enable the judge or jury to resolve the conflict. In an adversary system,
the judge or jury is a neutral and passive fact finder, dispassionately examining the evidence
presented by the parties with the objective of resolving the dispute between them. The fact
finder must remain uninvolved in the presentation of arguments so as to avoid reaching a
premature decision.

The term Adversarial means a competitive battle between disputing parties in respect of their
dispute. In this process when there is legal wrong or injury caused to a person or determined
class of persons by reason of a violation of legal right or Constitutional right, then aggrieved
party (i.e., Plaintiff\ Petitioned Applicant) by paying of the prescribed court fee may file
suit/petition/writ petition in the appropriate court to enforce their infringed right.

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The Registrar of the Court or the Chief Justice of India or High Court or Principal District
Judge or Principal Civil Judge Senior or Junior Division will allocate the case either to
appropriate Bench or other inferior Presiding Officers of the court depending upon the facts of
the case and its importance. Thus for the disputing parties the judge will have no access. They
also have no freedom to choose their own judge for their case. A civil proceeding involves
generally many stages including pleadings, a determination of Jurisdiction, trial, judgment and
decree, appeals (including revision and review), and execution.

The present Indian Judicial civil system resembles this process. The adversarial process
commences proceedings by filing a plaint by the plaintiff. After filing the plaint the court will
issue summons to the defendant for his appearance and filing his written statement. The
defendant has to appear before the courts on the date on which his appearance is fixed and
required to file his written statement. On the basis of pleading filed by the each party, the court
will frame issues or points for determination. Each party will lead their evidence and they have
to prove respective case. This system permits the disputing parties to control their dispute. They
are also required to present their case in their own ways. From this it is very clear that parties
have got primary responsibility to prove their respective case by leading evidence and
producing relevant documents. Until the parties’ suit is finally disposed off, the parties have
got option to file number of interim applications under the Code Civil Procedure Code, 1908,
like applications for temporary injunction, appointment of commissioner, attachment of
property, arrest before judgment, appointment of receiver, production of documents,
permission to sue as an indigent person, setting aside an ex-parte decree, exempting of issuance
of two months notice against government, bringing legal heirs, amendment of pleading etc
under specific provisions. When there is no specific section or order to claim their relief then
aggrieved parties may move an application under section 151 of Civil Procedure Code 1908,
which provides for the inherent powers of the court. Thus this system provides for a lengthy
procedure and the parties are bound to follow and adhere it.

After leading the evidence, next stage involved is that, both the parties have to advance their
part of the arguments. After hearing arguments of both disputing parties, the court will
pronounce the judgment. Decree follows the judgment. The aggrieved parties against decree of
the civil court also have got right to prefer an appeal or revision or review. The parties should
bear all necessary and incidental expenses of the court from the filing of case until it is finally
disposed off like advocates fees, typing charges, court fees, appeal fees etc. Thus it is costly
and expensive. The hearing of the dispute, takes place in the open court. Public have right of
access in the open court. The procedure is formal and inflexible. The court will record the
evidence of the disputing parties in the open court. There is no confidentiality. The parties shall
adhere to rules of evidence and other procedural laws.

The court will not interfere in the matter of collecting required information to discover the
truth. The role of the court is just like a passive umpire. Thus the parties\their lawyers play an
important role in proving their respective case. The courts simply watchdog of those facts and
give its decision by mechanically applying law or similar principles to such facts taking into
consideration materials placed on the record.

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In criminal proceedings also when there is a legal wrong or injury is alleged to have been
caused, then on behalf of aggrieved person anybody can set the criminal law in motion. The
investigating officer investigates the case and submits the case and produce the accused before
the appropriate court. The public prosecutor conducts the case on behalf of State and tries to
prove the case against the wrongdoer. In certain situations even the private persons may also
file criminal cases against the wrongdoer, when the officer in charge of police station refuses
to record the statement of the complainant. The criminal court gives equal opportunity to the
parties to represent their cases. Both parties have equal rights to produce their oral and
documentary evidence, to have right to be represented by their advocates and place their
arguments through their advocates.

The court punishes or acquits the accused person only after hearing the arguments according
to the procedure. The court does not show any bias and it acts strictly in accordance with the
legal rules only. The parties to an Anglo-Indian lawsuit are responsible for gathering and
producing all the evidence in the case. This forces them to develop their arguments and present
their most compelling evidence, and also preserves the neutrality and passivity of the fact
finder.

The adversary process is governed by strict rules of evidence and procedure that allow both
sides equal opportunity to argue their cases. These rules also help ensure that the decision is
based solely on the evidence presented. The structure of this legal system naturally encourages
zealous advocacy by lawyers on behalf of their clients, but the code of ethics governing the
conduct of lawyers is designed to curb the tendency to attempt to win by any means. Thus in
the adversarial proceeding the rule of the court is just like a passive umpire. The presiding
officer has no rule to play, but give his verdict on the basis of materials placed on the records.
Further it consumes a lot of time since before deciding the case the parties are permitted to
produce number of interim applications. The aggrieved party has also got right to prefer appeal,
revision, review etc against order passed by the lower court. In conclusion, it may be stated
that the adversarial system is quite cumbersome. There is little control over inefficient legal
representatives and lawyers who manipulate the system to gain unfair advantage for their client
or to increase legal cost. Often the system of cross-examination is intimidating to witnesses, it
places them in uncomfortable surroundings and forces them to choose sides, when they really
should be there to testify as to the facts as they know them. This is a clear indication that at
times the adversarial system is ineffective and flawed.

2. Inquisitorial Process of Dispute Resolution:

Beginning in 1198, Pope, Innocent III, issued a series of decrees that reformed the ecclesiastical
court system. Under the new processus per inquisitionem (inquisitional procedure) an
ecclestiastical magistrate no longer required a formal accusation to summon and try a
defendant. Instead, an ecclesiastical court could summon and interrogate witnesses of its own
initiative, and if the testimony of those witnesses accused a person of a crime, that person could
then be summoned and tried. In 1215, the Fourth Council of the Lateran affirmed the use of
the inquisitional system. The council also forbade clergy from conducting trials by ordeal or
combat. As a result, in parts of continental Europe, the ecclesiastical courts operating under the

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inquisitional procedure became the dominant method by which disputes were adjudicated. In
France, the parlements — lay courts — employed inquisitorial proceedings. In England,
however, King Henry II had established separate secular courts during the 1160s. While the
ecclesiastical courts of England, like those on the continent, adopted the inquisitional system,
the secular common law courts continued to operate under the adversarial system. The
adversarial principle that a person could not be tried until formally accused continued to apply
for most of the criminal cases.

In 1215 this principle became enshrined as article 38 of the Magna Carta: "No bailiff for the
future shall, upon his own unsupported complaint, put anyone to his law, without credible
witnesses brought for this purposes”.

In the development of modem legal institutions which occurred in the 19th century, for the
most part, most jurisdictions did not only codify their private law and criminal law, but the
rules of civil procedure were reviewed and codified as well. It was through this movement that
the role of an inquisitorial system became enshrined in most European civilian legal systems.
However, there exist significant differences of operating methods and procedures between 18th
century ancient regime courts and 19th century courts; in particular, limits on the powers of
investigators were typically added, as well as increased rights of the defence. It would be too
much of a generalization to state that the civil law is purely inquisitorial and the common law
adversarial, indeed the ancient Roman custom of arbitration was the earliest form of adversarial
proceeding, has now been adapted in many common law jurisdictions to a more inquisitorial
form. In some mixed civil law systems, such as those in Scotland, Quebec and Louisiana, while
the substantive law is civilian in nature and evolution, the procedural codes that have developed
over the last several hundred years are based upon the English adversarial system.

An inquisitorial system is a legal system where the court or a part of the court is actively
involved in determining the facts of the case, as opposed to an adversarial system where the
role of the court is solely that of an impartial referee between parties. The term ‘inquisitorial’
is derived from Latin terms ‘quae’ meaning ‘questing’ and inquire meaning ‘to ask.’ This
process is originated from French legal system. Inquisitorial systems are used in most countries
in Western Europe and Latin America. The inquisitorial system applied to questions of criminal
procedure as opposed to questions of substantive law; that is, it determines how criminal
enquiries and trials are conducted, not the kind of crimes for which one can be prosecuted, nor
the sentences that they carry. It is most readily used in many, but not all civil legal systems.
The main feature of the inquisitorial system in France (and other countries functioning along
the same lines) in criminal justice is the function of the juge d’instruction, often translated as
investigating magistrate. The juge d'instruction is a judge who conducts the investigations in
the case of severe crimes or complex enquiries. He or she is independent from the political
power as well as the prosecution. Contrary to the prosecution, which is, in final, supervised by
the Minister of Justice, the juge d'instruction, as a judge, is independent of the executive
branch.
The judge hears witnesses and suspects and orders searches or other investigations. The goal
of the juge d’instruction is not the prosecution of a certain person, but the finding of truth, and
as such his duty is to look both for incriminating and exculpating evidence (a charge et a

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decharge). Both the prosecution and the defense may request actions from the judge, and may
appeal the judge's decisions before the court of appeal. The scope of the enquiry is limited by
the mandate given by the prosecutor's office: the juge d’instruction cannot start to investigate
crimes on his own accord.
If the juge d’instruction decides there is a valid case against a certain suspect, he refers the
suspect to a tribunal or court, where the proceedings oppose the prosecution and the defense.
The juge d’instruction does not sit in the court that tries the case and is in fact prohibited from
sitting on future cases involving the same defendant. The case is tried before the court in a
manner similar to that of adversarial courts: the prosecution generally asks for Jhe conviction
of the criminals, the defense counsels fights their claims, and the judge or jury draw their
conclusions from the evidence shown. Juges d1instructions are used only for the most severe
crimes (murder, rape, etc.), and for moderately serious crimes (embezzlement, misuse of public
funds, corruption, etc.) when the case has a certain complexity.
In administrative courts such as the Conseil d'Etat at litigation, the proceedings are markedly
more inquisitorial. Most of the procedure is conducted in writing; the plaintiff writes to the
court, which asks explanations from the concerned administration or public service, which
answers; the court may then ask further detail from the plaintiff, etc. When the case is
sufficiently complete, the lawsuit opens in court; however, the parties are not even required to
attend the court appearance. This method reflects the fact that administrative lawsuits are for
the most part about matters of formal procedure and technicalities.
In this process the fact-finding rests on the court i.e., the presiding judges with assistance of
their officials, experts, etc., will collect the relevant and required material information to prove
the case in order to find out truth. Thus role of the presiding judge active one. This process
resembles with Indian criminal justice system. The investigation made by the Lokayukta and
Upa-Lokayukta under the Lokayukta and Upa-Lokayukta Acts (State Acts), and by the
commission of Enquiry under the Commission of Enquires Act, 1952 come within the ambit
of the inquisitorial process.
Recently the inquisitorial process is also adopted in PIL matters. In India the concept of the
public interest litigation is still not defined, since there is no independent statute to this effect.
It is judicial-aided and judge-guided strategy evolved to help the poor, downtrodden, and
helpless, socially and economically disadvantageous persons etc.
The apex court, however, for the first time defined this concept. Thus on behalf of aggrieved
person any member of the public can file writ petition since there is liberalization rule of locus
standi. Hence it is clear that aggrieved party alone not need initiate the legal proceedings to get
wrong redressed. The member of the public shall not pay the requisite court fee or other
necessary incidental expenses to prove the case, since he not fighting his own case. The court
will to bear the all the expenses. But he should be public spirited litigant espousing the case of
the aggrieved party. He need not collect the relevant evidence, since the court will collect the
required evidence through appointing commissioner to prove the case of aggrieved party.
Further some cases the court itself,suo moto, took cognizance. If suo motu intervention by a
judge is permissible on the basis of a letter to the editor, he could intervene on any other basis
(e.g., news item in any communication media, report given by a friend, somebody blockings at
the door of the judge with his pathetic story, the judge coming across some injustice in his daily
life).

14
This concept was originated by Justice M P Thakkar J., as a Judge of the Gujarat High Court
(as he then was) who converted a letter to the editor in a news paper by a widow mentioning
her plight because of the non-payment of the provident fund family pension after her husband’s
death, and ordered a show cause notice to be issued without any further formalities to the
Regional Provident Fund Commissioner and another. The arrears were paid after the first
hearing. Further for the ends of justice, the Court can also convert a letter into writ petition and
take cognizance on the basis of the letter written (i.e., Epistolary Jurisdiction) by the member
of the public or voluntary organizations of the oppressed people. This concept is another
innovation in processual dispensation and it was developed for the first time by Justice Krishna
Iyer in Kamgar Union v. Union of IndianH and later by Justice Bhagwati in Kadra Pahadia.
The Court can also enforce its judgment even after passing of its verdict by taking the case on
its board. Thus even after passing of its judgment, the Court enforces its judgment by
appointing commissioner and directing to him to give the report about non- compliance (i.e.,
creeping jurisdiction). The Court carries supervisory function in order to enforce its judgment.
Otherwise it is going lose its image in the eyes of the public. Hence in PIL matters the court
plays an active role. The object of this process is to give justice to poor, helpless, disabled and
socially and economically disadvantageous persons. From this it can be concluded that even in
case of civil side of inquisitorial process presiding officers play an active role for the ends of
justice.

Characteristics of Adversarial Procedure: Adversarial procedure has several characteristic


features which have made it acceptable world wide they are:

(1) Fair Trial: In adversarial process the judge shall adopt fair trial i.e., nothing shall be kept
confidential. Before passing any order or judgment the judge will allow each party to prove
their respective case and it will be conducted in public. Since there is no scope for the parties
to play hide and seek game the procedure secures fairness to both the parties.

(2) Impartiality and Neutrality: In adversarial process the judge never takes sides. He gives
equal importance to both the disputing parties at the time of hearing of the case. Such treatment
is required at every stage and in every respect. This must not only be done, but also seem to be
done. The parties have got option to change presiding officers, whenever they feel that the
presiding officers take sides. The presiding officers will also decides the case taking into
account materials placed on the record. Hence there is no question of any type of bias.

(3) Certainty of Decision: In adversarial process, the judge at the time of arriving judgment
or order is bound by the Civil Procedure Code, 1908, Indian Evidence Act, 1872, and Other
Substantial Law. A decision of the Supreme Court is regarded, as law of the land and all
subordinate judges are required to be bound by it. On the other hand, the subordinate courts are
bound to follow the decisions of the concerned High Court, whereas other High court decisions
are persuasive in nature. Hence there is certainty in the judgments of all courts.
(4) Decision is in the Hands of Court: In adversarial process the decision is in the hands of
the presiding officers of the court and not in the and of parties. Each party is required to prove

15
its respective case in order to win in case. The court will decide the case on the basis of
materials placed on the record.

(5) Merits of the Case: The parties are required to present their pleading. On the basis of the
pleading the court will frame the issues. On the basis of issues each party adduces its evidence
in addition to other documentary evidence. To conclude the case the court shall also hear the
arguments of the parties and consider the relevant case law and provisions. Hence the courts
decide the case on merits.

(6) Enforcement of Decisions: The judgment creditor can easily enforce the decree or order
passed by the court. In case judgment creditor unable to enforce the decree or order passed by
the court on account of threat or intimidation of the judgment debtor then judgment creditor
can take assistance of the police to enforce the same. The judgment of court enjoys high respect
in the society, if anybody violates, it will be regarded as contempt of the court.

Disadvantages of Adversarial Process:

Millions of people are unable to access the system of administration of justice due to various
circumstances including social or economically disadvantaged position, lack of awareness,
expensive, excessive cost, cumbersome procedures etc. Some of the disadvantages of
adversarial process are:

(1) Not Flexible: The adversarial process is not flexible. The parties cannot, as per their
discretion, choose time and place of hearing. It is not convenient to both parties. The time of
hearing can be chosen by the court and similarly the place of hearing shall always be in the
court premises. The courts adopt the formal procedure. Both the disputing parties cannot
withdraw from the adversarial process at any time without assigning proper reasons.

(2) Expenses: It is more expensive. At present in almost all the countries seeking justice
through the courts has become very expensive and to this, India is not an exception. The parties
are required to pay lawyer's fees, court fees, travelling charges, appeal and revision fees, and
other incidental expenses. Yet another problem faced by the people is that physically accessing
courts. For instance in certain matters that can be filed only in the Higher courts, people may
be required to travel long distances that may again deter them from pursuing the remedy
available.

(3) No Appreciation of their Respective Case: In the adversarial process the role of the
presiding officers is not active one but it is a passive one. He will decide the ease taking into
consideration the materials placed on the record. In this process, therefore, there is no scope to
parties to discuss about their respective case and appreciate each other’s case better and judge
too will not convince the parties on the ground of impartiality.

(4) Lawyer: In the adversarial process parties may sue with or without legal expert i.e., lawyer.
However on account of too much technicalities involved in the case, each of the disputing
parties is required to nominate lawyers. Usually the counsels submit pleadings and present
arguments in English. Majority of the litigants in India are not aware of relevant law and
procedure of court. Further they also do not know what arguments and pleadings their

16
advocates submit to the court. Institutional weaknesses in the legal profession also contribute
to protracted litigation, resulting in backlog and delay. First, the value (and cost) of legal
services is low, because lawyers are in overabundant supply. The backlog and delay problem
is so extensive that lawyers are not able to achieve significant objectives in a timely manner,
thus reducing the value of their services in the market place.

Additionally, litigants seek those lawyers who are well known for their effectiveness (and, thus,
well compensated) to such a degree that they are overworked and have little time to prepare
their cases. Second, the professional competence of lawyers is seemingly unsatisfactory. Law
is not a competitive career choice in Indian society, which favors medicine and engineering.
Thus, there are few outstanding law schools in India, and even law schools that provide high
quality education do not attract the best students in relation to other professional schools. Legal
education is conducted without any external academic standards.

(5) Increase of Work Load: In the adversarial process which is based upon the formal process,
the judge at the time of deciding the case is bound to follow the numerous procedural laws like
the Civil Procedure Code, 1908, the Indian Evidence Act, 1872, the Criminal Procedure Code,
1973 etc. Besides this whatever materials and other submissions placed on the court that shall
be recorded. The adversarial process will unnecessarily consume precious time of the public.
Ultimately this will cause increased workload of the court.

(6) Choice of Specialists as Neutrals: In the adversarial process there is no choice of choosing
one’s own judges. The aggrieved party has to file his case in the appropriate court for the
redressed. It is an internal regulatory business of the court as to which judge will hear the case.

(7) Confrontation, Conflict and Acrimony: There is no satisfaction to the both the parties
even after the passing the judgment or order or conclusion of the case and enmity will be
continued to remain even forever. In fact the litigation may end in either winning or losing, but
this will not end their enmities. Since in the adversarial process the judge is the ultimate
decision maker. It will neither bury the past nor preserve the present relationship and paves to
no better future without unnecessary confrontation and conflict and acrimony. Thus even the
dispute ends but enmity remains forever.

(8) Affect Business Reputation, Goodwill and Ongoing Relations: Adversarial process
adversely affects the parties’ from the loss atmosphere of business reputation, goodwill, and
ongoing relation in litigations.

(9) Rigidity: The present judicial system is very rigid, since the court has to follow procedural
laws, which are often cumbersome and difficult for laymen (even the educated) to comprehend.
Man's habits, thinking, social circumstances, culture etc., go on changing and accordingly
society changes from time to time. But law is conservative, since rules, principles, etc., are
uniform, certain, fixed and permanent, and they do not change with speed of social change.
Thus it requires time to change.

(10) Delay: In 1798, William Godwin declared that justice suffered from three defects - delay,
cost and glorious uncertainty in the final outcome of any litigation. After more than 200 years,

17
nothing has changed. And what is ironic is the fact that in all other avenues speed and efficiency
has become the hallmark of modem civilisation.

The need is urgent - to quicken the pace of justice and shorten the time period occupied by the
trial of suits and criminal proceedings and by the appeals, revisions or reviews arising out of
them. An essential prerequisite for achieving the goals of reforms is an efficient and transparent
legal system. The legal system that enables economic choice, promotes ethical and sound
business practices, cuts transaction costs and enables healthy commercial dealings through fair
contracts is as essential as good infrastructure and sound polity. Justice E S Venkatramiah
points out that reforms that had been undertaken to improve administration of justice have
included reforms to increase efficiency of the bar. The question of delay in the administration
of justice has been addressed innumerable times in the past. With a view to solve this problem,
a variety of suggestions have been made, including the appointment of more Judges, changes
in the distribution of business, amendments in the rules of procedure, the elimination of
delaying tactics and the like. Various Law Commissions and other bodies have studied this
problem and it has become a thing of concern to even members of the legal profession but no
solution seems to be available as yet to tackle this. Delayed justice, if justice at all, is a basic
premise of the Indian Judicial system. Nearly 20 million cases are pending in various courts all
over the country, even for a population of 800 million, is an exorbitantly large number. And
this rate of pendency is likely to continue with a growing population, unless some thing is done
about this soon. The causes for delay are numerous - loopholes in the law itself, inefficient
police investigation methods, redundant and voluminous paperwork, lack of infrastructure etc.

Justice V D Tulzapurkar of the Supreme Court has observed:

If an independent judiciary is regarded as the heart of a republic, then the Indian republic is
at present suffering from serious heart ailment. In fact, the superior judiciary of the country
has of late been under constant onslaughts, external as well as internal, which are bound to
cripple the health, welfare and progress of our body politic, as an ailing hear cannot ensure
vigorous blood supply for the sound health of its people.

Former Chief Justice P N Bhagwati in his Law Day speech in 1985 said:

I am pained to observe that the judicial system in the country on the verge of collapse.... Our
judicial system is crashing under the weight of arrears. It is trite saying that justice delayed in
justice denied. We often utter this platitudinous phrase to express our indignation at the delay
in disposal of cases but this indignation is only at an intellectual and superficial level. Those
who are seeking justice in our own Courts have to wait patiently for year and years to gets
justice. They have to pass through the labyrinth of one Court to another until their patience
gets exhausted and they give up hope in utter despair.... The only persons who benefit by the
delay in our Courts are the dishonest who can with impunity avoid carrying out their legal
obligations for years and each affluent person who obtains orders and stays or injunctions
against Government and public authorities and then continues to enjoy the benefits of such
stay or injunction for years, often at the cost of public interest.

About the Supreme Court, the Chief Justice observes:

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The Supreme Court is on the brink of collapse with the enormous inflow of cases and heavy
arrears. I, for me, do not think that a large increase in the number of Judges is desirable. If the
number of judges is unduly increased, the Supreme Court will become like a glorified High
Court with fragmented bench structures. The Supreme Court will lose its identity as a I am not
in favour of curtailing in any manner whatsoever the extraordinary jurisdiction of the Supreme
Court under Article 136, He further says on High Courts, "So also the situation in High Courts
is quite alarming. Justice Bhagwati feels that the country's judiciary is on the verge of collapse
due to the massive backlog of cases in Courts. "It is not just a crisis, the judiciary is on the
verge of collapse on account of the massive number of arrears, especially as far as the high
Courts an the lower Courts are concerned.'' He points out that there are over 20 million cases
pending countrywide and says that most of the problems have resulted from the executive's
indifference and insensitivity. Additionally if there were really good people to man the lower
courts then so many appeals would not be filed in the higher Courts.

The law's delays are classic arid universal. It has served to describe the almost immemorial
condition of civil suits. The Dockets, or calendars of civil causes, are always overcrowded and
it may take years to get a trial on merits. The expenses of commencing a civil action and the
legal costs involved are too heavy and it become hardly worth-while to base an action on a
small claim. The procedure is too elaborate and technicalities impede the litigant at every
stage. Even after an initial judgment, number of appeals may be further cause of delay. Where
the final judgment is secured, execution is more than likely to be returned unsatisfied. Under
such circumstances the honest litigant is impeded in the assertion of his legal rights, while
paradoxically enough the dishonest litigant is encouraged to assert unfounded or exaggerated
claims. The expenses of the engaging upon Summit Court and there will be no cohesiveness
and uniformity.

I am not in favour of curtailing in any manner whatsoever the extraordinary jurisdiction of the
Supreme Court under Article 136, He further says on High Courts, "So also the situation in
High Courts is quite alarming.

Justice Bhagwati feels that the country's judiciary is on the verge of collapse due to the massive
backlog of cases in Courts. "It is not just a crisis, the judiciary is on the verge of collapse on
account of the massive number of arrears, especially as far as the high Courts an the lower
Courts are concerned.'' He points out that there are over 20 million cases pending countrywide
and says that most of the problems have resulted from the executive's indifference and
insensitivity. Additionally if there were really good people to man the lower courts then so
many appeals would not be filed in the higher Courts.

The law's delays are classic arid universal. It has served to describe the almost immemorial
condition of civil suits. The Dockets, or calendars of civil causes, are always overcrowded and
it may take years to get a trial on merits. The expenses of commencing a civil action and the
legal costs involved are too heavy and it become hardly worth-while to base an action on a
small claim. The procedure is too elaborate and technicalities impede the litigant at every stage.
Even after an initial judgment, number of appeals may be further cause of delay. Where the
final judgment is secured, execution is more than likely to be returned unsatisfied. Under such

19
circumstances the honest litigant is impeded in the assertion of his legal rights, while
paradoxically enough the dishonest litigant is encouraged to assert unfounded or exaggerated
claims. The expenses of the engaging upon a protracted litigation should cause parties to settle
for smaller sums or go without redress and justice.

Justice H R Khanna of the Supreme Court had observed:

Another thing which is shaking the confidence of the people in the judicial system is the high
incidence of acquittals and the increasing failure of the system to bring major culprits to book.
Judges, of course, have to give their verdict on the material on record and no one can and
should expect the Courts to hold a person guilty unless there be credible evidence to
substantiate the charge against him. One major reason for the high percentage of acquittals is
the decline in the quality of police investigation and its consequent inability to procure and
produce credible evidence as may establish the guilt of the accused. Such decline in its turn
has been due to interference by the politicians in the investigation of cases. It is well-known
that the greater a person is a goonda or an anti-social being the greater is his value and utility
at the time of elections. When politicians seek and secure the assistance of antisocial being at
the time of the election, the latter extend their assistance in the expectation that when those
anti-social elements are in trouble at the hands of the law enforcement agencies, the politicians
would come to their rescue and take them out of the difficulty. The help rendered by the
politicians to anti social beings when in difficulty is the quit pro quo for the help given by the
anti social beings at the time of elections. All this naturally makes the task of the police
investigation of crimes extremely difficult. This apart, we find that a good bit of the time of
police force is taken in the security and other arrangements for the VIPs.

Since as we are all living in the age of information technology and thanks to the initiative taken
by Justice Venkatachaliah when he was the Chief Justice of India, at least the Supreme Court
has started applying information technology to speed up the process. It may be worthwhile for
the judiciary to get the entire judicial processes examined from an information technology point
of view and see to what extent without sacrificing any sacred principles of law and justice, the
process can be expedited. Since problem of the judiciary is the huge backlog of cases
throughout the system. It may be worthwhile to think of some simple principles by which many
of these backlogs could be cleared.

Unless a way is found to clear the backlog, the judicial system will always be under strain.
Since the Indian judicial system is inherited from British legal system, Britishers prescribed it
at that time, without considering the need of Indian society nor did they consider the practical
aspect of the procedure. So, this system is drawn from different sources without seeing the
ground realities. Some people today prefer to keep quiet, rather than go to the court of law. So,
now this system is more Indianised for making it fit to society. It is heard that in ancient time
justice system was very good. The disputes were settled on the spot by delivering justice. But
ancient justice proceedings were oral in general and therefore no much record is available.
Hence now it is inevitable to develop supplementary to the present judicial system in order
reduce the burden of the court.

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(11) Winning or Losing: Both the parties’ stand in equal footing i.e., winning or losing, their
respective cases. Thus, until the court pronounces its verdict / judgment, there is no certainty
who is going to win the case or lose the case, even though it is based on Procedural and
Substantial Law.

(12) Compulsion: When the aggrieved party (i.e., Plaintiff) files the case before the court, then
the other party (i.e., Defendant) has to appear before the court even though he is not interested
in approaching the court. Otherwise the court will pass ex-prate decree. Hence the Defendant
has to appear before the court and defend the case.

(13) No Confidentiality: In the court all proceeding will be conducted in public. The
proceedings will also be recorded; hence there is no scope for confidentiality. Any person or
authorities can apply for a certified copy of the judgment or order or document, pleading etc.,
placed before the court to prove respective case of the parties.

(14) Interim Injunctive Relief: The disputing parties constantly move number of interim
injunctive relief applications, (viz., applications regarding adjournment, appointment of
commissioner, temporary injunction, appointment of receiver, production of document,
amendment of pleading, set aside an ex parte decree, etc.,) and the court will granted it or reject
it, but long delays in hearing the contentions of those enjoined stand pat. The right of appeal is
a substantive and procedural right.

The parties need not wait until the conclusion of the case, rather, they can file appeals prior to
final judgment. When appeals are made, the trial court proceedings are often stayed, even
though there is no legal requirement to do so. The High Courts too have [ an identical two level
appellate review system, consisted of (lower) single judge and (higher) dual judge panels. The
reports point out that there a lack of co-ordination between the two levels. A lower court judge
may modify his own previous ruling while the first unmodified ruling is still pending in the
dual judge panel. This not only leads to inconsistency and confusion over the legal status of
the appeals themselves, but it also duplicates the use of valuable court time. The service of
process for interim orders often provides ineffective notice, particularly when litigants live in
remote villages. The High Courts serve process through the district courts, and the district
courts serve without requiring acknowledgment. The mails are not used because it is assumed
that process will arrive after the scheduled hearing date. Finally, the High Courts are equally
passive in assessing costs to parties pursuing non-meritorious actions and appeals. Thus, there
is no disincentive to counter the strong incentives to seek relief at the High Court.

(15) Public Trust and Confidence: In India backlog and delay in the disposal of civil disputes
step by step ruin the public trust and confidence. This act is important hindrance to India's
chosen path to social justice and economic development. The incapacity to enter final legal
decisions within a reasonable time renders state action functionally immune, turns obligations
to perform contractual duties into effective rights to breach with impunity, and lessen remedies
finally provided. In sum, the incapacity to resolve disputes in a timely manner weakens public
and private rights and obligations.

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(16) Adjournments: The records of new filing maintained by hand and documents submitted
to the court are frequently misplaced or lost among other important paper. The councils are
required to wait for number of hours until their cases to be called. Even when the case is called,
judicial attention is frequently deferred by innumerable adjournments: the witness is not
available, the parties are not present, the opposite lawyer has not arrived, or a document is not
yet available. When parties do appear, extensions and adjournments are frequently requested
and generously allowed without formidable available costs, even for defendants who
repeatedly fail to answer the plaintiffs allegations. These exemptions enable the defendants
(and plaintiffs who have been awarded interim relief) to delay without penalty. When the case
is heard, a judge orally summarizes testimony for a court reporter. There is little likelihood that
this judge will be the same one to issue a decision because judges are transferred more quickly
than legal dispositions are made. Judges are so underpaid and overworked that they often
adjourn and delay the preparation of a case, if only to put off the demands of reaching a
decision.

(17) Inefficient Court Administration \ Excessive Judicial Control: Specifically, inefficient


court administration systems, excessive judicial passivity in an adversarial legal process, and
severely limited alternatives to a protracted and discontinuous full trial frustrate several goals
of the adversarial process itself. Inefficiency in court administration denies timely access to
legal dispositions. Excessive party control places those seeking legal redress in an unequal
position because respondents can abuse and delay the resolution procedures with impunity.

(18) Scheduling and Notification of Appearances: Lawyers express frustration that the
schedule of appearances is frequently not accessible until the evening before the court session,
and that those cases not called are not rolled over into the next day's calendar. This situation
results in many failures to appear and little time to prepare for the next day's hearings.
Furthermore, courts use a disproportionate amount of time calling for appearances. Usually in
every court the average day of six hours, loses one and one half hours to this process. Because
parties seem to view the court's docketing system as unpredictable, they infrequently appear in
court when their case is called. Since parties so infrequently appear, the court may call for 100
appearances before conducting official business. Other parties respond by remaining in court
on the remote chance that a case might be called for hearing. Because the judges are expected
to prepare for hearings in advance, chronic postponements require judges to waste many hours
preparing for appearances that do not take place according to schedule.

(19) Taking of Evidence: The lack of continuity and court centered process of taking evidence
supplements yet another important factor to backlog and delay in the proceeding:

a. The parties are required to bring filing and records into open court to be filed with the
registrar of the court. Apart from that the discovery of documents and witnesses and framing
of issues requires a long period of time, demanding court attention and resources before in
court hearings can begin. With limited exception, India has no out of court discovery process
(e.g,, depositions, interrogatories or requests to admit). Not only does the in- court process
obviously take up more court time, but it also complicates the coordination of the court's
schedule with the availability of witnesses. Because the courts are not effectively able to

22
compel witnesses to appear, the evidence taking stage of civil litigations suffers significant
delay. Moreover, the courts do not place any time restriction on the evidence taking process.
The historical justification for in- court testimony is to allow the judge to evaluate the witness's
demeanor. This justification is undermined

(1) by long periods of time between the court appearance and the judge's disposition, requiring
judges to refresh their recollection by re reading the transcript, and

(2) by the judicial rotation system, which means that the judge who adjudicates is rarely the
same judge who heard the evidence in court.

Thus, the purpose of witness evaluation is undermined under the current operation of the oral
evidentiary process, and judges are left to perform tasks, which are not central or necessary to
their own decision-making. Witness and party testimony in court require significantly more
court time. The Indian trial process entails direct and cross-examination; however, each answer
is restated (not verbatim) by the judge to the typist for the record. The testifying person then
checks the record and signs it. Currently, the courts do not enjoy a mechanized reporting system
whereby court reporters could record verbatim reproduction of oral testimony in written form.
Finally, the unavailability of alternatives to litigation clogs the system. Many cases awaiting
judgment are no longer contentious, and long awaited judgments are often difficult to enforce.

(20) Reluctance to Enforce Pre-Existing Authority: The judges are playing very important
role in causing delay in the disposal of cases on account of not exercising their pre-existing
authority. In the first hearing the judge may not put the questions to the parties or counsels,
whether they admit or deny factual allegations contained in the initial pleadings and record
such admissions or denials. Apart from that the court may also not examine the parties or any
witnesses and record the results in order to narrow the issues before the court. However, these
procedures are generally not followed. Unwillingness of the judiciary in taking the initiative,
in spite of pre existing judicial powers, frustrates efforts to develop more efficient and
disciplined civil process. Generally the courts empowered to develop, publish, and enforce
rules governing the conduct of litigation, but, for the most part, they have not developed such
rules, and court rules that do exist are neither comprehensive nor uniform. The result is a largely
"oral" system of rules applied on an ad hoc basis and with little discipline. In addition to that
majority of judges are not taking keen interest to alter procedural practices that compound
backlog and delay, but they rarely exercise their authority to the extent necessary to manage
litigation effectively. For example, judges usually can

(1) make settlement hints \ suggestions,

(2) summon the defendant and documents and witnesses relied on by the defendant, and

(3)charge costs for false, frivolous, vexatious pleadings and motions.

In practice, judges seldom exercise this authority. As a general matter, judges play little or no
role in moving cases toward resolution fairly and expeditiously. Judicial unwillingness to
exercise managerial authority may be related to a variety of structural and institutional factors.

23
(21) Case Assignments: Due to constant rotation of judges and short period assignments from
one place to another place and sometimes one judge hears the case and another judge decides
the case and this leads to weaken the institutional and professional accountability for disposing
of matters in a timely manner. Another lacuna for prompt disposal of the case is due to transfer
of case from one to another judge. The presiding officers in order to reach their required quota
choose those cases, which are summary in nature and thereby ignoring complex matters.
Furthermore, reassignment of matters to judges unfamiliar with the litigation CD duplicates
use of precious judicial energies.

(22) No Contentious Matters: Due to delay in the disposal of cases many courts are filled
with cases that are no longer quarrelsome. With passage of time the parties may also lose their
interest in the litigation due change of circumstance and conditions like non-existence of
subject matter, bankruptcy loss of their jobs, personal incapacities etc., of the opposite party,
while the case remains on court’s calendar. The courts will have difficulty in carrying out their
dockets of such moot matters unless they reform the court management system.

(23) Classification of Claims: The decentralized and frequently inconsistent classification


system leaves the lower courts unable to consolidate claims based on common issues of law
and/or fact. For example, a land acquisition dispute involving 300 claimants is likely to be
divided into 300 separate litigations, each with its own attorneys, filings, time schedules,
procedural maneuverings, evidentiary preparation, appeals, and court dispositions. Without a
proper classification system and an effective plan for handling an enormous backlog of old
cases, no efforts to consolidate the preparation of evidence or the resolution of legal issues may
be pursued. This has a disabling effect on the ability of the Indian courts to handle complex
and multiparty litigation, and results in duplication of judicial efforts to adjudicate common
issues.

(24) Use of Forms: In fact the courts do not use forms as a means of obtaining and controlling
information about the substance and progress of litigation. Further, to the limited extent that
courts do make use of forms, there is little, if any, uniformity among the forms used. As a result
there exists no system with dependable information source, and no reliable way for judges to
track the progress of the litigants in moving forward with litigation. This lack of sufficient use
of forms deprives courts of a vitally important element of case management.

All the above factors make the adversarial system improper to most of the cases where parties
are poor and illiterate. This makes the adoption of an alternative system of adjudication
imminent.

Conclusion

In fact the Indian Judiciary is the custodian of rule of law. Though the legislative and the
executive organs furnish strength and continuity to the governance system, it is the judiciary
that guard the spirit of the Indian Constitution and ensures the people’s faith in the institutions
of polity. Although most times, the higher judiciary is in the news for its landmark and
sometimes unconventional and path-breaking judgments, it is the subordinate judiciary that is
engaged in a multitude of judicial decisions that affects the common man directly. Yet, it is

24
rarely that the subordinate judiciary is given the importance that it deserves in the domain of
rigorous empirical intellectual analysis. Human Rights are those rights that are inherent in a
person by virtue of being human. While basic human rights are guaranteed to persons both in
domestic laws as well as international instruments, unless they can be enforced, they would be
meaningless for people, Thus, law should not merely recognize the rights of citizens, it should
also provide for remedies to be resorted to in case of violations. However, even where law
provides for remedies, and forums for the enforcements of basic rights, the same would hold
no meaning unless they can be accessed by all, equally, regardless of religion, sex, caste, race,
colour or status. While the right of access to justice has been specifically declared to be a
fundamental right in the Indian Constitution, the Supreme Court has specifically recognized it
as a human right. In Tashi Delek Gaming Solutions v. State if Karnataka, was observed, a
person must be held to have access to justice if his right in any manner whether to carry on
business in infringed or there is any threat to his liberty. Access to justice is a human right.

A vibrant judicial system is a hallmark of greatness of any nation. The Indian judiciary is
acclaimed all over the world for its realistic and dynamic approach. It has identified the basic
issues keeping in view the social objectives. Indian Constitution not only assures political
justice but also social and economic justice. By its innovative pronouncements Indian judiciary
has brought confidence in the minds if the citizens that there shall be no denial of any political,
social or economic justice. A judicial system is a dispute resolution system and it must be
recognized as a “service” which provides consumers expeditious and effective resolution of
these disputes it offers a mechanism for the enforcement of rights and obligations of
individuals, a function which is essential in a functioning polity or for that matter a functioning
economy. Therefore, an effective, efficient and humane judicial process is an essential
foundation of good governance particularly in a country like ours, committed to the rule of law.

The adversarial system of judicial system is not only failed in administering justice in a timely
manner in India but also failed in America and in England and litigation is considered a primary
means of resolving legal disputes. In India this model does not appear to be designed to meet
the needs of a rural population with widespread poverty, illiteracy, and unfamiliarity with
formal legal procedure. It has become a decaying institution on account of lack of internal
mechanisms or strength or will to adapt to the changing times.

The judiciary has become almost a law unto itself, answerable to none and under no pressures
to reform or change with time. In India, this model was imposed to supplant traditional rural
forms of Indian dispute resolution, which involved respected adjudicators in a more
conciliatory, less formal process, and greater flexibility in remedial action. Since backlog and
delay, and the continual need for access to justice in Indian society, require adaptations of both
modem processes increasingly popular among the international business community and
traditional processes better suited to rural society. These adaptations must offer accessible,
affordable, and effective alternatives to the adversarial process.

Indian democracy depends upon the faith of the existence of judicial system. On the other hand
day-by-day it’s going to lose its importance on account of rigidity, expensive, compulsion,
uncertainty, delay, and lack of confidentiality, satisfaction, convenience etc.

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Hence to regain the faith in judicial system it is inevitable to adopt another alternative speedy
disposal system.

3. FUNCTION OF THE LAW OF PROCEDURE:

Both substantive and procedural laws are inevitable components of law of any civilized society.
One without the other has neither any useful and meaningful existence nor any significance as
well. Both, substantive law and procedural law, are mutually reinforcing and one acquires
greater meaning and validity in presence of the other. Both these laws have their own functions
and significance.

Laws can be divided into two groups –

1. Substantive law

2. Adjective or Procedural Law

The substantive law determines rights and liabilities of parties and adjective or procedural law
prescribes the practice, for the enforcement of those rights and liabilities. The efficiency of
substantive laws depends upon the quality of procedural laws. Thus, procedural laws are an
accessory to substantial laws. These two are complementary to each other and they are
interdependent. Procedural laws give life to substantial laws by providing the remedy and by
implementing the maxim ubi jus ibi remedium. Some examples of the procedural law are the
Civil Procedure Code, Code of Criminal Procedure, and Indian Evidence Act. Indian Penal
Code, Indian Contract Act, the Transfer of Property Act are examples of substantive law.

Concept of Substantive Law

The law which defines rights and liabilities is known as substantive law. It is so called because
it puts in a clear-cut and precise form the substance of the subject matter for enforcing which
the courts of law and the officers of law exist. The function of substantive law is to define,
create or confer substantive legal rights or legal status or to impose and define the nature and
extent of legal duties or liabilities.

Any wrong done by an individual, group of persons or the state against the other(s) will make
the wrong-doer accordingly liable to the others. Wrongs may be either civil or criminal.
Substantive law refers to all categories of public and private law, including the law of contracts,
property, torts and crimes of all kinds.

For a civil wrong, law calls upon and forces the wrong-doer to perform his part of contract; to
do the act in question which it was his legal duty or obligation to have done the very act, or the
failure or the denial to do which is the wrong in question against which remedy is sought.
Where such performance, known in legal language as specific performance, is not possible then

26
the wrong-doer is liable to pay damages or compensation to the one who suffers from such
wrong.

It could be a wrong against any private person or against society as such, or against the State
itself. State has right and power to maintain the law and order within the community, to keep
society intact, if it has been disturbed.

A criminal wrong, on the other hand, has an altogether different character. A criminal wrong
is an act or omission which is made punishable by any law for the time being in force; and, in
legal language, it is called an offence. Substantive law deals with the "substance" of your
charges, in case of any crime done against the other. Every charge is comprised of elements.
Elements are the specific acts needed to complete a crime. Substantive law requires that the
prosecutor prove every element of a crime in order for someone to be convicted of that crime.

What elements are required will depend on the crime with which you are charged vis-a-vis the
State's substantive laws.

Substantive law is the statutory or written law that governs rights and obligations of those who
are subject to it. It defines the legal relationship of people with other people or between them
and the State. In other words, substantive law defines, in regard to a specific subject, the legal
rights and relationship of people with other people or as between them and the State.
Substantive law defines civil rights and responsibilities and liabilities in civil law as well as
crimes and punishments in the criminal law. It is codified in legislated statutes or can be enacted
through the initiative process.

For example: Murder is an offence under the Indian Penal Code (IPC) and is defined therein.
The IPC also provides for punishment for the crime. This is known as substantive law.
Similarly, the provision of the lndian Contract Act, 1872 are substantive in nature.

Substantive law has increased in volume and changed rapidly in the twentieth century as the
Central and State legislatures have enacted statutes that displace many common law principles.
The Indian Contract Act, the Transfer of Property Act, the Industrial Disputes Act, the Indian
Penal Code are instances of substantive law.

Concept of Procedural Law:

The law which tells about how the courts and the officers dealing with the law act in giving
effects to the substantive law of the land is known as Adjectival 01- Procedural law. 'Civil' and
'Criminal' laws are not two water-tight compartments.

There are several wrongs for which there are both civil and criminal liabilities and there may
be actions which are both civil and criminal in nature. The law of procedure is that branch of
law which governs the process of litigation. It embodies the rules governing the institution and
prosecution of civil and criminal proceedings. Procedural law comprises the rules by which a
court hears and determines what happens in civil or criminal proceedings. Historically, the law
known to many is substantive law, and procedural law has been a matter of concern to those
who used to preside as judicial officers or those who advocate law. But, over time, the courts

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have developed rules of evidence and procedure, which also fall under procedural law mostly
related to fairness and transparency of the process.

According to Salmond (Fitzgerald, 2006) the law of procedure is the law of actions. The word
'actions' is used in the sense to include all legal proceedings.

Procedural law deals with the means and instruments by which the ends of administration of
justice are attained, i.e. effective administration or application of substantive law. Procedural
law is the vehicle providing the means and instruments by which those ends are attained. It
regulates the conduct of the

Courts and the litigants in respect of the litigation itself, whereas substantive law determines
their conduct and relations in respect of the matters litigated.

In brief, the procedural law: informs about the process that a case will go through (whether it
goes to trial or not); determines how a proceeding concerning the enforcement of substantive
law will occur; and prescribes the practice, procedure and machinery for enforcement of the
rights and liabilities.

The Indian Evidence Act, the Limitation Act, the Code of Civil Procedure, the Code of
Criminal Procedure are instances of procedural law.

Interrelationship and Differences between Substantive Law and Procedural Law:

It is interesting for us to know the relationship and differences, if any, between the substantive
law and procedural law. Both are related to each other as follows.

1) Substantive law and procedural law are the two main categories within the law. One without
the other is useless. Both are essential for delivery of justice.

2) Procedural law is an adjunct or an accessory to substantive law and renders the enforcement
of substantive rights very effective.

3) Both, substantive law and procedural law, are codified in the form of rules.

While the substantive law refers to the body of rules that stipulate the rights and obligations of
individuals and collective bodies, the procedural law is also the body of rules, but governing
the process of determining the stipulated rights and liabilities of the parties in the given facts
and circumstances.

4) Substantive laws and procedural laws exist in both civil and criminal laws. But, in criminal
law, if the procedural law is used to prevent commission of offences then it assumes the
character of substantive law as well.

We also need to understand the difference or the distinction between the substantive law and
procedural law. Substantive law precedes the procedural law. Procedural laws sub-serve the
substantive laws in the sense that the former will act as a means to promote and achieve the
interests, objectives, aims or goals of the latter.

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Justice Schroeder (Sutt v Sutt, 1969) explained in a family law case, that "It is vitally important
to keep in mind the essential distinction between substantive and procedural law". Substantive
law creates rights and obligations, and is concerned with the ends which the administration of
justice seeks to attain. It defines the actual law set down by the legislature, such as elements of
a right, Liability, obligation, crime, penalties to be imposed, rules of evidence, etc.

Procedural law defines the manner in which the case proceeds and will be handled. In a criminal
case, if the state violates a substantive rule of law, that is more likely to result in reversal of a
conviction than a violation of criminal procedural law (unless the violation relates to a
constitutional or legal protection).

We can conclude that the substantive law defines the rights and duties, while procedural law
provides the machinery or mechanism for enforcing the rights and duties. However, the clear
differentiation between substantive law and procedural law is that the latter sub-serves the
former. Even though both these laws are affected by Supreme Court opinions and are subject
to constitutional interpretations, each serves a different function in the civil and criminal justice
system. A legal action is started by taking out a writ in civil case, by a summon or an arrest in
a Criminal case, and ends by the trail and judgment in the court itself, followed by the execution
of the judgment.

Whether the law is civil or criminal, it may all be classified as substantive law and procedural
law. From this point of view, we may divide law into 4 branches as follows:

i) Civil Substantive law,

ii) Civil Procedural law,

iii) Criminal Substantive law, and

iv) Criminal Procedural law.

With the above clarity on the concepts of substantive law and criminal law as well as the
relationship and the distinction between the two broad braches of law, let us now have a look
at the substantive and procedural laws with special reference to civil and criminal laws.

Civil Procedural Law

Though the substantive laws are very important, the value and importance of procedural law,
or otherwise called adjudicative law, cannot be under-estimated. It is a set of rules codified as
a procedure and its main function is to facilitate the process of adjudication to meet effectively
the ends of substantive law. The rules of procedure are intended to be a handmaid to the
administration of justice, and they must, therefore, be constructed liberally and in such manner
as to render the enforcement of substantive rights very effective. Thus, the procedural law is
an adjunct or an accessory to substantive law.

The Code of Civil Procedure, 1908 is an instance of procedural law in India. The code of civil
procedure is an adjective law, It neither creates nor takes away any right. It is intended to

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regulate the procedure to be followed by civil courts in adjudicating substantive rights under
different substantive laws.

Before 1859, there was no uniform code of civil procedure. There were different systems of
civil procedure in different parts of the Country. The first uniform Code of Civil Procedure was
enacted in the year 1859. But, that Code was not made applicable to the Supreme Courts in the
Presidency Towns and to the Presidency Small Cause Courts. Though some amendments were
made therein and the code was applied to the whole of British India, there were many defects
in it, and, therefore, a new code was enacted in 1877. Again, another code was enacted in 1882,
which was also amended from time to time. In the year 1908, the present Code of Civil
Procedure was enacted. It was amended by two important Amendment Acts in 195 1 and 1956.
Due to some defects, again in 1976, the code was further enacted which was also not found
sufficient. In pursuance of Justice Malimath committee the code was amended by the
Amendment Acts of . .1996 and 2002.

In Saiyad Mohd. v Abdulhabib (1988, p.1624) the Supreme Court stated that "A procedural
law is always in aid of justice, not in contradiction or to defeat the very object which is sought
to be achieved by substantive law. Procedural law is always subservient to the substantive law.
Procedural law cannot give what is not sought to be given by a substantive law, nor it can take
away what is given by the substantive law.

The Code of Civil Procedure neither creates nor takes away any right. It is intended to regulate
the procedures followed by the civil court.

4. HISTORY OF THE CODE

Before 1859, there was no uniform civil procedure applicable for the entire country. Sir Charles
Wood was responsible, then President of the Board for the affairs of India instructed the Second
Law Commission to prepare a simple code for applicability in all Indian courts. Although it
was not applicable in Presidency Supreme Courts and Presidency Small Cause Courts. This
code had several issues and was amended and reacted in 1877. Another amendment was made
in 1892. There existed a conflict of judicial opinion and interpretation of certain procedures of
the Code. In 1908, with the assent of the Governor-General, The Code of Civil Procedure of
1908 was implemented. The Civil Procedure Code has been amended several times to meet the
needs and requirements which are dynamic and changing from time to time. Between 1909 to
1976, the Code has been amended for more than 30 times.

Two important amendments were made in 1951 and 1956. Despite there being some defects in
it, the Code was enforced satisfactorily. The Law Commission submitted several reports with
the requirement of what changes should be made while keeping in mind the following
necessities –

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1. The procedure must not be complex and must allow a fair deal to economically weaker
sections of the society.

2. A litigant must get a fair trial in accordance with the accepted principles of natural
justice.

In 2002, several considerable changes were made to the CPC of which some of the changes are
listed below –

1. Number of adjournments to be restricted

2. Provision for outside of court settlement to be introduced

3. Provision for recording evidence by Court commissioner has been made

4. A provision is made for the filing of an appeal in the court where the decree has been
passed.

Consolidation And Codification Of The Code:

The Preamble of the code that it was enacted to consolidate and amend the laws relating to the
procedure to be followed in the civil courts having civil jurisdiction in India. The main reason
why some parts of law are codified is that the law should be ascertained from the language
used in the enactment and not from the preceding act. In Prem Lal Nahata v. Chandi Prasad
Sikaria, the court consolidates and amends laws relating to Courts of Civil Judicature. It Also
deals with substantive rights but mainly aims to consolidate the law relating to civil courts and
procedures.

5. EXTENT AND APPLICABILITY

The Civil Procedure Code was passed in 1908 and came into force from 1st January 1909. The
Code is applicable to the whole country except –

1. The State of Jammu and Kashmir

2. The state of Nagaland and the tribal areas

Through the amendment of 1976, the provision has also been extended to scheduled areas.

6. OBJECT AND SCOPE

The main object of this civil procedure code is to consolidate and amend the laws relating to
the procedures of Court of Civil Judicature. It collects all the laws that should be adopted by
the civil courts. The main aim of the CPC is to facilitate justice and seek an end to the litigation
rather than provide any form of punishments and penalties. The procedural law is always
subservient to and is in aid to justice. Nothing can be given by a procedural law what is not
sought to be given by a substantive law and nothing can be taken away be the procedural law

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what is given by the substantive law, was stated in Saiyad Mohammad Bakar v. Abdul Habib
Hasan Arab [(1998) 4 SCC 43]

The Code is exhaustive on the matters directly dealt by it but does not expand much upon the
points that it does not specifically deal with. The writers of the code could not foresee the
possible circumstances which may arise in the future litigations and could not as a result,
provide the procedure for such scenarios. Hence, inherent powers were awarded to the court to
meet such circumstances according to the principles of natural justice, equity and good
conscience.

7. RETROSPECTIVE OPERATION

The principle of interpretation of statutes that procedural laws are well-settled are always
retrospective in operation unless there are good reasons to the contrary. Their provisions will
already apply to the proceedings commenced at the time of enactment. This is so because no
can have a vested right in forms of procedure. The CPC is not retrospective in operation

9. CODE AT A GLANCE

The Body of the Code has 12 parts containing 158 sections. Sections 1-8 are preliminary as
Section 1 deals with the extent of applicability and Section 2 deals with definitions. Sections
3-8 talk about the constitution of different courts and their jurisdictions.

Part I which includes Sections 9 to 35-B and Orders 1 to 20 of the (First) Schedule deal with
suits. Section 9 enacts that a civil court has jurisdiction to try all suits of a civil nature unless
they are barred expressly or impliedly. Whereas Section 10 provides for stay of suit. Section
11 deals with the well-known doctrine of res judicata. Sections 13 and 14 relate to foreign
judgments. Sections 15 to 21-A regulate the place of suing. They lay down rules as to
jurisdiction of courts and objections as to jurisdiction. Sections 22 to 25 make provisions for
transfer and withdrawal of suits, appeals and other proceedings from one court to another.

Orders 1 to 4 deal with institution and frame of suits, parties to suit and recognised agents and
pleaders. Order 5 contains provisions as to issue and service of summons. Order 6 deals with
pleadings. Orders 7 and 8 relate to plaints, written statements, set-offs and counter-claims.
Order 9 requires parties to the suit to appear before the court and enumerates consequences of
non-appearance. It also provides the remedy for setting aside an order of dismissal of the suit
of a plaintiff and of setting aside an ex parte decree against a defendant. Order 10 enjoins the
court to examine parties with a view to ascertaining matters in controversy in the suit. Orders
11 to 13 deal with discovery, inspection and production of documents and also admissions by
parties.

Order 14 requires the court to frame issues and Order 15 enables the court to pronounce
judgment at the “first hearing” in certain cases. Orders 16 to 18 contain provisions for
summoning, attendance and examination of witnesses, and adjournments. Order 19 empowers
the court to make an order or to prove facts on the basis of an affidavit of a party.

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Sections 75 to 78 (Part III) and Order 26 make provisions as to issue of Commissions.
Sections 94 and 95 (Part VI) and Order 38 provides for arrest of a defendant and attachment
before judgment. Order 39 lays down the procedure for issuing temporary injunction and pass-
ing interlocutory orders. Order 40 deals with appointment of receivers.

Order 25 provides for security for costs. Order 23 deals with withdrawal and compromise of
suits. Order 22 declares effect of death, marriage or insolvency of a party to the suit. Section
33 and Order 20 deal with judgments and decrees. Section 34 makes provisions for interest.
Sections 35, 35-A, 35-B and Order 20-A deal with costs.

Parts IV and V (Sections 79-93) and Orders 27 to 37 lay down procedure for suits in special
cases, such as, suits by or against Government or public officers (Section 79 to 82 and Order
27); suits by or against aliens, foreign rulers, ambassadors and envoys (Sections 83 to 87-4
suits by or against soldiers, sailors and airmen (Order 28); suits by or against corporations
(Order 29); suits by or against partnership firms (Order 30); suits by or against trustees,
executors and administrators (Order 31); suits by or against minors, lunatics and persons of
unsound mind (Order 32); suits relating to family matters (Order 32-A); suits by indigent
persons (paupers) (Order. 33); suits relating to mortgages (Order 34); interpleader suits
(Section 88 and Order 35); friendly suits (Section 90 and Order 36); summary suits (Order 37);
suits relating to public nuisances (Section 91) and suits relating to public trusts (Section 92).
Section 89 as inserted from 1 July 2002 provides for settlement of disputes outside the court
through arbitration, conciliation, mediation and Lok Adalats.

Parts VII and VIII (Sections 96 to 115) and Orders 41 to 47 contain detailed provisions for
Appeals, Reference, Review and Revision. Sections 96 to 99-A and Order 41 deal with First
Appeals. Sections 100 to 103 and Order 42 discuss law relating to Second Appeals. Sections
104 to 108 and Order 43 contain provisions as to Appeals from Orders. Sections 109, 112 and
Order 45 provide for Appeals to the Supreme Court. Order 44 enacts special law concerning
Appeals by indigent persons (paupers). Section 113 and Order 46 pertain to References to be
made to a High Court by a subordinate court when a question of constitutional validity of an
Act arises. Section 114 and Order 47 permit review of judgments in certain circumstances.
Section 115 confers revisional jurisdiction on High Courts over subordinate courts.

Part II (Sections 36 to 74) and Order 21 cover execution proceedings. The principles
governing execution of decrees and orders are dealt with in Sections 36 to 74 (substantive law)
and Order 21 (procedural law). Order 21 is the longest Order covering 106 Rules.

Part X (Sections 121 to 131) enables High Courts to frame rules regulating their own
procedure and the procedure of civil courts subject to their superintendence.

Part XI (Sections 132 to 158) relates to miscellaneous proceedings. Explanation to Section


141 as added by the Amendment Act of 1976 clarifies that the expression “Proceedings” would
not include proceedings under Article 226 of the Constitution. Section 144 embodies the
doctrine of restitution and deals with the power of the court to grant relief of restitution in case
a decree is set aside or modified by a superior court.

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Section 148-A as inserted by the Code of Civil Procedure (Amendment) Act, 1976 is an
important provision which permits a person to lodge a caveat in a suit or proceeding instituted
or about to be instituted against him. It is the duty of the court to issue notice and afford an
opportunity of hearing to a caveator to appear and oppose interim relief sought by an applicant.

Sections 148 to 153-A confer inherent powers in every civil court. Section 148 enables a court
to enlarge time fixed or granted by it for doing any act. Section 149 authorises a court to permit
a party to make up the deficiency of court fees on plaint, memorandum of appeal, etc. Section
151 is a salutary provision. it saves inherent powers in every court to secure the ends of justice
and also to prevent the abuse of process of the court. Sections 152 to 153-A empower a court
to amend judgments, decrees, orders and other records arising from accidental slip or omission.
Section 153-B was added by the Amendment Act of 1976 and it expressly declares that the
place of trial shall be open to the public. The proviso, however, empowers the Presiding Judge,
if he thinks fit, to order that the general public or any particular person shall not have access to
the court.

10. IMPORTANT DEFINITIONS UNDER CPC

1. Decree

Section 2(2) of the Code defines Decree as –

‘Decree’ means the formal expression of an adjudication which, so far as regards the Court
expressing it, conclusively determines the rights of the parties with regard to all or any of the
matters in controversy in the suit and may be either preliminary or final. It shall be deemed to
include the rejection of a plaint and the determination of any question within section 144, but
shall not include-

a. any adjudication from which an appeal lies as an appeal from an order, or

b. Any order of dismissal for default.

Explanation

A decree is preliminary when further proceedings have to be taken before the suit can be
completely disposed of. It is final when such adjudication completely disposes of the suit. It
may be partly preliminary and partly final.

General Explanation of Decree

In simple words, decree is the speaking part of the judgment. Generally, Judgment consists of
Decree, orders etc which are basically adjudicatory in nature.

Decree is of two types: Preliminary and Final. Courts have the power to grant both Preliminary
as well as Final decree, depending upon the stage of the adjudication. Preliminary decrees are
granted when there is a scope for further investigation on that point but it is also important to
decide the issue at hand. On the other hand as the name suggests, final decrees are the

34
conclusive part of the adjudication. Both Preliminary and final decree can be appealed before
higher courts.

Essentials of a decree

a. There must be formal expression of an adjudication;

b. The adjudication must have been given in a suit before the court;

c. The adjudication must have determined the rights of the parties with regard to all or any
of the matters in controversy in the suit;

d. Such adjudication must be conclusive.

2. Decree Holder

Section 2 (3) of the code defines Decree Holder as follows:

‘Decree Holder’, means any person in whose favor a decree has been passed or an order capable
of execution has been made.

General Explanation of Decree holder

From the definition, it is clearly observed that a decree-holder need not be the plaintiff. A
person who is not a party to the suit but an order capable of execution has been passed in his
favour is also a decree-holder. Thus where a decree for specific performance is passed such a
decree is capable of execution by the plaintiff as well as the defendant and therefore either of
them can be decree-holder.

Satyawati v. Rajinder Singh and Anr. [(2013) 9 SCC 491]

A three-Judge Bench of the Supreme Court of India has observed that Decree Holders must
enjoy the fruits of the decree obtained by them in an expeditious manner.

3. Judge

Section 2 (8) of the Code defines Judge as follows:

‘Judge’ means the presiding officer of a Civil Court.

General Explanation of Judge

According to the definition, it has defined the meaning of judge but it has not defined the term
‘court’, court means an assembly or judges or other persons acting as a tribunal in civil and
criminal cases. It is a place where justice is judicially administered. When a statute provides
that a particular matter will be determined by a court the presiding officer over the said court
will be deemed to exercise jurisdiction as a court and not as a personal designate.

4. Judgment

Section 2 (9) of the Code defines the term Judgment as follows:

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‘Judgment’ means the statement given by the Judge on the ground of a decree or order.

General Explanation of Judgment

A Judgment is a statement of the Judge based on the grounds of decree or order. An analysis
of the whole grounds of the decree, when turned in a statement by a judge, is termed as
Judgment. A judgment provides some rights and liabilities to the petitioner and the defendant.
Every Judgment other than the court of small causes should contain the following:

 A concise statement of the case.

 The points for determination.

 The decision thereon.

 The reason for such decision.

5. Judgment Debtor

Section 2 (10) of the Code defines the term Judgment Debtor as follows:

‘Judgment Debtor’ means any person against whom a decree has been passed or an order
capable of execution has been made.

General Explanation of Judgment Debtor

A party against which an unsatisfied court decision is awarded; a person who is obligated to
satisfy the court decision. The term judgment debtor describes a party against which a court
has made a monetary award. If a court renders a judgment involving money damages, the losing
party must satisfy the amount of the award, which is called the Judgment debt. The losing party
is called the Judgment Debtor. In other words, the losing defendant in a lawsuit who owes the
amount of the judgment to the winning party is Judgment Debtor.

6. Order

Section 2 (14) of the Code defines the term Order as follows:

‘Order’ means the formal expression of any decision of a Civil Court which is not a decree.

General Explanation of Order

The adjudication of a court which is not a decree is an order. As a general rule, an order of the
court of law is founded on objective considerations and as such the judicial order must contain
a discussion of the question at issue and the reason which prevailed with the court which led to
the passing of the order. An order should be a formal expression of any decision. The decision
should be pronounced by the civil court. An order generally originated from any suit, it
generally arises from a proceeding commenced on an application. An order may or may not
finally determine the rights of the parties. An order is passed from a single suit.

Orders are of two kinds, appealable orders and non-appealable orders.

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7. Foreign Court

Section 2 (5) of the code which is substituted by Act 2 of 1951 defines the term Foreign Court
as follows:

‘Foreign Court’ means a Court situated outside India and not established or continued by the
authority of the Central Government.

General Explanation of Foreign Court

The court which is not regulated by the Indian Government and Indian government or court
does not exercise its jurisdiction over there are Foreign Courts.

Lalji Raja vs. Firm Hansraj Nathuram [AIR 1971 SC 974 (976)]

The Bankura Court cannot be considered as a ‘foreign court’ within the meaning of that
expression in the Code.

Essentials of a Foreign Court

 It must be situated outside India.

 It must not have been established or continued by the Central Government.

Thus courts in England, Scotland, Burma, Pakistan and those of the Privy Council are foreign
courts.

8. Foreign Judgment

Section 2 (6) of the Code defines the term Foreign Judgment as follows:

‘Foreign Judgment’ means the judgment of a foreign Court.

General Explanation of Foreign Judgment

When a suit is filed in a foreign court and if the foreign court has jurisdiction to trial the suit,
in that case the judgment rendered by foreign court is termed as Foreign Judgment. The
judgment by a foreign court is binding on the parties. They cannot deny it.

9. Legal Representative

Section 2 (11) of the Code defines the term Legal Representative as follows:

‘Legal Representative’ means a person who in law represents the estate of a deceased person,
and includes any person who intermeddles with the estate of the deceased and where a party
sues or is sued in a representative character the person on whom the estate devolves on the
death of the party so suing or sued.

General Explanation of Legal Representative

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When a person against whom a legal proceeding is going on dies in the middle of the
proceeding. In that case, his legal representative represent him in the court but only to that
extent for which he is accountable or that portion of the property which has come in his hand.

United India Insurance Co Ltd vs. Shyam Rao Metre and others [M.A.C.M.A. No. 2420
of 2012]

As the definition under section 2(11) of the code reads, it is nowhere described that a legal
representative can only be that person who is dependent on the deceased. Any person related
to the deceased can be a legal representative.

10. Mesne Profits

Section 2 (12) of the Code defines the term mesne profits as follows:

‘Mesne Profits’ of property means those profits which the person in wrongful possession of
such property actually received or might with ordinary diligence have received therefrom,
together with interest on such profits, but shall not include profits due to improvements made
by the person in wrongful possession.

General Explanation of Mesne Profits

The term ‘mesne profits’ relates to the damages or compensation recoverable from a person
who has been in wrongful possession of a property owned by someone else. The mesne profits
are nothing but a compensation that a person in unlawful possession of others property has to
pay for such possession to the owner of the property.

According to the definition, mesne profit is the profit which the person who is in wrongful
possession of a property has earned from that property.

Phiraya Lal alias Piara lal vs. Jia Rani [AIR 1973 DEL 186]

The Hon’ble Delhi high court while defining the term mesne profits observed that, “when
damages are claimed in respect of wrongful possession of immovable property on the basis of
the loss caused by the wrongful possession of the trespasser to the person entitled to the
possession of immovable property; these damages are called as mesne profits”

11. Public Officer

Section 2 (17) of the Code define the term Public Officer as follows:

‘Public Officer’ means a person falling under any of the following descriptions, namely:-

a. Every judge;

b. Every member of an All India Services;

c. Every commissioned or gazette officer in the military, naval or air forces of the Union
while serving under the Government;

38
d. Every officer of a Court of Justice whose duty it is, as such officer, to investigate or
report on any matter of law or fact, or to make, authenticate or keep any document, or
to take charge or dispose of any property, or to execute any judicial process, or to
administer any oath, or to interpret, or to preserve order, in the Court and every person
especially authorized by a Court of Justice to perform any of such duties;

e. Every person who holds any office by virtue of which he is empowered to place or keep
any person in confinement;

f. Every officer of the government whose duty it is, as such officer, to prevent offences,
to give information of offences, to bring offenders to justice, or to protect the public
health, safety or convenience;

g. Every officer whose duty it is, as such officer, to take, receive, keep or expend any
property on behalf of the Government, or to make any survey, assessment or contract
on behalf of the government, or to execute any revenue process, or to investigate, or to
report on, any matter affecting the pecuniary interests of the Government, or to make,
authenticate or keep any document relating to the pecuniary interests of the
Government, or to prevent the infraction of any law for the protection of the pecuniary
interests of the Government; and

h. Every officer in the service or pay of the Government or remunerated by fees or


commission for the performance of any public duty.

12. Res-judicata :
Section 11: Res judicata - No court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former suit’ between the
same parties, or between parties under whom they or any of them claim, litigating under the
same title, in court competent to try such subsequent suit or the suit in which such issue has
been subsequently raised, and has been heard and finally decided by such court.
Explanation I: The expression “former suit” shall denote a suit which has been decided prior
to the suit in question whether or not it was instituted prior thereto.
Explanation II : For the purposes of this section, the competence of a court shall be determined
irrespective of any provisions as to a right of appeal from the decision of such court.
Explanation Ill: The matter above referred to must in the former suit have been alleged by one
party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV: Any matter which might and ought to have been made ground of defence or
attack in such former suit shall be deemed to have been a matter directly and substantially in
issue in such suit.
Explanation V: Any relief claimed in the plaint, which is not expressly granted by the decree,
shall, for the purposes of this section, be deemed to have been refused.
Explanation VI: Where persons litigate bona fide in respect of a public right or of a private
right claimed in common for themselves and others, all persons interested in such right shall,
for the purposes of this section, be deemed to claim under the persons so litigating.

39
Explanation Vll: The provisions of this section shall apply to a proceeding for the execution
of a decree and reference in this section to any suit, issue or former suit shall be construed as
references, respectively, to a proceeding for the execution of the decree, question arising in
such proceeding and a former proceeding for the execution of that decree.
Explanation VlIl : An issue heard and finally decided by a Court of limited jurisdiction,
competent to decide such issue, shall operate as res judicata in a subsequent Suit,
notwithstanding that such court of limited jurisdiction was not competent to try such
subsequent suit or the suit in which such issue has been Subsequently raised.

Scope and object:


The doctrine of res judicata is based upon two Roman maxim “ nemo debet bis vexari, si constet
curiae quod sit prouna et eadem causa” i.e., “ no man should be vexed twice over the same
cause of action” - Raja V.Sarvangnaya Kumara Krishna Yachendra Bahadur Vs Province of
Madras, AIR, 1947 Madras 5 at 15, and “ interest republicae ut sit finis litiuum” i.e., it is in
the interest of the State that there should be an end to litigation.

The first maxim looks to the interest of the litigant, who should be protected from a vexatious
multiplicity of suit, because otherwise a man possessed of wealth and capacity to fight may
harass his opponent by constant dread of litigation. The rule is intended not only to prevent a
new decision but also to prevent a new investigation so that the same person may not be
addressed again and again in various proceedings upon the same question. (Basdevanand Giri
Vs. Shantanand alias Mahu Makhu (AIR -1942 (All 302 at 305) ).

The second maxim is based on ground of public policy that there should be an end to litigation.

Res Judicata – Applicability of: Civil Procedure Code, 1908-Section 11 - res judicata -
Applicability of –HELD Questions invlolved in latter suit an in earlier suit must be identical-
Parties must be same-Issues in latter suit must be directly and substantially in issue in earlier
suit.
K.Satyamma (died) per LR A-5 v.Smt.Bhoodevi, 2015(2)CCC615 (A.P): 2015(3)ALT
540:2015(5)Andh L.D 137.

CASE LAWS
Civil Procedure Code, 1908-Section 11 - res judicata -Applicability-Earlier suit for injunction
since not based on title but for on previous possession, same no way operates as res judicata to
maintain present suit, so also any finding therein in deciding present suit for entitlement by
plaintiff to declaration and possession or not, including on claim of adverse possession by
defendent -Earlier suit for injunction practically no way operates as res judicata to maintain
present suit for relief of declaration of title and recovry of possession. (G.Narayan Reddy
v.P.Narayana Reddy, 2016(1) CCC 245(AP): 2016(3) ALT 12.

Civil Procedure Code, 1908 -Section 11 - res judicata – To arrtact the doctrine of res judicata
there must have been conscious adjudication fo an issue-Principle of res judicata is applicable

40
between two stages of the same litigation only if the question or issue involved had been
decided at earlier stage of the same litigation.
(Earch Boman Khavar v. Tukaram Shridhar Bhat and Anr., 2014 (1) CCC 27 (SC))

Civil Procedure Code, 1908-Section 11-r/w Order II, rule 2- Res Judicata- Tenants filing suit
for injuction from dispossession-Im the process disputing title of landlord, though indirectly-
Suit dismissed-No appeal filed-Decree attaining finality- Would operate as res judicata as
regards question of titled in future litigation. (Sri Gangai Vinayagar Temple & Anr. v.
Meenakshi Ammal & Ors., 2014 (4) CCC 247 (SC))

Res judicata-Subject matter of suit same - Civil Procedure Code, 1908- Section 11, read with
Order VII, Rule 11-Res kidocata – Subject matter of suit same- Parties same – Cause of action
in both suits different – HELD-It cannot be said that suit hit by principle of res judicata. (Sabdal
Singh & Anr. v. Shivraj Singh Thakaur & Ors.2016 (2) CCC243 (M.P)

Res judicata – This finding operates as res judicata and cannot be reagitated in this writ petition
by the respondents. [S.Kamalamma and others Vs. Joint Collector-cum-Settlement Officer,
Chittoor and others, 2017(3) ALT 299]

Res judicata or estoppel – There is no res judicata or estoppel for the present proceedings
from earlier criminal case filed for some other cheques filed and the case for the offences under
Section 138 of the Act ended in conviction. [PTNVR Sudharshan Vs. State of Telangana,
represented by its Public Prosecutor, High Court of Judicature at Hyderabad and
another, 2018(1) ALT(CRL) (A.P.)123(S.B.)]

Res judicata -Bar of - It is well settled that in order to decide the question, the question whether
a subsequent proceedings is barred by res judicata, it is necessary to examine the question with
reference to the :
(i) forum or the competence of the Court;
(ii) parties and their representatives;
(iii) matters in issue;
(iv) matters which ought to have been made ground for defence or attack in the former suit;
and (v) the final decision.

A consent decree does not operate as res judicata. (Baldeodas Showla and others Vs.Filmistan
Distributors (India) Private Limited and others (1988( 2 SCC-201.

Before a plea of res judicata can be given effect, the following conditions must be proved :-
(1) that the litigating parties must be the same ;
(2) that the subject matter of the suit also must be identical ;
(3) that the matter must be finally decided between the parties ; and
(4) that the suit must be decided by a Court of competent jurisdiction.

41
The best method to decide the question of res judicata is first to determine the case of the
parties as put forward in their respective pleadings of their previous suits and then to find out
as to what had been decided by the judgments which operate as res judicata. Pleadings cannot
be proved merely by recitals of the allegations mentioned inthe judgment. (Syad Mohd. Salie
Labbai (Dead) by L.Rs and others Vs. Mohd. Hanifa (Dead) by L.Rs and others (AIR-1976
SC 1569).

Constructive res judicata – Application of: The first suit was for an injunction and not for
possession of the demised property. The first suit was dismissed on the technical ground that
since the plaintiff was not in de facto possession, no injunction could be granted and a suit for
a mere declaration of status without seeking the consequential relief for possession could not
lie. Once it was found that the plaintiff was not in actual physical possession of the demised
property, the suit had become infructuous. The cause of action for the former suit was not based
on the allegation that the possession of the plaintiff was forcibly taken. The cause of action for
the former suit was based on an apprehension that the defendants were likely to forcibly
dispossess the plaintiff. The cause of action for that suit was not on the premise that he had in
fact been illegally and forcibly dispossessed and needed the Court's assistance to be restored to
possession. Therefore, the subsequent suit was based on a distinct cause of action, not found in
the former suit and hence the High Court was right in concluding that the suit was barred by
Order II, Rule 2(3) of the Code of Civil Procedure. [Shri Inacio Martins, deceased through
L.Rs. Vs. Narayan Hari Naik and others, AIR 1993 SC 1756 : 1993 (3) SCC 123 : 1993 (2)
SCR 1015 : 1993 (2) JT 723 : 1993 (2) LW 1].

Civil Procedure Code, 1908-Section 11- Issue relating to res-Judicata- It is a mixed question
of law and fact and is to be proved by producing copies of pleadings and issues of the earlier
suit-This power cannot be exercised readily just by raising plea of res judicata. Vijay N.V.Mrs.
Kavitha Kanaparthi, 2015(1) CCC 404 (Karnt.)

Dismissal of suit in default


A dismissal of suit for default of plaintiff will not operate as res judicata against a plaintiff in
a subsequent suit on the same cause of action. [Shivshankar Prasad Sah and another Vs.
Baikunth Nath Singh and others, AIR 1969 SC 971 : (1969) 1 SCWR 748 : (1969) 1 SCC
718 : 1969 Cur LJ 377 : (1970) 1 SCJ 101 : 1970 BLJR 1]

Subsequent suit not barred on the principle of res judicata- Before filing the written statement
by the defendant, the suit was settled out of the Court, as such, the matter was not finally heard
and decided, the subsequent suit is not barred on the principles of res judicata.
[Shanmughasundaran Vs. Janagaragam, AIR 1976 Mad 19 (AIR 1967 SC 591; AIR 1966
SC 1332 – Relied on)]

Res judicata – Suit dismissed for default:


Civil Procedure Code, 1908-Section 11- Res judicata – Suit dismissed for default-Cannot
operate as res judicata.(Jacinta De Silva v. Rosarinho Costa & Ors., 2014(2)CCC 9 (SC))

42
Res judicata-Subject matter of suit same:
Civil Procedure Code, 1908-Section 11, read with Order VII, Rule 11-Res judicata – Subject
matter of suit same-Parties same – Cause of action in both suits different – HELD-It cannot be
said that suit hit by principle of res judicata. (Sabdal Singh & Anr. v. Shivraj Singh Thakaur
& Ors.2016 (2) CCC243 (M.P)

Second application ‘for’ Receiver barred by – Res judicata:


It was not open to the trial Court to have allowed, even entertained a fresh application for
appointment of a Receiver in the year 1992 when a similar application of the petitioner
plaintiffs was dismissed on contest and on merits by the same Court in the year 1986 through
the medium of a reasoned and speaking order. The maintainability of the second application
for the same relief was patently barred on the principals of res judicata ( Nityananda Ghosh
an dothers v. Smt. Alo Rani Ghos and others, AIR 2000 Cal 89 at 89).

In execution proceedings, Section 11 of the Code of Civil Procedure does not apply in terms
but the rule of constructive res judicata has always been applied. A mixed question of law and
fact determined in the earlier proceedings between the same parties cannot be questioned in a
subsequent proceedings between them. (Kant Ram Vs Smt. Kazani, AIR-1972 SC-1427).

The test of res judicata is the identity of title in two litigations and not the identity of the actual
property involved in the two cases. (Raj Lakshmi Dasi Vs Banmali Sen, AIR -1953).

13. Res-Sub-Judice :
It is well settled that where a decree on the merits is appealed from, the decision of the trial
Court loses its character of finality and what was once res judicata again becomes res subjudice
and it is the decree of the appeal Court which will then be res judicata.

The application for interlocutory relief can be considered, even the trial of suit is stayed.
(S.Sawhney Vs. Muralidhar, AIR-2008, NOC 652 (Raj).

Where there are two suits for partition of some ancestral property between parties having same
genealogy, the both suits can be tried together so that all issues as to share in property may be
decided without any contradiction in judgment in two suits and without causing any bar of res
judicata to any suits. (Smt A.Devi Vs S.K.P. Singh, (AIR – 2008, NOC 1257 (Pat).

Where the earlier suit was for permanent injunction and subsequent one was for declaration of
title and partition, it was held that the scope of subsequent suit is wider than earlier one, as such
stay cannot be granted. (Harjeet Singh Maini Vs Paramjit Singh Maini, AIR-2008, NOC
1463 (Del).

Where the both suit relates to the different cause of action the principle of res sub-judice would
not be applicable. (Mohd. Iqbal Vs. M/s Kale Khan M.Haneef, AIR – 2008 NOC 2536 (MP).

43
UNIT II: COMMENCEMENT OF SUIT

1. PLACE OF SUING:

General Provisions regarding Jurisdiction in India under the Indian Code of Civil
Procedure:

For the purpose of exercising jurisdiction two important factors are required under the Indian
law. The first is the identification of place of suing or place of filing the suit which will enable
the court of that area to assume jurisdiction over the defendant and the second is the issue of
summons which serves as a process to bring the defendant before the court of that place. Under
the Indian Civil Procedure Code there are different provisions regarding place of suing and
issue of summons. The provisions regarding place of suing falls under the heading ‘section’
and the provisions regarding issue of summons fall under the heading ‘order and rules’.

2. Institution of suits and place of suing under the Indian Code of Civil Procedure for the
purpose of assuming jurisdiction over the defendant

Section 9 Part 1 of the Civil Procedure Code lay down general provision regarding the
institution of suits in India. As per Section 9, the courts in India shall have jurisdiction to try
all suits of a civil nature subject to the condition that if the cognizance of any suit or suits is
expressly or impliedly barred by the statute, then in such case the court cannot take cognizance
of that case. Section 15 of the Code states that the institution of civil suits in India shall proceed
from the lowest court among the hierarchy of courts in India. Every suit shall be instituted in
the court of the lowest grade competent to try it. Section 16 deals with the place of suing of
suit where the subject matter of the suit is situated. Section 17 deals with place of suing of suits

44
relating to immovable property. Section 1830 deals with place of suing where the jurisdiction
of the courts are uncertain in suit relating to immovable property.

Section 19 deals with the place of suing of suits relating to compensation for the wrongs done
to persons or movable property. Section 20 deals with place of suing of all other suits. Section
20 is an important section for the suits relating to commercial contracts as all the commercial
cases are dealt under this section. As per section 20 of the Code, if the suits are not of the nature
described under section 16, 17, 18 or 19, the suit shall be instituted where the defendant resides
or cause of action arises. Every such suit shall be instituted in a court within the local limits of
whose jurisdiction:

(a) The defendant, or each of the defendant where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business or personally
works for gain, or

(b) Any of the defendants, where there are more than one, at the time of the commencement of
the suit, actually and voluntarily resides, or carries on business, or personally works for gain,
provided that is such a case either the leave of the court is given, or the defendant who do not
reside, or carry on business, or personally work for gain as aforesaid, acquire in such institution;
or

I The cause of action, wholly or in part arises.

An explanation is also attached with the section regarding deemed place of business of a
corporation. As per the explanation, “a corporation shall be deemed to carry in business at its
sole or principal office in India, in respect of any cause of action arising at any place where it
has also a subordinate office, at such place”.

The term “business’ as used in the aforesaid section is of both wide and narrow connotation.
In wider sense it is a purposeful activity extended over a period of time directed towards
achieving some results or end. In narrow sense it means an activity of a commercial nature with
a profit motive. So, the concept of business has variant meaning and senses. However, in India,
the term does not included functions carried on by the Union government in discharge of its
execution power. Any activity carried on by Union of India in exercise of it sovereign power
is not a business activity.

It is to be noted that section 20(b) requires that when there are more than on defendants and
one of them carries on business or resides etc. within the jurisdiction of the court, then the said
court will have jurisdiction to entertain the proceedings provided the defendants who do not
reside or carry on business or personally work for gain within the jurisdiction of that court,
acquiesce in such situation or the plaintiff obtains the leave of the court to proceed against such
defendant or defendants who do not agree or object to the institution of the suit within the
jurisdiction of the court where one of their fellow defendant carries on business or resides. If
the court gives the leave or the other defendants acquiesce the institution of the trial of the suit
at one place, the plaintiff is entitled to proceed with the case.

45
After the filing of the plaint and written statement, the court begins to find out the cause of
action on the basis of averments made in the plaint and the written statement. It is the duty of
the court to ascertain the cause of action while scrutinizing the averments made in the plaint.
When the court derives facts from the given case and then apply the relevant law on it, which
gives the plaintiff the relief desired by such plaintiff, is termed as the cause of action. So, it is
necessary for the plaintiff to set in clear terms the facts of the case required to be proved before
the court in order to get the desired relief. It must include some act done by the defendant since
in the absence of such an act no cause of action can possibly accrue. The expression has not
been defined in the Indian Code of Civil Procedure, but the meaning of it has been well defined
in the judicial pronouncement of the country. From the earliest time and in most of the cases
under the Indian Judicial system, the cause of action has been held to mean every fact which is
material to entitle the plaintiff to succeed every fact which the defendant would have a right to
transverse.

In the case of A.B.C Laminart Pvt. Ltd & Anr v. A.P. Agencies, the Supreme Court explained
the meaning of cause of Action in the following terms, “A cause of action means every fact,
which if traversed, it would be necessary for the plaintiff to prove in order to support his right
to a judgment of the court. In other words, it is bundle of facts which taken with the law
applicable to them gives the plaintiff a right to relief against the defendant. It must include
some act done by the defendant since in the absence of such an act no cause of action can
possibly accrue. It is not limited to the actual infringement of the right sued on but includes all
the material facts on which it is founded. It does not comprise evidence necessary to prove such
facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree.
Everything which if not proved would give the defendant a right to immediate judgment must
be part of the cause of action. But it has no relation whatever to be defence which may be set
up by the defendant nor does it depend upon the character of the relief prayed for by the
plaintiff”.

3. INSTITUTION OF A SUIT:

The basic aim of a legal system of a country is to impose duty to respect the legal rights
conferred upon the members of the society. The person making a breach of that duty is said to
have done the wrongful act. On the basis of nature and gravity of such wrongful acts, those are
separated under two categories: Public Wrong and Private Wrong. Public wrong is deemed to
be committed against the society and the Private wrong, against individuals. The gravity of the
former is greater than that of the latter. The first category is termed under the Law as ‘crime’
governed by the Criminal Laws (Substantive and Procedural) and the second category, as ‘civil
wrong’ governed by the Civil Laws. Under the Criminal Law the action is taken by the state in
its name and the accused has to pay fine to the State’s fund and is punished by imprisonment
or sentenced to death and in such cases the proceeding is started either by lodging the FIR or
by lodging complaints (in case of Complaint cases) as provided by the Criminal Procedure
Code, 1973. In case of civil wrong, the remedy is the compensation either liquidated or
unliquidated damages; the remedial measures ensured to the people is based on the Latin

46
maxims damnum sine injuria (damage without injury), injuria sine damnum (injury without
damage) and ubi jus ibi remedium. According to the first two maxims if the legal right of a
person is violated he will get the remedy, even in case where no actual damage is caused to
him; but where he has no legal right, then if any actual damage is caused to him, he cannot be
entitled to get the remedy. The ubi jus, ibi idem remedium (where there is a right there is a
remedy), speaks of the remedial measure available in the formerly mentioned cases. Such
remedial measures are enforced through the institution of suit. The Code of Civil Procedure,
1908 is the procedural or the adjective law of India in civil matters. Sections 26 and Sections
35-35B read with Orders I (Parties to the Suit), II (Framing of the Suit), IV (Institution of the
Suit), VI (Pleadings) and VII (Plaint) provide the procedural principles and rules regarding
institution of suits.

The word ‘suit’ has wider application. There is a little difference between the suits under the
CPC 1908 and the other civil suits. It should be mentioned that ‘suit’ is different from the
‘writs’. Suit is instituted to enforce the legal rights (not the political and religious) only; but the
‘writs’ are concerned with the enforcement of the Fundamental Rights guaranteed by Part III
of the Indian Constitution. Only the High Courts and the Supreme Court have the Writ
jurisdiction governed by the Indian Constitution.

The term ‘suit’ has not been defined in the Civil Procedure Code, 1908. According to
Chamber’s 20th Century Dictionary (1983), it is a generic term of comprehensive signification
referring to any proceeding by one person or persons against another or others in a court of law
wherein the plaintiff pursues the remedy which the law affords him for the redress of any injury
or enforcement of a right, whether at law or in equity. In the Black’s Law Dictionary (7th
Edition) this term is defined as the proceeding initiated by a party or parties against another in
the court of law.

According to some other views, ‘suit’ includes appellate proceeding also; but it does not
include an execution proceeding. Ordinarily, suit under the CPC is a civil proceeding instituted
by the presentation of a plaint.

Section 26 of CPC deals with institution of suits. Section 15 of CPC deals with Court in which
suits to be instituted. Section 18 of CPC deals with Place of institution of suit where local limits
of jurisdiction of Courts are uncertain. Order-1 Rule-1 to 13 CPC deals with Parties to the suits.

Pre-civil suit – The disposal of civil suit is to be done according to law and provision made in
Civil Procedure Code and it should not be decided on whims of Court. (Alka Gupta Vs.
Narendra Kumar Gupta, AIR 2011 SC 9)

The word ‘Court’ is used to designate those forums which are set up in an organised state to
exercise judicial powers of the State to maintain and uphold rights and punish wrongs, that is,
for administration of justice and the word ‘Court’ would denote “Ordinary Courts of Civil
judicature”. The judicial power of the Government is exercised by establishment of hierarchy
of Courts, to decide disputes between its subjects and the subjects and State. The powers, which
these Courts exercise, are judicial powers; the functions which they discharge, are the judicial
functions; and the decision which they reach and pronounce, are judicial decisions. [(Union of

47
India Vs. M/s. Mysore Paper Mills Ltd., AIR 2004 Kant 1 (FB) : 2004 (13) AIC 325
(Kant)]

Institution of suit

No suit can be instituted without service of the notice if such service of the notice is required
statutorily as a condition precedent. The giving of the notice is a condition precedent to the
exercise of jurisdiction. But, this being a mere procedural requirement, the same does not go
to the root of jurisdiction in a true sense of the term. The same is capable of being waived by
the defendants and on such waiver, the Courts gets jurisdiction to entertain and try the suit. The
plea of waiver can always be tried by the Civil Court. In fact, it is not suggested who else can
try. The question whether, in fact, there is waiver or not would necessarily depend on facts of
each case, and is liable to be tried by the same Court if raised. [Vasant Ambadas Pandit Vs.
Bombay Municipal Corporation, AIR 1981 Bom 394 at 396 (1981) 83 Bom LR 248 : 1981
Mah LR 706 : 1981 Bom CR 793 (FB)]

Civil Procedure Code, 1908-Section 26-Institution of suit-Every litigant has right to elect and
continue to elect additional and alternate pleas as may be available in law – However, this right
of choice and election does not mean that litigation should be permitted to tend to vexatious
leel-Not only suit was contested on totally alse and untenable defence but it was fully loaded
with attiutde of being vexatious –Appeal dismissed with cost of Rs.25,000/- (Anthony Edward
D ‘Aguiary Blache Alfred D ‘Aguiar & Ors., 2013 (4) CCC 343 (Bom)

One of the basic principles of law is that every right has a remedy, every suit is cognizable
unless it is barred, there is an inherent right in every person to bring a suit of a civil nature and
unless suit is barred by statute, one may at one’s peril bring a suit of one’s choice. [Ramesh
Dwarkadas Mehra Vs. Indravati Dwarkadas Mehra, 2001 (4) Bom CR 417 (Bom)]

Rights in suit in civil cases :- Section 9 of the Civil Procedure Code, is merely a declaratory
section which gives a right of suit in all civil cases to a citizen and has no connection either
with the constitution of the City Civil Court or of the other Courts. (Indumatiben Chimanlal
Desai Vs. Union of India, 1970 Mah LJ 238 : 1969 Bom LR 340)

Court in which suits to be instituted – Every suit shall be instituted in the Court of the lowest
grade competent to try it.

Section 26(1), CPC says that every suit shall be instituted by the presentation of a plaint or in
such other manner as may be prescribed. Sub-section (2) provides that in every plaint, facts
shall be proved by affidavit. The procedural framework relating to the institution of a suit is
give below:

4. Preparing the plaint

ii. Choosing the proper place of suing

iii. Presentation of the plaint

5. Preparation of the Plaint:

48
‘Plaint’ is not defined in this Cod e. It may, however, be described as ‘a private memorial
tendered to a Court in which the person sets forth his cause of action, the exhibition of an action
in writing’. Order 7 is related to the format of Plaint.

According to Rule 1 the particulars to be contained in a plaint are:

a) the name of the Court in which the suit is brought;

b) the name, description and place of residence of the plaintiff;

c) the name, description and place of residence of the defendant, so far as they can be
ascertained;

d) where the plaintif f or the defendant is a minor or a person of unsound mind, a statement to
that effect;

e) the facts constituting t he cause of action and when it arose;

f) the facts showing that the Court has jurisdiction;

g) the relief which the plaintiff claims;

h) where the plaintiff has allowed a se t-off or relinquished a portion of his claim, the amount
so allowed or relinquished; and

i) a statement of value of the subject matter of the suit for the purposes of jurisdiction and of
court-fees, so far as the case admits.

Other rules regarding the contents of a plaint:

a) In money suits the pliant shall state the precise amount of amount claimed (Rule 2).

b) Where the subject-matter of the suit is immovable property, the plaint shall contain a
description of the property sufficient to identify it, and in case such property can be identified
by boundaries or numbers in a record of settlement or survey, the plaint shall specify such
boundaries or numbers (Rule 3).

c) Where the plaintiff sues in a representative character, the plaint shall show not only that has
an actual existing interest in the subject matter, but that he has taken the steps (if any) necessary
to enable him to institute a suit concerning it (Rule 4).

d) The plaint shall show that the defendant is or claims to be interested in the subject matter,
and that he is liable to be called upon to answer the plaintiff’s demand (Rule 5).

e) Where the suit is instituted after the expiration of the period prescribed by the law of
limitation, the plaint shall show the ground upon which exemption from such law is claimed
(Rule 6).

f) Every plaint shall state specifically the relief which the plaintiff claims either simply or in
the alternative, and it shall not be necessary to ask for general or other relief which may always

49
be given as the court may think just to the same extend as if it had been asked for. And the
same rule shall apply to any relief claimed by the defendant in his written statement (Rule 7).

g) Where the plaintiff seeks relief in respect of several distinct claims or causes of action
founded upon separate and distinct grounds, they shall be stated as far as may be separately
and distinctly (Rule 8).

h) Where the Court orders that the summons be served on the defendants in the manner
provided in rule 9 of Order V, it will direct the plaintiff to present as many copies of the plaint
on plain paper as there are defendants within seven days from the date of such order along with
requisite fee for service of summons on the defendants (Rule 9).

Return of Plaint:

Rule 10 (1) says, ‘Subject to the provisions of rule 10A, the plaint shall at any stage of the suit
be returned to be presented to the court in which the suit should have been instituted.’

Rejection of Plaint:

According to Rule 11 the plaint shall be rejected in the following cases:—

a) where it does not disclose a cause of action;

b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to
correct the valuation within a time to be fixed by the court, fails to do so;

c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently
stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper
within a time to be fixed by the Court, fails to do so;

d) where the suit appears from the statement in the plaint to be barred by any law;

e) where it is not filed in duplicate;

f) where the plaintiff fails to comply with the provision of Rule 9.

Provided that the time fixed by the court for the correction of the valuation or supplying of the
requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is
satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting
the valuation or supplying the requisite stamp papers, as the case may be within the time fixed
by the court and that refusal to extend such time would cause grave injustice to the plaintiff.

According to Rule 12 where a plaint is rejected, the Judge shall record an Order to that effect
with the reasons for order. Rule 13 clarifies that the rejection of the plaint on any of the grounds
hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh
plaint in respect of the same cause of action.

Amendment of Pleading of the plaintiff (Plaint):


50
The Court may at any stage at the proceedings allow 51aruk r party to alter or amend his
pleadings in such manner and on such terms as may be just (Rule 17, Order 6).

Choosing the proper place of suing:

A defect of jurisdiction goes to the root of the matter and strikes at the authority of a court to
pass a decree. A decree passed by the Court in such cases is a coram non judice. So choosing
the proper court is the next which depends on the contents of the pliant. Section 9 of CPC has
declared that the courts shall have jurisdiction to try all suits of a civil nature excepting suits of
which their cognizance is either expressly or impliedly barred. The jurisdiction of a court is
decided by the legislature; parties by the framing of the plaint cannot interfere into the extent
of this jurisdiction. They can choose one of some of the courts having same jurisdiction. In
Ananti v. Chhannu, the Court has laid down the correct law on this point: The Plaintiff chooses
his forum and files his suit. If he establishes the correctness of his facts he will get his relief
from the forum chosen.

Place of institution of suit where local limits of jurisdiction of Courts are uncertain:

It is a settled position in law that where the principal power or main right to grant relief is
conferred upon the Court or upon an authority, such Court or authority has also powers to grant
those and such reliefs which are incidental to the main relief.

Under Section 20I of the Code, a suit can be filed in a Court within the local limits of whose
jurisdiction of cause of action, wholly or in part, arises. It is now well settled that in case of a
contract, the cause of action arises in the following places:

(1) The place where the contract has been entered into.

(2) The place where the contract has been performed or is required to be performed under the
terms thereof.

(3) The place where, in terms of the contract any payment has to be made.

[B.C.Paul & Sons Vs. Union of India, AIR 1978 Cal 423 : (1978) 2 Cal LJ 241]

Part of cause of action: In the case of breach of contract in view of Section 20I of the Code,
suit can be filed where the part of the cause of action arose.

Intention of parties – Regarding contract between Indian and foreign companies, intention of
parties will be guiding factor on question of jurisdiction.

(National Thermal Power Corporation Vs. The Singer Company and others, AIR 1993
SC 998)

Where jurisdiction to try suit, conferred upon more than one Court then the parties by their
consent may limit the jurisdiction to one of two Courts. [New Moga Transport Co. Vs. United
India Insurance Co. Ltd., AIR 2004 SC 2154 : 2004 (4) SC 677]

Bar to jurisdiction-Determination and effect of:

51
Under Section 9 of the Code of Civil Procedure, the Court shall have jurisdiction to try all suits
of civil nature excepting suits of which cognizance is either expressly or impliedly barred.

Section 24 of the Act creates an express bar in respect of a particular kind of suits, namely,
suits for recovery of wages in certain eventualities. The obvious intention was that a poor
employee was not to be driven to file a suit for the payment of the deficit of his wages but that
he could avail himself of the machinery provided by the Act to get quick relief. It does not, in
terms, bar the employer from instituting a suit when his claim is that he has been called upon
to pay wages and compensation to persons who are not governed by the notification under the
Minimum Wages Act.

Right to Worship – A right to worship is a civil right, interference with which raises a dispute
of a civil nature though as noticed earlier disputes which are in respect of rituals or ceremonies
alone cannot be adjudicated by Civil Courts, if they are not essentially connected with civil
rights of an individual or a sect on behalf of whom a suit is filed. [Ugam Singh and another
Vs. Kesrimal and others, AIR 1971 SC 2540 : 1971 (2) SCJ 539 : 1970 (3) SCC 831: 1971
(2) SCR 836]

Scope of Jurisdiction in respect of suits of civil nature:

The plain reading of Section 9 of the Civil Procedure Code and the Explanations I and II
reading conjointly indicates that a suit in which the right to property or to an office is contested
is a suit of a civil nature, no matter whether such right depends purely on the decision of
questions of religious rites or ceremonies and no matter whether the office attracts fees or not.
[Riyazuddin Ahmed Vs. Tayyab Razak, 2001 (3) Mah LJ 434 (Bom)]

Rights in suit in civil cases –

Section 9 of the Civil Procedure Code, is merely a declaratory section which gives a right of
suit in all civil cases to a citizen and has no connection either with the constitution of the City
Civil Court or of the other Courts. (Indumatiben Chimanlal Desai Vs. Union of India, 1970
Mah LJ 238 : 1969 Bom LR 340)

The jurisdiction of a Court may be classified into several categories. The important categories
are :

6. Territorial or local jurisdiction;

(ii) Pecuniary jurisdiction;

(iii) Jurisdiction over the subject-matter.

So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has
to be taken at the earliest possible opportunity and in any case at or before settlement of issues.
The law is well settled on the point that if such objection is not taken at the earliest, it cannot
be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is
totally distinct and stands on a different footing. Where a Court has no jurisdiction over the
subject-matter of the suit by reason of any limitation imposed by Statute, charter or

52
commission, it cannot take up the cause or matter. An order passed by a Court having no
jurisdiction is nullity.

Section 16 C.P.C. deals with such cases and jurisdiction of competent Court where such suits
can be instituted. Under the said provision, a suit can be instituted where the property is situate.
No Court other than the Court where the property is situate can entertain such suit. Hence, even
if there is an agreement between the parties to the contract, it has no effect and cannot be
enforced.

Presentation of the Plaint: Commencement of the Suit:

Section 26 and Order 4 contain the provisions relating to the institution of a suit. Rule 1 of
Order 4 goes as:

(1) Every suit shall be instituted by presenting a plaint in duplicate to the Court or such officer
as it appoints in this behalf.

(2) Every plaint shall comply with the rules contained in Order VI and VII, so far as they are
applicable.

(3) The plaint shall n ot be deemed to be duly instituted unless it complies with the requirements
specified in sub-rules (1) and (2).

Section 26 provides that every suit shall be instituted by the presentation of a plaint or in such
other manner as may be prescribed. Order 4 Rule 1 lays down the procedure for institution of
suit; but does not speak of any ‘other manner’ for the purpose. The amendment makes it clear
that unless the plaint is filed in duplicate it will be deemed to be incomplete. Sub-rule (3) has
been inserted in order to curtail unnecessary adjournments for due compliance of the provisions
of sub rules (1) and (2) after the filing of the plaint.

The plaint may be presented either by the affected person himself, or by his advocate or by his
recognised agent or by any person duly authorised by him. A proceeding which does not
commence with a plaint is not a suit within the meaning of Section 26 and Rule 1 of Order 4.

Time and Place of Presentation:

Generally, the presentation of a plain t must be on a working day and during the office hours.
However, there is no rule that such presentation must be made either at a particular place or at
a particular time. A judge, therefore, may accept a plaint at his residence or at any other place
even after office hours, though h is not bound to accept it. But if not too convenient, the judge
must accept the plaint, if it is the last day of limitation. Thereafter, the particulars of a suit will
be entered by the court in a book kept for the said purpose, called the Register of Civil Suits.
After the presentation, the plaint will be scrutinised by the Stamp Reporter. If there are defects,
the plaintiff or his advocate will remove them. Thereafter the suit will be numbered.

Registration of Suits:

53
Rule 2 of Order 4 provide s that the Court shall cause the particulars of every suit to be entered
in a book to be kept for the purpose and called the register of civil suits. Such entries shall be
numbered in every year according to the order in which the plaints are admitted.

Essentials of the Institution of Suits:

There are four essentials of a suit:

7. Opposing parties, i.e., parties to the suit;

ii. Subject-matter in dispute;

iii. Cause of action; and

iv. Relief

8. Parties to suit: Order 1:

In a civil suit, the presence of both the plaintiff, who files the suit, and the defendant, who is
sued, is necessary. In each case there are two categories; first one is the necessary party and
the other is proper party. A necessary party is one whose presence is indispensable to the
constitution of the suit, against whom the relief is sought and without whom no effective order
can be passed. A proper party is one in whose absence an effective order can be passed, but
whose presence is necessary for a complete and final decision on the question involved in the
proceeding.

Word ‘party’ in a suit means litigant. In other words ‘party’ in this sense refers to a person who
has part to play in the proceeding of the suit. In the absence of any contrary provision, the
above meaning of the word can be accepted. (Jasminebibi Vs. Commissioner of Waqfs, AIR
1983 NOC 125 Cal)

Scope and applicability – Order -1 Rule 1 C.P.C. provides that several persons may join in
one suit, though their causes of action are separate and distinct provided that –

9. if right of relief arises out of same transaction or act or series of transactions or acts; and

(ii) the case is of such nature that in separate suits filed by them, common question of law and
fact would arise where each set of the plaintiffs sets up a claim in which other set of plaintiffs
are not interested, there cannot be said to be jointness in the interest claimed by them for several
causes of action. (L.Knappa Vs. Sunam Ram, AIR 1977 HP 23 at 27)

But it is not necessary that all issues arising in a suit should be common to all the parties. It is
sufficient if even one of them is common to them. (Sita Ram Vs. Rajendra Chandra, AIR
1956 Assam 7)

A joint trial of the three suits based on the evidence to be taken would be the proper course
under the circumstances. (Prem Lata Nahata and another Vs. Chandi Prasad Sikaria, AIR
2007 SC 1247)

54
Where plaint suffers from defect of misjoinder of parties or misjoinder of causes of action, it
does not make the suit barred by law or liable to rejection. There is fetter in the Court’s power
to permit a third party to join with the plaintiffs for effectively and completely adjudicating
upon and settle all questions involved in the suit provided that the plaintiffs have no objection
to it. If the plaintiffs oppose it, a third party cannot join them. (Noor Mohd. Vs. Anand, AIR
1981 Guj 132)

Since plaintiff is a dominus litus plaintiff’s willingness to accept another person as co-plaintiff
is material. Similarly, a third party not willing to be impleaded as plaintiff, cannot be forced to
be added as plaintiff. [National Spices Vs. Andhra Bank, AIR 1988 NOC 79 : (1987) 2 Ker
LT 132]

Persons from amongst defendants also cannot be transposed and added as plaintiffs without the
consent of the existing plaintiffs or if it alters nature of suit. (Kalyan Singh Vs. Kagdi Ram,
AIR 1977 HP 73)

It was power to order transposition of parties. (Basudeo Vs. Shesh Narayan, AIR 1979 Pat
73)

Non-impleadment of a necessary party in a suit, renders suit not maintainable. [Mumbai


International Airport Pvt. Ltd., Vs. Regency Convention Centre & Hotels Pvt. Ltd., AIR
2010 SC 3109 : 2010 (7) SCC 417 : 2010 (6) SCALE 273]

In a partition suit, all co-sharers must be impleaded in the suit. [T.Panchpa Kesan Vs. Pertia
T.Naicker, (1972) 2 Mad LJ 590 : 85 Mad LW 941; Lal Mohd. Vs. Imajuddin, AIR 1964
Cal 548, Lakshamamma Vs. Someswar, AIR 1953 Hyd 170]

In matrimonial cases on the ground of adultery, the alleged adulterer must be joined with the
respondent spouse. (Sikha Vs. Dina, AIR 1982 Cal 370; Udai Narain Vs. Kusum, AIR 1975
All 94)

Plaintiff has right and prerogative to choose and implead in his suit such person as defendant
against whom he seeks relief. (Ibid)

Necessary party is one in whose absence, no effective decree can be passed.

Proper party is one whose presence is necessary for complete adjudication of the dispute. (State
Bank of India Vs. Krishna Pottery Udyog Association and others, AIR 1994 HP 90)

Order -1 Rule- 8 C.P.C. provides an exception to general rule that all interested persons should
be made parties to the suit. In a case where there are numerous persons having same interest in
one suit, the rule enables a party to represent such numerous persons in common cause of
action. (Rama Seshiah Vs. M.Ramayya, AIR 1957 AP 946)

The essential conditions for application of this rule are –

10. the parties are numerous,

55
(ii) they have same interest,

(iii) necessary permission be obtained and

(iv) notice must be given or published as mentioned in the rule.

The Rule 8 applies only to the representative suits. (Saraswati Vs. Durga, AIR 1982 MP 147)

Dismissal of suit:- Dismissal of suit on the plea of non-joinder is not permissible unless such
plea has been specifically taken and elaborated in the written statement. (Laxmi Shankar
Harishankar Bhati Vs. Yashram Vsasta, AIR 1993 SC 1587)

Suit for partition – Requirement of necessary party – The question of non joinder of
necessary parties in a suit for partition can be raised at any time as it goes to the root of the
matter. It is well settled that a suit for partition is not maintainable in the absence of some of
the co-sharers. (Shanmugham and others Vs. Saraswathi and others, AIR 1997 Mad 226
at p.229)

Non-joinder of parties – Where either a necessary or a proper party is not impleaded in the
array of parties, it is said to be non-joinder of a party. As mentioned above, a necessary party
is one without impleading whom no effective decree can be passed. And the proper party is the
person whose presence is convenient for the correct decision of the case. Simple non-joinder
of a party is not fatal except in case of a non-joinder of necessary party. (V.D.Deshpande Vs.
S.K. Dattatraya Kulkarni, AIR 1976 Bom 190 at 205 : 77 Bom LR 617)

A defect of non-joinder can be corrected if during the pendency of suit the plaintiff gets added
the left out necessary or proper party under Order I, Rule 10 of the Code, if a suit is bad for
non-joinder of a proper party, the Court may deal with matter in controversy so far as regards
the rights and interest of the parties actually before it. (Arya Ayurvedic Trust Vs. Board of
Revenue, AIR 1976 All 17 at 19 : 1975 All WC 513)

Plea of the non-joinder of the necessary party, ought to be taken in the written statement and
cannot be taken in an application for grant of temporary injunction. (Mahaveer Dass Vs. M/s.
Ganeshmal Jeevraj, AIR 1992 Raj 29)

Plea of non-joinder of necessary parties cannot be raised for the first time in appeal.
(Addepalli Venkata Laxmi Vs. Ayinampudi Narasimha Rao and others, AIR 1994 AP 72)

Dismissal of suit on the plea of non-joinder is not permissible unless such plea has been
specifically taken and elaborated in the written statement. (Laxmi Shankar Harishankar
Bhatt Vs. Yashram Vasta, AIR 1993 SC 1587)

When objection to non-joinder is not taken in written statement, trial Court has not taken up
issue, it is presumed that objection regarding non-joinder is deemed as waived.
(K.C.Laxamana Vs. K.C.Chanrappa Gowda, AIR 2009 Kant 112)

Mis-joinder of parties – Mis-joinder means wrongful joining in an action. It may be mis-


joinder of plaintiffs or of defendants. This rule relates to parties only and not to mis-joinder of

56
causes of action. Where right to sue exists with all the plaintiffs, there is no mis-joinder of
plaintiffs but if some of the plaintiffs have no right to sue there is a mis-joinder of plaintiffs.
But mere mis-joinder of plaintiffs is not fatal to the suit. Similarly, in the case of defendants is
some of the persons who are neither necessary nor proper parties are also impleaded in the suit,
it is a case of mis-joinder of defendants. Objection as to mis-joinder of defendants is also not
fatal. (S.N.Singh Vs. Brahmanand, AIR 1950 Cal 479)

A suit for partition without impleading the sharers there of would be liable to be rejected.
[(Nambi Narayan Rao Vs. Nambi Rajeswar Rao, AIR 2008 NOC 1606 (A.P.)]

Suit for divorce- Impleadment of party- Where the divorce was sought on ground of
adultery, such a person against whom allegation of adultery was made, was held to be
impleaded as party. (Smt. Putuli Das Vs. Ding Nah Talukdar, AIR 2008 Gau 74)

Discretion of Court to implead party:- Wide discretion of the Court, thereunder, should be
exercised only to implead the necessary and proper parties. (Lakshmi Narain Vs. The District
Judge, Fatehpur and others, AIR 1992 All 119 : 1992 AWC 210)

Discretion under Order I, Rule 10(2) of Code, can be exercised by Court either suo motu or
on application of plaintiff/defendant, or on application by a person, not a party to suit.
[Mumbai International Airport Pvt. Ltd., Vs. Regency Convention Centere & Hotels Pvt.
Ltd., AIR 2010 SC 3109 : 2010 (7) SCC 417 : 2010 (6) SCALE 273]

Impleadment of legal representatives:- Where the legal representatives in a suit for partition
were not brought on record under Order XXII, CPC, they can be brought on record under Order
I, Rule 10, CPC, because failure to bring parties on record as legal representatives does not
preclude the plaintiff to bring them on record as defendant on a different ground. [(Singamsetty
Chikala Ramanna Vs. Singamsetty Saraswathamma, 2002 (2) Civil LJ 46 (A.P.)]

The driver is not a necessary party in accident claim. [Union of India Vs. Ghulamnabidar,
AIR 2008 NOC 2640 (J&K)]

The power of addition of party is vested in the Court. [Hirasingh Sardar Singh Parmar Vs.
Smt. Ram Kuwarbai Parmar, AIR 2008 NOC 2655 (Bom)]

Non-joinder of parties – Suit by manager of joint family – Failure to join a person who is a
proper but not a necessary party, does not affect the maintainability of the suit nor does it invite
the application of Section 22 of the Indian Limitation Act. The rule that a person who ought to
have been joined as a plaintiff to the suit and is not made a party, will entail dismissal of the
suit, if the suit as regards him be barred by limitation when he is joined, has no application to
non-joinder of proper parties. (Devidas and others Vs. Shrichailappa and others, AIR 1961
SC 1277 : 1962 Nag LJ 191 : 1961 (3) SCR 896)

Power of Court to implead as party:-The difference between the provisions contained in


Order I, Rule 10 and Order XXII, Rule 4, is apparent. Order I, Rule 10 does not deal with
substitution of legal representatives of a deceased. It confers power on the Court at any stage

57
of the suit to implead or add a person as party or to strike down a person improperly joined if
the Court finds it necessary for determination of the real matter in dispute.

On the other hand, Order XXII, Rule 4 confers right on the plaintiff to bring on record the heirs
and legal representatives of a deceased. If the right to sue does not survive, the suit shall come
to an end or shall abate. (State of Kerala Vs. Madhavakurup Ramachandran Pillai, AIR
1999 Ker 359 at p.361)

Impleadment of new parties after passing preliminary decree in suit for partition is permissible.
(Kashed Ali Sardar Vs. Ms. Hamida Bibi, AIR 2012 Cal 165)

Order I, Rule 10 of Code, conferred wide discretion on Court as to impleadment of parties to


suit, however, such discretion to be exercised in accordance with provisions of law.
[Competition Commission of India Vs. Steel Authority of India, 2010 (10) SCC 744 : 2010
(9) SCALE 291 : 2010 (6) Supreme 609]

Necessary party – Determination of – The question to be considered is whether right of the


party shall be affected if he is not added as a party. (Terai Tea Co. Pvt. Ltd., Vs. Kumkum
Mittal and others, AIR 1994 Cal 191)

While permitting transposition from the category of defendants to that of plaintiff, plaintiff’s
consent must be obtained. (Dalbir Singh Vs. Lakhiram, AIR 1979 Punj 10, Nuruddin Vs.
Gani, 1978 Kash LJ 125)

Defendant has no right to seek transposition. (Mathura Bai Vs. Daryanamal, AIR 1995 MP
202)

Where the number of plaintiff/defendant is one, no dispute arises regarding their representation;
but some uniform rules become mandatory if this number crosses this limit. Order 1 contains
these rules. These are enumerated below.

Joinder of parties: Rules 1, 2, 3, 3A:

All persons may be joined in one suit as plaintiffs or defendants as the case may be where:

a. Any right to relief in respect of , or arising out of, the same act or transaction or series of acts
or transactions is alleged to exist in/ against such persons, whether jointly or severally or in the
alternative; and

b. If such persons brought separate suits, any common question of law or fact would arise
(Rules 1, 3).

Example: Where A assaults B, the latter may sue A for tort, as individually affects him. The
question of joinder of parties arises only when an act is done by two or more persons or it
affects two or more persons. Thus, if A assaults B and C, or A and B assaults C or A and B
assaults C and D, the question of joinder of parties arises.

58
The plaintiff may at his option join as parties to the same suit all or any of the persons severally,
or jointly and severally, liable on any one contract, including parties to bills of exchange, hundis
and promissory notes (Rule 6). When the plaintiff is in doubt regarding the joinder of persons
from whom he is entitled to obtain redress, he may join two or more such defendants (Rule 7).
It shall not be necessary that every defendant shall be interested as to all the relief claimed in
any suit against him (Rule 5). As per Rule 12(1), where there are more plaintiffs than one, any
one or more of them may be authorised by any other of them to appear, plead or act for such
other in any proceedings; and in like manner, where there are more defendants than one, any
one or more of them may be authorized by any other of them to appear, plead or act for such
other in any proceeding. Sub-rule (2) says, the authority shall be in writing signed by the party
giving it and shall be filed in court.

Misjoinder and non-joinder: Rules 9 and 13:

As per Rule 9 no suit can be defeated by reason of the misjoinder and non-joinder of parties
unless such party is a necessary party. Rule 13 says that all objections regarding the misjoinder
and non-joinder of parties shall be taken at the earliest possible opportunity and, in all cases
where issues are settled, at or before such settlement.

Representative Suits: Rule 8:

11. Meaning: In a suit if there are numerous persons having the same interest in one suit
one or more of such persons may, with the permission of the court, sue or be sued, or may
defend such suit, on behalf of, or for the benefit of, all persons so interested; such a suit is
called the ‘representative suit’.

ii. Object: To facilitate the decision of questions in which a large number of persons are
interested without recourse to the ordinary procedure.

iii. Conditions: As per Rule 8(1), Where there are numerous persons having the same interest
in one suit,—

(a) one or more of such persons may, with the permission of the court, sue or be sued, or may
defend such suit, on behalf of, or for the benefit of, all persons so interested;

(b) the court may direct that one or more of such persons may sue or be sued, or may defend
such suit, on behalf of, or for the benefit of, all persons so interested.

iv. Formalities to be followed:

a. In such case, the permission of the Court must be obtained [sub-rule (1)].

b. The plaint must show that the suit is representative in character.

c. The court shall, in every case where a permission or direction is given under sub rule

(1), at the plaintiff’s expense, give notice of the institution of the suit to all persons so interested,
either by personal service, or, where, by reason of the number of persons or any other cause,

59
such service is not reasonably practicable, by public advertisement, as the court in each case
may direct [sub-rule (2)].

d. Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under
sub-rule (1), may apply to the court to be made a party to such suit [sub-rule (3)].

e. No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit
shall be withdrawn under sub-rule (3) of rule 1 of Order XXIII, and no agreement, compromise
or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the court has
given, at the plaintiff’s expenses notice to all persons so interested in the manner specified in
sub-rule (2) [sub-rule (4)].

f. Where any person suing or defending in any such suit does not proceed with due diligence
in the suit or defence, the court may substitute in his place any other person having the same
interest in the suit [sub-rule (5)].

g. A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or
for whose benefit, the suit is instituted, or defended, as the case may be [sub-rule (6)].

h. For the purpose of determining whether the persons who sue or are sued, or defend, have the
same interest in one suit, it is not necessary to establish that such persons have the same cause
of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend
the suit, as the case may be [Explanation].

Power of the Court to order separate trials:

Where it appears to the Court that any such joinder may embarrass or delay the trial, the Court
may order separate trials or make such other order as may be expedient in the interest of justice
(Rules 2, 3A).

Power of the Court to give judgment in case of joinder of parties: Rule 4:

Judgment may be given without any amendment—

(a) for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief
as he or they may be entitled to;

(b) against such one or more of the defendants as may be found to be liable, according to their
respective liabilities.

Special Powers of the Court: Rule 10, 10A, 11:

12. While trying a suit, the court may, if satisfied that a person or body of persons is
interested in any question of law which is directly and substantially in issue in the suit and
that it is necessary in the public interest to allow that person or body of persons to present
his or its opinion that question of law, permit that person or body of persons to present such
opinion and to take such part in the proceedings of the suit as the court may specify (Rule
8A).

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ii. The Court may make corrections to the pleadings of both parties if it seems to be wrong
before the Court (rule 10).

iii. The court may, in its discretion, request any pleader to address it as to any interest which is
likely to be affected by its decision on any matter in issue in any suit or proceeding if the party
having interest which is likely to be so affected is not represented by any pleader (Rule 10A).

iv. The Court may give the conduct of a suit to such persons as it deems proper (Rule 11).

Subject-matter in dispute:

‘Subject-matter’ means the bundle of facts which have to be proved in order to entitle the
plaintiff to the relief claimed by him. This term includes the course of action. According to
sub-rules (4) and (5) of Rule 1, where the court is satisfied

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the
subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff
permission to withdraw from such suit or such part of the claim with liberty to institute a fresh
suit in respect of the subject matter of such suit or such part of the claim. Where the plaintiff

(a) abandons any suit or part of claim under sub-rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3),
he shall be liable for such costs as the court may award and shall be precluded from instituting
any fresh suit in respect of such subject matter or such part of the claim.

Examples: a) Where the suit is instituted for the recovery of immovable property with or
without rent, the subject-matter is that immovable property.

b) Where the suit is instituted for the compensation for wrong done to one movable property,
the subject-matter is that movable property.

More specifically on the basis of the subject-matter the jurisdiction of a Court is determined in
some cases. For example, a Presidency Small Causes Court has no jurisdiction to try suits for
specific performance of a contract, partition of immovable property, foreclosure or redemption
of a mortgage etc. Similarly, in respect of testamentary matters, divorce cases, probate
proceedings, insolvency proceedings etc. only the District Judge or Civil Judge (Senior
Division) has jurisdiction.

Cause of action: Order 2, Rules 3, 6 and 7:

Cause of action may be defined as ‘a bundle of essential facts, which is necessary for the
plaintiff to prove before he can succeed.’ A cause of action is the foundation of a suit. It must
be antecedent to the institution of a suit and on the basis of it the suit must have been filed.
Every fact constituting the cause of action should be set out in clear terms. A cause of action
must include some act done by the defendant since in the absence of such an act no cause of

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action can possibly accrue. If a plaint does not disclose a cause of action, the Court will reject
that plaint.

Joinder of Causes of Action:

Order 2, Rule 3 provides for the joinder of cause of action. According to this Rule, save as
otherwise provided, a plaintiff may unite in the same suit several causes of action against the
same defendant, or the same defendants jointly; and any plaintiffs having causes of action in
which they are jointly interested against the same defendant(s), may jointly unite such causes
of action in the same suit.

Power of the Court:

Where it appears to the Court that the joinder of causes of action in ne suit may embarrass or
delay the trial or is otherwise in convenient, the Court may order separate trials or make such
other order as may be expedient in the interests of justice (Rule 6).

Objections as to misjoinder:

All objections on the ground of misjoinder of causes of action shall be taken at the earliest
possible opportunity and, in all cases where issues are settled, at or before such settlement
unless the ground of objection has subsequently arisen, and any such objection not so taken
shall be deemed to have been waived.

Relief: Order II, Rules 1-2, 4-5:

Relief is the legal remedy for wrong. According to Rule 1 of Order 2 every suit shall as far as
practicable be framed so as to afford ground for final decision upon the subjects in dispute and
to prevent further litigation concerning them.

Rule 2 provides for the following conditions to be complied with:

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in
respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order
to bring the suit within the jurisdiction of any court.

(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his
claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) A person entitled to more than one relief in respect of the same cause of action may sue for
all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such
reliefs, he shall not afterwards sue for any relief so omitted.

Object of this Rule:

This rule is based on t he cardinal principle that a defendant should not be vexed twice for the
same cause. The object of this salutary rule is doubtless to prevent multiplicity of suits.

Conditions for the application of this Rule:

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13. The second suit must be in respect of the same cause of action as that on which the
previous suit was based.

ii. In respect of that cause of action, the plaintiff was entitled to more than one relief.

iii. Being thus entitled to more than one relief, the plaintiff without the leave of the Court
omitted to sue for the relief for which the second suit has been filed. Such leave need not be
express and it may be inferred from the circumstances of the case. It can be obtained at any
stage. The question whether leave should be granted, depends on the circumstances of each
case.

Illustrations:

14. A lets a house to B at a yearly rent of ₹ 1,200. The rent for the whole of the years 1905,
1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall
not afterwards sue B for the rent due for 1905 or 1907.

ii. A advances loan of ₹ 2200 to B. To bring the suit within the jurisdiction of Court X, A sues
B for ₹ 2000. A cannot afterwards sue for ₹ 200. Rules 4 and 5 provide for the joinder of
claims. Rule 4 states that no cause of action shall, unless with the leave of the Court, be joined
with a suit for the recovery of immovable property, except

a) claims for mesne profit or arrear of rent in respect of the property claimed or any part thereof;

b) claims for damages for breach of any contract under which the property or any part thereof
is held; and

c) claims in which the relief sought is based on the same cause of action.

Rule 5 provides that no claim by or against an executor, administrator or heirs, as such, shall
be joined with claims by or against him personally, unless the last mentioned claims are alleged
to arise with reference to the estate in respect of which the plaintiff or the defendant sues or is
sued as executor, administrator or heirs or are such as he was entitled to or liable for jointly
with the deceased person whom he represents.

15. PLEADINGS:

Order VI deals with pleadings in general. Rule 1 of that Order defines pleadings as a plaint or
written statement. Plaint is used to notify the opposite party of the case that is filed against him
or her. Framing of pleadings is the most fundamental and must be dealt with a lot of caution.
The reason is that, once the pleadings are framed, no one has the power to amend them expect
for the judge on his discretion.

In the absence of the pleadings, if any evidence is produced by the parties, that cannot be
considered. It is a settled law that no party must be allowed to venture beyond the pleadings.
There is a lot of litigation in this area as to the scope and extent of the liberty to amend the

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pleadings. In the Common law, the pleading practice was a mechanical and rigid exercise such
that misspellings of minor details were not allowed. The object and purpose of the pleadings is
to make the opposite party acquaint with the case he has to face in the due course of time. The
whole object of the pleadings is to bring parties to the definite issues, reduce costs and to ensure
the speedy delivery of justice. This also results in the allowed, then the party might have a
remedy to raise the same in the subsequent case. The amendments relating to constructive res
judicata must not be allowed by the courts.

Interpretation of the rule:

Order VI, Rule 17 of the Code of Civil Procedure provides for the “Amendment of pleadings.”
The provision enumerates that a court may allow any party at any stage to amend the
proceedings if it considers that to be just. All such amendments which are necessary for the
purpose of determining the real questions in controversy between the parties shall be made by
the court. A proviso has been added to this provision through the CPC (Amendment) Act, 1999,
which intends to limit the powers of the court’s discretion of amendment of pleadings. It says
that no application for the amendment shall be allowed by the court after the commencement
of the trial, unless the court is of the opinion that notwithstanding the parties’ due diligence,
they could not have raised the matter before the commencement of the trial.

Rule 16 of the same Order provides for the striking out of the pleadings. This was also subjected
to the amendment in the year 1976. It provides that the Court may at any stage of the
proceedings order to amend or remove any part of the pleading which is unnecessary,
scandalous, frivolous or vexatious etc. The Court may also modify at any stage any matter that
delays the fair trial or abuses the process of the court.

The rules of interpretation to be followed in interpreting this provision are very simple. The
provision can be divided into discretion of the court.

The second part is mandatory (“Shall”) and orders the court to accept all the applications
necessary for the purpose of determining the real issue between the parties if it 􀂦nds that the
parties could not have raised the issue in spite of the due diligence before the commencement
of the trial. However, such discretion must be exercised by applying the judicial mind
according to the well-established principles.

Object of the rule:

The primary object of the rule is that the Courts should try the case based on the merits and
should subsequently allow the amendments which are must for assessing the real controversy
between the parties. This ensures that the injustice is not caused to the either side based on
minute omissions by the parties. The Supreme Court in the case of Haridas Girdhardas vs.
Vasadaraja Pillai held that “however negligent or careless the first omission may have been,
and however late the proposed amendment, the amendment should be allowed if it does not
cause any injustice to the other side.” A suit must be instituted before the remedy under this
rule is availed.

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The Supreme Court through Jai Jai Ram Manohar vs. National Building Material Supply
expressed that courts are meant for the purpose of doing justice and not for punishing them for
minor mistakes.

The object underlying the amendment of pleadings was laid down by Bowen, L.J, in the case
of Cropper vs. Smith “Now, I think it is a well-established principle that the object of Courts
is to decide the rights of the parties, and not to punish them for mistakes they make in the
conduct of their sake of discipline, but for the sake of deciding maters in controversy, and I do
not regard such amendment as a matter of favour or of grace.”

Nature and Scope:

The concept of amendment of pleadings can be traced back to the decision of the Privy Council
in the case of Ma Shwe Mya vs. Maung Mo Huang. The Court observed that the rules of Courts
are nothing but provisions intended for securing the ends of justice and all those rules must be
subordinate to achieve that purpose. For that to be achieved, full powers of amendment must
be enjoyed and liberally exercised by the courts and it has added a caveat that an amendment
cannot be made to substitute one cause of action for another.

Order I, Rule 10 confers the power to the court either to add or strike off a party to the suit.
The right of the court either to add or subtract the parties can be exercised either suo moto or
by an application of the party.

The situations wherein the amendments to the pleadings should or should not be allowed cannot
be laid down by a court of law in a straight jacket formula. It must be decided on case-by-case
basis. However, this rule applies to other proceedings such as execution proceedings,
arbitration proceedings, petitions under Special Marriage Act etc.

Leave To Amend When Granted:

The general rule is that the leave to amend will be granted so as to enable the real question on
issue between the parties to proceedings if such allowance enables the court to decide the real
matter in controversy. Provided that, it does not cause injustice to the other party. In Suraj
Prakash vs. Raj Rani, the Supreme Court held that liberal principles should guide the court in
the exercise of discretion in allowing amendment. It said that the multiplicity of proceedings
should be avoided and the amendments which might change the character of the case must not
be allowed. It also added a caveat that the subject matter of the suit must not be changed by
that.

Though the courts were granted unfettered discretion to decide whether to grant the amendment
or not, but it is subjected to misuse. The classic rule is, the wider the discretion, the greater the
misuse. This power of the courts must be exercised properly, reasonably and non-arbitrarily.

The amendment can be simply refused when it is not necessary to determine the real question
in controversy. The leading decision on this point is Edwian vs. Cohen. In this case, A’s
furniture was wrongfully removed by B and C. A filed a suit against B for damages and later
he sued C for the same wrong. Later, C sought an amendment that judgment against B is bar

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against the suit against him. The application was rejected as it was not necessary to decide the
real issue in controversy.

Introducing New and Different case:

The application to amend will be rejected if that seeks to introduce new and different case.
Steward vs. North metropolitan Tramways Company. In this case, the plaintiff filed a suit
against the company for negligence in running the tramways in defective condition. It was not
amendment was rejected and the company was held liable.

This case laid down the rule that if the amendment of the written statement wholly displaces
the position of the plaintiff, then the amendment should not be allowed.

In K. Venkateswara Rao vs. B.N. Reddi, the Supreme Court held that the courts have wide
powers to amend the plaint under order XI Rule 17, but those powers are subject to Law of
Limitation. Material facts and important particular must be included in the pleadings based on
which the Court ventures ahead to decide the suit. But, most of the times, the parties find it
inconvenient not to amend the pleadings. They seek to adduce new evidence, to add fresh
information, which are exclusively gathered by them. It might be a case where one party must
amend the pleadings in view of the documents disclosed by the opposite party, thus 66aruk
an66d his claim or defence.

The application to amend will be refused if it proposes to take away the legal rights of the other
party accrued in his favour.

The English case on this subject is Weldon vs. Neal. In this case, A filed a suit against B for
slander. Later, he sought to amend the plaint adding the additional charges of assault and false
imprisonment. But, they were barred by limitation on the date of application. This proposed
amendment was refused since it would take away the other party’s legal right i.e the defense
under the law of limitation. Claimed only the title of over the disputed property, but they did
not claim consequential relief of possession. Hence, Privy Council, even though the application
was submitted after the limitation period expired, accepted it holding that there is no ground
where the plaintiffs could have acted with mala 􀂦de intention.

The case of Kishan Das vs. Rachappa was one where the amendment was allowed on the
ground that circumstances of the case are very particular that it should be considered as an
exception to the general rule. The facts are that A alleging that he brought a capital of Rs. 4000
to the partnership firm operated with B and sues for dissolution of partnership and the accounts.
After the examination of the proceedings in the court of first instance by the Bombay High
Court, it felt that A initially intended to plead for recovery of money and not dissolution. Here,
the evidence was taken and the issues were framed only with reference to the recovery of
money. The same court refused to allow the amendment as it found that the agreement between
A and B does not constitute partnership. Later, he appeals from that decree seeking to amend

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the plaint but at that date, the laws of limitation came into action. The Court felt that the
amendment should be allowed for the point of limitation could not have been taken if the
pleading was not defective. The other amendments which cannot be allowed by the court of
law are the ones forbidden by law and the ones which are not bona fide.

For instance, in Shiv Gopal Shah vs. Sita Ram Sarongi , the case was that the defendant set up
the claim of rival title on the basis of sale of property through sale deed. The plaintiffs along
with co-plaintiffs, remained silent for more application.

The proceedings cannot be amended if the party introduces a new case or lets in new evidence
and if the court feels that the amendment leads to unnecessary complications. The court may
refuse to allow the amendment if it feels that the party had several opportunities and had slept
over his rights. The amendment in a pleading cannot be claimed as a matter of right.

While considering the application for amendments should or should not be allowed, the courts
should not go into the correctness or falsity of the case in the amendment. When the amendment
application is accepted by the court, then normally an opportunity should be given to the
opposite party to file objections of the same. But of the amendment is formal in nature, then
the notice is not necessary.

Interpreting at any stage of proceedings:

Under Order 6, Rule 17, the courts were given power to amend the proceedings “at any stage
of the proceedings” which simply means that the amendment applications are not governed by
the law of limitations Narayana Pillai vs. Parameswaran Pillai . The object of inserting such
clause is to serve the ends of justice by determining the exact controversy between the parties.
The court may accept the application of amendment before, during or after the trial, after the
decree, in first appeal or in the second appeal or in the revision or in the High Court or in the
Supreme Court. That list even extends to the execution proceedings. The court must keep in
mind that complete justice must be done to the “not raiding the plea for the span of eight years,
a great prejudice was caused to the appellant”.

The proviso adduced to the provision by way of amendment in 2002 merely limits the power
of the court and does not allow the court to allow amendment after the commencement of the
trial unless it comes to the conclusion that in spite of due diligence, that matter could not be
raised by the party before the commencement of the trial.

Pre-trial and post-trial amendments:

Pre-trial amendments are more liberally allowed the post-trial amendments. The reason is that
in the formal cases, it is assumed that the opposite party is not said to be prejudiced as he has
full opportunity of meeting the case put forward by his opponent. In the latter cases, the
question of prejudice may arise and must be dealt carefully.

Doctrine of relation back:

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If an amendment is incorporated in a pleading, the Court has the power to direct in appropriate
cases that such particular amendment does not relate back to the date of the institution of the
suit in the interest of justice. This was stated by the Supreme Court in the case of Sampath
Kumar vs. Ayyakanu. The Supreme Court made it mandatory that the party seeking to amend
the pleading should mention in the application specifically as to what is to be altered or
substituted in the original pleadings[xxiv]. After a close the plaint and this was after the
commencement of the trial.

Here, the Supreme Court stated that notwithstanding that the application to amendment was
proposed after the commencement, the proposed amendment is needed for bringing into the
fore the real controversial between the parties.

The Madras High Court in the case of Hi Sheet Industries vs. Litelon Ltd. said that the proviso
to the rule is applicable only to the pleadings instituted with effect from 01-07-2002 and not in
prior to this.

The Supreme Court in the case of Laxmidas vs. Nanabai explained the law on the amendment
of the pleadings. It said that the court can refuse to entertain the application for amendment if
it feels that it restraints the other party’s legal rights which are accrued to him by lapse of time.
But, it said that this rule could be applied only when fresh allegations are added by the process
of amendments and not in the cases where amendments are sought to clarify an existing
pleading where it does not add or subtract any substantial material relevant to the proceeding.
Hence, the law before the 1999 amendment was that the court has unlimited power of allowing
the amendments to be made in the cases where it merely clarifies the original pleading. Hence,
in a case of misdescription of plaintiff, the plaint can be amended at any time for the purpose
of rectifying it and the question of limitation does not arise in that case.

Amendment to written statements:

The principles that apply to amendments of pleadings also apply to the written statements. The
Supreme Court in the claim. The Supreme Court said that there is no counterpart in the
principles relating to the amendment of the written statement. Hence, the Court said that
addition or substitution of written statement would not be objectionable whereas adding or
subtracting the cause of actions by the plaint may be objectionable.

Hence the Apex Court in this case held that the courts should be more liberal in allowing the
applications for the amendment of the written statements that in the case of plaints as question
of prejudice would be more in the former case. See also Narayana Pillai vs . Parameswaran
Pillai.

Amendments based on subsequent events:

The question which always perturbed the judicial minds is whether amendments can be allowed
on the basis of events which happened subsequent to the suit. The law is well settled that though
the rights of the parties have to be decided on the date of the suit, the courts can in the interest

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of the justice take notice of the subsequent events and make appropriate amendments. The
Andhra Pradesh and Madras High Courts have said that applications for amendments which
seek to oust the jurisdiction of the courts must not be allowed.

Effect of 2002 Amendment

On the recommendation of The Law Commission, the CPC was amended in 2002, limiting the
power of courts in granting the amendments after the commencement of the trial. With the
proviso provides that no application for amendment must be processed by the court after the
commencement of the trial, unless the courts come to the conclusion that in spite of the due-
diligence of the parties, they could not have raised before the commencement. But, the issue
of deciding whether the parties in spite of due diligence could have raised the prayer or not
depends on the facts and circumstances of the each case. This amendment is trying to limit the
powers of the court to some extent, nonetheless, the courts have unfettered powers in the cases
of the unforeseen situations. This provision has been already subjected to the judicial scrutiny
by the courts in India.

The Andhra Pradesh High Court in the case of E. Prasad Goud vs. B. Lakshamana Goud held
that the proviso is not a complete bar nor shuts out entertainment of any later application if the
court finds that a party in spite of due diligence could not raise the plea.

The Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of
India upheld the validity of the provision and said that its object is to prevent frivolous
applications filed to delay the process of trial.

The Supreme Court in Baldev Singh case held that the term “commencement of the trial” must
be used in limited sense as meaning final hearing of the suit, examination of the witnesses,
filing of the documents and addressing the documents.

In Sampath Kumar vs. Ayyakannu[xxxvii] , the plaintiff filed a suit against the defendant for
prohibitory injunction. But, before the commencement of the trial, he was dispossessed of the
property and after eleven years, he moved an application seeking amendment of the plaint
claiming possession. The defendant claimed that this would change incorporated in the pending
suit.”

The court also placated the defendant by saying that “in the interest of the defendant, the new
reliefs sought for are considered by the court to be deemed to be made on the date on which
the application seeking amendment was filed”

In another interesting case Nagappa vs. Gurdayal Singh, the facts are that plaintiff suffered
injuries in an accident and filed an insurance claim of one lakh. But, in the Apex Court he
enhanced his claimed to five lakh. The Supreme Court granted him relief stating that when
there is sufficient evidence on record justifying the enhanced compensation for medical
treatment, the same should be granted. In this type of cases, the court said that there is no
question of introducing a new or inconsistent cause of action.

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Hence, the courts, in case they want to do justice to the parties, do not consider themselves to
be restricted by any legislation.

Conclusion

The law of amendment of pleadings is settled by the Supreme Court. The Courts started with
the rule of law that there must not be any restriction on the powers of the courts be it law of
limitation or after the commencement of the proceeding, for securing the ends of justice and to
minimize the harm caused to the opposite party. The Courts have been very active in this area
developing the law time and again to suit to the various time frames. However, the legislators
themselves thought that discretion should be granted to the courts whether to allow the
amendment or not to decide the matter in issue. The discretion is vested on the courts, there is
a possibility of misuse. There was a Law Commission Report stating that this provision of the
amendment was used on a large scale and hence it needs to be restricted.

In 1999, efforts were made to eliminate this provision but could not be brought into force. Due
to a lot of protests from the legal practitioners, this was restored back in the 2002 CPC
Amendment. But, now a small caveat was adduced to the proviso with a view to limit the
unrestrained power of the courts in allowing or refusing the amendments. This was that the
court shall allow the amendments to the pleadings only if it feels that the parties could not have
raised before in spite of their due diligence. By the literal reading of the provision, it appears
that that the power of the Courts is restricted. But, a simple glance at the judgments pronounced
since 2002 discussed in the above sections shows that the Courts continued to exercise the
unbridled power even after the amendment for securing the ends of justice. This is bold judicial
activism that has reached great heights and did not erode the faith entrusted by the citizens in
the judiciary.

16. WRITTEN STATEMENT:

Order VIII Rule 1 of the Code of Civil Procedure envisages the filing of the written statement
by the defendant within 30 days from the date of service of summons on him. Without filing
written statement, as per the current Code of Civil Procedure, no defendant has got right to
participate in the proceedings. It is therefore, just and necessary to call the case on the 30th day
in the court to verify as to whether the written statement is filed or not. If there is default, the
Court has to exercise its discretion to proceed ex parte, unless, the court itself intends to call
upon the defendant to file written statement under Order VIII Rule 9 of the Code of Civil
Procedure. Mechanically, without judicial application of mind, the matter should not be
adjourned beyond 30 days. On application filed by the defendant, time could be extended for
filing written statement up to 90 days; on the 90th day, if no written statement is found filed,
the court without waiting for the plaintiff to make prayer to set exparte the defendant, should
proceed with the matter exparte. If there is any application for further extension of time, the
same should be considered on merits, as per the dicta laid down by the Hon’ble Apex Court in
this regard. The following decisions of the Hon’ble Apex Court could fruitfully be cited relating
to filing of written statement.

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17. 2009 (3) SCC 513 (Mohammed Yusuf vs. Faij Mohammad and others)

“4. The appellant filed an application for grant of temporary injunction which was rejected on
28.1.2004. An appeal was preferred there against which was disposed of by an order dated
14.05.2004. It is neither in doubt nor in dispute that the respondent-defendants filed
applications for extension of time for filing written statement a number of times. The matter
was also adjourned on one ground or the other.

5. On or about 31.1.2005, the appellant also filed an application before the learned trial Judge
for pronouncing judgment in terms of Order 8 Rule 10 of the Code of Civil Procedure, inter
alia, on the premise that the respondent defendants did not file any written statement. It is on
the same date the defendants filed an application for filing written statement. No application
for condonation of delay in filing the written statement was however, filed. However, on
23.9.2005, as indicated hereinbefore by reason of an order dated 24.10.2005, while rejecting
the said application of the respondents, the trial Judge allowed the plaintiff to examine his own
witnesses in support of his case.

9. It is urged that the provisions of Order 8 Rule 1 of the Code of Civil Procedure having been
held to be directory in nature by this Court in Kailash v. Nanhku, this Court may not exercise
its discretionary jurisdiction under Article 136 of the Constitution of India. Order 8 Rule 1 of
the Code of Civil Procedure reads thus:

“1. Written statement – The defendant shall, within thirty days from the date of service of
summons on him, present a written statement of his defence:

Provided that where the defendant fails to file the written statement within the said period of
thirty days, he shall be allowed to file the same on such other day, as may be specified by the
Court, for reasons to be recorded in writing, but which shall not be later than ninety days from
the date of service of summons”.

Although in view of the terminologies used therein the period of 90 days prescribed for filing
the written statement appears to be a mandatory provision, this Court in Kailash upon taking
into consideration the fact that in a given case the defendants may face extreme hardship in
not being able to defend the suit only because he had not filed written statement within a period
of 90 days, opined that the said provision was directory in nature. However, while so holding
this Court in no uncertain terms stated that the defendants may be permitted to file written
statement after the expiry of period of 90 days only in exceptional situation.

10. The question came up for consideration before this Court in M.Srinivasa Prasad vs.
Comptroller and Auditor General of India, wherein a Division Bench of this Court upon
noticing Kailash held as under:

“7. Since neither the trial court nor the High Court have indicated any reason to justify the
acceptance of the written statement after the expiry of time fixed, we set aside the orders of the
trial court and that of the High Court. The matter is remitted to the trial Court to consider the
matter afresh in the light of what has been stated in Kailash case. The appeal is allowed to the
aforesaid extent with no order as to costs”.

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11. The matter was yet again considered by a three-Judge Bench of this Court in (R.N.Jadi &
Bros. V.Subhashchandra). P.K.Balasubramanyan, J., who was also a member in Kailash in his
concurring judgment stated the law thus:

“14. It is true that procedure is the handmaid of justice. The court must always be anxious to
do justice and to prevent victories by way of technical knockouts. But how far that concept can
be stretched in the context of the amendments brought to the Code and in the light of the
mischief that was sought to be averted is a question that has to be seriously considered. I am
conscious that I was a party to the decision in Kailash v. Nanhku1 which held that the provision
was directory and not mandatory. But there could be situations where even a procedural
provision could be construed as mandatory, no doubt retaining a power in the court, in an
appropriate case, to exercise a jurisdiction to take out the rigour of that provision or to mitigate
genuine hardship. It was in that context that in Kailash v. Nanhku1 it was stated that the
extension of time beyond 90 days was not automatic and that the court, for reasons to be
recorded, had to be satisfied that there was sufficient justification for departing from the time-
limit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code.
Kailash1 is no authority for receiving written statements, after the expiry of the period
permitted by law, in a routine manner.

15. A dispensation that makes Order 8 Rule 1 directory, leaving it to the courts to extend the
time indiscriminately would tend to defeat the object sought to be achieved by the amendments
to the Code. It is, therefore, necessary to emphasise that the grant of extension of time beyond
30 days is not automatic, that it should be exercised with caution and for adequate reasons and
that an extension of time beyond 90 days of the service of summons must be granted only based
on a clear satisfaction of the justification for granting such extension, the court being conscious
of the fact that even the power of the court for extension inhering in Section 148 of the Code,
has also been restricted by the legislature. It would be proper to encourage the belief in
litigants that the imperative of Order 8 Rule 1 must be adhered to and that only in rare and
exceptional cases, will the breach thereof will be condoned. Such an approach by courts alone
can carry forward the legislative intent of avoiding delays or at least in curtailing the delays
in the disposal of suits filed in courts. The lament of Lord Denning in Allen v. Sir Alfred
McAlpine & Sons14 that law’s delays have been intolerable and last so long as to turn justice
sour, is true of our legal system as well. Should that state of affairs continue for all times?”

12. In view of the authoritative pronouncements of this Court, we are of the opinion that the
High Court should not have allowed the writ petition filed by the respondents, particularly,
when both the learned trial Judge as also the Revisional Court had assigned sufficient and
cogent reasons in support of their orders.

13. As indicated hereinbefore, the High Court allowed the writ petition and thereby set aside
the orders passed by the trial Court as also the Revisional Court without assigning any reason
therefore. The jurisdiction of the High Court under Articles 226 and 227 of the Constitution of
India is limited. It could have set aside the orders passed by the learned trial Court and the
Revisional Court only on limited grounds, namely, illegality, irrationality and procedural
impropriety. The High Court did not arrive at a finding that there had been a substantial failure

72
of justice or the orders passed by the trial Court as also by the Revisional Court contained
error apparent on the face of the record warranting interference by a superior court in exercise
of its supervisory jurisdiction under Article 227 of the Constitution of India.

14. For the reasons stated above, the impugned judgment of the High Court cannot be
sustained. It is set aside accordingly. The appeal is allowed. In the facts and circumstances of
this case, there shall be no order as to costs.”

Rule 6:- – Particulars of set-off to be given in written statement

1. Where in a suit for the recovery of money the defendant claims to set off against the
plaintiff’s demand any ascertained sum of money legally recoverable by him from the plaintiff,
not exceeding the pecuniary limits of the jurisdiction of the court and both parties fill the same
character as they fill in the plaintiff’s sit, the defendant may, at the first hearing of the suit, but
not afterwards unless permitted by the Court, present a written statement containing the
particulars of the debt sought to be set-off.

2. Effect of set-off – The written statement shall have the same effect as a plaint in a cross suit
so as to enable the court to pronounce a final judgment in respect of both the original claim and
of the set-off; but this shall not affect the lien, upon the amount decreed, of any pleader in
respect of the costs payable to him under the decree.

3. The rules relating to a statement by a defendant apply to a written statement in answer to a


claim of set-off.

Rule 6-A Counter claim by defendant:-

1. A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, by way
of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of
action accruing to the defendant against the plaintiff either before or after the filing of the suit
but before the defendant has delivered his defence or before the time limited for delivering his
defence has expired, whether such counter-claim is in the nature of a claim for damages or not:

- provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of
the Court.

2) Such counter-claim shall have the same effect as a cross-suit so as to enable the court to
pronounce a final judgment in the same suit, both on the original claim and on the counter-
claim.

3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of
the defendant within such period as may be fixed by the Court.

4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.

2007 (7) SCC 517 (Union of India vs. Tata Teleservices (Maharashtra) Ltd.). An excerpt
from it would run thus:

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“25. It has also to be noted that while prescribing the procedure under Section 16 of the Act,
what is said is that TDSAT shall not be bound by the procedure laid down by the Code of Civil
Procedure but it shall be guided by the principles of natural justice. It is significant to note that
it is not a case of exclusion of the powers under the Code of Civil Procedure and conferment
of specific powers in terms of sub-section (2) of that section. It is really a right given to TDSAT
even to go outside the procedural shackles imposed by the Code of Civil Procedure while
dealing with a dispute before it. Therefore, it will be difficult to keep out the provisions for the
filing of a counterclaim enshrined in Order 8 Rule 6-A of the Code of Civil Procedure which
could be applied by TDSAT. The sweep of Order 8 Rule 6-A of the Code now takes in even
claims independent of the one put forward in the application if it is one the respondent therein
has against the applicant. On the whole, we are of the view that TDSAT was in error in
dismissing the counterclaim as not maintainable.”

2008 (12) SCC 392 (G.Rama vs. T.G.Seshagiri Rao (dead) by Lrs.). An excerpt from it would
run thus:

“16. On 19.08.1991 O.S.No.4949 of 1991 ie., suit for partition was filed claiming the partition.
There is no challenge to the release deed dated 17.4.1989 in the suit for partition. The appellant
took the stand that it was a joint family property and, therefore, she had half-share. No specific
issue regarding the nature of the property was framed. There was no issue relating to Section
14 (1) of the Act and there was also no evidence led in that regard. Strangely the trial court
treated the suit as one for partition though the suit was for declaration. There was no
counterclaim filed by defendant Rama. It is pointed out that Vasudeva Murthy was alive when
the trial of the suit proceeded. Before the High Court an undertaking was given to vacate the
premises which were accepted subject to filing of an undertaking which was in fact filed on
21.5.2004 after delivery of the judgment on 7.1.2004. After two years a review petition was
filed on 10.8.2006 and the same was withdrawn on 30.8.2006.”

2006 (10) Scale 150: 2006(7) Supreme Today 734 (State Bank of India vs. M/s.Ranjan
Chemicals). Certain excerpts from it would run thus:

“9. On going through the application filed by the bank and the plaint filed by the company in
the present case, we find that both causes of action arise out of a cash credit facility extended
by the bank to the company and while the claim by the bank is for recovery of amounts due
under that account, the suit of the company is for recovery of compensation based on the
alleged failure of the bank to fulfil its obligations under the cash credit facility in time and in
a meaningful manner. Obviously, if the company is able to establish its claim, the amount that
may be awarded to it by way of damages has necessarily to be set off against any amount that
may be found due to the bank on the basis of the loan transaction including the cash credit
facility extended by it to the company.

The decree to the one or the other would depend upon an ascertainment of the rights and
obligations arising out of the loan transaction and the state of the loan account. We are
therefore of the view that the two claims are inextricably inter linked. The consequences arising
out of the respective claim are referable to the cause of action arising out of the vary

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transactions between the bank and the company. We have already indicated that the claim of
the company is in essence a claim for set off and/or a counter claim, which could be tries by
the Debt Recovery Tribunal in view of the amended Section 19 of the Act.

10. A joint trial can be ordered by the court if it appears to it that some common question of
law or fact arises in both proceedings or that the right to relief claimed in them are in respect
of or arise out of the same transaction or series of transactions or that for some other reason
it is desirable to make an order for joint trial. Where the plaintiff in one action is the same
person as the defendant in another action, if one action can be ordered to stand as a counter
claim in the consolidated action, a joint trial can be ordered. An order for joint trial is
considered to be useful in that, it will save the expenses of two attendance by counsel and
witnesses and the trial Judge will be enabled to try the two actions at the same time and take
common evidence in respect of both the claims. If therefore the claim made by the company
can be tried as a counter claim by the Debt Recovery Tribunal, the Court can order joint trial
on the basis of the above considerations. It does not appear to be necessary that all the
questions or issues that arise should be common to both actions before a joint trial can be
ordered. It will be sufficient if some of the issues are common and some of the evidence to be
let in also common, especially when the two actions arise out of the same transaction or series
of transactions.

11. A joint trial is ordered when a court finds that the ordering of such a trial, would avoid
separate overlapping evidence being taken in the two causes put in suit and it will be more
convenient to try them together in the interests of the parties and in the interests of an effective
trial of the causes. This power inheres in the Court as an inherent power. It is not possible to
accept the argument that every time the Court transfers a suit to another court or orders a joint
trial, it has to have the consent of the parties. A court has the power in an appropriate case to
transfer a suit for being tried with another if the circumstances warranted and justified it. In
the light of our conclusion that the claim of the company in the suit could be considered to be
a claim for set off and a counter claim within the meaning of Section 19 of the Act, the only
question is whether in the interests of justice, convenience of parties and avoidance of
multiplicity of proceedings, the suit should be transferred to the Debt Recovery Tribunal for
being tried jointly with the application filed by the bank as a cross suit. Obviously, the
proceedings before the Debt Recovery Tribunal could not be transferred to the Civil Court
since that is a proceeding before a Tribunal specially constituted by the Act and the same has
to be tried only in the manner provided by that Act and by the Tribunal created by that Act.

Therefore, the only other alternative would be to transfer the suit to the Tribunal in case that
is found warranted or justified.

12. It is clear that in both proceedings what are involved are, the nature of the loan transaction
and the cash credit facility extended, the relationship that has spring out of the transactions,
the right and obligations arising out of them, their breach if any, who is responsible for the
breach and its extent. The same basic evidence will have to be taken in both the proceedings.
The accounts of the bank will have to be scrutinized not only to ascertain the sum, if any, due
to the bank but also to ascertain as to when and in what manner the cash credit facility was

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permitted to be availed of by the company. Of course, evidence will have to be taken on whether
there was any violation of conditions or latches on the part of the bank in fulfilling its
obligations causing damage to the company.

At least a part of the evidence will be common. Duplication of evidence could be avoided if the
two actions are tried together. If a decree is granted to the bank on the basis of its accounts,
and the damages, if any, is decreed in favour of the company, a set off could be directed and
an ultimate order or decree passed in favour of the bank or the company. In such a situation,
we are of the view that this is a fit case where the two actions should be ordered to be tried
together.

18. SUMMONS:

A summon is a document which is issued by the office of the court of justice, calling upon the
person to whom it is directed to attend before a judge or an officer of the court for a certain
purpose. It is a written order issued from the court which makes the person to whom it is issued
to legally oblige it so as to mandatory secure the attendance of that person before the court
issue it. The summons are issued to the defendant after filling of the plaint by the plaintiff, to
make him appear before that hon’ble court on the date specified and file a written statement in
his defence within thirty days from the date when the service of summons was made on such
defendant.

It is not necessary for the court to issue the summons if the defendant appears before the court
at the time when the plaintiff has filled the plaint in the court and admitted the claim of the
plaintiff.

If the defendant chooses not to admit and appear before the court to admit the claim of the
plaintiff at the time of the presentation of the plaint, then he has the following option to make
appearance in the court:

1. The defendant may appear in person, or

2. He may appear through pleader who is able to answer all material question relating to the
suit filed against him, or

3. He may appear by a pleader who is accompanied by some person who is able to all such
questions.

A judge of the court or any such officer appointed by him shall sign the summons before they
are issued to the defendant. The summons shall bear the seal of the court.

A copy of the plaint shall be annexed to the summons while serving on the defendant. If the
court has for some reason to believe that the personal appearance of the defendant is required
in the court regarding the suit filed against him, it shall then fix the date of the personal
appearance of the defendant on the summons issued against him. If the court feels same for the
plaintiff that his personal appearance is also required on the same day when the defendant is to

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make an appearance in the court, then in such case the court may make an order for the
appearance of the plaintiff also.

But the court can only make an order for the appearance of a party in person before it only if

(a) the party resides within the local limits of the Court’s ordinary original jurisdiction, or

(b) without such limits but at place less than fifty or (where there is railway or steamer
communication or other established public conveyance for five-sixths of the distance between
the place where he resides and the place where the Court is situate) less than two hundred miles
distance from the Court-house.

A summons is a legal document that is issued by a Court on a person involved in a legal


proceeding. When a legal action is taken against a person or when any person is required to
appear in the court as a witness in court proceedings, to call upon such person and ensure his
presence on the given date of the proceedings, summons is served. If the summons is not duly
served then no action can be taken against the defendant. If defendant fails to a_end court after
receiving summons, he will be ex parte by the Court. Section 27 and Order V of the Code of
Civil Procedure, 1908 (In short ‘CPC’) deal with ‘Service of Summons’ on the
defendant/Respondent. Order 16 deals with summoning and attendance of witnesses. Sections
61 to 69 of Cr.P.C deals with service of summons on accused and witness. This article is only
confined to service of summons in a Civil Proceedings. Order V of CPC contains Rules 1 to
30. These provisions deal with issue and service of summons. Under the Code of Civil
Procedure, 1908, there are different modes of effecting service of summons on defendant. It is
needless to say that non-service of summons and notices in a civil suit proceedings is a great
hurdle for speedy disposal of a civil suit. There are several reasons for non-service of summons
to defendant in time. Furnishing correct address of the defendant in the plaint would be helpful
to avoid delay in service of summons. Recently, the Courts have expanded the scope of service
of summons through information technology. We often across with the situations that in many
civil cases, defendant takes plea that summons was not duly served on him. Similarly, in
general, court often use the method of substitute of service of summons by way of paper
publication.

Order V, Rule 19-A was inserted in Order 5 w.e.f. 1-2-1977 by Amendment Act No. 104 of
1976. In order to avoid delay in actual service, the service of summons, through registered
acknowledgement due post was inserted. Sub-rule (2) of Rule 19-A is analogous to Section 27
of the General Clauses Act, 1897. The proof that a letter has been posted is usually evidence
of its delivery under section 16 of the Evidence Act.

It is the fundamental principle from the latin maxim actus curiae neminem gravabit that act of
court shall prejudice no man unless sanctioned by law. But, it is well-settled law that even in
ex parte cases, Court has to pass a reasoned order by discussing the pleadings and evidence of
the party. In our Court proceedings, we regularly see exparte decrees. Before ordering
substitute service of summons or notice, the Court must satisfy the requirements as per law. If
any decree is obtained by fraud, such decree would be null and void. Though substituted service
is a sufficient service in ordinary circumstances, Courts shall be careful to see that conditions

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enumerated in Order 5 Rule 20(1), CPC have been strictly complied with before ordering
substituted service. As to this point in our Hon’ble Division Bench in Maganti Krishna Durga
Vs. Maganti Anil Kumar – 2015 (5) ALT 346 (D.B.), it was observed that Where the husband
obtains a decree of divorce ex parte by practising fraud, husband cannot take advantage of
Section 15 of Hindu Marriage Act and remarry. Similarly, ex parte decree against defendant
has to be set aside, if he satisfies Court that summons had not been duly served or he was
prevented by sufficient cause from appearing before Court when suit was called on for hearing
However, Court shall not set aside said ex parte decree on mere irregularity in service of
summons or in a case where defendant had notice of date of hearing and sufficient time to
appear in Court Not permissible for Court to allow said application in utter disregard of terms
and conditions incorporated in second proviso to Rule 13 of Order IX CPC. Before setting
aside an exparte decree, it is important to note the limitation factor to set aside ex parte decree.
A distinction be maintained in regard to computation of period of limitation between cases
where summons was served on defendant and appearance entered in suit and set ex parte and
cases where summons was not served at all and defendant was not aware of the ex parte decree.

Mode of Service of Summons on the Defendant

Under the civil procedure code, service of summons shall be made on every defendant
personally, associated with the case, unless service on each defendant has been exempted under
the code of civil procedure. Every summons shall be signed by the judge of the court or any
officer duly empowered by him to sign on his behalf.

The summons shall bear the seal of the court issuing it. In practice service of summons should
be made on the defendant in person, but where he has an agent empowered to accept service
on his behalf, in such case service on such agent shall be sufficient service on the defendant.

Address for Service:

In Andhra Pradesh, Rule 2 (a) of Civil Rules of Practice and Circular Orders, 1990 defines
‘Address for Service’. Rule 7 of CRP deals with Service of notice. Under 11 [8 (2) & (New)
of CRP, Every pleadings shall contain the address for Service. The address for service shall
contain particulars such as the Municipal or Panchayat number of the house, name of the street
and locality. Procedure for service of Summons/notice: – It was provided in Rule 7 of CRP.
Under this rule, except where otherwise provided by the Code, or these Rules, or any law for
the time being in force, any notice, directed to be given to any party shall be in writing and
may be served by the party or his Advocate on the other party, or his Advocate personally, or
be sending the same by post in a registered post cover “ACKNOWLEDGEMENT DUE, OR
BY SPEED POST OR BY AN APPROVED COURIER SERVICE OR BY FAX MASSAGE
OR BY ELECTRONIC MALE SERVICE OR BY SUCH MEANS” to the address for service
of the party or his Advocate. Under Rule 7 (3), the District Judge shall prepare a panel of
courier services for the Courts situated at the District Head Quarters for sending summons,
notices and other process by such courier service. Under Order 7 and Order 6 CPC, it is the
duty of the plaintiff to furnish in the full cause title and separate and independent addresses
which are known as registered address for service of all the defendants.

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Need of making rules and regulations for service of summons and notices through
electronic means: In this computer era, usage of mobiles and computers has been increasing
day by day. So many Apps are being introduced day by day and social media is now become
more powerful tool even for common people. Within fraction of seconds, messages are being
communicated among the people because of recent computer technology. Sending messages
by E-mail, Whatsapp, Telegram, Slack etc., became easy task to all age groups. The concept
of E-courts has been praying vital role in judiciary and is making efforts for computerization
of all courts in India. Now, the Hon’ble Supreme Court expanded the scope of electronic media
in judiciary. But, information technology and notices is not being properly used by all the courts
in service of summons because the court system does not have the facility to effect the service
through electronic mode. Provisions under Part X of the Code of Civil Procedure, 1908 (5 of
1908) and Order V, Rule 9 of the Code of Civil Procedure, 1908 enables the High Court to
make rule and regulations in this regard. The Delhi High Court has also made rules regarding
the service of legal notices through email by the virtue of above legal provisions and other
provisions which enables it in this regard.

Summons/Notices through E-mail:- The Hon’ble Supreme Court of India, in Central


Electricity Regulatory Commission Vs. National Hydroelectric Power Corporation Ltd., (2010)
10 SCC 280], permitted the service of Notice by email along with the ordinary mode of serving
notice. In Ksl and Industries Ltd., Vs Mannalal Khandelwal and the State of Maharashtra,
(Criminal Writ Petition No. 1228 of 2004), The Hon’ble Mumbai High Court held that to avoid
the delay in legal proceedings because of unserved summons must be interrupted by using all
the practical methods and services including emails. Summons through e-mail is permitted in
In Indian Bank Association & Ors vs Union Of India & Anr (2014) 5 SCC 590.

Summons though Whatsapp:- In Tata Sons Limited & Ors vs John Does, CS(COMM)
1601/2016, His Lordship Justice Rajiv Sahai Endlaw of the Hon’ble Delhi High Court
permitted the right to serve summons to the defendant via Whatsapp texts as well as by emails
to a defendant. In a recent case, Justice Surabhi Sharma Vats of the Delhi High Court allowed
a woman to serve the summons to her estranged husband who was living in Australia via
Whatsapp. Moreover, the court considered “double-tick” as valid delivery of summons. In
another case, Bhim Rathke vs Mr. R.K. Sharma on 22 February 2018 Special Judge of Patiala
House Courts, New Delhi dismissed the application of complainant who sought the usage of
email and Whatsapp for serving summons. Rejecting the application, the Hon’ble Court
pointed out that the court system does not have the facility to effect the service through
electronic mode. Curiously enough, it is important to note that claiming the usage of Whatsapp
or email is not a matter of right of the applicant rather it is the discretion of the court to grant
permission for the same. Now-a-days, Computer technology is being advanced day by day,
people can take the help of techno experts to escape any problem which involves technology.
The problem is such that there are various hacked versions of Whatsapp, e-mail etc. in this
computer era.

However, it cannot be claimed as a matter of right by the applicant because Indian laws
explicitly do not allow it but at the same time, the interpretation of statutes lies with the court
which allows judges to expand the law.

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Service of Summons Abroad:-

International service of foreign judicial and extrajudicial documents is governed in general by


the 1965 Hague Service Convention. Prior to the enactment of the Hague Service Convention,
service of process in civil cases was generally effected by a letter rogatory, a formal request
from the court in the country where proceedings were initiated or underway to a court in another
country where the defendant resided.

In our country, Order V Rule 25 CPC deals with service where defendant resides out of India
and has no agent. Order V Rule 26 provides the procedure to service in foreign territory through
Political Agent or Court. Order V Rule 26-A provides that summons to be sent to officers of
foreign countries.

But, in reality, to serve a notice or summons, practically, in total, one would need to plan for
about 4- 5 months for effecting service of summons in a foreign country. In civil or commercial
matters, some countries (like Canada, Australia) charge a fee for serving summons. Most of
the parties to the litigation in India do not know the procedure how to contact Indian Embassy
or Consulate to get details in this regard. India is a signatory to the Hague Convention on the
Service Abroad of Judicial and Extra-Judicial documents in Civil and Commercial Matters.
The formal method for service in India with effect from August 1, 2007 is pursuant to the
Hague Convention. According to this, Indian made certain declarations such as documents for
service must be written in the English language; documents cannot be served via mail;
documents must be served in India indirectly via proper authority; and documents under the
Hague Convention cannot be served directly to the defendants in India by private judicial
officer.

Procedure when defendant refused to accept service, or cannot be found:

Order V rules 17 and 19 of CPC is relevant to answer this question. “Where the defendant or
his agent or such other person as aforesaid refused to sign the acknowledgement, or where the
serving officer, after using all due and reasonable diligence, cannot find the defendant, who is
absent from his residence at the time when service is sought to be effected on him at his
residence within a reasonable time, and there is no agent empowered to accept service of the
summons on his behalf, nor any other person on whom service can be made, the serving officer
shall affix a copy of the summons on the outer door or some other conspicuous part of the
house in which the defendant ordinarily resides or carries on business or personally works for
gain, and shall then return the original to the court from which it was issued, with a report
endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances
under which he did so, and the name and address of the person (if any) by whom the house was
identified and in whose presence the copy was affixed.” Rule 19 provides that where a
summons is returned under r. 17, the court shall, if the return under that rule has not been
verified by the affidavit of the serving officer, and may, if it has been so verified, examine the
serving officer on oath, or cause him to be so examined by another Court, touching his
proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either
declare that the summons has been duly served or order such service as it thinks fit.

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Presumptions as to service of summons:

Order 5, proviso to Sub-rule (2) of Rule 19A of C.P.C. provides that where the summons are
properly addressed, prepaid and duly sent by registered post with acknowledgement due,
notwithstanding the fact that the acknowledgement having been lost or mislaid, or for any other
reason, has not been received by the Court within thirty days from the date of the issue of the
summons, the Court shall presume that notice is duly served. Further, Second 27 of the General
Clauses Act, 1897 provides similar provision. The presumptions are rebuttable. It is always
open to the defendants to rebut the presumption by leading convincing and cogent evidence.

It is settled law that once the letter is sent through registered post at correct address and AD
card is received back bearing some signatures, the presumption is drawn about its service upon
the addressee unless the same is rebutted. It is held by Hon’ble High Court of Delhi in Smt.
Bhavneshwari Devi Vs. Kalyan Singh, 1993 (2) RCR (Rent) 330 that presumption of service
arises in law if the acknowledgement card of registered post is received back bearing signatures
of someone. The Hon’ble Supreme Court has gone even a step further and held that even if the
acknowledgement card is lost or does not come back for any reason, the presumption of service
could still be drawn.

In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India – 2005 (6)
ALT(D.N.)(SC) 22.4 ( F.B. ). Y.K. SABHARWAL and D.M. DHARMADHIKARI and
TARUN CHATTERJEE,jjj, the Hon’ble Full Bench observed that as per Amendment Act of
1999, defendant has to file written statement within thirty days from date of SERVICE OF
SUMMONS on him Rigor of this provision was reduced by Amendment Act of 2002 enabling
Court to extend time for filing written statement. Extension can be maximum for 90 days
Provision of Order VII! Rule 1 providing for upper limit of 90 days, held, is directory.

When the exact date of service of summons is not with the Court:- In Mirza Liyaquath Hussain
v. G. Srinivas Goud – 2005 (5) ALT 211, it was observed that Prescribed period of 90 days be
computed from the date of service of suit summons and not from the date of knowledge of
filing suit by defendant. Rejection to receive wri_en statement on the ground that it was filed
beyond 90 days from the date of receipt of notice in an interlocutory application filed under
Order 38 Rule 5, CPC and his participation therein and from the date of issuance of suit
summons is held to be erroneous. Date of service of suit summons is the date for computing
90 days period. Exact date of service of summons is not before Court. Even if first date of
hearing is taken as starting point, written statement was filed within time. Petition filed seeking
permission to file written statement is allowed.

Proof of service of summons in divorce O.P.:

Service of summons in divorce o.p. on wife is proved by examining process server and marking
copy of summons which bears the signature of wife.

Before permitting substituted service, Court must be satisfied:- As was held in Chandergupt
Arora v. Smt.Shaheen Khan and others – 2009 (6) ALT 451, before permitting substituted
service, Court must be satisfied that either the defendant is purposefully avoiding receipt of

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summons or having regard to facts of the case, it is not possible to serve notice – Substituted
service cannot be permitted on the sole ground that premises of defendant were locked at a
given point of time.

Service of suit summons to adult member:

When adult female members of defendants refused to receive suit summons, a conclusion can
be drawn that summons are served on defendants in view of Order 5 Rule 15, CPC.(Para 29)(2)
Irregularity in service of summons – Even though suit summons would have been attempted to
be served giving sufficient time to defendants to appear at the hearing, in view of second
proviso to Order 9 Rule 13, CPC, the ex parte decree should not be set aside by Court on an
assumed irregularity in service of summons if the defendants had notice of date of hearing and
had sufficient time to appear and answer the plaintiff’s claim.

Service of summons under order 5 rules 1 and 20:

Summons issued to the appellant were returned un-served – as per the nazarath and the
endorsement of postal authorities, reason for non-service of summons is non-availability of the
appellant when the summons were about to be served – despite the correct address given, no
steps were taken by the plaintiff in the present suit to serve the appellant on correct address.

Substituted service: For ordering substituted service as per Order 5 Rule 20, CPC it must be
shown that the respondent/defendant is keeping out of the way for the purpose of avoiding
service or that for any other reason, the summons cannot be served in the ordinary way.

A court may effect substituted service of summons on a defendant in one of two


circumstances:-

1. Where the defendant is purposely avoiding the service of summon on him and the court
issuing the summons believes that the defendant is doing such an deliberately, or

2. Due to some reason the summons cannot be served on the defendant in the way it is ordinary
served,

The court shall make the order for the substituted service. Substituted service is effected by
affixing the copy of the summons in some conspicuous place in the Courthouse and a copy of
such summons must also be affixed upon some conspicuous part of the house (if any) of the
defendant, where such defendant has last known to have been resided or have last carried on
business or have worked personally for gain. In addition to these methods if the court finds that
there are such other effective methods of serving the substituted summons it make an order to
that effect.

If the court decides to serve the summons by an advertisement in a newspaper, the newspaper
shall be a daily newspaper circulating in the locality in which the defendant is last known to
have actually and voluntarily resided, carried on business or personally worked for gain.

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6.3.2.9 Effect of substituted service

Where the court makes an order for substituted service it shall have the same effect as that of
personal service. It shall be deemed that the defendant has been served personally. Where the
court makes an order for substituted service, the time for the appearance of the defendant should
be prefixed in the substituted summons.

In the case of Solaiman Moosaji v. Jatindra Nath, the Hon’ble court has held that, “substituted
service is not to be used in any way which is unbusinesslike and ridiculous”.

There are numerous ways of effecting substituted service on the defendant provided under the
Code of Civil Procedure. In addition to it the court has been given wide discretion to effect
substituted service in ‘any other such manner as the court thinks’, which may by notice in a
newspaper or by a registered letter or in any other mode the Court may seem just. However the
manner chosen for substituted service should not be absurdity. For example a person living
abroad can properly be served by registered post. It would be an absurdity to have substituted
service against him by putting up a notice in the Court-house or by publishing it in any local
newspaper. The main aim of effecting service of summon on the defendant is to let him know
that a claim has been initiated against him in the court.

When, therefore, the substituted service on the defendant is not effective, that is to say where
it does not give the defendant information of the suit filed against him, it cannot be said that
the defendant was duly served within the meaning of Order 5, Rule 20 (1) of Civil Procedure
Code.

Publication of notice in Newspaper:

When service of notice is intended by an advertisement in a newspaper, the Newspaper shall


be a daily Newspaper circulating in the locality in which the respondent/defendant is last
known to have actually and voluntarily resided or carried on business or personally worked for
gain.

Substitute service is not due service:

As per Explanation to Article 123 of Limitation Act, 1963, substitute service under Rule 20 of
Order 5, CPC shall not be deemed to be a due service. It was held in See.

Publication made by plaintiff in a news paper other than the one ordered by Court:

In Basant Singh and another v. Roman Catholic Mission – 2003 (1) ALT(SC) 1, it was held
that its publication made by plaintiff in a news paper other than the one ordered by Court.
However, both the said papers are local dailies having wide circulation in the area. Such a
publication in the circumstances of the case is a mere irregularity in service of summons. It
would not invalidate the effect of substituted service.

Service on the pleader of the defendant

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Order 3, rule 5 of the code of civil procedure provides for service of summons on the pleader
of the defendant. Pleader of the defendant may be served with the process of the court at his
office or ordinary residence on behalf of his client, provided he is duly authorized to act in the
court. Service on such pleader shall be presumed to be valid service on the party whom the
pleader is representing. The service shall be presumed to be effectual for all purpose as if the
same has been given to or served on the party in person.

Service on the recognized agent of the defendant

The Indian Code of Civil Procedure also authorizes the recognized agents of the defendant to
accept service on behalf of them. In literal sense a recognized agent is the person who is
authorized by the principal to act on his behalf. Before the court of law, the authority of the
recognized agent includes his power to speak and conduct the proceedings on behalf of his
principal. 50 Rule 1 of order 3 states that the recognized agents or the pleaders, can, subject to
the express provisions of law, make an appearance, application or act before the court on behalf
of the party. Rule 2 of order 3 provides the list of the following persons who are considered as
recognized agents in the eyes of law:

1. Persons holding powers- of –attorney which authorizes them to make and do appearances,
applications and to act on behalf of the parties.

2. Persons carrying on business or trade for and in the names of parties not resident within the
local limits of the jurisdiction of the court within which limits the appearance, application or
act is made or done, in matters connected with such trade or business only, where no other
agent is expressly authorized to make and do such appearances, applications and acts.

Where the defendant has Agent by whom he carries on business- Order V Rule 13

In case where the court issuing the summons cannot assume jurisdiction over the defendant
over a suit filed against him in that court, due to his being at some other place, then in such
case that court has the power to issue summons on his behalf on the manager or agent carrying
on business on the behalf of such defendant, within the jurisdiction of the court issuing such
summons under order v rule 13 of Civil Procedure Rules. It shall be deemed that service on the
actually defendant has been made. What is important in such case is that the manager or the
agent should be personally working or carrying on business for the defendant, when such
summons was issued on them. Such service on the manager or the agent will be deemed to be
a good service.

Service where defendant is absent from his residence

Order V rule 15 of the Civil Procedure Rules allows service of summons on any adult family
member of the defendant residing with him, not being a servant, if the defendant absents
himself from his residence and there is likelihood of his not being found out within a reasonable
time at his residence, at the time of the issuance of summons and also he has no agent who is
authorised by him to accept service on his behalf.

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All the persons whether the defendant himself, or his agent or any person served on his behalf
with the summons shall acknowledge the summons by signing it.

The serving officer shall endorse or annex, or cause to be endorsed or annexed on the original
summons served on the defendant, or his agent or other person on his behalf, a return stating
the time and the manner in which those summons were served. The officer shall also mention
the name and address of the persons identifying the person served and witnessing the delivery
or tendering of the summons on the defendant, or his agent or other person authorised to accept
the summons on his behalf.

If however, all these persons mentioned above refuses to acknowledge the service of summons
or where the defendant cannot be found in his residence within reasonable time for affecting
service on him by the serving officer after taking due and reasonable diligence, or there is no
adult person or agent of the defendant on whom service can be made, then in such cases the
service shall be made by the serving officer by:-

1. By affixing a copy of the summons on the outer door or some other conspicuous part
of the house in which the defendant ordinarily resides, or

19. By affixing a copy of the summons on the outer door or some other conspicuous part
of the place where the defendant carries on business or personally works for gain.

The serving officer shall after affixing the copy of the summons as aforesaid, return the original
summons to the court by making an endorsement on it that he has affixed the copy and must
also state the names and addresses of the persons who identified the house of the defendant and
witnessed the affixing of copy of summons. The court to whom the summons is returned under
the above rule (17), shall cause the serving officer to verify by an affidavit in case he has not
verified the return of the summons and may examine him on the oath in case he has verified
the return, may declare that the summons has been served duly or make an order as it deem fit.
The court which issued the summons may cause the serving officer to be examined by another
court for the same.

Service on the defendant residing within another court’s jurisdiction

If the defendant resides within the jurisdiction of another court, the court within whose
jurisdiction a suit has been filed against such defendant may send the summons on such
defendant, through the court ,not being the High Court, having jurisdiction over the place where
the defendant is residing. The court sending the summons may send it through any of its officer,
by post, by courier service as approved by the High Court, by electronic mail, by a fax message,
or by any other method provided in the rules made by the High Court.

Extra-Territorial service of summons on the foreign defendant under the code of Civil
Procedure

Where the defendant is outside India, but the cause of action arose within India against him, he
may be served with the summons under the Indian Code of Civil Procedure, outside Indian

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Territory ex-juris. Order v rule 25 of the civil procedure code provides service of summons on
defendant outside the territory of India. The rule is useful in the situations when the defendant
has no agent in India to accept service on his behalf and he himself is residing outside Indian ,
in such situation rule 25 of the Civil Procedure Code provides for the service of summons ex-
juris by the following methods for serving him outside the territory of India:-

1. Summons may be sent at the place of his residential address through post, where postal
communication is effective between the place where the foreign defendant is residing and the
place in which the High Court is situated, or,

2. They may be sent through courier service approve by the High court of state in India in
which the suit is filled, or,

3. Summons may sent by fax message or by an Electronic mail service on the ID of the foreign
defendant, or,

4. By any other means which may be approved by the concerned High Court by the rules made
on this behalf.

Where the defendant resides out of India and has no agent in India empowered to accept
service, the summons shall be addressed to the defendant at the place where he is residing and
sent to him by post if there is postal communication between such place and the place where
the Court is situate or by such courier service as may be approved by the High Court, by fax
message or by Electronic Mail service or by any other means as may be provided by the rules
made by the High Court.

Special rules have been made for the defendant residing in the country of Pakistan and
Bangladesh. If the defendant is residing in any of those two counties then summon may be
served over them through any court in those countries, having jurisdiction over the defendant’s
residence. Any court does not include High Court of those countries.

Provided that where any such defendant resides in Bangladesh or Pakistan, the summons,
together with a copy thereof, may be sent for service on the defendant, to any Court in that
country but not being the High Court, having jurisdiction in the place where the defendant
resides. Although public officers do not enter into private contacts, yet provision of service of
summons on the public officers is made under the code of civil procedure in other cases for the
Countries of Pakistan and Bangladesh. Service of such summons together with a copy may be
sent on such defendants residing in Pakistan or Bangladesh, according to the rules made by the
central governments in the Official Gazette of India. These rules are for defendants who are
public officers in Bangladesh or Pakistan but does not belong to the Bangladesh or the Pakistan
military, naval or air forces or is a servant of a railway company or local authority in those
countries.

Non-Service of summons:

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It was held in Maganti Krishna Durga’s case that second proviso to Order 9 Rule 13, CPC
makes it obligatory on the appellate court not to interfere with ex parte decree unless it meets
the statutory requirements, showing non-service of summons or where there is sufficient cause
for the wife not appearing before the Court.

Endorsement of process-server:

In Indu Bhushan Vs. Munnu Lal and another – 2008 (3) ALT(D.N.) (SC) 6.2 (D.B), the Hon’ble
Supreme Court held that In the case, not one but several process servers have given notice
relating to service and their endorsements were sufficient to show service of notice relating to
appeal. In N. Muthaiah and others Vs. K. Lakshmamma – 1991 (1) ALT 641, it was held that
acceptance of endorsement of process-server by Court is purely a finding of fact. The Court
cannot go into the question whether such endorsement is correct or not.

Effective date of impleadment:

In the ordinary course, impleadment of party would be from date of order subject to exception
in proviso to Section 21 of Limitation Act and further subject to service of summons.

Summary procedure:

In a suit under Order 37, CPC plaintiff shall take steps to serve summons for judgment even if
defendant entered appearance more than 10 days after service of suit summons provided an ex
parte decree was not passed by the date of such appearance.

Cancellation of decree:

In a suit for cancellation of ex parte decree, plaintiff has to prove not only non-service of suit
summons on him but also the falsity of suit claim.

Service of summons in Rent Control cases:

In Bansilal Yadav v. Suraj Chand Bhagat and others – 2007 (2) ALT 491, it was observed that
under rule 22 (4) of rent control rules, making affixure of summons on the last known place of
abode or business without making efforts to tender service in person or to serve the same on
adult member of their family or to send the same by registered post is not legal.

(2) Order of injunction by Rent Controller. Where demised building is taken possession
illegally and is demolished partly, such demolition would not determine the tenancy when the
site of the building continues to exist and Rent Controller has power to order status quo of
structures existing as on that date.

(3) Right of tenant illegally evicted – Tenant who is illegally evicted can seek restoration of
possession by filing an application under Section 8 (3) of Rent Control Rules.

Permission to defend suit: In summary suits for recovery of money under Order 37, CPC,
period of ten days to file application by defendant seeking permission to defend the suit be

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computed from the date of service of summons for judgment and not from the date of service
of suit summons.

Order 5 is applicable to Execution proceedings: It is not in dispute that the procedure


contemplated for service of notice under Order 5 is made applicable for service of notice in the
execution proceedings also. Pappasani Narayana Reddy v. Mandem Reddappa Reddy, 2004
(5) ALT 226.

Process server not making repeated efforts to effect personal service on Judgement
Debtor.:- Rule 12 of Order 5 requires that wherever it is practicable, service shall be made on
the defendant in person, unless he has an agent empowered to accept service, in which case
service on such agent shall be sufficient, thus the requirement of law is that effort must be made
to serve summons personally on the defendant (judgment debtor). In this case, it was held that
service of sale notice on J.Dr. by affixture is not a valid service under Order 21 Rule 66 (2) in
the absence of process server not making repeated efforts to effect personal service on J.Dr.
and in the absence of court ordering to follow the procedure contemplated under Order 5 Rule
20, CPC on a report of the process server.

Tenant has got right to get ex parte order of eviction set aside on the ground of non-service of
summons on him as required under law.

Postal return bearing endorsement of defendant’s refusal: When there is a postal


acknowledgment signed by the defendant that itself can be treated as sufficient service even if
the summons by post is sent initially but the endorsement by a postal employee of refusal of
the summons sent by registered post cannot be even prima facie proof of service except in a
case where the summons so sent by registered post is after the return of the initial summons
unserved. While acknowledge of service of postal notice could be made proof of service of
summons under Rule 9(3) of Order V and the refusal of the postal notice only when in
conformity with Rule 20-A, there is no provisions for declaring the summons as served when
postal notice alone is taken out initially and it bears the endorsement of refusal.

Objection as to jurisdiction- Section 21 of the Indian Civil Procedure Code

The general rule in India is that a judgment passed by a court having no jurisdiction to try the
case is nullity. If there is any doubt regarding the local, territorial or pecuniary jurisdiction of
the court to assume jurisdiction against the defendant, then the defendant should object to such
jurisdiction at the earliest in the Court of First Instance. Defendant would not be allowed to
take objection in the Appellant or the Revisional Court or when the issues got settled. However,
section 21 of the code carves out an exception to the general rule. The object of section 21 is
to protect the litigants from harassment who have bonafide and in good faith commenced the
proceedings in a court which is later on found to be wanting in jurisdiction.

As per section 21 where there is a complete failure of justice due to not taking of objection at
the earliest stage, such an objection may be allowed at the subsequent stage. The jurisdictional
defects if any under section 15 to 20 of the civil procedure code are covered by section 21. If
the defendant fails to take any objection regarding the jurisdictional defect falling under any of

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the provisions of section 15 to 20 of the civil procedure , it shall be deemed to have been waived
by the defendant.

However, it is to be remembered that where there jurisdictional defect as to the competency of


a court to try the case, it goes to the very root of the jurisdiction and it cannot be corrected. It
will be a case of inherent lack of jurisdiction.

Conclusion:

Strict compliance of the procedure under Order V of CPC is one remedies for proper service
of summons. Order V, Rule 19-A CPC is introduced in order to avoid delay in actual service,
the service of summons, through registered A.D. post was inserted. Sub-rule (2) of Rule 19-A
is analogous to Section 27 of the General Clauses Act, 1897. The proof that a le_er has been
posted is usually evidence of its delivery under section 16 of the Evidence Act. It is to be
remembered that Order 37 Rules 2 and 3 CPC provided a procedure regarding the service of
summons, that the plaint shall be accompanied along with the annexures. A Court before
ordering substituted service must state the ground on which such service has become necessary
and also must record court’s satisfaction about it. It is regular experience of lawyers and judicial
officers that defendant, sometimes, does not file written statement in time. As was held in
Mohammed Yusuf Vs. Faij Mohammad and others, 2009 (3) SCJ 517 (D.B.), defendants may
be permitted to file written statement after expiry of period of 90 days only on exceptional
situation.

Sometimes, service of summons is linked with limitation aspect. As was held in Nivasan Vs.
Peter Jebaraj and another, 2009 (1) ALT(D.N.)(SC) 22.2 (D.B.), Proceedings against defendant
shall be deemed to have begun only from the date of service of summons subject to the
provision of the Limitation Act. For some reasons, when respondent was not duly served with
notice, by reasons substitute of service notice in paper publication or otherwise, the respondent
would be set exparte. In case of dealing with setting exparte divorce decrees, it warrants slightly
liberal approach. In N. Hemamalini v. N.A. Raghu – 2008 (1) ALT 458, it was observed that
In cases relating to se_ing aside of ex-parte decree, the guiding principle would be to give
opportunity to parties to seek adjudication of dispute on merits except where one of them has
remained indifferent for a prolonged period of unexplained delay. Of course, it is always there
that Court should not refuse to condone delay if it is satisfied about the explanation offered by
party. Use of advanced technology, following the procedure established under law, is another
important tool for speedy service of summons on defendant. Each jurisdiction has rules
regarding the appropriate service of process.

20. APPEARANCE AND NON-APPEARANCE OF PARTIES:

Appearance and non-appearance is a major issue to settle a dispute between the parties. As,
mere appearance or non- appearance may determine the result of the suit. The provisions of the
Code of Civil Procedure, 1908 are based on general principle that, as far as possible, no
proceeding in a court of law should be conducted to the detriment of any party in their absence.

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It is the duty of the concerned party to appear before the trial court at a due time as the result
may turn reverse to the non-appeared party.

However, if the suit is determine at that date for the lacking of non-appearance of a party, the
affected party may have a chance to revive the suit by following the provisions of The Code of
Civil Procedure, 1908. Order-IX of the Code of Civil Procedure, 1908 enumerates the provision
of consequence(s) of appearance and non-appearance of parties in a civil litigation.

Especially, Order- IX, Rule- 2 enumerates the consequence of failure of deposit of process fees
by the plaintiff; Rule- 3 & 4 provides the consequence of non-appearance of both (Plaintiff &
Defendant) parties. Rule- 8, 9, 9A enumerates the consequences of non-appearance of Plaintiff
and lastly Rule- 6, 13 & 13A deals with the provision of non-appearance of Defendant.

Connotation Of The Word Appearance:

The word “appearance” has a well-recognized meaning and means appearance in person or
through advocate for conducting a case. So, appearance may be by a party in person or by an
advocate or by a party in person along with his advocate.

“Appearance” by a pleader within the meaning of Order IX does not, as if appearance by a


party in person means mere presence of the court; it means “appearance by a pleader” duly
instructed an able to answer all material questions relating to suit. Appearance of the parties:
Rule 1 of Order IX deals with the provision of appearance of the parties. On the day fixed in
the summons for the defendant to appear and answer, the parties shall be in attendance at the
Court-house in person or by their respective pleaders, and the suit shall then be heard unless
the hearing is adjourned to a future day fixed by the Court.

Rule 1 requires the parties to the suit attend the Courthouse in person or by their respective
pleaders on the day fixed in the summons for the defendant to appear. So the rule relates to the
appearance of the first hearing of the suit.

Thus, it is not sufficient for them to take any course, short of appearance. It is not sufficient for
the defendant to send a letter to the court or for his advocate merely to file a Vakalatnama,
while remaining absent.

Dismissal of the suit for the lacking of process fee by the plaintiff: If the plaintiff is failed to
deposit process fees to the court within the stipulated time stipulated by the court, then the suit
may dismiss as per Rule- 2 of the said Order. As per the language of the Code the provision is:
“Where on the day so fixed it is found that the summons has not been served upon the defendant
in consequence of the failure of the plaintiff to pay the court-fee or postal charges, if any,
chargeable for such service, or failure to present copies of the plaint as required by Rule 9 of
Order VII, the Court may make an order that the suit be dismissed:

Provided that no such order shall be made, if, notwithstanding such failure, the defendant
attends in person or by agent when he is allowed to appear by agent on the day fixed for him
to appear and answer he attends in person or by agent when he is allowed to appear by agent”.

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Consequences of non-appearance by the plaintiff: On the date of peremptory hearing, if the
plaintiff not appears but the defendant appears then the suit will dismiss under O- 9, R- 8.

(The rule said: “Where the defendant appears and the plaintiff does not appear when the suit is
called on for hearing, the Court shall make an order that the suit be dismissed, unless the
defendant admits the claim or part thereof, in which case the Court shall pass a decree against
the defendant upon such admission, and, where part only of the claim has been admitted, shall
dismiss the suit so far as it relates to the remainder”.)

Remedies: If a suit is dismissed under Order- 9 or 3 then the plaintiff has two-fold options to
revive his dismissed suit. Those are as follows:

21. Filing a fresh suit before the competent court, if the suit is not bar by law and

ii) The Plaintiff may files a petition under O-9, R- 4.

(The Rule- 4 is: “Where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may bring a
fresh suit, or he may apply for an order to set the dismissal aside, and if he satisfies the Court
that there was sufficient cause for, or for his non-appearance, as the case may be, the Court
shall make an order setting aside the dismissal and shall appoint a day for proceeding with the
suit”.)

This petition under O-9, R- 4 is one type of Misc. case. The case should be filed within 30 days
from the date of cancellation of such suit as per Art. 162 of the Limitation Act. However, after
the expire of that 30 days the case may be filed by virtue of Sec. 5 of the Limitation Act. The
phrase “Sufficient cause” mentioned in sec. 5 of the mentioned law means the cause, which is
beyond the control of the alleged person. It may an act of God or a mere manmade disaster.

Where there are concurrent remedies are available the duty of the concern lawyer is to choice
the best one for the benefit of the party.

If the suit is, dismiss under O- 9, r- 8; then the plaintiff have two remedies:

22. He may file a petition by swearing an affidavit to the concern court within 30 days from
the date of such dismissal along with a fees not more than Rs.1000 and

ii) He may file a fresh suit.

Order IX of the Code of Civil Procedure deals with the Non-appearance of the Parties and such
default may have the effect of the dismissal of the suit or ex-parte decision by the Courts. Now,
the law does not require the personal presence of the Parties unless especially required by the
Court. The appearance of the pleader is a deemed presence of the litigant. However, there are
instances wherein the cases are dismissed for the default caused due to the negligence of the
Counsel.

The disturbing feature of our present adversary legal system where the parties generally
appearing through Advocates, the obligation of the Parties is to select the advocate, brief him,
pay the fees demanded by him and then trust the learned advocate to do the rest of the things.

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The party may, on the other hand, be a litigant who engages an advocate with the belief that
his case will be duly represented. After engaging a lawyer, the party may remain supremely
confident that the lawyer will look after his interest. At the time of the hearing of the appeal,
the personal appearance of the party is hardly useful. Therefore, the party having done
everything in his power to effectively participate in the proceedings can, rest assured that he
has neither to go to the Court to inquire as to what is happening in the High Court with regard
to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter
when it is listed. It cannot be decided whether such non-appearance is the cause of the
negligence of the Advocate or the negligence of a litigant himself. However, every time, it
becomes a responsibility of the Court to allow such applications for restoration or appeals only
for the possibility of justice being denied to an innocent litigant.

The Hon’ble Apex Court has discussed this aspect in the case of The Secretary, Department
of Horticulture, Chandigarh and Anr. Vs. Raghu Raj and held that, “Even if there is default
on the part of advocate in not appearing at the time of hearing, Appellant shall not suffer
injustice.”

It was pleaded by one of the counsels that the appellant had engaged a counsel and were under
the impression that the lawyer will take care of the case and appear when the appeal will be
called out for hearing. It was observed that the counsel is duty bound to attend the case in Court
or to make an alternative arrangement. Non-appearance in Court without `sufficient cause’
cannot be excused.

Such absence is not only unfair to the client of the advocate but also unfair and discourteous to
the Court and can never be countenanced. At the same time, however, when a party engages
an advocate who is expected to appear at the time of hearing but fails to so appear, normally, a
party should not suffer on account of default or nonappearance of the advocate.

It is true that no Court is obliged to adjourn a case because of the difficulty of a Counsel. In
fact, it is the solemn duty of every Court to proceed with judicial business fixed for the day yet
in an appropriate case where no fault lies at the door of litigant, Court should not be in a hurry
to dismiss the case in default or for non-prosecution on account of absence of his counsel. The
Court must be considerate while dealing with an application for recall of dismissal or ex-parte
order if a justifiable cause for non-appearance of counsel was made out, the simple reason
being; ultimately, it would be the litigant who will have to suffer the consequences of the Order.

Law always requires the test of reasonableness. Meaning thereby, the cause of non-appearance
of the Advocate must be justifiable. It is the professional obligation of an Advocate to appear
on behalf of his Client or make such alternate arrangements as necessary. But, if there is no
sufficient reason and the Advocate by choice, omits to appear for a particular matter or before
a particular bench, then is the innocent litigant to suffer injustice.

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The Hon’ble Apex Court has discussed this aspect in the case of Rafiq and Anr. V. Munshilal
and Anr. It was submitted by one of the counsels that a practice had grown up in the Hon’ble
High Court of Allahabad amongst the lawyers that they remain absent when they do not like a
particular bench. It was observed, if any counsel does not want to appear in a particular Court,
that too for justifiable reasons, professional decorum and etiquette require him to give up his
engagement in that Court so that the party can engage another counsel. But, retaining the brief
of his client and at the same time abstaining from appearing in that Court, that too, not on any
particular day on account of some personal inconvenience of the counsel but as a permanent
feature, is unprofessional .This practice can only be discouraged by rejecting such applications
for restoration or appeals, as the case may be. However, the end result of every case should be
justice.

The Party who has shown faith in the judicial system must not be disappointed because of the
default of his duly engaged Advocate. The Advocates Act and other rules of the Bar Council
require an Advocate to argue the case of his Client in the best possible manner and keeping up
highest professional standards.

The Court observed, “What is the fault of the party who having done everything in his power
and expected of him would suffer because of the default of his advocate. If such appeals/
applications are rejected, the only one who would suffer would not be the lawyer who did not
appear but the party whose interest he represented. The problem that agitates before us is
whether it is proper that the party should suffer for the inaction, deliberate omission, or 93aruk
an93d93r of his agent. The answer obviously is in the negative. However, we cannot be a party
to an innocent party suffering injustice merely because his chosen advocate defaulted. “Where
neither party appears (RULE 3)

Where neither party appears, suit to be dismissed-where neither party appears when the suit is
called on for hearing, the court may make an order that the suit be dismissed. In Damu vs.
Vakrya, in a suit, A sues B and C. A and C do not appear when the suit is called on for hearing,
but B appears. The court makes an order dismissing the suit. As between A and B the order is
one under Rule 8, so as to attract the applicability of Rule 9. But as between A and C, the order
is one under the present rule, so that Rule 4 applies and not Rule 9.

Where the trial court, in its order dismissing the suit for default, merely referred to the
plaintiff’s absence and not to the defendant’s absence, the order must be construed to be one
under Order 9, Rule 3. The court cannot dismiss the suit in total merely to penalize the plaintiff
for his absence. Rules of procedure are to be so construed as to advance and not defeat the
remedy. Mere non-mentioning in the order of absence of either party would not take it out of
the purview of Rule-3.

CONCLUSION

This scenario creates a very critical position in the justice delivery system. Where, on one hand,
the Hon’ble Court is duty bound to dismiss the proceedings if sufficient reasons are not
established which has become the need of time owing to the large number of cases pending at
all stages, on the other hand the Court cannot deviate from the very own objective of the judicial

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system, i.e. Justice for all. The Court by taking a strict or technical view of the procedures
prescribed cannot cause prejudice to the innocent party who has faith not only on the Advocate
he has engaged but the ultimate faith in Judiciary that the Court, in no circumstances would
cause anything to affect the rights of the Parties. This kind of situation necessarily calls for a
new practice duly prescribed by law so that neither the innocent Party suffers due to the default
or negligence of an Advocate but the Courts can adopt the procedures meant for doing
substantial justice keeping in mind the Right to speedy trial in every case, be it Civil or Criminal
so that the faith in the Indian Judicial system remains alive.

Ex-parte Decrees:

Where a defendant absents himself from court on date of hearing mentioned in the summons
duly served on him, the court is empowered under Order 9, Rule 6(1)(a) to proceed ex parte
and to pass an ex parte decree against such defendant thereon.

Here Order 9, rule 6(1)(a) talks about the procedure when only plaintiff appears . here the order
9 rule 6(1)(a), talk about that were the plaintiff only appears and the defendant not appears
when the suit is called on for hearing then it should been seemed the procedure

23. when summon duly served – here we can say that when the summon should be duly
served, the court may make an order that the suit be heard ex-parte

Or the Order 9 rule 13, said that when an setting aside decree ex –parte against defendant .in
which the a decree is passed ex parte against the defendant, he may apply to the court by which
the decree was passed for an order to set it aside and if he satisfies that summons was not duly
served, or that he was prevented by any sufficient cause from appearing when the suit was
called on for hearing ,the court shall make an order setting aside the decree against him upon
such term as to cost payment to court or otherwise as it think fit and shall appoint a day for
proceeding with the suit.

Decree can only be given in relation to a suit. Although CPC does not define what suit means,
in Hansraj vs Dehradun Mussoorie Tramways Co. Ltd. the Privy Council defined the term suit
as “a civil proceeding instituted by the presentation of a plaint”.

Remedies against ex-parte decree

24. An application under Order 9, Rule 13

The main contention of the learned counsel for the appellant is that, when the defendant in the
suit failed to let in evidence and failed to participate in the suit proceedings further, the trial
Court ought not to have passed judgement merits under order 17 Rule 3 and instead should
have passed only an Ex-parte judgement under order 17 Rule 2 CPC. Therefore, according to
the learned counsel for the appellant, the judgements of both the courts below are to be set
aside and remitted back for fresh consideration after giving an opportunity to the
defendant/appellant to let in evidence on her behalf.

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According to the learned counsel for the appellant, the evidence First Appellate Court and
contested the appeal on merits and it was not the contention of the defendant that the judgement
is an ex-parte one and therefore, the First Appellate Court judgement is liable to be set aside
and send it back to the trial Court for re- consideration. A perusal of the memorandum of
grounds of first Appeal filed before the Lower Appellate Court will show that the appeal
challenged the decree of the trial Court on merits and their main contention before the Lower
Appellate Court was that the suit was decreed not on the strength of the plaintiff’s case but on
the weakness of the defendant’s case and therefore, the judgement should be set aside. Thus,
the question, as raised before this Court for the first time under the guise of substantial question
of law, did not arise at all in the second appeal. In 2005(4)LW 578, (cited supra), the defendant
filed an application under Order 9 Rule 13 to set aside the ex-parte decree, but, the trial Court
dismissed the application on the ground that the suit was disposed merits and the application
filed under Order 9 Rule 13 CPC was misconceived.

When this was challenged before this Court, this Court found that before the trial Court, the
plaintiff examined PW1 to PW5 in chief and they were not cross-examined by the defendant.
Hence, the plaintiff’s side evidence was closed and the suit was adjourned for the evidence on
the side of the defendant. The defendant did not let in any evidence and the trial Court passed
a judgement and decree which was held by this Court in that case that it was only an ex-parte
decree under Order 17 Rule 2 and not a judgement on merits under Order 17 Rule 3 CPC.

25. A review application u/s 114

Section 114 empowers the court to review its order if the condition precedent laid down therein
are satisfied .the substantive provision of law does not prescribe any limitation on the power
of the court except those which are expressly provided under the s.114 of the code in terms
whereof it is empowered to make such order as it thinks fit.

In another case Kalpatru Agro Forest Enterprises v. Union of India, were the question regarding
the concession in respect of and overhead charged was concluded in the earlier writ petition by
the allottees and the special leave petition in a special leave petitioner by supreme court also
dismissed.

The Code of Civil Procedure is not maintainable since the provisions of C.P.C. has noapplic
action when the scheme of compromise is being conducted under the Companies Act and that
being a special law, the provisions of Civil Procedure Code could not be invoked. Counsel
further submits that the review petition in case of judicial/quasi judicial orders is not
maintainable unless the statute/rules so permit and in absence of any provision in the Act
granting an express or implied power of review, a review could not be made and the order in
review, if passed, will be wholly without jurisdiction.

26. An appeal u/s.96

In general, an appeal lies from any decree passed by the court. (Sec. 96) In cases, where the
value of suit does not exceed Rs.10, 000. An appeal can be filed only on a question of law.

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(Sec. 96) When a decree has been passed against the Defendant as “Ex-Parte”, i.e. without his
appearance, no appeal is allowed. (Sec. 96) When an appeal is headed by two or more judges,
then the majority decision shall prevail. In case there is no majority, then the decree of lower
court shall be confirmed. In case, the number of judges in the court, where appeal is filed is
more, than the number of judges hearing the appeal, then if there is a dispute on a point of law,
such dispute can be referred to one or more judges.

Procedure For Appeal From Original Decrees (Order 41)

The appeal shall be filed in the form prescribed, signed by the appellant, along with a true
certified copy of the order. The appeal shall contain the grounds of objection under distinct
heads, and such grounds shall be numbered consecutively. If the appeal is against a decree for
payment of money, the court may require the appellant to deposit the disputed amount or
furnish any other security. A ground / objection which has not been mentioned in the appeal,
cannot be taken up for arguments, without the permission of court. Similarly any point of act
which was not taken up y the Appellant, in lower court, cannot be taken up in appeal lies only
against only those points which have been decided by the court rightly or wrongly.

27. A proceeding to set aside the decree on the ground that it has been obtained by
fraud etc. u/s 12

In a case Hari Ram v. Lichmaniya, were the suit was wrongly instituted against a person as
heir of another person and decree, a fresh suit against the real heir is not barred .were the u/s
12 its stated that were the plaintiff is precluded by rule from instituting a further suit in respect
of particular cause of action , he shall not to be entitled to institute a suit in respect of such
cause of action in any court in which this code applies.

5. An application for re-hearing of the matter on the ground of violation of the principles
of natural justice

6. In appropriate cases the inherent powers of a court may also be attracted or a writ may
lie or a revision may also lie.

Grounds

The two grounds on the basis of which an ex parte decree can be set aside under Order 9, Rule
13.

1. That the summons was not duly served, or

2. That the defendant was prevented by sufficient cause from appearing when the case was
called on for hearing.

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If either of these conditions is satisfied, the court must set aside the decree and where these
conditions are not satisfied the decree cannot be set aside. This question has to be decided on
the basis of evidence or affidavits

Summons not duly served

Prior to proceedings ex parte, a court must record a declaration of due service under Order 5
(Issue and Service of Summons) rule 19 (Examination of serving officer), this is mandatory.
Where there is nothing to show due compliance with rules 13 (Service on agent by whom
defendant carries on business) and 20 (Substituted service) of Order 5, the decree should be set
aside. Where the summons has not been duly served, the ensuing proceedings will be a nullity.

Due service refers to service which effectively brings the claim to the knowledge of the
defendant and is effected in accordance with the provisions of the code relating to service of
summons and in time for the defendant to attend and at the proper address.

By virtue of the proviso, an ex parte decree will not be set aside on the ground of irregularity
in the service of summons, when the court for reasons to be recorded, is satisfied, that
notwithstanding such irregularity, the defendant had knowledge in sufficient time to appear on
that date and answer the claim.

Sufficient cause

Where sufficient cause is shown, the decree shall have to be set aside. The term ‘sufficient
cause’ is not susceptible of an exact definition and no hard and fast rule can be laid down to
cover all possible cases and each case is to be judged upon its particular circumstances, and
where non-appearance is not intentional, a strict view should not be taken to put a party out of
court. The term sufficient cause means beyond the control of a party and cannot include cases
of extreme negligence.

Upon such terms as to costs etc.

The rule gives a wide discretion to the court in the matter of imposing conditions upon ordering
the setting aside of an ex parte decree. A court can make an order of restoration subject to
97aruk an97d of conditions, but it should clearly specify the consequences of non-fulfillment
of conditions. The court can also extend the time for 97aruk an97d of the conditions.

Effect of setting aside

Upon setting aside of an ex parte decree, the status quo ante is restored and the trial commences
de nova from the stage at which the proceedings were taken ex parte. However, where the
decree is set aside on the ground that the claim is fraudulent, the suit cannot be restored and
tried.

Dismissal of setting aside application

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In appropriate cases restoration can be made u/s 151. An appeal may lie against the dismissal
of the application in default.

Limitation

An application under Order 9 rule 13 must in accordance with the bounds of Art. 164 of the
Limitation Act 1908 be made within 30 days of the decree.

Appeal

The following types of orders can be passed under rule 13:-

1. An order setting aside the decree which is not appealable nor can it be attacked under S. 105.

2. An order setting aside the decree on certain terms which is by itself not appealable.

3. An order rejecting an application under Order 9 rule 13 is dismissed on merits; it cannot be


attacked under S. 105 before the court hearing an appeal against the decree.

4. Pending proceedings to set aside the decree, execution can be stayed.

Revision

An order setting aside an ex parte decree is not a decree. A revision against the order may lie
if the conditions of S. 115 are satisfied, as for instance, where the order is contrary to the
provisions of Order rule 13, or where the court has disposed of the application upon a
consideration of the merits of the decree, or has refused to set aside the decree despite the fact
that summons was not duly served or has disposed of the matter on an erroneous view regarding
limitation etc. However, no revision will lie if an alternate remedy is available.

Consequences of Non appearance of parties (Order 9)

The general provisions of CPC are based on the principle that both the parties must be given
an opportunity to be heard. The proceedings must not be held to the disadvantage of one party.
Order 9 lays down rules regarding the appearance and the consequences of non appearance of
a party in the hearing

Rule 1 – Parties to appear on day fixed in summons for defendant to appear and answer — On
the day fixed in the summons for the defendant to appear and answer, the parties shall be in
attendance at the Court-house in person or by their respective pleaders, and the suit shall then
be heard unless the hearing is adjourned to a future day fixed by the Court.

Dismissal of Suit

Rule 2 – Dismissal of suit where summons not served in consequence of plaintiffs failure to
pay cost— Where on the day so fixed it is found that the summons has not been served upon
the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges
(if any) chargeable for such service, or to present copies of the plaint or concise statements, as
required by rule 9 of order VII, the Court may make an order that the suit be dismissed:

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Provided that no such order shall be made, if, notwithstanding such failure the defendant
attends in person (or by agent when he is allowed to appear by agent) on the day fixed for him
to appear and answer.

Rule 3 – Where neither party appears, suit to be dismissed— Where neither party appears when
the suit is called on for hearing, the Court may make an order that the suit be dismissed.

Rule 4 – Plaintiff may bring fresh suit or Court may restore suit to file— Where a suit is
dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh
suit, or he may apply for an order to set the dismissal aside, and if he satisfies the Court that
there was sufficient cause for such failure as is referred to in rule 2, or for his non appearance,
as the case may be, the Court shall make an order setting aside the dismissal and shall appoint
a day for proceeding with the suit.

Rule 5 – Dismissal of suit where plaintiff after summons returned unserved, fails for one month
to apply for fresh summons:

(1) Where after a summons has been issued to the defendant, or to one of several defendants,
and returned unserved the plaintiff fails, for a periods of one month from the date of the return
made to the Court by the officer ordinarily certifying to the Court returns made by the serving
officers, to apply for the issue of a fresh summons the Court shall make an order that the suit
be dismissed as against such defendant, unless the plaintiff has within the said period satisfied
the Court that-

(a) he has failed after using his best endeavours to discover the residence of the defendant,who
has not been served, or

(b) such defendant is avoiding service of process, or

I there is any other sufficient cause for extending the time, in which case the Court may extend
the time for making such application for such period as it thinks fit.

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

Ex parte Proceedings

Rule 6 – Procedure when only plaintiff appears-

(1) Where the plaintiff appears and the defendant does not appear when the suit is
called on for hearing, then-

(a) When summons duly served—if it is proved that the summons was duly served, the Court

(b) When summons not duly served—if it is not proved that the summons was duly serve, the
Court shall direct a second summons to be issued and served on the defendant;

I When summons served but not in due time—if it is proved that the summons was served on
the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in

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the summons, the Court shall postpone the hearing of the suit to future day to be fixed by the
Court, and shall direct notice of such day to be given to the defendant.

(2) Where it is owing to the plaintiffs’ default that the summons was not duly served or was
not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by
the postponement.

Res Judicata under Code Of Civil Procedure, 1908

Section 11 of CPC embodies the doctrine of res judicata or the rule of conclusiveness of a
judgement, as to the points decided either of fact, or of law, or of fact and law, in every
subsequent suit between the same parties. It enacts that once a matter is finally decided by a
competent court, no party can be permitted to reopen it in a subsequent litigation. In the absence
of such a rule there will be no end to litigation and the parties would be put to constant trouble,
harassment and expenses.

Section 11 says thus:

“No Court shall try any suit or issue in which the matter directly and substantially in issue has
been directly and substantially in issue in a former suit between the same parties, or between
parties under whom they or any of them claim, litigating under the same title, in a Court
competent to try such subsequent suit or the suit in which such issue has been subsequently
raised, and has been heard and finally decided by such Court”.

Explanation I: The expression “former suit” shall denote a suit which has been decided prior
to the suit in question whether or not it was instituted prior thereto.

Explanation II. For the purposes of this section, the competence of a Court shall be determined
irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III. The matter above referred to must in the former suit have been alleged by
one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV. Any matter which might and ought to have been made ground of defence or
attack in such former suit shall be deemed to have been a matter directly and substantially in
issue in such suit.

Explanation V. Any relief claimed in the plaint, which is not expressly granted by the decree,
shall, for the purposes of this section, be deemed to have been refused.

Explanation VI. Where persons litigate bona fide in respect of public right or of a private right
claimed in common for themselves and others, all persons interested in such right shall, for the
purposes of this section, be deemed to claim under the persons so litigating.

Explanation VII. The provisions of this section shall apply to a proceeding for the execution
of a decree and reference in this section to any suit, issue or former suit shall be construed as

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references, respectively, to proceedings for the execution of the decree, question arising in such
proceeding and a former proceeding for the execution of that decree.

Explanation VIII. An issue heard and finally decided by a Court of limited jurisdiction,
competent to decide such issue, shall operate as res judicata in as subsequent suit,
notwithstanding that such Court of limited jurisdiction was not competent to try such
subsequent suit or the suit in which such issue has been subsequently raised.

The doctrine has been explained by Justice Das Gupta as follows –

The principle of Res Judicata is based on the need of giving a finality to the judicial decisions.
What it says is that once a case is res judicata, it shall not be adjudged again. Primarily it applies
as between past litigation and future litigation. When a matter- whether on a question of fact
or a question of law has been decided between two parties in one suit or proceeding and the
decision is final, either because no appeal was taken to a higher court or because the appeal
was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding
between the same parties to canvas the matter again.

Essential Elements for Res Judicata

1. The matter in issue in a subsequent suit must directly and substantially be same as in the
previous suit.

2. The former suit must have been between the same parties or between parties under whom
they or any of them claim.

3. Such parties must have been litigating under the same title in the former suit.

4. The court which decided the former suit must be a court competent to try the subsequent suit
or the suit in which such issue is subsequently raised.

5. The matter directly and substantially in issue in the subsequent suit must have been heard
and finally decided by the court in the former suit.

The onus of proof lies on the party relying on the theory of res judicata.

Exceptions to application

Res judicata does not restrict the appeals process, which is considered a linear extension of the
same lawsuit as the suit travels up (and back down) the appellate court ladder. Appeals are
considered the appropriate manner by which to challenge a judgment rather than trying to start
a new trial. Once the appeals process is exhausted or waived, res judicata will apply even to a
judgment that is contrary to law.

The provisions of section 11 of the Code are mandatory and the ordinary litigant who claims
under one of the parties to the former suit can only avoid its provisions by taking advantage of
section 44 of the Indian Evidence Act which defines with precision the grounds of such

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evidence as fraud or collusion. It is not for the court to treat negligence or gross negligence as
fraud or collusion unless fraud or collusion is the proper inference from facts.

In Beliram & Brothers and Others v. Chaudari Mohammed Afzal and Others it was held that
where it is established that the minors suit was not brought by the guardian of the minors bona
fide but was brought in collusion with the defendants and the suit was a fictitious suit, a decree
obtained therein is one obtained by fraud and collusion within the meaning of section 44 of the
Indian Evidence Act, and does not operate res judicata. The principle of res judicata in section
11 CPC is modified by section 44 of the Indian Evidence Act, and the principles will not apply
if any of the three grounds mentioned in Section 44 exists.

Failure to apply

When a subsequent court fails to apply res judicata and renders a contradictory verdict on the
same claim or issue, if a third court is faced with the same case, it will likely apply a “last in
time” rule, giving effect only to the later judgment, even though the result came out differently
the second time.

Constructive Res Judicata

The rule of direct res judicata is limited to a matter actually in issue alleged by one party and
denied by other either expressly or impliedly. But constructive res judicata means that if a plea
could have been taken by a party in a proceeding between him and his opponent, and if he fails
to take that plea, he cannot be allowed to relitigate the same matter again upon that plea. In
affect, the partly impliedly gives up the right to that plea by not pleading it in the previous suit.

This principle is embodied in Explanation IV of Section 11.

Explanation IV. Any matter which might and ought to have been made ground of defence or
attack in such former suit shall be deemed to have been a matter directly and substantially in
issue in such suit.

Ex parte decree as Res Judicata

An ex parte decree, unless it is set aside, is a valid and enforceable decree. However, the real
test for res judicata is whether the case was decided on merits. The real test for deciding whether
the judgment has been given on merits or not is to see whether it was merely formally passed
as a matter of course, or by way of penalty for any conduct of the defendant, or is based upon
a consideration of the truth or falsity of the plaintiff’s claim, notwithstanding the fact that the
evidence was led by him in the absence of the defendant. Thus, a decree may not act as res
judicata merely because it was passed ex parte.

It therefore acts a res judicata.

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Conclusion

Where a defendant absents himself from court on date of hearing mentioned in the summons
duly served on him, the court is empowered under Order 9, Rule 6(1)(a) to proceed ex parte
and to pass an ex parte decree against such defendant thereon.

Or the Order 9 rule 13, said that when an setting aside decree ex –parte against defendant .in
which the a decree is passed ex parte against the defendant, he may apply to the court by which
the decree was passed for an order to set it aside and if he satisfies that summons was not duly
served, or that he was prevented by any sufficient cause from appearing when the suit was
called on for hearing ,the court shall make an order setting aside the decree against him upon
such term as to cost payment to court or otherwise as it think fit and shall appoint a day for
proceeding with the suit.

UNIT III: PRE-TRIAL

PRESENTATION AND FILING OF THE WRITTEN STATEMENT THE NEW LAW.

-By Sri S.M. Deka

Director North Eastern Judicial Officers’ Training Institute (NEJOTI)

The Code of Civil Procedure (Amendment) Act, 1999 and the Code of Civil Procedure
(Amendment) Act, 2002 (hereinafter referred to as the Amendment Act, 1999 and the
Amendment Act, 2002 respectively), made extensive amendments to the Code of Civil
Procedure, 1908 (hereinafter referred to as the amended Code). The amendments were
considered necessary to tackle the problem of delay in dispensing Civil Justice. In several areas
of Civil Procedure time frames have been enacted. One such area is the completion of pleadings
by the parties to the suit. To expose the importance of the time frame regarding completion of
pleadings one may indicate here that before the amended Code came into force most courts
usually gave a lot of latitude to the defendant regarding filing of the written statement. The
phrase “ends of justice” acted like magic in producing dates after dates for filing of the written
statement. The mere mention of the magic phrase “ends of justice” in the application for time
was sufficient to make some Judges forget their own words in the order sheet replete with
phrases like “last chance” most last chance”, “extreme last chance”. In the matter of filing of

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Written Statement, thus, the phrase “ends of justice” was stretched to an extent where it spelled
the end of justice in some cases, hence, the amended provisions extant since 01.07.2002.

According to the law since 01.07.2002 “the defendant shall, within thirty days from the date of
service of summons on him, present a written statement of his defence. Provided that where
the defendant fails to file the written statement within the said period of thirty days, he shall be
allowed to file the same on such other day, as may be specified by the Court, for reasons to be
recorded in writing, but which shall not be later than ninety days from the date of service of
summons”. This is the provision in Order VIII Rule 1 of the amended Code. In other words the
present law is that a time frame of ninety days from the date of service of summons is the
utmost that the defendant gets to file the Written Statement. In view of this drastic change in
law one would expect that completion of pleadings has been speeded up and the object of the
amended Code has been achieved. What are the ground realities in this regard? The general
feed back from the lawyers and the Judges alike in this regard is disheartening. A curious blend
of casualness, legal inadequacy nay even ignorance of the law and a mindset geared to maintain
status quo has worked to defeat the new provision and the 90 day time frame has became
conspicuous largely by its breach. It bears mention here that even before the coming into force
of the amended Code on 01.07.2002 the Gauhati High Court by notification dated 14.06.2002
added a new Rule being Rule 49 A in the Civil Rules and Orders which reads thus: “The
defendant shall present the written statement of his defence on the day of his appearance in
court in response to the summons. The court may permit him further time upto a maximum of
sixty days from the day of appearance with or without costs if sufficient cause is shown for his
inability so to present the written statement. The application showing cause on each occasion
for seeking time must be supported by an affidavit and shall be disposed of by the court after
hearing the parties by a reasoned order”. By virtue of the provisions of Section 32(1) and 16(1)
of the Amendment Act, 1999 and Amendment Act, 2002 respectively the sixty day time frame
in Rule 49 A had been repealed but not the last sentence of the Rule 49A regarding the
application seeking time because this is not only not inconsistent with the provisions of the
amended Code but is in perfect consonance with the new provisions. Before 01.07.2002 after
putting an end to the spate of applications for time to file the written statement and fixing the
suit for exparte hearing the courts entertained the Written Statement filed on the date of exparte
hearing on recording sufficient cause for earlier defaults. The suit thus was put back to the stage
of filing of the written statement. Despite the change in law noted earlier this practice may be
still continuing. But this dark scenario is not without silver linings as it appears from a recent
unreported judgment of the Gauhati High Court. From the said judgment in Civil Revision (P)
No. 126 of 2003, Sri Baliram Prasad Gupta –Vs- Md. Isa delivered by Hon’ble Justice P.G.
Agarwal on 13.05.2003 it appears that Civil Judge (Jr. Division) No.2 at Tinsukia did well to
depart from the old law and implement the new law. Incidentally Sri J.K. Das a fresh recruit to
the Judicial Service being of 2002 batch was the Civil Judge (Junior Division) No.2 at Tinsukia
whose order eventually produced the aforesaid Unreported Judgment. In that case the defendant
entered appearance in the suit on 14.06.2002 and prayed for time to file the written statement.
Prayers for time to file the written statement continued until on 16.11.2002 the prayer was
rejected and the suit was fixed for plaintiff’s evidence. On 06.12.2002 plaintiff’s evidence was
recorded. The defendant was allowed to cross-examine the plaintiff. On 28.02.2003 the written

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statement was filed and a prayer was made to accept the written statement. The Trial Court
rejected the prayer. Order dated 28.02.2003 and the subsequent order in the suit whereby the
trial court allowed the defendant to adduce evidence and make arguments were challenged as
illegal before the High Court in the said Civil Revision. Justice Agarwal in the Judgment after
quoting the provision of Order VIII Rule 1 of the amended Code held as follows : “As we know
the amendment to the C.P.C has been brought about after great deliberations with a view to
expedite disposal of Civil proceedings. The provision has been made very specific and clear
regarding the filing of the written statement and admittedly the written statement was not filed
within the prescribed period of 90 days from the date of receipt of the summons and in the
present case even 90 days from the date of appearance before the Court. We are of the view
that any dilution of the above provision will defeat the very purpose for which the provisions
were amended and
enacted……………..…………….…………………………………………………
……………………………… We, therefore, hold that the Written Statement is required to be
filed within the time frame provided under Order 8 Rule 1 C.P.C and in case of defendant’s
failure to do so, the court shall have no discussion (sic) in the matter.” The usual “ends of
justice” argument under section 151 of Code of Civil Procedure and / or under Article 227 of
the Constitution of India was rejected by Justice Agarwal in no uncertain terms in these words
: “The impugned Order was passed in accordance with law and as per specific provisions
contained in the C.P.C and we, therefore, hold that no interference in this case is called for.
The revision, therefore, stands dismissed.” 3. The aforesaid Judgment in Civil Revision (P) No.
126 of 2003 has been challenged by filing a special leave petition (SLP) in the Supreme Court.
At present it is not known whether the leave to appeal has been granted or not. What could be
the possible point/points of challenge to the Order in the aforesaid Civil Revision ? The query
led this writer to discover that like in the provision of Order XVIII Rule 4 and 5, Order XLI
Rule 9 and a few others the drafting over enthusiasm or inadequacy of the draftsman has left
its imprint on this matter of filing of the written statement as well. This may now be considered
in some detail. Apart from the provisions of Order VIII Rule 1 a complete exposition of the
law in this regard will require consideration of the impact of provisions of Order V Rule 1
phrased similarly as the provisions of Order VIII Rule 1 enacting the 90 days time frame, the
provisions of section 32(2) (j) and (1) containing the provisions of repeal and saving in the
Amendment Act, 1999 and finally the provisions of section 15(b) (ii) and (iv) of the
Amendment Act, 2002 further amending the provisions of section 32(2) of the Amendment
Act, 1999. The impact of all these provisions will yield the following. Provisions of Order V
Rule I enacting the 90 days time frame for filing a written statement shall not apply to “in
respect of any proceedings pending” before 01.07.2002. Provisions of Order VIII Rule I
similarly enacting the 90 days time frame for filing of a written statement shall not apply to a
Written Statement filed and presented before 01.07.2002. From the facts noted earlier it is clear
that the Tinsukia Suit out of which the Judgment dated 13.05.2003 of the Gauhati High Court
arose was pending before 01.07.2002. Therefore if one applies Order V Rule I and the repeal
and savings provisions noticed above 90 days time frame for filing of the written statement in
the suit would not rule the matter. On the other hand applying Order VIII Rule I and the repeal
and savings provision one would reach the result that 90 days time frame would be attracted.
The draftsman could have spared the Courts this legal conundrum. Perhaps in the SLP if it has

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been admitted the Supreme Court would finally resolve the conundrum. For the present suffice
it to say that the prescriptions in the Rules of entire Order V flows from Section 27 of the Code
of Civil Procedure and it deals only with the manner of service of summons and not filing of
the Written Statement. Repeal and saving clause that is section 15(b) (ii) of the Code of Civil
Procedure (Amendment ) Act 2002 enumerates several Rules other than Rule I which deal with
manner of service of summons. The proper and the only place for the 90 days time limit should
have been Order VIII and not Order V. Order V Rule I cannot be applied to the Tinsukia Suit
because it was pending before 01.07.2002. Order VIII Rule I will cover the matter because the
Written Statement was filed after 01.07.2002.

The unreported Judgement in Civil Revision (P) No. 126 of 2003 is delivered on 13.05.2003.
Seven/eight days earlier precisely on 05.05.2003 the same point of law relating to time frame
for filing of the Written Statement arose before the Delhi High Court in its original side. The
Judgment in suit No. 371/1998. Dr. Sukhdev Singh Gambhir –Vs- Amar Pal Singh, A.I.R 2003
Delhi 280 unlike the Judgement in the aforesaid Civil Revision of the Gauhati High Court
proceeded entirely on the basis of Order V Rule I and section 148 C.P.C. A small list of dates
would be appropriate. The Suit was of 1998. The defendants were given eight weeks time to
file the written statement. The Written Statement was eventually filed on 04.04.2003 after
nearly four and half years of service on appearance of the defendants. The question posed at
the beginning of the Judgement is whether the written statement filed on 04.04.2003 be
permitted to be taken on record by condoning the delay in filing or not ? From the Judgement
it does not appear that there was any petition under section 5 of the Limitation Act. The learned
counsel for the plaintiff submitted that the time limit under Order V Rule 1 has long expired.
The defendant’s Counsel submitted, and rightly so, that Order V Rule 1 does not apply. Only
other ground urged was that negotiation for settlement was going on and the written statement
was delayed because of fear that filing of the same may thwart the negotiations. None
mentioned Order VIII Rule I. Section 89 of the amended code was mentioned. There is no
discussion of the provisions of either Order V Rule I or of those of Order VIII Rule I. The
Judgment proceeded to rely on A.I.R 2002 S.C 2487, a case under the Consumer Protection
Act, 1986 wherein the Supreme Court dealing with the provisions of section 13(2) (a) of the
said Act held that the time frame there was only directory and not mandatory. The consumer
Protection Act, 1986 and the Code of Civil Procedure (Amendment) Act, 2002 are statutes not
in Pari Materia. Therefore, the interpretation of a time frame enacted in the former statute
cannot rule the interpretation of the time frame in the latter statute. The language of the
provisions enacting the time frame in the two statutes differ widely. The latter statute unlike
the former provides for consequences of failure to obey the time frame. The consequences are
in Order VIII Rule 10. Moreover, the Judgment does not consider all the relevant law such as
the Order VIII Rule I and the repeal and savings provisions in the Amendment Act, 1999 and
2002. Eventually, the High Court extended the time to file the Written Statement in purported
exercise of its inherent power under Section 151 of the Code of Civil Procedure. It is well
settled that inherent power cannot be exercised where there is a specific provision of law
covering the matter. Thus, the Judgment appears to be a Judgment per incuriam.

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The time frame for filing of the Written Statement also fell for consideration by the Karnataka
High Court in Sri Prasanna Parvathamba Vs Sri M.S. Radha Krishna Dixit, A.I.R 2003
Karnataka 345 decided on 17.04.2003. In that case O.S. No. 79/2001 was posted for filing of
the Written Statement on 22.10.2002. On failure to file the written statement by the defendant
the suit was posted for plaintiff’s evidence. On 07.01.2003 the defendant filed the Written
Statement along with a petition under section 151 C.P.C and pressed for its acceptance. The
Trial Court rejected the prayer. On Revision the High Court found reasons for failure to file
the Written Statement in time compelling and also found that the provision of Order VIII Rule
9 enables the Court to accept the Written Statement. Apparently, the defendant did not press
the provisions of Order VIII Rule 9 in the trial Court but based the prayer on section 151 C.P.C.
only. On the words used in Order VIII Rule 9 it is difficult to spell out a provision-enabling
acceptance of a delayed written statement. The provision speaks only of the subsequent
pleading and not of the initial written statement of the defendant.

In Nachipeddi Ramaswamy Vs. Buchi Reddy, A.I.R 2003 Andhra Pradesh 409 decided on
17.04.2003 the same question of law arose although the context is slightly different. There in
O.S. No. 27 of 2002 Summons were served on the sole defendant on 10.05.2002. The defendant
appeared before the Court through Counsel on 13.06.2002 and the court granted time to file
the written statement from time to time. Ultimately on 09.10.2002 the written statement was
filed and the court accepted the same. The plaintiff filed a petition under Order VIII Rule 10
read with section 151 C.P.C to reject the Written Statement and pronounce the judgment. The
trial court rejected the petition of the plaintiff whereupon the plaintiff approached the High
Court in revision. The High Court upheld the order of the trial court. The High Court seems to
have found power to extend time beyond 90 days in the fact that Order VIII Rule 10 was
repealed by the Amendment Act, 1999 and then reenacted by Amendment Act, 2002. Such a
reasoning is difficult to understand because even before 01.07.2002 the words “or make such
order in relation to the suit as it thinks fit” in Order VIII Rule 10 were understood as reserving
a power in the court to pass orders other than the order pronouncing judgment. Indeed in the
suit dealt with by the Gauhati High Court (Supra) the trial court did not pronounce judgment
but fixed the case for plaintiff’s evidence, then allowed the defendant to cross examine the
plaintiff and lastly allowed the defendant to adduce evidence. All these orders were impliedly
approved by the Gauhati High Court. All these orders are not in the teeth of the 90 days time
frame under Order VIII Rule I whereas to curve out a power to extend the time frame from it
will fly in the face of the said provision. The High Court also found the power to extend time
in the provision of section 148 C.P.C. The 90 days time frame in that case expired on
08.08.2002. Under the provision of section 148 as extant since 01.07.2002 “the Court may, in
its discretion, from time to time enlarge such period not exceeding thirty days in
total……………….”. Therefore, even if the said section is held applicable under its provision
last day for filing the Written Statement could have been extended upto only 07.09.2002 and
no further. The Written Statement in the case was filed on 09.10.2002 only. Moreover the law
is well settled that provisions of section 148 C.P.C are applicable to time fixed by the Court
and cannot be applied to time fixed by law such as the provisions of Order VIII Rule I. Lastly,
the “ends of justice” under section 151 C.P.C have also been called in aid to lend support to
the existence of a power to extend the time frame. Inherent power cannot be exercised to defeat

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a specific provision of law. The short answer to the prayer of the plaintiff in the suit in hand
could have been (i) that unlike the power to reject a plaint there is no power to reject a Written
Statement (ii) that the error committed by the court in accepting the Written Statement beyond
the 90 days time frame would not be an error amenable to correction under section 151 or under
section 152 of the code and lastly, (iii) that the provisions of Order VIII Rule 10 do not create
a right in the plaintiff to ask for a judgment.

Thus, of the four Judgments dated 17.04.2003 of the Karnataka High Court, and the Andhra
Pradesh High Court, dated 05.05.2003 of the Delhi High Court and dated 13.05.2003 of the
Gauhati High Court only the last one upholds the intent and purpose of the amended Code
based on the recommendation of the Malimath Committee in this regard. The notes on cases
section of the All India Reporter has listed another Judgment dealing with the time frame
discussed here. The full report of the Judgment dated 21.01.2002 of the Karnataka High Court
is available in ILR (2003) 1 Kant. 2205 ( excerpted from A.I.R). Notes are in A.I.R 2003 NOC
378 (KANT). No detailed comments can be offered accept to say that this Judgment also fails
to sub-serve the intent and purpose of the amended code.

The Legislature after due deliberation in various forum spanning a period of over seven years
enacted the amended Code in order to speed up delivery of Civil Justice. The Executive brought
this new law into force with effect from 01.07.2002. From the discordance emanating from the
four decisions of the four High Courts presented in this essay the Judiciary appears to have
unwittingly helped restoration of the status quo ante in this regard. This writing may be
appropriately ended with the expectation that the Supreme Court someday would resolve the
discordance by restoring the intent and purpose of the Amended Code. For all one knows the
case from the Gauhati High Court may be the one to 108aruk this expectation.

Postscript By order dated 01.09.2003 the Supreme Court dismissed the SLP mentioned in para
3 above in the following words :- “We find no merit in this SLP. It is accordingly dismissed.
However, it is open to the petitioner to urge the grounds in the appeal against decree, if filed,
which ground is sought to be urged before this Court in this SLP”.

JUDICIAL PRONOUNCE MENT ON W RITTEN STATE MENT AND REPLY


STATE MENT ADDITIONAL W RITTEN STATE MENT COUNTER CLAIM AND
SET OFF

Lecture Delivered by Hon’ble Mr. Justice G. Rajasuria, Judge, High Court, Madras,

at Tamil Nadu State Judicial Academy during the Induction Training Programme for the
Newly recruited Civil Judge Junior Division 2009.

INTRODUCTION: Jurisprudential definitions of the following terms are absolutely necessary:

1. Counter – Adverse, antagonistic; opposing or contradicting; contrary.

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2. Counter affidavit – An affidavit made and presented in contradiction or opposition to an
affidavit which is made the basis or support of a motion or application.

3. Counter Claim – A claim presented by a defendant in opposition to or deduction from the


claim of the plaintiff. Fed.R.Civil P.13. If established, such will defeat or diminish the
plaintiff’s claim. Under federal rule practice and also in most states, counterclaims are either
compulsory (required to be made) or permissive (made at option of defendant). A counterclaim
may be any cause of action in favour of one or more defendants or a person whom a defendant
represents against one or more plaintiffs, a person whom a plaintiff represents or a plaintiff and
other persons alleged to be liable. New York C.P.L.R. 3019(a).

4. Compulsory counter claim – A pleading shall state as a counterclaim any claim which at the
time of serving the pleading the pleader has against any opposing party, if it arises out of the
transaction or occurrence that is the subject matter of the opposing party’s claim and does not
require for its adjudication the presence of third parties of whom the court cannot acquire
jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced
the claim was the subject of another pending action, or (2) the opposing party brought suit upon
his claim by attachment or other process by which the court did not acquire jurisdiction to
render a personal judgment on that claim. Fed.R.Civil P.13(a). For claim to constitute a
compulsory counterclaim, it must be logically related to original claim and arise out of same
subject matter on which original claim is based; many of same factual legal issues, or offshoots
of same basic controversy between parties must be involved in a compulsory counterclaim.
Tasner v. Billera, D.C.III., 379 F.Supp.809, 813.

5. Permissive counter claim – A pleading may state as a counterclaim any claim against an
opposing party not arising out of the transaction or occurrence that is the subject matter of the
opposing party’s claim. Fed.R.Civil P.13(b).

1. Cross action – An action brought by one who is defendant in a suit against the party
who is plaintiff in such suit, or against a co-defendant, upon a cause of action growing
out of the same transaction which is there in controversy, whether it be a contract or
tort. An independent suit brought by defendant against plaintiff or co-defendant.
2. Cross claim – Cross-claims against co-parties are governed in the federal district courts
and in most state trial courts by Rule of Civil Procedure 13(g): “A pleading may state
as a cross-claim any claim by one party against a co-party arising out of the transaction
or occurrence that is the subject matter either of the original action or of a counterclaim
therein or relating to any property that is the subject matter either of the original action
or of a counterclaim therein or relating to any property that is the subject matter of the
original action. Such cross-claim may include a claim that the party against whom it is
asserted is or may be liable to the cross-claimant for all or part of a claim asserted in
the action against the crossclaimant”.
3. Counterclaim distinguished: “Cross-claims” are litigated by parties on the same side of
the main litigation, while “counterclaims” are litigated between opposing parties to the
principal action. Resource Engineering, Inc. v. Siler, 94 Idaho 935, 500 P.2d 836, 840.

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4. Cross complaint – A defendant or cross-defendant may file a crosscomplaint setting
forth either or both of the following:
(a) Any cause of action he has against any of the parties who filed the complaint against
him.
(b) Any cause of action he has against a person alleged to be liable thereon, whether or
not such person is already a party to the action, if the cause of action asserted in his
cross-complaint,
(1) arises out of the same transaction, occurrence, or series of transactions or
occurrences as the cause brought against him or
(2) asserts a claim, right, or interest in the property or controversy which is the subject
of the cause brought against him.
5. Cross demand – Where a person against whom a demand is made by another, in his
turn makes a demand against that other, these mutual demands are called
“crossdemands”.

III. 1. Replicatio – In the civil law and old English pleading, the plaintiff’s answer to the
defendant’s exception or plea; corresponding with and giving name to the replication in
modern pleading.

2. Replication – In common law pleading, a reply made by the plaintiff in an action to the
defendant’s plea or in a suit in chancery to the defendant’s answer. In equity practice (now
obsolete in the federal and most state courts), a general replication is a general denial of the
truth of defendant’s plea or answer, and of the sufficiency of the matter alleged in it to bar
the plaintiff’s suit, and an assertion of the truth and sufficiency of the bill. A special
replication is occasioned by the defendant’s introducing new matter into his plea or answer,
which makes it necessary for the plaintiff to put in issue some additional fact on his part in
avoidance of such new matter.

3. Reply – In its general sense, the plaintiff’s answer to the defendant’s set off or counter
claim. Under Fed.R.Civil P.7(a), a reply is only allowed in two situations: to a counterclaim
denominated as such, or on order of court to an answer or a third-party answer.

4. Rejoinder – In common-pleading, the second pleading on the part of the defendant, being
his answer to the plaintiff’s replication. Rejoinder occurs during the trial stage where the
defendant answers the plaintiff’s rebuttal.

IV. 1. Set off – A counter-claim demand which defendant holds against plaintiff, arising
out of a transaction extrinsic of plaintiff’s cause of action. Remedy employed by defendant
to discharge or reduce plaintiff’s demand by an opposite one arising from transaction which
is extrinsic to plaintiff’s cause of action. Edmonds v. Stratton, Mo.App., 457 S.W.2d 228,
232. A claim filed by a defendant against the plaintiff when sued and in which he seeks to
cancel the amount due from him or to recover an amount in excess of the plaintiff’s claim
against him. In equity practice it is commenced by a declaration in set-off, though under
rules practice (which merged law and equity) it has been displaced by the counterclaim.

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Fed.R.Civil P.13. The equitable right to cancel or offset mutual debts or cross demands,
commonly used by a bank in reducing a customer’s checking or other deposit account in
satisfaction of a debt the customer owes the bank.

2. Recoupment – to recover a loss by a subsequent gain. In pleading, to set forth a claim


against the plaintiff when an action is brought against one as a defendant. A keeping back
something which is due, because there is an equitable reason to withhold it. A right of the
defendant to have a deduction from the amount of the plaintiff’s damages, for the reason
that the plaintiff has not complied with the cross-obligations or independent covenants
arising under the same contract. It implies that plaintiff has cause of action, but asserts that
defendant has counter cause of action growing out of breach of some other part of same
contract on which plaintiff’s action is founded, or for some cause connected with contract.
The right of the defendant to have the plaintiff’s monetary claim reduced by reason of some
claim the defendant has against the plaintiff arising out of the very contract giving rise to
plaintiff’s claim. First Nat.Bank of Louisville v. Master Auto Service Corp., C.A.Va., 693
F.2d 308, 310. Unlike a counter claim, recoupment only reduces plaintiff’s claim; it does
not allow recovery of affirmative money judgment for any excess over that claim. Tuloka
Affiliates, Inc.V. Moore, 275 S.C.199, 268 S.E.2d 293, 295. Recoupment is a purely
defensive matter growing out of transaction constituting plaintiff’s cause of action and is
available only to reduce or satisfy plaintiff’s claim and permits of no affirmative judgment.
Schroeder v. Prince Charles, Inc., Mo., 427 S.W.2d 414, 419. Recoupment is the equivalent
of the old counterclaim in which a defendant sets up a claim owed to him by the plaintiff
though it need not arise out of the same transaction as the plaintiff’s claim and the defendant
may not recover more than the amount claimed by the plaintiff against him. Under rules
practice, recoupment has been replaced by the modern counterclaim.

3. Set-off distinguished: A “set-off” is a demand which the defendant has against the
plaintiff, arising out of a transaction extrinsic to the plaintiff’s cause of action, whereas a
“recoupment” is a reduction or rebate by the defendant or part of the plaintiff’s claim
because of a right in the defendant arising out of the same transcation. 4. Off-set – A
deduction; a counterclaim; a contrary claim or demand by which a given claim may be
lessened or cancelled. A claim that serves to counterbalance or to compensate for another
claim. V. Order VIII Rule 1 of the Code of Civil Procedure Code is mainly relating to
written statement, set off and counter claim. Order VIII Rule 1 of the Code of Civil
Procedure envisages the filing of the written statement by the defendant within 30 days
from the date of service of summons on him. Without filing written statement, as per the
current Code of Civil Procedure, no defendant has got right to participate in the
proceedings. It is therefore, just and necessary to call the case on the 30 th day in the court
to verify as to whether the written statement is filed or not. If there is default, the Court has
to exercise its discretion to proceed ex parte, unless, the court itself intends to call upon the
defendant to file written statement under Order VIII Rule 9 of the Code of Civil Procedure.
Mechanically, without judicial application of mind, the matter should not be adjourned
beyond 30 days. On application filed by the defendant, time could be extended for filing
written statement up to 90 days; on the 90 th day, if no written statement is found filed, the

111
court without waiting for the plaintiff to make prayer to set exparte the defendant, should
proceed with the matter ex parte. If there is any application for further extension of time,
the same should be considered on merits, as per the dicta laid down by the Hon’ble Apex
Court in this regard. The following decisions of the Hon’ble Apex Court could fruitfully be
cited relating to filing of written statement. I. WRITTEN STATEMENT: (i) 2009 (3) SCC
513 (Mohammed Yusuf vs. Faij Mohammad and others) “4. The appellant filed an
application for grant of temporary injunction which was rejected on 28.1.2004. An appeal
was preferred there against which was disposed of by an order dated 14.05.2004. It is
neither in doubt nor in dispute that the respondent-defendants filed applications for
extension of time for filing written statement a number of times. The matter was also
adjourned on one ground or the other.

5. On or about 31.1.2005, the appellant also filed an application before the learned trial
Judge for pronouncing judgment in terms of Order 8 Rule 10 of the Code of Civil
Procedure, inter alia, on the premise that the respondent defendants did not file any written
statement. It is on the same date the defendants filed an application for filing written
statement. No application for condonation of delay in filing the written statement was
however, filed. However, on 23.9.2005, as indicated hereinbefore by reason of an order
dated 24.10.2005, while rejecting the said application of the respondents, the trial Judge
allowed the plaintiff to examine his own witnesses in support of his case. It is urged that
the provisions of Order 8 Rule 1 of the Code of Civil Procedure having been held to be
directory in nature by this Court in Kailash v. Nanhku, this Court may not exercise its
discretionary jurisdiction under Article 136 of the Constitution of India. Order 8 Rule 1 of
the Code of Civil Procedure reads thus: “1. Written statement – The defendant shall, within
thirty days from the date of service of summons on him, present a written statement of his
defence: Provided that where the defendant fails to file the written statement within the said
period of thirty days, he shall be allowed to file the same on such other day, as may be
specified by the Court, for reasons to be recorded in writing, but which shall not be later
than ninety days from the date of service of summons”.

Although in view of the terminologies used therein the period of 90 days prescribed for
filing the written statement appears to be a mandatory provision, this Court in Kailash upon
taking into consideration the fact that in a given case the defendants may face extreme
hardship in not being able to defend the suit only because he had not filed written statement
within a period of 90 days, opined that the said provision was directory in nature. However,
while so holding this Court in no uncertain terms stated that the defendants may be
permitted to file written statement after the expiry of period of 90 days only in exceptional
situation.

The question came up for consideration before this Court in M.Srinivasa Prasad vs.
Comptroller and Auditor General of India, wherein a Division Bench of this Court upon
noticing Kailash held as under: “7. Since neither the trial court nor the High Court have
indicated any reason to justify the acceptance of the written statement after the expiry of
time fixed, we set aside the orders of the trial court and that of the High Court. The matter
is remitted to the trial Court to consider the matter afresh in the light of what has been stated

112
in Kailash case. The appeal is allowed to the aforesaid extent with no order as to costs”. 11.
The matter was yet again considered by a three-Judge Bench of this Court in (R.N.Jadi &
Bros. V.Subhashchandra).

P.K.Balasubramanyan, J., who was also a member in Kailash in his concurring judgment
stated the law thus: “It is true that procedure is the handmaid of justice. The court must
always be anxious to do justice and to prevent victories by way of technical knockouts. But
how far that concept can be stretched in the context of the amendments brought to the Code
and in the light of the mischief that was sought to be averted is a question that has to be
seriously considered. I am conscious that I was a party to the decision in Kailash v. Nanhku
1 which held that the provision was directory and not mandatory. But there could be
situations where even a procedural provision could be construed as mandatory, no doubt
retaining a power in the court, in an appropriate case, to exercise a jurisdiction to take out
the rigour of that provision or to mitigate genuine hardship. It was in that context that in
Kailash v. Nanhku it was stated that the extension of time beyond 90 days was not
automatic and that the court, for reasons to be recorded, had to be satisfied that there was
sufficient justification for departing from the time-limit fixed by the Code and the power
inhering in the court in terms of Section 148 of the Code. Kailash 1 is no authority for
receiving written statements, after the expiry of the period permitted by law, in a routine
manner.

A dispensation that makes Order 8 Rule 1 directory, leaving it to the courts to extend the
time indiscriminately would tend to defeat the object sought to be achieved by the
amendments to the Code. It is, therefore, necessary to emphasise that the grant of extension
of time beyond 30 days is not automatic, that it should be exercised with caution and for
adequate reasons and that an extension of time beyond 90 days of the service of summons
must be granted only based on a clear satisfaction of the justification for granting such
extension, the court being conscious of the fact that even the power of the court for
extension inhering in Section 148 of the Code, has also been restricted by the legislature. It
would be proper to encourage the belief in litigants that the imperative of Order 8 Rule 1
must be adhered to and that only in rare and exceptional cases, will the breach thereof will
be condoned. Such an approach by courts alone can carry forward the legislative intent of
avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts.
The lament of Lord Denning in Allen v. Sir Alfred McAlpine & Sons that law’s delays
have been intolerable and last so long as to turn justice sour, is true of our legal system as
well. Should that state of affairs continue for all times?” 12. In view of the authoritative
pronouncements of this Court, we are of the opinion that the High Court should not have
allowed the writ petition filed by the respondents, particularly, when both the learned trial
Judge as also the Revisional Court had assigned sufficient and cogent reasons in support of
their orders. As indicated hereinbefore, the High Court allowed the writ petition and thereby
set aside the orders passed by the trial Court as also the Revisional Court without assigning
any reason therefore. The jurisdiction of the High Court under Articles 226 and 227 of the
Constitution of India is limited. It could have set aside the orders passed by the learned trial
Court and the Revisional Court only on limited grounds, namely, illegality, irrationality

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and procedural impropriety. The High Court did not arrive at a finding that there had been
a substantial failure of justice or the orders passed by the trial Court as also by the
Revisional Court contained error apparent on the face of the record warranting interference
by a superior court in exercise of its supervisory jurisdiction under Article 227 of the
Constitution of India.

For the reasons stated above, the impugned judgment of the High Court cannot be
sustained. It is set aside accordingly. The appeal is allowed. In the facts and circumstances
of this case, there shall be no order as to costs.” (ii) (2007) 14 SCC 431 (Aditya Hotels (P)
Ltd. V. Bombay Swadeshi Stores Ltd. (iii) (2007) 10 SCC 246: (2008) 1 SCC (L & S) 1095
(M.Srinivasa Prasad v. Comptroller and Auditor General of India. (iv) (2007) 6 SCC 420
(R.N.Jadi & Bros. V.Subhashchandra) (v) (2005) 4 SCC 480 ( Kailash vs. Nanhku) (vi)
(1968) 2 QB 229: (1968) 2 WLR 366: (1968) 1 All ER 543 (CA) (Allen v. Sir Alfred
McAlpine & Sons Ltd.) (vii) 2008 (11) SCC 769 (Salem Advocate Bar Association II vs.
Union of India (viii) AIR 2005 SC 3304 (Rani Kusum vs. Smt.Kanchan Devi and others)
(ix) AIR 2006 SC 396 (Shaikh Salim Haji Abdul Khayumsab vs. Kumar and others)

REFER CODE OF CIVIL PROCEDURE

ORDER VIII RULE 1-A Duty of defendant to produce documents upon which relief is
claimed or relied upon by him. ORDER VIII

RULE 2 – New facts must be specially pleaded

ORDER VIII RULE 3 – Denial to be specific

ORDER VIII RULE 4 – Evasive denial

ORDER VIII RULE 5 – Specific denial

ORDER VIII RULE 6 & 6-A Rule 6:- – Particulars of set-off to be given in written
statement 1. Where in a suit for the recovery of money the defendant claims to setoff against
the plaintiff’s demand any ascertained sum of money legally recoverable by him from the
plaintiff, not exceeding the pecuniary limits of the jurisdiction of the court and both parties
fill the same character as they fill in the plaintiff’s sit, the defendant may, at the first hearing
of the suit, but not afterwards unless permitted by the Court, present a written statement
containing the particulars of the debt sought to be set-off. 2. Effect of set-off – The written
statement shall have the same effect as a plaint in a cross suit so as to enable the court to
pronounce a final judgment in respect of both the original claim and of the set-off; but this
shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs
payable to him under the decree. 3. The rules relating to a statement by a defendant apply
to a written statement in answer to a claim of set-off.

Rule 6-A Counter claim by defendant:- 1. A defendant in a suit may, in addition to his right
of pleading a set-off under Rule 6, by way of counter-claim against the claim of the plaintiff,
any right or claim in respect of a cause of action accruing to the defendant against the
plaintiff either before or after the filing of the suit but before the defendant has delivered

114
his defence or before the time limited for delivering his defence has expired, whether such
counter-claim is in the nature of a claim for damages or not: - provided that such counter-
claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

2) Such counter-claim shall have the same effect as a cross-suit so as to enable the court to
pronounce a final judgment in the same suit, both on the original claim and on the counter-
claim.

3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim
of the defendant within such period as may be fixed by the Court.

4) The counter-claim shall be treated as a plaint and governed by the rules applicable to
plaints.

REFER CODE OF CIVIL PROCEDURE

ORDER VIII RULE 6-B – Counter claim to be stated

ORDER VIII RULE 6-C – Exclusion of counter-claim

ORDER VIII RULE 6-D – Effect of discontinuance of suit

ORDER VIII RULE 6-E – Default of plaintiff to reply to counter-claim

ORDER VIII RULE 6-F – Relief to defendant where counter-claim succeeds

ORDER VIII RULE 6-G – Rules relating to written statement to apply

ORDER VIII RULE 7 – Defence or set-off founded upon separate grounds

The following Hon’ble Apex Court’s decisions concerning counter claim and set off are set
out here under: Precedent under Order VIII Rule 6-A: 2007 (7) SCC 517 (Union of India
vs. Tata Teleservices (Maharashtra) Ltd.). An excerpt from it would run thus: “25. It has
also to be noted that while prescribing the procedure under Section 16 of the Act, what is
said is that TDSAT shall not be bound by the procedure laid down by the Code of Civil
Procedure but it shall be guided by the principles of natural justice. It is significant to note
that it is not a case of exclusion of the powers under the Code of Civil Procedure and
conferment of specific powers in terms of sub-section

28. of that section. It is really a right given to TDSAT even to go outside the procedural
shackles imposed by the Code of Civil Procedure while dealing with a dispute before it.
Therefore, it will be difficult to keep out the provisions for the filing of a counterclaim
enshrined in Order 8 Rule 6-A of the Code of Civil Procedure which could be applied by
TDSAT. The sweep of Order 8 Rule 6-A of the Code now takes in even claims independent
of the one put forward in the application if it is one the respondent therein has against the
applicant. On the whole, we are of the view that TDSAT was in error in dismissing the
counterclaim as not maintainable.” Precedents concerning Counter Claim/Set Off:- (i) 2008
(12) SCC 392 (G.Rama vs. T.G.Seshagiri Rao (dead) by Lrs.).

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An excerpt from it would run thus: “On 19.08.1991 O.S.No.4949 of 1991 ie., suit for
partition was filed claiming the partition. There is no challenge to the release deed dated
17.4.1989 in the suit for partition. The appellant took the stand that it was a joint family
property and, therefore, she had half-share. No specific issue regarding the nature of the
property was framed. There was no issue relating to Section 14 (1) of the Act and there was
also no evidence led in that regard. Strangely the trial court treated the suit as one for
partition though the suit was for declaration. There was no counterclaim filed by defendant
Rama. It is pointed out that Vasudeva Murthy was alive when the trial of the suit proceeded.
Before the High Court an undertaking was given to vacate the premises which was accepted
subject to filing of an undertaking which was in fact filed on 21.5.2004 after delivery of the
judgment on 7.1.2004. After two years a review petition was filed on 10.8.2006 and the
same was withdrawn on 30.8.2006.” (ii) 2006 (5) SCC 72 (Indian Bank vs. ABS Marine
Products (P) Ltd.,) (iii) 2006 (10) Scale 150 : 2006(7) Supreme Today 734 (State Bank of
India vs. M/s.Ranjan Chemicals).

Certain excerpts from it would run thus: “On going through the application filed by the
bank and the plaint filed by the company in the present case, we find that both causes of
action arise out of a cash credit facility extended by the bank to the company and while the
claim by the bank is for recovery of amounts due under that account, the suit of the company
is for recovery of compensation based on the alleged failure of the bank to fulfil its
obligations under the cash credit facility in time and in a meaningful manner. Obviously, if
the company is able to establish its claim, the amount that may be awarded to it by way of
damages has necessarily to be set off against any amount that may be found due to the bank
on the basis of the loan transaction including the cash credit facility extended by it to the
company. The decree to the one or the other would depend upon an ascertainment of the
rights and obligations arising out of the loan transaction and the state of the loan account.
We are therefore of the view that the two claims are inextricably inter linked. The
consequences arising out of the respective claim are referable to the cause of action arising
out of the vary transactions between the bank and the company. We have already indicated
that the claim of the company is in essence a claim for set off and/or a counter claim, which
could be tries by the Debt Recovery Tribunal in view of the amended Section 19 of the Act.

A joint trial can be ordered by the court if it appears to it that some common question of
law or fact arises in both proceedings or that the right to relief claimed in them are in respect
of or arise out of the same transaction or series of transactions or that for some other reason
it is desirable to make an order for joint trial. Where the plaintiff in one action is the same
person as the defendant in another action, if one action can be ordered to stand as a counter
claim in the consolidated action, a joint trial can be ordered. An order for joint trial is
considered to be useful in that, it will save the expenses of two attendance by counsel and
witnesses and the trial Judge will be enabled to try the two actions at the same time and
take common evidence in respect of both the claims. If therefore the claim made by the
company can be tried as a counter claim by the Debt Recovery Tribunal, the Court can
order joint trial on the basis of the above considerations. It does not appear to be necessary
that all the questions or issues that arise should be common to both actions before a joint

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trial can be ordered. It will be sufficient if some of the issues are common and some of the
evidence to be let in also common, especially when the two actions arise out of the same
transaction or series of transactions.

A joint trial is ordered when a court finds that the ordering of such a trial, would avoid
separate overlapping evidence being taken in the two causes put in suit and it will be more
convenient to try them together in the interests of the parties and in the interests of an
effective trial of the causes. This power inheres in the Court as an inherent power. It is not
possible to accept the argument that every time the Court transfers a suit to another court
or orders a joint trial, it has to have the consent of the parties. A court has the power in an
appropriate case to transfer a suit for being tried with another if the circumstances
warranted and justified it. In the light of our conclusion that the claim of the company in
the suit could be considered to be a claim for set off and a counter claim within the meaning
of Section 19 of the Act, the only question is whether in the interests of justice, convenience
of parties and avoidance of multiplicity of proceedings, the suit should be transferred to the
Debt Recovery Tribunal for being tried jointly with the application filed by the bank as a
cross suit. Obviously, the proceedings before the Debt Recovery Tribunal could not be
transferred to the Civil Court since that is a proceeding before a Tribunal specially
constituted by the Act and the same has to be tried only in the manner provided by that Act
and by the Tribunal created by that Act. Therefore, the only other alternative would be to
transfer the suit to the Tribunal in case that is found warranted or justified.

It is clear that in both proceedings what are involved are, the nature of the loan transaction
and the cash credit facility extended, the relationship that has spring out of the transactions,
the right and obligations arising out of them, their breach if any, who is responsible for the
breach and its extent. The same basic evidence will have to be taken in both the
proceedings. The accounts of the bank will have to be scrutinized not only to ascertain the
sum, if any, due to the bank but also to ascertain as to when and in what manner the cash
credit facility was permitted to be availed of by the company. Of course, evidence will have
to be taken on whether there was any violation of conditions or latches on the part of the
bank in fulfilling its obligations causing damage to the company. At least a part of the
evidence will be common. Duplication of evidence could be avoided if the two actions are
tried together. If a decree is granted to the bank on the basis of its accounts, and the
damages, if any, is decreed in favour of the company, a set off could be directed and an
ultimate order or decree passed in favour of the bank or the company. In such a situation,
we are of the view that this is a fit case where the two actions should be ordered to be tried
together.” (iv) 2000 (7) SCC 357 (United Bank of India, Calcutta vs. Abhijit Tea
Co.Pvt.Ltd.and others)

CONCLUSION: A deep analysis of the aforesaid decisions would highlight and spotlight
the distinction between counter claim and set off; reply and rejoinder. It should be borne in
mind that an additional written statement as contemplated under Order VIII Rule 9 of the
Code of Civil Procedure is different from amendment of the written statement; a reply to
the written statement is different from amendment of the plaint. It is the duty of the Judge
to prevent misuse of the pleadings by a litigant. What could not be achieved by getting the

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pleading amended should not be allowed to be got over, by filing reply or rejoinder as the
case may be and vice versa. At this juncture my mind is reminiscent and redolent of the
following two maxims, which are quoted here under for ready reference. (i) Quando aliquid
mandatur, mandatur et omne per quod pervenitur ad illud – When anything is commanded,
everything by which it can be accomplished is also commanded. (ii) Quando aliquid
prohibetur, prohibetur et omne per quod devenitur ad illud – When anything is prohibited,
everything by which it is reached is prohibited also. That which cannot be done directly
shall not be done indirectly. The legislators in their wisdom thought fit in an unusual
manner to emphasis twice that there should be time limit for filing the written statement
and that object got exemplified and expatiated under Order V Rule 1 of the Code of Civil
Procedure and Order VIII Rule 1 of the Code of Civil Procedure. Judiciary should respond
to such genuine effort of the legislators and see to it that written statements and pleadings
in general, are made to be filed as expeditiously as possible without harping on the
discursive discussion as to whether the time frame as fixed in the Code of Civil Procedure
is mandatory or directory.

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UNIT IV: TRIAL

PREPARATION AND DELIVERY OF JUDGMENT

Early pronouncement advisable. Parties to have due notice of the day fixed—When the trial
in Court is over, the Judge should 1proceed at once, or as soon as possible to the
consideration of his judgment. If the judgment is not pronounced at once, every endeavour
shall be made by the Court to pronounce the judgment within fifteen days, from the date
on which the hearing of the case was concluded, but where it is not practicable so to do, the
Court shall fix a future day for the pronouncement of the judgment, and such date shall not
ordinarily be a day beyond thirty days from the date on which the hearing of the case was
concluded and also if the judgment is not pronounced within thirty days from the date on
which the hearing of the case was concluded, the Court shall record the reasons for such
delay and shall fix a future day on which the judgment will be pronounced and in every
case the due notice of the day so fixed shall be given to the parties or their pleaders). It is
essentially necessary that the judge should proceed to the consideration of the judgement
while the demeanour of the witnesses and their individual characteristics are fresh in his
memory. He should bear in mind that his first duty is to arrive at a conscentious conclusion
as to the true state of those facts of the case about which the parties are not agreed. The oral
and documentary evidence adduced upon each issue should be carefully reviewed and
considered in the directions.

1. Directions rejudgements—In the preparation and delivery of judgement the attention of


the Civil Courts is drawn to the following directions:

(1) The judgment should be written either in the language of the Court, or in English:

(2) When a judgment is not written by the Presiding Officer with his hand, every page of
such judgment shall be signed by him;

(3) It should be pronounced in open Court after it has been written and signed;

(4) It should be dated and signed in open Court at the time of being pronounced and when
once signed shall not afterwards be altered or added to, save as provided by Section 152 or
on review;

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(5) If it is judgment of any Court other than a Court of Small Causes, it should contain a
concise statement of the case; the points for determination the decision thereon and the
reasons for such decision;

(6) If it is the judgment of a Court of Small Causes, it should contain the points for
determination and the decision thereupon.

(7) It should contain the direction of the Court as to costs; and

(8) All the paragraphs of the judgment should be serially numbered to facilitate references.

(9) The judgment should be pronounced as soon as possible after the case has been heard.
Where it is desired to pronounce at some future date, the Court shall fix a day for that
purpose and inform the parties accordingly. Every endeavour shall be made by the Court
to pronounce the judgment within fifteen days from the date on which the hearing of the
case was concluded, but where it is not practicable so to do, the Court should make all
efforts to pronounce it within thirty days, otherwise the Court shall record the reasons for
such delay and shall fix a future day on which this judgment will be pronounced and due
notice of the day so fixed shall be given to the parties or their pleaders.

(10) The Judge need not read out the full judgment. He can pronounce only the final orders.
However, the copy of the whole judgment is to be made available for the perusal of the
parties or their pleaders immediately after judgment is pronounced.

(11) The judgment may be pronounced by dictation in open Court to a shorthand writer if
the Judge is specially empowered by the High Court in this behalf and is to be dated and
signed by the Judge.

(12) In appealable cases, where the parties are not represented by their pleaders, the Court
should inform the parties present in Court as to the Court to which an appeal lies and the
period of limitation for the filing of such appeal and place on record the information so give
to the parties.

(13) The last paragraph of the judgment shall state in precise terms the relief which has
been granted by such judgment.

(14) The type written copies of judgment may be delivered to the parties applying for such
copies after making the requisite payments thereof.

(15) Rules regulating the preparation and supply of certified copies of type-written
judgments in civil cases by Courts provided with stenographers/steno typist are given in
schedule. Some Judicial Officers make a practice of prefacing judgments with a
memorandum of the substance of the evidence, given by each witness examined which has
to be referred to. This practice is irregular, when the memorandum is in addition to that
made under Order XVIII, Rule 8 of the Code of Civil Procedure. All that the law requires
is a concise statement of the case and not a reproduction of the evidence. The judgment
should, however, be complete in itself as regards the requirements of Order XX, Rule 4, of

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the Code and should set forth the grounds of decision as concisely as is consistent with the
introduction of all important matters. It may be necessary, in the particular cases, to refer
to, and give a summary of, the statements of, a witness or witnesses; but, is so, such
summary should be incorporated in the reasons given for the decision of the Court on the
issue to which it relates. When it is necessary to refer the evidence of a witness in the course
of a judgment, the reference should be by name as well as the number of the witness.

Instances have occurred of judgments not being written until a considerable time after final
arguments in a case have been heard. This practice is upon to grave objection, and in any
case in which judgment is written and pronounced within 301 days from the date on which
arguments were heard, a written explanation of the delay must be furnished by the
subordinate Court concerned to the District Judge. This is not meant to encourage a practice
of reserving judgments; on the contrary, judgments should ordinarily be written as soon as
arguments have been heard. It is only in the exception case where the Court has to consider
many rulings and cannot conveniently give judgment at once, that there is any justification
for judgment being reserved.

The Subordinate Courts should append to their monthly and quarterly statements, a
certificate to the effect that judgments have been pronounced in all cases (including rent
and objection cases) within one month of the final conclusion of evidence. Explanation
should be given as regards any judgments not delivered within such period. 6. Procedure
when Judge gives over charge before pronouncing Judgment—Every District Judge or Sub-
Judge proceeding on leave or transfer, must, before making over the charge, sign a
certificate that he has written judgments in all cases in which he has heard arguments.
Should an officer be forced to lay down his charge suddenly, he shall, nevertheless, write
the judgments in such cases, and send them for pronouncement to his successor. 7. Persons
employed for dictation of judgments—Subordinate Courts should note that judgments are
to be dictated only to persons employed for that express purpose or employed as copyists
or candidates. 8. Not to be written in Court before disposal of cause list—The practice of
writing up judgments during the Court hours in the early part of the day is to be deprecated
judgments may be written after the day’s cause list has been completed. 9. Language—
Presiding Officers of Subordinate Courts, who are well acquainted with the English
language, should write their judgments in English in appealable cases when a Subordinate
Judge writes his judgment in English, the decree also should be framed in the same
language.

Information of cancellation of registered instrument to be sent to registering officer—It


should be remembered that Section 31 of the Specific Relief Act, 1963 requires that, when
any registered instrument has been adjudged void or voidable, and the Court orders it to be
delivered up and cancelled, the Court shall send a copy of its decree to the officer in whose
officer the instrument was registered with a view to such officer noting the fact of
cancellation in his books.

Pronouncing judgment after death of a party—In Order XXII, Rule 6, it is provided that, if
any party to a suit dies between the conclusion of the hearing and the pronouncing of the

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judgment, such judgment may be pronounced notwithstnading the death, and shall have the
same force and effect as if it had been pronounced before the death took place.

Judgments not legibly written—Judgments (when not type-written) should always be


written in a clear and legible hand. If they are not so written, such a copy should be made
and placed on the record.

Civil powers to be disclosed in the record, judgments and decree—Every judicial officer
hearing or deciding a civil suit, proceeding or appeal, is responsible that the record and the
final order of judgment and the decree in such civil suit, proceeding or appeal, shall disclose
the civil powers which such officer exercised in hearing or deciding such suit, proceeding
or appeal.

Civil powers—The powers above referred to are the following: (a) Subordinate Judge,
Class I (b) Subordinate Judge, Class II (c) Subordinate Judge, Class III (d) Subordinate
Judge, invested with appellate powers under Section 39 of the Punjab Courts Act. (e)
Subordinate Judge invested with powers of Court of Small Causes. (f) Judge, Small Causes
Court. 15. Ditto—When the powers exercised by any Judge invested with powers under
Section 28 of the Punjab Courts Act differ from those stated in Rule 14, such powers must
be specifically stated.

Appellate powers—By High Court notification No. 170-Gaz./XXI-C. 6. dated the 16th
May, 1935 (as amended by notification No. 53-Gaz./XXI-C. 6, dated the 23rd February,
1940), in respect of the Punjab, and by High Court notification No. 171-Gaz./XXI-C. 6,
dated the 16th May 1935, in respect of Delhi, the Senior Subordinate Judge of the first class
in each District of the Punjab (I) and Delhi has been invested with appellate powers up to
a certain limit.

Special appellate powers—Certain selected Sub-Judges of the 1st Class are, however,
personally invested by name with appellate powers of a higher limit. To mark the
distinction such Sub-Judges should when exercising their enhanced powers, invariably use
the words “invested with special appellate powers”.

PREPARATION OF DECREES

Points to be borne in mind—The decree should be framed by the Judge with the most
careful attention. It must agree with the judgment, and be not only complete in itself but
also precise and definite in its terms. It should specify clearly and distinctly the nature and
extent of the relief granted, and what each party, affected by it, is ordered to do or forbear
from doing. Every declaration of right made by it must be concise, yet accurate; every
injuction, simple and plain.

Directions—The following directions relate to the preparation of decrees: (i) Date for
delivery of possession of land—In decrees for possession of agricultural land, it should be
stated whether possession is to be given at once, or after the removal of any crop that may

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be standing on the land at the time, when the decree is executed, or on or after any specified
date. (ii) Appellate decrees—In Appellate Courts, the language used in filling in the
decretal order, shall conform to the action recognized by the law, and shall direct that the
decree of the lower Courts be either “affirmed”, “varied”, “set aside” or “reversed”. In each
case in which a decree is affirmed, the terms thereof shall be recited, so as to make the
appellate decretal order complete in itself. In varying a decree, the relief granted, in lieu of
that originally granted shall, be fully and accurately set out. Where a decree is reversed on
appeal, the consequential relief granted to the successful party shall similarly be stated.
Every decretal order shall be so worded as to be capable of execution without reference to
any other document, and so as to create no difficulty of interpretation. 3. Preliminary
decrees—Under Section 2 of the Code of Civil Procedure a decree may be either
“Preliminary” or “final”. A preliminary decree should be based on a preliminary judgment.

Mesne Profits—In cases where mesne profits are asked for in the plaint, the question as to
the amount thereof (if any), which should be paid to the plaintiff, in respect to the period
of dispossession before and up to the date of filing the plaint, must be determined at the
hearing of the suit, and decree must specify clearly the portion of this amount which each
defendant is to pay, either severally or jointly with others, to the plaintiff (Order XX, Rule
12).

(1) Decree in case of compromise—When a decree is to be passed on the basis of a


compromise, the Court should order the terms of the compromise to be recorded in
accordance with the provision of Order XXIII, Rule 3, Civil Procedure Code, and then pass
a decree in accordance with the terms. When, however, the compromise goes beyond the
subject-matter of the suit, a decree can be passed only in so far as it relates to the suit. As
regards the proper form of decree in the latter class of cases, the directions of their
Lordships of the Privy Council in “Hemant Kumari Devi v. Midnapur Zamindari
Company” (46 I. A. 240 and 244), should be followed.

(2) Compromise by minors—When any of the parties to the case are minors care should be
taken to see whether the compromise is for the minors benefit and to record a finding to
that effect if compromise is sanctioned and made the basis of the decree. 6. Addition or
substitution of parties—When any parties are added or substituted in the course of the suit,
care should be taken to see that their names are properly shown in the decree-sheet.

Decrees in certain cases—As regards the proper form of decree in certain classes of suits,
the provisions of Order XX and Order XXIV, Civil Procedure Code, should be consulted.
The Provisions of Order XX, Rule 14, Code of Civil Procedure, relating to the contents of
the decree in a pre-emption suit, should be carefully studied. Sub-Rule (2) relating to the
adjudication of rival claims to pre-emption is new and requires special attention. 8. Decree
in suits to set aside alienation—In a suit by reversioners under the Punjab Customary Law,
when a portion only of the consideration for an alienation is proved to be for valid necessity
and the alienation is not upheld, the decree should be in the following form: (i) that the
alienation shall not take effect as against the reversioners on the death of the alienor; (ii)
that on the death of the alienor the reversioners shall not be entitled to possession until they

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have paid the sum found for necessity (92 P.R. 1909) 9. Powers of Court to be set forth—
Every decree must set forth the powers of the officer deciding the suit.

Pauper suits—In suits by paupers, when an order is passed under Rules 10, 11 or 12 or
Order XXXIII a copy of the decree should be forth with forwarded to the Collector. 11.
Review and amendment.

AWARD OF COSTS IN CIVIL SUITS

1. General rule—The general rule as to the award of costs in civil suits is that costs follow
the event of the action; that is the costs of the successful party are to be paid by the party
who is unsuccessful.

2. When costs may be disallowed—A wide discretion, however, is given to the Court to
grant or withhold or apportion costs as it thinks fit. This discretion is to be exercised
judiciously, e.g.: Costs or a portion thereof may be disallowed to a successful party and he
may even be liable to be burdened with costs in the following cases: (a) Where a party has
without just cause resorted to litigation: (b) Where a party has raised an unsuccessful plea
or answer to a plea (such as fraud limitation, minority, etc.) without sufficient grounds; (c)
In cases mentioned in Order 24, Rule 4, when a defendant deposits money in satisfaction
of the claim; (d) Whenever the demand, whether of debt or damages or property claimed,
is excessive or is only successful to a small extent; and (e) In cases where notice to admit
facts or documents has not been given. When notice to admit documents or facts has been
given under Order XII, Rules 2 and 4 of the Code of Civil Procedure to a party and it has
withheld its admission without sufficient cause it must bear the costs incurred by the other
party in proving the documents or facts what ever the result of the suit may be.

3. When costs shall be disallowed—Costs shall be disallowed: (a) In a suit or proceeding


relating to a loan where the Court finds that the creditor has failed to regularly record and
maintain an account as required by Section 3(1) (a) of the Punjab Regulation of Accounts
Act, 1930 (See Section 4 of the Act); (b) When a creditor sues for recovery of a debt in
respect of which a certificate has been granted by the Debt Conciliation Board (vide Section
20(2) of the Punjab Relief of Indebtedness Act of 1934); (c) As against a minor or a person
of unsound mind, where a person has not been represented by a next friend or guardian,
(Order 32, Rules 2, 5 (2) and 15 of the Civil Procedure Code). In such cases pleaders may
under certain circumstances be made personally liable for costs.

4. Reasons for disallowing costs to be recorded—Whenever the Court orders that costs
shall not follow the event, it must record its reasons. [Section 35 (2) Civil Procedure Code].

5. Cost of applications—In disposing of applications made under the Civil Procedure Code
the Court may award costs at once to either party or may postpone its consideration to a
later stage.

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Expenses included in costs—By insertion of Order XXA in the Civil Procedure Code after
the amendment of CPC in 1976, specific provision has been made with regard to the power
of the Court to award costs in respect of certain items of expenditure which the party
undertakes while suing or being sued. Rule I of Order XX-A of the Code provides the
following items on which the Court without prejudicing any provision provided in the
Code, may award costs:

(a) expenditure incurred for the giving of any notice required to “be given by law before
the institution of the suit;

(b) expenditure incurred on any notice which, though not required to be given by law, has
been given by any party to the suit to any other before the institution of the suit;

(c) expenditure incurred on the typing, writing or printing of pleadings filed by any party;

(d) charges paid by a party for inspection of the records of the Court for the purposes of the
suit;

(e) expenditure incurred by a party for producing witnesses, even though not summoned
through Court; and

(f) in the case of appeals, charges incurred by a party for obtaining any copies of judgments
and decrees which are required to be filed along with the memorandum of appeal. The
award of costs under this rule shall be in accordance with such rules as the High Court may
make in this behalf.

The Punjab and Haryana High Court has provided the following heads under which Court
may award costs:

(a) Court-fee stamps on all necessary petitions.

(b) Process-fees.

(c) Expenses of proving and filing copies of necessary documents.

(d) Pleaders, fees.

(e) Charges incurred in procuring the attendance of witness, whether such witnesses were
summoned through the Court or not.

(f) Expenses of Arbitration and Commissioners Pleader’s fees are regulated by the rules
contained in Chapter 16 “Legal Practitioners”.

Compensatory costs for false or vexatious claims or pleas—Under Section 35-A of the
Code Compensatory costs for false or vexatious claims and pleas may be awarded under
certain circumstances. It is no longer necessary that an objection should have been taken
by the party affected at an early stage of the trial. The mere failure of a party to prove the
claim or pleas should not be taken to justify an order under this Section. The Court should

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be satisfied that the plea or claim was put forward by a party with the knowledge that it was
false or vexatious and the Court should record the reasons for its opinion.

Under the powers conferred by the second proviso to sub-section (2) of Section 35A of the
Code of Civil Procedure, the High Court has directed that the amount which any Court or
class of Courts is empowered to award as costs by way of compensation shall be limited as
follows:

(i) Omitted.
(ii) Court of Subordinate Judges to the third class Rs. 200/-;
(iii) Courts of Subordinate Judges of the second class Rs. 500/-;
(iv) Courts of Subordinate Judges of the first class shall be guided by the provisions of
subsection (2) of Section 35A of the Code. Costs of causing delay—Where Section
35A of the Code provides for compensatory costs for false or vexatious claims or
defences at the same time Section 35B which was added by CPC (Amending) Act
104 of 1976, provides for compensatory costs on parties responsible for delaying
litigation. The payment of compensatory costs for causing delay has been made
condition precedent to the further prosecution of the suit or the defence by the
plaintiff or defendant concerned.

Sub-section (2) of Section 35B provides that the costs ordered to be paid under Sub-section
(1) of Section 35B shall not, if paid, be included in the costs awarded in the decree passed
in the suit, but if such costs are not paid, a separate order shall be drawn up indicating the
amount of such costs and the names and addresses of the persons by whom costs are payable
and the order so drawn up shall be executable against such persons. By the Amending Act
104 of 1976, Section 35B has been added thereby making a provision in the Code toward
costs to the aggrieved party for the delays in the prosecution of the suit caused by its
opponent. It is provided to enable him to meet the expenses incurred by him in attending
the Court on that date and payment of such costs on the date next following the date of such
order shall be a condition precedent to the further prosecution of the suit. It is also provided
in sub-section (2) of Section 35B that such costs shall not, if paid be included in the costs
awarded in the decree passed in the suit, but if such costs are not paid, a separate order shall
be drawn up indicating the amount of such costs and the names and addresses of the persons
by whom such costs are payable and the order so drawn shall be executable against such
personal.

AWARD OF INTEREST IN CIVIL SUITS

Provision in Act XXVIII of 1855—By Act XXVIII of 1855 (an Act for the repeal the Usury
Laws) it is provided that, in any suit in which interest is recoverable, the amount shall be
adjudged or decreed by the Court at the rate (if any) agreed upon by the parties and, if no
rate shall have been agreed upon, such rate as the Court shall deem reasonable. (Section 2).
Ditto, future interest—The Act provides that, whenever a Court shall direct that a judgment
or decree shall bear interest, or shall award interest upon a judgment or decree, it may order

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the interest to be calculated at the rate allowed in the judgment or decree upon the principal
sum adjudged or at such other rate as the Court shall think fit (Section 3).

Future interest—Section 34 of the Code of Civil Procedure enacts that, where and in so far
as a suit is for a sum of money due to the plaintiff, the Court may, in the decree, order
interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged,
from the date of the suit to the date of the decree, in addition to any interest adjudged on
such principal sum for any period, prior to the institution of the suit; with further interest at
such rate not exceeding six per cent per annum as the Court deems reasonable on the
principal sum so adjudged from the date of the decree to the date of payment. It will be
observed that by this section, a discretion is given in respect of two periods of times; viz.,
from the date of the suit of the date of the decree, and from the date of the decree to the
date of payment, (However, the rats of interest if arises out of any commercial transaction
such as industry, trade or business, the rate of such further interest may exceed six per cent
per annum or as per contractual rate or at the rate at which the moneys are lent or advanced
by the nationalised banks).

Interest of costs—Section 35(3) of the Code of Civil Procedure which empowered the Court
to give interest on costs has been omitted by Act No. 66 of 1956. Future Interest—In
awarding interest subsequent to the date of the decree, the Courts in the exercise of the
discretion which the lay has conferred should not ordinarily award a rate of interest
approaching in amount that which may be obtainable in common dealings by persons who
have not the security of a decree of Court to enforce payment. No inducement should be
given to decree-holders to allow their decree to remain unexecuted. It is permissible now
to award interest after decree at a higher rate than six per centum per annum.

Penal interest—The plea is often raised that the “interest” claimed is “penal”. Courts should
be careful to distinguish between high or excessive interest and “penal” interest. The mere
fact that the rate of interest is high or that compound interest as charged is, by itself, no
justification under the Indian Contract Act for is reduction, unless some other ground such
as coercion, undue influence, etc., is established, (See 101 and 124 P.R. 1918, P.C.) there
is no definition of “penalty” given in the Indian Contract Act but its nature is indicated in
Section 74 of that Act. It would appear from that Section that if a sum is named in a contract
as the amount to be paid in the event of a breach of the contract or where there is any other
stipulation in the contract making a person liable for an extra sum (e.g., in the shape of
interest), for which he would not have been otherwise liable, the stipulation is to be
considered penal. According to Section 14 of the Indian Contract Act, in such cases, the
person entitled to claim advantage of the penal clause can only recover such reasonable
compensation not exceeding the penalty as the Court may think it fit to award, and cannot
legally enforce the payment of the “penalty” as such.

Penal interest—The question whether a particular stipulation is or is not “penal” is to be


determined by the Court on the facts of each case. It has been held generally, that a
stipulation which imposes a higher rate of interest, in the event of a breach of the contract
with retrospective effect from the date of contract is “penal” (c.f. 99, P.R. 1894). 8. Effect

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of Usurious Loans Act—The Usurious Loans Act, 1918, gives wider powers to Courts to
interfere on equitable grounds in order to do justice between the parties when it is found
that interest is excessive or that the transaction was as between the parties thereto,
substantially unfair (vide Section 3 of the Act). In such cases the Act empowers the Court
to reopen past transactions and relieve the debtor from liability in respect of excessive
interest, etc. Attention is invited in this connection to I.L.R. VIII Lah. 205. The provisions
of the Act should be carefully studied and used in proper cases coming within its purview.
Comments The jurisdiction conferred by the Usurious Loans Act is confined to cases where
both the conditions mentioned in section 3 of the Act are satisfied, namely, (1) that the
interest is excessive and (2) that the transaction was, as between the parties thereto,
substantially unfair. It is neither possible nor desirable to enunciate a fixed rule as to what
is a reasonable rate of interest, but a stipulation for the payment of interest at twelve per
cent. per annum cannot be called excessive, such as to attract the equitable jurisdiction of
the Courts. A contract binding the debtor, in the event of his failing to pay interest at the
end of the year, to pay compound interest at the same rate, is neither unusual nor
unreasonable. Aya Ram-Tola Ram v. Bhajan Ram and others, (1927) I.L.R. VIII Lah. 205.
(Balla Mal v. Ahad Shah, 124 P. R. 1918 (P. C.), followed.)

Changes made by Punjab Relief of Indebtendness Act—The changes made in the


provisions of this Act by Section 5 of the Punjab Relief of Indebtedness Act, VII of 1934,
as amended by Punjab Act XII of 1940, deserve attention. (i) The existence of two
conditions was formerly essential before the provisions of the Usurious Loans Act could
apply. It was necessary that both— (a) the rate of interest be excessive; and (b) the
transaction be substantially unfair as between the parties. The word “and” has now been
changed to “or” and the Court can give relief even if one of these conditions only is fulfilled.
(ii) The Courts, according to the wording of the Usurious Loans Act “may” exercise all or
any of the powers specified in that Act. This word “may” has now become: “shall” and it
is obligatory for the Court to exercise these powers for giving relief in fit cases. (ii) The
Punjab Act has also now prescribed a maximum rate of interest beyond which “the Court
shall deem interest to be excessive.”

The maximum limit is: (a) For secured loans, seven and a half per cent per annum simple
interest of two per cent over the Bank rate, whichever is higher. (b) For unsecured loans,
twelve and half per cent per annum simple interest. 10. Rule of Damdupat—The rule of
Damdupat has been made applicable to the Punjab by Section 30 of the Punjab Relief of
Indebtedness Act, 1934, in respect of all ‘debts‟ as defined in Section 7 of the Act. If the
loan was advanced after the commencement of the Act, no Court shall pass or execute a
decree or give effect to an award in respect of such debt for a larger sum than twice the
amount of the sum found by the Court to have been actually advanced less any amount
already received by the Creditor. Note—The Act came into force on the 19th April, 1935—
vide Home Secretary‟s letter No. 15639 Judl., dated the 18th April, 1935. 11. Interest
should be shown separately in accounts—It is important to note in this connection the
provisions of the Punjab Regulation of Accounts Act, 1930. The accounts prescribed by

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this Act have to be maintained in such a way as to show the items due by way of interest
as separate and distinct from the principal sum.

Interest not to be included in principal—It is further provided that the creditor shall not in
the absence of agreement include any items due by way of interest, in the principal sum.
The principal and interest are to be shown separately in the opening balance of each new
six-monthly account.

Interest disallowed if account not maintained—If the Court finds that to accounts have not
been maintained as prescribed, it must disallow the whole, or a portion of the interest found
due as it thinks fit, and also disallow costs.

Interest disallowed if accounts not furnished—If the accounts have been maintained but
not furnished to the debtor as prescribed, the Court must disallow interest for the whole
period for which the creditor failed to furnish the accounts unless the creditor actually
furnished the accounts after the time prescribed and can satisfy the Court that he had some
sufficient cause for not furnishing them earlier. Interest permissible in case of certificate by
Debt Conciliation Board—It should be noted that where any creditor sues in a Civil Court
for the recovery of debt in respect of which a Debt Conciliation Board has granted a
certificate under Section 20(1) of the Punjab Relief of Indebtendness Act, the Court cannot
allow any costs or interest after the date of certification in excess of simple interest at six
per centum per annum on the amount due on the date of such certificate.

Future interest not allowed on sums deposited in Courts—Attention is drawn to Section 31


of the Punjab Relief of Indebtendness Act which lays down that the debtor may deposit in
Court money in full or part payment of his debts and interest shall cease to run on the sum
so deposited from the date of deposit. 1. Insertion made as per Act No. 104 of 1976. 1.
Change effected in Order XX CPC by Act No. 104 of 1976. 1. Due to addition of proviso
in Order 20 Rule 1(1) CPC by Act No. 104 of 1976. 1. Due to insertion of Order XXA by
Act No. 104 of 1976. 1. On account of amendment of Section 34 CPC by Act No. 104 of
1976.

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UNIT V: INSTITUTION OF SPECIAL SUITS:

There are some special suits in which the process of instituting the same differ a little from the
general suits. Some important ones are mentioned below.

1. Suits by or against the Government: Sections 79-82:

In such case the authority to be named as plaintiff or defendant, as the case may be, shall be in
the case of Central Government, the Union of India and in the case of a State Government, the
State.

2. Suits by or against military or naval men or airmen: Order 28:

In such case if such officer actually serving under the Government cannot obtain leave of
absence for the purpose of prosecuting or defending the suit in person, he may authorise any
person to sue or defend in his stead. The authority shall be in writing and shall be signed by the
officer in accordance with Rule 2.

3. Suits by or against minors and persons of unsound mind: Order 32:

Such suits can be said to have been instituted in the name of the minor or the person of unsound
mind by a person who in such suit shall be called the next friend of the minor or the person of
unsound mind when a plaint is presented and not when a guardian adlitem is appointed.

4. Suits by indigent persons: Order 33:

In such case the person claiming himself as indigent must apply to the Court for the permission
in order to sue as an indigent person.

5. Suit against dead person:

According to one view, a suit against a dead person (dead at the time of institution of the suit)
is non est and of no legal effect. The other view is such suit is not void ab initio and can be
continued against the legal representatives of the defendant if they have been brought on record
in accordance with the law.

6. Interpleader Suit and General Suits: A Comparative Approach:

Section 88 and Order 35 are related to the Interpleader Suits. Section 88 defines it and Order
35 gives the description of procedural formalities.

Interpleader Suit

General Suit

a) In such suit the real dispute is not between the plaintiff and the defendant but between the
defendants who interplead against the ordinary suit.

a) In general suits or ordinary the real dispute is between the plaintiff and the defendant.

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b) If two or more persons adversely claiming some debt, sum of money or other property
movable or immovable in dispute, from a person who does not claim any interest therein except
the charges and costs incurred by him and is ready to pay or deliver the same to the rightful
claimant, may file an inter pleader suit.

b) In ordinary suit the plaintiff claims the relief or compensation from the defendant. The
defendant can also apply for set-off and/or counter-claim.

c) In order to institute such suit there must be some debt, sum of money or other property
movable or immovable.

c) An ordinary suit can be instituted in the cases other than those where some debt, sum of
money or other property movable or immovable is related.

d) The Court may exempt the plaintiff from the suit if all liabilities have already been
discharged by the plaintiff and may proceed to try the suit in the ordinary manner regarding the
determination of the actual owner of the property in dispute.

d) In such suits neither the plaintiff nor the defendant can be exempted from the suit before the
final order is passed.

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