• Summons – Section 27 & Order 5

27. Summons to defendants .- Where a suit has been duly instituted, a

summons may be issued to the defendant to appear and answer the claim and
may be served in manner prescribed on such day not beyond thirty days from
date of the institution of the suit. Inserted by 1999 amendment

Order V

• 1. Summons.- (1) When a suit has been duly instituted, summons may

be issued to the defendant to appear and answer the claim and to file the
written statement of his defence, if any, within thirty day from the date of
service of summons on that defendant:

– Provided that no such summons shall be issued when a defendant

has appeared at the presentation of plaint and admitted the
plaintiff’s claim;

• Provided further that where the defendant fails to file the written
statement within the said period of thirty day, he shall be allowed to file
the same on such other days 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.

Smt. Badami (Deceased) by her L.R.’s V. Bhali, AIR 2012 SC 2858

Order V Rule 1- Amendments by the Acts of 1999 and 2002 provide

that summons be issued and defendants may file their written statements
within thirty days (the time for filing the written statement has been
prescribed) from the date of service.

• It can be extended by the court by recording the reasons and that it is

satisfied that there was a genuine ground for not filing the written
statements within time. But the court does not have the power to extend
 it beyond 90 days. The amendments also provide that summons must be
accompanied by a copy of the plaint.

• The format of the summons, which is used for effecting service on the
defendant, is prescribed in Appendix-B, Process No.I.

The aforementioned format of Process No.I is uniformly prescribed for effecting

service of summons which is issued under Order V Rules 1 and 5 of the Code.

• The legislature while prescribing the format of summons in the Code has
provided one column where the Court is required to mention a specific
“day, date, year and time” for the defendant's appearance in the Court to
enable him to answer the suit filed against him/her. This is also the
requirement prescribed under Section 27 of the Code as is clear from the
words occurring therein “and may be served in the manner prescribed on
such day”.

Auto Cars Vs Trimurti Cargo Movers Pvt. Ltd. & Ors. CIVIL APPEAL NO.
2113 OF 2018 mentioning of the specific “day, date, year and time” in the
summons is a statutory requirement prescribed in law (Code) and, therefore, it
cannot be said to be an empty formality.

• (2) A defendant to whom a summons has been issued under sub-rule (1)
may appear—

• (a) in person, or

• (b) by a pleader duly instructed and able to answer all material questions
relating to the suit, or

• (c) by pleader accompanied by some person able to answer all such

questions.

• (3) Every such summons shall be signed by the Judge or such officer as
he appoints, and shall be sealed with the seal of the court.
 • Every summons shall be accompanied by a copy of the plaint. Rule 2

According to rule 4 of this Order, no party shall be ordered to appear in

person unless he resides,—

• (a) 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.

Summons through electronic media:

• In Storey, David Ian Andrew v Planet Arkadia Pte Ltd and others [2016]
SGHCR 7 (“Storey”), Date of Decision (16 July 2016) the learned
Assistant Registrar granted an application for substituted service via
email, Skype, Facebook and an internet message board. This is the first
decision in Singapore permitting the use of instant messaging
applications, social media and internet message boards to effect
substituted service.

• In addition, the court said for the first time that Facebook, Skype and
Internet message boards can be used for such purposes.

– The Court in Storey gave five reasons for allowing the application

for substituted service via Skype, Facebook and internet message
boards.

– According to the above services, You Can Run but You Can’t
Hide
 RECENT INDIAN CASE LAW ON SUMMONS

• The High Court of Delhi in Tata Sons Ltd & Ors Vs John Doe(s) & Ors
on 27.04.2017, The plaintiffs are permitted to serve the summons to the
defendant by text message as well as through WhatsApp as well as by
email and to file affidavit of service.

• In Rohitashwa Kumar Agarwal And Another Vs Bar Council Of U.P.,

Allahabad And 4 Others, the Allahabad High Court in order to ensure the
presence of Chairman and Secretary of the Bar council of Allahabad
ordered notice through WhatsApp.

The Apex Court of India in Indian Bank Association and Ors Vs Union of India,
on April 21, 2014, while issuing guidelines for speedy disposal of 138 cases
filed u/ the NI Act, 1881, is said that “the summons must be properly
addressed and sent by post as well as by e-mail address got from the
complainant”.

In Kross Television India Pvt. Ltd. and Ors. vs. Vikhyat Chitra Production and
Ors. (23.03.2017 - BOMHC) : MANU/MH/1228/2017, the Bombay High Court
held that

“we have not formally approved of email and other modes as

acceptable simply because there are inherent limitation to proving service.
Where an alternative mode is used, however, and service is shown to be
effected, and is acknowledged, then surely it cannot be suggested that the
Defendants had 'no notice‘”.

• The Delhi Court in a case accepted the WhatsApp blue double tick (which
means the recipient has read the message) as a proof of notice being
served.

• The Madras High Court in Premkumar Thangadurai and anr Vs. State by
The Inspector of Police, Central Crime Branch, Veperi, Chennai (DATE of
 order: 11.01.2018, Crl.R.C.No.31 of 2018) Required petitioners to swear
to affidavits informing their e-mail addresses and that communications
of summons to such e-mail address, would be sufficient service on them
and that they would not dispute the same.

• Order 6 - Pleading.

“Pleading” shall mean plaint or written statement.

 The object and meaning of this section, the Court of Ch.D in Throp vs
Holdwort, held as follows:

 The whole object of this pleadings is to bring the parties to an issue, and
the meaning of this rules (relating to pleadings) was to prevent the issues
being enlarged, which would prevent either party from knowing when the
cause came on for trial, what the real point to be discussed and decided
was.

The underlying object of this pleadings is to ascertain the real dispute between
the parties,

 to narrow down the areas of conflict,

 to make each side aware of the questions to be argued,

 to preclude one party from making the other by surprise and

 to prevent a miscarriage of justice.

 Pleadings of a plaintiff is his plaint & pleadings of a defendant is his written

statement.

• Pleading must be complete. However, a party can obtain leave from the
court for filing additional pleadings, only in certain cases.
 • A party cannot have a suo-moto reservation of the right to file additional
pleadings later on nor without the leave of the court can file pleadings for
a limited purpose.

The pleading of the party may alternative or inconsistent.

2. Pleading to state material facts and not evidence.- (1) Every pleading

shall contain, and contain only, a statement in a concise form of the
material facts on which the party pleading relies for his claim or defence, as
the case may be, but not the evidence by which they are to be proved.

• (2) Every pleading shall, when necessary, be divided into paragraphs,

numbered consecutively, each allegation being, so far as is
convenient, contained in a separate paragraph.

• (3) Dates, sums and numbers shall be expressed in a pleading in

figures as well as in words. 

Fundamental rules of Order 6 Rule 2

• 1. Every pleading must state facts and not the law.

• 2. It must state material facts and materials only

• 3. It must state only the facts on which the party relies for his claim or
defence and not the evidence by which there are to be proved.

• 4. It must state such facts in a concise form.

• When the result of the pleading on both sides is that a material fact is
affirmed on the one side and denied on the other, the question thus
raised between the parties are called an issue of fact.

• When one party answer his opponent’s pleading by stating an objection

in a point of law, the legal question thus raised between the parties are
called an issue of Law.
1. Material facts and material facts only:

Material facts means all facts upon which the plaintiff’s cause of
action or the defendant’s defence, depends. Material facts differ from case
to case. While the material facts are primary and basic facts which must be
pleaded by a party in support of the case set up by him and in the absence of
a pleadings the party cannot be permitted to lead evidence, and failure to lead
evidence will result in the dismissal of the suit – Ramachandra Vs
Jankiraman air 1999 sc 1128.

If a party omits to plead a material facts, he will not be permitted to give

evidence of that fact at the trial, unless the court gives him
leave/permission to amend the pleadings under Rule 17. A fortiori they
could not be permitted to adduce evidence at variance with pleadings.

2. Facts and not the law.

Pleading must state only the facts and the relief sought and not the law. Or
the particular section of the statute under which the claim is made. It is for the
court to declare the law arising upon the facts before it. Facts and not the
evidence by which there are to be proved.

Every pleading must contain the material facts on which the party pleadings
relies but not the evidence by which those facts are to be proved. The
materials on which, a party relies are Facta Probanda (the facts to be proved)
and they should be stated in the pleadings. The facts by means of which they
are to be proved are Facta Probantia and they are not to be stated. Every
pleading should contain only “the facta probanda and not facto probantia”.
– P.Chidambaram Vs R.S.Raja Kannappan on 7 June, 2012 - It is settled law
that pleadings must contain only facta probanda and not facta probantia. Only
relevant facts are required to be proved at the trial in order to establish the
facts in issue.

• Rule 10, 11 & 12 of this Order must be stated specifically

4. Facts must be in a concise form

• The pleadings must be specific, clear and should contain requisite pleas
or data.

4. Particulars to be given where necessary.- In all cases in which the party

pleading relies on any misrepresentation, fraud, breach of trust, willful
default, or undue influence, and in all other cases in which particulars may
be necessary beyond such as are exemplified in the forms aforesaid, particulars
(with date and items if necessary) shall be stated in the pleading.

Object:

• Although pleading must be concise, must also be precise. Hence,

when more than one of the item mentioned in this rule is relied upon,
each must be specifically pleaded.

Rule 6: any condition precedent must be specifically pleaded.

• 7. Departure.- No pleading shall, except by way of amendment, raise any

new ground of claim or contain any allegation of fact inconsistent with
the previous pleadings of the party pleading the same.

• 9. Effect of document to be stated.- Wherever the contents of any

document are material, it shall be sufficient in any pleading to state the
effect thereof as briefly as possible, without setting out the whole or any
part thereof, unless the precise words of the document or any part
thereof are material.

•  10. Malice, knowledge, etc..- Wherever it is material to allege malice,

fraudulent intention, knowledge or other conditions of the mind of any
person, it shall be sufficient to allege the same as a fact without setting
out the circumstances from which the same is to be inferred.
 • 11. Notice.- Wherever it is material to allege notice to any person of any
fact, matter or thing, it shall be sufficient to allege such notice as a fact,
unless the form or the precise terms of such notice, or the circumstances
from which such notice is to be inferred, are material. This Rule is
subject to Rule 6.

16. Striking out pleadings.- The court may at any stage of the proceedings
order to be struck out or amended any matter An any pleading—

• (a) which may be unnecessary, scandalous, frivolous or vexatious, or

• (b) which may tend to prejudice, embarrass or delay the fair trial of the
suit, or

• (c) which is otherwise an abuse of the process of the court.

S.Malla Reddy vs M/S Future Builders Co-Op.Sty. & Anr 2013(9) SCC 349.

• Order VI Rule 16 CPC has been substituted by the CPC (Amendment)

Act, 1976. This provision deals with the amendment or striking out of
the pleadings, which a party desires to be made in his opponent’s
pleadings. In other words, the plaintiff or the defendant may ask the
court for striking out pleadings of his opponent on the ground that the
pleadings are shown to be unnecessary, scandalous, frivolous or
vexatious. This Rule is based on the principle of ex debito justitia.

• The court is empowered under this Rule to strike out any matter in the
pleadings that appears to be unnecessary, scandalous, frivolous or
vexatious or which tends to prejudice, embarrass or delay the fair trial of
the suit.

17. Amendment of Pleadings.- the Court may at any stage at the

proceedings allow either party to alter or amend his pleadings in such
manner and on such terms as may be just, and all such amendments shall
be made as may be necessary for the purpose of determining the real
questions in controversy between the parties:

• Provided that no application for amendment shall be allowed after

the trial has commenced, unless the court comes to the conclusion that in
spite of due diligence, the party could not have raised the matter before
the commencement of trial. 

• In HEERALAL vs. KAYALAN MAL AND OTHERS (1998) 1 SCC 278, it has

been held that

– “once the written statement contains an admission in favour of the

plaintiff, the amendment of such admission of the defendants
cannot be allowed to be withdrawn and such withdrawal would
amount to totally displacing the case of the plaintiff which would
cause him irretrievable prejudice”.

• In B.K. Narayana Pillai and Parameshwaran Pillai and Another (2000) 1

SCC 712, it was held that “though the defendant has a right to take
alternative pleas in defence by way of amendment, it would be subject to
qualification that

– (i) Proposed amendment should not result in injustice to the other

side;

– (ii) any admission made in favour of plaintiff should not be

withdrawn; and

– (iii) inconsistent and contradictory allegations which negate

admitted facts should not be raised.

• In view of the settled law of the Apex Court the “petitioners cannot be
permitted to request the court to strike out the earlier written statement
filed by them or to permit them to substitute a fresh written statement in
contrary to the admission made by them in their written statement”.
• “Filing of a fresh petition by the defendants under Order VI Rule 17 CPC
after about 13 years when the hearing of the suit had already
commenced and some of the witnesses were examined, is wholly
misconceived” - S.Malla Reddy vs M/S Future Builders Co-Op.Sty. &
Anr on 18 April, 2013.

• It is the settled proposition of law that any proposed amendment cannot

be allowed which changes the nature of the suit and no amendment can
be sought for in the written statement at the belated stage. 

– In deserving cases the Court can allow delayed amendment by

compensating the other side by awarding costs - Dilip Kumar
Singh vs State Of Bihar Through The ... on 5 September, 2017,
Jharkhand High Court. 

• In Dilip Kumar Singh vs State Of Bihar Through The ... on 5

September, 2017, Jharkhand High Court held that

– “The entire object of the amendment to Order 6 Rule 17 is

introduced in 2001 is to stall filing of application for amending a
pleading subsequent to the commencement of trial, to avoid
surprises and that the parties had sufficient knowledge of other's
case. It also helps checking the delays in filing the applications”.

• 18. Failure to amend after Order.- If a party who has obtained an order
for leave to amend does not amend accordingly within the time limited
for that purpose by the order, or if no time is thereby limited then within
fourteen days from the date of the order, he shall not be permitted to
amend after the expiration of such limited time as aforesaid or of such
fourteen days, as the case may be unless the time is extended by the
court.

•
 • ORDER IX: APPEARANCE OF PARTIES AND CONSEQUENCES OF
NON APPEARANCES

•  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: 2002 AMENDMENT

• [2. Dismissal of suit where summons not served in consequence of

plaintiff's failure to pay costs

• 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.]

• 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.

• 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.

• Dismissal for default: Rule 8. Procedure where defendant only

appears.-

• According to Rule 8, 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.

Bar to further suit

• 9. Decree against plaintiff by default bars fresh suit.- (1) Where a suit

is wholly or partly dismissed under rule 8, the plaintiff shall be
precluded from bringing a fresh suit in respect of the “same cause of
action”,

– But he may apply for an Order to set the dismissal aside, and if he
satisfies the court that there was sufficient cause for his non
appearance when the suit was called on for hearing, the court
shall make an Order setting aside the dismissal upon such terms
as to costs or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit.

• Order IX Rule 9 does not bar a Suit on a different cause of action

but where a Suit is wholly or partly dismissed in default, the plaintiff
 cannot bring a fresh Suit in respect of the same cause of action, but
may apply for setting aside the dismissal order and the

– Court being satisfied may set aside the order of dismissal.

• Gujarat Electricity Board, Baroda and others v. Saurashtra Chemicals,

Porbandar, AIR 2004 (Gujarat) 83, wherein it was held that

– When the suit was dismissed for default under Order 9, Rule 8
C.P.C. and no attempt has been made to get the suit restore. Fresh
suit on same cause of action is barred under Order IX Rule 9
C.P.C. and it was not barred by res-judicata, but it is barred by
Order II Rule 2 of C.P.C.

• In Firdous Omer V. Bankim Chandra Daw, AIR 2006 SC 2759, the Apex
Court held that

– Extension of limitation while considering an application for

restoration of a suit must be examined considering as to whether
sufficient cause was there preventing a party to approach the
Court within limitation.

• Sri Chinnappa v. Corporation of the City of Bangalore, AIR 2005

Karnataka 70 , wherein it was held that

– the suit has been filed for declaration of title and injunction. But
earlier suit was filed only for injunction. Question of plaintiff's
title was not in issue in earlier suit. So it is not hit by Order 2 Rule
2 of C.P.C

• Deva ram and another v. Ishwar Chand and another, AIR 1996 SC 378
(1) it was held that

– the suit for recovery of price money of the suit land was dismissed.
 – Subsequent suit by the plaintiffs for recovery of possession on
ground that they were owners of land, distinctive cause of action in
subsequent suit is not barred under Order II Rule 2 C.P.C.

• Josey Francis v. Sunoj K.Balan, AIR 2009 Kerala 188, it was held that

– in earlier suit for perpetual injunction apprehension that

defendant would alienate suit property to somebody else, gave rise
to cause of action.

– Whereas cause of action in latter suit of specific performance was

default of defendant to perform his part as agreed.

– Suit based on separate and distinct cause of action, is not

attracted by Order 2 Rule 2 C.P.C.

• Whether order 9 r.9 can be invoked against the assignees and legal
representatives?

• In Suraj Ratan Thirani & Ors vs The Azamabad Tea Co. & Ors 1965
AIR 295, the Apex Court held that

– the word "plaintiff' in the rule should obviously, in order that the
bar may be effective, include his assignees and legal
representatives.

• The Madras High Court in Saraswathi Ammal vs G.Durairaj on 15

June, 2015 observed that

“Order 9, Rule 9 of the Code of Civil Procedure, 1908 can also be

invoked against the legal representatives or assignees of the plaintiff, who filed
earlier suit”.

• A cause of action is a bundle of facts on the basis of which relief is

claimed - Suraj Ratan Thirani & Ors vs The Azamabad Tea Co. & Ors
1965 AIR 295, 1964 SCR (6) 192.
• Under sub rule (2) No Order shall be made under unless notice of the
application has been served on the opposite party.

• FRESH SUMMONS: 7 Days initially it was one month – 1999 amendment

• 5. Dismissal of suit where plaintiff, after summons returned

unserved, fails for [seven days] 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
period of [seven days] 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 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

• (c) 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.

• 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 may make an order that the suit be heard ex
parte;]
• (b) When summons not duly served--If it is not proved that the summons
was duly served, the Court shall direct a second summons to be issued
and served on the defendant;

• (c) 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 the summons, the
Court shall postpone the hearing of the suit to a 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 plaintiff's 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.

• Setting aside decree ex parte against defendants

• Rule 13 of Order 9 says, in any case in which a decree is passed ex

parte against a defendant, he may apply to the Court by which the
decree was passed for an order to set it aside; and

• if he satisfies the Court that the 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 as against him
upon such terms as to costs, payment into Court or otherwise as it
thinks fit, and shall appoint a day for proceeding with the suit:

• Provided that where the decree is of such a nature that it cannot be set

aside as against such defendant only it may be set aside as against all or
any of the other defendants also:

• When the ex-parte decree cannot be set aside?

 • According to the second proviso to Rule 13 of Order 9, No Court shall set
aside a decree passed ex parte merely on the ground that there has been
an irregularity in the service of summons, if it is satisfied that the
defendant had notice of the date of hearing and had sufficient time to
appear and answer the plaintiffs claim.

Further, the explanation to that rule says where there has been an appeal
against a decree passed ex parte under this rule, and the appeal has been
disposed of on any ground other than the ground that the appellant has
withdrawn the appeal, no application shall lie under this rule for setting aside
the ex parte decree.]

– Note: the Second proviso and the Explanation were added by 1976
amendment.

• "ex parte" means“ in the absence of”. An ex-parte decree is a decree

passed against defendant in absentia.

• The ex-parte decree so passed is legal, operative, and enforceable like a

bi parte decree.

• The provision of Order 9 Rule 13cannot be employed for setting aside a

compromise decree entered into by the counsel and singned on behlf of
the defendant.

Remedies against Ex Parte decree

• When an ex parte decree is passed by the court, the defendant has the
following remedies:

• The remedies are statutory remedy.

• (i) he may appeal from the ex parte decree under section 96.

• (ii) he may apply for review of judgment under Order 47 R.1.

• (iii) he may apply for setting aside the decree under Rule 13 of Order 9.

• (iv) he may bring a suit on the ground of fraud.

• In Harishbhai Chunilal Shah vs. Nalinkumar Champaklal Shah and Ors.

(01.04.1995 - GUJHC) : MANU/GJ/0179/1995, it has been held that

– “The application filed under Order 9, Rule 13 is a statutory remedy

which was available to the defendant. In pursuing this remedy it
cannot possibly be suggested that the other remedy available to
the party (an appeal under Section 96 of CPC) was suspended, or
that the same could be exercised at some later point of time in case
the proceeding under Order 9, Rule 13 failed.

• Who can apply for setting aside an ex parte decree?

• A person who is not a party cannot apply.

• The legal representative of the deceased can also apply vide section 146
of the code.

• There is no inherent powers to set aside an ex-parte decree, where the

case does not fall within the domain of Order 9 Rule 13.

• In Sangram Singh v. Election Tribunal, [1955] 2 S.C.R. P. 1. Dealing

with the meaning of the words "The Court may proceed ex parts" in O.'
IX, r. 6(1)(a) Bose J. speaking for the Court said:

– "When the defendant has been served and has been afforded an
opportunity of appearing, then, if he does not appear, the Court
may proceed in his absence. But, be it noted, the Court is not
directed to make an ex parte order.

– If a party does appear on the day to which the hearing of the suit is
adjourned, he cannot be stopped from participating in the
proceedings simply because he did not appear on the first or some
 other hearing. But though he has the right to appear at an
adjourned hearing, he has no right to set back the hands of the
clock. Order IX. r. 7 makes that clear. Therefore, unless he can
show good cause, he must accept all that has gone before and be
content to proceed from the stage at which he comes in.“ See also:
Arjun Singh vs Mohindra Kumar & Ors 1964 AIR 993, 1964
SCR (5) 946

• Rule 7 says:

– “Where the Court has adjourned the hearing of the suit ex parte,
and the defendant, at or before such hearing, appears and assigns
good cause for his previous non-appearance, he may, upon such
terms as the Court directs as to costs or otherwise, be heard in
answer to the suit as if he had appeared on the day fixed for
his appearance”.

Provided no decree shall be set aside on any such application as aforesaid

unless notice thereof has been served on the opposite party – Rule 14.

ORDER XI DISCOVERY & INSPECTION

• In any suit the plaintiff or defendant by leave of the Court may deliver
interrogatories in writing for the examination of the opposite parties or
any one or more of such parties and such interrogatories when delivered
shall have a note at the foot thereof stating which of such interrogatories
each of such persons is required to answer:

– Provided that no party shall deliver more than one set of

interrogatories to the same party without an order for that purpose
:

– Provided also that interrogatories which do not relate to any

matters in question in the suit shall be deemed irrelevant,
 notwithstanding that they might be admissible on the oral cross-
examination of a witness."

• The purpose of discovery, inspection and production of documents is to

enable a party to a suit to obtain necessary information regarding the
material facts constituting the facts of the case.

• “Interrogative” means “the form of a sentence that is used

for asking questions”.

– It refers to a set or series of questions drawn up for the purpose of

being propounded to a party, witness or other person having some
information of interest in a case.

• Discovery is not limited to giving the plaintiff a knowledge of that which

he does not know, but includes the getting an admission of anything
which he has to prove on any issue which is raised between him and the
defendant - Attorney General v. Gaskill (1882) 20 Ch D 519.

– When the information is relates to a facts it is called discovery of

facts and if the information relates to documents in the
possession of other party, the disclosure of the document is called
as discovery of documents.

• In Sree Padmanabha Dasa Marthanda Varma v. Moolan Thirunal Rama

Varma (1998) 1 Ker LT 113. It was observed that interrogatories have
very often a more useful function in action than is always appreciated.
Though interrogatories are to be kept strictly within the legitimate limits
within which they are permissible, the administering of interrogatories is
definitely a step which is more often desirable than undesirable and to be
encouraged rather than to be discouraged because they frequently bring
an action to an end at an earlier stage than otherwise would be the case,
to the advantage of all parties concerned thereby shortening the life-span
of a litigation.
• In W. Section Insulators of India v. Power Systems and Projects (1988) 1
Ker LT 297, the question whether details of accounts can be called for
from the rival party considered by The Kerala High Court, the Court held
that “where an account is claimed or question of account arises, the
interrogatories as to details of accounts may be allowed. 

– Interrogatories should be confined to obtaining from the party

interrogated admissions of facts which it is necessary for the party
interrogating to prove in order to establish his case – M/S Ram
Pravesh Rai Estate (P) Ltd. vs Sri Rajesh Kumar Singh @ Munna on
12 January, 2016

• Interrogatories must be confined to matters which are in issue or

sufficiently material at the particular stage of the action at which they
are sought to be delivered, or to the relief claimed including the amount
of the damages, and as a general rule, perhaps to matters which are
relevant to the facts directly in issue, but under some circumstances
they may extend to the facts the existence or non-existence of which is
relevant to the existence or non-existence of the facts directly in issue.

• Thakur Prasad v. Md. Sohayal AIR 1977 Patna 233

• The object and purpose of serving interrogatories is to enable a party to

require information from his opponent for the purpose of maintaining his
own case or for destroying the case of the adversary.

• The answering of the interrogatories might save expenses and shorten

the litigation by enabling a party to obtain from the other side
information as to material facts regarding the questions in dispute or
issues raised or to obtain admission of facts which the plaintiff has to
prove on any issue.
• Answering the interrogatories might often shorten the trial proceedings
and save the time of the Court and parties besides saving expenses for
summoning witnesses, documents and the like.

• As a general rule, therefore. Interrogatories are to be allowed whenever

the answer to them will serve either to help the party in proving his case
or to destroying the case of the adversary.

• The power is not meant to be confined within narrow limits.

• It should be used liberally whenever it can shorten the litigation and

serve the interest of justice.

– The power is to be exercised with care and caution so that it is not

abused by any party. Interrogatories have to be confined to the
facts which are relevant to the matters in question in the suit.

• In Lamb v. Munster, 1882-10 QBD 110 at p. 111, it was held, "An

objection to answer interrogatories which is made by affidavit on the
ground of the tendency of the answer to criminate the person interrogated
may be valid, although not expressed in any precise form of words.”

• Mellor J. in (1876-2 QBD 524 at p. 529) has observed, "It is well

established in equity that a bill of discovery for the purpose of obtaining
the information which is asked for here would be demurrable, that is, the
court of Chancery would not allow the defendant to be harassed by
having to answer such questions, but would prevent them from being
put,”

• A plaint or a written statement may not sufficiently disclose the nature of

parties to the case, and to make good the deficiency, either party can
serve interrogatories in writing which, when answered, would enable the
Court to decide the suit without probing into the questions elaborately in
the light of oral and documentary evidence.
 • The Courts have to approach the question in a broad perspective aimed
at seeing whether the grant thereof will enable fair trial and would save
the cost of litigation to the parties.

• Of course, the possible objections specifically mentioned in Rule 6 of

Order XI, C.P.C. also have to be considered.

• The interrogatories have to bear a reasonable close connection with the

matters in question.

• A party is entitled to administer interrogatories to his opponents to

obtain admission from him with the object of facilitating proof of his case
as also to save the costs which may otherwise be incurred in adducing
evidence to prove the necessary facts. (Taken from P. Balan vs Central
Bank Of India, Calicut: AIR 2000 Ker 24.

• According to rule 4 of Order XI, Interrogatories shall be in Form No. 2 in

Appendix C, with such variations as circumstances may require.

• 6. Objections to interrogatories by answer

• Any objection to answering any interrogatory on the ground that it is

scandalous or irrelevant or not exhibited bona fide for the purpose of the
suit, or that the matters inquired into are not sufficiently material at that
stage, [or on the ground of privilege or any other ground], may be taken
in the affidavit in answer.

• CPC – Special Suits

• Suit against Government

• Section 79 r/w Order 27

 79. Suits by or against Government.- In a Suit by or against the

Government, the authority to be named as plaintiff or defendant, as the
case may be, shall be—
 • (a) in the case of a suit by or against the Central Government, the Union
of India, and

• (b) in the case of a suit by or against a State Government, the State

• Section 79 lays down the procedure where the suits are brought by or
against the government, however, it does not deal with the rights and
liabilities enforceable by or against the government.

• Jurisdiction:

• The suit against the government can only be brought in the court within
the local limits of whose jurisdiction the cause of action arose. The word
“dwell” or “reside”, “personally works for gain” or “carries on business”
occur in sections 18,19 and 20 of the Code do not apply.

80. Notice.- (1) Save as otherwise provided in sub-section (2), no suit shall be

instituted against the Government (including the Government of the State of
Jammu and Kashmir) or against a public officer in respect of any act
purporting to be done by such public officer in his official capacity, until the
expiration of two months next after notice in writing has been delivered
to, or left at the office of—

• To whom the notice to be addressed

• (a) in the case of a suit against the Central Government, except where
it relates to a railway, a Secretary to that Government;

• (b) in the case of a suit against the Central Government where it relates
to a railway, the General Manager of that railway;

• (bb) in the case of a suit against the Government of the State of

Jammu and Kashmir, the Chief Secretary to that Government or any
other officer authorised by that Government in this behalf;
• (c) in the case of a suit against any other State Government, a
Secretary to that Government or the Collector of the district

• Contents of notice

• and, in the case of a public officer, delivered to him or left at his office,
stating the cause of action, the name, description and place of
residence of the plaintiff and the relief which he claims; and the
plaint shall contain a statement that such notice has been so
delivered or left.

• Exception

• (2) A suit to obtain an urgent or immediate relief against the

Government (including the Government of the State of Jammu and
Kashmir) or any public officer in respect of any act purporting to be
done by such public officer in his official capacity, may be instituted ,
with the leave of the court, without serving any notice as required
by sub-section (1); but the court shall not grant relief in the suit,
whether interim or otherwise, except after giving to the government or
public officer, as the case may be, a reasonable opportunity of
showing cause in respect of the relief prayed for in the suit:

• Provided that the court shall, if it is satisfied, after hearing the parties,
that no urgent or immediate relief need be granted in the suit, return
the plaint for presentation to it after complying with the
requirements of sub-section (1).

• Defects in notice

• (3) No suit instituted against the government or against a public

officer in respect of any act purporting to be done by such public officer
in his official capacity shall be dismissed merely by reason of any
 error or defect in the notice referred to in sub-section (1), if in such
notice—

• (a) the name, description and the residence of the plaintiff had been
so given as to enable the appropriate authority or the public officer
to identify the person serving the notice and such notice had been
delivered or left at the office of the appropriate authority specified in sub-
section (1), and

• (b) the cause of action and the relief claimed by the plaintiff had
been substantially indicated.

Object of notice

• Is to give the secretary of state or the public officer an opportunity to

reconsider his legal position and to make or amends to settle the
claim, if so advised, without litigation. This section has been enacted
as a measure of public policy and the underlying measure is the
advancement of justice and securing of public good by avoidance of
unnecessary litigation.

• Notice must be given only after the accrual of the cause of action.

• Section has been extensively amended by 1976 amended. Sub section 2

& 3 has been inserted by this amended. The opening part of sub section
1 “Save as otherwise provided in sub-section” has also been inserted
by act, 1976.

• This section is implicit and mandatory and admits no exception. The

language of this section is imperative and absolutely debars a court from
entertaining a suit instituted without compliance with its provisions. If
the provisions of this section is not complied with, the plaint must be
rejected under order 7 Rule 11(d).
• Prakash Industries Limited vs Smt. Maitri Shukla And Ors.AIR 1998
Ori 45

• In this case, the Court held that “order has been passed without
specifically considering the effect of Section 80(2), must be quashed
and directed the trial Court to reconsider the question of grant of leave in
the light of the provisions contained in Section 80(2), C.P.C.

• In Bihari Chowdhary & Anr vs State Of Bihar & Ors: 1984 AIR 1043,
1984 SCR (3) 309, The Supreme Court held that a suit against the
Government or a public officer in respect of any act purported to be
done by him in his official capacity until the expiration of two months
after notice in writing cannot be validly instituted.

• Section 80(2), C.P.C. has been introduced in the amended Code of Civil
Procedure with a view to mitigate the rigours of Sub-section (1) of
Section 80 and to enable a person to seek urgent and immediate
relief.

• It is in the nature of an exception to Section 80(1) and enables the

plaintiff to file a suit to obtain an urgent and immediate relief without
serving any notice as required by Sub-section (1) subject to the
condition that such a suit has to be filed with leave of the Court.
Where the Court is satisfied that urgent on immediate relief is required
and the plaintiff would not be in a position to wail for the period of notice
to expire, leave may be granted to a plaintiff to file suit against the
State without service of notice contemplated under Section 80(1). 

• Order 27 (1)

• 1. Suits by or against government.- In any suit by or against the

government, the plaint or written statement shall be signed by such
person as the government may, by general or special order, appoint in
this behalf, and shall be verified by any person whom the
 government may so appoint and who is acquainted with the facts of
the case.

• 2. Persons authorised to act for government.- Persons being ex officio

or otherwise authorised to act for the government in respect of any
judicial proceeding shall be deemed to be the recognised agents by whom
appearances, acts and applications under this Code may be made or
done on behalf of the government.

• 4. Agent for government to receive process.- The government pleader

in any court shall be the agent of the government for the purpose of
receiving processes against the government issued by such court.

• DUTIES OF COURT

• 5. Fixing of day for appearance on behalf of government.- The court,

in fixing the day for the government to answer to the plaint, shall allow a
reasonable time for the necessary communication with the
government through the proper channel, and for the issue of
instructions to the government pleader to appear and answer on behalf
of the government, and may extend the time at its discretion but the
time so extended shall not exceed two month, in the aggregate.

• 5B. Duty of court in suits against the government or a public officer

to assist in arriving at a settlement.- (1) In every suit or proceeding to
which the government, or a public officer acting in his official capacity, is
a party, it shall be the duty of the court to make, in the first instance,
every endeavour, where it is possible to do so consistently with the
nature and circumstances of the case, to assist the parties in arriving
at a settlement in respect of the subject matter of the suit.

(2) If, in any such suit or proceedings, at any stage, it appears to the
court that there is a reasonable possibility of a settlement between
 the parties, the court may adjourn the proceeding for such period as
it thinks fit, to enable attempts to be made to effect such a
settlement.

• (3) The power conferred under sub-rule (2) is in addition to any other
power of the court to adjourn proceedings.

 5A. Government to be joined as a party in a suit against a public

officer.- Where a suit is instituted against a public officer for damages
or other relief in respect of any act alleged to have been done by him in his
official capacity, the government shall be joined as a party to the Suit.

• 7. Extension of time to enable public officer to make reference to

government.- (1) Where the defendant is a public officer and, on
receiving the summons, considers it proper to make a reference to
the government before answering the plaint, he may apply to the
court to grant such extension of the time fixed in the summons as may
be necessary to enable him to make such reference and to receive
orders thereon through the proper channel.

• (2) Upon such application the court shall extend the time for so long
as appears to it to be necessary. 

 8. Procedure in suits against public officer.- (1) Where the government

undertakes the defence of a suit against a public officer, the government
pleader, upon being furnished with authority to appear and answer the plaint,
shall apply to the court, and upon such application the court shall cause a
note of his authority to be entered in the register of civil suits.

• (2) Where no application under sub-rule (1) is made by the

government pleader on or before the day fixed in the notice for the
defendant to appear and answer, the case shall proceed as in a suit
between private parties:
• 8B. Definitions of “Government” and “Government pleader”.- In this
Order unless otherwise expressly provided, Government” and
‘Government pleader” means respectively—

• (a) in relation to any suit by or against the Central Government , or

against a public officer in the service of that Government, the
Central Government; and such pleader as that government may
appoint whether generally or specially for the purposes of this Order;

• (C) in relation to any suit by or against a State government or against a

public officer in the service of a State, State Government; government
pleader as defined in clause (7) of section 2, or such other pleader as the
State Government may appoint, whether generally or specially, for the
purposes of this Order.

• When aliens may use.- section 83

• Alien enemies residing in India with the permission of the Central

Government, and alien friends, may sue in any Court otherwise
competent to try the suit, as if they were citizens of India, but alien
enemies residing in India without such permission, or residing in a foreign
country, shall not sue in any such Court.

Explanation.–– Every person residing in a foreign country, the

Government of which is at war with India and carrying on business in
that country without a license in that behalf granted by the Central
Government, shall, for the purpose of this section, be deemed to be an
alien enemy residing in a foreign country.

• Alien enemy, who is ?:

• The mere fact that a person is interned does not make that person an
alien enemy if no war has been declared. Person do not become as “alien
 enemy” merely because they had been carrying on business in an allied
country temporarily in occupation of an enemy.

• Where there was no war declared with a country, then its citizens who
visits India with a proper visa can sue in an Indian Court for damages for
breach oif contract by an Indian citizens in respect of trade transaction
in India.

• According to a Delhi High Court, if a suit has already been filed, then the
subsequent of the plaintiff becoming an alien enemy does not affect the
prosecution of the suit. But according to the Calcutta High Court, the
trial of the suit ca be suspended.

• A company is an alien company if it is controlled by persons who are

alien enimies.

• A person residing or carrying on business in a friendly country

indefinitely occupied by the enemy is not hit by this section.

• Landmark Judgments on Section 83

• 1. Ashok vs Rajendra Bhausaheb Mulak on 2 August, 2010

2. A.M. Ali Akbar And Anr. vs Keelakarai South Street Jamath on 30
April, 2001
3. Umesh Challiyil vs K.P.Rajendran on 26 February, 2008
4. G.M.Siddeshwar vs Prasanna Kumar on 8 March, 2013
Anant Waman Tare vs Abdul Rehman Abdul Guffur Antulay on 17
October, 1996
5. Shankarsinh vs Dinesh Aggarwal - 2009-Jt-12-352 on 11 August,
2010
6. Ramkrishna Jagannath Patil vs Chandrakant Bhaurao Khaire on 29
April, 2005

• Section 84. When foreign State may sue.

• A foreign State may sue in any competent Court:

• Provided that the object of the suit is to enforce a private right vested
in the Ruler of such State or in any officer of such State in his public
capacity.

• 85 (1) The Central Government may, at the request of the Ruler of a

foreign State or at the request of any person competent in the opinion of
the Central Government to act on behalf of such Ruler, by order,
appoint any persons to prosecute or defend any suit on behalf of
such Ruler, and any persons so appointed shall be deemed to be the
recognized agents by whom appearances, acts and applications under
this Code may be made or done on behalf of such Ruler.

• 86. Suits against foreign Rulers, Ambassadors and Envoys.

• (1) No foreign State may be sued in any Court otherwise competent to

try the suit except with consent of the Central Government certified
in writing by a Secretary to that Government:

• Provided that a person may, as a tenant of immovable property sue

without such consent as aforesaid a foreign State from whom he holds
or claims to hold the property.

• (2) Such consent may be given with respect to a specified suit or to

several specified suits or with respect to all suits of any specified
class or classes, and may specify, in the case of any suit or class of
suits, the Court in which the foreign State may be sued,

• but it shall to be given, unless it appears to the Central Government

that the foreign State.

• (a) has instituted a suit in the Court against the person desiring to
sue [it], or
• (b) [itself] or another, trades within the local limits of the jurisdiction of
the Court, or

• (c) is in possession of immovable property situate within those limits and

is to be sued with reference to such property or for money charged
thereon, or

• (d) has expressly or impliedly waived the privilege accorded to [it] by this
section.

• 91. Public nuisances and other wrongful acts affecting the public.

• (1) in the case of a public nuisance or other wrongful act affecting, or

likely to affect, the public, a suit for a declaration and injunction or
for such other relief as may be appropriate in the circumstances of the
case, may be instituted,-

• (a) by the Advocate General, or

• (b) with the leave of the Court, by two or more persons, even though
no special damage has been caused to such persons by reason of such
public nuisance or other wrongful act.]

• (2) Nothing in this section shall be deemed to limit or otherwise affect

any right of suit which may exist independently of its provisions.

• 268 of IPC

• The term “Public nuisance” is not defined under this code.

• 268. Public nuisance.—A person is guilty of a public nuisance who does

any act or is guilty of an illegal omission which causes any common
injury, danger or annoyance to the public or to the people in general
who dwell or occupy property in the vicinity, or which must necessarily
cause injury, obstruction, danger or annoyance to persons who may
have occasion to use any public right.
• A common nuisance is not excused on the ground that it causes some
convenience or advantage.

• Nuisance are classified into two types:

• 1. Public Nuisance 2. Private Nuisance.

• Examples for public nuisance:

• 1. Obstruction of public high way

• 2. Pollution of waterways

• 3. Ringing of the bell day and night

• Section 91 is not applicable to private nuisance.

• Private nuisance means a nuisance according to a statute which is

generally called nuisance in law.

• Sub-section (2) – Cr.P.C Ss 133- 143 & 144.

• Section 88 r/w order 35

• An interpleader suit is one in which the real controversy/dispute is

not between the plaintiff and the defendant, but is rather between
the defendants only, who inter-plead against each other. 

• In an interpleader suit, the plaintiff is not really interested in the

subject-matter of the suit.

• The plaintiff in an interpleader suit must be in a position of impartiality/

non-arbitrariness.

• The Halsbury’s Laws of England: The Halsbury’s Laws of England

(Fourth Edition), Volume 37, Para 264 (at p.200) states that,
 – “Where a person is under liability in respect of a debt or in respect of
any money, goods or chattels and he is, or expects to be sued for or
in respect of the debt or money or those goods or chattels, by two or
more persons making adverse claims thereto, he may apply to the
court for relief by way of inter-pleader”.

• Section 88

• Where inter-pleader suit may be instituted: where two or more persons

claim adversely to one another some debt, sum of money or other
property (moveable or immoveable) from another person, who claims
no interest therein other than for charges or costs and who is ready to
pay or deliver it to the rightful claimant, such other person may institute
a suit of interpleader against all the claimants for the purpose of
obtaining a decision as to the person to whom the payment or delivery
shall be made and of obtaining indemnity for himself.

– Provided that where any suit is pending in which the rights of all
parties can properly be decided, no such suit of inter-pleader shall
be instituted.

• The preliminary object of this suit is to have the claims of rival

defendants adjudicated.

• Inter pleader suit is a process whereby the plaintiff call upon the rival
claimants/defendants to appear before the court and have their
respective claims decided.

• In  Asan v. Saroda, AIR 1922 Cal 138, it was held that, where

defendants do not claim adversely to each other, nor does the plaintiff
admit the title of one of the defendant or is willing to pay or deliver the
property to him, the suit is not interpleader.
• in Jagdish Rai and Anr. v. Sada Nand (1993-2)104 P.L.R. 387, it was
held that interpleader suit filed by the tenant against the landlord as
well as the Church claiming independent title of ownership in them,
would be maintainable. 

• Order 35

• 1. Plaint in interpleaded suit.- In every suit of interpleaded the plaint

shall, in addition to the other statements necessary for plaints, state—

• (a) that the plaintiff claims no interest in the subject matter in dispute
other than for charges or costs;

• (b) the claims made by the defendants severally; and

• (c) that there is no collusion between the plaintiff and any of the
defendants.

• 3. Procedure where defendant is suing plaintiff.- Where any of the

defendants in an interpleader suit is actually suing the plaintiff in
respect of the subject matter of such suit, the court in which the suit
against the plaintiff is pending shall, on being informed by the court in
which the interpleader suit has been instituted, stay the proceedings as
against him;

– In Satyanarain  v. District Judge, Tonk & Ors, the Rajasthat

HC held that, it is not as if that once the suit for interpleader is
filed, the other civil suit has to be stayed automatically; in order to
invoke the power under Order XXXV, Rule 3 of the Code of Civil
Procedure, 1908, the plaintiff (or interpleader) is duty bound to
establish a prima facie case in his favour.

• Procedure at First Hearing

 • Order XXXV, Rule 4 of the Code of Civil Procedure, 1908 empowers the
court to declare at the first hearing itself, that the plaintiff is discharged
from all liabilities and as a necessary corollary the court can award the
plaintiff his costs and dismiss him from the suit.

• However, if the court is of the opinion that justice, propriety and

convenience requires that all parties to the suit be retained, then, the
court shall not discharge the plaintiff till the final disposal of the
suit. If the court finds it necessary, then, it can direct that certain other
issues be framed and tried along with other issues albeit the suit, and
that any claimant (that is, defendant in the interpleader suit) be made a
plaintiff in lieu of or in addition to the original plaintiff.

• Who cannot file Interpleader Suit?

•  5. Agents and tenants may not institute Interpleader suits.- Nothing

in this Order shall be deemed to enable agents to sue their principals,
or tenants to sue their landlords, for the purpose of compelling them to
interplead with any persons other than persons making claim through
such principal or landlords.

IIIustrations

– (a) A deposits a box of jewels with B as his agent. C alleges that

the jewels were wrongfully obtained from him by A, and claims
them from B. B cannot institute an interpleader suit against A and
C.

• (b) A deposits a box of jewels with B as his agent. He then writes to C for
the purpose of making the jewels a security for a debt due from himself
to C. A afterwards alleges that C’s debt is satisfied, and C alleges the
contrary. Both claim the jewels from B. B may institute an interpleader
suit against A and C.
• Appeal: An order dismissing an interpleader suit is appealable. An
appeal can be preferred under Order XLIII, Rule 1 of the Code of Civil
Procedure, 1908.

• Indigent person

• Order XXXIII relates to “indigent persons”.

• An indigent person is defined in explanation 1 to Rule 1 according to

which a person is an indigent person if he is not possessed of
sufficient means other than property exempted from attachment in
execution of the degree, to enable him to pay prescribed fees.

• b) where no such fee is prescribed, if he is not entitled to property

worth one thousand rupees other than the property exempt from
attachment in execution of a decree, and the subject matter of the suit.

• Explanation II: Any property which is acquired by a person after the

presentation of his application for permission to sue as an indigent
person, and before the decision of the application, shall be taken into
account in considering the question whether or not the applicant is an
indigent person.

• The term “indigent person” has been substituted for the expression
“pauper” by the amendment Act, 1976.

• Scope & object of this order

• A plaintiff suing in a civil court must pay the court fee prescribed by the
law for the plaint. The fees are prescribed by the Court Fees Act, 1870.
but a person may be a too poor to pay the court fee, and the object of
this code is to enable that person to bring and prosecute the suits
without payment of the court fees.
• In UOI v. Khaders International Construction Ltd, It has been held
that the provisions of Order XXXIII, Rule 1 of C.P.C, 1908 have been
enacted to enable poor persons to seek justice by filling suits or
appeals without court fee.

• Enquiry into the means of an indigent person: Rule 1A:

• EVERY ENQUIRY into the question whether or not a person is an

indigent person shall be made, in the 1st instance, by the chief
ministerial officer of the court, unless the court otherwise directs, and
the court may adopt the report of such officer as its own findings or
may itself make an enquiry into the question.

• 2. Contents of application.- Every application for permission to sue as

an indigent person shall contain the particulars required in regard to
plaints in suits; a schedule of any movable or immovable property
belonging to the applicant, with the estimated value thereof, shall be
annexed thereto; and it shall be singed and verified in the manner
prescribed for the signing and verification of pleadings.

• 3. Presentation of application.- Notwithstanding anything contained in

these rules, the application shall be presented to the court by the
applicant in person, unless he is exempted from appearing in court, in
which case the application may be presented by an authorised agent
who can answer all material questions relating to the application,
and who may be examined in the same manner as the party represented
by him might have been examined had such party attended in person:

• Provided that, where there are more plaintiffs than one, it shall be
sufficient if the application is presented by one of the plaintiffs.

• 4. examination of applicant.- (1) Where the application is in proper

form and duly presented, the court may if it thinks fit, examine the
 applicant, or his agent when the applicant is allowed to appear by agent,
regarding the merits of the claim and the property of the applicant.

• Where the application is presented by an agent, the court may, if it is

thinks fit, order that the applicant may be examined by a commission in
the manner in which the examination of an absent witness may be taken
– Rule 4(2).

•  5. Rejection of application.- The court shall reject an application for

permission to sue as an indigent person—

• (a) where it is not framed and presented in the manner prescribed by

rules 2 and 3, or

• (b) where the applicant is not an indigent person, or

• (c) where he has, within two months next before the presentation of
the application, disposed of any property fraudulently or in Order to be
able to apply for permission to sue as an indigent person:

• Provided that no application shall be rejected if, even after the value of
the property disposed of by the applicant is taken into account, the
applicant would be entitled to sue as an indigent person, or

• Clause (c)

• Where a person has a property worth Rs.1000, and he disposes it in

September 2000 to enable himself to sue as a pauper and applies for
leave to sue as a pauper in November 2000, the application should be
rejected under this Rule 5 of Order 33. – See: Muhammad Abdullah Vs
Secretary of State, AIR 1934 Lah 681.

• (d) where his allegations do not show a cause of action, or

• (e) Where he has entered into any agreement with reference to the subject
matter of the proposed suit under which any other person has obtained
an interest in such subject matter, or

• (f) where the allegations made by the applicant in the application show
that the suit would be barred by any law for the time being in force,
or

• (g) where any other person has entered into an agreement with him to
finance the litigation.

• 8. Procedure if application admitted.- Where the application is

granted, it shall be numbered and registered, and shall be deemed the
plaint in the Suit, and the suit shall proceed in all other respects as a
Suit instituted in the ordinary manner, except that the plaintiff shall
not be liable to pay any court fee or fees payable for service of process
in respect of any petition, appointment of a pleader or other proceedings
connected with the suit.

• Once the Court finds that the plaintiffs have no sufficient means to pay
the Court-fee, then their application for prosecuting the suit as indigent
persons is to be allowed.

• The court cannot impose a further condition that the plaintiffs should
furnish security for the Court-fee and  no provision has been made for
making the security for the payment of Court-fee before the disposal of
the suit. See also: Secretary of State v. Thayammal, AIR 1937 Madras
267.; Rachabhathuni Brahman v. State of Madras, AIR 1954 Madras
277.

• k. Yashoda vs State of Kerala AIR 1997 Ker 130

• Under Order 33, Rule 10 when an indigent person succeeds in the suit,
the amount of Court-fee has to be calculated and the amount shall be
 recovered by the State Government from any party ordered by the decree
to pay the same and shall be a first charge on the subject-matter of the
suit.

• Order 33, Rule 11A deals with the procedure when an indigent person's
suit abates. It is stated there that when the suit abates, then the Court-
fees which would have been paid by the plaintiff if he had not been
permitted to sue as an indigent person shall be recoverable by the State
Government from the estate of the deceased plaintiff.

• Under Rule 12, State Government is given the right at any time to apply
to the Court to make an order for the payment of Court-fee under Rules
10, 11 or Rule 11 A.

• Thus a perusal of Rules 10, 11 and 11A makes it clear that the State is
entitled to realise the amount payable as Court-fee only after the
contingencies mentioned in Rules 10, II and 11A arise.

• Thus, a perusal of the provisions of Order 33 shows that no provision

has been made for making the security for the payment of Court-fee
before the disposal of the suit.

• 9. Withdrawal of permission to sue as an indigent person.- The court

may, on the application of the defendant, or of the government pleader,
of which seven days’ clear notice in writing has been given to the
plaintiff, Order that the permission granted to the plaintiff to sue as
an indigent person be withdrawn—

• (a) if he is guilty of vexatious or improper conduct in the course of the

suit;

• (b) if it appears that his means are such that he ought not to continue
to sue as an indigent person; or
• (c) if he has entered into any agreement with reference to the subject
matter of the suit under which any other person has obtained an
interest in such subject matter.

• The object of the is rule 9 is to re open the matter of pauperism. The

principles of res judicata is not applicable to proceeding under this rule.

• The court has no power suo moto to dispauper the plaintiff. That can be
done only on the application of the defendant or the government pleader.

• 10. Costs where indigent person succeeds.- Where the plaintiff

succeeds in the suit, the court shall calculate the amount of court
fees which would have been paid by the plaintiff if he had not been
permitted to sue as an indigent person; such amount shall be
recoverable by the State Government from any party ordered by the
decree to pay the same, and shall be a first charge on the subject
matter of the suit.

• 11. Procedure where indigent person fails.- Where the plaintiff fails in

the suit or the permission granted to him to sue as an indigent
person has been withdrawn, or where the suit is withdrawn or
dismissed,—

• (a) because the summons for the defendant to appear and answer has
not been served upon him 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 statement, or

• (b) because the plaintiff does not appear when the suits is called on
for hearing, the court shall Order the plaintiff, or any person added as
a co-plaintiff to the suit, to pay the court fees which would have been
paid by the plaintiff if he had not been permitted to sue as an
indigent person. 
• 11A. Procedure where an indigent person’s suit abates.- Where the
suit abates by reason of the death of the plaintiff or of any person
added as a co-plaintiff, the court shall order that the amount of court
fees which would have been paid by the plaintiff if he had not been
permitted to sue as an indigent person shall be recoverable by the
State government from the estate of the deceased plaintiff.

• 12. State government may apply for payment of court fees.- The

State Government shall have the right at any time to apply to the
court to make an Order for the payment of court fees under rule 10,
rule 11 or rule 11A.

• 15. Refusal to allow applicant to sue as an indigent person to bar

subsequent application of like nature.- An order refusing to allow
the applicant to sue as an indigent person shall be a bar to any
subsequent application of the like nature by him in respect of the
same right to sue; but the applicant shall be at liberty to institute a
suit in the ordinary manner in respect of such right, provided that
the plaint shall be rejected if he does not pay, either at the time of the
institution of the suit or within such time thereafter as the court may
allow, the costs (if any) incurred by the State Government and by the
opposite party in opposing his application for leave to sue as an indigent
person.