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NOTE NO.

II SHRI SAI II

BASIC

CODE OF CIVIL PROCEDURE, 1908

(© ALL RIGHTS RESERVED – No part of this notes may be
reproduced, stored in a retrieval system, or transmitted, in any form
or by any means, electronic, mechanical, photocopying, recording or
otherwise without the prior permission of the author)

----------------------------------------------------------------------------------------------------

 HISTORICAL BACKGROUND OF CODE OF CIVIL PROCEDURE –

Till 1859, there was No Uniform Codified Law relating to

Procedure of Civil Courts in India. In those days, the Crown Courts at
Presidency Towns and the Provincial Courts at Mofussils were
governed by the different System of Civil Procedure by certain Rules,
Regulations and Special Acts as applicable to them from time to time.
For the First time in 1859, Uniform Code of Civil Procedure was
introduced with passing of the Civil Procedure Code (of 1859). But, it did
not serve the Purpose since it was not applicable to the Supreme
Court and Sadar Diwani Adalats. After the passing of the Indian High
Courts Act, 1861, the Supreme Court and Sadar Adalats were
abolished as in their place High Courts were established at Madras,
Bombay and Calcutta and the Code of 1859 was made applicable to
the High Courts. The Code of 1859 was Amended from time to time and
was replaced with the passing the Code of Civil Procedure, 1877. The
Code of 1877 also was Amended in 1878 and 1879. In 1882, the third
Code of Civil Procedure was Enacted. The Code of Civil Procedure, 1882
also was Amended several times and ultimately the Present Code of
Civil Procedure, 1908 was Passed overshadowing the Defects of the
Code of 1882.

 MEANING, OBJECT, PURPOSE AND SCOPE OF CODE OF CIVIL

PROCEDURE, 1908 –

THE CODE OF CIVIL PROCEDURE, 1908 is a Procedural Law.

The Present Code came into force on 1st January, 1909. Procedural
Law prescribes the Procedure and Machinery for the Enforcement of
Rights and Liabilities. It is concerned with Enforcement of Legal Rights
and Liabilities determined as per the Rules of the Substantive Laws.

The Law relating to the Practices and Procedure to be followed in

Civil Courts is Regulated by the Civil Procedure Code, 1908.

1
The term "CODE" means "a Systematic Collection of Statutes,
Body of Laws so arranged as to avoid Inconsistency and
Overlapping".

The Main Object of Enactment of this Civil Procedure Code is to

Consolidate and Amend the Laws relating to the Procedure and
Practices followed in the Civil Courts in India. The Civil Procedure
Code Regulates every action in Civil Courts and the Suit Parties till
the Execution of the Decree and Order.

In Simple words, the Aim of the Procedural Law is to implement

the Principles of Substantive Laws. It Ensures Fair Justice by
enforcing the Rights and Liabilities of the Citizens.

 EXTENT AND APPLICATION OF CODE OF CIVIL PROCEDURE,

1908 -

The Code of Civil Procedure, 1908 is applicable to the Whole

Country except -

1. The State of Jammu and Kashmir.

2. The State of Nagaland and the Tribal Areas.

 AMENDED CIVIL PROCEDURE CODE,2002 –

The Civil Procedure Code of 1908 was drastically amended in 1976.

There after the Amended Bill of 1999 was passed. However before
enforcement of this amended Bill it was criticized and agitated by
Lawyers.

Further, the Code of Civil Procedure Amended Act, 2002 was

brought into effect from Dt. 1st July, 2002. The basis for the
amendments was mainly the Report of Mullimath Committee which
made investigation of Civil trial keeping aim of curtailing delay. They
tried to investigate the “Causes of Delay”. However, while keeping a
principle in mind that Delay Defeats the Justice, one has to keep
reference to the circumstances of society and also socio-economic
condition of litigant of Taluka and District levels, for whom Civil Trial
is a requirement.

 SCOPE OF CODE OF CIVIL PROCEDURE, 1908 –

The Framers of Civil Procedure Code, 1908 provided Inherent

Powers to the Courts to meet Special Circumstances, where the Code
could not provide a Procedure. The Procedure is decided according to
"THE PRINCIPLE OF NATURAL JUSTICE, EQUITY AND GOOD
CONSCIENCE".
SAI LAW ACADEMY CODE OF CIVIL PROCEDURE, 1908 © ALL RIGHTS RESERVED

2
 SCHEME OF CODE OF CIVIL PROCEDURE, 1908 -

The Civil Procedure Code, 1908 has TWO Parts and they are –

1. The Body of the Code has 12 PARTS containing 158 SECTIONS -

The Body of the Code lays down General Principles relating to the
POWERS OF THE COURT.

2. The Schedule of the Code has Orders and Rules -

The Schedule provides for the Procedures, Methods and Manners

in which the Jurisdiction of the Court may be Exercised. There
are Five Schedules when CPC was Enacted. Later, the
Schedules II, III, IV and V were Repealed by Subsequent
Amendments of the Code.

3. The Ist Schedule which is the Only Schedule to the Code now has
51 ORDERS. Each Order contains RULES which vary in
Numbers from Order to Order.

4. There are 8 APPENDICES giving Model Formats (Forms), such

as-

i. Pleading (Plaint & Written Statement)

ii. Process Formats.

iii. Discovery, Inspection and Admission.

iv. Decrees

v. Execution.

vi. Supplemental Proceedings.

vii. Appeal, Revision and Reviews.

viii. Miscellaneous.

The Provisions of the Body of the Code can be Amended Only

by the LEGISLATURE and the Courts cannot Alter or Amend the Body
of the Code.

3
 SALIENT FEATURES OF CODE OF CIVIL PROCEDURE, 1908 –

1. PROCEDURAL LAW –

The Code of Civil Procedure, 1908 is one of the most Important

branches of the Procedural Laws and Regulates the Procedure to be
Adopted in all Civil Courts having Jurisdiction in India. It came in to
force from 1st January, 1908.

2. TERRITORIAL PROCEDURAL LAW –

The Code of Civil Procedure, 1908 is a Territorial Procedural law.

It extends to WHOLE OF INDIA Except the State of Jammu and
Kashmir and the State of Nagaland and the Tribal Areas.

3. EXTENSION OF THE PROVISIONS OF CPC –

The Concerned State Government may Extend the Provisions of

The Code of Civil Procedure, 1908 to the Whole State or any Part of
the State by notifying in the Official Gazette.

4. ENFORCEMENT OF RIGHTS AND LIABILITIES –

The Code of Civil Procedure, 1908 has made the Procedure to be

Followed in the CIVIL COURTS very Simple, Easy and Effective.
Enforcement of Rights, Civil Liabilities and Obligations of the Citizens
are dealt by this Code. It provides the Mechanism for Enforcement of
Rights and Liabilities.

5. CODE OF CIVIL PROCEDURE, 1908 – GENERAL LAW –

The Code of Civil Procedure, 1908 is a General Law and will not
Affect Local or Special Laws, which are already in Force.

6. AMENDMENDS –

The Code of Civil Procedure, 1908 has been Amended Several

Times to meet the Changing Needs and Requirements of the Society.
Between 1909 to 2002, the Code of Civil Procedure, 1908 has been
Amended 32 Times.

7. DIFFERENCE BETWEEN DECREE, JUDGMENT AND ORDER –

When a Court decides a Dispute, after the Hearing, it has to either

Pronounce its Decision by way of a DECREED or DISMISSED the Case
(Suit), Such Decision is called as, "DECREE".

While Arriving to such Decision, the Court Explains the Grounds

on which the Court Came to such Conclusion, is called as,
"JUDGMENT".
SAI LAW ACADEMY CODE OF CIVIL PROCEDURE, 1908 © ALL RIGHTS RESERVED

4
An Order is also a Decision of the Court but which will not come
under the Head of "Decree". An Order does not determine the Rights or
Liabilities of the Parties. Any Number of Orders can be passed in One
Suit. The Order can be passed on a Suit as well as on Application.

8. JURISDCITION –

JURISDICTION means the AUTHORITY through which a Court

entertain Suits, Appeals and Applications and the Court Administer
Justice according to the provisions of the Law.

9. ORIGINAL AND APPELLATE JURISDICITON –

The Court in which, the Suit is filed initially and the Court has
Jurisdiction to try the Original Suits, such Jurisdiction is called as,
"ORIGINAL JURISDICTION".

Once the Suit is Decided (Judgment), the Aggrieved Party may

Prefer (File) an APPEAL in Appropriate Court. Such Jurisdiction of the
Court to hear the Appeal is called as, "the APPELLATE JURISDICTION".

The Supreme Court, High Court and District Courts are having
both Original and Appellate Jurisdiction and can hear both "Appeals"
and "Original Suits".

10. IMPORTANT PRINCIPLES AND DOCTRINES –

These Principles relate to Jurisdiction of Courts and also Improve

the Efficiency of the Courts and Avoid Delays.

i. Res Sub-Judice.

ii. Res Judicata.

11. SPECIAL SUITS –

i. Suits by Indigent Person (Pauper Suits).

ii. Suits by or against Government & Public Officers.

iii. Inter-Pleader Suits.

12. APPEALS –

When a Suit is heard by the Trial Court, the Trial Court Enquires the
Issues, arrives at a Conclusion and Pronounces a Decree either in
favor of the Plaintiff or the Defendant. In Original Suts decided by the
Trial Court, the Aggrieved Party may Prefer (file) an Appeal to Next
Higher Court against the Judgment of Lower (Trial) Court.

5
13. REFERENCE, REVIEW & REVISION –

"REFERENCE" means Referring a Case to the High Court to seek

its Opinion, when there is a Doubt in the Question of Law.

In "REVIEW", a Court may Reconsider a Decision given by the

Same Court. A Court cannot Review its decision Suo Moto.

The Higher Courts have Revision Jurisdiction and can Call for the
Records of any Case which is already Decided.

14. INHERENT POWERS –

For Delivering Impartial and Unbiased Justice, the Code of Civil

Procedure, 1908 provides Simple and Clear Procedures to be followed
by the Civil Courts. In the Interest of Justice, it may exercise its
Inherent Powers.

 BEFORE CONDUCTING CIVIL PROCEEDING –

Procedural Provisions mentioned in Code of Civil Procedure, 1908

are to be used while conducting Civil Proceeding in the Civil Court. All
Provisions are designed and are interpreted by various Judgments of
Supreme Court and High Courts.

Practical Guidelines to drafting and conducting the Civil Suit,

following principles shall always kept in mind –

 CHORONOLOGICAL EVENTS –

Synchronize the incidents (facts) chronologically and datewise

from your client. Take details instructions of facts from your client
and then decide the exact line of action of dispute, by application of
appropriate provisions of concerns Acts and Laws.

 SUPPORTED DOCUMENTS I.E. DOCUMENTARY EVIDENCE –

Demand to your client, concerned documents which support to the

facts of the case.

 FACTS- WITH LAW –

Take into account all the facts, documents and co-relate it with the
concerned provisions of laws.

 DESCRIPTION –

Search out the necessary and proper parties involved in the

dispute. Take into consideration description of Immovable Properties
and Movable properties as the case may be.
SAI LAW ACADEMY CODE OF CIVIL PROCEDURE, 1908 © ALL RIGHTS RESERVED

6
 CONCERNED ACTS AND LAWS –

Read and Interpreted concerned Acts and Laws which are suitable
to support the dispute.

 PRE-REQUISIT CONDITION FOR PROCEEDING –

Verify clearly whether concerned Law prescribes any pre-requisite

of Notice, Permission, and special compliance before filing the suit /
proceeding in the Court.

 NOTES –

Before making pleading of suit, note down all important factual and
legal points as a note under own handwriting.

 LAW POINTS –

Take into consideration all the legal points like Jurisdiction,

Valuation (i.e. ad veloram), limitation, etc., before drafting a suit.

 DRAFTING OF PLEADING –

Draft the pleadings as far as Precise, Proper and Perfect.

CHRONOLOGICAL EVENTS

Sr. Date/ Facts/ Events Documentary /

No. Month/ Oral Evidence
Year

1. At Nasik, Raj and Vijay were the

best friends of each other. Once
Vijay was in need of money hence
he approached to Dev for hand-
loan.

2. 1st Jan., Raj paid Rs. 4,00,000/- (Rupees Cheque

2021 Four Lakhs only) as a handloan to Details (Bank
Vijay by Cheque for one month Statement Dt.
without any Interest. 1st Jan., 2021

On the same date, Vijay Promissory

executed a Promissory Note in Note Dt. 1st
favour of Raj in the presence of two Jan, 2021
witnesses i.e. Kapil Deo and Sunil
Shetty.

7
Witnesses –

Kapil Deo and

Sunil Shetty

3. 1st Feb., It is the date for re-payment of Recording

2021 debt, hence Raj communicate with Telephonic
Vijay regarding re-payment of sum conversation
of handloan.

But instead of re-payment, Vijay

requested and promised to Raj that
he will repaid the handloan amount
as soon as possible.

4. 8thFeb., Raj time to time communicated to Recording

2021 and Vijay for repayment of handloan, Telephonic
afterwards but Vijay failed to repay the said Conversation
handloan amount of Raj.

5. 12th Feb. Raj issued a letter through R.P.A.D. Letter Dt. 12th
2021 to Vijay demanding handloan Feb., 2021
amount within 5 days from
R.P.A.D
acceptance of the letter.
Receipt of the
same date.

6. 13th Feb., Vijay receipt the said letter of Raj Acknowledge

2021 but he neither repaid the amount Receipt
nor gave any reply to the letter of
Raj.

7. 20th Feb., Raj issued a Reminder Letter Reminder

2021 through R.P.A.D. to Vijay Letter Dt. 20th
Feb., 2021

R.P.A.D. of the
same date.

8. 21st Feb., Vijay receipt the said Reminder Acknowledge

2021 Letter of Raj but he neither repaid Receipt.
the amount nor gave any reply to
the letter of Raj.

9. 1st March, Raj issued a Legal Notice by Legal Notice

2021 R.P.A.D. through his Legal Advisor Dt. 1st March,
to Vijay for demanding handloan 2021

8
amount. R.P.A.D.
Receipt of the
same date.

2nd March, The said Legal Notice receipt by Acknowledge

10. 2021 Vijay but failed to reply and re- Receipt.
payment.

9
NOTE NO. 1 II SHRI SAI II

CODE OF CIVIL PROCEDURE, 1908

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Q. Write various Stages of Suit.

A. ESSENTIALS OF SUIT –

Following are considered to be the Essentials of a Suit –

I. TWO PARTIES –

Every Suit have Minimum Two Parties i.e. Plaintiff and Defendant.

II. CAUSE OF ACTION-

Every Suit must contain a Cause of Action. It contains of every

Fact which is necessary to be Proved.

III. SUBJECT-MATTER-

There must be some Rights or Property claimed in the Suit.

IV. RELIEF CLAIM-

In every Plaint, Relief claimed should be Specifically Stated.

STAGES OF SUIT-

Following are the Different Stages of Suit –

1. INSTITUTION OF SUIT –

Once the Suit is Instituted, it is Registered and Numbered. The

Person who wants Justice from the Civil Court of Law, has to file a Suit
(Civil Suit) before the Competent Court.

Order 1 - Parties to the Suit.

Order 2 - Framing of the Suit.

Order 3 - Recognised agent and pleader.

Order4 - Institution of Suit.

1
These Order 1 to 4 helps the Plaintiff to file a Suit before the Court.
The Suit is always filed with the help of the Plaint.

2. ISSUE AND SERVICE OF SUMMONS (Section 27 to 29 and O.5,

R. 1 to 30) –

The Next Stage after Institution of Suit is the Process of Issue and
Service of Summons to the Defendant/s or Respondent/s mentioned in
the Suit i.e. Plaint and Appeal i.e. Appeal Memo.

3. WRITTEN STATEMENT (W.S.) (O.8, R. 1 to 10) –

Upon the Receipt/ Service of Summons, along with the Copy of

Plaint and Documents, the duty is cast upon the Defendant to file a
Written Statement, answering all the points by the Plaintiff in his Plaint
within a Prescribed Days (i.e. 30+ 60 = 90) from the Date of Service of
Summons i.e. the Defendant has to answer to the Plaint and his way of
answer is, ' Written Statement'.

4. EFFECT OF APPEARNACE AND CONSUQUENCES OF NON-

APPEARANCE (O.9, R.1 to 14)

The Plaintiff and Defendant have to appear before the Court on the
Dates specified either Personally or through his Advocate if the
Plaintiff or his Advocate does not Appear before the Court, the Court may
Dismissed to the Suit for Default.

Where the Plaintiff Present and the Defendant is absent after the
Service of Summons then the Court may passed an Order of 'Ex-Partee'

5. FRAMING OF ISSUES (O.14, R.1 TO 3) –

After filing of WS, the Next Stage is, "Settlement of Issues and
Determination of Suit on Issue of Law or on Issues agreed upon" by
which the Court comes to a Position to find out the Real Question in the
Controversy between the Parties i.e. Plaintiff and Defendant.

6. HEARING ON ISSUES-

The Court, after Settlement of Issues i.e. Framing of Issues

between the Plaint and WS that means there is Hearing of a Suit.

7. PRODUCTION OF EVIDENCE-

Both the Parties to the Suit are expected to Produce Documentary

and Oral Evidence to support to their Contention/ Pleading.

FACT + EVIDENCE = PROVED.

2
8. EXAMINATION OF PARTIES AND WITNESSES (O. 10 and O. 16)

Witnesses of both the sides are Examined (Claim Affidavit as per

O. 18, R.4) and Cross Examined by the Advocates.

O. 10 to 13 and O.15 to 19 are helpful for this Stage.

9. FINAL ARGUMENTS WITH CASE LAWS (PRECEDENT) –

The Advocates of the respective Parties Plead their case by

Argument and in support of their Contents may bring to the Notice of the
Court by filing the Judicial Decisions of Superior Courts i.e.
Precedents/ Case-laws.

10. JUDGEMENT AND DECREE (O. 20) –

Judge based on Issues Framed and taking into consideration

Material Facts/ Pleadings, Evidence, Acts and Case-laws, delivers his
Judgements.

The Decree is the summary of Judgement.

11. EXECUTION ( O.21, R. 1 TO 106) –

If the Suit is Decreed, the Decree-Holder has to file a Separate

Proceeding of Decree of known as, "Execution Proceeding".

The Application for the Execution Proceeding has to be filed only

after the Completion of the Period allowed for the Appeal (30 days
from the Date of Judgement and Decree).

12. APPEAL (O. 41) –

The Party Aggrieved by Judgement and Decree of the Trial Court,

may Prefer (File) an Appeal to the Appellate Court within the Period
stipulated.

Once the Appeal is Admitted and Stay granted for Operation the
Orders (Decrees) of the Lower Court, the Decree-holder cannot filed an
Execution Proceeding until the Appeal is Finally Dispose off.

3
Q. State the essentials of "Plaint". Write in detail about when can a
Plaint be returned? And when can a Plaint be rejected?

Write a Short note on – "Return of Plaint".

Write a short note on – "Rejection of Plaint".

A INTRODUCTION

Order VII, Rule 1 to 18 deals with the provisions of

"Plaint".

Plaint = i. an accusation

ii. a Charge.

PLAINT is the Document by which the Plaintiff puts the Machinery

of the Court into Motion.

That means Plaint is a Document by the Presentation of which a

Suit is Instituted/Filed in a Civil Court.

Plaint is the Statement of the Plaintiff. The Plaintiff filed a Suit

against the Defendant by Filing a PLAINT.

After Presentation of the Plaint, the Ministerial Staff of the Court

Registers the same in the Filing Register and the Suit is numbered.

In other words, Section 26 of CPC stipulates that every Suit shall

be instituted/ files by the presentation of a Plaint. The Plaint must be
designed as per provisions of Order 7, Rule 1 and observing Rules of
Pleadings given in Order 6 Rule 1 to 4. The Plaint must be drafted as
the Legal Requirements of the Dispute in Mind.

 ORDER VII, RULE 1 prescribes the Essentials or Particulars of

the Plaint –

A Plaint is a Statement of Claim, a Document, by Presentation of

which Suit is instituted.

Plaint's Object is to state the Grounds upon which the Assistance

of the Court is sought by the Plaintiff.

4
 THE ESSENTIALS/ PARTICULARS OF PLAINT U/ORDER VII,
RULE 1 are as follows-

I. The Name of the Court in which the Suit is brought or filed.

II. The Name, Description and the Place of Residence of the

PLAINTIFF.

III. The Name, Description and the Place of residence of the

DEFENDANT.

IV. Where the Plaintiff or Defendant is Minor or a Person of

Unsound mind, a Statement to that effect.

V. The CAUSE OF ACTION and when it arose.

VI. The Facts showing JURISDICTION of the Court to try the

Suit.

VII. The Relief claimed by the Plaintiff (i.e. in Prayer Clause).

VIII. Any Amount allowed as Set-off or a Portion of Claim

Relinquished.

IX. The Value of the Subject Matter of the Suit for the purpose
of Jurisdiction and Court Fee.

 IN MONEY SUITS (O.VII, R.2) –

Where the Plaintiff seeks the Recovery of Money then the Plaintiff
shall state the exact Amount Claimed.

If the Suit is for the account of Mesne Profit or for Movable

Properties i.e. Goods in the Possession the Defendant or for Debts
which cannot be Determined, approximate Amount or Value should be
Stated.

 WHERE THE SUBJECT-MATTER OF THE SUIT IS IMMOVABLE

PROPERTY (O.VII, R.3) –

The Plaint should contained a Description of Property, sufficient

to identify it by Indication of Survey Number, Area, Boundary Marks
etc.

 WHEN PLAINTIFF SUES AS REPRESENTATIVE (O.VII, R.4)

Where the Plaintiff Sues in a Representative Character, the Plaint

shall State not only that he has an actual Existing Interest in the Subject
Matter of Suit, but he has also to take necessary Steps to Enable him to
institute/ file a Suit concerning it.
SAI LAW ACADEMY CODE OF CIVIL PROCEDURE, 1908 © ALL RIGHTS RESERVED

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 DEFENDANT'S INTEREST AND LIABILITY TO BE SHOWN (O.VII,
R.5) –

The Plaint should State the Interest and Liability of the Defendant
in the Subject Matter of the Suit.

 GROUNDS FOR EXEMPTION FROM LIMITATION LAW (O. VII,

R.6) -

If the Suit is instituted after the Limitation Period (i.e. Time

Barred) then the Grounds on which Exemption from the Law of
Limitation is claimed should be mentioned in the Plain.

 RELIEF TO BE SPECIFICALLY STATED (O. VII, R.7) -

Every Plaint shall state Specifically the Relief which the Plaintiff
claim either Simply in the Alternative.

 IMPORTANT POINTS –

1. At the end of the Plaint, the List of Documents which have to be

produced should be endorsed on the plaint by the plaintiff (फे रिस्त).

2. The Plaintiff should also affixed the requisite Court Fee for
Service of Summons (प्रोसेस फी).

 DOCUMENTS TO BE PRODUCED WITH THE PLAINT –

If a plaintiff sues upon a document which is in his possession, he

should produce the same or a copy of it at the time of presentation of
plaint.

 Any other document in support of his claim must be entered as a

list annexed (Document List) (दस्तेवज यादी) to the plaint.

 If any document in support of the claim is not in the plaintiff’s

possession then the plaintiff must state in whose possession it is.

----------------------------------------------------------------------------------------------------

Q. Write a Short note on – "Return of Plaint".

Write a note on, "When can Plaint be Returned?"

A INTRODUCTION OF PLAINT-

O.VII, R.1 TO 17 deals with the provisions of "Plaint".

6
Plaint = i. an accusation

ii. a Charge.

PLAINT is the Document by which the Plaintiff puts the Machinery

of the Court into Motion.

That means Plaint is a Document by the Presentation of which a

Suit is Instituted/Filed in a Civil Court.

Plaint is the Statement of the Plaintiff. The Plaintiff filed a Suit

against the Defendant by Filing a PLAINT.

After Presentation of the Plaint, the Ministerial Staff of the Court

Registers the Same in the Filing Register and the Suit is numbered.

In other words, Section 26 of CPC stipulates that every Suit shall

* RETURN OF PLAINT (O.VII, R.10) –

O.VII, R. 10(1) of CPC deals with the REASON of Return of Plaint

Where at any Stage of the Suit, the Court Finds that it has no
Jurisdiction either Territorial or Pecuniary or with regard to Subject-
Matter of the Suit, the Court will RETURN THE PLAINT to be Presented
to the proper Court in which the Suit ought to have been filed.

 PROCEDURE ON RETURNING PLAINT (O.VII, R. 10(2))

The Judge shall Endorse thereupon (Plaint) –

i. the Date of Presentation of Plaint to the Court.

ii. the Date of Return of Plaint.

iii. the Name of the Party Presenting the Plaint.

iv. the Reasons for Returning the Plaint.

 ORDER VII, RULE 10(A) –

This Rule lays down the Procedure to be followed by the Court

before the Plaint Ordered to be presented to the Proper Court. The
Procedure to be followed as under-
SAI LAW ACADEMY CODE OF CIVIL PROCEDURE, 1908 © ALL RIGHTS RESERVED

7
1. Where, in any Suit, after the Defendant has appeared, the Court
is of the Opinion that the Plaint should be Returned, he shall
before doing so, Intimate its Decision to the Plaintiff.

2. Where an Intimation is given to the Plaintiff under sub-rule (1),

the Plaintiff may make an Application to the Court –

a. Specifying the Court in which he (judge) Proposes to Present

the Plaint after its Returned.

b. Praying that the Court may fix a Date for the Appearance of
the Parties in the Court.

c. Requesting that the Notice of the Date so fixed may be

given to him (Plaintiff) and to the Defendant.

3. Where an Application is made by the Plaintiff u/sub-rule (2),

the Court shall before Returning the Plaint and the Order for
Return of the Plaint was made by it, on the ground that it
(Court) has No Jurisdiction to try the Suit –

a. Fix a Date for the Appearance of the Parties in the Court in

which the Plaint is Proposed to be Presented and

b. Give to the Plaintiff and to the Defendant Notice of such Date

of Appearance.

4. Where the Notice of the Date for Appearance is given u/sub-rule

(3)-

a. it shall not be Necessary for the Court in which the Plaint is

Presented, to serve to the Defendant with Summons for
Appearance in the Suit &

b. the said Notice shall be deemed to be Summoned for the

Appearance of the Defendant in the Court in which the Plaint
is Presented on the date so fixed by the Court by which (Court)
the Plaint was Returned.

5. Where the Application made by the Plaintiff u/sub-rule (2) is

allowed by the Court, the Plaintiff shall not be Entitled to
Appeal against the Order for Returning the Plaint.

Therefore, in the Return of Plaint, Court should not Dismiss the

Suit but Returned the Plaint to be Presented to the Proper Court.

8
Q. Write a Short note on – "Rejection of Plaint"

A. INTRODUCTION OF PLAINT –

O.VII, R.1 TO 17 deals with the provisions of "Plaint".

Plaint = i. an accusation

ii. a Charge.

PLAINT is the Document by which the Plaintiff puts the Machinery

of the Court into Motion.

That means Plaint is a Document by the Presentation of which a

Suit is Instituted/Filed in a Civil Court.

Plaint is the Statement of the Plaintiff. The Plaintiff filed a Suit

against the Defendant by Filing a PLAINT.

After Presentation of the Plaint, the Ministerial Staff of the Court

Registers the Same in the Filing Register and the Suit is numbered.

In other words, Section 26 of CPC stipulates that every Suit shall

REJECTION OF PLAINT (O.VII, R.11) -

The Plaint shall be Rejected in the following cases-

a. Where it (i.e. Plaint) does not Disclose a Cause of Action.

b. Where the Relief Claimed is Undervalued and the Plaintiff on

being required by the Court to so 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 (i.e. Court Fee Stamp) Insufficient Stamp
and the Plaintiff on being required by the Court to Supply
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 (Plaint) is not file in Duplicate (w.e.f. 1st July, 2002)

9
A Portion of the Plaint cannot be Rejected. It may be noted that the
Reasons seems to be that when the Plaint is Rejected, the Plaintiff can
file a Fresh Plaint in respect of the Same Cause (O.7, R.13)

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Q. What is mean by "PLEADING?" What are its essential attributes?

A O.6 of CPC explains the Provisions "PLEADING GENERALLY".

PLEADING = A Formal Statement of the Cause of Action

or Defence

 INTRODUCTION -

 As per O.VI, R. 1 –

Pleading shall mean Plaint or Written Statement.

Pleadings are the Backbone of Litigation.

Pleadings are the Statements of the Parties i.e. Plaintiff and

Defendant in Writing, setting out their Contention and Claims, bringing
or giving Details, so that the Opposite Party may Known and give
Reply. Evidence produced by any Party cannot be considered without
Pleading.

According to P.C.Mogha – "Pleading are Statements Written,

filed by each Party to a Suit, stating his Contention at the Trial and
giving such Details, as his Opponent Needs to Know in Order to
Prepare his case in answer".

Pleadings of Plaintiff are found in Plaint and Pleadings of

Defendant are found in Written Statement.

Pleading is a base of Civil Suit. Pleading is a Statement

describing Material Facts on the basis of which party to the Suit is either
Prosecuting the Claim or Defending the Claim. Evidence can be laid
only on those facts which are Pleaded. Any Sort of Evidence is not
Relevant under Indian Evidence Act, 1872, which is not as per Pleaded
Facts.

 TYPES OF PLEADING –

There are TWO well recognized Forms of Pleading in a suit in

India. They are –
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1. PLAINT –

Here, the Plaintiff gives his Cause of Action and other necessary
Particulars.

2. WRITTEN STATEMENT –

It is the Defence Statement made by the Defendant. It is in

Response to every Material Fact alleged by the Plaintiff in the Plaint. He
also sets out New Facts, that speak in his favour.

 OBJECT OF PLEADINGS –

The Whole Object of Pleading is to bring both the Parties on

Definite issues.

1. The Pleading give Fair Notice to the Other Party.

2. It Crystallises the Points on which the Dispute has arisen

between the Parties.

3. The Parties come to know the Matters in Dispute and Facts that
have to be Proved at Hearing.

 GENERAL RULES OF PLEADING –

1. PLEADING SHOULD BE STATE FACTS AND NOT LAW –

It is the Duty of the Parties i.e. Plaintiff and Defendant to state only
the Facts on which they Rely upon for their Claims but not Law. It is for
the Court to apply the Law to the Facts Pleaded.

 FOR EXAMPLE –

"SUSHANT Executed a Promissory Note in favour of AKASH on

dated 1st Jan, 2018"

Regarding this Statement, state only the Facts but not the
Provisions of Law of Contract or any other Law.

2. THE FACTS STATED MUST BE MATERIAL FACTS-

All the Primary Facts which must be Proved at the Hearing by

Party to establish (i.e. proved) the Existence of Cause of Action or
Defence, are Material Facts.

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3. PLEADING SHOULD NOT STATE THE EVIDENCE –

FACTS

FACT-IN-ISSUE RELEVANT FACTS

Hence, the Pleading should state only Facts but not Evidence.

4. THE FACTS SHOULD BE STATED IN A CONCISE FORM –

All Material Facts must be stated in Summary Form as briefly as

Possible as the nature of the Case requires. Immaterial Allegations and
Unnecessary Details must be Omitted and Material Allegations and
Necessary Details must be Included

5. THE FACTS SHOULD BE STATED IN PARAGRAPHS –

Every Pleading shall, when necessary be Divided into Paragraphs,

numbered consecutively and each Allegation being so far as is
Convenient contained in a Separate Paragraph.

6. DATES, SUMS & NUMBERS –

Dates, Sums and Numbers shall be expressed in a Pleading in

Figure as well as in Words.

7. PARTICULARS TO BE GIVEN WHEN NECESSARY –

Particulars when may be necessary shall be Stated in the

Pleading.

8. DOCUMENT OR NOTICE WHENEVER NECESSARY TO BE

STATED-

Whenever the Contents of any Document or Notice 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.

9. PLEADING TO BE SIGNED –

Every Pleading shall be Signed by the Party and his Pleader/

Advocate (if any). If for Sufficient Reason, Party is not able to sign, a
duly Authorised Person may sigh on his behalf.

10. VERIFICATION OF PLEADING-

Every Pleading should be Verified at the Foot of the Pleading by

the Party or by any person Authorised.
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Every Pleading shall be Verified by the Party by reference to the
Numbers and Paragraphs of the Pleading, what he Verified of his own
Knowledge and what he Verified upon Information received believed
to be true. The Verification shall also be Signed by the Person/Party
making it and shall State the Date on which and the Place on which it
was Signed.

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Q. Write a Short note on, "Written Statement".

A INTRODUCTION -

O. VIII of CPC deals with the Provisions of Written Statement and

others.

Written Statement is also known as, "Defence Statement". Written

Statement is the Statement of the Defendant. By the said Statement,
he may Deny or Admit the Allegation of the Plaintiff ascribed in the
Plaint.

Written Statement is a Statement submitted by the Defendant as a

Reply to every Material Allegations/ Facts by the Plaintiff in the Plaint,
raised against him by the Plaintiff.

The Defendant also Sets out all such New Facts as a Speak in his
favour with such Legal Objections as he Intends to take to the Plaintiff's
Claim.

Written Statement in short is nothing but an Answer given by the

Defendant to the Plaint of the Plaintiff.

A Written Statement is a Pleading of the Defendant must be in

Written and must be Filed by him Personally or a duly appointed
agent (Power of Attorney Holder). The Filing of WS by a Third Person
on behalf of Defendant is not allowed as per CPC.

 ORDER 8, RULE 3 –

Written Statement, every Denial must be Specific. It is not

Sufficient for Defendant in his Written Statement to Deny Generally. If he
is not Denied Specifically the Allegation of the Plaintiff in the Plaint,
shall be taken to be Admitted to the Defendant.

As per O.8, R.1, the Defendant shall, within THIRTY DAYS (30
Days) from the date of Service of Summons on him, Present a Written
Statement of his Defence.

13
If the Defendant Fails to File the Written Statement within the said
period of 30 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 (90 Days) from
the Date of Service of Summons.

 O.8, R. 1(A) -

Duty of the Defendant to Produce Documents upon which Relief

his Claim or Relied upon by him.

 IMPORTANT LEGAL POINTS ABOUT WRITTEN STATEMENT –

1. The Written Statement should State all the Matters which show that
the Suit is not Maintainable.

2. The Written Statement should State the Grounds of Defence which

would Surprise the Opposite Party (i.e. Plaintiff).

3. If the Defendant has not Filed a Written Statement then the Court
may give Judgment on the basis of the Fact in Plaint.

4. If the Defendant Relies upon a Document in the Possession, he

should Produce it in the Court during Presentation of the Written
Statement and also Deliver the Copy of it to the Plaintiff.

5. Subsequent to the Written Statement of a Defendant, no

Subsequent Pleading can be Presented. But, the Court may
Require an Additional Written Statement from the Defendant and
Fix Time Limit for Presenting it, then only he has to present it.

6. As per O.8, R.9 – If the Defendant Fails to File his Written

Statement within the Prescribed Time limit Prescribed by the
Court (i.e. as per Law), the Court will Pronounces the Judgement
against him without his Defence (i.e. "NO WS" order).

7. Every Allegation of Fact in the Plaint if not Denied Specifically,

shall be taken to be Admitted .

8. If the Defendant has not filed a Written Statement then the Court
may give a Judgment on the basis of Fact in Plaint.

9. If the Defendant relies upon a Document in his Possession, he

should Produce it in Court during Presentation of Written
Statement and also Deliver the Copy of it to be filed with the
Written Statement.

10. Subsequent to the Written Statement of a Defendant, no

Subsequent Pleading can be Presented.
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NOTE NO. 2 II SHRI SAI II

CODE OF CIVIL PROCEDURE, 1908

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Q. Write a short note on – "Set-off and Counter Claim"

A "SET-OFF"

O.8, R.6 (a) to (g) of CPC deals with the Plea of Set-off.

The Meaning of Set-off is - where in a Suit for Recovery of Money

by the Plaintiff, the Defendant finds that he has also Claim of some
Amount against the Plaintiff, he can Claim a Set-off in respect of the
said Amount.

Set-off is a Claim for Debt or Damages set up by the Defendant

against the Plaintiff in relation of his Claim. A Plea of Set-off is a plea
whereby a Defendant Acknowledges (admit) the Justice of Plaintiff's
Demand, but Sets up another Demand of his own to the Counter
Balance that of the Plaintiff either in Whole or in Part.

Set-off Saves Time and Money of the Defendant from filing a

Fresh Suit for Recovery of Money due from Plaintiff. The Set-off is in
the nature of Cross Action which could be separately Entertained. The
Defendant has to introduce his Set-off claim in his Written Statement by
Containing the Particulars of the Debt sought to be Set-off. Set-off
enable the Court to Pronounce a Final Judgement in respect of both of
the Original Claim of the Plaintiff and of the Set-off of the Defendant.

"A Plea of Set-off cannot be raised without Filing a Written

Statement".

 CONDITIONS FOR CLAIMING SET-OFF –

1. The Suit must be for Recovery of Money.

 FOR EXAMPLE - Suit for Accounts.

2. Claim must be for an Ascertained Sum of Money.

3. It should be Legally Recoverable.

4. Both the Parties must have the Same Character.

1
5. Both sum must not Exceed the Pecuniary Limits of the
Jurisdiction of the Court in which the Suit is Filed.

6. An Ad-Valorem (Proportionate) Court Fee is to be Paid on the

amount Claimed as Set-off.

* COUNTER CLAIM (O.8, R.6)-

O.8, R.6 – Counter Claim of the Defendant –

Counter Claim is really a Weapon and enables the defendant to

enforce a claim against the Plaintiff as effectively as in an independent
action (i.e. separate suit). Counter Claim is allowed to be raised to
avoid multiplicity of proceedings between the parties.

If the defendant has a separate claim against the plaintiff, which he

might have separate suit, he may raise it as a Counter Claim in the
existing suit.

Counter Claim is restricted to Money Claim only. Counter Claim

means a claim set by the defendant in a suit against the Plaintiff.
Counter Claim is substantially a Cross Action.

Any Counter Claim against the Claim of the Plaintiff may be set out
in the Written Statement.

A Defendant in a Suit may set up by way of Counter Claim against

the Claim of Plaintiff, any Right or Claim in respect of Cause of Action,
accruing to the Defendant against the Plaintiff before/ after filing of the
Suit before the Defendant has delivered his Defence or the Time Limited
for (90 days) delivering the Defence has Expired, whether such Counter
Claim is in the Nature of a Claim for Damages or Rights.

Provided that such Counter Claim shall not exceed the Pecuniary
Limits of the Jurisdiction of the Court.

i. 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 i.e. both on the Original Claim of
the Plaintiff and the Counter Claim of the Defendant.

ii. 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 (not exceeding 90
days).

2
iii. The Counter Claim shall be treated as a Plaint (Order.7) and
governed by the Rules applicable to the Plaint.

iv. Even if the Suit of the Plaintiff is Stayed, Discontinued,

Dismissed or Withdrawn, the Counter Claim will be
Continued and Decided on Merits.

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Q. State the 'Contents of Summons' and mention the various

methods by which it is served upon the Defendant.

What is mean by "Summons"? Explain in detail all provisions of

Summons in CPC.

A INTRODUCTION & MEANING OF SUMMONS -

Section 27 to 32 & O.5, R.1 to 30 of CPC deals with "Issue and

Service of Summons"

Summons is not defined in CPC.

Summons = "A Call to the Defendant to Appear before Civil

Court".

"Summons means a Process of Court asking the Opposite Party

to Appear and Answer the Claim preferred by the Party, who has filed
the Proceeding".

The Court issue Intimation to the Defendant that Suit is Instituted/

Filed against him and he is required to Attend before the Court on a
Particular Date and Time and Answer the Plaint of the Plaintiff, such
Intimation is called as, "SUMMONS".

In simple words, the Plaintiff has filed a suit against the Defendant.
The Defendant is to Inform that the Suit has been filed against him and
that he is required to Appear in the Court to defend it.

The Intimation which is Send to the Defendant is known as,

"Summons".

Summons according to CPC means Calling the Defendant in the

Suit and Respondent in Appeal by the Authority of the Court to Answer
the Allegations against him, filed by the Plaintiff or Appellant.

3
 ISSUE OF SUMMONS –

1. After Institution of Suit, Summons is Issued to the Defendant to

Appear and Answer the Claim of the Plaintiff on a Particular Date.

2. If the Defendant Appear and Admits the Plaintiff's Claim Suo-motu,

Summons will not be Issued.

3. After Service of Summons, the Defendant is required to file a

Written Statement of his Defence.

The Defendant to whom a Summons has been issue may

appear (O.5, R.3) –

a. in Person

b. by a Pleader duly Instructed relating to the Suit.

c. by a Pleader Accompanied by some Person (i.e. Power

of Attorney Holder) able to Answer all such Questions.

4. The Summons shall be Signed by the Judge or any Concerned

Officer with the Seal of the Court.

5. The Summons should be accompanied by a Copy of the Plaint &

Documents.

6. If the Personal Attendance of the Defendant is needed the Court

may Order him to Appear on a Specified day. Personal
Attendance will be Ordered only if the Party Resides within the
Limits of Court's Jurisdiction or less than 50 Miles Distance from
the Court House.

7. The Day for Appearance of the Defendant shall be Fixed, taking

into consideration the Place of Residence of the Defendant, time
needed for the Service of Summons, etc.

METHODS FOR SERVING OF SUMMONS ON DEFENDANT –

There are 3 ways of issue and service of Summons, they

are as follows-

i. Personal or Direct Service (Rules 10 to 16 & 18)

ii. Service by Court (Rule 9)

iii. Service by Plaintiff (Rule 9A) and

iv. Substituted Service (Rule 17, 19 & 20)

i. PERSONAL OR DIRECT SERVICE (RULE 10 TO 16 & 18) –

4
As far as possible, the Summons should be Served on the
defendant in person, if it is not possible, it may be served upon his duly
authorised Agent as per Order 5, Rule 12.

Where there are more than One Defendant, Service shall be made
on each Defendant as per Order 5, Rule 11.

If the Defendant cannot be found and he had no duly Authorised

Agent, the Summons can be Served on any Adult Member of his family
who is Residing with him as per Order 5, Rule 5.

ii. SERVICE BY COURT (RULE 9) –

According to Order 5, Rule 9(1) of CPC, Summons may be served

on the defendant by the Court through the Officer of the Court i.e. the
Process Server (i.e. Bailiff) of the Court, the Expenses are to be born
by the Plaintiff in the Form of Court-Fee Stamp (i.e. Process) to the Court
for Service of Summons through the Court.

Plaintiff along with the Plaint has to be Enclosed Summons from

duly file along with Copy of Plaint and other Material Documents filed
by the Plaintiff.

If the Acknowledgement is Signed by the Defendant or his Agent

and Received by the Court, the Court shall Declared that the Summons
has been duly Served on the Defendant.

By Amending the Provisions of CPC (i.e. on 1st July, 2002, the

Service of Summons by Registered Post Acknowledgement Due
(R.P.A.D.) or by Speed Post or through Courier Services as are
approved by the High Court or by Fax message or Electronic-mail
services (i.e. E-mail) was introduce.

iii. SERVICER BY PLAINTIFF (RULE 9(A) –

The Court may also Permit Service of Summons by the Plaintiff (by
Hand) in addition to Service of Summons by the Court

iv. SUBSTITUTED SERVICE (RULES 17, 19 & 20) –

NOTE IS MENTIONED IN NEXT SHORT NOTE.

CONTENTS OF SUMMONS-

a. Name of the Court, where the Defendant/ respondent/

witness is directed to appear.

b. Suit number/ Appeal number and the year of filing of

suit/ appeal.
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c. Name of the parties to the suit/ appeal.

d. Date and time of appearance and consequences of non-

appearance.

e. Date of issue of Summons.

f. Signature of Judge or Presiding Officer.

g. Seal of the Court.

 SOME IMPORTANT POINTS REGARDING SUMMONS-

1. As per O.5, R.6 provides that where there are several

Defendants, Summons must be served to each of the
Defendant.

2. As per O.5, R.15 provides that the Bailiff shall try to Serve the
Summons to the Defendant in Person at his Door. If the
Defendant is not available and is Absent for a considerable
long time then the Summons shall be Served to any Adult
Member of the Defendant's Family. A Servant is not a Family
Member.

3. As per O.5, R.6 provides that the Defendant or his Adult Family
Member Whosoever, who received the Summons shall Signed
Acknowledgement of Summons and Hand Over such Signed
Summons to the Bailiff.

The Defendant or his Family Member shall keep a Copy of

such Summons with him along with the Copy of Plaint and
other Material Documents.

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Q. Write a Short note on- "Substituted Service"

A "Write here something about 'Summons' from previous answer"

* "SUBSTITUTED SERVICE" (O.5, R.20)-

Substituted Services means the Service of Summons by a Mode

which is Substituted for the Ordinary Modes of Service of Summons.

Substituted Service of Summons is not Regular Mode/ Method of

Service of Summons. It can be Executed only when the Ordinary Mode
is not Executed Properly.

6
In simple words, Substituted Service of Summons is the last way of
Service of Summons. Granting of Order for Substituted Service is
Discretion of the Court.

 O.5, R.20 –

Where the Court is satisfied that there is a Reason to Believe that

the Defendant is keeping out of the Way for the purpose of Avoiding
Service of Summons or for any other Reason, hence, the Summons
cannot be Served in the Ordinary Way, the Court shall Order, the
Summons to be Served by Affixing a Copy thereof (Summons) on some
Conspicuous Part of the House of the Defendant or Carried on a
Business or Personally Work for Gain or in such other manner as the
Court thinks fit, this Method is called as, "Substituted Service".

The Court also Order for Service of Summons by Advertisement in

a Local News Paper. The News Paper shall be Daily Local News Paper
Circulating in a Locality in which Defendant is Last Known to have
actually Resided or Carried on Business or Personally Work for Gain.

 EFFECT OF SUBSTITUTED SERVICE (O.5, R. 20(2)) –

Service is Substituted by Order of a Court shall be as Effectual as if

it had been made on the Defendant Personally.

 WHERE SERVICE SUBSTITUTED, TIME FOR APPEARANCE TO

BE FIXED –

Where Service is Substituted by Order of the Court, the Court shall

Fix such Time (i.e. Date) for the Appearance of the Defendant as the
case may required.

7
NOTE NO. 3 II SHRI SAI II

CODE OF CIVIL PROCEDURE, 1908

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Q. What are ISSUES? Explain the Provisions in CPC regarding

Framing of Issues and Others.

A. INTRODUCTION –

ORDER XIV (14) of CPC explains the Provisions of

"SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON
ISSUES OF LAW OR ON ISSUES AGREED UPON".

 FRAMING OF ISSUES (O.14, R. 1) –

When One Party Affirms a Material Fact and Other Party Denies it,
Issues arises. The Issue may relate to Proposition of Law or Fact.

Such Law or Fact must be Alleged by the Plaintiff to show his

Right to Sue. The Defendant must Allege Such Proposition of Law or
Fact to Constitute his Defence.

So the Subject of the Issues is a Material Proposition Affirmed by

One Party and Denied by the Other Party.

Issues are Divided into TWO KINDS –

1. Issues of Fact.

2. Issues of Law.

At the First Hearing of the Suit, the Court Reads the PLAINT and
WRITTEN STATEMENT, then it Ascertained the Material Proposition of
Fact or Law where the Parties at Variance, then Court proceeds to
Frame and record the ISSUES for the Right Decision for Disposal of
Case.

In case, the Defendant makes No Defence (means not filed his

WS) then the Court need not Frame and Record Issues.

1
 COURT TO PRONOUNCE JUDGMENT ON ALL ISSUES (O.14, R.
2) –

The Suit may be Dispose of on a PRELIMINARY ISSUE.

Otherwise, the Court must Pronounce Judgment on all ISSUES.

In case, Issues both of Law and of Fact arise in the Same Suit,
then the Court must try the Issue of Law First, if the Issue relates to (i)
Jurisdiction of Court (ii) Barred by Law of Limitation.

The Court Postpones Settlement of Other Issues till the

Preliminary Issue on the above Two Aspects are Determined.

 MATERIAL FROM WHICH ISSUES MAY BE FRAMED (O.14,R.3) –

The Court Frames Issues from the following MATERIALS –

1. Allegations made on Oath by the Parties & their Pleaders.

2. Allegations made in the Pleading i.e. Plaint.

3. Allegations made in Answer to the Plaint i.e. Written Statement.

4. Document produced by either Party.

 COURT MAY EXAMINE WITNESSES OR DOCUMENTS BEFORE

FRAMING ISSUES (O.14, R.4) –

If the Court is of Opinion that the Issues cannot be Correctly

Framed without Examination of Some Person not produced before the
Court or without Examination of Some Document not Produced in the
Suit, then it Adjourns the Framing of Issues to a Future Day.

Further, Court Compels the Attendance of such Person or

Production of such Document.

 POWER TO AMEND AND STRIKE OUT ISSUES (O.14, R. 5) –

Before Passing a Decree, the Court may, at any time, Amend the
Issues. It may also Frame Additional Issues on necessary terms.

All such Amendments or Additional Issues must be Necessary for

Determining the Matters in controversy between the Parties.

Similarly, before passing the Decree, the Court may, at any time,
Strike out any Issues which are Wrongly Framed.

Order 14, Rule 5 of CPC, deals with the Power of the Court "to
Amend, Add and Strike out Issues".

2
Q. State the provisions relating to "Suit by or against Government"

Explain, "Suit by or against Government or Public Officer"

Write a Short note on – "Notice u/s 80 of CPC".

What is a procedure for filing a suit by or against Government or

Public Officer?

A INTRODUCTION -

Sec. 79 to 82 and O.27, R 1 to 8 of CPC deals with Suits by or

against Government or Public Officer.

 SECTION 79 –

In a Suit by or against 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 Central Government -

"The Union of India"

b. in the case of as suit by or against a State Govt. -

"Concerned State"

This Section only provides by an Authority by or against whom a

Suit can be Instituted.

While, Section 80 names the Particular Person to whom a Notice

could be Addressed or the Suit can be Filed.

 SECTION 80(1) –

 NOTICE –

Suit shall not be Instituted against the Government or against a

Public Officer, until Expiration of 2 months next after Notice in Writing
has been Delivered to or Left at the Office of –

a. in the case of a Suit against the Central Government -

the Secretary of Government of concern Department.

b. In case of suit against Central Government relating to

Railways - the General Manager of that Railway.

3
c. In case of a Suit against the Government of State of Jammu
and Kashmir - The Chief Secretary to that Government or
any other Officer authorised by that Government in this
behalf.

d. In case of a suit against any other State Government -

a Secretary to that Government or the Collector of the
District.

 SECTION 80(2)-

Section 80(2) provides that the Suit to obtain Urgent or Immediate

Relief against the Government or any Public Officer may be Instituted
with the Leave of the Court, without Serving any Notice as required by
above Section 80(1) of CPC.

In simple words, if the Suit has to be Urgently instituted against

the Government, then Notice need not be sent, but it should be done
with the Permission of the Court. The Court shall Scrutinise the Case
and if it is Urgent, it shall grant the Relief.

 SECTION 80(3)-

Section 80(3) Stipulates that Suit against Government or Public

Officer shall not be Dismissed merely by reason of any Defect in
Notice regarding to Description of Party or Cause of Action.

 OBJECT OF THE NOTICE-

The Object of Notice u/s 80(1) of CPC is to give the Government

or the Public Officer concerned, an Opportunity to Re-consider its or
his Legal Position and if that course is Justified, to make Amendment or
Settle the Claim out of the Court.

 ESSENTIAL REQUIREMENTS OF NOTICE U/S 80 OF CPC-

In Considering whether the Mandatory Provisions of CPC are

complied with, the Court must ask the following Questions in each
Suit-

i. Whether the Name, Description and Residence of the

Plaintiff are given as to enable the Authorities to Identify the
Person Serving the Notice?

ii. Whether the Cause of Action and the Relief which the
Plaintiff Claims are Set out with Sufficient Particulars?

4
iii. Whether the Notice is in Writing has been Delivered to or Left
at the Office of the Appropriate Authority mentioned in this
Section?

iv. Whether the Suit is Instituted after the Expiration of the 2

Months next after the Notice has been Served and the Plaint
Contains a Statement that such a Notice has been so
Delivered or Left?

 EXEMPTION FROM ARREST AND PERSONAL APPEARANCE –

When the Government Servant is a Party to a Suit, the Court must

Exempt him from Personal Appearance before the Court.

Only under Conditions of Absolute Necessity, he must be called

for Personal Appearance. If Public Service is affected by his
Absence, he will not be Called for Appearing in Person.

 OTHER RULES REGARDING ORDER 27 –

1. In any Suit by or against Government, the Plaint or Written

Statement shall be Signed by such person as the Government
may Appoint in this behalf and shall be Verified by any Person
whom the Government may so Appoint and who so Acquainted
with the Facts of the Case.

2. The Government Pleader in any Court is the Agent of the

Government.

3. The Court, in Answering the Plain by the Government Authority,

Allows a Reasonable Time for necessary Communication with
the Government through Proper Channel.

4. Where the Court Undertakes the Defence of a Suit against a

Public Officer, the Government Pleader 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 Suit.

5
Q. Write in detail about – "Interpleader Suit"

A INTRODUCTION & MEANING OF INTERPLEADER SUIT –

O.35 & Section 88 of CPC deals with the provisions of

"Interpleader Suit".

When Two or More Persons Claim Adversely to One Another –

the Same Debt i.e. Sum of Money or other Movable or Immovable
Property from Another Person and if the Other Person Claims No
Interest therein other than for Charges or Costs and who is Ready to
Pay or Deliver it to the Rightful Claimant, then such other Person may
Institute an Interpleader Suit against all the Claimants.

In other words, an Interpleader Suit is one in which a Real Dispute

is between the Defendants only and they Plead against each other
instead of Pleading the Plaintiff, who is not interested in the Litigation
except as to his Costs and Charges.

In order to Determine, whether, a Suit is an Interpleader Suit? the

Court must considers all the Prayers in the Plaint.

 PROVISIONS REGARDING INTERPLEADER SUIT –

1. In every Suit of Interpleader, the Plaint must State –

a. That the Plaintiff Claims No Interest in the Subject-matter in

Dispute other than the Charges or Costs.

b. the Claims made by the Defendants Severally.

c. That, there is No Collusion between the Plaintiff and any of the

Defendants and

2. Where the Things Claimed is capable of being Paid into Court or

Placed in the Custody of the Court, the Plaintiff may be Required
to so Pay or Place it. Only then, he is Entitled to any Order in
the Suit.

3. That the Plaintiff must be in a Real Position of Impartiality.

4. The Primary Condition for an Interpleader Suit is that there must be

more than Two Defendants in that Suit.

5. Such other Person i.e. Plaintiff must be Ready and Willing to pay
Money or Delivered the Property (Movable or Immovable) to the
Rightful Claimant by Depositing or Placing in the Custody of the
Court.

6
6. Two or More Persons must Claim Adversely to one Another, the
Same Property from other i.e. Plaintiff. The Defendants must Claim
the Debt, the Sum of Money or Property (Movable and
Immovable) Adversely to one another from the Plaintiff.

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Q. State the Provisions relating to Suits by or against Corporation

and Firms.

A INTRODUCTION –

ORDER 29 OF CPC, RULE 1 to 3 explains the Provisions about

"Suits by or against Corporations" and ORDER 30, RULE 1 TO 10
explains the Provisions about "Suits by or against Firms".

 SUIT BY OR AGAINST CORPORATIONS (ORDER 29) –

For the Suits by or against Corporation, the Plaint must be

Signed and Verified by the Secretary or any Director or Principal
Officer of the Company.

The Summons are served on these Persons by Issuing Summons

by Register Post (RPAD) to the Officer of the Corporation at the
Registered Officer or if there is No Registered Office, then at the Place
where the Corporation carries on its Business.

If Summons cannot be Served on the Secretary or any Director,

then the Serving Person may leave the Summons at the Registered
Office.

The Court may Require the Personal Attendance of any of the

Officer of the above said Company and also Require to Answer the
Material Questions of the Suit.

 SUIT BY OR AGAINST FIRMS (ORDER 30) –

1. The Procedure for filing a Suit by or against Firms is given in Order

30 of CPC. Two or More Persons acting as Partners and
Carrying on Business in India, may Sue or be Sued in the Name
of the Firm.

The Place of Jurisdiction is where the Firm carries on its

Business or the Place where the Cause of Action has arisen.

2. On the Application on any Opposite Party, the Partners must give

their Names and Addresses to the Court. If they Fail to Comply
with the Demand, all Proceedings will be Stayed upon such Terms
as the Court thinks fits.
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3. The Plaint must be Signed, Verified and Copied by any One or All
Partners. The Signature of the Single Partner is Sufficient for a
Plaint.

4. The Summons to a Firm is Served on One or More of the

Partners who have Control and Management of the
Partnership at the Principal Place of the Business in India.

5. When One of the Partner Dies before or during the Pendency of

the Suit, the Legal Representative/s of the Deceased Partner
need not be made Party to the Suit.

However, the Legal Representative may Apply to the

Court to make him a Party to the Suit and he can enforce any
Claim against the Survivor/s

6. When the Summons is Issued against a Firm and Served

accordingly, Every Person will be Informed by Notice whether
he has Served as a Partner or as a Person having the Control
or Management of the Partnership Business.

7. If the Individual Partner are Sued as Partners in the Name of

their Firm, they have to Appear Individually in their Own
Names, but all the Subsequent Proceeding shall Continue in the
Name of the Firm.

8. If the Summons is Served on a Person having the Control and

Management of the Business, he need not Appear, Unless he
is a Partner of the Firm.

9. If a Person upon whom the Summons has been Served is not a

Partner, he may Appear and Protest that he was not a Partner.
The Court , on Application by the Plaintiff, shall Determine
whether that Person was Really a Partner or Not and Liable as
such.

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Q. Who is an "Indigent Person"? and how is its different from a suit
which filed regularly.

Write a detailed note on – "Forma Pauperis" or "Pauper Suit".

A INTRODUCTION & MEAING OF "INDIGENT PERSON" –

O. 33 of CPC deals with "Suit by an Indigent Person".

There in No Definition of Indigent Person but O.33 of CPC deals

with the Indigent Person.

Originally, Order 33 dealt with Suit by Pauper. But after

Amendment of 1976, the term "PAUPER" is Deleted and it has been
Changed to "SUITS BY INDIGENT PERSON".

An Indigent Person is a Person who has No Sufficient Means to

enable him to Pay the Court Fee for the Plaint.

 OBJECT & SCOPE OF INDIGENT PERSON -

The Object of O.33 is to enable a Poor Litigant to file a Plaint

without Payment of Court-Fee. The Court granting Permission to Sue
an Indigent Person does not mean that the Said Person is Exempted
from the Payment of the Requisite Court-Fee but the Payment of the
Court-Fee is merely Postponed.

 ESSENTIAL TO SUE AS AN INDIGENT PERSON -

The Following are the Essentials for a Person to Sue as an

Indigent Person –

1. He should not Possess Sufficient Means (Except the Property

exempt from Attachment in Execution of a Decree) to Pay the
Court Fees.

2. He should not be Entitled to Property worth Rupees One

Thousand (Except the Property Exempt from Attachment of a
Decree)

 PROCEDURE FOR FILING A SUIT BY AN INDIGENT PERSON –

1. The Plaintiff must make an Application to the Court in Writing. He

must give the Particulars of the Plaint in such Suit. He must give
a List of Movable and Immovable Properties with their Values.

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The Applicant must Present it Personally or by an
Authorised Agent. If there are more than One Plaintiff, One of
them may present the Application.

2. It must be Signed and Verified as a Plaint.

3. The Court considers the Matter as it stands on the Date of

Application.

4. The Defendant must also be Give an Opportunity to Prove that the

Plaintiff is not an Indigent Person.

5. During Hearing, if the Court thinks that the Plaintiff has no Cause of
Action, then the Application will be Rejected.

6. If the Indigent Person dies before the filing of the Suit, the Right
does not Survive to the Legal Representatives.

 PROCEDURE ADOPTED BY THE COURT AFTER THE

ADMISSION OF THE APPLICATION –

1. If the Application is not Rejected, the Court shall Fix a Day after
giving at least 10 Days clear Notice to the Opposite Party.

2. On the fixed Day, the Applicant must Produce all Evidence support
of his Indigence. He can Produce Evidence for Rebutting the
Evidence produced by the Opposite Party.

 INQUIRY OF THE APPLICATION OF AN INDIGENT PERSON -

Upon Inquiry of the Application, after Examination of the

Applicant and the Witnesses, the Court may either GRANT the
Application to Sue in 'Forma Pauperis' i.e. Indigent Person or REJECTED
the Application.

 REASONS OF REJECTION OF APPLICATION –

The Court may Reject the Application filed by the Plaintiff on the
Following Grounds –

1. Application is not property Framed and Presented.

2. There is no Cause of Action in the Suit.

3. When the Applicant has Fraudulently Dispossessed of his

Property within the Last Two Months with the Intention to Sue as
an Indigent Person.

4. When the Plaintiff is not an Indigent Person.

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5. When the Applicant has entered into an Agreement by which
another Person has obtained an Interest in the Subject-matter of
the Suit.

6. If the Allegations made by the Applicant are such that the Suit
will be Barred by any Law in force at that time.

 RECOVERY OF COURT-FEES –

1. If the Indigent Person Wins the Suit, the Payment of Court Fees
becomes the First Charge on the Subject-matter (Decretal
Amount) of the Suit and the State Government may Order the
Party to Pay the Same.

2. If the Indigent Person Fails or if he Withdraws the Suit or if the Suit

is Dismissed for Non-Appearance, the Court Fees must be Paid
by him, as if he were not Permitted to sue as an Indigent Person.

3. If the Suit Abates on account of Death of the Plaintiff, then the

Court shall Order the Court Fees to be Realised from the Estate of
the Deceased Indigent Person.

Thus, Order XXXIII (33) helps a Poor Person to Institute a Suit

without Payment of Court Fees.

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NOTE NO. 4 II SHRI SAI II

CODE OF CIVIL PROCEDURE, 1908

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Q. What are the Purpose for which a Court may appoint a

"Commissioner".

A. INTRODUCTION-

O.26 of CPC deals with the provisions of "Commissioner".

As a General Rule, the Evidence of Witness in an Action whether

he is a Party to the Suit or not, should be taken in an Open Court and
Tested by Cross-Examination. Inability to Attend the Court on grounds
of Seekness or Infirmity or for any other Reason, may Justify by
Appointing a "Commissioner".

The Court has Discretion to Relax the Rule of Attendance of Party

in a Court where the Person Sought to be Examined as a Witness
Resides beyond the Local Limits of Jurisdiction of the Court or on
any other Ground which the Court thinks sufficient. A Witness, who
being a Pardanashin Lady can be Examined on a Commission.

The Power, however should not be Exercise on the ground that the
Witness is a Man of Rank or having a Social Status and it will be
Derogatory for him to Appear in-person in the Court.

In simple words, the Court has Power to Issue Commission to any

Fit Person or even to a Court (other than High Court in India) for
Following Purposes, Such Person is called as, "COMMISSIONER".

 PURPOSES OF COMMISSION/ PURPOSES OF APPOINTMENT

OF COMMISSIONER-

The Court may Issue (i.e. Appoint) a Commission or may Appoint

a Commissioner for any of the Following Purposes-

1. to Examine Witnesses.

2. to make Local Investigation.

3. to make Partition.
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4. to hold Scientific Investigation.

5. to Conduct Sale.

6. to perform Ministerial act. FOR EXAMPLE – to conduct

Elections;.

 POWERS OF COMMISSIONER-

The Powers of Commissioners are Classified as under-

The Commissioner may-

a. summon and produce the Attendance of Parties and their

Witnesses and Examined them.

b. call for Examination, Documents and other Relevant Things to

the Subject of Enquiry.

c. at any Reasonable Time, enter upon or into any Land or

Building mentioned in the Order of the Court.

d. proceed Ex-partee if the Parties or Party does not Appear

before him in spite of the Order of the Court.

 DUTIES OF COMMISSIONER –

1. It is the Duty of the Commissioner to fix a Date for Execution

of Commission Word and to Inform both the Parties.

2. It is the Duty of the Commissioner to Execute the

Commission Work, with reference to the Subject matter, Refer
to the Commissioner.

3. It is the Duty of the Commissioner to file the Report (i.e.

Commissioner's Report) within the Time Stipulated by the
Court.

4. It is the Duty of the Commissioner to Appear before the Court

when called for with Reference to the Subject matter of the
Commission Executed by him.

 RIGHTS OF COMMISSIONER –

1. It is the Right of the Commissioner to Claim for Fee fixed by

the Court.

2. It is the Right of the Commissioner to Seek Enhancement of

Fee fixed by the Court.

2
3. It is his Right to Fix the Date of Commission keeping in view
the Time Fixed by the Court for Filing his Report in the Court.

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Q. Examine the provisions about the "Receiver". What are the

powers and functions of Receiver.

A INTRODUCTION & MEANING OF "RECEIVER" -

O.40 of CPC deals with the provisions of "Appointment of

Receiver".

The term 'Receiver' is not defined in CPC.

A Receiver is a person Appointed for the Preservation of the

Subject-matter of Litigation, when Final Decision has not been
Pronounced in the Litigation.

The word "Receiver" means as in different Person between the

Parties to the Suit, appointed by the Court to Receive and Preserve the
Property (Immovable) or Funds in Litigation Pendente lite, when it
does seems Reasonable to the Court.

Receiver is a Person who has to act according to the Direction of

the Court during 'Pendency of Suit'.

Receivers are appointed for Protection of Rights and for

Prevention of Injury or Irreparable Loss to the Property.

Receiver is an Impartial person appointed by the Court. The

Receiver is appointed for the Benefit of all concern that means he is a
Representative of the Court and also of all Parties Interested in the
Suit/ Litigation, wherein he is Appointed.

Receiver is an Officer of the Court. His Possession of the

Property is deemed to be the Possession of the Court.

In other words, Receiver is the Right Arm of the Court in exercising

the Jurisdiction invoked in such case for Administering the Property or
Funds i. means Court can only Administer through a Receiver. For this
reason, all Suits to Collect or Obtain Possession of the Property must
be Protected by the Receiver and the said Proceed Received and
Control by him Alone.

3
O.40 of CPC provides for Appointment, Remuneration, Duties of
Receiver and Enforcement of Receiver's Duty –

* POWER OF COURT TO APPOINT RECEIVER (O.40, R.1) –

Where it Appears to the Court to be Just and Convenient, the

Court may Order-

a. to Appoint a Receiver of any Property whether before or after

Decree.

b. to Remove any person from the Possession or Custody of

the Property.

c. to Commit the same to the Possession, Custody and

Management to the Receiver.

d. conferred upon the Receiver all such Powers as to bringing

and defending Suits and for the Realization, Management,
Protection, Preservation and Improvement of the Property,
Collection of Rents and Profits and such other Powers as
the Court thinks fit.

It is the Discretionary Power of the Court to Appoint a Receiver.

When there is a Bonafide Possessor of the Property, Receiver should
not be Appointed.

There must be Clear Proof of an Actual Loss or Damage that is

likely to Occur to the Property if No Receiver is Appointed.

Only in cases of Strong likelihood of Success of the Plaintiff with

the Risk of Loss to him, the Receiver is Appointed.

 REMUNERTATION OF RECEIVER (O.40, R.2) -

The Court may by General or Special Order, Fixed the Amount to

be paid as Remuneration for the Service of Receiver.

POWERS & DUTIES OF RECEIVER (O.40, R.3) -

1. Receiver cannot Purchase the Properties in his Custody as

Receiver.

2. He cannot Sue or be Sued without the Prior Permission of the

Court.

3. He has to give Fair Accounts for all Loss and Gain of Properties to
the Court.

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4. The Properties in the hands of a Receiver cannot be Attached
without the Court's Prior Permission.

5. A Receiver cannot Delegate his Duties.

6. Receiver is Responsible for any Loss due to his Wilful Default or

Gross Negligence.

7. A Party to a Litigation should not Appoint as Receiver.

8. A Receiver can Institute Contempt of Court Proceeding against

any Person who Interferes with Possession of the Property by the
Receiver.

9. Every Receiver so appointed shall Furnish such Security (if any)

as the Court thinks fit, duly to Account for what he shall Receive
in respect of Property.

10. Every Receiver so Appointed shall Pay the Amount Due from
his as the Court directs.

 ENFORCEMENT OF RECEIVER'S DUTIES (O.40, R.4) –

Where a Receiver –

a. fails to Submit his Accounts at such Period and in such

form as the Court directs,

b. fails to pay the amount due from his as the Court directs
or

c. by his Wilful Default or Gross Negligence, he brings

Loss to the Property

then the Court may Direct his Property to be Attached and Sold
by the Court. After Attachment and Sale of the Receiver's Property,
the Amount Due from him or Amount of Loss Caused to the Property,
shall be Collected and the Balance, if any, will be Paid to the Receiver.

5
Q. Explain the Provisions of CPC in respect of "Temporary
Injunction"

What is Temporary Injunction? When should temporary

injunction issued?

Write a short note on – "Temporary Injunction" and "Permanent

Injuction"

"An injunction is issued to restrain repetition or continuance of

breach" – Discuss this statement with the provisions of CPC.

A INTRODUCTION -

O.39, R. 1 to 5 of CPC deals with the provisions of "Temporary

Injunction".

* MEANING OF INJUNCTION-

"An Injunction is a Judicial Process or an Order of the Court

whereby a Party (i.e. Defendant) is required to do or to Restrain from
doing any Particular act in order to maintain the status quo of the
Subject-matter of the Suit for the time being".

There are 2 kinds of Injunction, namely-

1. PERMANENT INJUNCTION -

Governed by Section 54 to 57 of the Specific Relief Act. 1963 and

passed only after the Final Hearing of the Suit.

A Permanent Injunction is a Sort for only in a Suit Restraining a

party FOREVER from doing the Specified act and can be Granted after
Hearing Both the Parties of the Suit.

2. TEMPORARY INJUNCTION-

Temporary Injunction is passed only till the Disposal of Suit or

until the Final Order of the Court.

The Court has Discretionary Power either to Grant or Refuse

Temporary Injunction. It is Granted only if the Plaintiff has Probability
of Success in the Suit.
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 OBJECT OF INJUNCTION-

The Vary Object of Granting Temporary Injunction in favour of a

Party is to Prevent FUTURE POSSIBLE INJURIES and to Preserve the
Property in Dispute till the Legal Rights and Liabilities of the Parties are
Adjudicated by the Court.

Injunction is the nature of Protective Relief in favour of a Party, to

Prevent Future Possible Injuries.

The Court looks into the Following Details before Granting

Temporary Injunction -

1. There should be a Prima Facie Case between the Parties.

2. The Plaintiff shall be put to Irreparable Loss if Temporary Injunction

is not Granted.

3. It is Convenient to Grant Injunction in Favour of the Plaintiff

(Balance of Convenience).

 GROUNDS FOR GRANTING TEMPORARY INJUNCTION -

The Granting of Temporary Injunction is a Discretion of the Court

and has to be Exercised Judicially -

i. Where any Property in a Suit is in Danger of being Damaged

or Alienated by any Party in the Suit or Wrongfully Sold.

ii. Where the Defendant Threatens or Intends to Remove or

Dispose of his Property with a view of Defrauding his
Creditors.

iii. Where the Defendant Threatens to Dispossess the Plaintiff

or otherwise cause Injuries to the Plaintiff in relation to any
Dispute in the Suit.

iv. Where the Defendant is about to Commit a Breach of

Contract.

v. Where the Court is of the Opinion that the Interest of Justice

so Requires.

Where the case is not Covered by Order 39, Temporary Injunction

can be Granted by the Court in Exercise of Inherent Powers
(Discretionary Powers) u/s 151 of CPC. This Discretion, however,
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should be Exercise Reasonably, Judicially and on Sound Legal
Principles (Principles of Natural Justice)

Moreover, the Relief of Injunction may be Refuse on the Grounds

of Delay, Acquiescence or where the Applicant has not come in the
Court with the Clean Hands or has Suppressed Material Facts.

 CONSEQUENCE OF DISOBEDIENCE OR BREACH OF

INJUCTION –

In case of Disobedience of any Injunction, the Court may Order

Attachment of the Property of the Person Guilty of Disobedience or
Breach and may also Order of Detention of that person in Civil Prison
for a Term not Exceeding Three Months (For Contempt of Court)
unless the Court Release him.

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Q. Write a short note on - "Caveat".

A. INTRODUCTION -

Section 148-A of CPC provides for "Right to Lodge (filed) a

Caveat"

A Caveat is a Caution (Alert) or giving Notice to a Court, not to

take any Steps without Notice being given to the Party lodging a
Caveat, that Party is known as, "Caveator".

In other words, A Caveat is Simply a WARNING given by a Person

(i.e. Caveator) having an Interest in any Subject-matter in Dispute that
any Case filed against him, must not Heard without Notice to the
Caveator i.e. the person filing the Caveat. However, it is not Considered
a Notice to any Particular Person.

 CAVEAT UNDER CPC AMENDMENT ACT, 1976 –

The CPC (Amendment) Act, 1976 has Inserted Section 148-A in

the CPC entitling a person to Lodge Caveat regarding a Suit or
Proceeding about to be Instituted. When a Caveat is Lodged, Ex-Partee
Order on any Application filed cannot be made.

 IMPORTANT POINTS REGARDING "CAVEAT" –

1. A Caveat is nothing but a Warning that the Court must give an

Opportunity to the Caveator before deciding anything against him
(i.e. Caveator).
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2. A Caveat is not a Notice to any Particular Person but a Notice to
the Court not to allow Proceeding without Notice to the
Caveator.

3. The Aim of Filing Caveat is to Prevent the Order by Court without

Notice to the Caveator.

4. The Caveat may be Filed in the District Court or in a High Court or

in Supreme Court, both for Trial Court or Appeal Court.

5. There is No Procedural Enquiry for Caveat. When Once a Caveat

is filed, it is Final.

6. Before Filing Caveat, the Caveator should send a Copy of the

Caveat to the Respondent by RPAD and Postal Receipt (RPAD
Receipt) must be Enclosed along with the Caveat.

 RIGHT TO LODGE A CAVEAT (SECTION 148-A CPC) -

i. Where, an Application (i.e. Exhibit 5) is Expected to be

made or has been made in a Suit Instituted or about to be
Instituted in a Court, any Person Claiming Right to Appear
before the Court on the Hearing of such Application (i.e.
Exhibit 5), may Lodge a Caveat in respect thereof.

ii. Where, a Caveat has been Lodge under Sub-section (1), the
Person by whom the Caveat has been Lodged hereinafter
referred to as the "Caveator" shall Serve a Notice of the
Caveat by R.P.A.D., on a Person by whom the Application
(Exhibit 5) has been or is expected to be made under sub-
section (1).

iii. Where, after Caveat has been lodged under sub-section (1),
any Application (Exhibit 5) is filed in any Suit/ Proceeding,
the Court shall Serve a Notice of the Application (Exhibit 5)
on the Caveator.

iv. Where a Notice of any Caveat has been served on the

Applicant, he shall forthwith Furnish the Caveator, at the
Caveator's Expenses with a Copy of the Application made
by him and also with Copies of any Documents which has
been or may be filed by him in support of the Application.

v. Where a Caveat has been Lodged under sub-section (1) such

Caveat shall not Remain in force after the Expiry of 90 Days
from the Date on which Caveat was Lodged.

9
 FAILURE TO HEAR THE CAVEATOR – EFFECT -

Caveat Lodged by Caveator not Supplied Copy of Application and

Documents filed along with Application and if the Court passed Ex-partee
Order against the Caveator then such Order of the Court is Invalid i.e.
Null and Void.

The Intention of Legislature in making Section 148-A is Enable to

the Caveator that is Opponent (in suit) to be Heard before any Orders
are Passed and No Orders are Passed by Court Ex-Partee.

Therefore, it is a Duty of a Court to Hear the Caveator before

Passing any Order against him i.e. Caveator.

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Q Write a Short Note on – "Inherent Powers"

A INTRODUCTION -

Section 151 of CPC deals with the provisions of "Inherent

Powers".

The Court has Inherent Power to make Necessary Orders for the
Ends of Justice or to Prevent Abuse of the Process of Court. Every
Civil Court has Inherent Powers to Pass Orders.

The Court has No Inherent Power to do that which is Prohibited by

the Code or by any other Law.

In other words, Inherent Power of the Court is Complimentary

Power in addition to Powers Specifically conferred upon a Court by
CPC, are called as, "Inherent Powers".

So, if any Procedure is Expressly mentioned in the CPC, then the

Inherent Powers should not be Exercised Contrary to such Provisions of
the Code.

 PROVISIONS REGARDING EXERCISE OF INHERENT

POWERS –

1. Considering the Requirements of Natural Justice and in the

Absence of Specific Provisions, Inherent Power can be use.

2. The Power u/s 151 of CPC cannot be Exercise as on "Appellate

Court".

3. The Court cannot Exercise Inherent Power under this Section, in

cases where the CPC or any other Law provides a Special
Remedy.
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4. The Inherent Power can be Exercise only when there is no Express
Provision in CPC or any other Law. What can not be Done under
the Law? Or what is against the Policy? cannot be done by
Exercise of Inherent Power.

5. The Court can, in Appropriate Cases, Grant Temporary Injunction

in exercise of its Inherent Power in cases not Covered by Order
39.

6. The Inherent Powers of the Court cannot be Invoked to Nullify a

Statutory Provisions.

7. The Inherent Powers given to the Court are Additional and

Supplementary to the Powers expressly provided under the CPC.

8. There should not be any Limit in the Scope of the Inherent Power.
It is very Wide.

9. The Inherent Power of the Court will not be Invoked for Law
Violators and Others who Abuse Legal Processes.

10. t is Well-settled that there is an Inherent Power to the Court to

Correct Clerical Mistakes or an Error arising from an Accidental
Slip or Omission to Vary its Judgment so as to give proper Effect
to its Meaning and Intention.

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Q. Write a short note on "Adjournment".

Write a short note on "Adjournment application on the date of

hearing of a suit and absence of a party"

Write a short note on – "Adjournment and Costs".

A "ADJOURNMENT" –

O.17, R. 1 to 3 of CPC deals with "ADJOURNMENT".

ADJOURNMENT means Postponement of Hearing of a Suit for

Sufficient Cause. At any stage of the Suit, the Court may Grant Time to
the Parties or to any of them and may Adjourn the Hearing of the Suit.

Once the Court starts Hearing of a Suit, it will be Continued till

Final Judgment. When the Hearing of Evidence has once Begun, such
Hearing shall be Continued as per the Dates Fixed by the Court and
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Adjournment should be Granted only for some Unavoidable
Exceptional Circumstances.

To Grant Adjournment to the Party is a Discretionary Power of the

Court.

 PROVISIONS RELATING TO ADJOURNMENT –

1. Adjournment will not be Granted at the Request of a Party, Except

if the Circumstances are beyond the Control of the Party.

2. The Pleader being Engaged in Another Court, will not be a

Ground for Adjournment.

3. If the Pleader is ill or not able to Conduct the Suit/ Case, the
Court may Grant Adjournment only if the Party could not have
Engaged another Pleader within the Available Time.

4. As per O. 17, R. 2, If on the Adjourn Day, the Parties or any of

them Fails to Appear, the Suit will be Disposed in one of the Modes
as per Order IX (9) (i.e. Appearance and Consequences of Non-
Appearance of Parties.)

5. As per O.17, R.1, the Court may, if Sufficient Cause is shown, at

any Stage of the Suit, Grant time to the Parties or to any of them and
may from time to time Adjourn the Hearing of the Suit for
Reasons to be Recorded in Writing.

In other words, General Rule is that the Hearing of the Suit

shall be Continued day to day, is Relaxed by Adjournment.

 COSTS OF ADJOURNMENT (O.17, R.1) –

In every such Case, the Court shall Fix a Date for further Hearing
of the Suit: Provided that, such Adjournment shall not be Granted for
more than 3 times to a Party during Hearing to the Suit.

If the Court Granted the Adjournment for more than 3 times to a

Party, then the Court shall Make such Order as to Costs to the
Opposite Party, as the Court deems fit.

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NOTE NO. 5 II SHRI SAI II

CODE OF CIVIL PROCEDURE, 1908

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Q. Write a short note on - "Garnishee"

A "GARNISHEE" -

O.21, R. 46 (A) to (I) deals with the provisions of "Garnishee".

Garnishee = Judgment 's Debtor's Debtor.

Garnishee is a person who is Liable to pay Debt to a Judgment

Debtor.

A Garnishee Order is an Order passed by a Court ordering a

Garnishee not to pay Money to a Judgment Debtor because he is a
Debtor of a Decree- holder. The Procedure for grant of Garnishee
Order has been Stipulated under rules 46 (A) to 46(I) of O. 21.

The Court may, in the case of Debt which has been Attached
under R.46 of O.21, upon the Application of the Decree-holder i.e.
Attaching Creditor, issue a Notice to the Garnishee liable to pay such
Debt, Calling upon him (Garnishee) either to Pay into Court, the Debt
due from him i.e. Judgment Debtor or so much thereof as may be
Sufficient to satisfy the Decree and Costs of Execution Proceeding or
to Appear and Show Cause why he (Garnishee) should not do so.

The Payment made by Garnishee into the Court as per the Notice,
shall be treated as a Valid Discharge to him (Garnishee) as against the
Judgment Debtor.

The Court may Direct that such Payment/ Amount may be paid to
the Decree-holder towards the Satisfaction of Decree and Costs of
Execution Proceeding. It is treated that it is the Satisfaction of the
Decree of Judgment Debtor.

Where neither the Garnishee makes the Payment into the Court
as per Order nor Appear and Shows any Cause in Answer to the
Notice, the Court may Order the Garnishee to Comply with the Terms of

1
such Notice and on such Order, Execution may Issue as though such
Order were a Decree against him (i.e. Garnishee).

Where a Garnishee disputes Liability, the Court may Order that

any Issue or Question necessary for Determination of Liability, shall be
Tried as if it were an Issue in a Suit and upon the Determination of
such Issue shall make such Order/s as it deems fit.

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Q. Write a short note on – "Amendment of Pleading"

A INTRODUCTION- PLEADING

O.6 of CPC explains the Provisions "PLEADING GENERALLY".

PLEADING = A Formal Statement of the Cause of Action

or Defence

As per O.VI, R. 1 –

Pleading shall mean Plaint or Written Statement.

Pleadings are the Backbone of Litigation.

Pleadings are the Statements of the Parties i.e. Plaintiff and

According to P.C.Mogha – "Pleading are Statements Written,

filed by each Party to a Suit, stating his Contention at the Trial and
giving such Details, as his Opponent Needs to Know in Order to
Prepare his case in answer".

Pleadings of Plaintiff are found in Plaint and Pleadings of

Defendant are found in Written Statement.

AMENDMENT OF PLEADING-

Amendment of Pleading is an Important Procedure in CPC. The

Civil Disputes are Pending in a Court for a long time. That Pendency
Causes various Subsequent Changes in the Subject-Matter of the Suit.
Those Changes are to be Recorded in Pleadings by an Amendment in
the Pleadings.

Pleading can be Amended at any time during the Pendency of a

Suit and in Appeal also. Generally, all Amendments are Permissible If

2
they are Necessary for the Determination of the Real Questions in
Controversy between the Parties.

The Court may, at any stage of the Suit/ Proceeding-

i. may Allow either Party to Alter or Amend his Pleadings in

such a manner and on such terms as may be Just and

ii. must Allow all such Amendments as may be necessary for

the purpose of Determining the Real Question in
Controversy between the Parties.

If any Amendment is Sought by any Party, it must be Expressly

made only with the Leave (Permission) of the Court.

For Obtaining Leave for Amendment of Pleadings, Basic

Principles for Satisfaction of the Court are-

i. that no Injustice or Loss is going to be caused to

other side.

ii. the Amendment is necessary for the Determination of

the Real Question in Controversy to be Adjudicated
amongst the Parties.

iii. The Amendment is Applied in a Proper Form.

iv. Application for Amendment must not act with

Malafide Intention but must be made in Good Faith
and Bonafide.

v. the Amendment is not Changing the Nature of Suit.

GROUNDS OF REFULSAL OF AMENDMENT OF PLEADINGS –

The Court can REFUSE the Amendment in the Following Cases –

1. When the Amendment is not Necessary for Deciding the Real

Controversies in the Suit.

2. If it is to Incorporate a New Set of Ideas.

3. If it enables the Plaintiff to Sue for a Time Barred Debt.

4. If it would cause Pre-judice to the Other Side which cannot be

Compensated by Costs.

5. If it would Cause Serious Injustice to the Other Side.

6. No Amendment should be Allowed if it amounts to Defeating a

Legal Right of the other Party.
SAI LAW ACADEMY CODE OF CIVIL PROCEDURE, 1908 © ALL RIGHTS RESERVED

3
Q Write a short note on – "Jurisdiction of Court"

A JURISDICTION OF COURT (Section 9 & 9A)

Section 9 deals with the provisions of "Jurisdiction of

Court"

MEANING OF "JURISDICTION" -

"The Power of a Court in Entertainment of Suits, Appeal and

Applications, it Authority to Administer Justice is Known as,
"JURISDICTION".

As per Section 9 - "Courts to try all Civil Suits unless Barred.

The Court shall, subject to the Provisions contained, have Jurisdiction

to try all Suits of Civil Nature/ otherwise Expressly or Impliedly Barred.

"ubi jus ibi remedium" - which is a Fundamental Principle of English

Law, that means, "When there is a Civil Wrong, there is Remedy".

"Rights and Remedies" are 2 sides of Same Coin. If Right of any

Person is Violated then he must have Access to the Court of Law.
Court shall have Power and Authority to decide the Case as per Legal
Provisions.

In other words, "Jurisdiction" is the Power of the Court to Hear

and Determine a Suit to be Adjudicated and Exercise any Judicial
Power in relation to it. Jurisdiction is the Authority with which a Court is
vest to Decide Matters (i.e. Case) that are Litigated before the Court.

TYPES/ KINDS OF "JURISDICTION" –

Different Courts are Legally Vested with Different Powers. There

are Limitations in respect of the (a) Extent of their Territory, (b)
Monetary Value, (c) Subject-matter of the Suit and Nature of work (d)
(Original or Appellate)

If a Case is Heard by a Court which has No Jurisdiction, even if the

Judgment are Technically Correct, they are Void.

There are Following Types/ Kinds of Jurisdiction -

1. Territory/ Local Jurisdiction

2. Pecuniary Jurisdiction

3. Jurisdiction as to subject-matter

1. TERRITORIAL OR LOCAL JURISDICTION –

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Every Court has been Allotted a Territorial Limit for its
Jurisdiction and beyond that Limit, it does not have Jurisdiction.

In each state, State Government shall Fixed the Jurisdiction of

each Court according to Local Needs. The Court should Exercise its
Power within that Territorial or Local Jurisdiction only.

FOR EXAMPLE –

The District Judge of Nasik and other Judges under District Judge
has Jurisdiction to the District i.e. Nasik District only and they cannot
Exercise their Powers beyond Nasik District.

Similarly, the High Court has Jurisdiction over the Whole

Territory of the State within which it is Situated.

FOR EXAMPLE –

Bombay High Court has Jurisdiction for whole Maharashtra

Territory and not Beyond that.

2. PECUNIARY/ MONETARY JURISDICTION -

Pecuniary means, 'Relating to Money'. Civil Courts of Different

grades have Jurisdiction to try Suits of different Amounts of Value.

FOR EXAMPLE –

The High Court and the Court of District Judge and Civil Judge
Senior Division have Unlimited Pecuniary Jurisdiction and other
Courts have only Limited Pecuniary Jurisdiction.

3. JURISDICTION AS PER SUBJECT-MATTER -

Certain Courts are Precluded by Law from Entertaining Suits of

Particular Classes. The Courts of District Judges and Civil Judge
Senior Division and Civil Judge Junior Division alone have Jurisdiction
in respect of Recovery Suits, Suit for Specific Performance, Partition
Suit, Succession Certificate, Insolvency Proceedings., etc.

Industrial Tribunals and Labour Courts have the Jurisdiction to

deal with the Industrial and Labour Cases only. The Consumer Forum
deals only with the Complaints of Consumers. The Co-operative Court
deals only with the Suits of Co-Operative Societies.

In fact, these Tribunals are not Civil Courts within the meaning of
CPC.

5
Q. Write a detail note on – "Joinder of Parties". Explain "Non-
Joinder" and "Mis-Joinder".

A. INTRODUCTION -

Order 1 of CPC deals with "Parties to suit".

For Institution of a Suit, there must be Two Parties, a Subject of

Dispute, Cause of Action and Demand of Relief. A Suit is Instituted by
the Presentation of Plaint to the Court.

The Plaint should Set Out the Name of the Plaintiff, (if there are
more than One Plaintiff, the Names of every Plaintiff) and the Name of
the Defendant (if there are more than One Defendant, the Names of
every Defendant).

The Question of Joinder of Parties to the Suit may arise as

regards to the Plaintiff and as regards to the Defendant.

All Persons may be Joined in a One Suit as a Plaintiffs and

Defendants if the following Two Conditions are Satisfied-

i. If the Cause of Action accrues to each Plaintiff out of

the same act or transaction.

ii. the Character of the Suit is if Separate Suit are filed

by the Person i.e. Plaintiff in which any Common
Question of Law or Question of Fact would arise.

NECESSARY & PROPER PARTIES-

There is an Essential Distinction between "Necessary Party" and

"Proper Party".

A Necessary Party is one whose Presence is Indispensable (i.e.

must) to the Institution of Suit, against whom the Relief is Sought and
without whom no Effective, Judgment and Decree/ Order can be
Passed.

A Proper Party is one in whose Absence, an Effective Judgment

and Decree/ Order can be Passed but whose Presence is Necessary for
a Complete and Final Decision on the Question involved in the Suit or
Proceeding.

NON-JOINDER AND MISS-JOINDER –

1. Where a Necessary Party to a Suit has not been Joined as a Party

to the Suit, then it is a case of "Non-Joinder of Parties".

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2. If more than One Plaintiff are Joined together in One Suit, but the
Right to Relief does not arise out of same Transaction, it is
"Misjoinder of Plaintiffs".

3. If more than One Defendant are Joined together in One Suit, but
the Right to Relief against each of them does not arise out of
same Transaction, it is "Misjoinder of Plaintiffs".

4. A Suit shall not be Defeated due to Non-Joinder or Misjoinder of

Parties, but if a Right to Sue accrues in favour of a Person who is
not Joined as a Party, then it will Affect the Suit. The Question of
Non-Joinder of Parties in a Suit for Partition can be Raised at any
Stage as the Question relates to the Root of the Case.

5. If any Wrong Person has been Improperly Joined as Plaintiff or

Defendant, the Court may, at any Stage, Order the Name to be
Struck our and Join the actually Necessary Party to the Suit.

6. If the Joinder of Person as Party is not Necessary, it may or may

not be Done (This is known as "a Striking out" or "Adding of
Parties"). For Proper Adjudication of a Suit, all the Proper Parties
are Necessary.

7. Any Plaintiff who is Insane, without a Next Friend or if the Next

Friend is under Disability, he will not be Added as a Party without
his Consent.

8. If a New Defendant is Added, the Plaint will be Amended and

Amended Copies will be Sent to the New Defendant.

9. In case of the Plaint being Amended, the Proceeding shall be

deemed to have begun only on the Service of the Summons.

7
NOTE NO. 6 II SHRI SAI II

CODE OF CIVIL PROCEDURE, 1908

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Q. Write a Short Note on – "Stay of Suit".

Write a Short Note on – "Res Sub Judice".

A INTRODUCTION –

Section 10 of CPC deals with the Provisions of "Stay of Suit"

i.e."Res Sub Judice".

DEFINITION OF "STAY OF SUIT" (SECTION 10) –

"No Court/ shall Proceed/ with the Trial/ of any Suit/ in which/ the
Matter in Issue/ is also Directly & Substantially/ in Issue/ in a
Previously Instituted Suit/ between the Same Parties/ or between
Parties/ under whom/ they or any of them/ litigating/ under the Same
Title/ where such Suit/ is Pending/ in the Same or any other Court/ in
India/ having Jurisdiction/ to Grant Relief/ Claimed/ or in any Court/
beyond the Limits of India/ Established or Continued/ by the Central
Government/ and having Jurisdiction/, or before the Supreme Court".

OBJECT AND SCOPE OF SECTION 10 –

The OBJECT of this Section is to Prevent Court from Exercising

Jurisdiction to Two Parallel Litigations in respect of Same Cause of
Action. The Law always tries to Restrict the Plaintiff to only one
Litigation. This is to Avoid Two Contradictory Judgments by Two or
More Courts for the Same Cause of Action.

In other words, the Policy of Law is to Confine the Plaintiff to One

Litigation. The Object is to Obviate the Possibility of Contradictory
Verdicts on the Same Matter in Issue.

CONDITIONS FOR "RES SUB JUDICE" –

1. The Matter in Issue in the Suit is also Directly and Substantially in

1
2. A Previously Instituted Suit is Pending in a Court.

3. The Court in which the Previous Suit is Pending has Jurisdiction to

grant Relief Claimed in the Subsequent Suit.

4. The Previously Instituted Suit must be Pending in the same

Court in which Subsequent Suit is brought or in any Court in India
or in any Court beyond the Limits of India.

5. The Parties must be Litigating under the Same Title in both the
Suit.

6. The Parties in the Subsequent Suit must be the Same as in the

Previously Instituted Suit.

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Q. Write a Short Note on – “Res Judicata”

A. INTRODUCTION –

Section 11 of CPC explains the Principle of Res Judicata.

Res Judicata = “Things already decide”

 DEFINITION OF “RES JUDICATA” (SECTION 11) –

“A Court/ should not try/ any suit or issue/ in which/ the matter/
directly and substantially/ in issue/ in a former suit/ between the same
parties/ and such issue/ has been heard/ and finally/ decided/ by the
Court”.

 IMPORTANT INGREDIENTS OF “DOCTRINE OF RES

JUDICATA” –

1. The matter must be directly and substantially in issue in two

suits i.e. former suit and subsequent suit.

2. The former/ prior suit should be between the same parties.

3. Parties should have litigating under the same title.

4. The Court which determined the earliest suit, must be

Competent to try the subsequent suit.

5. The Question (i.e. issue) directly and substantially in issue in the

subsequent suit.

2
In simple words, “Res judicata” means When a suit is finally decided
by a Competent Court, then the same suit between same parties should
not be tried in a subsequent suit by another Court.

This Doctrine is not applicable to Appeals because Appeals are tried

by Appellate/ Superior Courts.

The Doctrine of Res judicata based on the following MAXIMS –

1. “interest republicae et sit finis litium” -

It means – “the litigation should not be protracted but must

be finished once for all”

2. “nemo debut bis vexari prouna et eadem causa” -

It means – “No man should be sued twice for the same

cause of action”.

As per this Maxim – As the cause of action of the second

suit is merged in the judgment of the first suit, it does not
survive.

3. “res judicata provertical seliparate” -

It means – “A Judicial Decision must be accepted as

correct”.

Thus, the Principle of Res judicata is based on Public Policy to end

the litigation and to avoid multiplicity of suits. Individuals should not be
harassed more than once with the same kind of litigations.

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Q. Write a short note on – "Costs and Compensatory Costs".

A. INTRODUCTION -

Order 20A, Section 35 & 35A are deals with the provisions of
Costs and Compensatory Costs.

The OBJECT of Awarding Costs to the Litigant is to Remedy him

the Expenses incurred by him in the Litigation. It is neither Penalty nor
Punishment to the other Party. The Awarding of Costs is in the
Discretion of the Court. The Court must Consider the Conduct of the
Parties in Litigation and all other Relevant Circumstances.

The Court has Full Powers to Determine by Whom or out of What

3
The General Rule is that the Successful Party is entitled to Costs.
Costs are Awarded in Proportion to Success or Failure of the Parties to
Litigation.

The Court may Award Costs in respect of-

i. Expenditure Incurred for the Giving of any Notice required

to be given by Law before the Institution of Suit.

ii. Expenditure incurred for the Giving of any Notice though

not Required to be given by Law, has been given by any
Party to the Suit to any other Party before the Institution of
the Suit.

iii. Expenditure incurred on the Typing, Writing or Printing of

Pleadings filed by One Party.

iv. Charges Paid by a Party for Inspection of Records of the

Court for the Purpose of the Suit.

v. Expenditure incurred by a Party for Producing Witnesses

even though not Summoned through Court.

vi. In case of Appeals, Charges incurred by a Party for

Obtaining Certified Copy of Judgment and Decree which are
Required to be filed along with Memorandum of Appeal.

COSTS TO BE AWARDED IN ACCORDANCE WITH THE RULES BY

HIGH COURTS –

The Award of Costs under this Rule shall be in accordance with

such Rules as the High Court may make in that behalf.

COMPENSATORY COSTS-

Section 35-A deals with the provisions of "Compensatory Costs",

in respect of False or Vexatious Claims (Suit) or Defence.

For the Application of this Provision, the following Four Conditions

must be Satisfied –

1. The Claim or Defence must be False or Vexatious.

2. It must be False or vexatious to the Knowledge of the Party

using it.

3. Such Claim or Defence must be Disallowed by the Court or

4
4. The Objection that the Suit was False and Vexatious must be
made at the Earliest Opportunity.

Compensatory Costs are also known as "Exemplary Damages",

usually Awarded to the Affected Party out of False or Vexatious Claim
or Defence. The Costs are not Penal and hence named Compensatory
Costs.

Court shall Make such Order for the Payment of an Amount not
Exceeding the Limits of its Pecuniary Jurisdiction.

Person against whom an Order has been made under this Section
shall not be Exempted from any Criminal Liability in respect of any
Claim or Defence made by him.

The Amount of any Compensation Awarded under this Section,

shall be taken into account in any Subsequent Suit for Damages or
Compensation in respect of such Claim or Defence.

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Q. When a 'Foreign Judgment' will not be Conclusive and Binding

upon the Court of India.

A. INTRODUCTION -

Section 13 of CPC deals with 'When Foreign Judgment not

Conclusive".

A Foreign Judgment is Conclusive and will Operate as Res-

judicata between the Parties thereto Except in the Cases mentioned
hereinafter.

In other words, a Foreign Judgment is not Conclusive and not

Binding if one of the Conditions specified in Section 13 clauses (a) to
(f) is not Satisfied and it will then be Open to Co-lateral Attack.

SECTION 13 (a)-

IF FOREIGN JUDGMENT NOT PASSED BY A COMPETENT COURT -

It is a Fundamental Principle of Law that if the Judgment or Order

passed by a Court which has No Jurisdiction, is Null and Void.

That means a Judgment of Foreign Court to be Conclusive and

Binding, if it is pronounced by a Competent Court.

5
SECTION 13 (b)-

IF FOREIGN JUDGMENT IS NOT ON MERITS -

In order to Operate 'Res judicata', a Foreign Judgment must have

been given on Merits of the Case.

On Merits means after taking Evidence and after Applying the

Minds regarding the Truth or Falsity of a Plaintiff's Case.

SECTION 13 (c) –

IF FOREIGN JUDGMENT AGAINST THE INDIAN LAW -

A Judgment based upon an Incorrect View of an International

Laws or Refusal to Recognise Law of India then the Judgment is not
Conclusive and Binding.

FOR EXAMPLE -

If, a Suit is Instituted in England on the basis of a Contract made

in India. The England Court Erroneously Applied England's Law of
Contract instead of Indian Contract Act, 1872, that Judgment is Null
and Void. It is a General Principle that the Rights and Liabilities of the
Parties to a Contract are Governed by the Place and Law where the
Contract is Made and Executed.

SECTION 13 (d) –

IF FOREIGN JUDGMENT OPPOSE TO NATURAL JUSTICE -

It is an Essence of the Judgment of Court that it must be Obtained

after Due Observance of the Judicial Process that means the Court is
Rendering the Judgment must Observed the Minimum Requirements
of Natural Justice i.e. it must be Impartial, without Bias, acting Fairly
and in Good Faith. A Judgment which is against Natural Justice will be
regarded as Null and Void.

SECTION 13 (e) –

IF FOREIGN JUDGMENT OBTAINED BY FRAUD -

If a Foreign Judgment is Obtained by Fraud, it will not Operate as

Res-Judicata. In other words, all Judgments whether Pronounced by a
Foreign Court is Void if Obtained by Fraud.

6
SECTION 13 (f) –

IF FOREIGN JUDGMENT ARE FOUNDED ON A BREACH OF INDIAN

LAW -

Where a Foreign Judgment is Founded on a Breach of any Law

Enacted in India, then that Judgment becomes Null and Void. Every
Case which comes before the Indian Court must be Decided in
accordance with Indian Law.

7
NOTE NO. II SHRI SAI II

EXTRA NOTES

CODE OF CIVIL PROCEDURE, 1908

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Q. Changes brought about by the Amendment Act of the Code of

Civil Procedure, 1908.

A INTRODUCTION –

The Code of Civil Procedure, 1908 has been Amended Several

times so as to meet Suitable the Specific Conditions and
Requirements of Different States in the Country. Till 1976, the Code of
Civil Procedure, 1908 was Amended for more than 30 times.

Recently, it was Amended in 1999, 2002 i.e. the Code of Civil Procedure
(Amended) Act, 1999 and the Code of Civil Procedure (Amended) Act,
2002.

The Main OBJECT of the 1999 and 2002 Amendments are –

i. to ensure Fair and Natural Justice and

ii. to Provide Speedy Remedy by Eliminating Unnecessary Delay in

Disposal of the Cases.

The Following are the CHANGES brought about by the Amended Acts
1999 and 2002 –

1. Summons should be Served to the Defendant within 30 Days from

the Date of Filing of the Suit.

2. Increase in Methods for issuing Summons.

3. The Written Statement should be Filed within 30 Days from the

Date of Service of Summons. The Court may Extend this Period
up to 90 Days.

4. The Penalty for Non-Appearance and Default has been Increased

to Rs. 5000/-.

1
5. If the Decree of Payment of Money is not Executed, the Judgment-
Debtor may be Detained in Civil Prison for a Period not Exceeding
3 Months if the Decree is for Payment of a Sum Exceeding Rs.
5000/-.

6. In case of Attachment of Salary by Execution of a Decree, the

Monthly Salary upto Rs. 1000/- should not be Attached.

7. The Amendments paved the way to New and Efficient Methods for
Settlement of Disputes, like Arbitration, Conciliation and
Mediation, Lok Adalat etc.

8. A New Provision has been Inserted which reads that the

Defendant in a case can get Compensation for the Expenses
incurred, Loss or Injury including Loss of Reputation caused to
him, because of his Wrongful Arrest or Attachment of his
Property.

9. After Two Amendments, if the Value of Subject matter of a Suit is

below Rs. 1000/-, there is no Appeal in such Suit.

10. There is No Second Appeal, if the Subject-matter of the Suit is

for Recovery of Money not Exceeding Rs. 25,000/-.

11. A Party to the Suit shall not be Granted more than 3

Adjournments during the Hearing of the Suit.

12. When a Judgment is not Pronounced at Once, the Court

shall Endeavour to Pronounce the Judgment within 30 days from
the Date of Conclusion of the Hearing. However, in Certain
Exceptional or Under Extraordinary Circumstance, the Court may
Fix a Day Beyond 30 Days but before 60 days from the Date of
Conclusion of the Hearing.

13. The Court may Adjourn the Framing of Issues for a Period
not Exceeding SEVEN DAYS while Examining the witness or
examining the Documents presented before the Court.

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Q. Write a Short Note on – “CAUSE OF ACTION”

A. “CAUSE OF ACTION” –

“Cause of Action” is, a Bundle of “Essential Facts” which is

necessary for the Plaintiff to Prove before he can Succeed in the Suit.
Cause of Action is the Media upon which a Plaintiff prays to the Court to
arrive at a Conclusion in his Favour.

2
The Term “Cause of Action” connotes all Categories of Facts,
which are necessary for the Plaintiff to Prove in to Entitle him to Decree
in the Suit.

“Cause of Action” is “the CAUSE” which leads up to a Suit. It may

be defined as being the Fact/s which give rise to a “Right of
Action(Suit)”.

In its Restricted Sense, “Cause of Action” means, “the Immediate

Occasion for the Claim”. Where the Cause of Action is Fraud, then it
also Effects on the Decree pass by the Court.

“Cause of Action” must be important Ingredient to the Institution

of a Suit and if No “Cause of Action” can be Founded in the Plaint of
the plaintiff then the Plaint shall be Rejected.

Plaint must Disclose “Cause of Action”.

If a “Cause of Action” in Alone, the Court will be able to Proceed to

a Determination of the Dispute.

“Cause of Action” is the Legal Ground upon which the Plaintiff

Maintains the Suit. Where there is no such Ground, the Plaintiff has No
“Cause of Action”.

FOR EXAMPLE –

If a Plaintiff makes a Claim under a Life Insurance Policy of the

Deceased, then he must Prove the Death of the Assured. Only then, he
can Enforce his Claim against the Insurance Company.

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Q. Explain the Law in General as affecting Suit by or against

“Minor” or “a Person of Unsoundmind”.

What is the Procedure in Suits by or against Minor or Lunatics?

What are the Grounds for Removal of Next Friend or a Guardian
for the Suit?

A INTRODUCTION –

The Procedure for Instituting a Suit by or against Minors and

Persons of Unsound mind is given under Order XXXII (32).

The Procedure of Suits against Minor and Persons of Unsound

3
INSTITUTION OF SUIT BY OR AGAINST MINOR –

A MINOR is a Person who is below the Age of 18. If the Minor is

under the Superintendence of the Court of Wards, then his Age of
Majority is 21.

The Claim or Defence on behalf of the Minor is carried on by a

Person called “the Next Friend” or “Guardian ad litem” (When the Minor
is Defendant). The Provisions Apply to Persons Incapable of Defending
their Interest due to Mental Immaturity.

QUALIFICATION AND PROCEDURE OF APPOINTMENT OF

GUARDIAN –

The Following are the PROVISIONS –

1. The Suit is Instituted in the Name of Minor or Lunatic by a Next

Friend. The Next Friend must be a Major and he should not act
against the Interest of the Minor or Lunatic.

2. If the Minor or Lunatic directly files the Suit, it will be Dismissed by

the Court. The Pleader who files such Suit must Pay the Costs of
the Suit.

3. The Next Friend, on Order from the Court, should give Security for
the Payment of all Costs, at any Stage of the Suit.

4. In cases, where the Minor has No Guardian, the Court may Appoint
a Guardian ad litem.

5. The Guardian ad Litem should not have any Adverse Interest in

the Property of the Minor and he should be a Fit Person for being
appointed as a Guardian ad Litem.

6. Any Person appointed as a Guardian by the Court will Continue to

act on behalf of the Minor in all suits, till he is Terminated by
Retirement, Removal or Death.

7. If a Suit instituted by the Next Friend of a Minor is Unreasonable, the

Court may Dismiss the Suit and Order the Next Friend to Pay the
Costs of the Suit.

8. After filing the Case, the Next Friend cannot Retire from the Suit
without Producing Fit Person in his Place and Giving Security for
Costs.

9. On the Retirement, Removal or Death of the Next Friend, further

4
10. A Decree against a Minor cannot be Enforced Directly. It
must be Enforced only Through a Guardian ad litem.

11. Any Decree passed against a Lunatic without appointment

of a Guardian is Illegal and Void ab initio.

12. Notice must be given both to the Guardian and the Minor.
There should not be any Fraud or Collusion between the Plaintiff
and the Guardian.

COMPROMISE DECREE –

The Following Essential Conditions must be Fulfilled for passing

of a Compromise Decree in a Suit –

1. The Next Friend or Guardian ad litem must Apply to the Court for
Permission for entering into the Proposed Compromise on behalf
of the Minor. He must clearly state the Terms of the Proposed
Compromise. Any Compromise made by the Next Friend or
Guardian ad litem is Illegal if no Prior Leave is Obtained from the
Competent Court.

2. The Court should give its Permission only after considering the
Necessity of the Compromise Suit by the Next Friend or Guardian ad
litem.

3. The Compromise Decree must be for the Benefit of the Minor with
Some Advantage.

4. The Next Friend or Guardian ad litem must also give his Consent to
the Proposed Compromise. If the Court thinks that it is not
Beneficial for the Minor, it can Remove the Next Friend or Guardian
ad litem and Substitute another Person in his Place.

5. The Court should Consider that the Compromise relates to the

Subject-matter of the Suit.

6. If the Minor becomes a Major while the Suit is Pending, the

Compromise entered into by the Guardian is not Binding on the
Minor.

REMOVAL OF GUARDIAN/ NEXT FRIEND –

The Court may Order the Removal of the Next Friend on the
Following Grounds –

a. If his Interest is Adverse to that of the Minor or if he is Collusive

with the Defendant.

5
b. If he Fails to do his Duties.

c. If he Leaves India while the Suit is Pending in the Court.

d. On any other Sufficient Cause.

e. On the Application for Appointing a New Guardian by the Old Next

Friend or Guardian ad litem.

----------------------------------------------------------------------------------------------------

Q. Write a Short Note on – “Affidavit”.

A. INTRODUCTION –

Affidavit means an Instrument in Writing, containing Declaration

as to Facts signed by the Person making it and Sworn before a Person
having Authority to Administer an Oath.

In other words, “An Affidavit is a Written Statement of the

Deponent on Oath duly Affirmed before any Court or Magistrate or
Commissioner appointed by the Court”.

IMPORTANT POINTS REGARDING “AFFIDAVIT” –

1. The Court has got Power to Order that any particular Fact or Facts
may be Proved by Affidavit.

2. Similarly, it may Order that the Affidavit of any Witness may be read
at the Hearing on such Conditions as the Court thinks reasonable.

3. The Affidavit must Conform to such Facts as the Deponent is able

to Prove and is within his Own Knowledge.

4. When the Declarant in any Affidavit speaks to any Fact within his
knowledge, he must do so Directly or Positively, using the Words,
“I make Oath and Say……………”.

5. Upon any Application, Evidence may be given by Affidavits but the

Court may Order the Attendance of the Deponent for Cross
Examination. The Deponent must Attend the Court, unless he is
Exempted from Personal Appearance.

6. The Parties to given an Evidence by Affidavit upon any Application.

The Court cannot Direct that a Party may proved, the Whole of his
Case by Production of Affidavit. It is a Procedural Part.

7. An Affidavit can always be used as Evidence in the Suit, if the Court

6
Affidavit shall be continue to such Facts as the Deponent is having
of his Own Knowledge to Prove, on which Statement of his Belief may
be Admitted. Affidavit shall be divided into Paragraphs and every
Paragraph shall be Numbered Consecutively.

The Person before whom an Affidavit is made, shall Certify at the

Foot of the Affidavit. The fact of making of Affidavit before him and time
and Place when and where it was made and shall for the purpose of
Identification made.

----------------------------------------------------------------------------------------------------

Q. Explain the Form and Contents of “Judgment” and “Decree”.

How is Judgment Pronounced?

A. Order 20, Rule 1 to 20 deals with the Provisions of “JUDGMENT

AND DECREE”.

JUDGMENT WHEN PRONOUNCED (Order 20, Rule 1)-

After Hearing the Case, the Court Pronounces the Judgment in

Open Court at once or on some future day. When the Judgment is to be
pronounced on a future day, then the Court fixes the Day with Notice to
both the Parties/ Pleaders.

In case the Court is unable to Pronounce Judgment at once, then it

must take efforts to pronounce the Judgment within Thirty Days from
the Date of Conclusion of Hearing of the Case. It shall not ordinarily
extend beyond Sixty Days of Conclusion of Hearing.

In case it extends beyond Sixty Days, then the Court must record
Reasons for the Delay and must also give due Notice to the Parties/
Pleaders.

When a Written Judgment is to be pronounces, then it is sufficient

if the Court reads the Findings on each Issue and the Final Order and it
need not read out the Whole Judgment. However, a Copy of the Whole
Judgment must be made available immediately for perusal of the Parties/
Pleaders.

The Judgment may be pronounced by Dictation in Open Court to a

Short hand writer, if the Judge is so empowered by the High Court.

The Transcript of such Judgment is Signed by the Judge with

Date and its forms Part of the Court Record.

As Per Order 20, Rule 3, when once the Judgment is Signed, then it
cannot be Altered or Added except to Correct the Clerical or

7
Arithmetical Mistake arising out of Accidental Slip or Omission. The
Judgment can be Altered or Added by Review also.

COURT TO STATE ITS DECISION ON EACH ISSUE (ORDER 20, RULE

5) –

In Suits, where Issues have been Framed, then the Court must
state its Finding with Reasons for each Separate Issue.

However, if the Finding on one or more Issue is Sufficient for the

Decision, then it need not state its finding on each Separate Issue.

DECREE

CONTENTS OF DECREE (ORDER 20, RULE 6) –

The Decree must agree with the Judgment. It must Contain the
Number of the Suit, Names and Description of the Parties, their
Registered Addresses and the Particulars of the Claim. It must Specify
clearly the Relief Granted in the Suit.

Further, it must also state the Costs Amount and by whom or from
what Property and in What Proportion, such Costs shall be Paid. The
Court may also direct Set-off in the Costs which are Admitted or Due from
the other Party.

The Decree must be Drawn up Immediately, in any case, within 15

Days after the Judgment is pronounced.

Appeal may be preferred against the Decree without the Filing the
Copy of Decree. The Copies of the Judgment must be available to the
Parties immediately after the Pronouncement of the Judgment for
preferring an Appeal (RULE 6-B).

DATE OF DECREE (ORDER 20, RULE 7) –

The Decree must be bear the Date, the Day on which the Judgment
was pronounced. If the Judge is satisfied that the Decree has been made
as per the Judgment, then he must Sign the Decree.

CLASSES OF DECREES –

The CPC recognized the following Classes of Decrees –

1. PRILIMINARY DECREE –

Where on an Adjudication, the Court decides the Rights of the

Parties with regards to all or any of them in Controversy in a Suit but
does not Completely dispose of the Suit, is called, “PRELIMINARY
DECREE” – a Decree before Final Decree is passed.
SAI LAW ACADEMY CODE OF CIVIL PROCEDURE, 1908 © ALL RIGHTS RESERVED

8
The CPC, provides for the passing of Preliminary Decree in the
Following Cases –

i. Suits for Possession and for Rent or Mesne Profit.

ii. Suits for Pre-emption.

iii. Suits for Dissolution of Partnership.

iv. Suits for Accounts between Principal and Agent.

v. Suits for Injunction and Declaration.

In the above Suits before Final Decree is passed, Preliminary

Decree passed in order to ensure what is to be done finally is done by
Preliminary Decree. In the absence of any Objection to the Preliminary
Decree or after Lapse of Time for Appeal, this Preliminary Decree takes
the Shape of Final Decree.

2. FINAL DECREE –

A Decree may become Final in Two Ways –

i. When the time for Appeal has Expire without Appeal being
filed or the matter has been decided by a Decree of the
Highest Court.

ii. When the Decree, so far regards the Court passing it,
completely Dispose of the Suit.

DECREE PARTLY PRELIMINARY AND PARTLY FINAL –

Decree partly Preliminary and partly Final, is in a Suit of

Declaration and Injunction Suit, where the Court passed the Order not
to disturb the Possession of the Party and not to Alienate the Property
to the third party till the Final Decision of the Suit.

----------------------------------------------------------------------------------------------------

Q. Write a Note on – “Appeals”.

A. INTRODUCTION –

Section 96-99A and Order 41, Rule 1 to 37 are mentioned the

Provisions of “APPEAL”.

After the Passing of the Decree, a Successful Party proceeds with

the Execution of the Decree. The Unsuccessful Party i.e. Aggrieved
Party goes in Appeal to the Higher Court, to set aside the Decree of
the Lower Court.

9
Generally, only the Party against whom the Decree is passed can
go for Appeal.

The term “Appeal” has not been defined in CPC. Whoever files an
Appeal is called, “Appellant”. If the Defendant files an Appeal, he is
known as, “Appellant/ Defendant”. If the Plaintiff files an Appeal before
the Higher Court, he is known as, “Appellant/ Plaintiff”. The Opposite
Party who has to answer the Appeal is called as, “Respondent” i.e.
“Respondent/ Plaintiff” or “Respondent/ Defendant”.

The Party, who is aggrieved by a Decree, Appeals to the Appellate

Court by presenting a Memorandum of Appeal which sets forth the
Grounds of Objection to the Decree appealed against. The Grounds are
set forth without any Argument and are numbered consecutively.
Every ground of Objection is set forth in the Memorandum because if any
ground is Omitted, the Appellant cannot argued on that Point/ Ground
except by Leave of the Court and the Decision of the Appellant Court rest
on the Grounds set forth in the Memorandum of Appeal.

But in the following cases, Persons other than the Party also can go
for Appeal –

1. If the Party is Dead, his Legal Representative can go for Appeal.

2. Any Transferee of the Interest of such Party and who is bound by

the Decree can go for Appeal.

3. Any Auction Purchaser may Appeal from an Order in Execution for

Setting aside the Sale on the ground of Fraud.

APPEAL OR RIGHT OF APPEAL (SECTION 96) –

1. Section 96 of Civil Procedure Code, in Express terms, Recognises

the Right of Appeal from every Decree passed by any Court under
its Jurisdiction. The Higher Court must have Statutory Authority
to hear the Appeal from the Decisions of Lower Courts.

2. The Right of Appeal is a Substantive Right and not merely a

Matter of Procedure.

3. An Appeal may lie from an Original Decree passed Ex-parte.

4. An Appeal does not lie, except on a Question of Law, from a

Decree by Court, when the Amount or Value of the Subject-Matter
of the Original Suit does not Exceed Rs. 10,000/-.

10
NO RIGHT OF APPEAL IN THE FOLLOWING CASES (NON
APPEALABLE CASES) –

1. If the Parties have entered into an Agreement as not to Appeal

from a Decree or Order and if the Agreement has a Lawful
Consideration, there can be No Appeal from such Decree or Order.

2. If a Party does not go in Appeal from a Preliminary Decree, he is

Prevented from Challenging it from Final Decree also (Section 97).

3. If an Appeal is Prohibited for any Suit either by this Code or by any

other Law, then there can be No Appeal for Suits covered under
this Code or any other Law.

MEMORANDOM OF APPEAL –

Order 41 provides that every Appeal shall be preferred in the form

of Memorandum (i.e. Memorandum of Appeal), signed by the Appellant
or/& his Pleader and Presented in the Court. Appeal should be
accompanied by a Certified Copy of Judgment and Decree.

The Memorandum of Appeal consists of the following Particulars -

i. Name of the Appellant Court.

ii. Appeal in Suit Number from.

iii. Appeal Number.

iv. Name and Description of the Parties.

v. Date of Decree.

vi. Grounds of Objection.

vii. Prayer i.e. Relief.

viii. Date and Place of Appeal.

ix. Signature of Appellant and his Advocate.

KINDS OF APPEALS –

Appeals may be Classified as under –

1. Appeal from Original Decree as per Section 96 to 99 & Order 41.

2. Appeals from Appellate Decree or Second Appeal (Section 100

to 103 & Order 42).

3. Appeals from Orders (Section 104 to 106 & Order 43).

11
4. Appeals to the Supreme Court (Section 19\09 to 112 & Order 45).

----------------------------------------------------------------------------------------------------

Q. Write a Short Note on – “Review”.

A. INTRODUCTION –

As per Section 114 and Order 47 of CPC lay down provisions

relating to “REVIEW”. The word “Review” means “Reconsideration of a
Decision given by the Same Court”. It is a Judicial Re-Examination of
the Decision given by the Same Court under Special Circumstances.

In simple words, “Review” means “Re-hearing of a Case by the

Same Judge/ Court”.

TO WHOM APPLICATION OF REVIEW FILES –

1. Review Application is to be files to the Court, which passed the

Decree or Order in question.

2. In case of the Order passed by the High Court Judge, the

Reviewing Application is to be made to the Judge.

Review can be made by the Court, which decide the case, passed
the Order against an Application filed by the Parties. The Court cannot
Review its decision Suo motu.

APPLICATION FOR REVIEW OF JUDGMENT –

As per Section 114 and Order 47, Rule 1 of CPC –

Any Person considering himself aggrieved –

1. by a Decree or Order from which an Appeal is allowed by this

Code, but from which no Appeal has been Preferred.

2. by a Decree or Order from which No Appeal is allowed by the

Code.

& who, from the Discovery of New & Important Matter or

Evidence which was not within his knowledge or could not be produce
by him at the time when the Decree was Passed or Order made or on
account of some Mistake or Error Apparent on the face of the Record or
for any other Sufficient Reason, desire to obtain a Review of the
Decree, passed or order made against him, MAY APPLY for a Review of
Judgment to the Court which passed the Decree or made the Order.

LIMITATION PERIOD FOR REVIEW –

12
An Application for Review is to be made within 30 Days from the
Date of the Order. But when the Summons or Notice was not duly
served then from the Date of Knowledge of the Decree.

----------------------------------------------------------------------------------------------------

Q. Write a Short Note on – “Revision”

A. INTRODUCTION –

Section 115 of CPC lays down the provisions relating to “Revisional

Jurisdiction of the Court”.

According to Dictionary Meaning, the term “to Revise” means “to

look again or repeatedly at” or “to go through Carefully and Correct
where necessary”.

The word “REVISION” means “the act/ action of Revising,

especially Careful Examination or Perusal with a view to Correcting or
Improving”.

As per Section 115 –

The High court may Call for the Record of any Case which has
been decided by any Court Subordinate to the High Court and in which
No Appeal lies thereto and if such Subordinate Court appears –

a. to have exercised a Jurisdiction, not vested in it by Law i.e.

illegal Jurisdiction or

b. to have failed to exercise Legal Jurisdiction so vested or

c. has acted illegally or with Material irregularity,

the High court and the District Court have the Power of making
Revision and as the case may be, may Make such Order in the Cases as
it think fit.

CONDITIONS FOR REVISION –

1. The Case must have been decided by the Subordinate Court.

2. Such Court must be Subordinate to the High Court.

3. There can be No Appeal on such Decisions.

4. The Subordinate Court –

a. must have exercised Wrongful Jurisdiction.

b. must have failed to exercise Right Jurisdiction.

13
c. must have acted illegally or with Material irregularity.

5. There can be No Revision on a Question of Fact.

----------------------------------------------------------------------------------------------------

14
INDIAN LIMITATION ACT, 1963

EXTRA NOTES

Q. Explain the Objects and Scope of the Indian Limitation Act, 1963.

A INTRODUCTION –

The Principle on which the Limitation Act is based is that the

Remedies sought by the Affected Parties should not be Granted
without Certain Time Limits.

“Delay Defeats Justice”. Long Delay disturbs the Evidences and

may Misleads Justice. Controversies are Restricted to Fixed Period of
Time. Otherwise they becomes Immortal, while men are Mortal.

There should not be Unlimited or Permanent Litigations. It will

affect the Peace of the Society and lead to Disorder and Confusion.
There will be Constant Judicial Proceedings and a feeling of Insecurity
that the litigation may Start at any time.

The Law of Limitation prescribes the Time Limit for filing any Suit
before a Court of Law. This is based on the Latin Maxim – “interest
republic aet sit finis litium” i. means “the interest of State requires
that a Period should be put to end Litigation”.

It is again based on another Latin Maxim – “vigilantibus non

dormentibus san sub venient” i.means “the Laws assist the Vigilant
and Active Persons and not the Sleepy or Dormant Persons”.

After a Certain Period of Time, the Law of Limitation Extinguishes

the Rights. The Limitation Period enables persons to Secure their Money
against the Securities within the Fixed Time Limit.

The Death of the Parties, the Death of Witnesses, the

Destruction of Documents make the Limitation Period run Speedily for
putting a limit to litigations.

The Main Basis of the Limitation Act is that the properties must
always put in free circulation which is not possible as long as there
are disputes over them. Thus, the Limitation Act is based on Public
Policy. It Aims to Supress Fraud and Perjury and to Quicken Legal
Action.

15
THE LIMITATION ACT -

The Limitation Act, 1963 lays down Definite Rules of Law for the
Welfare of the Public. The Main Principle of the Limitation Act is that after
a Lapse of Certain Period, the title or rights remain with those
persons who are in possession of it.

The Criticism that the Law of Limitation is Arbitrary and not

based on Justice, is Incorrect. It has many Advantages but only a Few
Disadvantages.

Though it discharges people from obligations, it is at the expense

of the Dormant Nature of the persons who fail to exercise their Legal
Rights and also fail to seek Legal Remedies within the Fixed Period.

PRINCIPLES AND OBJECTS OF LAW OF LIMITATION –

1. The Law of Limitation prescribes a Time Limit after which Suits or

other Proceedings cannot be Maintained in a Court of Law.

2. Limitation is an Adjective Law and it is Negative in Operation. It

deprives a person from exercising his Rights.

3. The Limitation act merely prescribes a Period for the Institution of

the Suit but does not itself create an Obligation to Sue in a Court
of Law.

4. The Intention behind the Law of Limitation is not to give Right but
to Bar a Suit after a Certain Period. Limitation is perfectly a Joint
Defence and it is not at all Arbitrary.

5. Law of Limitation cannot be Evaded by Private Agreements. Any

Agreement entered to shorten the Limitation Period, is Void.

6. The Plea of Limitation can be raised only against the Plaintiff and
not against the Defendant.

7. Limitation applies only to the Institution of Proceeding, but not to

their Continuance in a Court of Law.

APPLICATION OF THE LIMITATION ACT. 1963 –

1. The Act is applicable to the Whole of India.

2. The Operation of the Limitation Act may be Modified in the Official

Gazette by the Central Government. Thus, its application may be
Altered by the Central Government.

3. The Limitation Act is Applies to all Suits instituted in a Civil Court.

16
4. The Limitation Act is applicable to all Plaints submitted before the
Quasi Judicial Authorities.

5. The Act is applicable to all Applications made by a Pauper for

leave to sue as Pauper.

6. The Limitation Act applies in all cases of Plaints to be made against

a Company which is in the Process of Winding up.

7. The Limitation Act also applies to all Set off or Counter Claims
made by the Defendant.

8. The Act is also applicable to all Applications by Notice of Motion

to be made in the High Court.

9. A Party cannot Waive the Limitation Period to a known Party to get

his Redress or Remedy by a Suit in a Court.

10. The Limitation Act does not Apply, if on the Date of Filing the
Suit, the Court is Closed and if on that day, the Limitation Period
had Expired.

11. Sometimes (i.e in Appeal or Application), the Limitation Act

applies in Extending the Period of Limitation on Sufficient Cause
shown by the Parties.

12. The Limitation Act does not apply to Disabled Person but as
soon as the Disability has Ceased, the Limitation Period Begins to
Run.

13. The Provisions of Limitation Act would not apply to Minors

including the Child in the Womb. The Limitation Act recognises
only Legal Disability and not other Disabilities.

14. If One of the Several Persons is under Disability, then the

Provisions of Limitation Act do not apply to all of them.

15. The Limitation Act does not apply to Trust Property created
for Specific Purpose.

----------------------------------------------------------------------------------------------------

Q. Write a Short Note on – “Acquisition of Easement by

Prescription”

A. “ACQUISITION OF EASEMENT BY PRESCRIPTION –

The Object of this Section is to provide a Convenient Mode of

Acquiring Easement which is Independent.

17
If the Access and Use of Light of Air to and for any Building have
been Peacefully enjoyed with an Easement and as of Right, without
Interruption for Twenty (20) Years, then the Right to such Access and
Use of Light or Air shall be Absolute and Indefeasible.

Similarly, if any Way or Watercourse or the Use of any Water or

any other Easement (Whether Affirmative or Negative) has been
Peaceably and Openly enjoyed by any Person Claiming Title thereto as
an Easement and as of Right without Interruption for Twenty Years,
then the Right to Access and Use of Way, Watercourse, Use of Water or
other Easement shall be Absolute and Indefeasible (As per Section
25(1)).

If the Property over which a Right is claimed as of above belongs to

the Government, then there should be Continuous Enjoyment as stated
above for Thirty (30) Years instead of Twenty Years.

EXPLANATION –

The term “Interruption” under Section 25(1) means “Actual

Discontinuance of the Possession or Enjoyment by reason of an
Obstruction by the act of some Person other than the Claimant”.

If such Obstruction is Submitted to or Acquiesced in for One Year

after the Claimant has Notice thereof, then it is deemed to be a Valid
Obstruction affecting the Acquisition of Easementary Right by
Prescription.

ESSENTIALS FOR ACQUISITION OF EASMENT BY PRESCRIPTION –

1. Light or Air or Use of Water must be Enjoyed Peacefully to any

Building as an Easement Rightfully.

2. It must be without Interruption for Twenty (20) Years.

3. The Right to such Access and Use of light, Air Way, Water Course,
Use of Water shall be Absolute and Indefeasible.

4. The Period of Twenty Years shall be taken to be a Period ending

within Two Years Next before the Institution of the Suit.

5. If the Property over which the Right of Easement is Claimed

belongs to the Government, then the Period of Enjoyment must be
Thirty (30) Years and not Twenty Years.

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