CODE OF CIVIL

PROCEDURE
C.P.C.

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 YOUTUBE CHANNEL : DesiLLB

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 TABLE OF CONTENTS

 DECREE
 ORDER
 JUDGMENT
 SUIT OF CIVIL NATURE
 RES SUB JUDICE
 RES JUDICATA
 PLACE OF SUING
 SUMMONS
 EXECUTION OF DECREE
 SPECIAL SUITS
o Government
o Minor, unsound mind
o Indigent person
 JOINDER
o Mis-Joinder
o Non-Joinder
 CAUSE OF ACTION
 PLEADING
 PLAINT
 WRITTEN STATEMENT
 SET-OFF
 COUNTER CLAIM
 EX PARTE DECREE
 TEMPORARY INJUNCTION
 APPEAL
 REFERENCE, REVIEW, REVISION
 RESTITUTION, CAVEAT
 INHERENT POWERS

LIMITATION ACT

 SALIENT FEATURES
 LIMITATION BARS REMEDY NOT THE RIGHTS
 EFFECT OF FRAUD, MISTAKE
 ACKNOWLEDGES LIABILITY
 SUFFICIENT CAUSE
 LEGAL DISABILITY

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  SUMMARY OF ALL CHAPTERS

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 DECREE
DEFINITION

S. 2(2)

o Formal expression of
o Adjudication which
 So far as regards the court expressing it
o Conclusively determines
o The rights of the parties
 With regard to all or any of the matters in controversy
o In the suit
 And may either be preliminary or final

ESSENTIALS OF DECREE

 FORMAL EXPRESSION
o All the formal requirements must be complied with as given in the Code
 ADJUDICATION
o Adjudication means judicial determination of the matter in dispute
o For a decision of a court to be a decree
 There must be an adjudication
o Decision on the matter of administrative nature cannot be termed as decree
 As it does not judicially deal with matter in dispute
 CONCLUSIVE determination
o Conclusive means final
o Such determination must be of conclusive nature
 That means final as regard the court which passes it
o Therefore, an interlocutory order which does not decide the rights finally is not a decree
 Determination of RIGHTS of parties in controversy
o Rights means substantive rights of the parties
 Not merely procedural rights
o Adjudication must determine the rights with regard to all or any of the matters in
controversy
 Adjudication must be done is a SUIT
o Suit means a civil proceeding
 Instituted by presentation of a plaint
o It is necessary for the decree that adjudication must be in a suit

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 PRELIMINARY AND FINAL DECREE

PRELIMINARY DECREE

o When rights of the parties are decided

o But it does not completely dispose of the suit
o Leaving the actual result to be worked out in further proceedings
 Example
o In case of partition
o First step is to determine the shares of coparceners
o Determination of shares amounts to preliminary decree
o The suit is not completely disposed of
o The court will proceed further to determine division and distribution of the property

FINAL DECREE

o Decree which completely disposes of the suit

o And finally settle all questions
 In the controversy between parties
 Final decree is dependent on preliminary decree
o If preliminary decree is set aside
o Then the final decree cannot survive

DIFFERENCE BETWEEN PRELIMINARY & FINAL DECREE

PRELIMINARY DECREE FINAL DECREE

It does not completely dispose of the suit It completely disposes of the suit and
Nothing is left to be decided after it
It is not dependent on final decree It is dependent on preliminary decree
If preliminary decree is set aside then the final
decree cannot survive

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DECREE HOLDER

S. 2(3)

o A person in whose favour a decree has been passed

 Or an order capable of execution has been made

JUDGMENT DEBTOR

S. 2(10)

o A person against whom a decree has been passed

 Or an order capable of execution has been made

SUMMARY FOR REVISION

 DECREE
o Suit-parties-conclusive-decision-formal expression
 PRELIMINARY DECREE
o Rights not completely dispose
 FINAL DECREE
o Rights completely dispose
o Dependent
 DECREE HOLDER
o Favour
 JUDGMENT DEBTOR
o Against

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 ORDER
S. 2(14)

o Formal expression
o Of any decision of a civil court
o Which is NOT a decree

Common elements in order and decree-

o Both are formal expression

o Both are decisions of civil court
o Both relate to matters in controversy

DIFFERENCE BETWEEN DECREE AND ORDER

DECREE ORDER
Finally determine rights of parties May or may not finally determine such rights
May be preliminary or final No such classification
Can only be passed in suit Can be passed in suit
Which commenced by a presentation of a plaint Commenced by a petition of an application
Except in certain suits More than one order can be passed in a suit
There can be only one decree
Every decree is appealable Every order in not appealable
Unless otherwise expressly provided Unless shown as appealable
Second appeal lie to the High Court on certain No second appeal lie in case of appealable orders
grounds
From the decree passed in first appeal

SUMMARY FOR REVISION

ORDER

 Decision- formal expression- not decree

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 JUDGMENT
S. 2(9)

o Statement given by the judge

o On the grounds of decree or order
 In simple words-
o Judgment is declaration of intention of the judge
o As to the final result of the suit
 Such final result may either be in the form of order or decree

Judgment contains:

o Facts of the case

o Application of law to the facts
o Decision, with reasons for it

Order 20 Rule 1

o Court after the case has been heard

 Shall pronounce the judgment
o Court may pronounce the judgment at once or may fix a future date for pronouncing

FOREIGN COURT

S. 2(5)

o A court situated outside India

o And not established or continued by the authority of the Central Government

FOREIGN JUDGMENT

S. 2(6)

 A judgment of the foreign court

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LEGAL REPRESENTATIVE

S. 2(11)

o Person who in law

o Represents the estate of the deceased person
 And includes any person who intermeddles with the estate of the
deceased
 In simple words-
o A person who legally represents another
o A person who acts in the place of another
 And represents their interests
o A person who is in charge of another’s legal affairs
 Example-
o Administrators
o Executors
o Residuary legatees

MESNE PROFIT

S. 2(12)

o Profit
o Which the person in wrongful possession of the property
o Actually received or might have received
 With ordinary diligence
 Or have received together with interest on such profits
 In simple words-
o Profits received by person in wrong possession
 That person is liable to pay mesne profit
 Example-
o A is in wrongful possession of B’s property
o By being in such possession, he receives profits
o Such profits are called mesne profits
 Object-
o To compensate the person
 Who has been kept out of possession
 And deprived of enjoyment of his property

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 SUMMARY FOR REVISION
 JUDGMENT
o Decree grounds –statement
o Intention-on result
 FOREIGN COURT
o Outside India-not by Central Govt.
 FOREIGN JUDGMENT
o Judgment of Foreign Court
 LEGAL REPRESENTATIVE
o Represent-deceased’s estate
 MESNE PROFIT
o Wrongful possession

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 SUIT OF CIVIL NATURE
Term ‘civil’ is not defined in the Code

MEANINIG

o I pertains to private rights and remedies of a citizen

o As distinguished from criminal, political, religious rights
 These are suits between the subject dealing with civil rights
 It is not the status of parties to the suit
o But the subject matter of the suit
o Which determines whether or not the suit is one of civil nature

S. 9

 Civil court shall have jurisdiction to try all suits of civil nature
o Unless the jurisdiction has been expressly or impliedly taken away

Bar to jurisdiction :

o Express bar
 When it is barred by any enactment
 Like Industrial matters are tried by Industrial Tribunal, not civil court
 Income Tax matters are tried by Income Tax Tribunal, not civil court
o Implied bar
 When it is barred because a specific remedy is given in a statute
 It deprives the person from instituting a civil suit

SUMMARY FOR REVISION

SUIT OF CIVIL NATURE

 Pvt. rights and remedies

 Bars- Express (by act), Implied (specific remedy)

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 RES SUB JUDICE & RES JUDICATA

RES SUB JUDICE

MEANING

o Res means dispute or subject matter

o Sub judice means pending before the court
o So res sub judice means a dispute which is pending before the court
 S. 10
o No court shall proceed with the trial of any suit
o In which the matter in issue
o Is also directly and substantially in issue
o In a previously instituted suit
o Between the same parties
o And that the court in which the previous suit is pending
 Is competent to grant the relief claimed

CONDITIONS

Following conditions must be fulfilled for the application of res sub judice:

 There must be TWO SUITS

o One previously instituted
o And the other subsequently instituted
 MATTER in issue in both suits must be SAME
o Directly and substantially
 SAME PARTIES in both the suits
o Or their representatives
o Litigating under the SAME TITLE in both the suits
 Court in which previous suit is pending is COMPETENT
o To grant relief claimed
 The previously instituted suit must be pending in any of the following Courts-
o In the same court in which the subsequent suit is brought
o Any other court in India
o Any court beyond the limits of India, but established by Central Govt.
o Before the Supreme Court of India

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  As soon as the essential conditions are fulfilled
o The court cannot proceed with the suit

OBJECT

o To protect a person from multiplicity of proceedings

o To avoid a conflict of decisions by the court of concurrent jurisdiction
o To avert the inconvenience to the parties
 And give effect to the rule of res judicata

SUMMARY FOR REVISION

RES SUB JUDICE

 Dispute Pending
 Same parties- same matter- suit- competent court- pending

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 RES JUDICATA
MEANING

o Res means dispute or subject matter

o Judicata means decided
o So res judicata means the dispute which has already been decided
o It means that once the matter is finally decided by the court
 No one can reopen it in a subsequent litigation

 S. 11
o No court shall try a suit or issue
o In which the matter in issue has been in issue in a former suit
 Directly and substantially
o Between the same parties
 Or between parties under whom they
 Or any of them claim litigating under the same title
o In a court competent to try such suit
o And has heard and finally decided by such court

 Example-
o A sues B for possession of certain properties
 On the basis of a sale deed in his favour
o B impugns the deed as fictitious
o The plea is upheld and the suit is dismissed
o A institute a subsequent suit for some other properties
 On the basis of the Same sale deed
o This subsequent suit is barred
o As the issue about the fictitious nature of the sale deed
 Was actually in issue in the former suit directly and substantially
 That is, the fictitious nature was already decided in the previous suit

CONDITIONS

Following conditions must be fulfilled for the application of res judicata:

 The matter in the subsequent suit must be the same, which was in the former suit
o Directly and substantially

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  Same parties in former and subsequent suits
o Or their representatives
o Parties must have been litigating under the same title in the former suit
 Court which decided the former suit must be competent to try the subsequent suit
 Matter in issue has been heard and finally decided in the former suit

OBJECTS

o It is in the larger interest that all litigation must, sooner than later, come to an end
o It is in the interest of State that litigation should not be protracted but finished
o No man ought to be vexed twice for one and the same cause
o A judicial decision must be accepted as correct

ESTOPPEL

 Estoppel is that rule which prohibits a person

o From contradicting an earlier statement made by him
 It prohibits a person from rebutting
o What has been once said by him
 It bars multiplicity of statements
 It is the rule of evidence and shuts the mouth of the parties
 It arises from the words or the action or conduct of the party
 It may be implied through the actions or the conduct of the parties
 It binds only the party who has made the statement
o Not the other party

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 SUMMARY FOR REVISION
 RES JUDICATA
o Dispute decided
o Same parties- same matter- suit- competent court- finally decided
o Object- no double trouble- case end finish- accept decision
 ESTOPPEL
o Prohibit – contradict- earlier statement

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 PLACE OF SUING
DETERMINATION OF FORUM FOR FILING A SUIT

PECUNIARY JURISDICTION

 S. 6
o Court will have jurisdiction only over those suits
o The amount or value of the subject matter of which
o Does not exceed pecuniary limits of its jurisdiction
 S. 15
o Every suit shall be instituted in the court of lowest grade
o Competent to try it
o The object is to prevent over burdening of higher courts
o And afford convenience to the parties and witnesses

 It is the plaintiff’s valuation in his plaint that determines the jurisdiction of the court
o Not on the basis of allegations made by the defendant in his written statement
o However, plaintiff cannot set an arbitrary value to the suit to choose his forum
 In Tara Devi Vs. Thakur Radha Krishna
o Supreme Court held that
o If the plaintiff has arbitrarily valued his plaint
 Then the court can examine the correctness of the valuation
 If the court finds the plaint to be undervalued
 And after being given time plaintiff fails to correct the valuation
 Then the plaint will be liable to be rejected

TERRITORIAL JURISDICTION

MEANING

o It refers to the local limits of the court

o Within which the court can exercise the jurisdiction
o To decide a dispute before it
 These limits are fixed by statute

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  For the purpose of territorial jurisdiction of court, suits may be divided into following classes:
o Suits in respect of immovable property
o Suits in respect of compensation for wrong to
 Person or movable property
o Other suits

SUITS IN RESPECT OF IMMOVABLE PROPERTY

S. 16-18

S. 16

FOLLOWING TYPES OF SUITS MUST BE FILED WHERE ‘PROPERTY IS SITUATED’:

 Suits for recovery of immovable property with or without rent or profits

 Suits for partition of immovable property
 Suits for foreclosure, sale or redemption in case of mortgage of a charge upon immovable
property
 Suits for determination of any other right or interest in immovable property
 Suits for compensation for wrong to immovable property
 Suits for recovery of movable property under distraint or attachment

PROPERTY SITUATED AT MORE THAN ONE PLACE

S. 17

 If immovable property is situated within jurisdiction of different courts

o Then suit may be instituted in any court within whose jurisdiction
o Any portion of property is situated
 Example-
o A claims for the sale of B’s two mortgaged houses
o Situated at Lucknow and Mumbai
o The suit may be filed where is property is situated
o That is, either at Lucknow or at Mumbai

IT IS UNCERTAIN WITHIN WHOSE JURISDICTION THE PROPERTY IS SITUTATED

S. 18

 Where it is uncertain as to within the local limits of whose jurisdiction

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 o Any immovable property is situated
o Then any one of the courts may
o If satisfied of such alleged uncertainty
o Record the statement to that effect
o And proceed to try and dispose of such suit

SUITS FOR COMPENSATION FOR WRONG TO PERSON OR MOVABLE PROPERTY

S. 19

 Such suits may be brought at the option of the plaintiff either at place where:
o Wrong is committed, or
o Where the defendant resides, carries on business or personally works for gain
 Example-
o A, residing in Delhi
o Beats B in Mumbai
o Then B may sue A
o Either in Delhi or in Mumbai

OTHER SUITS

S. 20

 All the cases not covered by S. 16 to 19

 All such suits may be filed at the option of plaintiff in any of the following courts:
o Where the cause of action, wholly or partially arises, or
o Where the defendant resides or carries on business or personally works for gain, or
o Where there are two or more defendants
 Any of them resides or carries on business or works for gain
 Provided that in such a case
 Either leave of court is obtained or
 The defendant who is not at that place acquiesce in such institution of suit
 Example-
o A resides at Delhi, B at Mumbai and C at Lucknow
o A, B and C being together at Mumbai, sign a contract with D for a project in Mumbai
o Suit for breach of contract may be filed by D
o Either at Mumbai where cause of action arose and B resides
o Or at Delhi or Jaipur where defendants A and C reside
o If suit is filed in Mumbai, which is objected by A and C

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 o Then in such a case, leave of the court shall be obtained to sue in Mumbai

SUMMARY FOR REVISION

 PLACE OF SUING
 PECUNIARY JURISDICTION
o Value of subject matter- not exceed limit- lowest grade
o Plaintiff value- not arbitrary
 TERRITORIAL JURISDICTION
o IMMOVABLE
 Place property is situated
 Partition, recovery, mortgage, other right, wrong, movable attach
 More than one place
 Any court- Any portion situated
 Uncertain
 Any court- satisfy
o COMPENSATION
 Place of wrong- defendant reside
o OTHER
 Cause of action- defendant resides- any one reside(leave)

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 SUMMONS
MEANING

o A document
o Issued from the office of court of justice
o Calling upon a person to whom it is directed
o To attend before a judge or officer of the court
o For a certain purpose

OBJECT

o To provide to the defendant the opportunity

 As to what he has to say against the prayer made by the plaintiff
o This is in consonance with principle of natural justice
 As no one can be condemned unheard
 Audi alteram partem

ESSENTIALS OF SUMMONS:

 Contents of summons:
o In writing
o Signed by the presiding officer of the court
o Bear the seal of the court
o Full name and description of the person summoned
o Time, place and date
 It must be accompanied by a plaint
 It shall contain a direction
o Whether the date fixed is for settlement of issues
o Or for final disposal of the suit

MODES OF SERVICE OF SUMMONS

 DELIVERY BY COURT
o If the defendant is residing within the court’s jurisdiction
 Summon shall be served through court officer or approved courier service
 Or by registered post, email service etc.
 Or by any other permissible means of communication
o If the defendant resides outside the court’s jurisdiction

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  It shall be served through a court officer
 Within whose jurisdiction the defendant resides
o The court shall treat refusal of acceptance as a valid service
 SERVED BY PLAINTIFF
o Court may permit service of summons by the plaintiff
o It is also called dasti summons
 PERSONAL OR DIRECT SERVICE
o This is an ordinary mode of service of summons
o Here, following principles must be remembered:
 Summons must be served to the defendant in person or his authorized agent
 Where the defendant is absent from his residence
 And there is no likelihood of him being found within reasonable time
 And he has no authorized agent
 Then summons may be served on any adult male or female family
member
 In suits relating to business or work
 Against a person not residing within court’s jurisdiction
 It may be served to the manager or agent of
 In suits of immovable property
 If service is not made to the defendant or his agent
 Then it may be served on agent of defendant who is in charge of
property
 Where there are two or more defendants
 Service shall be made on each of them
 SUBSTITUTED SERVICE
o It means service of summons by a mode which is substituted for the ordinary mode of
service
o There are two modes of substituted service of summons:
 Service without the order of court
 Where the defendant refuses to accept service
 Or cannot be found after due and reasonable diligence
 Then in such a case,
 The serving officer must affix a copy of summons
 On the outer door or some other conspicuous part of the house
 Service with the order of court
 Such mode of service is adopted by the court
 When it is satisfied that
 The defendant is keeping away for the purposes of avoiding service
 Or for any other reason the service cannot be made in an ordinary
manner
 Then the court orders that a copy of summon be affixed

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  On some conspicuous place in the courthouse
 And also on some conspicuous part of the house, defendant have last
resided
 BY POST
o Where the summons was properly addressed, prepaid and duly sent by regd. Post
o And acknowledgement is lost or not received by the court within 30 days of issue
o Then the court shall declare that the summons has been duly served

SUMMARY FOR REVISION

 SUMMONS
o Court- document- purpose- attend-call
o Opportunity- to say
 ESSENTIALS
o Written-sign-seal
o Name-time
o With plaint-direction
 MODES
o By court-plaintiff-post
o Personal-substitute

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 EXECUTION OF DECREE
MEANING

o Term execution means

o The process of enforcing the court’s decree or order
 If the decree passed by the court is not satisfied
o That means the judgment debtor does not obey the decree of the court
o Then the whole process remains meaningless
o Because the aggrieved i.e. decree holder does not get what he is rightfully entitles
o Thus the Code has designed a detailed procedure dealing with this aspect
o It is called execution of decree or orders

Decree may be executed by :

o The court which has passed the decree, or

o The court to which the decree is transferred for execution
 If the judgment debtor resides within local limits of jurisdiction of another court
 Judgment debtor has no property to satisfy the decree
 Within jurisdiction of court which passed the decree
 If the decree directs the sale or delivery of immovable property
 Situated outside local limits of the court which passed the decree
 Any other ground as the court deems fit

PRECEPT

 Precept means a command or an order

 If the property to be attached in execution of a decree
o Is situated within local limits of jurisdiction of another court
o Then the court which passed the decree issues precepts (order or direction)
o To the court within whose local limits the property is situated
o To attach the property of judgment debtor

MODES OF EXECUTION OF DECREE

o Delivery of property
o Attachment and Sale
o Arrest and detention

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 o Appointment of receiver
o In such other manner as relief may require

ATTACHMENT & SALE

S. 51(b)

o It empowers the court to order execution

 By attachment and sale or sale without attachment
o Such order of attachment or sale shall be made by competent court
 Within whose jurisdiction the property is situated

OBJECTIVE OF ATTACHMENT OF PROPERTY

o To give notice to the judgment debtor

 Not to alienate the property to anyone
o Also to give notice to the general public
 Not to purchase or otherwise deal with the attached property

PROPERTY WHICH CAN BE ATTACHED

Following properties are liable to attachment and sale in execution of a decree:

o Land, houses or other buildings

 Goods
 Money, bank-notes, cheques, bills of exchange , hundies, promissory notes
 Govt. securities, bonds or other securities for money, debts, shares
o All other saleable properties
 Movable or immovable
 Belonging to or under disposing power of judgment debtor
 Except those which are mentioned in proviso to S. 60(1)

PROPERTY WHICH CANNOT BE ATTACHED

Proviso to S. 60(1)

o Wearing apparels, cooking vessels, beds and beddings of

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  Judgment debtor, his wife and children and
 Personal ornaments which cannot be parted with by woman due to religious
usages
o Tools of artisans, implements of husbandry, cattle and seed grain of agriculturist
 Agricultural produce which is declared free from liability
o Any movable property exempted from sale for the recovery of arrear of land revenue
o Houses and other buildings belonging to agriculturist or labourer or domestic servant
 And which is occupied by him
o Wages of labourers and domestic servants
o Pay and allowances of persons to whom Air Force Act, Army Act or Navy Act applies
o Allowances forming part of emoluments of any servant of Govt., railway or local
authority
o Any allowance, exempted from attachment or sale by any Indian law
o One third of the salary in execution of a decree of maintenance
o Stipends and gratuities of pensioners and political pensions
o Money payable under life insurance policy

SETTING ASIDE OF SALE OF IMMOVABLE PROPERTY

 Once the property is sold in execution of decree

o It cannot be set aside
o Except on the following grounds:
 On making deposit
 On ground of irregularity or fraud
 On ground of judgment debtor having no saleable interest in property

 On making deposit
o On payment of 5% of purchase price to auction purchaser and
o Entire amount specified in sale proclamation to the decree holder
o This rule intends to give last chance to judgment debtor to save his
property
o Who may apply- Any person claiming interest
 On ground of irregularity or fraud
o If there is material irregularity or fraud
o In publishing or conducting the sale
o And the same should have caused substantial injury to the applicant

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 o Who may apply-
 Decree holder
 Auction purchaser
 Any person entitled to share in distribution of assets
 Any person whose interests are affected by the sale
 Such as judgment debtor, his legal representatives, real
owner of property etc.
 Judgment debtor not having saleable interest in property
o Only the auction purchaser is authorized to apply for setting aside on
this ground

Effect of setting aside of sale

o The purchaser is entitled to refund of the purchase money paid by him

 With or without interest as ordered by court

SUMMARY FOR REVISION

 EXECUTION OF DECREE
o Enforce
o By Court which passed- transfer (reside, property)
 PRECEPT
o Order –issue-another court- to attach
 ATTACHMENT
o By competent court
o Notice
 CAN BE-
o Land- goods- money
o Other saleable
 CANNOT BE-
o Wear- tools- labour- allowance- pension
 SET ASIDE SALE
o Deposit, fraud, no saleable

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 SPECIAL SUITS

SUIT BY OR AGAINST GOVERNMENT

 Procedure in suit to be filed by or against Government
 S. 79 to 82 read with Order 27 deals with the procedure of institution of suit
o By or against Government and public officer in their official capacity
 In such suits, the authority to be named as plaintiff or defendant, as the case may be, shall be:
o Union of India, in case of a suit by or against the Central Government
o State, in case of suit by or against State Government

RULE OF NOTICE

S. 80

o In such suits, two months prior notice should be sent in writing to or left at the office of:
 Secretary, in case of Central Government except where it relates to railway
 General Manager, in case of Central Government where it relates to railway
 Secretary or Collector of the district, in case of State Government
 In case of public officer, to him

ESSENTIALS OF NOTICE

o Name, description and place of residence of the person giving notice

o Statement of the cause of action
o Relief claimed by him

OBJECT OF NOTICE

o To afford an opportunity to the Govt. or public officer

o To settle the claim
o And to avoid unnecessary litigation

CONSEQUENCES OF NON-ISSUANCE OF NOTICE

o Issuance of notice is mandatory and must be strictly complied with

o If not is not issued, then no suit will be instituted

EXCEPTION TO THE RULE OF NOTICE

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 o Where suit is filed to obtain immediate and urgent relief
o Where the leave of the court is obtained

SUIT BY OR AGAINST MINORS OR LUNATICS

 Order 32 lays down the procedure to be followed in cases by or against minors or lunatics
 This provision is enacted to protect the interest of minors or persons of unsound mind
 Law presumes that minors and lunatics are not best judge of their own interest
o Therefore, legislature comes to their protection
 In this regard provisions for appointment of guardian and next friends are made

Procedure in suit to be filed by or against minors or lunatics:

 Court shall appoint proper person to be guardian for the suit

o He is called guardian ad-litem
o Such appointment can be made either on the application of the minor or the plaintiff
o Application must be supported by an affidavit and must state that
 Proposed guardian has no interest in the controversy between the parties
 Before making any order regarding appointment of guardian ad-litem the court shall issue
notice to:
o Any guardian already appointed by competent authority or
o Father or
o Mother or
o Other natural guardian or
o The person in whose care the minor is

Qualification for appointment of guardian ad-litem

o He should be major
o Of sound mind
o Not have an interest adverse to the minor
o Must have given a written consent to act as such

30
  If the court cannot find any suitable person
o Then the court may appoint any of its officers to be such guardian

ON ATTAINING MAJORITY

 The minor may adopt any of the following courses:

o Proceed with the suit
o Abandon the suit
o Apply for dismissal of improper suit

SUMMARY FOR REVISION

 SPECIAL SUITS
 BY OR AGAINST GOVERNMENT
o UOI, State
o Notice (2 months)- name, cause, relief
o Opportunity
o No notice- no suit
o Except- urgent, leave
 MINOR
o Protect
 GUARDIAN AD LITEM
o Application- affidavit, no interest
o Notice
o Qualification-major, sound, no interest, consent
o Officer
o Majority- proceed, abandon, dismiss

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 INDIGENT PERSON
MEANING

o An indigent person is an extremely poor person

 Lacking the basic resources of a normal life

 Explanation I appended to Order 33 Rule 1

 A person is an ‘indigent person’ if:
o He is not possessed of sufficient means
 To enable him to pay the fee prescribed by law
 For the plaint in such suit or
o Where no such fees is prescribed
 When he is not entitled to property worth Rs. 1000

 In both the cases following properties should be excluded:

o Property exempted from attachment in execution of a decree
o Subject matter of the suit
 If any property is acquired by him after presentation of application to sue as indigent person
o Such property will also be taken into consideration
o For deciding such application

PROCEDURE FOR INSTITUTING INDIGENT SUIT:

 CONTENTS OF APPLICATION
o Particulars required in regard to plaint in suits
o A schedule of movable or immovable property of the applicant
 With estimated value of them
o Signature and verification
 INQUIRY & EXAMINATION
o The chief ministerial officer of the court may conduct an inquiry
 As to the means of the applicant
o The court may examine the applicant
 Regarding the merits of the claim and property of applicant
 NOTICE & HEARING
o The court shall issue notice to the opposite party and Government pleader
o The date shall be fixed for receiving evidence as the applicant may adduce
 In proof of his indigency

32
 o The court then examine the witnesses, if any, produced by either party
 Hear their arguments
o And either allow or reject the application
 REJECTION OF APPLICATION
o Court shall reject the application on the following grounds:
 Application is not framed and presented in the prescribed manner
 Applicant is not an indigent person
 He has, within two months before the presentation of application
 Disposed of any property fraudulently
 Or in order to be able to sue as indigent person
 His allegations do not show a cause of action
 Allegations in the application show that the suit would be barred by any law
 Any other person has obtained interest in the subject matter
 Because the applicant has entered into any agreement
 With reference to the subject matter
 Any other person has entered into agreement with him
 To finance the litigation
o PROCEDURE WHEN APPLICATION IS REJECTED:
 If the court rejects the application to sue as indigent on any of the above
grounds
 Then there will be a bar on subsequent application to sue as indigent
 But it does not bar him from suing in an ordinary manner
 On payment of court fees
 And costs incurred by opposite party in opposing the application
 An order rejecting an application to sue as indigent person is appealable
 PROCEDURE WHEN PERMISSION IS GRANTED
o If permission is granted to sue as an indigent person
o Then it shall be deemed to be a plaint in the suit
o And shall proceed in the ordinary manner
o And the plaintiff will not have to pay court fees
o The court may provide him a pleader if he is not represented by the pleader
 And other free legal aid and services as may be required by him
 REVOCATION OF PERMISSION
o Court may, on application by the defendant or Government pleader
o Revoke the permission granted to plaintiff in following cases:
 Where he is guilty of vexatious or improper conduct in course of suits, or
 Where his means are such that
 He ought not to continue to sue as an indigent person
 Where he has entered into an agreement
 Under which another person has obtained an interest in the subject
matter

33
  PROCEDURE AFTER CONCLUSION OF TRIAL
o WHEN INDIGENT PERSON SUCCEEDS
 Court shall calculate the amount of court fees and costs
 The State Government shall recover such costs from party as ordered by court
 Government shall have first charge on the subject matter of suit
o WHERE INDIGENT PERSON FAILS
 If he fails due to his own fault or the suit abates
 Court shall order him to pay the court fees and costs
 In case of abatement, the fees will be recovered out of the estate of deceased
plaintiff

 REALIZATION OF COURT FEES AS ARREARS OF LAND REVENUE

o Court shall forward the copy of decree to Collector
o Who may recover the court fees from the person or his property
 As arrears of land revenue

SUMMARY FOR REVISION

 INDIGENT PERSON
o Poor (can’t plaint fee, 1000 property)
 PROCEDURE
o Application, inquiry exam
o Notice Hear
o Reject, accept, revoke
o Conclusion

34
 JOINDER OF PARTIES

o If the cause of action arises in favour of or against multiple persons

o Then the question of joinder of plaintiff and defendant arises
 In simple words
o If the act is done by a single or multiple persons against multiple persons
 Then there will be joinder of plaintiffs
 Example-
 A and B were assaulted by C
 Here A and B can jointly bring an action for damages against C
 Because the right to relief existing in A and B
 Arose out of same transaction
 And same question of fact and law will be involved if
 Separate suits were brought by A and B against C
o If the act is done by multiple persons against a single or multiple persons
 Then there will be joinder of defendants
 Example-
 A and B simultaneously assaulted C
 Here A and B can be joined as defendants in one suit by C
 Because the right to relief against them arose through same act
 And common question of fact and law will be involved if
 Separate suits were brought against A and B
o If the act is done by a single person against a single person
 Then the question of joinder of parties does not arise

 NECESSARY PARTIES
o One against whom a relief is sought
o And in whose absence
o No decree or effective order can be passed
 If the necessary party is not included in the suit
o Then the suit is liable to be dismissed
 Example-
o In a partition suit
o All sharers are necessary parties

 PROPER PARTY

35
 o One in whose absence
o Effective order can be passed
o But whose presence is necessary for
 Complete and final decision of the case
 Example –
o In a suit for eviction of a tenant
o The sub-tenant would be proper party

 MIS-JOINDER OF PARTIES
o If two or more persons are joined as a party to the suit
o In contravention of the provisions for joinder
o And they are neither necessary party nor proper party
o Then it is a case of mis-joinder of parties

 NON-JOINDER OF PARTIES
o Where one person is a necessary or proper party to the suit
o And he has not been joined as a party
o Then it is a case of non-joinder of parties

 EFFECT OF NON-JOINDER AND MIS-JOINDER

 Order 1 Rule 9
o Suit cannot be defeated only on the ground of non-joinder or mis-
joinder of PARTIES
 Proviso to Rule 9
o Suit can be defeated on the ground of non-joinder of NECESSARY
PARTIES

SUMMARY FOR REVISION

 JOINDER
o Plaintiff, defendant
 NECESSARY PARTY
o Against, absence-no decree

36
  PROPER PARTY
o Necessary to complete, absence- order
 MIS JOINDER
o Joined the person who is not NP & PP
 NON JOINDER
o Not joined NP & PP
 NON JOINDER OF NP- suit defeated

37
 CAUSE OF ACTION
INTRODUCTION

o Cause of action is made up of a number of facts

o Which are necessary to be pleaded
o And which if established
 Would enable the plaintiff
 To obtain from the court
 The remedy against the defendant

FACTS NECESSARY TO CONSTITUTE CAUSE OF ACTION

o Plaintiff’s right or title

o Defendant’s wrongful act violating that right or title
o The consequent damage, nominal or substantial

IMPORTANCE OF CAUSE OF ACTION

It plays an important role for the successful outcome of a claim

 PLEADING
o Cause of action should be clearly stated
o This saves the time, energy and cost of the court, parties and witnesses

o Facts constituting cause of action should be stated

o With certainty and precision
o And in their natural order
 JURISDICTION
o Cause of action plays important role in determination of jurisdiction of court
o Example-
 According to Article 226 of the Constitution
 High Court can exercise power to issue directions
 If cause of action, wholly or in part,
 Has arisen within its territorial jurisdiction
 NON-DISCLOSURE OF CAUSE OF ACTION- REJECTION OF PLAINT
o Non-disclosure of cause of action
o May lead to rejection of the plaint

38
 SUMMARY FOR REVISION
 CAUSE OF ACTION
o No. of acts- necessary to plead
o If est.- enable to obtain remedy
o Right, wrong, damage
 IMPORTANCE
o Pleading clear, jurisdiction determine, non-disclosure reject

39
 PLEADING
Order 6 Rule 1

Pleading means plaint or written statement

MEANING

o Pleadings are statements in writing

o Drawn up and filed by each party to a case
o Stating what his contention will be at trial
o And giving all such details
 As his opponents needs to know
 For his defence

These are basically statement of parties

o To communicate their contention

o To be adjudicated in trial

FUNDAMENTAL OR BASIC RULES OF PLEADINGS

Order 6 Rule 2 lays down fundamental principles of pleading which are as follows:

 PLEAD MATERIAL FACTS

o Pleading must contain only material facts on which the party pleading relies
o Unnecessary facts having no bearing upon the cause of action must not be stated
 PLEAD FACTS IN CONCISE FORM
o The material facts should be stated precisely and coherently
o So that the opposite party knows what case he has to meet
o And there is no vagueness or ambiguity in the pleading
 PLEAD FACTS AND NOT LAW
o Parties should state facts only and not the law
o It is for the court to apply the law to the facts pleaded
 PLEAD FACTS AND NOT EVIDENCE
o Pleading should contain a statement of only material facts on which party relies
o But it should not contain the evidence by which those facts are to be proved

40
AMENDMENT OF PLEADINGS

 Circumstances when amendments are allowed:

o When amendment is necessary for determining the real question of controversy
 Between the parties
o Such amendment will not cause injustice to the other side
 Or such injury which cannot be compensated by costs
 Circumstances when amendments are refused:
o When amendment is not necessary for determining real question of controversy
o Such amendment will cause injustice to the other side
 If it results in defeating the rights of the other party on account of lapse of time
 It takes away from the other side a legal right which accrued in his favour
o When it changes the fundamental character of the suit of defence
 Where it introduces a totally inconsistent and different case
o When the application is not made in good faith

SUMMARY FOR REVISION

 PLEADING
o Plaint, written statement
o Each party, contention, written
o Opposite party, details
 BASICS-
o Material facts, concise, not law, not evidence
 AMEND
o Real question, injustice
 REFUSE AMEND
o Real question, injustice, different case, good faith

41
 PLAINT
Not defined in the Code

MEANING

o Plaint is a statement of claim

o By presentation of which
o The suit is instituted
 It is pleading of the plaintiff

ESSENTIALS OR PARTICULARS OF A PLAINT

o Name of the court in which the suit is brought

o Facts showing that the court has jurisdiction
o Name, description and place of residence of plaintiff and defendant
 If they are minor or person of unsound mind
 Then a statement to that effect
o Facts constituting the cause of action and when it arose
o Statement of value of subject matter of the suit
 For the purpose of jurisdiction and court fees
o Relief claimed by the plaintiff, simply or in alternate
o Where the suit is for recovery of money
 Precise amount claimed
o Where the subject matter is an immovable property
 A description of the property sufficient to identify the same
o If the suit is filed in representative capacity
 The fact showing that plaintiff has an actual existing interest in the subject
matter
 And he has taken steps that may be necessary to enable him to file such a suit
o Where the plaintiff has allowed set-off or relinquished a portion of his claim
 The amount so allowed or relinquished

GROUNDS OF REJECTION OF PLAINT

 Relief claimed is undervalued

o And the valuation is not corrected within the time fixed or extended by court
 Plaint is not sufficiently stamped
o Plaint is written upon a paper insufficiently stamped

42
 o And the plaintiff fails to pay the requisite court fees within time fixed or extended by
court
 Non disclosure of cause of action
o Plaint does not disclose any cause of action , the court will reject it
o Even if the allegations set out in the plaint are proved
 The plaintiff would not be entitled to relief
o The plaint will be rejected as a whole
 Barred by law
o Where from the statements in the plaint the suit appears to be barred by law
o For example if the claim is barred by limitation, then plaint can be rejected
 Plaint is not in duplicate
o Plaint has to be filed in duplicate otherwise it will be rejected
 Non-compliance of Rule 9
o Plaintiff fails to present copies of the plaint for each defendants
o And requisite fees for summons within 7 days

SUMMARY FOR REVISION

 PLAINT
o Statement of claim, present- suit
 PARTICULARS
o Court-name, jurisdiction
o Parties- name, minor
o Cause of action, relief
o Subject matter value, money, set off, immovable property
 REJECT
o No Cause of action, bar by law
o Under value, stamp
o Not duplicate, defendant copy

43
WRITTEN STATEMENT, SET-OFF AND COUNTER CLAIM

WRITTEN STATEMENT
Not defined in the Code

MEANING

o Pleadings of the defendant

o Wherein defendant deals with the facts alleged in the plaint by the plaintiff
o In it, he also pleads new facts
 And sets up counter-claim and set-off

WHO MAY FILE WRITTEN STATEMENT

o Defendant or his duly authorized agent

o If there are several defendants
 A common written statement can be filed by them
 It must be signed by all of them
 It can be verified by any one defendant

TIME LIMIT FOR FILING WRITTEN STATEMENT

o Within 30 days from the date of service of summons

o If he fails to file written statement within 30 days
 Then he will be allowed to file within 90 days from date of service of summons
o In Salem Bar Association Vs Union of India
 Supreme Court held that
 Court is empowered to allot the defendant to file written statement
 Even after the expiry of 90 days
 Such power can only be used in exceptional circumstances

SET-OFF
Not defined in the Code

MEANING

44
 o It means a claim set up against another claim
o It is a cross claim
o Whereby a defendant acknowledges the plaintiff’s demand
o But set up another demand of his own
o To counter balance that of the plaintiff
 Either in whole or in part

 Where there are two mutual debts between the plaintiff and defendant
o Then one debt may be settled against the other
o It avoids the necessity of filing a fresh suit by the defendants
 Example-
o A sues B on a bill of exchange for Rs. 1000
o B claims that A already owes him Rs. 500
o Then both the claims can be set-off
o And A will be entitled to Rs. 500 only

ESSENTIALS OF SET-OFF

o Suit must be for recovery of money

o The sum of money must be ascertained
o Such sum must be legally recoverable
 For example- Cannot claim for salary for doing some illegal work
o It must not exceed the pecuniary jurisdiction of court in which the suit is brought

EQUITABLE SET-OFF

o Equitable set-off can be claimed by the defendants even when sum is not ascertained
o Provided that both the cross-demands arise out of one and the same transaction
 Example-
o In a suit by servant against his master for salary
o The master can claim set-off for the loss sustained by him due to negligence of servant

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DIFFERNCE BETWEEN LEGAL SET-OFF & EQUITABLE SET-OFF

LEGAL SET-OFF EQUITABLE SET-OFF

It must be for an ascertained sum of money It may be allowed even for an unascertained sum
of money
It is not necessary that cross demands arise out of It is necessary that cross demands should arise out
same transaction of same transaction
It can be claimed as a matter of right The court has discretion to allow defendants to
claim equitable set-off
The amount claimed shall not be barred by Amount can be claimed even if claim is time-
limitation barred

COUNTER CLAIM
Not defined in the Code

MEANING

o A claim made by the defendant against the plaintiff

o In the suit filed by plaintiff
 It is independent and separate from plaintiff’s claim

OBJECT-

o To avoid multiplicity of proceedings

o It saves time of the court
o Avoid inconvenience to the parties
o All the disputes between the parties can be adjudicated in a same suit

WHO MAY FILE COUNTER CLAIM

o Generally, defendant can file counter claim against the plaintiff

o He can also file counter claim against co-defendants
o But defendant cannot file counter claim solely against co-defendants

46
  Without filing it against the plaintiff

TIME FOR FILING COUNTER CLAIM

o The cause of action for such counter claim may accrue

 Either before or after filing of the suit by the plaintiff
 But before the defendant has delivered his defence or
 Before the time fixed for delivery of his defence has expired
 After issues are framed, counter claim cannot be filed

EFFECT OF COUNTER CLAIM

o It has the effect of a cross-suit

 The court can pronounce a final judgment both on original and counter claim
o Counter claim of defendant will be treated as plaint
 And the plaintiff has a right to file a written statement in answer to it
o Rules relating to written statement by a defendant
 Shall apply to a written statement filed in answer to the counter claim
o Even if suit of plaintiff is stayed, dismissed or withdrawn
 The counter claim will be decided on merits

DIFFERENCE BETWEEN SET-OFF & COUNTER CLAIM

SET-OFF COUNTER CLAIM

It is a statutory defence to a plaintiff’s action It is substantially a cross-action
It must be for an ascertained sum of money or, if It need not be for ascertained sum of money
equitable set-off, arise out of same transaction neither it should arise out of same transaction
It is a ground of defence to the plaintiff’s action It is a weapon of offence
A shield which would afford an answer to A sword enabling a defendant to enforce a claim
plaintiff’s claim against the plaintiff
In legal set-off the amount must be recoverable at The amount must be recoverable at the date of
the date of suit written statement or
Cause of action must have arose before the filing
of written statement

47
 SUMMARY FOR REVISION
 WRITTEN STATEMENT
o Deals – plaint fact
 New facts, set off, counter claim
 FILED BY
o Defendant, agent, all
o Within 30, 90 or after

 SET-OFF
o Acknowledges plaint’s demand, another demand, counter balance
 ESSENTIALS
o Money, ascertained, legally, jurisidiction
 EQUITABLE SET-OFF
o Even unascertained, same transaction
 DIFF LEGAL AND EQUITABLE
o Ascertained, transaction
o Right, time bar

 COUNTER CLAIM
o In suit by plaintiff, claim by defendant, independent separate
o Avoid multiple
o Filed by def-against plaintiff, co-def
 Before delivery of defence
 DIFF BETWEEN SET OFF AND COUNTER CLAIM
o Defence-offence
o Cross action
o Ascertain, same transaction
o Amount recoverable at-suit date, written statement

48
 EX-PARTE DECREE
Not defined in the Code

MEANING

o A decree, passed in the absence of the defendant

 When the plaintiff appears
o But the defendant does not appear
o And the summons was duly served
o Then the court may hear the suit ex parte
o And pass a decree against him

SETTING ASIDE EX PARTE DECREE

 Defendant may apply to the court which passed the decree to set aside it on following grounds:
o Summons was not duly served on him, or
o He was prevented from appearing by any sufficient cause
 When the suit was called out for hearing
 If the court is satisfied
o It will set aside the ex parte decree
o And appoint a day for proceeding with the suit

REMEDIES AVAILABLE AGAINST EX PARTE DECREE

 When an ex parte decree is passed against the defendant, he has following remedies
o Apply to set aside
o Appeal or file revision
o File for review
o File a suit on ground of fraud

49
 SUMMARY FOR REVISION
 EX PARTE DECREE
o Absence of defendant
o Summons served, plaintiff appear, defendant not appear
o Court hear, pass decree
 SET ASIDE
o Summons not duly served, prevented from appearing
 REMEDIES AGNST. EX PARTE
o Set aside, appeal, review, revision, fraud

50
 TEMPORARY INJUNCTION
Not defined in the Code

MEANING

o It is a remedy
o In the form of an order of the court
o Addressed to a particular person
o Either
 Prohibiting him from doing or continuing to do a particular act (prohibitory
injunction)
 Or orders him to carry out a certain act (mandatory injunction)

GROUNDS FOR TEMPORARY INJUNCTION

IN WHAT MATTERS IT CAN BE GRANTED

Plaintiff or defendant may apply for its grant on the following grounds:

o When the property in dispute is in danger

 Of being waster, damaged or alienated by any party to the suit
 Or wrongfully sold in execution of a decree
o When the defendant threatens or intends to remove or dispose of the property
 With a view to defrauding his creditors
o When the defendant threatens to dispossess the plaintiff
 Or otherwise cause injury to the plaintiff in relation to any property in dispute
o When the defendant is about to commit a breach of contract
 Or other injury of any kind

PRINCIPLES GOVERNING GRANT OF INJUNCTION

 It is a discretionary remedy
o Court has wide discretion to grant or refuse to grant temporary injunction
 Discretion should be exercised on the following principles:
 Prima facie case
o Applicant must make out a prima facie case in support of the right claimed by him
 Irreparable injury
o The applicant must satisfy the court that he will suffer irreparable injury
o If the injunction is not granted

51
  Balance of convenience
o Balance of convenience must be in favour of the applicant
o Court will weigh the hardships caused to both the parties if the injunction is refused
o And the hardships when it is granted
o If on such considerations court thinks that balance of convenience is in favour of
applicant
o Then the court will grant the injunction

SUMMARY FOR REVISION

 TEMPORARY INJUNCTION
o Order, remedy
o Address, particular person- prohibit, carry on
 GROUNDS
o Property in danger
o Defendant- dispose property, dispossess plaintiff, breach contract
 PRINCIPLES
o Prima facie, irreparable injury, balance of convenience

52
 APPEAL
Not defined in the Code

MEANING

o It is a proceeding
o Initiated by an aggrieved party in the superior court
o Against the decision of a subordinate court
 There is not right to appeal unless it is provided by the law
 Right to appeal is conferred by statute
 Right to appeal is not available in all cases
 It is subject to various restrictions

FIRST APPEAL

o Appeal from original decree is called first appeal

 Every appeal shall be preferred in the form of memorandum
o Memorandum shall be accompanied by a copy of judgment
o Memorandum shall contain the grounds of objection to the decree appealed against
 Execution of a decree shall not be stayed merely because of filing of appeal
o Unless the appellate court stays the execution

DIFFERNCE BETWEEN FIRST APPEAL & SECOND APPEAL

FIRST APPEAL SECOND APPEAL

It lies from the decree passed by court exercising It lies from the decree passed by court exercising
original jurisdiction appellate jurisdiction
It lies to the superior court, that superior court It necessarily lies to High Court
may or may not be High Court.
The forum is not mentioned in the provision
It can be filed on the question of fact or law or It can be filed only on substantial question of law
mixed question of fact and law
Period of limitation for filing first appeal is 90 days Period of limitation for filing second appeal is 90
if such appeal lies to High Court days
And 30 days if such appeal lies to any other court

53
 SUMMARY FOR REVISION
 APPEAL
o Proceeding by aggrieved in superior
o Against decision of inferior
o Not right unless law provides
 FORM
o Memorandum – grounds of objection
o With judgment copy
 DIFFERENCE BETWEEN Ist APPEAL AND IInd APPEAL
o Against jurisdiction, appealable, High Court, Question of law, 30 90

54
 REFERENCE, REVIEW AND REVISION

REFERENCE
o When a subordinate court refers a case to the High Court
o For its opinion

OBJECT

o To obtain opinion of High Court

o On question of law
o In order to avoid commission of any error
o Which could not be remedied later on

GROUNDS OF REFERENCE

 When the court is satisfied that the case pending before it involves a question
o As to validity of any Act, Ordinance or Regulation and
 Such question is necessary to be determined for disposal of the case and
 The court is of the view that such Act, Ordinance or Regulation is ultra vires and
 There is no such determination of its validity by High Court or Supreme Court
 Where the subordinate court entertains a reasonable doubt
o As to any question of law or usage having the force of law

 In the first case the reference is obligatory and in the second case it is optional

55
 REVIEW
 Judicial re-examination of the case by the same court

GROUNDS FOR REVIEW

 Where appeal is allowed against a decree but the aggrieved party has not preferred it
 Where no appeal lies against a decree
 In case of discovery of new and important matter or evidence
 In case of some mistake or error apparent on the fact of the record
 In case of other sufficient reasons

DIFFERENCE BETWEEN REFERENCE & REVIEW

REFERENCE REVIEW
It the court which refers the reference to the High It is the party who makes the application for
Court review
The authority to decide the reference is High Court The authority to decide the review is the court
only which has passed the decree
Reference is made in a pending suit, appeal or Review can be made only after the decree or order
execution is passed

REVISION
o Revision means to ‘re-look again’ or ‘go through carefully’
o It is an act of revising with a view to correct the errors
o High Court has the power to revise a case decided by subordinate court
o To prevent the latter from acting arbitrarily, capriciously and illegally
 Or irregularly
 In the exercise of their jurisdiction

WHO MAY FILE REVISION

56
 o A person aggrieved by an order passed by a court subordinate of High Court
o High Court may even suo motu exercise revisional jurisdiction

CONDITIONS AND GROUNDS

 The case must have been decided

 Court deciding the case must be subordinate to High Court
 Order should not be appealable
 The subordinate court must have:
o Exercised jurisdiction not vested in it by law or
o Failed to exercise jurisdiction vested in it or
o Acted in the exercise of its jurisdiction illegally or with material irregularity

DIFFERENCE BETWEEN REVISION & REVIEW

REVISION REVIEW
It can only be exercised by High Court It can be exercised by the court which has passed
the decree or order
It can be exercised only in case where no appeal It can be exercised even if there is a provision for
lies appeal
It can be exercised suo motu by High Court It cannot be exercised suo motu by the court
Application has to be filed for it
Order passed by revisional court is not appealable Order passed by review court is appealable
Ground for revision is only jurisdictional error Review can be filed on grounds other than
jurisdictional errors also

SUMMARY FOR REVISION

 REFERENCE
o Subordinate refer to High Court
o For opinion on Q of law
 GROUNDS
o Satisfied Q of law- disposal, ultra vires, validity
o Reasonable doubt

57
  REVIEW
o Same court , re exam
 GROUNDS
o No appeal, not prefer appeal, new evidence, error apparent, other
 DIFFERENCE – REFERENCE & REVIEW
o Court refer, HC, pending

 REVISION
o HC correct error of Subordinate
o Jurisdiction not act illegal
 FILED BY
o Aggrieved, suo motu
 CONDITIONS
o Subordinate, decided, no appeal
o Juris- no, fail, illegal
 DIFFERENCE- REVISION & REVIEW
o HC, suo motu,, appeal , jurisidicitonal

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 RESTITUTION
o On reversal of a decree
o The law imposes an obligation upon the party
 Who received any unjust benefit from the erroneous decree
o To make restitution to the party for what he has lost
 Law imposes an obligation on the party
o To restore the benefit which has been obtained due to erroneous judgment

CAVEAT
o When an application is expected to be made
 Or has been made
o In a suit or proceedings instituted
 Or about to be instituted in a court
o Any person claiming a right to appear before the court
 On the hearing of such application
o May lodge a caveat in respect of it

PURPOSE OF FILING A CAVEAT

o It affords an opportunity to such party of being heard

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  Before an ex parte order is made
 Which will safeguard his interest
o To avoid multiplicity of proceedings
 Otherwise the person who is not a party to the application
 And adversely affected by such order
 Has to take recourse to legal proceedings to get rid of such order

RIGHTS OF CAVEATOR

o Once the caveat is lodged

 It will be the duty of the court to issue notice of the application
 Which will enable the caveator to appear and contest the application

SUMMARY FOR REVISION

 RESTITUTION
o Erroneous decree, reversal
o Unjust benefit, return

 CAVEAT
o Suit, application, claim right to appear on hearing- lodge caveat
 PURPOSE
o Heard, multiple
 RIGHTS
o Application-notice

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 INHERENT POWERS OF THE COURT
MEANING

o These are the powers which are complimentary

o And in addition to the powers, expressly conferred by the Code
o So that these powers can secure the court in unforeseen cases
o Which could not be contemplated by Legislature

 These powers are exercised by the court to do full and complete justice between the parties

Following orders can be passed using inherent powers:

o Recalling its own order and correcting mistakes

o Directing joint trial of the suit
o Setting aside ex parte order passed against the party
o Issuing temporary injunction in cases not covered under Order 39, etc.

LIMITATIONS ON EXERCISE OF INHERENT POWERS

 These powers can be exercised only in the absence of specific provision in the Code
 Following are the limitations:
o Cannot be exercised in conflict with what has been expressly provided in the Code
o If there are express provisions covering a particular issue
 No inherent power shall be exercised in respect of such issue
o Cannot be exercised if the litigant has remedy under relevant statute
 And he has not availed the same
o Court cannot assume jurisdiction which is not vested in it by law, by invoking inherent
powers
o These are restricted to procedural matters
 They cannot disturb the substantive rights of the parties

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 SUMMARY FOR REVISION
 INHERENT POWERS OF CIVIL COURT
o Unforeseen cases, code powers –addition
o For full justice
o Joint trial, ex parte set aside, temporary injunction
 LIMITATIONS
o Only absence of specific
o No express provision, remedy, conflict
o Jurisdiction

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 LIMITATION ACT, 1963

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 SALIENT FEATURES OF LIMITATION ACT
 Exhaustive law

o The Limitation Act is an exhaustive law with respect to all the matters expressly

provided in it

o It is complete in itself

 Adjective Law

o The Limitation Act is an adjective law

o Being an adjective law, it provides for both the substantial and procedural features of

any statute

o But, it is more of procedural law

o Thus, in competitive exams, it should be marked as procedural law

o In A.S.K. Krishnappa Chettiar & Ors. Vs. S.V.V.Somiah & Ors

 Supreme Court noted that

 Limitation Act is basically a piece of adjectives or procedural law

 And not substantive law

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  Applicable to civil cases

o The Limitation Act ordinarily applies to civil matters

o Except in the matter expressly and specifically provided for that purpose

 Prospective as well as a retrospective effect

o S. 31 provides for the retrospective and prospective effect of the Act

 Only applicable to suits, appeals and applications

o S. 3 provides for the bar of limitation

o Which means that the Limitation Act only applies to suits, appeals, and applications

SUMMARY FOR REVISION

 SALIENT FEATURES OF LIMITATION ACT
o Exhaustive, adjective, civil, retrospective
o Suits,appeal,application

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66
 LIMITATION BARS THE REMEDY & NOT THE RIGHT
S.3

o Every suit instituted, appeal preferred and application made

o After the prescribed period
o Shall be dismissed
 It does not bar the right
o It bars only the remedy
o As rule of limitation is a rule of procedure
 It neither creates nor extinguishes rights

After the remedy is barred by limitation

o The right remains a moral obligation

 Or can be availed to furnish consideration for a fresh enforceable obligation
o So a right to the debt does not cease to exist
 Only because its recovery is barred by the statute of limitation
o So a debtor can pay the ‘time barred debt’
 And cannot claim it back
 On the plea that it was barred by limitation

EXCEPTION

o The only exception to this rule is contained in S. 27 of the Act

o It states that in a suit for possession of any property (Adverse Possession)
o On expiry of limitation period
o Not only the remedy but the right is also extinguished

SUMMARY FOR REVISION

 LIMITATION BARS THE REMEDY NOT THE RIGHT
 S.3
o After prescribed period- dismissed
o Bar remedy, not right
o Moral obligation
o Pay time barred debt
 EXCEPTION
o Adverse possession

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 EFFECT OF FRAUD OR MISTAKE ON LIMITATION
S. 17

 In case of certain types of fraud

o The period of limitation shall not start running
o Until the fraud has been discovered
 Same principle is applied in case of mistake
 Where a judgment debtor has, by fraud or force
o Prevented the execution of a decree or order within the limitation period
o Then the court may, on the judgment creditor’s application
 Made after expiry of period of execution
o Extend the period, if application is made within one year
 From the date of discovery of fraud or cessation of force

SUMMARY FOR REVISION

 EFFECT OF FRAUD , MISTAKE
o Period will start after fraud, mistake is discovered
o Prevent execution- discovery, 1 year

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 EFFECT OF ACKNOWLEDGMENT OF LIABILITY
ON THE PERIOD OF LIMITATION
 If before the expiration of the prescribed period for a suit or application
o In respect of any property or right
 An acknowledgment of liability in respect of such property or right has been made
o In writing, signed by the party against whom such property or right is claimed
 Then a fresh period of limitation shall be computed
o From the time when the acknowledgment was signed

SUMMARY FOR REVISION

 ACKNOWLEDGE LIABILITY
o Before expiry of period, written signed, fresh period

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 SUFFICIENT CAUSE
FOR EXTENSION OF PERIOD OF LIMITATION

 Section 5
o It allows the extension of prescribed period in certain cases
 On sufficient cause being shown for the delay
 This is known as doctrine of “sufficient cause”
o Any appeal or application (not plaint or suit) may be admitted after the prescribed
period
 If the appellant or the applicant satisfies the Court
 That he had sufficient cause for not preferring the appeal or making the
application within such period
 Section 5 applies only to appeals or applications
o The reason for non-applicability of the Section to suits is that
o The period of limitation allowed in most of the suits extends from 3 to 12 years
o Whereas in appeals and application it does not exceed 6 months

Examples of sufficient cause:

What is sufficient cause and what is not may be explained by the following judicial observations:

 Wrong practice of High Court

o Which misled the appellant or his counsel in not filing the appeal
o Should be regarded as sufficient cause under Section 5
 In certain cases, mistake of counsel may be taken into consideration in condensation of delay
o But such mistake must be bona fide
 Wrong advice given by advocate can give rise to sufficient cause in certain cases
 Mistake of law in establishing or exercising the right given by law
o May be considered as sufficient cause
o However, ignorance of law is not excuse
o Nor the negligence of the party or the legal adviser constitutes a sufficient cause
 Imprisonment of the party or serious illness of the party
o May be considered for condonation of delay
 Time taken for obtaining certified copies of the decree of the judgment
o Necessary to accompany the appeal or application was considered for condoning the
delay
 Non-availability of the file of the case to the State Counselor Panel Lawyer
o Is no ground for condonation of inordinate delay
 Ailment of father during which period the defendant was looking after him
o Has been held to be a sufficient and genuine cause

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 SUMMARY FOR REVISION
 SUFFICIENT CAUSE
o Satisfy court
o Appeal, application- not suit, plaint
 EXAMPLES
o Wrong- practice (HC), advice (advocate)
o Mistake- (Counsel), of law
o Prison, ill, father
o Time to obtain copy
o File not available- state counsel – No ground

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 LEGAL DISABILITY
INTRODUCTION
S. 6
o No limitation will apply to a case in which the person was legally disabled
 At the time when the cause of action arose
 Provided the suit is brought within 3 years of the time
 When the disability ceases
o It gives minors or lunatics an extended period for filing a suit or application

PROVISIONS UNDER SECTION 6-

 If a person entitled to institute a suit or make an application for the execution of a decree is
o At the time from which the prescribed period is to be reckoned (calculated)
o A minor or insane, or an idiot
o He may institute the suit or make the application within the same period
o After the disability ceases
o As would otherwise have been allowed from the time so specified
 If such person is affected by two such disabilities
o Or where, before his disability has ceased, he is affected by another disability
o He may institute the suit or make the application within the same period
o After both disabilities have ceased
o As would otherwise have been allowed from the time so specified
 If the disability continues up-to-the death of that person
o His legal representative may institute the suit or make the application
o Within the same period after the death
o As would otherwise have been allowed from the time so specified
If the legal representative referred to in the above sub-section is
o At the date of the death of the person whom he represents
o Affected by any such disability, the rules contained in top two sub-sections shall apply
If a person under disability dies after the disability ceases
o But within the period allowed to him under this section

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 o His legal representative may institute the suit or make the application
o Within the same period after the death
o As would otherwise have been available to that person had he not died

For the purposes of this section ‘minor’ includes a child in the womb

SUMMARY FOR REVISION

 LEGAL DISABILITY
o If disabled at the time of Cause of Action- No limitation
o File within 3 years- when disability ceases

o Minor, insane, idiot- cease

o Two disabilities- both cease
o Death during- legal representatives
o Death after ceased- legal rep
o Legal rep disability- his ceases

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 SUMMARY OF ALL CHAPTERS

 DECREE
o Suit-parties-conclusive-decision-formal expression
 PRELIMINARY DECREE
o Rights not completely dispose
 FINAL DECREE
o Rights completely dispose
o Dependent
 DECREE HOLDER
o Favour
 JUDGMENT DEBTOR
o Against

 ORDER
 Decision- formal expression- not decree

 JUDGMENT
o Decree grounds –statement
o Intention-on result
 FOREIGN COURT
o Outside India-not by Central Govt.
 FOREIGN JUDGMENT
o Judgment of Foreign Court
 LEGAL REPRESENTATIVE
o Represent-deceased’s estate
 MESNE PROFIT
o Wrongful possession

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  SUIT OF CIVIL NATURE
o Pvt. rights and remedies
o Bars- Express (by act), Implied (specific remedy)

 RES SUB JUDICE

o Dispute Pending
o Same parties- same matter- suit- competent court- pending

 RES JUDICATA
o Dispute decided
o Same parties- same matter- suit- competent court- finally decided
o Object- no double trouble- case end finish- accept decision
 ESTOPPEL
o Prohibit – contradict- earlier statement

 PLACE OF SUING
 PECUNIARY JURISDICTION
o Value of subject matter- not exceed limit- lowest grade
o Plaintiff value- not arbitrary
 TERRITORIAL JURISDICTION
o IMMOVABLE

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  Place property is situated
 Partition, recovery, mortgage, other right, wrong, movable attach
 More than one place
 Any court- Any portion situated
 Uncertain
 Any court- satisfy
o COMPENSATION
 Place of wrong- defendant reside
o OTHER
 Cause of action- defendant resides- any one reside(leave)

 SUMMONS
o Court- document- purpose- attend-call
o Opportunity- to say
 ESSENTIALS
o Written-sign-seal
o Name-time
o With plaint-direction
 MODES
o By court-plaintiff-post
o Personal-substitute

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  EXECUTION OF DECREE
o Enforce
o By Court which passed- transfer (reside, property)
 PRECEPT
o Order –issue-another court- to attach
 ATTACHMENT
o By competent court
o Notice
 CAN BE-
o Land- goods- money
o Other saleable
 CANNOT BE-
o Wear- tools- labour- allowance- pension
 SET ASIDE SALE
o Deposit, fraud, no saleable

 SPECIAL SUITS
 BY OR AGAINST GOVERNMENT
o UOI, State
o Notice (2 months)- name, cause, relief
o Opportunity
o No notice- no suit
o Except- urgent, leave
 MINOR
o Protect
 GUARDIAN AD LITEM
o Application- affidavit, no interest
o Notice

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 o Qualification-major, sound, no interest, consent
o Officer
o Majority- proceed, abandon, dismiss

 INDIGENT PERSON
o Poor (can’t plaint fee, 1000 property)
 PROCEDURE
o Application, inquiry exam
o Notice Hear
o Reject, accept, revoke
o Conclusion

 JOINDER
o Plaintiff, defendant
 NECESSARY PARTY
o Against, absence-no decree
 PROPER PARTY
o Necessary to complete, absence- order
 MIS JOINDER
o Joined the person who is not NP & PP
 NON JOINDER
o Not joined NP & PP

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  NON JOINDER OF NP- suit defeated

 CAUSE OF ACTION
o No. of acts- necessary to plead
o If est.- enable to obtain remedy
o Right, wrong, damage
 IMPORTANCE
o Pleading clear, jurisdiction determine, non-disclosure reject

 PLEADING
o Plaint, written statement
o Each party, contention, written
o Opposite party, details
 BASICS-
o Material facts, concise, not law, not evidence
 AMEND
o Real question, injustice
 REFUSE AMEND
o Real question, injustice, different case, good faith

 PLAINT
o Statement of claim, present- suit
 PARTICULARS

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 o Court-name, jurisdiction
o Parties- name, minor
o Cause of action, relief
o Subject matter value, money, set off, immovable property
 REJECT
o No Cause of action, bar by law
o Under value, stamp
o Not duplicate, defendant copy

 WRITTEN STATEMENT
o Deals – plaint fact
 New facts, set off, counter claim
 FILED BY
o Defendant, agent, all
o Within 30, 90 or after

 SET-OFF
o Acknowledges plaint’s demand, another demand, counter balance
 ESSENTIALS
o Money, ascertained, legally, jurisidiction
 EQUITABLE SET-OFF
o Even unascertained, same transaction
 DIFF LEGAL AND EQUITABLE
o Ascertained, transaction
o Right, time bar

 COUNTER CLAIM
o In suit by plaintiff, claim by defendant, independent separate
o Avoid multiple
o Filed by def-against plaintiff, co-def
 Before delivery of defence
 DIFF BETWEEN SET OFF AND COUNTER CLAIM

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 o Defence-offence
o Cross action
o Ascertain, same transaction
o Amount recoverable at-suit date, written statement

 EX PARTE DECREE
o Absence of defendant
o Summons served, plaintiff appear, defendant not appear
o Court hear, pass decree
 SET ASIDE
o Summons not duly served, prevented from appearing
 REMEDIES AGNST. EX PARTE
o Set aside, appeal, review, revision, fraud

 TEMPORARY INJUNCTION
o Order, remedy
o Address, particular person- prohibit, carry on
 GROUNDS
o Property in danger
o Defendant- dispose property, dispossess plaintiff, breach contract
 PRINCIPLES
o Prima facie, irreparable injury, balance of convenience

 APPEAL
o Proceeding by aggrieved in superior
o Against decision of inferior
o Not right unless law provides
 FORM

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 o Memorandum – grounds of objection
o With judgment copy
 DIFFERENCE BETWEEN Ist APPEAL AND IInd APPEAL
o Against jurisdiction, appealable, High Court, Question of law, 30 90

 REFERENCE
o Subordinate refer to High Court
o For opinion on Q of law
 GROUNDS
o Satisfied Q of law- disposal, ultra vires, validity
o Reasonable doubt

 REVIEW
o Same court , re exam
 GROUNDS
o No appeal, not prefer appeal, new evidence, error apparent, other
 DIFFERENCE – REFERENCE & REVIEW
o Court refer, HC, pending

 REVISION
o HC correct error of Subordinate
o Jurisdiction not act illegal
 FILED BY
o Aggrieved, suo motu
 CONDITIONS
o Subordinate, decided, no appeal
o Juris- no, fail, illegal
 DIFFERENCE- REVISION & REVIEW
o HC, suo motu,, appeal , jurisidicitonal

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  RESTITUTION
o Erroneous decree, reversal
o Unjust benefit, return

 CAVEAT
o Suit, application, claim right to appear on hearing- lodge caveat
 PURPOSE
o Heard, multiple
 RIGHTS
o Application-notice

 INHERENT POWERS OF CIVIL COURT

o Unforeseen cases, code powers –addition
o For full justice
o Joint trial, ex parte set aside, temporary injunction
 LIMITATIONS
o Only absence of specific
o No express provision, remedy, conflict
o Jurisdiction

 SALIENT FEATURES OF LIMITATION ACT

o Exhaustive, adjective, civil, retrospective
o Suits,appeal,application

 LIMITATION BARS THE REMEDY NOT THE RIGHT

 S.3
o After prescribed period- dismissed
o Bar remedy, not right

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 o Moral obligation
o Pay time barred debt
 EXCEPTION
o Adverse possession

 EFFECT OF FRAUD , MISTAKE

o Period will start after fraud, mistake is discovered
o Prevent execution- discovery, 1 year

 ACKNOWLEDGE LIABILITY
o Before expiry of period, written signed, fresh period

 SUFFICIENT CAUSE
o Satisfy court
o Appeal, application- not suit, plaint
 EXAMPLES
o Wrong- practice (HC), advice (advocate)
o Mistake- (Counsel), of law
o Prison, ill, father
o Time to obtain copy
o File not available- state counsel – No ground

 LEGAL DISABILITY
o If disabled at the time of Cause of Action- No limitation
o File within 3 years- whn disability ceases

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 o Minor, insane, idiot- cease
o Two disabilities- both cease
o Death during- legal representatives
o Death after ceased- legal rep
o Legal rep disability- his ceases

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 THANK YOU !!!
AND GOOD LUCK 

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