Civil law and Procedure

Dr Tin May Htun

Professor and Head of Department
Law department, YUDE
- CIVIL (not criminal)
- LAW
- PROCEDURE (not substantive)
- 158 Sections and 58 Orders
- Appendices A to H and Schedules II to V.
-Substantive laws (e.g. tort, contract, property) =
are the part of the law that creates, defines, and
regulates the rights, duties, and powers of parties

- Lawsuit = A proceeding in a civil court

between two private parties in a court of law
The CPC is composed of two parts
First part: Dividend into 158 Sections.
Can be amended by the legislature only.

Second Part: Divided into 51 Orders and

Rules. Can be amended by Supreme Court.

The Orders and Rules are to be read along with

the Sections. When there is ambiguity in
interpretation between the two, the version of
the Sections prevails.
CHAPTER I

Civil procedure
- concerns the enforcement of a Civil Claim
- through Private action
- before a Court of law.

For example, in a Trespass case

- Rules of Civil Procedure will be applied
- how the Plaint must be written
- what Laws will be applied to decide if the plaintiff was
defamed
- what Type of Evidence can be used.
•Purpose of civil procedure = the just and
efficient decision of disputes
•Notice must be given to an individual being
sued
• There must be an opportunity to respond
• Under the Civil Procedure Rules
• Civil lawsuit involves disputes between two
individuals, groups or
corporations/organizations called = Parties
• Party suing = Plaintiff
• Party being sued = Defendant
Parties are called litigants
• If group of people are separately harmed by
defendant’s actions, they may sue together in
one case called a Class Action Lawsuit, Class
Suit, or Representative Action
• Process of suing = Litigation
• Litigation is the action
•A plaint
•A notification to the defendant = he or she
is being sued and for what reason, why the
court has jurisdiction
•stating a cause of action why the plaintiff is
entitled to recovery
• specifying a remedy
•The formal notification of the defendant
•A summons: a notice informing the person
that a lawsuit has been filed and that he/she
should appear in court at a certain time.
• often delivered by the local Bailiff
• can sometimes be difficult to deliver that
defendant may hide
Civil law deals largely with private rights and
obligations. These include:
• Contractual rights
• Property rights
• Torts (civil wrongs)
• Divorce
• Custody
• Main areas of civil law:
• contract law / tort law / family law / law of
employment / company law
• A notice of claim is a document filed by the
plaintiff that includes:
– Defendant’s full name and address
– Reasons why plaintiff is suing
– Amount he/she is claiming

• Plaintiff is charged a small fee for filing a

notice of claim for case, but can add costs to
amount of claim
• A summons delivered to defendant
• Although sheriffs or bailiffs deliver summons
to defendants, nowadays the plaintiff is
responsible for delivery
• Upon receipt of summons, defendant has
options:
– Agree to pay full amount
– Pay partial amount (plaintiff chooses whether to
accept)
– Prepares statement of defence
– Make a counterclaim
– Seek a third party claim
– No response – default judgement
• If defendant, upon receipt of summons,
believes that plaintiff is actually at fault, will
file a counterclaim
• This document must be related to situation
outlined in original claim out of which dispute
originates
• Similar to summons, a counterclaim must
detail reasons for, along with amount suing for
• Defendant brings in third party in event that
he/she believes that dispute was caused by such
party either partially or fully
• This occurs when defendant does not respond
to summons within timeframe
• Court then automatically finds plaintiff to have
won the action/claim and will order for
amount listed in summons by plaintiff if a debt
• If not a debt, court will hold a default hearing
to determine award
• Questioning is similar to criminal procedure
• Witnesses are called to the stand and
examined, cross-examined
• Onus is on the plaintiff to prove the case
• MINORS (under 18)

• Persons under the age of majority cannot sue or be

sued in their own name.
• A minor who wishes to sue must be represented
by an adult, known as a next friend.
• If an infant or a person “under a disability” is
sued, the court will appoint a guardian or adult,
usually parent to act as the minor’s representative.
This person is also known as a guardian.
•The defendant’s written statement
• Responding to the plaint
• Failure to respond = default judgment which
is a victory for the plaintiff
• Common responses = denial, affirmative
defense, or counterclaim
•The plaint and the answer together
make up the pleadings
•Pleadings are the first documents filed
with the court in a case, in which the
parties plead their claims and defenses.
•The formal written statements about a
case
• The pleadings can be amended
during the course of a lawsuit as new
information becomes available
CHAPTER VI
•The court’s official decision in a lawsuit = a
judgment, court order, or decree
• If a defendant does not voluntarily comply
with a judgment = the plaintiff must take
further steps
• permission to seize property
• garnish wages
CHAPTER I
Code includes Rules
Judgment = The statement given by the judge of the
grounds of a decree or order
Decree-holder = Any person in whose favour a decree
has been passed
Judgment-debtor = Any person against whom a
decree has been passed
Judgment And Decree = The Court, after the case has
been heard, shall pronounce judgment, and on such
judgment a decree shall follow
JUDICIAL PROCESS involves
- A right claimed or a wrong complained by one
party against the other.
- Hearing of the parties by the Court.
- Judgment of the Court delivered at the end of
the trial.
- Execution of the operative part of the judgment.
LEVEL

At Union level – Supreme Court of the Union

At Region or State level – High Court

At District and Subordinate level – District, Courts

of Self-Administered Division or Zone, and
Township Court (Civil and Criminal)
No Court shall proceed with the trial of any suit in which the matter in
issue is also directly and substantially in a previously instituted suit.
But these suits must between the same parties or parties under whom
they or any of them claim, litigating under the same title, and where
such suit is pending in the same Court or any other Court having
jurisdiction.(CPC, Sec.10)

No court shall try any suit or issue in which the matter directly and
substantially in issue has been directly in issue in a former suit between
the same parties, litigating same title in the Court such issue has been
heard and nally decided.(CPC, Sec.11)

Where a plaintiff is precluded by rules from instituting a further suit in

respect of any particular cause of action, he shall not be entitled to
institute a suit for such cause of action.(CPC, Sec.12)
The jurisdiction of Courts is its authority to decide matters that
are litigated before it. Generally, Myanmar Courts have
jurisdiction to try all civil suits against all persons (whether
local or foreign)within Myanmar, other than foreign sovereign.
The appropriate Court in which commence proceedings in
Myanmar is dependent upon the type and value of the claims
and, perhaps, the location of the parties or the place the busi-
ness is or act in question was carried on.
Therefore, the Court firstly scrutinizes the
place of suing whether it can be commenced under the
jurisdiction of the Court or not. Every suit shall be instituted in
the Court of the lowest grade competent to try it and
where subject matter situates.(CPC, Sec. 15)
Subject to the pecuniary or other limitations prescribed by any
law, suits for immovable property shall be instituted where
subject matter situated.(CPC, Sec.16)
In case of immoveable property situate within the jurisdiction of
different Courts, the suit may be instituted in any Court within
the local limits of whose jurisdiction any portion of the property
is situate(CPC, Sec. 17).
However, where it is alleged to be uncertain within the local
limits of the jurisdiction of which of two or more Courts any
immoveable property is situate, any one of those Courts may, if
satis ed that there is ground for the alleged uncertainty, record a
state- ment to that effect and thereupon proceed to entertain and
dispose of any suit relating to that property(CPC, Sec. 18).
Where a suit is for compensation for wrong done to the person
or to moveable prop- erty, if the wrong was done within the
local limits of the jurisdiction of one Court, and the defendant
resides, or carries on business, or personally works for gain
within the lo- cal limits of the jurisdiction of another Court, the
suit may be instituted at the option of the plaintiff on either or
the said Courts(CPC, Sec.19).

Other suits shall be instituted in a Court where defendants

reside or cause of action arises(CPC, Sec.20).
The Supreme Court of the Union confers the pecuniary
jurisdiction to subordinate Courts from time to time by
Directives. To solve the over-loading civil suits in High Courts
and District Courts, the Supreme Court amended the pecuniary
jurisdiction of the Courts in 2011. At present, the Township
Courts are conferred jurisdiction to try the original civil suits
of the value of not more than Ten million Kyats(Myanmar
curren- cy). Courts of Self-Administered Division or Zone and
District Courts are conferred jurisdiction to try the original
civil suits of the value of not more than ve hundred mil- lion
Kyats. However, the pecuniary jurisdiction of High Courts of
Region or State is not limited and High Courts can try any
original civil suits of the value more than ve hundred million
Kyats.
According to Union Judiciary Law, the Supreme Court has also
original civil jurisdiction in matters arising out of bilateral
treaties concluded by the Union, other disputes between the
Union of Government and the Region or State Government,
among the States, between the Region and the State and
between the Union Territory and the Region or the State except
the Constitutional problems, other disputes among the regions
and cases prescribed by any law.
Civil suits are led in Courts having proper jurisdiction, that is
to say, territorial or local, pecuniary, subject matter and
personal jurisdiction. A civil suit is instituted by submitting
plaint in the Court of the lowest grade competent to try it.

The plaint must comply with the requirements set out under
Order 6 and 7 of the Civil Procedure Code. Every plaint shall
contain the name of Court, description and place of residence
of the plaintiff and the defendant, the statement of where the
plain- tiff or defendant is a minor or a person of unsound
mind, cause of action, jurisdiction, the relief claimed by
plaintiff,(if any)set-off or relinquished amount, value of the
subject-matter of the suit(CPC, Or.7, R.1).
In money suit, the plaint shall state the precise amount
claimed(CPC, Or.7, R.2). Where the subject-matter of the suit
is immovable property, a description of the property suffcient
to identify shall be contained in the plaint(CPC, Or.7, R.3).
Moreover, the plaint shall show interest of the plaintiff and
defendant, grounds of exemption from limitation law,
alternative relief, separate and distinct grounds for claims(if
any)
(CPC, Or.7, R.4, 5, 6, 7 and 8).
The Court shall return to be presented to the Court in which
the suit should have been instituted(CPC, Or.7, R.10). The
Court shall reject the plaint where it does not disclose a cause
of action, the relief claimed is undervalued, insufficiently
stamped plaint, statement to be barred by any law(CPC, Or.7,
R.11).
Filing written statement by defendants
When received the summons, the defendant shall come to the
Court and le his writ- ten statement if he wants to deny the
allegation made in the plaint or admit them.
The defendant may present a written statement of his defence at
or before the rst hearing or within such time as the Court
permits(CPC, Or.8, R.1). The defendant must raise all matters
which show the suit not to be maintainable and all grounds of
defence
(CPC, Or.8, R.2). Denial in written statement must be speci c for
each allegation of fact which he does not admit(CPC, Or.8, R.3).
Every allegation of fact in the plaint shall be taken to be admitted
if the defendant does not deny speci cally in the written
statement(CPC, Or.8, R.5). In a suit for the recovery of money the
defendant may claim to set-off against the plaintiff’s demand any
ascertained sum of money(CPC, Or.8, R.6).
When party fail to present written statement within the time xed
by the Court, the Court may pronounce judgment against him or
make an order as it think (CPC, Or.8, R.10).
At the first hearing of the suit, the Court shall, after reading the
plaint and the written statement.

Set Off

Where in a suit for recoveryof money by the plaintiff, the

defendant finds that he also has a claim of some amount against
the plaintiff, he can claim a set-off in respect of the said amount.
The right of the defendant to claim set off has been recognised
under Order 8, Rule 6 of the Code.
Essential Conditions :A defendant may claim a set-
off, if the following conditions are satisfied:(a) The
suit is for the recovery
of money;(b) The sum of money must be
ascertained;(c) Such sum must be
legally recoverable;(d) It must be
recoverable by the defendant or by all the
defendants, if not more than one;(e) It must be
recoverable by the defendant from the
plaintiff(s);(f) It must not exceed the pecuniary
jurisdiction of the court in which the suit is brought;
(g) Both the parties must fill in the defendant’s claim
to set-off, the same character as they fill in the
plaintiff’s suit.
When a defendant pleads set-off, he is put in the
position of the plaintiff as regards the amount
claimed by him.
Where the plaintiff does not appear and his suit is
dismissed for default or he withdraws his suit and
his suit is dismissed, it does not affect
the claim for a set-off by the defendant and a
Decree may be passed in his favour if he is able to
prove his claim
Judgment and Decree
After hearing the suit and final argument by both of parties or
their pleaders(if any), the Court shall pronounce judgment in
open Court either at once or some future day of which due
notice shall be given to the parties or the pleaders.
On such judgment a decree shall follow(CPC, Sec.33 and
Or.20, R.1).
Decrees may differ according to the nature of the suits.
There are also different judgments passed under different
conditions like: judgment on admission by party, judgment by
consent, declaratory judgment and judgment by default.
Judgment is the statement given by the judge of the grounds
of a decree or order (CPC, Sec. 2(9)).
Decree means formal expression of an adjudication which, so
far as regards the court expressing it, conclusively determines
the rights of the parties with regard to all or any of the matters
in controversy in the suit and may be either preliminary or
final.
It shall be deemed to include the rejection of a plaint and the
determination of any question arising between the parties. But
any adjudication from which an appeal lies as an appeal from
an order and any order of dismissal for default(CPC,
Sec. 2(2)).
Therefore judgment shall contain a concise statement of the
case, the points for determination, the decision thereon, and
the reasons for such decision(CPC, Or.20. R.4 (2)).
The decree shall agree with the judgment and shall contain the
number of suit, the names and descriptions of the parties, and
particulars of the claim, and shall specify clearly the relief
granted or other determination of the suit.

It shall also state the amount of costs incurred in the suit, and
by whom or out of what property and in what portions such
costs are to be paid.

The court may direct that the costs payable to one party by the
other shall be set off any sum which is admitted or found to be
due from the former to the latter(CPC, Or.20, R.6).
Union Judiciary Law 2010

Supreme Court of the Union

Original Jurisdiction.

Appeal Jurisdiction

Writ jurisdiction
Original Jurisdiction
Union Judiciary Law Sec.63

Self-administer Zone Judge or District Judge

= 500,000,000

Deputy District Judge = 100,000,000

Township Judge = 10,000,000
Associated Township Judge = 10,000,000
Deputy Township Judge = 3,000,000
Summons = a notice to the defendant that he is
being sued and to command him to appear and
defend himself

Interpleader Suit = Two or more claimants are

making competing claims on the same
Counterclaim = If defendant, upon receipt of
summons, believes that plaintiff is actually at fault,
will file a
This document must be related to situation
outlined in original claim out of which dispute
originates
Similar to Summons, a counterclaim must detail
reasons for, along with amount suing for
Constitutional provision for civil appeals

According to Section 19(c) and 295(b) of the

Constitution of 2008, and

Section 12 of Union Judiciary law 2010 an

appeal shall lie to the Union Supreme Court
from any judgment, decree or final order in a
civil proceedings of Region or State High
Courts of Region or State or other courts.
 1. Institution of Suit or Proceedings 2. Plaint

5.Filing of Other
Documents 4. Replication by Plaintiff 3. Written statement

7. List of Witness 8. Final Hearing

6. Framing of Issue

12. Certified Copy of Order 9. Argument

11.Decree 10. Judgment

14. Appeal, Reference,

13. Execution of Decree 15. Limitation
Review
Court-fees
For institution of original civil suit, pay of suf cient Court-fees
and litigation within the time of limitation are also essential.
Subject- matter of the suit must be valued for Court-fees and
suf ciently stamped. The Court-Fees Act provides xed court-
fees and Court-fee payable in suit value. All fees referred or
chargeable under the Act shall be collected by stamps(The
Court-Fees Act, Sec.25).
Limitation of actions

Prescriptive period of limitation for various actions and

application is governed by the Limitation Act.
For different types of suits and application, the period of
limitation and time from which period begins to run are
prescribed in the Act.
Every suit instituted after the period of limitation prescribed in
the Act shall be dismissed, although limitation has not been
set up as a defence (The Limitation Act, Sec.3).
CHAPTER I PRELIMINARY, SUIT IN GENERAL,
PLACE OF SUING

1.0 Section (2) Definitions

1.1 Preliminary Decree
1.2 Final Decree
1.3 Illustration of a Preliminary and Final Decree
1.4 The effect of not Appealing From a preliminary decree
1.5 Jurisdiction in General
1.6 Classification of Jurisdiction
1.7 Jurisdiction
1.8 Section(10)Stay of Suits
1.9 Section (11) Res Judicata
1.10 Essential Conditions of Res judicata
1.11 Place of Suing
CHAPTER II INSTITUTION OF SUITS,
SUMMONS AND DISCOVERY

2.0 Section 26
2.1 Parties to Suits
2.2 Frame of Suit
2.3 Recognized Agents and Pleaders
2.4 Institution of Suits
2.5 Issue and service of Summons To Defendant
CHAPTER III PLEADINGS GENERALLY, PLAINT,
WRITTEN STATEMENT, SET-OFF
AND APPEARANCE OF PARTIES
AND CONSEQUENCES OF NON-
APPEARANCE
3.0 Pleadings generally
3.1 Plaint
3.2 written Statement
3.3 Rule 6 Set-off
3.4 Appearance of Parties Consequences of Non-
Appearance
 CHAPTER I

PRELIMINARY, SUIT IN GENERAL,

PLACE OF SUING

1.0 Section (2) Definitions

1.1 Preliminary Decree

1.2 Final Decree

1.3 Illustration of a Preliminary and Final Decree

1.4 The effect of not Appealing From a preliminary decree

1.5 Jurisdiction in General

1.6 Classification of Jurisdiction

1.7 Jurisdiction

1.8 Section(10)Stay of Suits

1.9 Section (11) Res Judicata

1.10 Essential Conditions of Res judicata

1.11 Place of Suing

Key Terms
 2

CHAPTER I

(၁)

PRELIMINARY, SUIT IN GENERAL, PLACE OF

SUING

1.0 Civil Procedure Code, Section (2) Definitions

( )

(1) “Code” includes rules; Section 2(1)

(၁)

(2) “ Decree” means the formal expression of an

adjudication which, so far as regards the court expressing it ,

conclusively determines the rights of the parties with regard to

all or any of the matters in controversy in the suit and may be

either preliminary or final. It shall be deemed to include the

rejection of a plaint and the determination of any question within

section 47 or section144, but shall not include-

(a)any adjudication from which an appeal lies as an

appeal from an order, or

(b)any order of dismissal for default.

 3

Explanation-A decree is preliminary when further

proceedings have to be taken before the suit can be

completely disposed of. It is final when such

adjudication completely disposes of the suit. It may be

partly preliminary and partly final. ; Section 2(2)

( ) ၍

( )

( )

( )
 4

1.1 Preliminary Decree ( )

A Preliminary Decree - is one in which further proceeding

have to be taken before the suit can be completely disposed of.

1.2 Final Decree ( )

It is final when such adjudication completely dispose of the

suit.

1.3 Illustration Of A Preliminary and Final Decree

A suit is brought by one partner against another for

dissolution of partnership and for taking partnership accounts .

The court may pass a preliminary decree declaring the

proportionate shares of the parties and directing accounts to be

taken. It may then pass a final decree directing payment of debts

due by the partnership and directing payment to if the parties of

the amounts due to them on the taking of accounts.

 5

A preliminary decree may be passed in suit for: -

(1) Recovery of possession of immovable property and for rent,

(Or. 20 r .12).

( ၁ )

(2) Administration of a deceased’s estate , (Or . 20 r .13).

( ၁၃)

(3) Pre - emption ( Or . 20 r . 14 ).

( ၁ )

(4) Dissolution of Partnership ( Or . 20 r . 15 ).

( ၁၅)

(5) Account between Principal and agent (Or . 20 r . 16 ).

( ၁၆)

(6) Partition (Or . 20 r . 18 )

 6

၁၈)

(7) Foreclosure. (Or . 34, r . 2-3 )

( ၃ -၃)

(8) Sale . (Or . 34, r . 4-5) and

( ၃ -၅)

(9) Redemption of immovable property ( Or . 34 , r .2-8).

( ၃

-၈)

1.4 The effect of not appealing from a preliminary decree

When any party aggrieved by a preliminary decree does not

appeal therefrom, he shall be precluded form disputing its

correctness in any appeal which may be preferred form the final

decree.
 7

“Decree - Holder ’’ means any person in whose favour a

decree has been passed or an order capable of execution has

been made; Section 2(3)

“District” means the Local Limits of the jurisdiction of a

principal Court of original civil jurisdiction (hereinafter called a

“District Court’’) and includes the Local Limits of the ordinar y

original civil jurisdiction of the Self-administered Division of a

Court of the Self-administered Zone; )Section 2(4)

“Civil Court ”means a Court of civil jurisdiction.”Section 2(4)(a)

''

( )

“Foreign Court” means a Court situates beyond the limits

of the Republic of the Union of Myanmar which has no authority

in the Republic of the Union of Myanmar and is not established

or continued by the President of the Union;Section 2(5)

"
 8

“ Foreign judgment means judgment of a foreign Court;

Section 2(6).

“Judge ’’means the presiding officer of a civil Court ;

Section 2(8).

“ Judgment” means the statement given by the judge of the

grounds of a decree or order; Section 2(9).

“Decree” and “Judgment” distinguished . –

A decree is to be distinguished from a judgment. A decree

is a thing to be executed, a judgment is merely a record of the

reasons on which the decree is based.

 9

"Judgment - Debtor" means any person against whom a

decree has been passed or an order capable of execution has been

made; Section 2(10).

"

"Legal representative" means a person who in Law

represents the estate of a deceased person, and includes any

person who intermeddles with the estate of the deceased and

where a party sues or is sued in a representative character the

person on whom the estate devolves on the death of the party so

suing or sued; Section 2(11).

"

န်

In its strict sense the term “Legal representative” would

mean executors and administrators and heir. But S .2 (11) has

 10

extended the term beyond its ordinary meaning . It now includes

any person who in law represents the estate of deceased person.

ဓိ ပ ္ပ ါ ယ်

မှ ာ သေ တမ် း စာအရသောာ်် ရ က ် ် ပ ိ ု ် ် ခ က ် ့ ် ရ ှ ိ ေ ူ ၊ အသမက ထ ိ န ် း နှ ် ့ ် အသမက စ ားအသမက ခ ံ

်ိ ု ော ိ ု လ ိ ု ေ ည် ။ ေိ ု ့သော် ပ ု ဒ ် မ ၂(၁၁)ေည် ောမန် အ ဓိ ပ ္ပ ါ ယ် ထ ်် သ်ျော် သ ော

စ်ားရပ် ဖ ြစ် ေ ည် ။ တရားဝ်် ် ိ ု ယ ် စ ားလှ ယ ် ော ိ ု ေ ည် မ ှ ာ သေောု ံ း ေူ ၏ ်ျေန်

ရှ ိသ ောပစ္စ ည ် း ်ိ ု ဥပသဒအရ်ိ ု ယ ် စားဖပုေူ တ စ် သ ယာ်် ပါဝ်် ေ ည် ။

Even a stranger who intermeddle with, or who is in

possession of the estate of the deceased would be his Legal

representative . In the case of insolvent judgment -debtor the

official assignee is his Legal representative.

တရားဝ်် ် ိ ု ယ ်

စားလှ ယ ် တရားဝ်် ် ိ ု ယ ် စ ားလှ ယ ် ဖ ြစ်

ေည် ။

“Mesne profits” of property means those profits which the

person in wrongful possession of such property actually

received or might with ordinary diligence have received

therefrom, together with interest on such profits, but shall not

include profits due to improvements made by the person in

wrongful possession ; Section 2(12).

 11

"

In order to get mesne profits of property, the plaintiff will

have to show-

(a) that the defendant was in possession during the whole

of the period for which the mesne profits are demanded, and

(b) that the possession of the defendant was wrongful and

was not under colour of any right .

“moveable property”includes growing crops; Section 2(13).

“Order” means the formal expression of any decision of

civil Court which is not a decree; Section 2(14).

 12

" ၍

Decree and Order distinguished -

Both a decree and an order are adjudications by the Civil

Court; and both relate to matter in controversy. But the

following are the points of distinction between the two -

(a)A decree is an adjudication which conclusively determines

the rights of the parties with regard to any or all matters in

controversy; an order on the rights of parties.

( ) ( )

( )

(b) A decree can only originate from a suit, i.e; a proceeding

commenced by a plaint.An order may originate a from a suit as

well as from any other proceeding commenced by an application.

 13

( )

(c) Except in certain suits where two decrees ( one preliminary

and other final ) are passed , in every suit there is one decree ,

while many orders may be passed in a suit .

( )

(d) While appealability is a rule and non appealablity is the

exception in the case of a decree, in the case of an order non -

appeal ability is the rule, and appealability is the exception.

(ဃ)

(e)While in the case of a decree a person aggrieved has the

rightof second in an appealable order, he has not that right.

( )
 14

(f)In actual practice only a decree is drawn up in a formal

document separate from the judgment; but not so in the c ase of

an order .

( )

1.5 Jurisdiction In General

Jurisdiction in a wide sense means the extent of the power

of the Court to entertain suits, appeals and applications .The

jurisdiction of a Court may be original or appellate. In the

exercise of its original jurisdiction a Court entertains original

suits. In the exercise of its appellate jurisdiction, it hears appeals

from decree passed by subordinate Courts.

 15

In its technical sense jurisdiction means the extent of the

authority of a court to administer justice not only with reference

to the subject -matter of the suit but also to the local and

pecuniary limits of its jurisdiction .

1.6 Classification Of Jurisdiction

In generally classification, there are (4) kinds of jurisdiction .

( )

1.7 Jurisdiction

(1)Territorial Jurisdiction

The Court shall not try a suit for immovable property

situated beyond certain local limits prescribed as the l imits of its

jurisdiction is an example of territorial jurisdiction.

 16

(2)Pecuniary Jurisdiction

If the Court has jurisdiction to try suits in which the

amount or value of the subject - matter is 50, 00 0 Kyats only.

That court has no jurisdiction beyond the amount or value of Ks

50,000.

(3)Personal Jurisdiction

e.g . - Head of states and Diplomats are not to be sued in

Civil Courts .

(4)Subject - Matter Jurisdiction

This jurisdiction depends on the nature of the suit.

e . g . - Dissolution of Christian marriage.

-
 17

Section (6) Pecuniary Jurisdiction

-၆

Save in so far as is otherwise expressly provided, nothing

herein contained shall operate to give any court jurisdiction over

suits the amount or value of the subject - matter of which

exceeds the pecuniary limits (if any) of its ordinary jurisdiction .

Section (9) Courts to try all civil suits unless barred

The courts shall ( subject to the provisions herein

contained) have jurisdiction to try all suits of a civil nature

excepting suits of which their cognizance is either expressly or

impliedly barred .
 18

Pecuniary Jurisdiction of Civil Courts at present

The Supreme Court of the Union has vested increased

judicial powers to the Courts of the Self-Administered Division,

Courts of the Self-Administered Zone, District Courts and

Township Courts in disposal of the civil regular cases under

section 64 of the Union judiciary Law 2011 regarding the

administration of justice .

၁၁ ၆

According to the Notification No 101/2011 of the Supreme

Court of the Union, the Township Judges and Additional

Township Judges can dispose of cases with suit values not more

than Ks 100,00,000. The Deputy Judges can dispose of cases

with suit values not more than Ks.30,00,000.

 19

၁ ၁/

၁၁

By the Notification No-100/2011 of the Supreme court of

the Union, Self-Administered Division Judges, Self-

Administered Zone Judges, District Judges can dispose of cases

with suit-value not more than Ks.5000,00,000 and Deputy

District Judges can dispose of cases not more than Ks,

1000,00,000.

၁ / ၁၁

1.8 Section (10 ) Stay Of Suits

-၁
 20

“ No court shall proceed with the trial of any suit in which

the matter in issue is also directly and substantially in issue in a

previously instituted suit between the same parties, or between

parties under whom they or any of them claim, litigating under

the same title , where such suit is pending in the same or any

other Court in the Republic of the Union of Myanmar having

Jurisdiction to grant the relief claimed or before ( the Supreme

Court ) .

Explanation :- The pendency of a suit in a foreign Court

does not preclude the Courts in the Republic of the Union of

Myanmar from trying suit founded on the same cause of action.

b
 21

Scope and Object Of The Section

It is to prevent courts of concurrent jurisdiction from

simultaneously entertaining and adjudication upon two parallel

litigation in respect of the same cause of action, the same subject

- matter and the same relief .

To apply the section, the following conditions must be satisfied

(1) The matter in issue in both suits must be substantially the

same.

(2) The previously instituted must be pending , The date of

presentation of plaint and not the date of its admission is the

date of institution .
 22

(3) Both the suit must be between the same parties or their

representative .

(4) Such parties must be litigating in both the suits under the

same title .

It may be noted that the section only bars the trial and not

the institution of the suit. When all these conditions are

satisfied, the Later suit must be stayed. A Court cannot dismiss

a suit under the section, but only postpone its tri al .

Ruling :- In Daw Khin Ni Vs. Daw Aye Lon Case (1966 B.L.R

P 78) Judge decided that the aboved mentioned section

10 of civil procedure code .

Held : -

“ This case is the case from the township court of civil

regular suit No. 350 of 1964, where the defendant first filed a
 23

suit against the plaintiff seeking a decree for declaration t hat she

is a Legitimate wife of her late husband Man Ba Khine who is a

Karen Christian and claiming to draw a pension and to prohibit

the plaintiff’s application . As the issues and the parties in the

two cases are the same, both the Yangon City Civil Court and

the present Court have the same jurisdiction to try the suit, the

stay of suit under section 10 of Civil Procedure Court is

allowed”.

( )

၃၅

( ၁၉၆ )

၃၅

၍ ၁ "
 24

၁၉၆၅ ၃

1.9 Section (11) Res Judicata

၁၁

“No court shall try any suit or issue in which the matter

directly and substantially in issue has been (a) directly and

substantially in issue in a former suit (b) between the same

parties , or between parties under whom they or any of them

claim, (c) Litigating under the same title, (d) in a Court

competent to try such subsequent suit or the suit in which such

issue has been subsequent raised, and (e) has been heard a nd

finally decided by such Court .

၍
 25

Explanation (1) :The expression “ former suit ’’shall

denote a suit which has been decided prior to the suit in question

whether or not it was instituted prior thereto.

(၁)

Explanation (2):- For the purpose of this section , the

competence of a Court shall be determined irrespective of any

provisions as to a right of appeal from the decision of such Court

. ( )

Explanation (3):-The matter above referred to must in the

former suit have been alleged by one party and either denied or

admitted , expressly or impliedly , by the other.

(၃)

Explanation (4):-Any matter which might and ought to have

been made ground of defence or attack in such former suit shall

 26

be deemed to have been a matter directly and substantially in

issue in such suit .

( )

Explanation (5):- Any relief claimed in the plaint which

is not expressly granted by the decree, shall, for the purpose of

this section, be deemed to have been refused.

(၅)

Explanation (6):-Where person litigate bona fide in respect

of a public right or of a private right claimed in common for

themselves and others, all person interested in such right shall ,

for the purposes of this section , be deemed to claim under the

persons so litigating .

(၆)

Principle and Scope

Section ll embodies the doctrine of res-judicata which rests

on the principle that one should not be vexed twice for the same
 27

cause and that there should be finality to litigation stated in a

simple form, where there has been an executable judgment

between the parties. The rule of res-judicata will prevent a fresh

suit between them for the same relief. The rule is intended not

only to prevent a new investigation so that the same person

cannot be harassed again and again in various proceedings upon

the same question.

၁၁

၌ ၍
 28

1.10 Essential Conditions Of Resjudicata

The following conditions are essential to constitute a bar of

res judicata-

(1)The matter directly and substantially in issue in the

subsequent suit or issue must be the same matter which was

directly and substantially in issue either actually and

constructively in the former suit.

(၁)

( )

(2)The former suit must have been a suit between the same

parties or between parties under whom they or any of them

claim.

( )

( )

(3)The parties must have litigated under the same title in the

former suit.
 29

(၃)

(4)The court which decided the former suit must have been a

court competent to be the subsequent suit or the suit in which

such issue is subsequently tried.

( )

(5)The matter directly and substantially in issue in the

subsequent suit must have been heard and finally decided by the

Court in the first suit.

(၅)

A case is Mg Ba Thein Vs. Ma Than Myint, (5 Ran 565) In

that case the court held that-

“where a previous claim as a Kittima child has been

adjudicated upon, a subsequent claim as an ‘apatitha’ is barred

under the provisions of section 11, Explanation VI of the Civil

Procedure Code”.

" (

)
 30

၍ ( )

(၁၁) (၆)

Section (10) and Section (11) Distinguished

Section 10 relates to matter which is pending judiciary

inquiry and section 11 relates to matter already adjudicated

upon-matter in which judgment is already pronounced.

Section 10 bars to trial of a suit, where as section 11 bars to

the trial of a suit or an issue.

၁ ၁၁

၁၁ ၍

Section (12) Bar To Further Suit

“Where a plaintiff is precluded by rules from instituting a

further suit in respect of any particular cause of action, he shall

not be entitled to institute a suit in respect of such cause of

action in any Court to which this Code applies”

 31

၁ ၍

The following are the provisions precluding institution of a

further or fresh suit in respect of the same cause of action: -

(1) Omission to sue for the entire claim bars a suit for

the portion of the claim so omitted; (or . 2 r.2 )

၍ ( )

(2) Where the defendant appears and the plaintiff does

not appear when the suit is called for hearing, and

the defendant does not admit the plaintiff's claim,

the Court shall dismiss the suit, and, the plaintiff

shall be precluded from bringing a fresh suit in

respect of the same cause of action;(Or.9 r.8-9 )

 32

( ၉ ၈-၉)

(3) Where a suit abates or is dismissed owing to the

death or insolvency of the plaintiff or defendant,

no fresh shall be brought on the same cause of

action ( Or. 22. r –9 )

( ) ( )

( ၉)

Section (13) When foreign judgment not conclusive

၁၃

A foreign judgment shall be conclusive as to any matter

there by directly adjudicated upon between the same parties, or

between parties under whom they or any of them claim,

litigating under the same title, except-

 33

(a)Where it has not been pronounced by a Court of

competent jurisdiction;

( )

(b) Where it has not been given on the merits of the

case;

( )

(c)Where it appears on the face of the proceedings to

be founded on an incorrect view of international law

or a refusal to recognize the law of the Republic of the

Union of Myanmar in cases in which such law is

applicable;

( )

(d)Where the proceedings in which the judgment was

obtained are opposed to natural justice;

(ဃ)
 34

(e)Where it has been obtained by fraud,

( ) ၍

(f)Where it sustains a claim founded on a breach of any

law in force in the Republic of the Union of Myanmar.

( )

Section (14) Presumption as to Foreign Judgments

၁ ၍

The Court shall presume, upon the production of any

document purporting to be a certified copy of a foreign

judgment, that such judgment was pronounced by a Court of

competent jurisdiction, unless the contrary appears on the

record; but such presumption may be displaced by proving want

of jurisdiction.

၁
 35

1.11 Place Of Suing

Section (15) Court In Which Suits To Be Instituted

“Every suit shall be instituted in the Court of the

lowestgrade competent to try it”.

၁၅

Note:- It may be noted that where a suit which ought to

have been instituted in a lower Court is instituted in a Court of

higher grade, It is case of mere irregularity only not affecting the

jurisdiction of the Court.

Conversely, where a suit which ought to have been

instituted in a Court of higher grade is instituted in a Court of

lower grade, such Court shall return the plaint to the plaintiff to

be presented to the Court of higher grade ( Or. 7 r. 10 ).

 36

Section (16) Suits To Be Instituted Where Subject Matter

Situate

၁၆

Subject to the pecuniary or other limitations prescribed by

any law, suits-

(a)for the recovery of immoveable property with or without

rent (or) profit.

( )

(b)for the partition of immoveable property,

( )

(c)for foreclosure, sale or redemption in the case of a

mortgage of or charge upon immoveable property,

( )
 37

(d)for the determination of any other right to or interest in

immoveable property,

(ဃ)

(e) for compensation for wrong to immoveable property,

( )

(f) for the recovery of moveable property actually under

distraint or attachment,

( ) ( )

shall be instituted in the Court within the local limits of

whose jurisdiction the property is situate:

( )

Provided that a suit to obtain relief respecting, or

compensation for wrong to, immoveable property held by or on

behalf of the defendant may, where the relief sought can be

entirely obtained through his personal obedience, be instituted

either in the Court within the local limits of whose jurisdiction

the property is situate, or in the Court within the local limits of

 38

whose jurisdiction the defendant actually and voluntarily resi des

, or carries on business, or personally works for gain.

၌ ) (

Explanation:- In this section “ property ” means property

situate in the Republic of the Union of Myanmar.

Example:-(1) A suit for mense profits is a suit for profit

or benefit arising out of immoveable property and the suit is

governed by section 16 of the code of civil procedure. It can,

therefore, be instituted in the court within whose jurisdic tion the

property is situate or in the court within the local limits of whose

jurisdiction the defendant actually and voluntarily resides, of

carries on business, or personally works for gain.

 39

၁၆

Example(2) A suit for possession of house situate at X,

when the defendant resides at Y. At what place can be

instituted?

In this suit, the place of suing is under section 16 (a) ,

subject to the pecuniary or other limitations prescribed by any

law suits for recovery of immoveable property with or without

rent or profits shall be instituted in the court within the local

limits of whose jurisdiction the property is situate .The suit

should, therefore, be instituted in the court at X where the house

is situate.
 40

၁၆( )

Scope and Object Of The Section

This section deals with local territorial jurisdiction Suits

enumerated in clause (a) to (f ) must be instituted in the Co urt

within the local limits of whose jurisdiction the property is

situated.

( ) ( )

As a rule, therefore, Courts have no power to decide on

rights and interests in property lying outside their local

jurisdiction.
 41

Section 17. Suit for immoveable property situated within

jurisdiction of different Courts

where a suit is to obtain relief respecting, for compensation

for wrong to , immoveable property situate within t he

jurisdiction of different courts, the suit may be instituted in any

court within the local limits of whose jurisdiction any portion of

the property is situate,

provided that, in respect of the value of the subject matter

of the suit, the entire claim is cognizable by such court.

၁၇

Example-A suit for sale of mortgaged property where part of it is

situated at X, and the rest at Y, when the defendant resides at Z.In this

suit which place can be situated?

Y
 42

Section 17 lays down that where a suit is to obtain relief

respecting, for compensation for wrong to, immoveable property

situated within the jurisdiction of different courts, the suit may

be instituted in any court within the local limits of whose

jurisdiction any portion of the property is situated, provided that,

in respect of the value of the subject matter of the suit, the entire

claim is cognizable by such court. Accordingly the suit can be

instituted either at X or Y subject to the pecuniary limits of the

jurisdiction of such court. The entire claim must be cognizable

by the court in which the suit is filed. The residence of the

defendant for the purposes of the jurisdiction of the court is

immaterial.

( )
 43

Section (18)Place of institution of suit where local limits of

jurisdiction of Courts are uncertain.

၁၈

Where it is uncertain as to within whose jurisdiction of two

or more courts the immoveable property is situate, any one of

those courts may try the suit relating to that property after

recording statement as to uncertainty.

၁၈

၍
 44

Section (19) Suits for Compensation for Wrongs to Person Or

Moveables.

၁၉

“Where a suit is for compensation for wrong done to the

person or to moveable property, if the wrong was done within

the local limits of the jurisdiction of one Court, and the

defendant resides, or carries on business, or personally works for

gain within the local limits of the jurisdiction of another Court,

the suit may be instituted at the option of the plaintiff in either

of the said Courts.

၁၉

Illustrations

(a)A, residing in Mandalay, beats B in Yangon, B may sue A

either in Yangon or in Mandalay.

 45

( ) “ ” “ ”

၍ “ ”

(b)A, residing in Mandalay, publishes in Yangon statements

defamatory of B. B may sue A either in Yangon or in Mandalay.

( ) “ ”

” ”

example (1) A suit for a tort may be brought either where

the wrong was committed or where the defendant resides or

carries on business.

( ) ( )

example (2) A suit for damages for libel published by the

defendant at X when he resides at Y.

This suit can be instituted at either X where the libel was

published or at Y where the defendant resides, it being

 46

governed under S.19 which provides that where a suit is for

compensation for wrong done to the person or to moveable

property, if the wrong was done within the local limits of the

jurisdiction of one court and the defendant resides, carries on

business or personally works for gain, within the local limits of

the jurisdiction of another court, the suit may be instituted at the

option of the plaintiff in either of the said courts.

၁၉

Section (20)

Other suits to be instituted where defendants reside or

cause of action arises.

 47

Every subject to the limitation aforesaid, shall be instituted

in a Court within the local limits of whose jurisdiction -

(a)the defendant, or each of the defendants, where there are

more than one, at the time of the commencement of the suit,

actually and voluntarily resides or carries on business or

personally works for gain; or

( )

(b)any of the defendants, where there are more than one,

at the time of the commencement of the suit resides, or carries

on business, or personally works for gain as aforesaid, provided

that in such case either the leave of the court is given, or the

defendants who do not reside, or carry on business, or personally

work for gain, acquiesce in such institution; or

( )
 48

(c)the cause of action, wholly or in part, arises

( )

Explanation:- (1) Where a person has a permanent

dwelling at one place and also a temporary residence at another

place, he shall be deemed to reside at both places in respect of

any cause of action arising at the place where he has such

temporary residence.

(၁)

၍
 49

Explanation:- (2) A corporation shall be deemed to carry

on business at its sole or principal office in the Republic of the

Union of Myanmar or , in respect of any cause of action arising

at any place where it has also a subordinate office, at such place.

( ) ( )

Illustrations

(1)A is a tradesman in Yangon. B carries on business in

Mandalay . B by his agent in Yangon buys goods of A and

requests A to deliver them to the Burma Railways. A delivers the

goods accordingly in Yangon. A may sue B for the price of the

goods either in Yangon, where the cause of action arisen, or in

Mandalay, where B carries on business.

(၁)

၍
 50

(2) A suit for recovery of money on the basis of a

promissory note executed at X, when the defendant resides at Y.

This suit is concerned with section 20.under section 20 the

suit can be instituted on the basis of a promissory note either at

court X or Court Y at the option of the plaintiff-Court X where

the note was executed and the cause of action arose or court Y

where the defendant resides.

( )

Section (21) Objections to Jurisdiction

“ No objection as to the place of suing shall be allowed by

any appellate or revisional Court unless such objection was

taken in the court of first instance at the earliest possible

opportunity and in all cases where issues are settled at or before

such settlement, and unless there has been a consequent failure

of justice.
 51

၉၉ ၍

Section 99. No decree shall be reversed or substantially varied nor

shall any case be remanded, in appeal on account of any misjoinder of

parties or causes of action or any error, defect or irregularity in any

proceedings in the suit, not affecting the merits of the case or the

jurisdiction of the Court.

၉၉

Section (22) Power to Transfer Suits which may b e instituted in

more than one Court

 52

“Where a suit may be instituted in any one of two or more

Courts and is instituted in one of such Courts, any defendant,

after notice to the other parties, may ,at the earliest possible

opportunity and in all cases where issues are settled at or before

such settlement, apply to have the suit transferred to another

court, and the Court to which such application is made, after

considering the objections of the other parties ( if any), shall

determine in which of the several Courts having jurisdiction the

suit shall proceed.

( ) ၍
 53

Key terms

Stay of Suits

Issue ( )

Relief claimed

Pendency

Concurrent jurisdiction

Plaint

Res-judicata

Decree

Legal representatives

Judgment

Order

Partition

controversy

estate

decree-holder

judgment-debtor

mesne profits
 54

litigating

try

compensation

plaintiff

defendant

relief

defamation
 1

Chapter 2

INSTITUTION OF SUITS,SUMMONS AND

DISCOVERY

2.0 Section 26

2.1 Parties to Suits

2.2 Frame of Suit

2.3 Recognized Agents and Pleaders

2.4 Institution of Suits

2.5 Issue and service of Summons To Defendant

KEY TERMS
 2

Chapter 2

(၂)

INSTITUTION OF SUITS, SUMMONS AND

DISCOVERY

2.0 Section (26)

(၂၆)

"Every suit shall be instituted by the presentation of a

plaint or in such other manner as may be prescribed".

Institution of suit

Every suit is instituted by presenting a plaint to the

court or to such officer as it appoints in that behalf. When

the plaint has been presented to a proper court, shows a

cause of action, the relief is property valued, is written on a

sufficiently stamped paper and is not barred by any law, the

court admits the plaint and then it is numbered and

registered as a suit .
 3

ORDER (1)

(၁)

2.1 PARTIES TO SUITS

Rule 1:- Joinder of plaintiffs (or) who may be joined as

plaintiffs

(၁)- -၁

All person may be joined in the suit as plaintiffs

(a) where the right to relief alleged to exist in each plaintiff

arises out of the same act or transaction, and

(b) where if such person brought separate suits, any

common questions of law or fact would arise.

(၁)
 4

(၂)

Misjoinder of plaintiffs

If two or more persons are joined as plaintiffs in one

suit in a case where the aforesaid two conditions do not

exist, the result would be a misjoinder of plaintiffs.

Rule 2:- Power of court to order separate trials

-၂

Where it appears to the court that any joinder of

plaintiffs may embarrass or delay the trial of the suit, the

court may put the plaintiffs to their election or order

separate trials or make such other order as may be

expedient.
 5

Rule 3:- Joinder of Defendants (or) who may be joined as

defendants

- ( )

All person may be joined in one suit as defendants- (a)

where any right to relief alleged to exist against them arises

out of the same act or transaction; and (b) where, if

separate suits were brought against such persons, any

common question of law or fact would arise.

1 2
" "

1
Question of Law
2
Question of fact
 6

Misjoinder of defendants

If two or more persons are joined as defendants in one

suit in a case where the aforesaid two conditions do not

exist, the result would be misjoinder of defendants.

Rule 4:-Court may give judgment for or against one or

more of joint parties.

Judgment may be given without any amendment -

(a)for such one or more of the plaintiffs as may be found to

be entitled relief , for such relief as he or they may be

entitled to;

( )

(b)against such one or more of the defendants as may be

found to be liable,according to their respective Liabilities.

 7

( )

(Scope of r .4 .- cl. (a) of this rule must be read with

Or. 1, r. 1 and cl . (b) with Or. l.r.3. Where several persons

join together as plaintiffs in a suit., but it is found that only

some of them are entitled to relief, a judgment may under

this rule, be given for such relief in favour of such

persons.)

( - ( ) ၁ -၁ ( )

၁ -

Rule 5:- Defendant need not be interested in all relief

claimed

-၅

It is shall not be necessary that every defendant shall

be interested as to all the relief claimed in any suit against

him.
 8

Rule 6:- Joinder of parties liable on same contract

-၆

The plaintiff may, at his option, join as parties to the

same suit all or any of the persons severally, or jointly and

severally, liable on any one contract, including parties to

bills of exchange, hundis and promissory notes.

3 4 5
" " "

Note : - This rule is applicable only to suits on

contract including hills of exchange, hundis and promissory

notes moreover, the rule applies only where the defendants

3
Bills of exchange
4
Hundis
5
Promissory Notes
 9

are liable on the same contract. It does not apply where

defendants are liable on different contracts.

6 7
၁ ၆ " "
8
"

Rule 7:-When plaintiff in doubt from whom redress is

to be sought

where the plaintiff is in doubt as to the person from whom

he is entitled to obtain redress, he may join two or more

defendants in order that the question as to which of the

defendants is liable, and to what extent, may be determined

as between all parties.

-၇

6
Bills of exchange
7
Hundis
8
Promissory Notes
 10

Rule 8:- One person may sue or defend on behalf of all in

same interest

-၈

(1)Where there are numerous persons having the same

interest in one or more of such persons may, with the

permission of the Court, sue or be sued, or may defend, in

such suit, on behalf of or for the benefit of all persons so

interested. But the court shall in such case give, at the

plaintiff’s expense, notice of the institution of the suit to

all such persons either by personal service, or, where from

the number of person or any other cause such service is not

reasonably practicable, by public advertisement, as the

Court in each case may direct.

-၈ (၁) -
 11

(2) Any person on whose behalf or for whose benefit a

suit is instituted or defended under sub - rule (1) may apply

to the court to be made a party to such suit .

(၂)

(၁)

Note:- The general rule is that all persons interested in

a suit ought to be made parties thereto. But an exception to

this isprovided by Or. 1. r.8. In a representative suit the

following three conditions are essential, viz.

(၁) (၈)

( )

(1)the parties must be numerous

(2)they must have the same interest in the suit and

 12

(3)the suit must be brought with the permission of the

court.

*
In Taw Pin Aun Vs. Taw Cheng Chye and two case,

the Judge decided that- The aim and object of order l rule

8 of the Civil Procedure Code is obvious. In order to avoid

needless litigation over the same subject matter in which

numerous persons are interested - such as a public trust - all

persons interested must be joined as parties”.

၁ ၈

**
Phu Kyaw Kyaw Wai Vs. Ah Sein and another case -

the judge held that “In a suit filed under Order l Rule 8 of

the Civil Procedure Code on behalf of an association,

notice must be served on all members of the association,

whether personally, or if, that method is not reasonably,

practicable, by public advertisement”.

*
1958 BLR (H.C) 357
**
1958 BLR (H.C) 353
 13

Phu Kyaw Kyaw Wai Vs Ah Sein and another

-၁ (ဂ)

Rule 9:- Misjoinder and nonjoinder

-၉

No suit shall be defeated by reason of the misjoinder

or nonjoinder of parties, and the court may in every suit

deal with the matter in controversy so far as regards the

rights and interests of the parties actually before it.

9
၁၉၆ - - -၁၇
 14

၉၉

-၉၉

( )

Misjoider of Parties Effect

A misjoinder of parties is not fatal to the suit ( Or . l

.R. 9 ) where there is a misjoinder of parties the Court may

order that the name of the party improperly joined as

plaintiff or defendant be struck out and the case may be

proceeded with; (Or . l r. 10(2) ).

-၁ -၉

၁ ၁ (၂)
 15

Nonjoinder of parties

Where a person who ought to have been joined as a

plaintiff or as a defendant, is not joined, the defect is called

nonjoinder of plaintiff or nonjoinder of defendants as the

case may be.

Its effect

In the case of nonjoinder of necessary parties the court

cannot pass an effective decree in their absence; e.g; if in a

suit of partnership accounts all partners are not joined as

parties no effective decree can be passed . In such a case

the suit is liable to be dismissed. But instead of dismissing

a suit for nonjoinder of necessary parties, the court gives

opportunity to the plaintiffs to amend the plaint, (Or. l r .10

). If the plaintiff refuses to amend the plaint, the court

dismiss the suit. In the case of nonjoinder of proper parties

the non-joiner is not fatal. The court can add the absent
 16

party or by the suit without him dealing with the matter in

controversy in so far as the parties before the court are

concerned.

Rule 10:- Suit in name of wrong plaintiff

-၁

(1)where a suit has been instituted in the name of the wrong

person as plaintiff or where it is doubtful whether it has

been instituted in the name of the right plaintiff, the court

may at any stage of the suit, if satisfied that the suit has

been instituted through a bona fide mistake, and that it is

necessary for the determination of the real matter in dispute

 17

so to do, order any other person to be substituted or added

as plaintiff upon such terms as the court thinks just.

(၁) (

(2) Court may strike out or add parties

The court may at any stage of the proceedings, either

upon or without the application of either party, and on such

terms as may appear to the court to be just, order that the

name of any party improperly joined, whether as plaintiff

or defendant, be struck out, and that the name of any person

who ought to have been joined, whether as plaintiff or

defendant, or whose presence before the court may be

necessary in order to enable the court effectually and

 18

completely to adjudicate upon and settle all questions

involved in the suit, be added.

(၂)

Daw Nu Nu Khin Vs. Daw Myint Myint and two

*
others , the judge held that “In a suit for ejectment under

Section 12 (1) ( f ) of the Urban Rent Control Act, 1960, by

a landlord against the tenant, a sub-tenant is not only a

proper party, but one whom the court, should under the

provisions of order . Rule 10 (2) of the C.P.C add as party

defendant when he offers toprove that the landlord , in

claiming that the reasonably and bona fide requires the

*
1962 BLR (H.C) 34
 19

premise for occupation by himself for residential purpose

has no case exclusively and that no decree for ejectment

should, therefore be passed”.

(၂) ၁၉၆

၁၂(၁)( )

(၁) (၂)

10
( ) ၁၉

၁ (၂)

10
၁၉၆၆ - - ၁၅၈၈ ( )
 20

( 3) No person shall be added as a plaintiff suing without a

next friend or as the next friend of a plaintiff under any

disability without his consent.

( )

( )
11
"

(4) Where a defendant is added, the plaint shall, unless the

Court otherwise directs, be amended in such manner as may

be necessary, and amended Copies of the summons and of

the plaint shall be served on the new defendant and if the

Court thinks fit on the original defendant.

( ) ( )

11
Next friend
 21

(5)Subject to the provisions of the Limitation Act section 22, the

proceeding as against any person added as defendant shall be

deemed to have begun only on the service of the summons.

(၅)

၂၂

Rule 11:- Conduct of Suit

The court may give the conduct of the suit to such

person as it deems proper.

-၁၁

Rule 12.:- Appearance of one of several Plaintiffs or

defendants for offers.

-၁၂

12 (1) Where the reare more plaintiffs than one, any one or more

of them may be authorized by any other of them to appear plead

or act for such other in any proceeding; and in like manner,

whether there are more defendants than one, any one or more of
 22

them may be authorized by any other of them to appear, plead or

act for such other in any proceeding.

၁၂ (၁)

(2) The authority shall be in writing signed by the party giving it

and shall be filed in Court.

(၂)

Rule (13) All objections on the ground of non-joinder or

misjoinder of parties shall taken at the earliest possible

opportunity and, in all cases where issues are settle, at or before

such settlement, unless the ground of objection has subsequently

arisen, and any such objection not so taken shall be deemed to

have been waived.

-၁
 23

ORDER II

( ၂)

2.2 FRAME OF SUIT

Rule 1:- Frame of Suit

Every suit shall as far as practicable be framed so as

to afford ground for final decision upon the subjects in

dispute and to prevent further litigation concerning them.

-၁

Rule 2:- Suits to include the whole of the claim

-၂

(1)Every suit shall include the whole of the claim which the

plaintiff is entitled to make in respect of the cause of

 24

action, but a plaintiff may relinquish any portion of his

claim in order to bring the suit within the jurisdiction of

any court.

-၂ (၁)

- ( )

( )

(2) Relinquishment of part of claim

Where a plaintiff omits to sue in respect of, or

intentionally relinquishes, any portion of his claim, he shall

not afterwards sue in respect of the portions so omitted or

relinquished.

(၂)
 25

(3) Omission to sue for one of several reliefs

A person entitled to more than one relief in respect of

the same cause of action may sue for all or any of such

reliefs; but if he omits, except with the leave of the court,

to sue for all such relief, he shall not afterwards sue for any

relief so omitted.

( )

၁၂

( ) ( ) ၂

၂
 26

Explanation:- For the purpose of this rule an obligation

and a collateral security for its performance and successive

claims arising under the same obligation shall be deemed

respectively to constitute but one cause of action.

Illustration

A lets a house to B at a yearly rent of Kyats 12000. The

rent for the whole of the years 1990, 1991 and 1992 is due

and unpaid. A sues B in 1993 only for the rent due for

1991. A shall not afterwards sue B for the rent due for

1990 or 1992.

‘ ’ ‘ ’ ၁၂

၁၉၉ ၁၉၉၂

၁၉၉ ‘ ’ ‘ ’

၁၉၉၁ ၁၉၉
 27

၁၉၉၂

‘ ’ ‘ ’

Note:- Order 2 Rule 2 provides that every suit

should include the whole of the claim which the plaintiff is

entitled to make in respect of the same cause of action, and

that if he omits to include any portion of such claim he

shall not be entitled to sue again in respect of it.

-၂ -၂

Order 2 rule 2. In the case of Tan Choo Kheng and

*
two others V. Saw Chain Poon and anothers the Judge held

that “A suit for possession of immovable property is no bar

to a suit for mesne profits, the cause of action in the two

suits being different the subsequent suit is not barred under

Order 2 rule 2 of C. P. C”.

Tan Choo Kheng and two others V. Saw Chain Poon

and anothers

*
1956 BLR Pg.490 HC
 28

၂ ၂

-၂ -၂
**
In U Tin Myint Vs. U Khin Myint and one case

“The words shall not afterwards sue in Or. 2. Rule 2 sub

rule 3 clearly cannot that the restriction imposed by this

rule applies only to subsequent proceedings. The bar or the

rule will operate only to where a decree has been passed in

a previous suit in which the plaintiff has omitted a portion

of the claim. It has no application to cases similar to the

present one where the amendment of plaint is sought for

addition of the claim which has been omitted in the original

plaint”.

(၁) -

၂ -၂

**
1965 BLR Pg 1050 C.C.
 29

The object of rule 2

The object of the rule is clearly to avoid splitting up

of claim or relief and to prevent of suits. The rule is

directed against two evils, the splitting up of claims and the

splitting up of remedies. The underlying principle is that a

defendant is not to be twice vexed for one and the same

cause.

-၂

Rule 3:- Joinder of cause of Action

(1)Save as otherwise provided, a plaintiff may united in the

same suit several causes of action against the same

defendant, or the same defendant jointly; and any plaintiff

having causes of action in which they are jointly interested

 30

against the same defendant or the same defendants jointly

may united such causes of action in the same suit.

(၁)

( )

(2)Where causes of action are united, the jurisdiction of the Court

as regards the suit shall depend on the amount or value of the

aggregate subject-matter at the date of instituting the suit.

(၂)

Rule 4:- Only certain claims to be joined with claim for

recovery of immoveable property

 31

Provides that in a suit for the recovery of immovable

property, a plaintiff is not entitled, without the leave of the

court, to join any claim except-

(a)claim for mesne porfits or arrears of rent in respect of

the property claimed of any part thereof,

( )

"

(b)claims for damages for breach of any contract under

which the property is held, and

( )

(c) claims in which the relief sought is based on the same

cause of action.
 32

Provided that nothing in this rule shall be deemed to

prevent any party in a suit for foreclosure or redemption

from asking to be put into possession of the mortgaged

property.

(ဂ)

- - -

-၂ -
 33

Rule 5:- Claims by or against executor , administrator or

heir

No claim by or against an executor, administrator or

heir, as such, shall be joined with claims by or aga inst him

personally, unless the last mentioned claims are alleged to

raise with reference to the estate in respect of which the

plaintiff or defendant sues or is used as executor,

administrator or heir, or are such as he was entitled to, or

liable for, jointly with the deceased person whom he

represent.

-၅
 34

Rule 6:- Power of Court to order separate trails

Where it appears to the court that any causes of action

joined in one suit cannot be conveniently tried or disposed

of together the court may order separate trials.

-၆

Rule 7:- Objections as to misjoinder of causes of action

All objections on the ground of misjoinder of causes

of action shall be taken at the earliest possible opportunity

 35

and, in all cases where issue are settled, at or before such

settlement, unless the ground of objection has subsequently

arisen, and any such objection not so taken shall be deemed

to have been waived.

-၇

( )

2.3 RECOGNIZED AGENTS AND PLEADERS

( )

Rule 1:-Appearances, etc, may be in person, by recognized

Any appearance, application or act in or to any court,

required or authorized by law to be made or done by a party

in such court, may, except where otherwise expressly

 36

provided by any law for the time being in force, be made or

done by the party in person, or by his recognized agent, or

by a pleader appearing, applying or acting, as the case may

be on his behalf :

-၁

( )

Provided that any such appearance shall, if the court

so directs be made by the party in person.

Rule 2:- Recognized agents

The recognized agents of parties by whom such

appearances , applications and acts may be made or done

are –

-၂
 37

(A)Person holding powers of attorney, authorizing them to

make and do such appearances; applications and acts on

behalf of such parties.

( )

(B) Person carrying on trade or business for and in the name of

parties not resident within locial limits of the jurisdiction of the

Court within which limits the appearance, application or act is

made done, in matters connected with such trade or business only,

where no other agent is expressly authorized to make and do such

appearances, applications and acts.

( )

Rule 3:- Service of process on recognized agent

-
 38

(1) Processes served on the recognized agent of a party

shall be as effectual as if the same had been served on the

party in person, unless the court otherwise directs.

(၁)

(2)The provisions for the service of processor on a party to

a suit shall apply to the service of process on his

recognized agent.

(၂)

Rule 4:- Appointment of pleader

- ( )

(1)No pleader shall act for any person in any court, unless

has been appointed for the purpose by such person by a

document in writing signed by such person or by his

recognized agent by such person or by some other person

duly authorized by or under a power of attorney to make

such appointment.
 39

(၁)

( )

(2)Every appointment shall be filed in court and shall be

deemed to be in force until determined by the discharge of

the contract between the pleader and his client until all

proceedings in the suit are ended so far as regards the

client.

(၂)

( )

( )

Rule 5:- Service of process served on the pleaders

-၅

Any process served on the pleader of any party or left

at the office or ordinary residence of such pleader, and

whether the same is for the personal of the party or not,

 40

shall be presumed to be duly communicated and made

known to the party whom the pleader represents, and,

unless the otherwise directs, shall be as effectual for all

purposes as if the same had been given to or served on the

party in person.

( )

Rule 6:-Agent accept service

-၆

(1) Besides the recognized agents described in rule 2 any

person residing within the jurisdiction of the court may be

appointed an agent to accept service of process.

 41

၆ (၁)

(2) Such appointment may be special or general and shall

be made by an instrument in writing signed by the

principal, and such instrument or, if the appointment is

general, a certified copy thereof shall be filed in Court. 21

(၂)

( )

12
"

( )

12
Kyone Hoe Tsee Vs. Kyone Soon Swn; 3 Rangoon 261.
 42

ORDER IV

( )

2.4 INSTITUTION OF SUITS

This order is read with section 26 of the Civil Procedure

Code.

( ) -၂၆

-၂၆

Rule 1:- Suit to be commenced by plaint

(1)Every suit shall be instituted by presenting a plaint to

the Court or such officer as it appoints in this behalf.

(၁)
13
"

(2) Every plaint shall comply with the rules contained in

Order VI and VI I; so far as they are applicable.

(၂) ၆ ၇

13
Plaint
 43

Rule 2:- The Court admits the plaint and then it is

numbered and registered as a suit

The court shall cause the particulars of every suit to

be entered in a book to be kept for the purpose and called

the register of civil suits. Such entires shall be numbered in

every year according to the order in which the plaints are

admitted.

According to the above mentioned orders I to IV,the

learners must need to know about the essentials of a suit”.

Essentials of a suit .

(၁) ( )

The essentials of a suit are four in number. They are

as under:

(1) The opposing parties

 44

In every suit there must be at least one plaintiff and

one defendant. There may be more than one plaintiff and

more than one defendant where an act or transaction

proceeds from two or more persons or it affects two or

more persons.

(2)The causes of action

Every suit must contain the cause of action. The term

cause of action “refers to the cause or the set of

circumstances which leads up to a suit. It consists of every

fact which is necessary to be proved to entitle the plaintiff

to a decree.
 45

(3)The subject matter

It is the right or property claimed in the suit. The

court adjudicates upon the rights of the parties with regard

to the subject matter in dispute.

(3)The relief claimed

The relief claimed should be stated specifically in the

plaint. It may be stated in the alternative also. The relief

claimed must be one which the court is able to grant. When

a person is entitled to more than one relief in respect of the

same cause of action, he must sue for all the reliefs. He,

however, may sue for one or more of them and reserve his

right with the leave of the court to sue for the rest. If no

such leave is obtained he will be precluded from

afterwards suing for any relief so omitted.

 46

၁၂၁ (၁) ( ) -၁

(၂)

( )

ORDER V

(၅)

2.5 ISSUE AND SERVICE OF SUMMONS TO

DEFENDANT
 47

"

၂၇ ၂၉

Definition of Summons

Summons in a document issued from the office of a

court of justice, calling upon the person to whom it is

directed to attend before a judge or officer of the court on

the day mentioned therein.

Issue of Summons

On a suit having been duly instituted a summons is

issued to the defendant to appear and the claim on a day

therein specified.

Summons to Defendant

Section (27)

Where a suit has been duly instituted, a summons may

be issued to the defendant to appear and answer the claim

and may be served in manner prescribed.

 48

၂၇

( )

Rule 1:- When a suit has been duly instituted a summon

may be issued to the defendant to appear and answer the

claim on a day to be therein specified:

(၁)

( )

Provided that no such summon shall be issued when the

defendant has appeared at the presentation of the plaint and

admitted the plaintiff’s claim.

(2)A defendant to whom a summons has been issued under sub-

rule (1) may appears-

(၁)

-
 49

(a) In person, or

( )

(b) By a pleader duly instructed and able to answer all

material questions relating to the suit, or

( )

( )

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

such questions.

(ဂ)

( )

(3)Every such summons shall be signed by the judge or such

officer as he appoints be sealed with the seal of the court.

( ) ( )

( )

Rule-(2) Every summons shall be accompained by a copy of the

plaint or, if so permitted, by a concise statement.

(၂)
 50

Particulars of Summons

Every summons shall-

(i) intimate to the defendant of the date of hearing and

whether he is to appear in person or by a pleader;

(ii).contain a direction whether the date is fixed for

settlement of issues only or for final disposal of the suit,

and

(iii)order the defendant to produce all documents in his

possession or power upon which he intends to rely in

support of his case.

Rule-3(1) Where the court sees reason to require the

personal appearance of the defendant, the summons shall

 51

order him to appear in person in Court on the day therein

specified.

- (၁)

( )

Rule-3(2) Where the Court sees reason to require the

personal appearance of the plaintiff on the same day, it shall make

an order for such appearance.

(၂)

Rule 4:-No party shall be ordered to appear in person

unless he resides-

- -

(a) within the local limits of the Court’s ordinary original

jurisdiction, or

( )

(b)without such limits but at a place less than fifty of

(where there is railway or steamer communication or other

 52

established public conveyance for five – sixths of the

distance between the place where he resides and the place

where the Court is situate) less than two hundred miles

distance from the Court house.

( )

( )

(1)if she is a woman not appearing in public according to

the custom and manners of the country. (Sec: 132).

Different modes of service of a summons on a defendant

The prescribed modes of service of a summons are as

follows: -

(1)Personal of Direct Service

 53

(2)Service by affixing a copy of summons on defendant's

house without an order of the court

(3)Substituted Service

(4)Service by post.

(1) Personal or Direct Service

Rule 12:- Wherever it is practicable service should be

made on the defendant in person, unless he has an agent

empowered to accept service, in which case service on such

agent shall be sufficient.

-၁၂

Where there are two or more defendants, service

should be made on each defendant.

Rule 15:- Where the defendant cannot be found and has no agent

empowered to accept service of the summons on his behalf,

service may be on any adult member of the family of the

defendant who is residing of the property.

၁၅
 54

Explanation –A servant is not a member of the family within this

rule.

*
In U Ko Ko Gyi Vs. Daw Khin Thaung Case Held that

there is no provision of law that a defendant must be served with

summons at no other place than the place as given in the summons

and that service of summons was a good service as provided under

Order 5 Rule 15 of the C. P. C.

Rule 14:- Where in a suit to obtain relief respecting;

or compensation for wrong to, immoveable property, the

service cannot be made on the defendant in person, and the

defendant has no agent empowered to accept the service, it

may be made on any of the defendant who is residing with

him.

*
1958 BLR (H.C) 387
 55

-၁

Rule 16:- Such personal service is also called direct

service because service is made by delivering a copy

thereof to the defendant personally, or to an agent or other

person on his behalf, and the signature of the person to

whom the copy is so delivered is obtained to an

acknowledgment of service endorsed on the original

summons.

-၁၆

(2)Service by affixing a copy of summons on defendant ‘s

house without an order of the court. – Rule 17.

 56

(a)Where the defendant or his agent or in their

absence an adult male member of the family refuses to sign

the acknowledgment or (b) Where the serving officer, after

using due diligence, cannot find the defendant and there is

no such other person on whom service can be effected, the

service officer shall affix a copy of the summons on the

outer door or some other conspicuous part of the house in

which the defendant resides and then return the original to

the court from which it was issued with a report endorsed

thereon stating that he has so affixed the copy. If the court

is satisfied it declares the service to have been duly effect.

 57

According to rule 17 of order 5, in U Wa Vs. U Ba

*
Tun case judge held that – “ Where a defendant or his

agent or an adult number of his family in his absence

refuses to take delivery of a copy of the summons tendered

to him, it is necessary for the process – service to affix a

copy of the summons to the outer door or to some other

conspicuous part of the house in which the defendant

ordinarily resides or carries on business, etc, as required

by order 5, Rule 17 of the C.P.C It cannot be taken as due

service when merely on the refusal of the defendant or his

agent or an adult member of his family to take delivery of

the summons or to give permission for its affixation for the

process server to bring the copy away and return the same

*
1962 B.L.R.(CC) 289
 58

with a report to that effect. Unless it is physically

impossible for the process server to affix a copy of the

summons to a conspicuous part of the house he should

make his best endeavour to carry out the direction

contained in order 5, Rule 17.

၅ ၁၇
 59

(3 ) Substituted Service

Rule 20:- Where the court is satisfied that there is reason

to believe that the defendant is keeping out of the wa y for

the purpose of avoiding service, or that for any reason the

summons cannot be served in the ordinary way, the court

shall order the summons to be served by affixing a copy

thereof in some conspicuous place in the court house. And

also upon some conspicuous part of the defendant’s house,

or in such other manner as the court thinks fit service may

be ordered to be effected by publication in a local

newspaper.
 60

(1) Service by post

In particular cases the court may direct service of

summon by post.
 61

Key Terms

Admits

Plaintiff

Defendant

Summon

Acknowledgment

Prison

Endorsed

Affixed

Conspicuous part

Subsistuted service

Thinks fit

Allege

Embarrass

Judgment

Amendment

Liabilities

bills of exchange

hundis

promissory notes
 62

redress

defeat

struck out

adjudicate

ejectment

next friend

omit

split

aggregate

subject-matter

arrears of rent

foreclosure

redemption

executor

pleader

presumed
 1

CHAPTER III

PLEADINGS GENERALLY, PLAINT,WRITTEN

STATEMENT, SET-OFFAND APPEARANCE OF PARTIES

AND CONSEQUENCES OF NON-APPEARANCE

3.0 Pleadings generally

3.1 Plaint

3.2 written Statement

3.3 Rule 6 Set-off

3.4 Appearance of Parties Consequences of Non -Appearance

Key terms
 2

CHAPTER III

(၃)

PLEADINGS GENERALLY, PLAINT, WRITTEN

STATEMENT, SET-OFF AND APPEARANCE

OFPARTIES AND CONSEQUENCES OF NON-

APPEARANCE

ORDER VI

(၆)

3.0 PLEADINGS GENERALLY

1

Pleadings are statement in writing drawn up and filed by

each party to case, stating what his contention will be at the trail

1
Pleadings Generally
 3

and giving all such details as hid opponent needs to known in

order to prepare his case in answer.

Rule 1:- “Pleading” is defined in the code of civil procedure as

meaning plaint or written statement.

2 3
-၁ " "

"

Rule 2:- Pleading to state material facts and not evidence

Every pleading shall contain, and contain only, a statement

in a concise form of the material facts on which the party

pleadinf relies for his claim or defence, as the case may be, but

not the evidence by which they are to proved, and shall, wh en

2
Plaint
3
Written Statement
 4

necessary, be devided into paragraph, numbered consecutively.

Dates, sums and figures shall be expressed in figures.

( )

( )

( )

(ဃ)

( )

( )

Rule 3:- Forms of pleadings

 5

The forms in Appendix A when applicable, and where they

are not applicable forms of the like character, as nearly as may

be , shall be used for all pleadings.

( )

Rule 4:- Particular to be given where necessary

In all cases in which the party pleading relies on any

misrepresentation, fraud, breach of trust, willful default or undue

influence, and in all other cases in which particulars may be

necessary beyond such as are exemplified in the forms aforesaid,

particulars (with dates and items if necessary)shall be stated in

pleadings.

၄
 6

Rule 5:- Further and better statement, or particulars

A further and better statement of the nature of the claim or

defence, or further and better particular of any matter stated in

any pleading, may in all cases be ordered, upon such terms, as to

costs and otherwise as to costs and otherwise, as may be just.

Rule 6:- Condition Precedent

Rule 6 of Order 6 lays down that any condition precent, the

performance or occurrence of which is intended to be contested,

shall be distinctly specified in his pleading by the plaintiff or

defendant, as the case may be; and, subject thereto, an averment

of the performance or occurrence of all conditions precedent

 7

necessary for the case of the plaintiff or defendant shall be

implied in his pleadings.

-၆

Rule :7- Departure

No pleading shall, except by way of amendment, raise any

new ground of claim or contain any allegation of fact in

consistent with the previous pleadings of the party pleading the

same.
 8

-၇

Rule 8:- Denial of contract

Where a contract in alleged in any pleading a bare denial of

the same by the opposite party shall be construed only as denial

in fact of the express contract alleged or of the matters of fact

from which the same may be implied, and not as a denial of the

legality or sufficiency in law of such contract.

၄ ၄

Rule 9:- Effect of document to be stated

Wherever the contents of any document are materials, it

shall be sufficient in any pleading to state the effect thereof as

briefly as possible, without setting out the whole or any part

 9

thereof, unless the precise words of the document or any part

thereof are material.

Rule 10:-Malice Knowledge, etc

Wherever it is material to allege malice, fraudulent

intention, knowledge or other condition of the mind of any

person, it shall be sufficient to allege the same as a fact with out

setting out the circumstances from which the same is to be

inferred.

၄
 10

Rule 11:- Notice

Wherever it is material to allege notice to any person of

any fact, matter or thing, it shall be sufficient to allege such

notice as a fact, unless the from or the precise terms of such

notice, or the circumstances from which such notice is to be

inferred, are material.

-၁၁

၄ ၄ ၄

Rule 12:- Implied contract or relation

Wherever any contract or any relation between any persons

is to implied from a series of letters of conversations or

otherwise from a number of circumstance, it shall be sufficient

to allege such contract or relation as a fact and to refer generally

to such letters, conversation or circumstances without setting out

 11

in detail. And if in such case the person so pleading desires to

rely in the alternative upon more contracts or relations than one

as to be implied from such circumstances, he may state the same

in the alternative.

Rule 13:- Presumptions of law

Neither party need in any pleading allege any matter of fac t

which the law presumes in his favour or as to which the burden

of proof lies upon the other side unless the same has first been

specifically denied e. g., consideration for a bill of exchange

 12

where the plaintiff sues only on the bill and not for the

consideration as a substantive ground of claim.

4
-၁၃

General rules as to pleadings

Eleven rules regarding pleadings are as under

(၁၂)

(1) A pleading regarding contain only materials facts on which

the party pleading relies.

(2) It shall not contain evidence of facts: (Or . 6.r2)

4
Presumption of Laws
 13

(3) All necessary particulars must be stated in the pleadings .

(Or. 6.rr .4,5).

(4) The performance of conditions precedent need not be

alleged but alleged but the non – performance of such

conditions, if relied on must be pleaded: (Or . 6 .r.6).

(5) No pleading shall, except by way of amendment, raise any

new ground of claim or allege any fact inconsistent with

previous pleadings of a party: (Or .6.r.7)

(6) A bare denial of a contract alleged by the opposite party

shall not be construed as a denial of the legality or sufficiency in

law of such contract. (Or. 6.r.8) .

 14

(7) Documents need not be set out at length unless the precise

words are material. (Or.6.r.9)

(8) Conditions of he mind such as malice knowledge, etc.

may be alleged as a fact without setting out the circumstances

from which the same is to be implied.

(Or. 6 . r.10 )

(9) Notice may be alleged as fact without setting out the

from or the precise terms of such notice, or the circumstance

from which it is to be inferred: (Or.6.r.11).

 15

(10)Implied contracts or relations between persons may be

alleged as fact and the series of letters, conversation or

circumstances from which the contracts are to be inferred, need

only be set out generally and not in detail: (Or.6.12) .

(11)Fact which the law presumes in a party’s favour or as to

which the burden of proof lies on the other side need not be

pleaded unless first denied. ( Or.6.r.13)

Rule 14:- Pleading to be signed

 16

Every pleading shall be signed by the party and his pleader (if

any). Provided that where a party pleading is, by reason of

absence or for other good cause, unable to sign the pleading, it

may, be signed by any person duly authorized by him to sign the

same or to sue or defend on his behalf.

၁၄

( )

Rule 15:- Verification of pleadings

(1) Save as otherwise provided by any law for the time being

in force, every pleading shall be verified at the foot by the party

or by one of the parties pleading or by some other person proved

to the satisfaction of the court to be acquainted with the facts of

the case.

-၁၅
 17

(၁)

(2) The person verifying shall specify, by reference to the number

paragraphs of the pleading, what he verifies of his own knowledge and

what he verifies upon information received and believed to be true.

(၂)

(3) The verification shall be signed by the person making it and shall

state the date on which and the place at which it was signed.

(၃)

Rule 16:- Striking out pleadings

The Court may at stage of the proceedings order to be

struck out or amended any matter in any pleading which may be

 18

necessary or scandalous or which may tend to prejudice,

embarrass or delay the fair trial of the suit.

-၁၆

"

Rule 17:- Amendment of pleading

The Court may at any stage of the proceeding allow either party

to alter or amend his pleadings in such manner and on such

terms as may be just and all such amendments shall be made as

may be necessary for the purpose of determining the real

questions in controversy between the parties.

-၁၇
 19

Object of the rule

The object of this rule is to enable the real question in issue

between the parties to be raised on the pleadings to amend

pleadings when granted.

Leave to amend pleadings when granted

The general rule is that leave to amend will be granted so as to

enable

(1).the real questions in controversy between the parties to be

raised on the pleadings,

(2)Where the amendment will occasion no injury to the opposite

party, except such as can be sufficiently compensated for by

costs.
 20

(3)Amendment should, ordinarily be allowed if it can be made

without injustice to the other side.

Amendment of opponents pleadings

A person can apply for amendment of his opponents pleadings.

Order 6 rule 16 of the civil procedure code, is the governing

provision. According to that rule a party can apply for his

opponent’s pleading to be struck out or amended on any of the

following grounds:

၆ ၁၆

(1).Where any matter in the pleading in unnecessary,

(2).Where any matter in the pleading is scandalous. Every court

has inherent power to strike out any scandalous matter.

 21

"

Where any matter in the pleading may tend to prejudice,

embarrass or delay the fair trial of the suit.

Refusal to leave to amend

(1)Leave to amend will be refused when the amendment is not

necessary for the purpose of determining the real questions in

controversy between the parties, which happens where the

amendment is merely technical or useless and is of no substance.

(2)Leave to amend will be refused where the effect of the

amendment would introduce a totally different, new and

inconsistent case.
 22

*
In Mg Ba Thein V. Ma Than Myint Case the Judge decided

according to the above mention rule. In that case “The plaintiff

claimed to be a kittima adopted child of one deceased, and in his

plaint no alternation cause of action on an appatitha adoption

was pleaded. On the suit being dismissed.

Held, that while the right of amendment or pleadings has

been largely increased in the present C.P.C and amendment is

now much more freely granted – it remains a matter for

discretion, and that discretion must be exercised with regard to

all the facts and circumstance of the case.

Held further, that the causes of action on which the claims

to be a kittima son and an appatitha son are based being widely

*
3 Ran 483
 23

different, the court of appeal by allowing the amendment would

be practically ordering a new suit to be commenced a fresh and

that should not be permitted.

(3) Leave to amend will be refused where the effect of the

proposed amendment would be to take away from the defendant

a legal right which has accrued to him by lapse of time.

(4)Leave to amend will be refused where the plaintiff’s suit

would displaced by the proposed amendment.

(5)Leave to amend will be refused where the applicati on for

amendment is not made in good faith.

 24

*
In the case of The Bank of Communication V. Khin Company

the judge held that under order 6 Rule 17 of C.P.C, the Court

may allow at any stage of the proceeding upon to amend the

pleadings, it is discretionary depending upon the circumstances

of each case. It would have been more convenient if the

amendment were underlined in red ink in the releva nt paragraphs

of he proposed amended written compared one so that when the

two written statements were compared one would see at once

what was amended and what was not;-

၁၇

The principles of guidance are no amendments shall be allowed, -

*
1966 BLR (CC)811
 25

(a )Where it is made at a stage when it would cause injustice to

the opposite party, or where it would necessitate a de no vo

trail;

(b)Where it would change the defence completely there by

implying that the application not bona fide;

(c)Where there was no possibility of misconception of defence at

the beginning but on being made to change the front and seck to

be successful on another and completely different ground.

ORDER VII

(၇)

3.1 PLAINT

Definition of Plaint

Plaint is the statement of a claim, in writing and filed by the

plaintiff, in which he sets out his cause of action with all

necessary particulars.
 26

Rule 1:- Particular to be contained in plaint

The plaint shall contain the following particulars:-

-၇ -၁

(a)the name of the court in which the suit is brought;

( )

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

( )

(c)the name, description and place of residence of the defendant,

so far as they can be ascertained;

( )

(d)where the plaintiff or the defendant is a minor or a person of

unsound mind, a statement to that effect;

(ဃ)

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

( )

(f) the facts showing that the court has jurisdiction;

( )
 27

(g)the relief which the plaintiff claims;

( )

(h) where the plaintiff has allowed a set- off on relinquished a

portion of his claim, the amount so allowed or relinquished; and

( )

(i)A statement of the value of the subject matter of the suit for

the suit for the purpose of jurisdiction and of court – fees, so far

as the case admits,

( )

( -

( )

- ၁ - ၂ -
 28

၁ - ၉၅ -

၂ - ၁၅၅ -

၂၅ -

၃ - ၁၉၅ - ၂

၅၅ -

( ) ( )

Additional particulars in certain plaints

Rule 2:- Money Suit

Where the plaintiff seeks the recovery of money, the plaint shall

state the precise amount claimed;

But where the plaintiff sues for mesne profits, or for an

amount which will be found due to him on taking unsettled

accounts between him and the defendant the plaint shall state

approximately the amount sued for.

 29

"

Rule 3:- Where the subject matter of the suit is immoveable

property

Where the subject matter of the suit is immoveable

property, the plaint shall contain a description of the property

sufficient to identify it, specifying the boundaries or numbers in

a record of settlement of survey, the plaint shall specify such

boundaries or numbers.

-၃

"

၄
 30

Rule 4:- When plaintiff sues as a representative

Where the plaintiff sues in a representative character the

plaint shall show not only that he has an actual existing interest

in the subject- matter , but that he has taken the steps (if any)

necessary to enable him to institute a suit concerning it.

-၄

Rule 5:- Defendant’s interest and liability to be shown

The plaint shall show that the defendant is or claim to be

interested in the subject –matter, and that he is liable to be

called upon to answer the plaintiff’s demand.

Rule 6 :- Grounds of exemption from limitation law

 31

Where the suit is instituted after the expiration of the

period prescribed by the law of limitation, the plaint shall show

the ground upon which exemption from such law is claimed.

-၆

Rule 7:- Relief to be specifically stated

Every plaint shall state specifically the relief which the plaintiff

claims either simply or in the alternative and it shall not be

necessary to ask for general or other relief which may always be

given as the Court may think just to rule shall apply to any relief

claimed by the defendant in his written statement.

-၇

Rule 8:- Relief founded on separate grounds

Where the plaintiff seeks relief in respect of several distinct

claims or causes of action founded upon separate and distinct

 32

grounds, they shall be stated as far as may be separately and

distinctly.

၂ ၂

Rule 9:- Procedure on admitting plaint

(1)The plaintiff shall endorse on the plaint, or annex there to , a

list of the documents (if any) which he has produced along with

it; and, if the plaint is admitted, shall present on the day on

which the plaint is admitted as many copies on plain paper of

the plaint as there are defendants, unless the Court by reason of

the length of the plaint or the number of the defendants, or for

any number of concise statement of the nature of claim made, or

ofe suit, in which case he shall present such statements.

-၉

၉ (၁)
 33

(2) Where the plaintiff sues, or the defendant or any of the defendants is

sued, in a representative capacity, such statements shall show in what

capacity the plaintiff or thr defendant sues or is sued.

(၂)

(3) The plaintiff may, by leave of the Court, amend shch statements as

to make then correspond with the plaint.

(4) The chief ministerial officer of the Court shall sign such list and

copies or statements if, on examination,he finds them to be correct.

Rule 10:- Return of plaint

-၁
 34

(1)The plaint shall at any stage of the suit be returned to be

presented to the Court in which the suit should have been

instituted.

(2)On returning a plaint the Judge shall endorse thereon the date

of its presentation and return, the name of the party presenting

it, and a brief statement of the reasons for returning it.

If the court has no jurisdiction the proper order is to return the

plaint and not dismiss it. The plaint may be returned even at the

stage of argument. In order returning the plaint is appealable

under Order 43 Rule 1 of C.P.C., but a second appeal does not

lie.

-၄၃

-၁
 35

*
In Ma Than V. Mg Ba Gyan Case , the judge decided

about the return of plaint. Held that “ Where the subject –matter

of the suit is land and the valuation which the plaintiff puts on

the land is disputed and where the proper valuation is after

inquiry found to be beyond the pecuniary limits of the court in

which the plaint was presented, so that the plaint is returned for

presentation in another court, and where further the plaint is so

presented without undue delay, a transfer made in the interval

between the return of the plaint and its presentation to the proper

court is a transfer which is prohibited by section 52 of the

Transfer of Property Act.

(၅၂)

(Transfer of property pending suit relating there to)

*
5 Ran 101
 36

The wording of section 14 of the limitation Act and of

order 7 Rule 10 of the civil procedure code shows that a suit

remains a suit though a court cannot entertain it for want of

jurisdiction and has to return the plaint to be presented to the

court in which “the suit” should have been institute d.

၁၄ ၇

၁၇

Rule 11:- Rejection of plaint

-၁၁

The plaint shall be rejected in the following cases

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

 37

(b)where the relief claimed is under valued, and the plaintiff, on

being required by the court to correction the valuation within a

time to be fixed by the court, fails to do so .

( )

**
In Ma Kyin Myaing Vs. Hoe Lan case . The judge held

that the choose the court in which he would bring his suit for

possession or partition of property by assigning the arbitrary

value of the subject matter of the suit and that it is not only

within the power of the court but it is also its duty to take

action under order V11 Rule 11 of the C.P.C if it is established

no relation to the value of the right litigated, although the court

should be slow to question the properity of the plaintiff’s

valuation especially in cases where no reasonable rules under

section 9 of the suits valuation have been laid down by

appropriate rules under section 9 of the Suits Valuation Act”.

**
1949,BLR(HC) FB.
 38

-၇ ၁၁

(၉)

(၉)

(c)Where the relief claimed is properly valued,

but the plaint written upon paper insufficiently stamped, and the

plaintiff,on the being required by the court to supply the

requisite stamp –paper within a time to be fixed by the court,

fails to do so;

( )

(d)Where the suit appears from the statement in the plaint to be

barred by any law.

 39

(ဃ)

In Daw Tin Hlaing Vs G Gord Handas case * Held: - Since there

was a delay of over 7 years in filing the suit the plaint should

have been rejected under order 7 Rule 11 (d) of the civil

procedure code.

(၇) ၇ -

၁၁

Rule 12:- Procedure on rejecting plaint

Where a plaint is rejected the judge shall record an order to

that effect with the reasons for such order.

Rule 13 Where rejection of plaint does not preclude presentation of

fresh plaint.

The rejection of the plaint on any of the grounds here in before

mentionshall not of its own force preclude the plaintiff from

presenting a fresh plaint in respect of the same cause of action .

 40

၁၁

Document relied on in plaint

Rule 14(1) Where a plaintiff sues upon a document in his

possession or power he shall be produce it in Court when the

plaint is presented, and shall at the same time deliver the

document or a copy thereof to be filed with the plaint.

(2)Where the relies on any other documents (whether in his possession

or power or not ) as evidence in support of his claim he shall enter such

document in a list to be added or annexed to the plaint.

(၂)
 41

Rule-15 Statement in case of document not in plaintiff’s possession or

power

Where any such document is not in the possess on or power of the

plaintiff he shall, if possible, state in whose possession or power it is.

-၁၅

-၅၆

Rule-16 Suits on lost negotiable instrument

Where the suit is founded upon a negotiable instrument and it is

proved that the instrument is lost, and an indemnity is given by the

plaintiff’s to the satisfaction of the Courtm against the claim of any

other person upon such instrument, the Court may pass such decree as it

would have passes if the plaintiff had produced the instrument in Court

when the plaintiff was presented and had at the same time delivered a

copy of the instrument to be filed with the plaint.

 42

-၁၆

( )

Rule-17(1)Production of shop-book

Save in so far as is otherwise provided by the Bankers’Books

Evidence Act, where the document on which the plaintiff sues is an

entry in a shop-book or other account in his possession or power, the

plaintiff shall produce the book or account at the time of filing the

plaint, together with a copy of the entry on which he relies.

-၁၇

၁၇ (၁)

၄
 43

(2) The Courtm or such officer as it opinions in this behalf shall

fortwith mark the document for the purpose of identification; and, after

examining and comparing the copy with the original, shall, if it found

correct, certify it to be so and return the book to the plaintiff and cause

the copy to the filed.

(၂) ၄

Rule-18(1) Inadmissibility of document not produced when

plaint file

A document which ought to be produce in Court by the plaintiff when

the plaint is presented, or to be entered in the list to be added or annexed

to the plaint, and which is not produced or entered accordingly, shall

not, without the leave of the Courtm br received in evidence on his

behalf at the hearing of the suit.

-၁၈
 44

၁၈ (၁)

(2) Nothing in this rule applies to document produced for the cross

examination of the defendant’s witnesses, or in answer to any case set

up by the defendant or handed to a witness merely to refresh his

memory.

(၂) ၄

Order VIII

(၈)

3.2 Written Statement

Definition of Written Statement

Written statement is the statement of defence in writing and filed

by the defendant in which he deals with every material fact

alleged by the plaintiff in the plaint and also states any new facts
 45

which may be in his favour, adding such legal objected as he

wishes to take to the claim.

Rule 1:- Filing of Written Statement

After the summons has been served on the defendant, the

defendant may at or before the first hearing, or within such time

as the court may permit, present a written statement of his

defence dealing with each allegation in the plaint and stating

with respect to each allegation whether the same is admitted or

denied.

-၁
 46

*
In Daw Saw Nyunt V. Ma Hla Khin case, Held: “Under

the provision of Order 8 Rule 1 of the Code of Civil Procedure

the defendant was bound to present a written statement piece

meal. The Court, if so disposed could have made a preliminary

issue out of the written statement filed by the defendant and

proceeded to try the same”.

၈ ၁

Particulars of written statement:-

(Order 8 Rule 1 to 5 )

The written statement must contain a statement in a concise form

of the material facts on which the defendant relies for his

defence, but not the evidence by which they are to be proved.

*
1966 BLR CC 760
 47

Rule 2:-New facts must be specially pleaded

He must raised by his pleading all matters which show that

the suit is not maintainable or that the transaction is either void

or voidable in point of law and all such grounds of defence must

also be stated which, if not raised, would be likely to taken the

opposite party by surprise, or Would raise issue of fact not

arising out or the plaint, as, for instance, fraud, limitation,

release, payment, performance or facts showing illegality.

-၂
 48

The defendant must deal specifically with each allegation

of fact of which he does not admit the truth .

The defendant may also in a suit for recovery of money file

the particular of the debt sought to be set – off in the written

statement which shall have the same effect as a plaint in a cross

suit.

Rule 3:-Denial to be specific

It shall not be sufficient for a defendant in his written

statement to deny generally the grounds alleged by the plaintiff, but

the defendant must deal specifically with each allegation of fact of

which he does not atmit the truth, except damages.

-၃
 49

Rule.4:-Evasive denial

Where a defendant dines an allegation of fact in plaint, he must

not do so evasively, but answer the point of substance. Thus if it is

alleged that he received a certain sum of money, it shall not be

sufficient to deny that he received that particular amount, but he must

deny that he received that sum or any part thereof, or else set out how

much he received. And if an allegation is made with diverse

circumstances, it shall not be sufficient to deny it along with those

circumstances.

-၄

Rule:-5 Specific denial

 50

Every allegation of fact in the plaint, if not denied specifically or

by necessary implication, to be not admitted, in pleading of the

defendant, shall be taken to be admitted, except as against a person

under disability:

Provided that the Court may in its discretion require any fact so

mitted to be proved otherwise than by such admission.

-၅

( )
 51

3.3 Rule 6:- Set – off

-၆

Set – off is a reciprocal acquittal of debts. In an action to

recover money, a set- off is a cross claim for money by the

defendant, for which he might maintain an action against the

plaintiff.

၆ (၁)

၄
 52

Where in a

(a) Suit for the recovery of money, the defendant claims to set -

off against the plaintiff’s demand

(b) Any ascertained sum or money

(i) egally recoverable

(ii) by the defendant

(iii)from the plaintiff

(iv)not exceeding the pecuniary limits of the jurisdiction of the

court and

(V)both parties fill the same character, as they fill in the

plaintiff’s suit.

The defendant may, at the first hearing of he suit but not

afterwards unless permitted by the court, present a written

statement containing the particular of the debt sought to be set -

off.
 53

Essential conditions of legal set-off

The set- off mentioned above is a legal set – off. It will be

apparent from the following conditions must be fulfilled:

(1) The suit must be for recovery of money.

(၁)

(2)The amount claimed to be set-off must be an ascertained sum

of money.

(၂)

(3)It must be legally recoverable from the plaintiff, i.e. , it is

not barred by the law of limitation.

(၃)

(4)It must not exceed the pecuniary limits of the jurisdiction of

the court.

(၄)

-
 54

(5)It must be recoverable by the defendant or by all the

defendants, if there are more than one.

(၅)

- ၃ -

၁ -

(6)It must be recoverable by the defendant from the plaintiff or

all plaintiff or all plaintiffs, if there are more than one.

(၆)

(7)Both parties must fill the same character as they fill in the

plaintiff’s suit.

(၇)

" ( )

"
 55

( )
5

Illustrations

(a)A bequeaths 2,0000 to B and appoints C his executor and

residuary legatee B dies and D takes out administration to B s

effect C pays Ks 10000 as surety for D; then D sues C for the

legacy C cannot set –off the debt of Ks. 10000 against the

legacy, for neither C nor D fills the same character with respect

to the legacy as they fill with respect to the payment of Ks

10000.

5
Messrs Nanigram Jaganath Vs. K.A.M.S. Mohamed 1947. R.L.R 478
 56

(b) A dies in estate and in debt to B.C takes out administration to

A s effect and B buys part of the effects from C. In a suit for

the purchase – money by C against B, the latter cannot set –off

the debt against the price, for C fills two different characters,

one as the vendor to B . in which he sues B , and the other as

representative of A.

(c)A sues B on a bill of exchange B, alleges that A has

wrongfully neglected to insure B s goods and is liable to him in

 57

compensation which he claims to set-off. The amount not being

ascertained cannot be set-off.

(d) A sues B on a bill of exchange for Ks 5000 B holds a

judgment against A for Ks 10000. The two claims being both

definite pecuniary demands may be set-off.

(၅ )

(e)A and B sue C for Ks 10000 C cannot set- off a debt due to

him by A alone

(၁ )
 58

(f)A owes the partnership firm of B and C Ks 10000, B dies,

leaving C surviving. A sues C for a debt of Ks 15000 due in his

separate character. C may set – off the debt of Ks.10000.

(၁ )

(၁၅ )

(၁ )

(g)A sues B and C for Ks 10000 B cannot set –off a debt due to

him alone by A .

(၁ )

In Daw Than Myint and one Vs Messrs Shwe Ni Trading

*
Company Limited

“It is time- barred, it cannot be claimed whether the set-off is

legal or equitable”.

Rule 7:- Defence or set –off founded on separate grounds

*
1965 BLR ( C. C ) 1015
 59

“Where the defendant relies upon several distinct grounds

of defence or set-off founded upon separate and distinct facts,

they shall be stated, as far may be separately and distinctly .

Rule 8:- New ground of defence

-၈

Any ground of defence which has arisen after the institution of the

suit or the presentation of a writtrn statement claiming a set-off may be

raised by the defendant or plaintiff, as the case may be, in his written

statement.

Rule 9:- Subsequent pleadings

No pleading subsequent to the written statement of a defendant oth er

than by way of defence to a sat-off shall be presented except by the

 60

leave of the Court and upon such terms as the Court thinks fit, but the

Court may at any time require a written statement or additional written

statement from any of the parties and fix a time for presenting the same.

-၉

Rule 10:- Procedure when party fails to present written

statement called for the Court

Where any party from whom a writtrn statement is so

required fails to present the same within the time fixed by the

Court, the Court may pronounce judgement against him, or make

such order in relation to the suit as it thinks fit.

-၁
 61

ORDER IX

(၉)

3.4 APPEARANCE OF PARTIES CONSEQUENCES OF

NON-APPEARANCE

Rule 1:- On the date of hearing the parties shall be in

attendance at the court house in person or by pleaders. Where

some of several plaintiffs or defendants do not appear the suit

may proceed. Court may dismiss the suit.

-၁

Rule 2:- Dismissal of suit where summons not served in

consequence of plaintiff’s failure to pay costs

On the date of hearing the defendant does not appea r owing

to the non –service of summons due to the plaintiff s failure

to pay the court fee or postal charges for service, the court may

dismiss the suit.

 62

-၂

Rule 3:- Where neither party appears, suit to be dismissed.

Where neither party appears when the suit is called on for

hearing, the court may make an other that the suit be dismissed.

-၃

6 7
"( ) '' "

6
Preliminary decree
7
Final decree
 63

(၃)

Rule 4:-Plaintiff may bring fresh suit or Court may restore suit

to file

Where a suit is dismissed under rules 2 and 3 above, the plaintiff

may (subject to the law of limitation ) ( a) bring a fresh suit or

(b) apply for an order to set the dismissal aside. The court shall

set aside the dismissal on being satisfied that there was

sufficient causefor the plaintiff not paying the court – fee and

postal charge within the time fixed for the issue of the summons

or for his non- appearance. The court may set aside the dismissal

and fix another date.

-၄ ၂ ၃

၄
 64

Rule 5:-Dismissal of suit where plaintiff fails to apply for fresh

summons.

Where, after a summon has been issued to the defe ndant

and returned unserved the plaintiff fails, for a period of three

months from the date of the return, to apply for the issue of a

fresh summons the court shall dismiss the suit as against such

defendant, unless the plaintiff has satisfied the cour t that-

-၅ (၁)

(၃)

(a)he has failed after using his best endeavours to discover the

residence of he defendant who has not been served, or

( )

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

( )

(c)there is any other sufficient cause extending the time.

( ) ၄
 65

(2)Where a suit is dismissed under the above circumstances the

plaintiff may ( subject to law of limitation ) bring a fresh suit.

(၂)

Rule 6:- Procedure when only Plaintiff appears

Rule 6:-1 Where the plaintiff appears and the defendant doe s not

appear on the date of hearing of the suit, then -

-၆ (၁)

(a)If it is proved that the summon was duly served, the court

may proceed ex -parte:

( )

"

(b)If it is not proved that the summon was duly served, the court

shall direct a second summons to be issued and served on the

defendant;
 66

( )

(c)If it id proved that the summon was served on the defendant,

but not in sufficient time to enable him to appear and answer on

the day fixed in the summons, the court shall postpone the

hearing of the suit to a future day to be fixed by the court, and

shall direct notice of such day to be given to the defendant.

( )

(2) When it is owing to the plaintiff’s default that the summons was not

duly served or was not served in sufficient time, the Court shall order

the plaintiff to pay the costs occasioned by the postponement.

(၂)
 67

Rule 7:-Procedure when defendant appears on day of adjourned

hearing and assigns good cause for previous non -appearance

Where the court has adjourned the hearing of the suit ex

parte, and the defendant, at or before such hearing, appears and

assigns good cause for his previous non-appearance, he may

upon such terms as the court directs as to costs of otherwise, be

heard in answer to the suit as if he had appeared on the day fixed

for his appearance.

-၇

Rule 8:-Procedure where only defendant appears.

 68

Where the defendant appears and the plaintiff does not

appear when the suit is called on for hearing, the court shall

dismiss the suit, unless the defendant admits the claim, or part

thereof, in which case the court shall pass a decree accordingly.

Rule 9:-Decree against plaintiff by default bars fresh suit.

(1) Where a suit is wholly or party dismissed under rule 8,

the plaintiff shall be precluded from bringing a fresh suit in

respect of the same cause of action. But the may apply for an

order to set the dismissal aside, and if he satisfies the court that

there was sufficient cause for his nonappearance when the suit

was called on for hearing, the court shall make an order setting

aside the dismissal upon such terms as to costs or otherwise as it

thinks fit, and shall appoint a day for proceeding with the suit.
 69

-၉ (၁) -၈

*
In U Aung Gyi V. The Government of Burma Case

“ On one and the same day, an advocate had a civil case fixed

for hearing as well as a session case. He hoped to finish the

sessions case before the civil case was called and made no

arrangements whatever for his representation in the civil court in

the event of the case being called earlier.

The civil case was as matter of fact called and dismissed

for default or appearance. The advocate appeared in court a few

minutes later. Held there was no sufficient cause for reopening

the case and the apparent loss or hardship to the litigant could

not be taken into account.

A court has no power to restore a case dismissed for

default, or to set aside an exparte decree, except under the

circumstances and conditions mentioned in rule 9 and 13 of

*
1940 RLR Pg 512 (F.B ).
 70

Order 9 and rule 19 of Order 41, of the civil procedure code.

Where no sufficient cause is shown for non- appearance there

can be no grounds for the application “ ex debito justitiae” of

any inherent power outside these rule.”

8
"

( )

( )

( )

8
U Aung Gyi Vs. Government of Burma. 1940. R.L.R, 512 F.B
 71

(၂)

U Sami ( alias ) Muttu Karapa pillay and one Vs. U Nyo and two
**
others

( ) ( )၂ ( ါ)၃

That when an application is made under Order 9 rule 9 of

the civil Procedure Code to set aside the order dismissing the

suit under Order 9 rule 8 of the Code, the Court shall make an

order setting aside the dismissal if it satisfied that there was

sufficient cause for non –appearance and that the Court can only

act under Order 9 rule 9.

၉ ၈

၉ ၉

-
9
" -

-၉ -၉( )

**
1962BLR ( H.C ) 204
9
U Ngwe Vs. Bama Tagun Company and I. 1961 B.L.R. 512
 72

"

-" ၂ ၂

Rule: 10-Procedure in case of non-attendance of one or more

of several plaintiff
 73

Where there are more plaintiffs than one, and one or more of then

appear, and the others do not appear, the Court may, at the instance of

the plaintiff or plaintiffs appearing, permit the suit to proceed in the

same way as if all the plaintiffs had appeared, or make such order as it

thinks fit .

-၁

Rule 11- Procedure in case of non-attendance of one or more of several

defendants

Where there are more defendants than one, and one or more of

them appear, and the others do not appear, the suit shall proceed, and

the Court shallm at the time of pronouncing judgment, make such order

as it thinks fit with respect to the defendants who do not appear.

-၁၁
 74

Rule 12-Consequence of non-attendance, without sufficient cause

shown of party ordered to appear in person

Where a plaintiff or defendant, who has been ordered to appear in

person,does not appear in person, or show sufficient cause to the

satisfaction of the Court for failing so to appear, he shall subject to all

the provisions of the foregoing rules applicable to plaintiffs and

defendants, respectively, who do not appear.

၁၂

Rule 13- Setting aside decrees or orders ex-parte

In any case in which a decree of order is passed ex-part against a

defendant, he may apply to the Court by which the decree or order was

passed for and order to set it aside; and if he satisfies the Court that the
 75

summons was not duly served, or that he was prevented by any

sufficient cause from appearinf when the suit was call on from hearing,

the Court shall make an order setting aside the decree or order as against

him upon such terms as to costs, payment into Court or otherwise as it

thinks fit, and shall appoint a day for proceeding with the suit:

-၁၃

၄ ၄

*
In Mariam Bi Bi Vs. Ahia Baqsh case Held:-

“ Thatunder Order 9 Rule 13 of the C.P.C the respondent must

satisfy the court that he was prevented, by sufficient cause from

appearing when the suit was called on for hearing and that

although it is within the discretion of the court to allow the

application, the court did not exercise its jurisdiction judicially,

as it failed to follow the law laid down by a full bench of the

High court in U Aung Gyi V. The Government of Burma 1940

R R (512 ) F.B Case”

*
1960 BLR (H.C) 390
 76

၉ ၁၃

Provided that where the decree or order is of such a nature that it

cannot be set aside as against such defendant only it may be set aside as

against all or any of the orher defendants also:

Provided also that no decree or order shall be set aside under this

rule merely on the ground that there has been an irregunarity in the

service of the summons, if the Court is satisfied that the defendant was

aware of the date of hearing in sufficient time to enable him to appear

and answer the plaintiff’s claim.

 77

( )

( ) ၃

(၁) (၁၆၄)

" ၃

( )

( )

၉
 78

၁၃

Rule:14-No decree shall be set aside on any such application as

aforesaid unless notice thereof hus been served on the opposite party.

-၁၄
 79

Key Terms

Pleading

Condition precedent

Departure

Construed

Precise

Fraudulent

Notice

Conversation

ex –parte

Burden of proof

Scamdalous

Controversy

Grant

De no vo trail

Bo na fide

Relinquished

Court fees

Exemption

Set-off
 80

Exceeding

Precluded

Sufficient cause

Set aside

Discretion

Written statement

Legally recoverable

Postpone

Time-barred

Dismissed

Process

Ex Debito Justice

Suits Valuation Act

 CHAPTER 4
‖ ၄)
EXAMINATION OF PARTIES, DISCOVERY AND
INSPECTION, ADMISSION , PRODUCTION , IMPOUNDING
AND RETURN OF DOCUMENT

4.0 Examination of Parties by the Court

4.1 Discovery and Inspection
4.2 Discover by Interrogatories
4.3 Inspection R-15-21
4.4 Admission
4.5 Production, Impounding and Return of Documents
KEY TERMS
 2

CHAPTER 4
‖ ၄)
EXAMINATION OF PARTIES, DISCOVERY AND
INSPECTION, ADMISSION , PRODUCTION , IMPOUNDING
AND RETURN OF DOCUMENT
―‚‚ ‖’ ၊ ‖’ ’ ― ‖’ ၊ ’‛ ‖
‖’ ၊ ‚ ‖ ‚ ― ’ ’ ‖’ ၊ ‖ ‖’ ’ ‖’

Order (10)
4.0 EXAMINATION OF PARTIES BY THE COURT
၁၀)
― ―‚‚ ‖’ ။

Order 10,Rule 1:-Ascertainment whether allegations in pleadings

are admitted or denied.
At the first hearing of the suit the court shall ascertain from each
party or his pleader whether he admits or denies such allegation s of
fact as are made in the plaint or written statement ( if any )of the
opposite party, and as are not expressly or by necessary implication
admitted or denied by the party against whom they are made. The
Court shall record such admissions and denials.
 3

၁၀၊ ၁။ ‛ ‖ ’ ‚ ‚‖ ― ― ’ ‛
’’ ― ― ‚‚ ‖ ’ ‖’ ။
― ― ‚‚ ‛ ― ‚‖ ― ― ’ ‖ ’
‚ ― ― ’၊ ― ’ ‛၊ ’’ ―
― ‚ ‚၊ ၎’ ― ‛ ’ ‚ ‚
‚‚ ‛ ၍ ‚‚ ‛ ‖ ― ― ။
Order10,Rule 2.- Oral examination of party, or companion of party .
At the first hearing of the suit, or at any subsequent hearing, any
party appearing in person or present in Court, or any person able to
answer any material questions relating to the suit by whom such party
or his pleader is accompanied, may be examined orally by the Court;
and the Court may, if it thinks fit, put in the course of such
examination questions suggested by either party.
၁၀၊ ၂။ ― ― ’ ၊ ၎’ ’ ―
― ’ ’ ‚‚ ‖’ ။
―‖ ’ ‚ ‚၊ ― ―‖ ’ ‚ ‚၊ ― ’
― ― ‚ ‚ ’ ၍ ’ ―
‖― ‚ ― ‛ ’ ― ၎’ ― ’ ‚‚ ‛ ‖’ ။ ―
‚‚ ‛ ’ ― ’ ’ ’ ’ ‚ ‚ ――
‖ ― ‚‚ ‖’ ။
‖ ―-
၏ ― ‖ ။ ’
―‚‚ ‛ ၎’ ၏ ― ။ ― ’၏ ―
‖ ။ ― ‚‚ ‛ ။ ၄’ ―
― ။
 4

Order10,Rule 3:- Substance of examination to be written

The substance of the examination shall be reduced to
writing by the Judge, and shall form part of the record.
၁၀၊ ၃။ ‚‚ ―‛ ‖ ― ― ‖’ ။
‚‚ ’ ―‛ ‖ ― ― ’ ― ―― ၍
၎’ ‖― ― ’ ’ ‚ ‚ ။
Order10,Rule 4:- Consequence of refusal or inability of pleader to
answer
(1)Where the pleader of any party who appears by a pleader, or
any such person accompanying a pleader as is referred to in rule 2,
refuses or is unable to answer any material question relating to the suit
which the Court is of opinion that the party whom he represents ought
to answer, and is likely to be able to answer if interrogated in person,
the Court may postpone the hearing of the suit to a future day and
direct that such party shall appear in person on such day.
၁၀၊ ၄။ ― ‛ ’’ ‛ ’ ‛ ’ ’
― ‛’ ‖ ‖ ’ ‖’ ။
၁) ―― ’ ― ‛ ’ ―
‚ ‚၊ ၂ ’ ’ ’ ― ‚ ‚၊ ’
‚ ၍ ― ‖ ― ‚‚ ‚ ― ‛ ’’ ‛ ၊
’ ’၄’ ၏ ― ‛ ’ ― ’ ― ’ ‚‚ ’၊ ‛
’ ― ― ’ ― ’ ’ ’ ― ‛’ ‖ ―
‚‚ ‚ ‛’ ၍ ’ ‛’ ’ ― ’ ―
― ’ ‛’‛‖’ ။
 5

Order10,Rule 4(2) If such party fails without lawful excuse to

appear in person on the day so appointed, the court may pronounce
judgment against him or make such order in relation to the suit as it
thinks fit.
၁၀၊ ၄ ၂) ‖ ‛ ― ’‛‖ ――
’ ― ― ’ ― ’ ― ― ’ ’ ’
―၎’ ‗ ‖ ‖’ ။ ’‚ ၍ ―
’ ’ ’ ‖ ‖’ ။

ORDER XI
၁၁)
4.1 DISCOVERY AND INSPECTION
‖’ ’ ― ‖’ ။
The nature of plaintiff's case is disclosed in his plaint; the nature
of a defendant's case is disclosed in his written statement. But a plaint
or a written statement may not sufficiently disclosed the nature of a
party ‘s case.
‚‖ ’ ―၏ ‛ ’၍
‖’ ‚ ၊ ’ ―၏ ‖ ’
‖’ ‚ ။ ‛ ( ) ‖ ‚‖၏
― ―‚ ’ ။
for the purpose of.
(1) maintaining this own case, or
(2)destroying the case of the opponent, one party may requ ire
information from another as to facts or as to document in the
 6

possession or power of his opponent, relevant to the matter is dispute.

He is entitled to know the nature of his opponent's case, so that he
may know beforehand what case he has to meet at the hearing.
‛ ―’ ― ၏ ― ‖ ― ‚ ၏ ―
― ― ― ‚ ― ’’
― ’ ’ ‚ ‛’ ‚ ‖ ‚ ― ’ ‖―
―‛ ― ’ ― ’ ‖― ― ’ ။
‚ ― ― ‛ ―’ ― ၏
― ‖’ ။
The following methods are available to parties to a civil suit to
known the nature of the case of the opposite side: -
(1) Discovery by interrogatories ( Or. 11 rule 1 to 11 )
(2) Discovery of documents ( Or. 11 rr . 12 to 19 )
(3) Admission (0r.12)
‚‖ ’ ‛ ―’ ― ၏ ― ‖’
― ‖’ ’ ။
၁) ‖ ၍ ‚ ‖’ ၁၁ ၁ ၁၁)
၂)‚ ‖ ‚ ― ‚ ‖’ ၁၁ ၁၂ ၁)
၃) ’‛ ‖ ‖’ ၁၂)

4.2 (1)Discovery by interrogatories

Order11,Rule 1.:- Discovery by interrogatories
In any suit the plaintiff by leave of court may deliver
interrogatories in writing for the examination of the oppo site parties or
any one or more of such parties and such interrogatories when
 7

delivered shall have a note at the foot thereof stating which of such
interrogatories each of such persons is required to answer : Provided
that no party to deliver more than one set of interrogatories to the
same parties without an order for that purpose: Provided also that
interrogatories which do not relate to any matters in question in the
suit shall be deemed irrelevant, notwithstanding that they might be
admissible on the oral cross-examination of a witness.

-၁၁ -၁။ ‖ ‖― ’ ‖’

‚‚ ‚ ’ ‛ ‚ ― ― ‚ ‚၊ ‚ ―
― ‚ ‚ ―― ‚ ‚၊ ― ‚ ‚၊ ‚‚
’ ၏ ‖’ ’ ‖ ‖― ‖’ ။ ―
‖ ‖― ‖ ‖ ‖ ―― ― ‛ ‚
― ’― ‖ ‖― ― ‖ ’ ။
― ‖―‚ ― ‖’ ’ ‚ ― ‖
‖ ― ‚‖ ― ။ ၄’ ’ ’‚‚ ‛ ― ’ ‖ ― ‚‚
‚ ’ ― ‛’ ‖ ‖― ― ‚‚ ‚ ―― ’
‚‚ ’ ―‖ ’ ‚‚ ‚ ―‛’ ‖’ ‖
‖― ။
Order 11, Rule 2:-Particular interrogatories to be submitted.
On an application for leave to deliver interrogatories, the
particular interrogatories proposed to be delivered shall be submitted to
the Court. In deciding upon such application, the Court shall take into
account any offer, which may be made by the party sought to be
 8

interrogated, to deliver particulars, or to make admissions, or to

produce documents relating to the matters in question, or any of them,
and leave shall be given as to such only of the interrogatories,
submitted as the Court shall consider necessary either for disposing
fairly of the suit or for saving costs,
၁၁၊ ၂။ ‖ ‖ ― ’ ‖’ ။
‖ ‖― ‖’ ― ‖
‖ ‖ ‖― ― ’ ’ ။ ’ ’ ‖ ‚
‚ ၍ ’ ’ ‖ ‖― ― ― ’‛ ’ ၊
‚ ― ― ― ’ ’ ‖ ‖― ’‚
၍ ‖’ ။

Order 11, Rule 5

Corporations

Where any party to a suit is a corporation or a body of persons. whether

incorporated or not, empowered by law to sue or be sued, whether in its own
name or in the name of any officer or other person. any opposite party may
apply for an order allowing him to deliver interrogatories to any member or
officer of such corporation or body. and an order may be made accordingly.
၁၁၊ -၅။ ― ’
‚ ‚ ―― ― ’ ‚ ’ ’
‚ ‚ ‚၊ ‚ ‚ ‚၊ ‚ ‚ ’ ’ ‚ ‚၊
’၏ ‚ ’ ‚ ‚၊ ‖ ’ ‚ ‚၊ ‚‛
― ’ ၊ ‚‛ ‖’ ‖ ― ’၊ ‖’
‚ ’ ‚ ― ‚ ― ’ ‚ ’ ’ ‚
 9

― ‚ ‚၊ ‚ ― ‚ ‚၊ ‖ ‖― ‖’ ’
― ’ ’ ။ ― ’ ‖― ’ ― ‖ ‖’ ။
Order 11 ,Rule 7:- Setting aside and striking out interrogatories
Any interrogatories may be set aside on the ground that they have been
exhibited unreasonably or vexatiously, or struck out on the ground that they are
prolix, oppressive, unnecessary or scandalous; and any application for this
purpose may be made within seven days after service of the interrogatories.
၁၁ ၊ ။ ‖ ― ‖’
‖ ‖ ― ‚‚ ‚ ― ― ’ ‚ ‚၊ ― ―
― ’ ―၍ ‚ ‚၊ ’ ― ‖ ― ’ ။
‚ ‖’ ၊ ‚ ‚― ― ‖’ ၊ ‖’ ၊ ‗
― ‚ ‖’ ၊ ‚ ― ’ ‖― ‚ ’ ’‖’ ။ ―
―― ’ ‖ - ― ’ ― ။
2. Discovery of documents. ( rule 12-19 )
‚ ‖ ‚ ― ‚ ‖’ ၊ ၁၁ ၁၂ ၁၉)

Order 11 ,Rule 12:- Application for discovery of documents.

Any party may, without filing any affidavit, apply to the Court for an
order directing any other party to any suit to make discovery on oath of the
documents which are or have been in his possession or power, relating to any
matter in question therein. On the hearing of such application the Court may
either refuse or adjourn the same, if satisfied that such discovery is not
necessary, or not necessary at that stage of the suit, or make such order, either
generally or limited to certain classes of documents, as may, in its discretion, be
thought fit : Provided that discovery shall not be ordered when and so far as the
 10

Court shall be of opinion that it is not necessary either for disposing fairly of the
suit or for saving costs.
၁၁ -၁၂။ ‚ ‖ ‚ ― ‚ ― ‖’ ။
‚‚ ‚ ― ― ― ―‛‖ ― ‚‚ ‚ ― ’ ’
‚‚ ‚ ‛’ ‖ ‚ ― ’ ‚ ‚၊ ‖ ’ ‚
‚ ၍ ‖’ ‚ ― ’ ‚‚ ‚ ’‚ ‚ ‖ ‚ ―
― ― ―‛၍ ‚ ― ‖ ― ’ ’ ―
‖’ ။
Order 11,Rule 13:- Affidavit of documents
The affidavit to be made by a party, against whom such order as is
mentioned in the last preceding rule has been made, shall specify which (if any)
of the documents therein mentioned he objects to produce, and it shall be in
form No. 5 in Appendix C, with such variations as circumstances may require.

၁၁၊ -၁၃။‚ ‖ ‚ ― ‚ ၍ ― ‖’ ။
― ―‛ ’ ―‖ ‖
― ― ― ―‛‖ ― ’ ’ ‚ ‖ ‚
― ‚ ‖ ‚ ― ‖’ ― ’ ― ――
’ ’ ― ―― ― ’ ။ ― ― ―‛ ‖ ― ―
‛― ‗) ‚ ၅) ’ ― ’ ‖’ ― ’ ’
‛’၍) ‚ ‚ ။

Rule 14:- Production of documents

It shall be lawful for the Court, at any time during the pendency of any .

suit, to order the production by any party thereto, upon oath, of such of the
documents in his possession or power, relating to any matter in question in such
 11

suit, as the Court shall think right; and the Court may deal with such documents,
when produced, in such manner as shall appear just.

၁၁၊ ၁၄။ ‚ ‖ ‚ ― ’ ‖’

‚‚ ‚ ‖ ‛ ‚ ―
’ ‚ ‚၊ ‖ ’ ‚ ‚၊ ‖’ ‚ ― ’ ‚‚ ‚
’‚ ― ’ ’ ’ ‚ ‖ ‚ ― ’
― ’― ― ‖ ‚ ’ ‚ ‚ ။ ‚ ‖ ‚
’ ― ၄’ ‚ ‖ ‚ ― ― ’ ’ ’
’ ‛ ’ ― ’ ။

4.3 INSPECTION R . 15-21

― ‚‚ ‛ ‖’
Order 11,Rule 15:- Inspection of documents referred to in pleadings or
affidavits.
Every party to a suit shall be entitled at any time to give notice to any
other party, in whose pleadings or affidavits reference is made to any document,
to produce such document for the inspection of the party giving such notice, or
of his pleader, and to permit him or them to take copies thereof ; and any party
not complying with such notice shall not afterwards be at liberty to put any such
document in evidence on his behalf in such suit unless he shall satisfy the Court
that such document relates only to his own title, he being a defendant to the suit,
or that he had some other cause or excuse which the Court shall deem sufficient
for not complying with such notice, in which case the Court may allow the same
 12

to be put in evidence on such terms as to costs and otherwise as the Court shall
think fit.

၁၁၊ ၁၅။ ‛ ‖ ― ‚ ’ ‚‖ ‚
―― ‚ ‖’ ။
‚‚ ‚ ၌ ‚ ― ၏ ‛ ‖ ’ ― ’၊―
― ―‛ ‖ ― ’ ― ’၊ ‚ ‖ ‚ ‚‚ ‚ ―
‚ ― ‚ ‚၊ ၄’ ၏ ‚ ‚― ―‖― ‚ ― ’
‚ ‛‖ ‚ ― ‖ ‛ ‚‚ ‖’ ။
‚‚ ― ‛ ’ ― ‖’ ― ၄’ ‚
‖ ‚ ’ ‚၍ ‛’ ‛’‖’ ’ ― ―‛―‛ ― ’
‚‚ ― ‖’ ‖ ― ’ ‛ ’ ’ ’
―‚ ‖ ‚ ― ’ ― ‖ ‚ ’ ’ ‖’ ‚
― ― ’ ’ ’ ― ’ ’ ’ ‚ ― ‖― ၍ ၄’ ‚
‖ ‚ ― ― ‖ ‚ ’ ’ ‖’ ’ ။

Order 11,Rule 17:- Time for inspection when notice given

The party to whom such notice is given shall, within ten days from .

the receipt of such notice, deliver to the party giving the same a notice stating a
time within three days from the delivery thereof at which the documents, or
such of them as he does not object to produce, may be inspected at the office of
his pleader, or in the case of bankers’ books or other books of account or books
in constant use for the purposes of any trade or business, at their usual place of
custody, and stating which (if any) of the documents he objects to produce and
on what ground- Such notice shall be in form No. 8 in Appendix C, with such
variations as circumstances may require.
 13

၁၁ ၁၇။ ‚ ‖ ‚ ― ‖ ―
‛‖ ‚‚ ― ‚‚ ၁၀ ― ’
‚‚ ’’ ‛ ‚ ‖ ‚ ― ― ’ ‚
‚၊ ―‚ ၏ ‚ ၊ ‖ ‚ ’‚ ၊ ― ’ ‛ ’
‚‚ ‚ ― ‚ ‚ ‚ ’ ၄’ ‚ ’
‚ ‚၊ ― ‚‚ ― ’ ‖ ’―
’ ― ’ ‚ ‖ ‚ ‚‚ ‚ ’ ‚ ‖ ‚
― ― ’ ― ’ ― ’‚ ’ ၍ ‚‚ ‚ ‚ ’
။ ‖ ‚‚ ―‛― ‗) ‚ ၈) ’ ― ’
‖’ ― ’ ’‛’၍) ‚ ‚ ။

Order11,Rule 18:- Order for Inspection ― ‚ ‖ ‖’

(1)Where the party served with notice under rule 15 omits to give such
notice of a time for inspection or objects to give inspection, or offers inspection
elsewhere than at the office of his pleader, the Court may, on the application of
the party desiring it, make an order for inspection in such place and in such
manner as it may think fit : Provided that the order shall not be made when and
so far as the Court shall be of opinion that it is not necessary either for disposing
fairly of the suit or for saving costs.

၁၁၊ ၁၈ ၁)။ ၁၅ ‚‖ ‖ ――
‖ ― ‚‚ ၍ ’၊ ― ‚ ― ―― ’၊
― ’ ‖ ’ ― ‚ ’ ― ―
― ― ― ’ ’ ’ ’― ‖
’ ။ ― ’‚ ’ ’ ‚ ‚ ‚၊ ‚ ― ― ‚
‚ ‚ ‛‖ ‖ ― ’ ― ’ ’ ’ ’ ’ ‚
 14

၍ ၄’ ‖ ။
(2)Any application to inspect documents, except such as are referred to in
the pleadings, particulars or affidavits of the party against whom the application
is made or disclosed in his affidavit of documents, shall be founded upon an
affidavit showing of what documents inspection is sought, that the party
applying is entitled to inspect them, and that they are in the possession or power
of the other party. The Court shall not make such order for inspection of such
documents when and so far as the Court shall be of opinion that it is not
necessary either for disposing fairly of the suit or for saving costs.

၂) ― ‖’ ‖ ၏ ‛ ‖ ’ ‚ ‚၊ ― ’ ‖―
’ ‚ ‚၊ ― ― ―‛‖ ― ’ ‚ ‚၊ ‚ ‖ ‚
‚ ‖ ‚ ― ’ ’ ― ― ― ―‛‖ ― ’ ‚ ‖
‚ ‚ ‖ ‚ ‖ ‚ ―― ’ ’ ―
’ ‛ ‚ ‖ ‚ ― ― ― ’ ―
‚ ‖ ‚ ― ― ― ― ’ ‚ ‖ ‚ ―
‖ ၏ ― ’ ‚ ‚၊ ၎’ ၏ ‖ ― ’ ‚ ‚။ ― ’
―― ― ―‛‖ ― ’ ― ။ ―
’‚ ’ ’ ‚ ‚၊ ‚ ― ― ‚ ‚ ‚ ‛‖ ‚ ‖ ‚
― ― ‚ ― ‖ ― ’ ’ ’ ’―
’ ’ ’‚ ‛‖ ―‖ ။

Order11,Rule 19 Verified copies.

(1)Where inspection of any business books is applied for, the Court may,
if it thinks fit, instead of ordering inspection of the original books, order a copy
of any entries therein to be furnished and verified by the affidavit of some
 15

person who has examined the copy with the original entries, and such affidavit
shall state whether or not there are in the original book any and what erasures,
interlineations or alterations ะ Provided that, notwithstanding that such copy has

been supplied, the Court may order inspection of the book from which the copy
was made.
၁၁၊ -၁၉ ။ ―’ ‖ ―
၁) ―’‛’ ‚ ‚‚ ‚ ― ― ―
’ ― ’ ’ ’ ’ ‚ ―― ‚ ‖ ‖
‖ ― ‚ ’ ’ ‖― ― ‚ ― ‚
‚၍၄’ ‚ ― ’ ‖― ’ ―‛’‚‚ ‛ ―― ― ―‛ ‖ ― ’
― ’ ‖ ― ‚ ‖’ ။ ‚ ― ‚
‚၍၄’ ‚ ― ’ ‖― ’ ―‛’‚‚ ‛ ―― ― ―‛ ‖ ― ’
― ’ ‖ ― ‚ ‖’ ။
(2)Where on an application for an order for inspection privilege is
claimed for any document, it shall be lawful for the Court to inspect the
document for the purpose of deciding as to the validity of the claim of privilege.

― ― ‖ ― ‖ ‚ ‖ ‚ ‚‚ ‚

’‚ ―’ ‖’ ― ― ’ ‛ ’ ‛ ‖’

‖’ ၊ ‖’ ―‛ ― ‛‖ ‚ ‖ ‚ ― ―
― ‖’ ’ ‚ ။

(3)The Court may, on the application of any party to a suit at any time,
and whether an affidavit of documents shall or shall not have already been
ordered or made, make an order requiring any other party to state by affidavit
whether any one or more specific documents, to be specified in the application,
 16

is or are, or has or have at any time been, in his possession or power ; and. if not
then in his possession, when he parted with the same and what has become
thereof. Such application shall be made on an affidavit stating that in the belief
of the deponent the party against whom the application is made has, or has at
some time had, in his possession or power the document or documents specified
in the application, and that they relate to the matters in question in the suit, or to
some of them.

၃) ‖ ‛ ‚ ― ― ’‚ ‖ ‚
― ’ ’‚ ၍ ― ― ―‛ ‖ ― ’ ’ ‖ ‚ ‚၊
‚ ‚၊ ― ― ―‛‖ ― ’ ’ ‚ ‚၊ ‚ ‚၊
― ’ ‚ ‖ ‚ ‚‚ ‚ ― ‚
― ’ ၎’ ၏ ‖ ― ’ ‖ ‛
― ’၊ ― ‖― ― ’ ၊ ‖ ‛ ’ ’
‖ ― ― ― ― ’ ‚ ― ― ’ ―― ―
―‛‖ ― ’ ‚ ‚ ― ― ‖ ‖’ ။
― ’ ‚ ‖ ‚ ‖ ‛ ’
― ’၊ ― ― ― ― ― ’၊ ― ‖
၏ ― ’ ၎’ ၏ ‖ ― ’ ― ―
― ― ’၊ ‚ ‖ ‚ ’ ‖’ ‚ ― ’ ’ ‚ ‚၊
‖ ’ ‚ ‚ ―‛ ’ ― ’ ― ― ―‛ ‖ ― ’ ၍ ― ― ’
’ ။
Order11,Rule 20:- Premature discovery
Where the party from whom discovery of any kind or inspection is
sought objects to the same, or any part thereof, the Court may, if satisfied that
the right to the discovery or inspection sought depends on the determination of
 17

any issue or question in dispute in the suit, or that for any other reason it is
desirable that any issue or question in dispute in the suit should be determined
before deciding upon the right to the discovery or inspection, order that such
issue or question be determined first, and reserve the question as to the
discovery or inspection.

၁၁၊ ၂၀။ ‖ ‖ ― ‖’ ။
‚‚ ‚ ― ’ ‛ ‖’ ‖ ― ’ ‛‖ ― ‚
― ‚ ‚၊ ‚‚ ‚ ’ ― ‚ ‚၊ ’’ ‛― ――၍ ―
― ― ’‖’ ‖’ ‚ ― ’ ‚‚ ‚ ― ‚ ‚၊ ’’ ‖ ― ‚‚
‚ ― ‚ ‚၊ ‛ ― ’၊ ‖ ― ’ ‚‚
‚ ― ’ ― ’‖’ ‛ ‖’ ‚ ― ’ ’’
‖ ― ‚‚ ‚ ― ‛ ’ ― ’ ― ― ―‖ ’ ‖’ ‚
― ’ ― ‚ ‚၊ ’’ ‖ ―― ‚ ‚ ‚ ‛ ‖ ၍ ―
―‚― ‛’ ‖’ ။

Order 11,Rule 21:- Non-compliance with order for discovery

Where any party fails to comply with any order to answer interrogatories
or for discovery or inspection of documents, he shall, if a plaintiff, be liable to
have his suit dismissed for want of prosecution, and, if a defendant, to have his
defense, if any, struck out, and to be placed in the same position as if he had not
defended, and the party interrogating or seeking discovery or inspection may
apply to the Court for an order to that effect, and an order may be made
accordingly.
 18

၁၁၊ -၂၁။ ‚ ― ‖ ‖’
‚ ‖ ‚ ― ― ‚ ― ――― ’၊ ―――
‚ ’ ‚‖ ― ― ― ‖’ ‖ ‚ ။ ―
―― ’ ‚၍ ‖ ‖ ― ‚‚ ‚ ’ ၄’ ‖ ‖ ―― ―၍
― ― ‖ ‖ ’ ‖’ ‖ ‚ ။

ORDER XII

4.4 ADMISSIONS
’‛ ‖ ‖’
The object of obtaining admissions is to do away with the necessity of
proving facts that are admitted.
Admissions are of the three kinds namely-
(i )Admissions in pleadings.
(ii) Admissions by agreement.
(iii) Admissions by notice. ( order 12)
‖‖ ― -
၁) ‛ ‖ ’ ‖‖ ― ‖’ ။
၂) ‚ ― ― ―‖ ‖― ’ ‖
‖― ‖’ ။
၃) ‚‚ ’‛ ‖ ‖’ ။ ၁၂)

Order12,Rule 1:- Notice of admission of case ( party's case ) Any

party to a suit may give notice, by his pleading, or otherwise in
 19

writing, that he admits the truth of the whole or an y part of the case of
any other party.
၁၂၊ -၁။ ― ’‛ ‖ ―’ ‚‚ ‖’
‚‚ ’ ‚ ‚ ― ‚ ― ၏
― ― ’၊ ‖ ― ― ’ ‖ ― ၏
‛ ‖ ’ ‛‖’ ။ ‖ ‚‚ ၍ ‖’ ။
‖―
― ‖ ‛’‛ ’ ‖‖ ― ― ’ ’ ။
၈၊ ၅ ’ ― ‖ ― ၅၈)
Order 12,Rule 2:- Notice to admit documents
Either party may call upon the other party to admit any document,
saving all just exceptions, and in case of refusal or neglect to admit, after such
notice, the costs of proving any such document shall be paid by the party so
neglecting or refusing, whatever the result of the suit may be ,unless the Court
otherwise directs; and no costs of proving any document shall be allowed
unless such notice is given, except where the omission to give the notice is, in
the opinion of the Court, saving of expense.
၁၂၊ -၂။‚ ‖ ‚ ― ’‛ ‖ ‚‚
‚ ― ‖’ ‖ ― ― ‖’ ‖ ၍ ‚ ‖ ‚ ‚‚
‚ ― ‚ ― ― ’‛ ‚ ’ ‛‖’ ။ ― ‚ ‚
‚ ― ’ ‛ ’’ ‛ ― ―― ’ ၄’ ‚ ‖ ‚‚ ― ’
’ ― ― ‚ ’― ― ’‛
― ‖ ’ ― ’’ ‛ ――― ― ။
 20

Order12,Rule 4:- Notice to admit facts.

Any party may, by notice in writing, at any time not later than nine days
before the day fixed for the hearing, call on any other party to admit, for the
purposes of the suit only, any specific fact or facts mentioned in such notice.
And in case of refusal or neglect to admit the same within six days after service
of such notice, or within such further time as may be allowed by the Court, the
costs of proving such fact or facts shall be paid by the party so neglecting or
refusing, whatever the result of the suit may be, unless the Court otherwise
directs: Provided that any admission made in pursuance of such notice is to be
deemed to be made only for the purposes of the particular suit, and not as an
admission to be used against the party on any other occasion or in favour of any
person other than the party giving the notice: Provided also that the Court may
at any time allow any party to amend or withdraw any admission so made on
such terms as may be just.
၁၂၊ -၄။ ―’ ― ’‛ ‖ ‚‚
― ‛’ ’ ‖ ’ ၉ ― ― ―
’ ― ‖ ― ― ‚ ‚၊ ― ‚ ‚ ‚ ―
‖ ‚ ‚ ၍ ’ ‛‖’ ။ ’‛ ― ၆ ― ’ ‚
‚၊ ― ‖’ ‖ ’ ‚ ‚ ’‛ ‖’ ’’ ‛ ―
―― ’၄’ ‖’ ’ ’ ၍ ― ― ‚ ―
― ‛ ― ‖ ’ ――― ’’ ‛ ―
‛ ’ ။
Order12,Rule 6:- Judgment on admissions
(1)Any party may, at any stage of a suit, where admissions of fact have
been made, either on the pleadings or otherwise, apply to the Court for such
 21

judgment; decree or order as upon such admissions he may be entitled in

without waiting for the determinations of any other question between the
parties: and the Court may, either upon such application or upon its own motion,
give such judgment or make such decree or order as the Court may think just.
၁၂၊ -၆။ ’‛ ‖‖ ― ‚ ’‖ ―‖ ‖’
(၁) ‛ ‖ ’ ၊ ‖ ၊ ‖’ ― ’‛ ‖ ―
’ ‖ ’ ‛ ‚ ― ‖ ‖’ ‚
― ’ ―‛ ‚ ’‛’ ― ’‛‖ ― ’ ―
―‚ ’‖ ―၊ ―‖ ’ ― ‖’ ။ ―
― ‖ ’ ’ ’ ’ ‖ ၊
‚ ’‖ ―‖ ‖’ ။
(2)A decree or order passed under this rule may be executed at any time
notwithstanding that other questions between the parties still remain to be
decided in the case.
(၂) ‖ ― ( ) ― ’
‚ ― ‖ ― ‛ ‖ ‛
‖’ ။

ORDER XIII
4.5 PRODUCTON, IMPOUNDING AND RETURN OF DOCUMENTS
‚ ‖ ‚ ― ’ ’ ‖’ ၊ ‖’ ’ ‖’
Order13,Rule 1:- Documentary evidence to be produced at first hearing.
(1) The parties or their pleaders shall produce, at the first hearing of the .

suit, all the documentary evidence of every description in their possession or

 22

power, on which they intend to rely, and which has not already been filed in
Court, and all documents which the Court has ordered to be produced-
၁၃၊ ၁ ‚‖ ‚ ― ‖― ―
‛’ ’ ’ ‖’
၁) ― ‚ ‚၊ ၄’ ― ‛ ’)― ‚ ‚၊ ― ’ ‚
‚၊ ‖ ’ ‚ ‚ ‛’ ’ ―
’ ’ ’ ‚ ‖ ‚ ― ‖
’ ― ’ ‖ ‚ ‖ ‚ ― ―
‛’ ’ ’ ’ ။
(2)The Court: shall receive the documents so produced : Provided that
they are accompanied by an accurate list thereof prepared in such form as the
Supreme Court of the Union directs.

၂)‛‖ ’ ’ ‚ ‖ ‚ ― ― ―‖ ။

’‚ ‖ ― ‖― ‚ ‛’‛ ‚ ’ ’‚ ’
‖ ‚ ။

Judicial
(3)Such lists shall be prepared in form ; which will be given
General 23

free of charge to parties wishing to tender documents in evidence.

၃) ― ‚ ’ ― ‚ ― ၂၃ ’
― ―― ‖ ’‚ ‖ ) ―‛’ ‛ ။
‚ ‖ ‚ ― ― ‖ ‚ ’ ’ ၎’ ‚
― ‖ ။
Order13,Rule 2:- Effect of non – production of documents
No documentary evidence in the possession or power of any party which
should have been but has not been produced in accordance with the
 23

requirements of rule 1 shall be received at any subsequent stage of the

proceedings unless good cause is shown to the satisfaction of the Court for the
non-production thereof; and the Court receiving any such evidence shall record
the reasons for so doing.
၁၃၊ ၂။ ‚ ‖ ‚ ― ’ ‖’ ― ’ ‚ ―’
‚ ― ’ ‚ ‚၊ ‖ ’ ‚ ‚ ‚ ‖ ‚
’ ’ ― ’‛‖ ’ ― ’ ’― ― ―
’ ― ’ ’ ’ ’ ’ ‖’ ။ ― ― ’
― ’ ၍ ’ ’ ‖’ ’ ’ ’ ‖’ ― ’― ။
Order13,Rule 3:- Rejection of irrelevant or inadmissible documents
The court may at any stage of the suit reject any document which
it consider irrelevant or otherwise inadmissible, recording the grounds
or such rejection.
၁၃၊ ၃။ ’ ‛’ ― ‖ ’ ‚‖ ‚
― ’’ ‖’
― ‚‚ ‛ ‛ ‖― ’ ‛ ’ ―‛’ ၊
― ‖ ’ ‚ ‖ ‚ ― ’ ။
― ’ ― ’ ― ။

Order13,Rule 4:- Endorsement on documents admitted in evidence

(1) Subject to the provisions of the next following sub-rule, there shall be
endorsed on every document which has been admitted in evidence in the suit the
following particulars, namely:—

(a) the number and title of the suit,

(b ) the name of the person producing the document,

 24

(c) the date on which it was produced, and

(d) a statement of its having been so admitted, and the

endorsement shall be signed or initialed by the Judge.
၁၃၊ ၄။ ― ‖ ‚ ―‖ ‚‖ ‚ ’
‖’
၁) ’ ― ‖ ‚ ―‖ ‚ ‖ ‚ ’ ―
― ’ ။
―) ’ ။
‖) ‚ ‖ ‚ ’ ’ ။
‗) ‚ ‖ ‚ ’ ’ ―။ ၄’ ’-
‘) ၄’ ‚ ‖ ‚ ―‖ ― ’ ။
― ‖ ―― ―― ― ။ ―
။
(2)Where a document so admitted is an entry in a book, account or
record, and a copy thereof has been substituted for the original under the next
following rule, the particulars aforesaid shall be endorsed on the copy and the
endorsement thereon shall be signed or initialed by the Judge.

၂) ‛‖ ’ ―‖ ‚ ‖ ‚ ‚ ၊ ‚ ’
’ ’ ‖ ― ‚၍ ― ’ ‖― ‚ ၄’ ―
‚ ― ’ ‚ ’ ‛‖ ― ’ ― ၄’ ‚ ’
၍ ―― ― ၊ ― ။

(3) The Court shall mark the documents which are admitted on behalf
of the plaintiff or plaintiffs with capital letters in the order in which they are
 25

admitted, thus, A, B, C, etc., and the documents admitted on behalf of the

defendant with figures, thus, 1. 2, 3, etc.
၃) ― ’ ’ ‚ ‖ ‚ ― ― ၊ ‖ ၊ ‗ ‚ ’
၍ ’ ― ’ ’ ‚ ‖ ‚ ― ၁၊ ၂၊ ၃ ‚ ’
။
(4)When a number of documents of the same nature are admitted, as for
example, a series of receipts for rent, the whole series shall bear one number or
capital letter, a small number or small letter being added to distinguish each
paper of the series.

၄) ‖ ― ’ ― ’ ― ‚ ‚ ‚ ― ‚ ‖ ‚

― ―‖ ‖ ‚ ‖ ‚ ၏ ‚ ‚ ― ‚‖

’ ― ’၊ ― ‚ ― ‚ ’ ― ’၊

။ ၎’ ‚ ‚ ’ ‚― ―‖ ’ ―

― ‚ ‚၊ ― ‚ ― ‚ ‚ ၍ ။

(5)Every document on admission shall be entered in a list in form

Judicial/general 25 prepared by the Bench Clerk and signed by the Judge.

၅) ―‖ ‚ ‖ ‚ ― ‚ ― ၂၅ ’
‚ ― ’ ―― ― ‚ ’ ’ ’ ။

Order13,Rule 5:- Endorsements on copies of admitted entries in books,

accounts and records.
1) Save in so far as otherwise provided by the Bankers’ Books Evidence
Act, where a document admitted in evidence in the suit is an entry in a letter-
 26

book or a shop-book or other account in current use, the party on whose behalf
the book or account is produced may furnish a copy of the entry.
၁၃၊ ၅။ ‚ ၊‚ ’ ‚၍ ’ ―‖ ’ ‖―
― ‚ ’ ‖― ။
၁) ―‚ ’ ’‚ ၍ ― ‖ ― ၊ ‖
‚ ’ ― ‖ ‚ ―‖ ‚ ‚ ၊ ‚
‚ ‚ ’ ‚ ‚၊ ‚ ‛’‚ ’ ‚ ’ ‚ ‚၊ ‚ ‛ ‖ ‚
’ ’ ‚ ‚၊ ’ ‖ ― ‚‚ ‚ ’ ၄’ ‚ ‚ ’― ’ ‚
၄’ ’ ‖― ― ‚ ― ’ ’ ‖’ ။
(2)Where such a document is an entry in a public record produced from a
public office or by a public officer, or an entry in a book or account belonging
to a person other than a party on whose behalf the book or account is produced,
the Court may require a copy of the entry to be furnished-

၂) ’ ― ‚ ‖ ‚ ‚ ‚ ‚ ‚၊ ‚ ‚
― ‚ ‚၊ ’ ’ ‚ ’ ―‛ ’ ’ ’ ‖ ― ‚‖
‚ ‚ ’ ― ’ ’ ‚ ‚ ‖ ‚
’‚ ‚ ’ ’ ’ ‖― ‚‖ ’ ‖― ― ‚ ―
’ ’ ‚ ― ’ ‛‖’ -
(a)where the record, book or account is produced on behalf of a party,
then by that party, or

―) ၊‚ ၊‚ ’ ‚ ― ‚ ― ’ ’

‚ ’ ’ ‛‖’ ။

(b) where the record, book or account is produced in obedience to an

order of the Court acting of its own motion, then by either or any party.
 27

― ― ‛’ ― ‖ ၍ ၊‚ ၊‚ ’

‚ ― ’ ’ ‚ ’ ‛ ’ ‛‖’ ။

(3)Where a copy of an entry is furnished under the foregoing provisions

of this rule, the Court shall, after causing the copy to be examined, compared
and certified in manner mentioned in rule 17 of Order VII, mark the entry and
cause the book, account or record in which it occurs to be returned to the person
Judicial
producing it. A note of the return should be made in the list in form .
General 25

၃) ’‛‖ ‖― ’ ‖― ― ‚

― ’ ’ ‖ ၇) ၁၇) ’
’ ‚ ― ―‚‚ ‛ ―‛ ’ ― ’ ― ‖ ―
’ ’ ‖ ―― ၍ ၎’ ‚ ၊‚ ’ ၊ ― ’ ’

။ ― ’ ‖ ―― ‚ ― ၂၅ ’
‚ ’၌ ။

Order13,Rule 8:- Court may Order any document to be impounded.

Notwithstanding anything contained in rule 5 or rule 7 of this Order or in
rule 17 of Order VII, the Court may, if it sees sufficient cause, direct any
document or book produced before it in any suit to be impounded and kept in
the custody of an officer of the Court, for such period and subject to such
conditions as the Court thinks fit.
၁၃၊ ၈။ ‚ ‖ ‚ ‚‚ ‚ ― ‖’ ‖’
― ― ’ ’ ’ ’ ‛ ’ ’ ‚ ‖
‚ ‚ ‚‚ ‚ ― ‖ ’ ― ’ ’ ’ ―
 28

’ ‖ ’ ’ ’ ’ ‚ ― ‖― ၍ ‚
― ‚ ‛’‛ ‖’ ။
Rule 9:- Return of admitted document
(1)Any person- whether a party to the suit or not, desirous of receiving
back any document produced by him in the suit and placed on the record shall,
unless the document is impounded under rule 8, be entitled to receive back the
same,—

၁၃၊ -၉။ ―‖ ‚‖ ‚ ― ‖’
၁) ‚‚ ’ ‛ ‚ ‚၊ ‚ ‚၊
’ ’၍ ’ ’ ‚ ‖ ‚ ‚‚ ‚ ― ’
၄’ ‚ ‖ ‚ ― - ၈) ‖ ’၊
(a)where the suit is one in which an appeal is not allowed, when the suit
has been disposed of, and

―) ‖ ’‖’ ‚ ’ ― ‚ ’‛ ‖ ၊

(b) where the suit is one in which an appeal is allowed when the Court is
satisfied that the time for preferring an appeal has elapsed and that no appeal
has been preferred or, if an appeal has been preferred, when the appeal has been
disposed of ;

‖) ‖ ’‖’ ‚ ’ ‖ ’ ’ ― ‖ ― ၍
‖ ― ’ ― ― ‖ ၊ ‖ ’ ’ ’ ‖ ‛
‖ ― ‚ ။
Provided that a document may be returned at any time earlier than that
prescribed by this rule if the person applying therefor delivers to the proper
 29

officer a certified copy to be substituted for the original and undertakes to

produce the original if required to do so ;

― ― ― ― ’ ― ‖ ―
‚ ‖ ‚ ― ‚ ― ’ ‚ ’ ’ ‛’
၍ ’― ’‛ ‖ ’ ’ ‖ ’ ‖ ’
‖ ― ‚ ‚ ’ ။
Provided also that no document shall be returned which, by force of the
decree, has become wholly void or useless.

‖ ― ― ’ ― ၊ ၀’ ‚

‚ ‖ ‚ ― ။

(2) On the return of a document admitted in evidence, a receipt shall be

given by the person receiving it.

၂) ― ‖ ‚ ―‖ ‚ ‖ ‚ ‚‚ ‚ ― ‖

― ― ’ ‚ ― ။

Order 13,Rule 10:- Court may send for papers from its own records
or from other Courts.
၁၃၊ ၁၀။ ― ‚၍ ‖ ‚‖ ‚
― ’ ‛ ’‖’
(1)The Court may of its own motion, and may in its discretion upon the .

application of any of the parties to a suit, send for, either from its own records
or from any other Court, the record of any other suit or proceeding and inspect
the same.

၁) ― ‚ ‚၊ ‚ ― ― ’
 30

― ’ ‚ ‚ ‚ ‛’ ‖’ ‚ ၊ ― ’၊

‖ ‚‚ ‚ ― ’၊ ‖ ‚‚ ‚ ’

‛’ ‚‚ ‚ ― ’ ‛― ‖’ ။

(2)Every application made under this rule shall (unless the Court
otherwise directs) be supported by an affidavit showing how the record is
material to the suit in which the application is made, and that the applicant
cannot without unreasonable delay or expense obtain a duly authenticated copy
of the record or of such portion thereof as the applicant requires, or that the
production of the original is necessary for the purposes of justice.

၂) ’ ’ ― ’( ―

‖ ‛’‛ ‖’ ’) ― ’ ‛’ ၌ ―
― ’၊ ― ’ ’ ’ ’ ― ― ‖’ ၊ ‚ ’― ― ‖’ ―
― ’ ― ’ ’ ― ―‖― ‚ ‚၊
‚ ’ ―‖― ‚ ‚၊ ’ ― ’ ’ ―
’ ’― ’ ’ ’ ― ’― ― ― ― ‛‖ ― ’ ―‖ ― ‚
။
(3)If the Court thinks fit to send for the record, it shall do so by sending a
formal proceeding to the Court whose record is required. No summons to
produce any record shall be issued to any record-keeper, chief clerk or official
of any Court-

၃) ― ― ’‛ ’ ’ ’ ― ― ‚
― ‚ ၍ ’‛ ။ ― ’
‚‚ ‚ ‛’ ‚ ― ‚ ‚ ―
‚ ‚ ‚ ‖’ ‚ ။
 31

(4)Whenever a Judge sends for the record of another suit or case, or other
official papers, and uses any part of such record or papers as evidence in a trial
before him, he shall direct that an authenticated copy of the part so used shall be
put up with the trial record, and shall further direct at the expense of which
party such copy shall be made.

၄) ― ‚ ‚ ―― ‖ ‚ ― ‚ ‚၊ ’‛’
‖ ‚― ― ‚ ‚၊ ’ ‚― ‖ ’―
― ―‚‚ ‛ ‚ ’ ’ ― ‖ ‚ ‖ ―
’ ― ― ’ ― ―‖―‚‚ ‛ ‚ ’
’ ’ ’ ―― ’ ―‖―
‚ ’ ― ။
(5)Nothing contained in this rule shall be deemed to enable the Court to
use in evidence any document which under the law of evidence would be
inadmissible in the suit.

၅) ‖― ၊ ― ‖ ’
― ‖ ’ ‚ ‖ ‚ ‚‚ ‚ ― ― ‖ ‚ ― ’
― ’ ‚ ။
 32

KEY TERMS
Interrogatories ။
Affidavit ― ― ၍ )― ‚ ၍‚
’ ’ ‖’ ။
Premature discovery ‖ ‖ ―
‖’ ။
Defaults ’ ― ’
――― ။
Adjourn ‖ ‖’ ။
Admissions ’‛ ‖‖ ― ။
Endorsement ‛’ ― ‖’ ။
Oath ― ‚ ‖’ ။
Impounding ’ ― ‖ ’ ‖
― ‚ ‖ ― ‛ ‖’ ။
Reject ’’
Pleading ‛ ‖
Pleader
Pronounce judgment ‚ ’‖ ―‖
Party
Discovery ‖’
Inspection ― ‚‚ ‛ ‖’
Plaintiff
Defendant ’
Irrelevant ‚ ‛’
Production ’ ’ ‖’
 CHAPTER V
SETTLEMENT OF ISSUE AND DETERMINATION OF
SUIT ON ISSUE OF LAW OR ON ISSUE
AGREED UPON

5.0 Issues
5.1 Disposal of the at the First Heading
5.2 Summoning and Attendance of Witnesses
KEY TERMS
 2

CHAPTER V
၅)
ORDER XIV
၁၄)

SETTLEMENT OF ISSUE AND DETERMINATION OF

SUIT ON ISSUE OF LAW OR ON ISSUE AGREED UPON

5.0 ISSUES

၅)
။ ၍
။

၁၁) ၁၅) ၊ ၁၁) ၁)

၊ ၆) ၅)
။
။
။
၊ ၏
Suggested Issues ။
။
 3

၁ ) ၁)
။
။
။
၊
၍
၂) ၁၉၈၆၊ ၊ ၁၃၇ ။
၍

။ ။
၁ ) ၊ ၁)
၊ ၌

၊ ၊ ၌
၊
။
၁ )၊ ၁) ၏
၊
၊
။
၁ )
။ ။
 4

၍ ) ၄)
၁ )၊ ၁၉၉၅၊ ၊၁၁ ။

Issues of law
Issues of fact

၁၄၊ ၂ ၌
၊ ၊
Additional,Issues
၁၄၊ ၅ ၍ ။

An issue is a proposition

(1) which is necessary for the determination of the suit, and

။
(2) on which the parties are at variance.
၏ ။
Thus, issues are to be framed in respect of those fact s only
which are alleged by party and denied by the other.

၍ ။
 5

It is not necessary, however, to frame issues on all the

disputed points;
။
they should be framed on but those disputed points only on
which the right decision of the case appears to depend.
၍
။
Issues arise when a material proposition fact or law is
affirmed, by party and denied by the other.

။
Each material proposition affirmed by one party and denied
by the other shall form the subject of a distinct issue;

Object of Framing Issues.

၏
Issue are framed after the pleading of the parties are
received. The object of framing issue is that each side may be made
fully aware of the questions that are about to be tried and argued in
order that each party may bring forward evidence appropriate to the
issues. It is the duty of Court to frame Issues. Issues are the
backbone of a suit.
 6

၏
။ ၏
၍
၏ ။
။ ၏ ။
Rule 1:- Framing of Issues
-၁။
( 1) Issues arise when a material proposition of fact or law is
affirmed by the one party and denied by the other.
၁) ၊ ၊ ၍
၍
။
(2) Material propositions are those propositions of law or fact
which a plaintiff must allege in order to show a right to sue or a
defendant must allege in order to constitute his defence.
၂)
။ ၊ ၊
၊
။ ။
(3)Each material proposition affirmed by one party and denied by
the other shall form the subject of a distinct issue.
၃) ၍
။
(4) Issue are two kinds.
(a)issue of fact
 7

(b)issues of law
၄) -
) ။
) ၍ ။
(5)At the first hearing of the suit the Court shall after reading the
plaint and written statements, if any, and after such examination of
the parties as may appear necessary ascertain upon what material
propositions of fact or of law the parties are at variance and sh all
there upon proceed to frame and record the issues on which the
decision of the case appear to depend.
၅) ၊ ၍
၍ ၊
၍

။
(6) The Court is not required to frame and record issues if the
defendant at the first hearing of the suit makes no defence.
၆)
။
Rule 2:- Issues of law and Facts

Where issues both of law and of fact arise in the same suit,
and the court is of opinion that the case or any part there of may b e
disposed of on the issues of law only, it shall try those issues first
 8

and may postpone the settlement of the issues of fact until after the
issues of law have been determined.
၂။ ၌ ၊
၍
၎ ၊ ၊
၄ ။

၍
။

။
Rule3:-Materials from which issue may be framed (or) From what
materials may issues be framed?

The Court may frame the issues from all or any of the
following materials.
-၃။ ။
(a) allegations made on oath by the part or by any person
present on their behalf, or made by the pleaders of such parties;
) ၊ ၄
၊ ၏ ၏ ။
 9

(b) allegations made in the pleadings or in answers to

interrogatories delivered in the suit;
) ၊
။
(c) the contents of documents produced by either party.
) ။
Rule 4:- Court may examine witnesses or documents before
framing issues
၊

The court may examine witness or documents before framing

issues where it is of opinion that the issues cannot be correctly
frame without such examination.
-၄။
။ ၍

၍) ၊ ၊
၊
။
Rule 5:- Power to amend and strike out, issue

Power to amend, and strike out, issues.

The Court may, at any time before passing a decree,
 10

(a) amend the issues, or

။
(b)frame additional issues, or
၍ ။
(c)Strike out any issues wrongly framed or introduced.
၍
။
Code of civil procedure-

Order 14 rule 3 framing of issues-

၁၄၊ ၃
Not confined to pleadings only-

May frame issues from the contents of documents.-

In Daw Htai Kin V. Aye Mai and five others * case.

Held that-"Order 14 Rule 3 of the code of civil procedure mentions
the various materials in addition to the pleadings on which issues
may be framed. The obvious intention is to provide against failure
of justice upon technical rules of pleading and to add other
materials on which proper issues may be framed . Issues are thus not
confined to pleadings only.

*
1693 BLR (C.C) 1001
 11

၆)

၁၄၊ ၃ ။

။
။
။
Order 14 Rule 3 of the code provides the court may frame
issues from the contents of documents produced by eith er party.
၁၄၊ ၃

။
၅။ ၁)
၍ ၊
။

။
၂) ၊
။
Rule 6:- Questions stated in form of issues

Parties to a suit may enter into a written agreement that upon

the finding of the Court, (in the affirmative or the negative)on a
question of fact or law, stated by them in form of an issues -
 12

-၆။ ၊

၄
၊ -
(i)one of them shall pay a sum of money or deliver some property
to the other;
) ၊
၊ ၊
၊

။
(ii)one of them shall be declared entitled to some right or subject to
some liability; or
)
၊ ၄
။ -
(iii)one or more of them shall do, or abstain from doing, some
particular act.
) ၊
၊
။
Rule 7:- Procedure thereon

The Court on being satisfied as to

-၇။ ။
 13

(i)the due execution of the agreement,

)
။
(ii)the substantial interest of the parties in the decision and
) ၄
။၄ -
(iii)the fitness of the question to be tried and decided shall record
any try the issue, state its finding or decision thereon and
pronounce judgment upon which a decree shall follow.
) ၄ ။ ၊ ၄
၍
။ ၄
၍ ။ ။

ORDER XV
၁၅)

5.1 DISPOSAL OF THE SUIT AT THE FIRST HEARING

။
Rule 1:- Parties not at issue

Where at the first hearing of a suit it appears that the parties

are not at issue on any question of law or of fact, the court may at
once pronounce judgment.
၁။
 14

။
Rule 2:- One of several defendants not at issue

defendants is not at issue with the plaintiff on any question of

Law or of fact, the Where there are more defendants than one, and
any one of the Court may at one pronounce judgment for or against
such defendant and the suit shall proceed only against the other
defendants.
၂။ ၍
၍ ၄
၊
။
Rule 3:- parties at issue

Where the parties are at issue on some question of law or of

fact, and issue have been framed by the Court as hereinbefore
provided, if the Court is satisfied that no further argument or
evidence than the parties can at once adduce is required upon such
of the issues as may be sufficient for the decision of the suit, and
that no injustice will result from proceeding with the suit forthwith,
the court may proceed to determine such issues, and, if the finding
thereon is sufficient for the decision, may pronounce judgment
accordingly, whether the summons has been issued for the
settlement of issue only for the final disposal of the suit.
 15

-၃။ ၁) ၍
၄
။
။
Provided that where the summons has been issued for
settlement of issues only the parties or their pleaders are present
and none of them objects.

၊၄ ၍
။
Rule 4:- Failure to produce evidence

Where the summons has been issued for the final disposal of
the suit and either panty fails without sufficient cause to produce
the evidence on which he relies, the Court may at once pronounce
judgment, or m ay, if it thinks fit, after framing and recording
issues adjourn the suit for the production of such evidence as may
be necessary for its decision upon such issues.
၄။ ၍

။
၄
။
 16

ORDER XVI
၁၆)
5.2 SUMMONING AND ATTENDANCE OF WTNESSES
၊ ။
The rules relating to service of summons issued to the
defendant and proof of service also apply to summons to witnesses
to give evidence or to produce documents or other material
objects.(This order is read with section 32).
၍
၊ ၊
။
၃၂။ ၃

) ။
) ၏ ။
) ၅ ) ။
)
။
Rule 1:-Summons to attend to give evidence or produce document
၊

At any time after the suit is instituted, the parties may obtain,
on application to the court, summons to persons whose attendance
is required either to give evidence or to produce documents.
 17

-၁။
၊
၊
။
Rules 2. Expenses of witness to be paid into Court on applying for
summons
(1)The party applying for a summons shall, before the summons is granted
and within a period to be fixed, pay into Court such a sum of money as
appears to the Court to be sufficient to defray the travelling and other
expenses of the person summoned in passing to and from the Court in which
he is required to attend, and for one day’s attendance
-၂။ ၁) ၊
၍

။
Provided that in cases to which the Government or a local authority is
a party—

(a)no payment into Court will be required for the travelling and other
expenses of a servant of the Government or of a local authority who may be
required to be summoned at the instance of the Government or the local
authority respectively to give evidence in his official capacity ;

)
၏
 18

(a)the amount to be paid into Court for the travelling and other expenses of
a servant of the Government or of a local authority whose salary exceeds [
Rs 30 ]1 and who may be required to be summoned at the instance of a party
other than the Government or the local authority respectively to give
evidence in his official capacity in a Court situated at a distance of more
than five miles from his head-quarters shall be equivalent to the travelling
and halting allowances admissible under the rules applicable to him in his
official capacity.

) ၅) ၌
၊

၏
၏
။
(2) In determining the amount payable under this rule, the Court may, in
the case of any person summoned to give evidence as an expert, allow
reasonable remuneration for the time occupied both in giving evidence and
in performing any work of an expert character necessary for the case.
၂)

1
Substituted for “ Rs 10" by High Court Notification No. 2 S.hedule), dated the 8th October 1948.
 19

၃)Subject to the provisions of sub-rule (2), travelling and other expenses of

witnesses, in Courts subordinate to the High Court other that the Rangoon
City Civil Court, shall be payable on the following scale .
Rule 6:- Summons to produce document

A person may also be summoned to produce a document

without being summoned to give evidence and that person will be
deemed to have complied with the summons if he causes such
document to be produced instead of attending personally to produce
the same.
-၆။ ၊
၊ ၄
။
Section 32 Penalty for default

The court may compel the attendance of any person to whom

a summons has been issued under section 30 and for that purpose
may-
၃၂

(a)issue a warrant for his arrest;

( ) ။
(b).attach and sell his property;
) ၏ ။
(c).impose a fine upon him not exceeding five thousand kyats;
 20

) ၅ ။
(d).order him to furnish security for his appearance and in default
commit him to the civil prison.
)
။
Rule 10:- Procedure where witness fails to comply with summons

10. (1) Where a person to whom a summons has been issued either to attend
to give evidence or to produce a document fails to attend or to produce the
document in compliance with such summons, the Court shall, if the
certificate of the serving-officer has not been verified by affidavit, and may,
if it has been so verified, examine the serving-officer on oath, or cause him
to be so examined by another Court, touching the service or non-service of
the summons.
၊
၌

၏
၍ ၊
။
။
၍
။
 21

(2) Where the Court sees reason to believe that such evidence or
production is material, and that such person has, without lawful excuse,
failed to attend or to-produce the document in compliance with such
summons or has intentionally avoided service, it may issue a proclamation
requiring him to attend to give evidence or to produce the document at a
time and place to be named therein; and a copy of such proclamation shall
be affixed on the outer door or other conspicuous part of the house in which
he ordinarily resides,

၂)
၊
၊

၊
၊
။

၊ ။
(3) In lieu of or at the time of issuing such proclamation, or at any
time afterwards, the Court may. in its discretion, issue a warrant, either with
or without bail, for the arrest of such person, and may make an order for the
attachment of his property to such amount as it thinks fit, not exceeding the
amount of the costs of attachment and of any fine which may be imposed
under rule 12 :

၃) ၊
၊ ၌ ၊
 22

၁၂

Provided that no Court of Small Causes shall make an order for the
attachment of immoveable property.

Rule 11:- If witness appears attachment may be withdrawn

-၁၁။ ၍ ။
11. Where, at any time after the attachment of his property, such person
appears and satisfies the Court,

(a) that he did not, without lawful excuse, fail to comply with the
summons or intentionally avoid service, and,

(b ) where he has failed to attend at the time and place named in a

proclamation issued under the last preceding rule, that he had no notice of
such proclamation in time to attend, the Court shall direct that the property
be released from attachment, and shall make such order as to the costs of the
attachment as it thinks fit-

)
၊ ၊
 23

၌ ၍
။
Rule 12:- procedure if witness fails to appear

12. The Court may. where such person does not appear, or appears but
fails so to satisfy the Court, impose upon him such fine not exceeding five
hundred kyats as it thinks fit, having regard to his condition in life and all
the circumstances of the case, and may order his property, or any part
thereof, to be attached and sold or, if already attached under rule 10, to be
sold for the purpose of satisfying all costs of such attachment, together with
the amount of the said fine, if any.
If the person, however, does not appear or appears but fails to
satisfy the court, the court may impose upon him fine not exceeding
five hundred kyats; having regard to his condition in life and the
circumstances of the case and attach and sell his property for the
recovery of the same.
၁၂။
၏ ၊
၍ ၄ ၏ ၅ -
။
၄
။
 24

Rule 19:-No witness to be ordered to attend in person unless resident

within certain limits

No one shall be ordered to attend in person to give evidence

unless he resides-
-၁၉။ ၍
။
(a) within the local limits of the Court's ordinary original
jurisdiction, or
) ၏

(b) without such limits but at a place less than fifty or (where
there is railway or steamer communication or other established
public conveyance for five-sixths of the distance between the
place where he resides and the place where the court is situate)
less than two hundred miles distance from the court -house.
) ၅
။
၂ ၍ ၏ ၊
၊
။)
Rule 20:- Consequence of refusal of party to give evidence
၏
 25

Where any party to a suit present in court refuses, without

lawful excuse, when required by the court, to give evidence or to
produce any document then and there in his possession or power,
the court may pronounce judgment against him or make such order
in relation to the suit as it thinks fit.
၂ ။
၊ ၊
၊

၄ ။ ၍
။
 26

KEY TERMS

Disposal ၊
Demeanor
Attendance
De bene esse examination
Default ၊
Oath
Proclamation ၊
Withdrawn
Pre-emption suit
Dismissal ၊
Memorandum ၊
 CHAPTER VI
‖ ၆)
HEARING OF THE SUIT
AND EXAMINATION OF WITNESS

6.0 Right to begin (Order 18)

6.1 Order 19
6.2 Order 20
6.3 Judgments of other Courts
6.4 Different Stages of a Suit
Key terms
 2

ORDER XVIII
၁၈)
HEARING OF THE SUIT AND EXAMINATION OF
WITNESSES
― ‖ ― ― ‖

6.0 Order 18,Rule 1 Right to begin.-

As a rule the plaintiff has to prove his case and therefore must
begin. But if the defendant admits the facts alleged by the plaintiff and
contends that either in point of law or on some additional facts alleged
by the defendant the plaintiff is not entitled to any part of the relief
which he seeks, the defendant has the right to begin.
၁၈၊ ၁။ ― ‖
― ― ‖ ။ ၏
‖― ― ― ‖၍၊ ― ၊
― ‖ ― ― ၊ ၏ ‖―
― ― ―‖‖ ‖ ‖― ― ―
‖ ။

‖ ―။
― ― ― ‖ ― ၁၃၀
။ ― ― ― ။၄ ―
― ― ။၄ ― ― ―
― ‖ ။
 3

Order18,Rules 2 -Statement and Production of evidence

(1) On the day fixed for the hearing of the suit or on any other day to which
the hearing is adjourned, the party having the right to begin shall state his case
and produce his evidence in support of the issues which he is bound to prove.
၁၈၊ -၂။ ― ― ‖ ― ‖ ။
၁) ―― ‖ ― ၊ ―
‖ ― ၊ ― ‖ ― ၏ ―
― ‖― ―
‖ ― ― ။
(2) The other party shall then state his case and produce his evidence
(if any) and may then address the Court generally on the whole case :
၂) ၄ ― ― ― ― ― ၍ ―
။ ‖ ― ―၍ ― ‖ ။
Provided that the Court may, in its discretion, call upon the other party to
proceed under this sub-rule before the evidence for the party having the right to
begin is complete if it considers that the other party will not be prejudiced by so
proceeding and that unnecessary inconvenience and delay will thereby be
avoided.
၎ ― ― ‖
― ― ‖‖ ― ― ―
‖ ။ ― ‖ ― ―‖
― ‖
― ― ‖ ။
 4

(3) The party beginning may then reply generally on the whole case.

၃) ၄ ― ― ‖ ၍ ‖ ‖ ။

Order 18, Rule 3 Evidence where several issues.

Where there are several issues, the burden of proving some of which lies
on the other party, the party beginning may, at his option, either produce his
evidence on those issues or reserve it by way of answer to the evidence
produced by the other party: and in the latter case, the party beginning may
produce evidence on those issues after the other party has produced all his
evidence, and the other party may then reply specially on the evidence so
produced by the party beginning; but the party beginning will then be entitled to
reply generally on the whole case.

၁၈၊ -၃။ ‖― ‖ ― ‖
‖― ‖ ‖ ‖― ― ― ―
၊ ၄ ‖― ― ― ―
― ‖ ။ ― ―
― ―‖ ― ― ‖
‖ ။ ― ― ― ၏ ― ―
― ― ― ၏ ― ― ‖ ။ ―
― ― ―‖ ―― ― ― ‖
‖ ။ ― ‖ ― ― ‖
၍ ‖ ‖ ။
 5

Order18,Rule 4 -Witnesses to be examined in open Court.

The evidence of the witnesses in attendance which the judge thinks
necessary shall be taken orally in open Court in the presence and under the
personal direction and superintendence of the Judge.

၁၈၊ -၄။ ― ― ‖ ။

― ―― ―
၏ ― ‖‖ ―― ‖ ― ― ―၌ ၎ ၏
― ― ― ― ။

Order18,Rule 5. How evidence shall be taken in appealable cases.

In cases in which an appeal is allowed, the evidence of each witness shall
be taken down in writing in the language of the Court or in English by or in the
presence and under the direction and supervision of the Judge, not ordinarily in
the form of question and answer, but in that of a narrative, and when completed
shall be read over or translated to the witness by such person as the Judge may
direct, provided that the Judge may, if he thinks fit, require the evidence to be
read over in his own presence.

၁၈၊ ၅။ ‖‖ ― ―‖ ――
။
‖‖ ― ၏ ― ‖― ―
―― ၊ ― ― ― ― ― ၍ ၊
― ၊ ―
။ ၄ ― ‖‖ ―― ‖ ― ―
၎ ― ။ ――
 6

― ‖‖ ―― ‖ ။ ―
‖‖ ―― ‖ ― ― ‖‖ ― ― ‖
― ― ‖ ― ။
Such person shall, after reading over the deposition to the witness,
append a certificate at the foot of the deposition form as follows: —

Re ad over
by me in Myanmar or (as the case may be) and acknowledged
Interprete d

correct.

(Signature.)

Interpreter or Clerk.

The evidence so taken shall be read over to the witness, and, if he admits
it to be correct, shall be signed by him on every page, and the Judge shall, if
necessary, correct the same and sign it. Judge shall, if necessary, correct the
deposition and sign it.

) ― ―
― ‖ ။

― ― ‖‖ ―― ― ― ―
‖ ၎ ― ― ― ။ ―
― ― ‖‖ ― ― ။

Order 18,Rule 6:- When deposition to be interpreted

Where the evidence is taken down in a language different
from that in which it is given, and the witness does not understand the
language in which it is taken down, the evidence as taken down in
writing shall be interpreted to him in the language in which it is given.
 7

၁၈၊ ၆။ ― ―‖ ―― ‖ ‖ ။
― ―‖ ―― ― ၊ ‖
― ― ―
―‖ ―― ― ၍ ― ― ― ။
Order 18,Rule 10:-Any particular question and answer may betaken
down
The Court may of its own motion or on the application of any
party or his pleader, take down any particular question and answer, or
any objective to any question, if there appears to be any special reason
for so doing.
၁၈၊ -၁၀။ ‖ ― ‖ ။
၊ ― ―
― ‖― ၄ ‖― ―
။
Order 18,Rule 11:-Questions objected to and allowed by Court.
Where any question put to a witness is objected to by a party or
his pleader, and the court allows the same to be put, the Judge shall
take down the question, the answer, the objection and the name of the
person making it, together with the decision of the court thereon.
၁၈၊ ၁၁။ ― ―― ―‖ ‖ ။
― ―― ‖ ―
― ၊ ၄ ၏ ― ၊ ― ―― ‖ ―
―‖ ‖ ‖ ―၊ ‖ ―၊ ― ――‖ ―၊ ― ―― ၏
― ―― ။
 8

Order,18,Rule 12:-Remarks on demeanor of witnesses

The Court may record such remarks as it thinks material
respecting the demeanor of any witness while under examination.
၁၈၊ ၁၂။ ― ၏ ― ― ‖ ‖ ။
၍ ― ― ―
‖― ― ― ‖ ။

Order 18,Rule 13:- Memorandum of evidence in appealable cases.

In cases in which an appeal is not allowed, it shall not be
necessary to take down the evidence of the witnesses in writing at
length, but the Judge, as the examination of each witness proceeds,
shall make a memorandum of the substance of what he deposes, and
such memorandum shall be written and signed by the Judge and shall
form part of the records.
၁၈၊ -၁၃။ ‖‖ ― ―‖ ――
‖ ။
― ―‖ ― ― ‖‖ ― ၀
။ ― ― ―‖ ― ― ――
― ။ ― ‖ ―― ――
― ― ၍ ၀ ။

Order 18,Rule 14:-Judge unable to make such memorandum to

record reasons of his inability
 9

(1)Where the judge is unable to make a memorandum as required

by this order, he shall cause the reason of such inability to be recorded,
and shall cause the memorandum to be made in writing from his
dictation in open Court.
၁၈၊ ၁၄။ ― ― ‖― ― ‖

(၁) ― ―― ― ―
― ၍ ―― ။ ၄ ‖―
― ―― ― ―
။
(2)Every memorandum so made shall form part of the record.
၂) ― ‖― ၀
။

Order 18,Rule 15:-Power to deal with evidence taken before another

Judge
(1)Where a judge is prevented by death transfer or other cause
from concluding the trial of a suit, his successor may deal with the
evidence or memorandum taken down or made as if such evidenc e or
memorandum has been taken down or made by him or under his
direction under the said rules and shall proceed with the suit from the
stage at which his predecessor left it.
 10

၁၈၊ ၁၅။ ‖ ― ―
― ―‖ ―― ‖ ‖ ‖ ။
၁) ― ― ၍ ၊ ― ‖
― ၊ ‖ ― ― ၊
‖ ― ―‖ ― ―
― ၊ ―
― ― ― ‖ ‖
― ― ― ။
(2)The provisions of sub-rule (1) shall, so far as they are
applicable, be deemed to apply to evidence taken in a suit transferred
under section 24.
၂) ၁) ‖― ၂၄ ‖
― ‖‖ ― ― ―
― ။
Subject to section 24 of civil Procedure code, the
succeeding Judge may retry the suit, afresh. That is called do no vo
trial.
― ၂၄― ― ―‖
― ― ― ‖ ။ ‖ ―
*
‖ ‖ ။

Order 18, Rule 16 -Power to examine witness immediately

(1)where a witness is about to leave the jurisdiction of the Court,
or other sufficient cause is shown to the satisfaction of the Court why

*
de-novo trial
 11

his evidence should be taken immediately, the Court may, upon the
application of any party or of the witness, at any time after the
institution of the suit, take the evidence of such witness in manner her
in before provided.
၁၈၊ ၁၆။ ― ―‖ ―‖ ‖ ။
၁) ― ― ၏ ‖ ―
― ― ၄ ― ― ‖―‖
― ― ― ― ― ―
၊ ၄ ― ― ၊ ― ‖ ― ‖
၄ ― ― ― ‖ ။ ‖ ― ― ―‖ ―
‖ ‖ ‖ ။
(2)Where such evidence is not taken forthwith and in the
presence of the parties, such notice as the court thinks sufficient of the
day fixed for the examination shall be given to the parties.
၂) ‖ ― ‖‖ ― ― ‖―‖
‖ ‖― ―၊ ‖ ၍ ― ―
― ‖ ။
(3)The evidence so taken shall be read over to the witness, and if
he admits it to be correct, shall be signed by him, and the Judge shall,
if necessary, correct the same, and shall sign it, and it may then be read
at any hearing of the suit.
၃) ‖ ― ‖‖ ―― ― ―
။၄ ― ― ― ― ၀ ‖ ― ၍ ――
၍ ― ― ၄ ― ‖‖ ―― ၊
‖ ‖ ‖ ။
 12

Order 18,Rule 17:-Court may recall and examine witness

The Court may at any stage of a suit recall any witness who has
been examined and may (subject to the law of evidence for the time
being in force) put such questions to him as the Court thinks fit.
၁၈၊ ၁ ။ ― ― ― ၍ ‖ ‖ ။
― ‖ ― ― ‖ ―
―― ‖ ‖― ―
‖ ― ― ၍) ― ‖
‖ ―― ‖ ။

Order 18,Rule 18:-Power of Court to inspect

The Court may at any stage of a suit inspect any property or thing
concerning which any question may arise.
၁၈၊ ၁၈။ ―― ‖ ‖
― ‖ ― ― ‖ ၊
၀ ― ―― ‖
။
The object of local inspection is to enable the Judge to
understand the evidence. The inspection should be made before
arguments are heard. According to the above mentioned rule 18 the
court decided about the local inspection in Ma Aye Yon Vs. Mg Po
Thein Case. * " Order 18 rule 10 of the civil procedure Code allows the
court to inspect the locality in which the subject matter or the suit lies.

*
1959 BLR H.C 253.
 13

The object of the Provisions in that rule is to enable the judge to

understand and follow the evidence. This rule however does not entitle
the Judge to put his own view on inspection in the place of evidence
nor does it allow him to contradict a witness. In other words, he cannot
substitute his own view of the matter for evidence in the case.
― ‖ ၏ ‖― ―
― ‖‖ ― ― ― ။ ― ‖
― ― ။ ၂၀
၁၈ ၌ ‖ ― ―၍ ― ‖
― ‖ ― ―‖ ။
― ― ― ― ― ―
‖ ။ ― ‖‖ ― ― ―၏ ―
― ။

ORDER XIX
၁၉)
6.1 Affidavits
― ― ― ‖―
(Read with section 30 and section 139 of C.P.C)
Section 30 (c) order any fact to be proved by affidavit.
၃၀ ‗) ― ‖― ― ― ― ‖―
― ‖ ။

Order19,Rule 1:-power to order any point to be proved by Affidavit

Any Court may at any time for sufficient reason order that any
particular fact or facts may be proved by affidavit, or that the affidavit
 14

of any witness may be read at the hearing on such conditions as the

Court thinks reasonable:
၁၉၊ ၁။ ‖ ―― ― ― ― ‖―
‖ ‖ ‖
― ― ― ‖
― ‖― ၍ ‖ ‖ ― ၊
― ၊ ― ― ― ‖― ‖ ―
― ―၏ ― ― ― ‖ ―― ―
― ‖‖ ။
Provided that where it appears to the Court that either party bona fide
desires the production of a witness for cross-examination, and that such witness
can be produced, an order shall not be made authorizing the evidence of such
witness to be given by affidavit.
――
― ―― ‖ ― ၊ ၄ ― ―
‖ ― ― ― ၄ ― ၏ ―‖ ――― ―
― ‖― ‖ ‖ ။
Subject to above rule 1 of Order 19 the judge decided about the
affidavit in Mrs.L.Stevenson and one Vs. Ma Hla Yin * Case. Held :-
"Although an affidavit ought not ordinarily to be considered as
evidence, it is clearly admissible as evidence if it can brought within
the purview of Order 19 of the Civil Procedure Code".

*
1954 B.L.R P.179 (H.C)
 15

― ―
) ― ‖ ― -၁၉
― ‖ ။
And also Bo Kyi Myint V. Controller of Rents, Yangon case, **
held that "Statements in affidavits should not be made loosely or
irresponsibly. An affidavit is made on oath and as such is a solemn
statement and case should be taken that loose statements are not made".
― ‖― ―
― ― ― ― ― ၍ ― ― ‖―
―‖ ― ။
Order 19,Rule 2:- Power to order attendance of deponent for cros -
examination
(1)Upon any application evidence may be given by affidavit, but the Court
may, at the instance of- either party, order the attendance for cross- examination
of the deponent.
၁၉၊ ၂။ ― ― ― ― ―
― ‖ ‖
၁) ― ‖― ― ―‖ ―― ― ― ―
‖― ‖ ။ ― ― ―
― ― ― ― ― ‖ ― ―
‖‖ ။
(2 ) Such attendance shall be in Court, unless the deponent is exempted
from personal appearance in Court, or the Court otherwise directs.

**
1952. B.L.R. (S.C) 185.
 16

၂) ― ― ‖ ― ― ‖
‖ ‖ ၊ ― ‖ ‖
― ― ။

Order 19,Rule 3:- Matters to which affidavits shall be confined

(1) Affidavits shall be confined to such facts as the deponent is able of his
own knowledge to prove, except on interlocutory applications, on which
statements of his belief may be admitted provided that the grounds thereof are
stated.

၁၉၊ ၃။ ― ― ― ‖― ― ‖ ။
၁) ― ― ‖― ― ― ― ‖―
― ― ၍ ‖ ။ ―
― ‖― ၄ ― ― ― ― ‖― ― ―
― ‖ ― ― ―‖‖ ။
(2) The costs of every affidavit which shall unnecessarily set forth
matters of hearsay or argumentative matter, or copies of or extracts from
documents, shall (unless the Court otherwise directs) be paid by the party filing
the same.

၂) ― ― ― ၊ ‖ ‖ ―
― ― ၊ ‖ ―‖၊ ‖
‖― ― ― ― ― ‖― ―
― ― ― ― ‖ ‖
―― ‖ ။
 17

section 139. Oath on affidavit by whom to be administered

In the case of any affidavit under this Code—

(a) any Court or Magistrate, or

(b) any officer or other person whom the High Court may
appoint in this behalf, or

(c) any officer appointed by any other Court which the President
of the Union has generally or specially empowered in this
behalf, may administer the oath to the deponent.

၁၃၉။ ― ― ― ― ‖ ‖― -

―) ― ၊ ― ― ၊

‖) ― ― ―― ‖ ‖ ) ―‖
‖ ― ၊

‗) ― ― ― ‖

‖ ‖― ‖ ― ၊

― ― ― ―― ― ‖ ။

ORDER XX

၂၀)
6.2 JUDEMENT AND DECREE
‖― ‗
Order 20,Rule 1:- Judgment when pronounced.
The court, after the case has been heard, shall pronounce
judgment in open Court, either at once or on some future day, of which
due notice shall be given to the parties or their pleaders.
 18

၂၀ -၁။ ‖ ‖ ―‖ ‖ ။
― ― ― ― ―
‖ ―‖ ။ ― ‖ ‖ ―
― ၊ ၄ ၏ ― ― ။
Contents of judgment
‖― ‖―
(i)A concise statement of the case
(ii) the points for determination
(iii) the decision thereon
(iv) the reason for such decision,
(v) the date and signature of the Judge in open court at the time of
pronouncing it
(vi) where issues have been framed, the finding with reasons therefore
on each separate issue shall be stated.
၁) ― ― ‖ ၊
၂) ― ‖―
၃) ၎ ‖― ― ‖
၄) ― ― ― ၊
၅) ‖ ‖ ―‖ ‖ ၌ ― ၏ ― ― ၊
၆) ‖― ‖― ‖ ‖― ။
Order 20,Rule 2:-Power to pronounce judgment written by Judge's
predecessor.
A judge may pronounce a judgment written but not
pronounced by his predecessor.
 19

၂၀ -၂။ ‖ ― ‖ ‖ ――‖ ‖ ။
― ―― ‖ ‖ ――
―‖ ― ――‖ ‖ ။
In the case of Mg Sein Mye and one Vs: Mg Tun Pe and one *
case the judge held that " the delivery of judgment, without previous
notice, was illegal and as the illegal action of the officiating Judge and
deprived the application of their right to apply for a certificate there
was sufficient reason for granting a reviews".
၊
၄ ― ― ‖ ―‖ ‖
‖ ―‖ ‖ ။
And also Hargulal Vs Abdul Gany Hajec Ishag and one ** Case.
"Judgment written by ex-judge pronouncement the judgment by
successor in office-Validity of judgment –Judge on leave or retired
Judge (Order 20, Rule 2). In Case, the judge held that - " Even after a
Judge has ceased to have jurisdiction because he has retire d or has
proceeded on leave or has been transferred from the court in which a
trail was held he is entitled, having heard the evidence, to write and
sign a judgment in the case, and his successor in his discretion may
pronounce the judgment in his stead. Order 20, Rule 2 of the civil
procedure Code provides that a Judge may pronounce a judgment,
written but not pronounced by his predecessor, and it makes no
difference whether the latter is on leave or has retired.

*
6 Ran 794
**
14 Ran 136 F.B
 20

‗ ) ‗ ‗ ― ―
။ ― ― ‖
‖ ―― ‖ ။ ‖ ။ ― ၂၀၊
၂ ― ―― ‖
‖ ―― ―‖ ― ――‖ ‖ ။
And also, Daw Lay and 3Vs.U Mg Gyi case * the decision is
"where argument were heard by one Judge who prepared the judgment
and left it be pronounced by his successor, and that successor delivered
the judgment under Order 20 Rule 2 of civil Procedure code and
subsequently the same Judge became District and session Judge and in
that capacity decided the appeal also .
Held by the Full Bench – That he was not competent to hear the
appeal. The language used in Order 20 Rule 2, civil p rocedure code is
that a judge may pronounce a judgment written but not pronounced by
his predecessor. This power is discretionary, and whether a Judge
should exercise such discretion is a matter depending on the facts of
each case. Pronouncing a judgment is part of the trial, and if the Judge
is in doubt as to the correctness of such judgment, he an either proceed
under order 18 rule 15, civil procedure Code or hear the case do no
vo".
၃ ― ― ။
― ― ― ‖― ― ‖
၍၄ ― ― ―‖ ―― ‖ ―― ‖
― ။ ‖ ―― ‖ ― ―

*
1951 BLR 34 H.C
 21

၍ ‖ ― ‖ ‖ ။ ―
‖ ― ‖ ―― ― ၍ ‖ ‖― ‖ ―
― ― ၍ ― ‖ ―‖ ― ။ ‖ ―― ―
၍ ‖ ― ‖ ―
― ‖ ― ‖ ― ။
― ―‖ ― ― ‖ ‖ ၍
― ‖ ‖― ― ― ၁၈)
၊ ၁၅ ― ။ ― ၍
။

Order 20,Rule 3:- Judgment to be signed

The Judgment shall be dated and signed by the Judge in
open Court at the time of pronouncing it and, when once signed, shall
not afterwards be altered of added to, save as provided by section 152
or on reviews.

၂၀၊ -၃။ ‖― ― ‖ ။
‖ ―― ‖ ‖ ―― ၍ ―
‖ -၁၅၂ ‖ ―― ‖ ‖
၄ ‖ ―― ‖ ‖ ။

6.3 JUDGMENTS OF OTHER COURTS

Order 20,Rule 4-(2) Judgments of other Courts
Judgments of other Courts shall contain a concise statement of the case, the
points for determination, the decision thereon, and the reasons for such decision.
 22

၂၀၊ ၄ ၂) ‖ ၏ ‖― ။
‖ ‖ ‖― ― ― ‖ ၊
― ‖― ၍၄ ‖― ― ‖ ၍ ‖
‖― ― ― ‖ ‖― ။
In the case of Mg Sa Vs. Ma U Ma and one (1 Ran 270) Case the
judge held about above mentioned rule 4 of order 20.
"The discretion given to the Judges of small causes Courts by
order 20 rule 4(1) , should be exercised with due regard to the
circumstances of each case and, except in cases of every day
occurrence, the judgment should set out the particulars of the suit and
give reasons for the decisions arrived at.
― ― ―
‖ ― ၏ ― ― ― ၍ ―
― ‖― ― ― ‖
― ― ― ။

Order 20,Rule 5:- Court to state its decision on each issue

In suits in which issues have been framed, the court shall
state its finding or decision, with the reasons therefore, upon each
separate issue, unless the finding upon each separate issue, unless the
finding upon any one or more of the issues sufficient for the decision
of the suit.
၂၀၊ ၅။ ‖― ၏ ―― ‖ ―― ―
‖ ။
 23

‖― ‖― ‖ ၊
၊ ‖― ― ‖― ―
‖― ‖― ― ― ‖ ၏
― ― ― ။
Order 20,Rule 6:- Contents of decree
(1)The decree shall agree with the judgment, it shall contain the
number of the suit, the names and description of the parties, and
particular of the claim, and shall specify clearly the relief granted or
other determination of the suit.
-၆။ ― ― ။
၁) ― ‖― ―― ။၄ ―
၊ ၊ ― ― ― ‖
― ‖ ‖ ‖ ‖― ― ။
(2) The decree shall also state the amount of costs incurred in the
suit, and by whom or out of what property and in what proportion such
costs are to be paid.
၂) ― ၌ ― ― ၊ ၄ ― ―
‖ ―‖ ― ။
(3) The Court may direct that the costs payable to one party by
the other shall be set off against any sum which is admitted or found to
be due from the former to the letter.
၃) ― ― ―
― ―
―‖ ― ‖ ။
 24

Order 20,Rule 7:- Date of decree

The decree shall bear date the day on which the judgment
was pronounced, and, when the Judge has satisfied himself that the
decree has been drawn up in accordance with the judgment, he shall
sign the decree.
၂၀၊ - ။ ― ‖ ။
― ‖ ―‖ ―― ။ ― ‖―
― ―― ― ―‖ ― ― ―
။
Subject to above rule 7, in U PO Than V. Ma Thit Case * the
judge decided that " The date of the decree must correspond to the
signing of the decree may happen to be.
― ― ―
― ― ― ―
― ― ။
Order 20,Rule 8:-Procedure where Judge has Vacated office before
signing decree
Where a Judge has vacated office after pronouncing
judgment but without signing the decree, a decree drawn up in
accordance with such judgment may be signed by his successor or, if
the Court has ceased to exist, by the Judge or any Court to wh ich such
Court was subordinate.
၂၀၊ ၈။ ― ― ― ―

*
1930 A. I .R. Ran 67
 25

― ― ‖ ―‖ ― ― ― ―
၄ ‖― ။ ― ― ―‖
―― ၊ ― ၄ ――
― ― ― ‖ ။
Order 20,Rule 9:- Decree for recovery of immoveable property
Where the subject-matter of the suit is immoveable property, the decree
shall contain a description of such property sufficient to identify the same, and
where such property can be identified by boundaries or by numbers in a record
of settlement or survey, the decree shall specify such boundaries or numbers.

၂၀၊ ၉။ ― ―
‖ ၊ ၄ ―
― ‖ ― ― ―
။ ၄ ― ― ၊ "
― ၊‗
― ၊ ‖‖ ၄ ― ‖ ‗
။
Order 20,Rule 10:- Decree for delivery of moveable property
Where the suit is for moveable property, and the decree is for the
delivery of such property, the decree shall also state the amount of money to be
paid as an alternative if delivery cannot be had.

၂၀၊ -၁၀။ ― ―
― ၍ ― ၄ ―
၄ ― ၄ ―
၍ ။
 26

In Ma Nyunt Yi and one Vs. Mg Lu Gale Case *Held that- "The

mere fact that a decree for possession of moveable property drawn up
under Order 20 Rules 10, civil procedure Code is defective due to the
omission to state the amount of money payable in the alternative is n ot
such as to ender it in executable under Order 21 of the Code.
၂ ― ― ၂၀၊
၁၀ ― ― ―
――― ― ၂၁ ။
Order 20,Rule 11:- Decree may direct payment by installments
(1)Where and in so far as a decree is for-the payment of money, the Court
may for any sufficient reason at the time of passing the decree order that
payment of the amount decreed shall be postponed or shall be made by
installments, with or without interest, notwithstanding anything contained in the
contract under which the money is payable.

၂၀၊ -၁၁။ ― ‖ ‖ ။
၁) ― ― ― ― ― ―
― ‖
၄ ― ၊ ၊ ― ―
‖ ― ၊ ၊ ― ― ‖
‖ ‖ ‖ ။
(2)After the passing of such money decree the Court may, on
application of the Judgment debtor and with the consent of the decree
holder, order that payment shall be postponed or made by installments.

*
1962 BLR C.C 175
 27

၂) ― ‖ ― ― ― ― ―
― ― ― ― ― ― ―
၊ ― ‖ ။
According to above rule 11, in U Ba Thwin and one Vs. U
Ba Than and one case the judge decided that" where an order for
payment by installments is made at the time of the passing of the
decree under the provisions of order 20 Rule 11(1) of the civil
procedure code it forms part of the decree and is appeal as such.
However, when an order is made subsequent to the passing of the
decree as provided for in Rule 11(2) it is an order relating to the
execution, discharge or satisfactory of the decree and is there for
appealable under Section 2(2) read with Section 47 of the Code. Where
in a suit for the recovery of money the court passed a decree for
payment of the amount claimed with a direction that the decrial amount
be paid in monthly installments and where this order is sought to be
assailed in a civil miscellaneous appeal. Held: That the order under
consideration comes under the first category and that it can, therefore,
be questioned only if the appeal is made against the decree in which it
has been incorporated.
၂ ၂ ၂၀၊ ၁၁ ၁) ―
― ― ‖ ‖ ― ‖ ‖ ။
၂၀၊ ၁၁ ၂) ― ― ‖ ‖
― ― ‖ ― ― ― ‖ ။ ―
‖ ) ― ‖ ) ‖
 28

၍ ― ― ― ―
။
Order 20,Rule 12:- Decree for possession and means profits
(1)Where a suit is for the recovery of possession of immoveable
property and for rent or mesne profits, the Court may pass a decree—
(a) for the possession of the property ;

(b ) for the rent or mesne profits which have accrued on the

property during a period prior to the institution of the suit or
directing an inquiry as to such rent or mesne profits ;

(c) directing an inquiry as to rent or mesne profits from the

institution of the suit until—

(i) the delivery of possession to the decree-holder,

(ii) the relinquishment of possession by the judgment-

debtor with notice to the decree-holder through the
Court, or

(iii) the expiration of three years from the date of the

decree, whichever event first occurs.

-၂၀၊ ၁၂။ ― ― ― ― ― ။
၁) ၍ ‖
― ―
― ‗ ‖ ‖ -
―) ၄ ― ― ― ― ။
 29

‖) ― ၄ ‖
― ―
၍၄ ‖ ၍ ‖ ။
‗) ― -
၁) ‗ ― ― ― ။
၂) ‗ ၍ ― ― ―
― ။
၃) ‗ ‖ ― ၊ ― ။ ― ―
‖ ― ‖ ―
၊ ၍ ― ―
‗ ‖ ‖ ။
(2) Where an inquiry is directed under clause (b) or clause (c), a final
decree in respect of the rent or manse profits shall be passed in accordance with
the result of such inquiry.
၂) ‖) ― ၊ ‗) ― ၊
‖ ၊ ‖― ‖
― ― ၍
― ‖ ။
Order 20,Rule 13:- Decree in administration suit
(1)Where a suit is for an account of any property and for its due
administration number the decree of the court, the court shall, before
passing the final decree, pass a preliminary decree, ordering such
accounts and inquires to be taken and made and giving such other
directions as it thinks fit.
 30

၂၀၊ -၁၃။ ― ― ။
၁) ― ― ၍ ―
― ― ― ― ―‖ ‖
― ― ― ၊ ― ―
‖ ―‖ ― ―‖ ။
(2) In the administration by the Court of the property of any deceased
person, if such property proves to be' insufficient for the payment in full of his
debts and liabilities, the same rules shall be observed as to the respective rights
of secured and unsecured creditors and as to debts and liabilities provable, and
as to the valuation of annuities and future and contingent liabilities respectively,
as may be in force for the time being within the local limits of the Court in
which the administration suit is pending with respect to the estates of persons
adjudged or declared insolvent ; and all persons who in any such case would be
entitled to be paid out of such property may come in under the preliminary
decree, and make such claims against the same as they may respectively be
entitled to by virtue of this Code.
၂) ― ― ― ‖
― ― ― ― ―
‖ ‖
―― ‖ ― ― ၍
‖ ၊ ‖
― ၊ ― ― ၊ ― ၍
― ၊ ― ― ― ― ‖
― ― ― ။ ‖
― ‖
 31

― ‖ ― ― ―
‖ ။
A final decree embodying the result of such accounts and
inquires, Subject to the above rule 13 of Order 20, in Daw Than Vs. Ma
Mya Yi case * the judge decided that "A decree for suit for
administration and accounts for ancestral property must be passed in
accordance with the provision of Order 20. Rule 13 and for that
purpose preliminary decree must be passed firstly and there after the
final decree must be followed. In what manner, the final decree has to
be drawn is not specifically mentioned. But it has to be in t o with the
terms and conditions of the preliminary decree".
―၏ ― ― ‖ ၄
― ၄ ― ― ‖ ။
― ― ‖ ‖
― ― ― ။ ― ― ‖
။ ― ― ၊ ‖― ‖။
― ― ‖― ― ― ။
Note:- Administration Suit. – When a person dies, a creditor, a
legatee an executor or administrator or next-of kin of the deceased
person may file a suit praying that the estate of deceased be
administered by and under the directions of the court.
- ― ‖ ၊
‖ ) ၏ ― ၏ ― ‖―
၏― ― ‖ ‖ ။

*
1967 BLR C.C 32
 32

Order 20,Rule 14: Decree in Pre-emption suit

၂၀၊ -၁၄။ ‖ ၏ ― ။
(1) Where the Court decrees a claim to pre-emption in respect of a
particular sale of property and the purchase-money has not
been paid into Court, the decree shall—
(1) ― ‖ ‖ ‖
‖ ‗ ― ၌

(a) specify a day on or before which the purchase-money shall be so paid,

and
―) ― ၊ ― ―
― ၊
(b)direct that on payment into Court of such purchase-money, together
withthe costs (if any) decreed against the plaintiff, on or before the day referred
to in clause (a), the defendant shall deliver possession of the property to the
plaintiff, whose title thereto shall be deemed to have accrued from the date of
such payment, but that, if the purchase-money and the costs (if any) are not so
paid, the suit shall be dismissed with costs.
‖) ‖ ― ‖ )၄ ―၊
―) ― ၊ ― ၊
‖ ― ― ― ―
― ။ ၏ ‖
― ။ ‖ ‖ ) ―
―၄ ― ―၄ ― ။

(2) Where the Court has adjudicated upon rival claims to pre-emption,
the decree shall direct,—
 33

၂) ‖ ― ― ―
‖ ― ― ‖
(a)if and in so far as the claims decreed are equal in degree, that the
claim of each pre-emptor complying with the provisions of sub-rule (1) shall
take effect in respect of a proportionate share of the property including any
proportionate share in respect of which the claim of any pre-emptor failing to
comply with the said provisions would, but for such default, have taken effect ;
and

―) ― ‖ ‖ ‖ ‖
― ၁) ‖― ― ―
၏ ‖ ‖ ‖ ―― ― ― ――
‖ ‖ ―――
‖ ‖ ― ―၊
‖ ― ၍ ― -
(b) if and in so far as the claims decreed are different in degree, that
the claim of the inferior pre-emptor shall not take effect unless and until the
superior pre-emptor has failed to comply with the said provisions.

‖) ― ‖ ‖ ၊
‖ ၏ ‖
‖ ― ‖ ‖― ― ― ――― ‖
― - ― ။

Order20,Rule 15:-Decree in suit for dissolution for Partnership

Where a suit is for the dissolution of a partnership, or the taking
of partnership accounts, the court, before passing a final decree may
 34

pass a preliminary decree declaring the proportionate shares of the

parties, fixing the day on which the partnership shall stand dissolved or
be deemed to have been dissolved, and directing such accoun ts to be
taken and other acts to be done, as it thinks fit.
In Har San Mar Mohd Vs. Moha Mahed Sir Bandar Name Case *,
the judge held that. "Where a suit is for the dissolution of a partnership
according to the provisions or Order 20 Rule 15, the court may pass a
preliminary decree declaring the Proportionate shares of the parties
fixing the day on which the partnership shall stand dissolved and
directing accounts to be taken, and other acts to be done.
၂၀၊ -၁၅။ ― ― ၊
― ၊ ၏ ‖ ―
― ― ‗ ―‖ ၍ ―
‖ ၊ ― ―― ၊
‖ ― ― ―
‗ ‖ ‖ ။
Har San Mar Mohd Vs. Moha Mah
― ၂၀၊ ၁၅ ။
Order20,Rule 16:- Decree in suit for account between principal and
agent
In suit for accounts of pecuniary transaction between principal
and agent, and in any other suit of like nature, the court shall pass (a)
A preliminary decree directing accounts to be taken and the mod e of
taking it . (b) A final decree embodying the results of such accounts.

*
1963 BLR. C.C 533
 35

၂၀၊ -၁၆။ ‖ ― " ‖ ‖ ―

။
‖ ― ― ―
‖ ‖ ‖ ―
၊ ― ‖
― ‖ ။

Order20,Rule 17. Special directions as to accounts

The Court may either by the decree directing an account to be taken or by
any subsequent order give special directions with regard to the mode in which
the account is to be taken or vouched, and in particular may direct that in taking
the account the books of account in which the accounts in question have been
kept shall be taken as prima facie evidence of the truth of the matters therein
contained, with liberty to the parties interested to take such objection thereto as
they may be advised.

၂၀၊ -၁၇။ ၍ ‖― ―
― ‖― ။
― ― ― ၊ ― ‖
၊ ― ― ―
၍ ‖ ―‖ ‖ ― ―
‖
― ‖― ― ― ‖
― ― ― ― ― ‖― ၍ ―
―― ― ―― ‖ ― ‖ ။
 36

Order20,Rule 18:- Decree in suit for partition of property or separate

possession of a share therein.

Where the Court passes a decree for the partition of property or for the
separate possession of a share therein, then,—

(1) if and in so far as the decree relates to an estate assessed to the

payment of revenue to the Government, the decree shall declare the rights of the
several parties interested in the property, but shall direct such partition or
separation to be made by the Collector, or any gazetted subordinate of the
Collector deputed by him in this behalf, in accordance with such declaration and
with the provisions of section 54 ;

၂၀၊ ၁၈။ ‖ ၎ ‖
‖ ―
၁) ― ‖ ―
― ‖ ‖ ၏
‖ ― ― ― ― ၊
― ― ― ―
― ‖ ‖ ‖ ― ‖ ‖― ၍ ၅၄
‖― ― ― ။
(2)if and in so far as such decree relates to other immoveable property, or
to moveable property, the Court may, if the partition or separation cannot be
conveniently made without further inquiry, pass a preliminary decree declaring
the rights of the several parties interested in the property and giving such further
directions as may be required.

၂) ‖ ― ‖
― ၊ ― ၊
 37

‖ ‖ ‖ ‖ ― ၍ ‖
‖ ― ― ― ―
၏ ‖ ― ― ‖―
― ―‖ ‖ ။
Rule 19(1):- Decree when set-off is allowed
(1)Where the defendant has been allowed a set-off against the claim of .

the plaintiff, the decree shall state what amount is due to the plaintiff and what
amount is due to the defendant, and shall be for the recovery of any sum which
appears to be due to either party

၂၀၊ -၁၉ ၁)။ ‖ ‖ ‖ ‖ ‗ ။

― ― ―‖ ‖ ‖ ―
၍ ― ၊ ― ၍ ― ―
― ― ― ― ― ―
‖ ― ။

(2) Appeal from decree relating to set off.

Any decree passed in a suit in which a set-off is claimed shall be subject

to the same provisions in respect of appeal to which it would have been subject
if no set-off had been claimed.

၂)‖ ― ၌‖ ― ‖ ‖
― ‖ ― ‖‖
‖― ― ။
(3) The provisions of this rule shall apply whether the set-off is
admissible under rule 6 of Order VIII or otherwise.
 38

၃) ‖― ‖ ‖ ‖ ― ၈၊ ၆ ‖
၊‖ ၊) ‖ ― ။
Order20,Rule 20:-Certified Copies of the Judgment and decree to be
furnished
Certified copies of the judgment and decree shall be furnished to
the parties on application to th cou t t th xp s ။
၂၀၊ ၂၀။ ― ― ‖ ― ‖― ―
―‖ ― ‖ ။
― ― ― ― ‖ ―
‖― ―‖ ― ―‖ ― ၏
။

6.4 DIFFERENT STAGES OF A SUIT

‖
(1)Institution of Suit- Every suit is to be instituted by presenting
a plaint to the court or officer as it appoints in that behalf. When the
plaint has been presented to a proper court, shows a cause of action,
the relief is properly valued, is written on a sufficiently stamped paper
and is not barred by any law the court admits the plain and then it is
numbered and registered as a suit (or. 4.r.1)
၁) ‖ ၊ ― ― ၊ ― ‖
― ၊ ‖ ― ။
‖ ― ၊
― ‖ ၊ ‖ ― ― ‖ ၊ ‖
 39

― ‖ ‖―
― ― ‖ ။ ၄၊ ၁)
Issue and Service of Summons
The next step after the admission of the plaint is for hte palintiff
to apply to the court for the issue of summons to the defendant t o
appear and answer the claim of the plaintiff. The summons has to be
served in the prescribed manner. (Order 5.r.1)
‖ ‖ ‖
―‖ ― ၏ ― ―
― ― ― ―
။ ― ‖ ။
၅၊ ၁)
Written Statement.- After the summons has been served on the
defendant, the defendant may at or before the firs t hearing, or within
such time as the court may permit, present a written statement or his
defence dealing with each allegation in the plaint and stating with the
respect to each allegation whether the same is admitted or
denied.(Order 8.r.1).
‖ - ‖ ― ― ― ―
၊― ‖ ၊ ―‖ ‖ ― ၊ ၏
‖― ― ‖‖ ‖‖― ‖ ―
‖ ။ ‖ ‖― ) ‖― ―၍
။ ၈၊ ၁)
 40

Discovery.- Every party to a suit is entitled it know the nature of

his opponent's case so that he may know beforehand what case he has
to meet. He is also entitled to obtain admissions from his opponent to
facilitate the proof of the his own case. This is termed as discovery,
which may be by administering interrogatories to the opponent or by
requiring him to disclose the documents by affidavit. (Order 11).
‖
― ၍ ― ၏ ― ‖ ။
― ― ― ―
‖‖ ― ― ‖ ။ ― ၏ ‖ ‖― ‖
― ― ။ ‖ ―
―― ― ― ။ ၁၁)
First Hearing and Striking of Issues. – One the day fixed in the
summone for the defendant to appear and answer, the suit is heard if
both the parties are present, unless the court adjourns it to a later date.
(Order 9.r.1).
― ― ‖ ‖― ‖
― ― ‖
― ― ― ― ―― ‖
― ။ ၉၊ ၁)
If neither party appears when the suit is called on for hearing the
court may dismiss the suit. If the plaintiff appears and the defendant
does not appear the plaintiff will be required to prove t he service of
summons on the defendant and on such proof of service an exparte
decree may be passed on the plaintiff's proving his case. Where the
 41

defendant appears and the plaintiff does not appear the court may
dismiss the suit, unless the defendant admits the claim.(Order 9 rule
4.8)
― ― ― ― ―
။ ― ―
‖ ― ― ။ ‖ ― ―
‖ ― ― ‖ ။
― ― ‖ ―― ‖ ― ။
၉၊ ၄ ၈)
At the first hearing of the case when both the parties are present
the court goes through the plaint, the written statement and answers to
interrogatories, if any, and then examines the parties and record their
admissions and denials. Only the substance of such examination forms
part of the record and is not evidence in the suit. The obj ect of such
examination is to ascertain from the party or his pleader which material
facts in the pleading of either party are admitted or denied by the other.
On such ascertainment the court strikes issues which have to be
determined to dispose of the case.
If it is found that the parties are not at issue on any question of
law or fact, the court delivers the judgment.(Order 15.r.1)
၊ ‖ ‖ ― ― ― ‖
― ― ‖ ― ၎ ၏
‖‖ ― ‖― ― ။ ―
― ။ ― ‖‖ ― ။ ‖ ၏
‖ ‖ ‖― ― ) ၎ ၏
 42

‖ ။ ― ―
‖― ။
― ) ― ‖
― ‖ ―‖ ။ ၁၅ ၊ ၁)
Production of evidence and argument.- If however, the parties are at
issue, a sis generally the case, a date is fixed for hearing when the
party having the right to begin states his case and produces his
evidence in support of the issues. Then the other party states his case,
produces his evidence and addresses the court on the whole case.
(Order18).
― ‖‖ ― ‖ ― ‖― ‖
― ― ‖ ― ― ― ‖ ။
‖ ―― ― ။ ― ―
― ― ၍ ― ။ ‖ ―၍
― ‖ ။ ၁၈)
Judgment:- After the case has been heard the court may pronounce
judgment at once or it may reserve its judgment and deliver the same
on any future date.(Order 20).
‖ ―- ― ― ― ‖ ―― ‖ ―‖ ‖
)‖ ― ― ‖ ။ ၂၀)
Decree.- After the judgment is pronounced the successful party applies
to the court for the drawing up for the decree, which is drawn up by an
officer of the court. (Order 20.)
― - ‖ ―‖ ― ― ― ― ―
― ။
 43

Execution.- Execution is the final state go the suit. It is the means

employed in due process of law to make a decree or order of a court
effective. The successful party makes an application in writing to the
executing court when proceedings in execution are commenced.
(Order 21)
― ― ‖ - ― ― ‖ ၏ ―
။ ၏ ― ) ― ―
―‖ ။ ― ― ‖ ― ― ‖
― ― ― ။ ၂၁)
 44

Key terms

Burden of proving ―
Concise statement ‖ ၊ ‖
Ex-judge ‖ ‖ ―
Vacated
Expiration ― ― ‖
Dissolution ― ‖
Memorandum ‖ ၊
demeanour
pronounce ‖
possession ― ‖
administration suit
next-of- kin
application ― ‖
costs
set-off ‖ ‖
witness ―