CIVIL PROCEDURE CODE AND LIMITATION ACT

Unit I
• Substantive and Procedural Law
• History of the Code of Civil Procedure
• Jurisdiction of the Civil Courts
• Suits of Civil Nature
• Doctrine of Res Sub Judice

Unit II
• Pleading: Fundamental Rules of Pleadings
• Plaint
• Written Statement

Unit III
• Framing of Issues
• Admissions
• Affidavits
Unit IV
• Suits by Indigent Persons
• Reference (Section - 113 And Order Xiii)
• Review (Section 114 And Order Xlvii)
• Revision

Unit V
• Bar of limitation.
• Expiry of prescribed period when court is closed.
• Extension of prescribed period in certain cases.
• Legal disability

• Limitation Act
 UNIT - 1
I. Substantive and Procedural Law
II. History of the Code of Civil Procedure
III. Application of the Code
IV. Jurisdiction of the Civil Courts
V. Suits of Civil Nature
VI. Distinction between Res judicata and Res sub judice
VII. Doctrine of Res Judicata
VIII. Foreign Judgment
IX. Place of Suits
X. Transfer of Cases
Substantive and Procedural Law
• Holland in his ‘Treatise on Jurisprudence’ popularized the terms “Substantive” and
“Adjective”
• Bentham has propounded that the ‘Substance Law’ and ‘Procedural Law’ can be clearly and
sharply separated. He has stated that “By procedure, is meant the course taken for the
execution of the laws
• Salmond said that the Substantive Law is that which defines the rights, while Procedural
Law determines the remedies.
• he further stated that:
The Law of Procedure may be defined as that branch of the law which governs the process of litigation.
It is law of action. The entire residue is Substantive Law, and relates, not to the process of litigation, but
to its purposes and subject-matter
• Procedural Law is concerned with affairs inside the courts of justice” while “Substantive
Law deals with matters in the world outside.”
• The Code of Civil Procedure, 1908; Code of Criminal Procedure, 1973;Indian
Evidence Act, 1872; Limitation Act, 1963; The Court Fees Act 1870; The Suits
Valuation Act, 1887 are examples of Procedural Law in India.

SUBSTANTIVE LAW
• defines and determines the obligations and rights of people and legal entities.
• When a particular law defines rights or crimes or any status, it is called
Substantive Law.
• also provides for Prohibitions administered by courts which behaviors are to be
allowed and which are prohibited
PROCEDURAL LAW
• lays down the method of aiding, the steps and procedures for
enforcement of Civil and Criminal Law
• the law of procedure defines the modes and conditions of the application
of remedies to violated rights.
• Provides for mechanism for: obtaining evidence by police and judges,
conduct of searches, arrests, bail,
• Provides for mechanism for: obtaining evidence by police and judges,
conduct of searches, arrests, bail,
• A right of appeal
• Rules of Limitation
• Right to recover certain property
• law that states to possess ‘cocaine’ is crime
• Whether an offence is punishable by fine or by imprisonment is a question of Substantive Law.
But whether an offence is punishable summarily or only on indictment is a question of
procedure

Hitendra Vishnu Thakur and others etc. etc. v. State of Maharashtra and others (1994) 4 SCC 602
• Law relating to form and limitation is procedural in nature, whereas law relating to right of
action and right of appeal even though remedial is substantive in nature.

Rajasthan State Road Transport Corporation and Anr. v. Bal Mukund Bairwa’ (2009) 4 SCC 299
• that “in the vast majority of cases, a judgment would be retrospective. It is only where the
hardships are too great that retrospective operation is withheld
 History of the Code of Civil Procedure
• Before 1 July 1859, there were no less than nine different systems of civil procedure
simultaneously in force in Bengal.
• the Code of 1859, as passed, did not apply to Supreme Court, or to the Presidency Small
Cause Courts
• As the Code was ill drawn, ill arranged and incomplete, a fresh Code had to be passed in 1877
• several amendments were required, and after five years, another Code was passed, namely
the Code of 1882
• Code of 1882 was supplanted by the present Code in the year 1908
• There have been extensive amendments to the Code in the year 1976.
• The objects behind such amendments were to ensure more expeditious disposal of civil suits
and proceedings consistent with accepted principles of natural justice and to simplify the
procedure to a certain extent.
• the Code was drastically amended by the Code of Civil Procedure (Amendment) Act, 1999,
which proposed several changes to the Code.
• The Code of 1882 contained 49 chapters, each chapter consisting of several Sections, the
total number of Sections being 158
• It consists of two parts –
• the first containing provisions which are more or less of a substantive character, and
• the second containing provisions which relate to matters of mere machinery

• The Sections which form the body of the Code constitute the first part. The orders and rules
comprised in Schedule I constitute the second part
• Sections, they cannot be altered or amended except by the legislature.
• As regards the rules, the High Courts are empowered to annul, or add to, all or any of the
said rules, provided that they are not inconsistent with the provisions of the sections
 Code of Civil Procedure (Amendment) Acts
• No further appeal in certain cases (Section 100A)

• No second appeal in certain cases (Section 102)

• Rule 9 empowers the High Court or the District Court to prepare a panel of the courier agencies
for service of summons.
• The 2002 Act limited adjournments to three times per party during a suit.

• The 2002 Act limited the general power of courts to extend time to 30 days

• The 2002 Act gave courts the power to refer suits to conciliation and arbitration in appropriate
cases
• The 2002 Act allowed plaintiffs to serve summons themselves in some cases to avoid delays

• The Act stipulated that the records of a subordinate court cannot be called unless the High Court
specifically orders it
Jurisdiction of the Civil Courts
• jurisdiction’ means the power or authority of a Court of law to hear and
• determine a cause or a matter. It is the power to entertain, deal with
and decide a suit, an action, petition or other proceeding

Kinds of Jurisdiction
 Territorial or Local Jurisdiction
 Pecuniary Jurisdiction
 Jurisdiction as to subject-matter
 Original and Appellate Jurisdiction
• The District Judge has to exercise jurisdiction within his District and not outside. The High
Court has jurisdiction over the territory of a State within

• The Code provides that a Court will have jurisdiction only over those suits the amount or
value of the subject-matter of which does not exceed the pecuniary limits of its jurisdiction.
• Some Courts have unlimited pecuniary jurisdiction, e.g., High Courts and District Courts have no
pecuniary limitations.
• a Presidency Small Causes Court cannot entertain a suit in which the amount claimed exceeds
Rs.1000

• a Presidency Small Causes Court has no jurisdiction to try suits for specific performance of
a contract, partition of immovable property. in divorce cases,only the District Judge or Civil
Judge (Sr.Dn.) has jurisdiction.
• Original jurisdiction is jurisdiction inherent in, or conferred upon a Court of first
instance. Appellate jurisdiction is the power or authority conferred upon a
superior Court to rehear by way of appeal, revision
• Munsiffs Courts, Courts of Civil Judges, Small Cause Courts are having original jurisdiction
only, while District Courts, High Courts have original as well as appellate jurisdiction

• Exclusive jurisdiction is that which confers sole power on one Court or tribunal
or try, deal with and decide a case. Concurrent or co-ordinate jurisdiction is
jurisdiction which may be exercised by different Courts or authorities between
the same parties, at the same time and over the same subject-matter
 Suits of Civil Nature
• A suit can be said to be of civil nature if it involves determination of civil rights. Civil rights
mean the rights and remedies vested in a citizen
• The civil rights can be of a private individual or other known legal entities as distinguished
from groups or associations which have no distinct legal personality or recognition.
• Any suits in which the principal question relates to religious rites or ceremonies are not
suits of a civil nature
• In Devchand v. Ghanshyam, AIR 1935 Bom 136, it was held that a suit to decide whether
sutpanth cult is within Vedic religion or not or whether it is abhorrent to the feelings of
Leva Patidar community as a whole is not a suit of a civil nature.
• If a person is expelled from his caste, a suit will lie for declaration that his expulsion was
unlawful and for damages –Jagannath v. Akali, (1894) ILR 21 Cal 463
 Definitions (Sec. 2) Decree, Judgement, Order
Decree
• defined in Section 2(2) of Code of Civil Procedure, 1908
• A decree may be final or preliminary.
• It is a formal declaration or adjudication and is conclusive in nature.
• A decree is of three kinds namely, preliminary decree, final decree and partly preliminary &
partly final.
• A decree may be delivered with an order.
• The decree contains the outcome of the suit and conclusively determines the rights of the
parties with regard to the issues in dispute in the suit.
• After passing the decree, the suit stands disposed of since the rights of the parties are finally
determined by the court.
• A decree shall be deemed to include the rejection of a plaint and any question within Section
144 of Code of Civil Procedure,1908
Essential elements of a Decree
• Formal expression: There must be a formal expression of adjudication. A mere comment of the
judge cannot be a decree. The decree follows the judgment and must be drawn up separately

• Adjudication: It means judicial determination of the matter in dispute. Hence, if the decision is
of administrative in nature, then it cannot be considered as a decree

• Suit: The Adjudication must have been given in a suit, which is commenced by filing a plaint in a
civil court. Without a civil suit there lies no decree. certain applications to be treated as suits
such as proceedings under the Hindu Marriage Act, the Indian Succession Act

• Rights of the parties: ‘Right’ means substantive rights and not merely procedural rights.An order
rejecting the application of a poor plaintiff to waive the court costs is not a decree because it
does not determine the right of the party
Section 144 of the Code of Civil Procedure (CPC), 1908 deals with applications for
restitution.
It states that if a decree or order is reversed or varied, the court that passed it must make
restitution to the parties. The court can make any orders necessary to put the parties back in
the position they would have been in if the decree or order had not been changed.
Restitution can include:
• Refunding costs
• Paying interest
• Paying damages
• Paying compensation
• Paying mesne profits

Preliminary Decree
• a preliminary decree is a decree where further proceedings have to take place before the
suit can be completely disposed of.
• It decides the rights of the parties in respect to all or any of the matters of discussion but it
does not completely dispose of the suit
Final Decree

• a final decree is a decree which completely disposes of the suit and

settles all the questions in discussion

• between the parties and

• nothing is left further for deciding thereafter.

• It is only said to be final when such adjudication completely disposes of

the suit.
Partly preliminary and partly final Decree

• A decree is said to be partly preliminary and partly final when the court

decides two questions by the same decree

• in a suit of possession of a property with company ‘Z’, if the court passes

a decree of possession of the property in favour of the plaintiff and

directs an enquiry into the company ‘Z’, for Mesne Profits

DECREES IN A SUIT FOR PARTITION
• In a partition suit the court will issue three kinds of decrees to settle the issue to
rest: preliminary decree, composite decree (partly preliminary & partly final), and
final decree

• The purpose of a suit for partition or separation of a share is twofold:

• declaration of plaintiff's share in the suit properties under the preliminary decree,
• and the other is division of his share by metes and bounds which would take place under the
final decree.

• In some cases the property will be put to sale and the proceeds will be shared
among the share holders which can be termed a final decree.
• In a partition suit, if the court cannot make a division of property by metes and bounds
forthright without further inquiry, the court will initially pass a preliminary decree.
• A preliminary decree for partition identifies the properties to be subjected to partition,defines
and declares the shares/rights of the parties

COMPOSITE DECREE IN A SUIT FOR PARTITION

• In regard to immovable properties (other than agricultural lands paying landrevenue) - such as
buildings, plots etc. or movable properties
• where parties agree upon the manner of division,
• the court will pass a composite decree comprising the preliminary decree declaring the rights
of several parties
• and also a final decree dividing the suit properties by metes and bounds, in one judgment
• The decree declares the proportion of shares and divide the property, thereby settling the
partition to rest in one go
PRELIMINARY DECREE
• Suits for partition and separate possession; Order 20 Rule 18.

• Suits for possession and mesne profits; Order 20 Rule 12

• Suits for Dissolution of partnership and rendition of accounts; Order 20 Rule 15

• Suits for Accounts between a principal and an agent ; Order 20 Rule 16.

Order 20 rule 18 CPC deals with decree in suit for partition of property or separate
possession of a share therein:

“A preliminary decree determines and declares the rights of parties and shares of all
eligible claimants,
Shankar Balwant Lokhande Vs Chandrakanat Shankar Lokhande AIR 1995 SC 1211,
The Hon’ble Supreme Court in held that where a decree relates to
• any immovable property and the partition or separation cannot conveniently be
effected without further inquiry ,
• then the court should pass a preliminary decree declaring the rights of parties having
interest in the property

The Apex Court in Venkata Reddy Vs Pethi Reddy reported in AIR 1963 SC992, held that
• “A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not
a tentative decree but must, in so far as the matters dealt with by it are concerned, be
regarded as conclusive
Reasons

• The legislature in its wisdom has thought that

• suits of certain types should be decided in stages and

• though the suit in such cases can be regarded as fully and completely decided only after a final decree is made,

• the decision of the court arrived at the earlier stage also has a finality attached to it

Process of partition of estate assessed to payment of revenue

• “In regard to estates assessed to payment of revenue to the government (agricultural land), the court is
required

• to pass only one decree declaring the rights of several parties interested in the suit property with a direction to
the Collector (or his subordinate) to effect actual partition or separation in accordance with the

• declaration made by the court in regard to the shares of various parties and deliver the respective portions to
them, in accordance with Section 54 of CPC
• While making the partition the Collector is bound by declaration of the rights of the
parties in the preliminary decree

• The Collector must actually divide the estate in the manner he thinks best keeping
in mind the nature of the land as revenue paying entity and the stipulations of the
decree

• The object of this provision is two fold:

• firstly, the revenue authorities are more conversant and better equipped to deal with such
matters than a civil court and

• secondly, the interest of the government in regard to the revenue paying estate would be
better safeguarded by the Collector than by the civil court
Venkata Reddy Vs Pethi Reddy AIR 1963 SC 992

• A decision is said to be final when so far as the court rendering it is concerned,

• it is unalterable except by resort to such provisions of the code of Civil

Procedure as permit its reversal, modification or amendment.

• A preliminary decree passed, whether it is in a mortgage suit or a partition suit,

is not a tentative decree but must, in so far as the

• matters dealt with by it are concerned, be regarded as conclusive

 MORE THAN ONE PRELIMINARY DECREE

Phoolchand Vs Gopal Lal AIR 1967 SC 1470

• The Hon’ble Apex Court in in brought an end to the conundrum by observing that CPC does not prohibit

passing of more than one preliminary decree if circumstances justify it and it is necessary to do so.

• Their Lordships observed in the said judgment that “there may be more than one preliminary decree if

circumstances justify particularly in partition suits

• when after the preliminary decree some parties die and shares of other parties are thereby augmented.

• The preliminary decree determines claims of respective sharers and furnishes the basis upon which the

division of property should be made

 S. Sai Reddy v. S. Narayana Reddy, (1991) 3 SCC 647 ,
• the members of a joint family filed a suit for partition.

• At the time when preliminary decree was passed, daughters were not allowed to
claim shares in the joint family property.
• However, the State, prior to the passing of the final decree, amended the law as a
result of which unmarried daughters became entitled to claim a share.
• The Court held that unless the division of property is effected (i.e., final decree is
passed),
• the daughters cannot be deprived of the benefit of this amended law.

• Hence, a second preliminary decree must be passed accordingly

Parvathamma v. Muniyappa, AIR 1997 Ker 37 ,

• the Court held that in a preliminary decree certain rights are conclusively determined

and unless the preliminary decree is challenged in appeal, the rights so determined

become final and conclusive and cannot be questioned in final decree.

• Appeal against preliminary decree cannot be filed when final decree is passed.

• A preliminary decree is a final decree, when the time for appeal has expired without any appeal

being file against the preliminary decree or a matter has been decided by the highest court.

• A preliminary decree is a final decree, when as regard the court passing decree, the same stand

completely disposed off.

FINAL DECREE
• The function of the final decree is to restate and apply what the
preliminary decree has ordered.
• A final decree is thus based upon and controlled by preliminary decree.
• It is settled legal position that final decree proceedings are in
continuation of preliminary decree proceedings

Muthangi Ayyana Vs Muthangi Jagga Rao (1977) 1 SCC 241

• The Hon’ble Supreme Court in held that a final decree cannot go behind,
amend or alter preliminary decree
 MORE THAN ONE FINAL DECREE
Kasi Vs Ramanathan (1947) Mad LJ 52317
• The Hon’ble High Court of Madras comprehensively took up the issue and observed
• “no doubt ordinarily there would be one preliminary decree followed by one final decree
in suits of the kind mentioned in Order 20 Rules 12 to 18,
• which accordingly provide for a preliminary decree or a final decree as the case may be,
being passed,
• but no inference can, in our opinion, be drawn from the general language used that the
Code does not contemplate and the court has in
• consequence no power, even in special cases involving a multiplicity of claims or other
complications, to pass more than one preliminary decree or one final decree
A.R. Veerappa Gounder Vs Sengoda Gounder reported in (1975) 1 Mad LJ 53,19
• in a suit for partition an application for ascertainment of profits and allotment of share
was made.
• But final decree was passed without considering the application
• The decree was thereafter dismissed and it was contended that the application could not
have been dismissed.
• Upholding the said contention, the court stated that normally the future profits have to be
ascertained before the passing of the final decree and the same should be incorporated in
the final decree.
• the suit for partition is considered to completely disposed of when a final decree is passed,
• if the final decree does not cover all the properties that are to be divided, then
undoubtedly the suit must be held to be still pending and not completely disposed off
ISSUE OF COMMISSION TO MAKE PARTITION
• In case of immovable property other than the one mentioned in Order 20 Rule 18 (1),
• where the court passes a preliminary decree for partition,
• the Court may issue a commission, under Order 26 Rules 13 and 14, to a person (usually
an advocate alongwith a survey official) to physically examine various aspects and
conditions of the property
• to be divided and make partition or separation of property according to the rights
declared by the court in the preliminary decree
• The commissioner will then prepare a report apportioning each share by metes and
bounds in adistinguishing manner and send it to the court.
• If the commission consist of more than one person and they cannot agree the
commissioners can send separate reports to the court
COURT CAN DIRECT SALE INSTEAD OF PARTITIONING
• “In a suit for partition, if it appears to the court that a division of the
property cannot reasonably or conveniently be made,
• and that a sale of the property and distribution of the proceeds would be
more beneficial to the shareholders,
• the court may, on the request of any of such shareholders interested
individually or collectively
• to the extent of one moiety or upwards, direct a sale of the property and a
distribution of the proceeds
Order XX Rule 6-20 Pg 82

First Schedule
• Appendix D

Judgment

• Under Section 2(9) of the Code, Judgment is defined as the statement given by the Judge on the grounds of a
decree or an order.

• It refers to what the judge observes regarding all the issues in matter and the decision on each of the issues

• a judgment is the reasoning given by the judge as to why the ‘decree’ was given

• which explains the legal reasoning that formed the basis for the decree,
• along with the citation of the relevant case laws,
• arguments by the counsels, and the conclusions reached by the Court
Essential elements of Judgment:-
• A judgment should possess the essentials of a case, reasoning and basic contention on which it
• is delivered or the grounds of the decision.
Judgment of the courts other than that of the Small Causes Court – Rule 4 (2) of Order 20
a) A concise statement of the case
b) The points of determination
c) The decision of the court and
d) The reason for such decision by the court
Judgment of the Small Causes Court
a) The points for determination and
b) The decision thereon
• Prior to the Amendment of 1976, no such time limit was specified between hearing of
arguments and delivery of judgment.
• However, because of persistent demands and as per the suggestion of joint committee, it
was laid that a judgment should be delivered within 30 days of the conclusion of the
proceedings
Order
• The term Order has been defined under Section 2(14) of the Code as the formal
expression of any decision of a civil court which is not a decree.

Essential elements of order are as follows:

• It should be a formal expression of any decision.
• The formal expression should not be a decree.
• The decision to be pronounced by a civil court.
• Thus, an adjudication of the court which is not a decree is an order.

• As a general rule, an order of a court is founded on the

• objective considerations and as such judicial order
• must contain a discussion of the question at issue and the reasons which
prevailed the court which led to the passing of the order
Suits of Civil Nature Sec 9
• Suits of civil nature are instituted and tried by the civil courts.

• The court means that apart from having the trappings of some judicial
tribunal should also have the capacity and
• the power to give the definitive judgment which is a finality and has
authority,
A civil court can try a case if

• The suit in the question is of a civil nature

• The cognizance of the suit is not expressly or impliedly barred by any other statute

• The definition of the civil suit is not enunciated anywhere in the Code.

• It can be said that a suit which is not criminal in nature is a civil suit.

• A suit that determines the civil rights of the person can be termed as the civil suit.

• A proceeding which addresses the redressal of the private rights is a civil action.
• Title Suits;
• Money Suits;
• Matrimonial Suits;
• Guardianship Cases;
• Succession Matters
• Suits for Recovery of Money: These are suits where a party seeks to recover a sum
of money due to them from another party. It may arise out of a contract, loan, or
any other legal obligation.
• Suits for Specific Performance of Contracts: These are suits where a party seeks to
enforce the performance of a contract by the other party.
• Suits for Declaration of Rights: These are suits where a party seeks a declaration
from the court affirming their legal rights or status. For example, a suit for a
declaration of ownership of a property.
• Malluru Mallappa (D) thr. L.Rs. Vs. Kuruvathappa and Ors. - (Supreme Court) (12
Feb 2020)An appeal is a continuation of proceedings of original Court
• The questions purely relating to caste or religious ceremonies are decided by the
community or religious heads like priests, spiritual heads, etc.
• On the other side, questions that are political in nature are decided by public administrative
authorities.

Justice SubbaRao, J. in the leading case of Radha Kishan v. Ludhiana Municipality,

• enumerated the appropriate legal position concerning the jurisdiction of courts under
Section 9 of the Civil Procedure Code,
• the court shall have jurisdiction to try all suits of civil nature except suits of which
cognizance is either expressly or impliedly barred.
• A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of civil
courts in respect of a particular matter.
• The mere conferment of special jurisdiction on a tribunal in respect of the said matter does
not in itself exclude the jurisdiction of civil courts.
Premier Automobiles v. K.D. Wadke
• The case relates to Section 18(1) of the Industrial Disputes Act concerning the dispute
between employer and employee and whether such a dispute can be decided by a civil court.
• If the suit is not an industrial dispute and it does not correspond to the enforcement of any
rights under the Industrial Disputes Act, it shall come under the purview of civil courts.

Rajasthan State Road Corporation v. Krishna Kant

• The respondents in this immediate case are employees of the appellant corporation i.e
Rajasthan State Board Transport Corporation.
• The services of the employees were discontinued following disciplinary proceedings initiated
against them on charges of misconducT
• wherein the conflict involves observance, recognition, or enforcement of any rights and obligations
arising out of the Industrial Dispute Act, the way to approach the forum is under the auspices of the
same act
• It is incorrect to state the remedies under the “Industrial Disputes Act” are not so effective because
the access to a forum is contingent on a reference made by the appropriate government.

the Supreme Court recently in Chandrakant Tukaram v. Municipal Corporation, of Ahmedabad,

reinstated the principles enumerated in previous decision
• A civil suit was filed by the workmen of Ahmedabad Municipal Corporation challenging the orders of
termination/dismissal of service.
• Four issues were framed by the city civil court, one of which challenged the jurisdiction of the civil
court to entertain the suit.
• It was held that “it cannot be disputed that the procedure followed by civil
courts are too lengthy and, consequently, are not an efficacious forum for
resolving the industrial disputes speedily.

• The power of the industrial courts also is wide and such forums are
empowered to grant adequate relief as they are just and appropriate

• It is in the interest of the workmen that their disputes, including the

dispute of illegal termination, are adjudicated upon by an industrial forum.”
Tamil Nadu v. Ramalinga,
• it was held by the court that if a final order has been passed by the special tribunal then it
would be seen that such a remedy could have been provided by the civil court or not.
• If the answer is that such a remedy can be provided by the civil court also, then it cannot be
automatically held that the civil court had no jurisdiction to try the suit.

It was held in the case of Veermalai v. Srinivas

that if a suit is instituted in a civil court and the bar to try such a suit has been
introduced after the institution of the suit then the court will still have the
jurisdiction to try such a suit which was instituted before the bar came in the
existence.
Dhulabhai v. State of M.P., Chief Justice Hidayatullah outlined several key principles regarding
the exclusion of jurisdiction of civil courts:
(a) When a statute grants finality to the decisions of special tribunals, the jurisdiction of civil
courts is excluded if there exists an adequate remedy equivalent to what civil courts would
typically provide.
• However, this exclusion does not extend to cases where the provisions of the Act are not
followed or when the tribunal fails to adhere to fundamental principles of judicial procedure.

b) If there is an express bar on the jurisdiction of a court, an assessment of the adequacy of the
remedies provided by the Act's scheme may be relevant but not decisive in maintaining the
jurisdiction of civil courts.
• In cases where there is no express exclusion.
• This includes assessing whether the statute mandates that tribunals constituted under the Act
determine all questions related to such rights or liabilities.
(c) Challenges to the constitutionality of provisions in a particular Act cannot
be brought before tribunals established under that Act. Even the High Court
cannot entertain such questions through revision or reference from tribunal
decisions.

(d) A civil suit is not maintainable if the authorities' decisions are deemed
final or if there is an express prohibition in the Act.
Supreme Court of India at the top, followed by High Courts of respective states with District
Judges sitting in District Courts and Magistrates of Second Class and Civil Judge (Junior Division) at
the bottom
At the top of the hierarchy in India is the Supreme Court. It is the highest court of appeal and is
vested with various powers, to exercise original, appellate and advisory jurisdiction
The High Court stands at the head of a State’s judicial administration
The District Court is a principal court of original Civil jurisdiction in the District.District Judge
exercises the powers of appellate court and hears the appeals against the judgment & decree
passed by the Civil Judge Senior & Junior Division both.
There are 2 classes of Subordinate Courts headed by Judicial Magistrate Class I and Judicial
Magistrate Class II
Section 7 and 8 of CPC, 1908 deals with Small Causes Courts. These Courts are purely a creation of
Britishers. These are civil courts per se and deal with those civil matters which are trivial in nature
Small Causes Courts can be classified into Metropolitan Small Causes Courts, Munsif Court
Res Sub-Judice
• Sub-judice is a Latin maxim meaning ‘under judgment’ or ‘under a judge’, or a
matter ‘under consideration’.

• This maxim primarily deals with the ‘stay of suits’ with the same cause of action
and matters which are pending before the same court or in separate courts.

• The doctrine of Res Sub-judice means ‘stay of suit’.

• When two or more than two cases are filed in two or more different courts with
the same subject matter between the same parties, the competent court has
the authority or power to ‘stay proceedings’ of another court.
• The main aim of this doctrine is to prevent the courts from entertaining
two parallel litigations and as well as reduce the overburden of the
judiciary.

• As two or more courts hear a matter between two same parties with the
same titles and issues, their judgments could be contrary resulting in a
multiplicity of suits which is an important impact of Res Sub-judice on
parallel litigations
Key Principles of Res Sub-judice
• There should be two suits, one is Previously Instituted and the second is
Subsequently Instituted.
• Both the suits, Previously Instituted suit and Subsequently Instituted suit, must be
between the same parties.
• The subject matter in issue in the subsequent suit is directly and substantially the
same as the subject matter in issue in the previous suit.
• In both suits, the parties are litigating under the same title.
• The former or previous suit must be pending in the same court or any other court.
• The court dealing with the previous suit must be competent in its jurisdiction for
granting relief asked for in the subsequent suit.
Non-Applicability of Res Sub-judice
• Not applicable between the suits where parties are the same but the issues are not the same.
• Not applicable when the former suit or subsequent suit is filed in a foreign court that is not
under the Control of the Indian Central Government and Supreme Court of India.
• Not applicable in the interim orders passed by the Court of Law.

Purpose of Res Sub-judice

• To avoid wastage of the Court’s time and resources.
• To avoid the judiciary’s overburdening by the multiplicity of suits.
• To avoid inconvenience to the parties and prevent them from unnecessary harassment.
• To prevent the judiciary from delivering conflicting decisions due to the multiplicity of suits.
 Ilustrations
1. A family member (Party A) files a suit in a court in Karnataka seeking
division of ancestral property located in Karnataka.Meanwhile, another
family member (Party B) files a similar suit for the same property in Tamil
Nadu.

2. Party A files for divorce in the Family Court in Mumbai, alleging mental
cruelty. Meanwhile, Party B (spouse) files a suit for maintenance in the
District Court in Delhi on the same grounds of cruelty, while the divorce
suit is still pending.
3. Company A (a real estate developer) enters into a joint venture agreement with Company B to
develop a large parcel of land across multiple cities in India. The contract includes terms for profit
sharing, asset division, and a clause for arbitration if disputes arise.

• A few years into the project, Company A claims that Company B has breached the joint venture
agreement by diverting funds meant for the development project into its other business ventures.

• Company A subsequently terminates the joint venture agreement and files a suit for damages
and recovery of assets under the breach of contract in the Delhi High Court, claiming jurisdiction
based on its registered office location.
• Company B, based in Mumbai, responds by filing a counter-suit for specific
performance in the Bombay High Court, asserting that Company A’s
termination of the joint venture was illegal and premature.

• Company B also claims it was not involved in any fund diversion and is
entitled to specific performance of the contract terms.

• In the same suit, Company B includes a claim for an injunction to restrain

Company A from selling any developed assets or continuing construction with
a third-party contractor in any location until the matter is resolved.
• During this dispute, a third party, Company C (an investment firm that funded Company
A in the early stages of the project), files a separate suit in the Bengaluru Civil Court.

• Company C seeks to recover its investment from the joint venture, alleging that it
provided funds to Company A based on the projected completion of the joint venture,
which is now at risk due to the disputes.

• Company C argues that as an investor, it is entitled to be compensated from the assets

developed so far

• the original joint venture agreement between Company A and Company B contains an
arbitration clause
• The Bombay High Court, handling the specific performance suit, may stay
proceedings based on the Res Subjudice principle until the Delhi High Court
decides on the original suit for damages and breach of contract.
Cause of Action by Company A (Plaintiff in Delhi High Court)
• Breach of Contract
• Damages and Recovery of Assets
• Jurisdiction Claim

Cause of Action by Company B (Plaintiff in Bombay High Court)

• Specific Performance
• Injunction Against Asset Transfer
• Jurisdiction Claim
• A’s cause of action seeks to end the agreement and claim damages, while B’s
cause of action aims to enforce the agreement and preserve assets
4. Mr. X and Mr. Y are co-owners of two properties: Property A (an apartment) and Property B (a
commercial shop). They each own a 50% share in both properties, which they inherited from a
relative. Recently, they’ve been in dispute over how these properties should be used and managed,
leading to legal actions.

Mr. X files a suit in City C to partition Property A (the apartment), alleging that Mr. Y has been
occupying the apartment without compensating him for his share. Mr. X requests the court to either
divide the property or force a sale so the proceeds can be shared.

Mr. Y, on the other hand, files a suit in City D to partition Property B (the commercial shop), claiming
that Mr. X has been using the shop exclusively and not sharing the income generated. Mr. Y seeks a
similar order to either physically divide or sell Property B to distribute the proceeds equally.
Doctrine of Res Judicata
• The principle of res judicata is based on the need of giving a finality to judicial
decisions.
• What it says is that once a res is judicata, it shall not be adjudged again.
• Primarily it applies as between past litigation and future litigation.
• When a matter-whether on a question of fact or on a question of law-has been
decided between two parties in one suit or proceeding and the decision is final,
• either because no appeal was taken to a higher court or because the appeal was
dismissed, or no appeal lies,
• neither party will be allowed in a future suit or proceeding between the same
parties to canvass the matter again
RES JUDICATA
• 'Res' in Latin means thing a 'Judicata' means already decided.
• This rule operates as a bar to the trial of a subsequent suit on the same cause of action
between the same parties.
• Its basic purpose is - "One suit and one decision is enough for any single dispute".
• The rule of 'res judicata' does not depend upon the correctness or the incorrectness of
the former decision.
• It is a principle of law by which a matter which has been litigated cannot be litigated
between the same parties.
• The aim of this rule is to end litigation once a matter has been adjudicated.
• It aims to save the court time and prevent harassment to parties.
• "Res judicata pro veritate accipitur" is the full maxim which has, over the

years, shrunk to mere "res judicata

• based partly on the maxim of Roman Jurisprudence “interest reipublicae ut sit

finis litium" (it concerns the State that there be an end to law suits) and

• partly on the maxim "Nemo debet bis vexari pro una at eadem causa" (no man

should be vexed twice over for the same cause)

• Res judicata pro veritate accipitur’ which means that a judicial decision must be

accepted as correct
Essentials for res judicata.

Following conditions must be proved for giving effect to the principles of res judicata under
Section 11—
i. that the parties are same or litigating under same title,
ii. that the matter directly and substantially in issue in the subsequent suit must be same which was
directly and substantially in issue in the former suit,
iii. that the matter in issue has been finally decided earlier, and
iv. that the matter in issue was decided by a Court of competent jurisdiction.

• If any one or more conditions are not proved, the principle of res judicata would not apply.

• Where all the four conditions are proved, the Court has no jurisdiction to try the suit
thereafter as it becomes not maintainable and liable to be dismissed.
• Justice Das Gupta in the case of Satyadhyan Ghosal v Deorjin Debi explained and gave the

meaning of the doctrine of Res Judicata in the simplest possible manner and held that

“The principle of res judicata is based on the need of giving a finality to judicial decisions. What is

says is that once a res is judicata, it shall not be adjudged again

• In M. Nagabhushana V State of Karnataka the supreme court held that the doctrine of res

judicata is of universal application and has been accepted by all civilized systems of

jurisprudence. The Doctrine of res judicata has been evolved to prevent anarchy
HISTORICAL EVOLUTION
• In the case of the Duchess of Kingston in 1776 to have been one of the first
instances of the common law principle of res judicata was applied
• Indian courts have consistently referred in the majority of their cases.

• In that case, it was stated:

• First, the judgement of a court of concurrent jurisdiction, directly upon the points,
is as a plea, a bar, or as conclusive evidence between the same parties, upon the
same matter, directly in question in another court
• Second, a court with exclusive jurisdiction's decision on a particular issue is similarly
decisive between the same parties about the same topic
In the case of Mathura Prasad Bajoo Jaiswal and Ors. v. Dossibai N.B. Jeejeebhoy
• the Court has held that “the matter in issue” in Section 11 CPC means the right litigated between
the parties i.e. the facts on which the right is claimed or repudiated and the law applicable for the
settlement of that issue.
• An issue of fact or an issue of mixed law and fact decided by a competent court is finally
determined between the parties and cannot be re-opened between them in another proceeding.

Allahabad High Court in the case of Vasudevanand Saraswati v. Jagat Guru

Shankaracharya observed
• that “same title” means same capacity.
• The test is whether the party litigating is in law the same or a different person.
• If the same person is a party in a different character, the decision in the former suit does not
operate as res judicata.
• Similarly, if the rights claimed are different, the subsequent suit will not be res judicata simply
because the property is identical
in the case of Raj Lakshmi Dasi and Ors v. Banamali Sen and Ors.
• the Supreme Court held that when a plea of res judicata is founded on general principles of law,
• all that is necessary to establish is that the Court that heard and decided the former case was a
Court of competent jurisdiction.
• It is not necessary in such cases to further prove that it has jurisdiction to hear the later suit

• in the case of Ragho Prasad Gupta v. Krishna Poddar the Supreme Court held that a
mere expression of opinion on a question not in issue cannot operate as res judicata.

• The doctrine of Res Judicata is not been applied in the income tax proceedings. In the
case of B.S.N.L vs. Union of India, the court held that the decision given for one
assessment year does not operate as res judicata in the Subsequent year.
 Illustrations
A sues B for damages for breach of contract. The suit is dismissed.
A subsequent suit by A against B for damages for breach of the same contract is barred.
A’s right to claim damages from B for breach of contract having been decided in the previous
suit, it becomes res judicata, and cannot, therefore, be tried in the subsequent suit.
B cannot be vexed twice over for the same cause (breach of contract).
Moreover, public policy also requires that there should be an end to litigation and for that
reason, the previous decision must be accepted as correct, lest every decision would be
challenged on the ground that it was an erroneous decision and there would be no finality.

 A sues B for possession of certain properties based on a sale deed in his favour. B impugns
the deed as fictitious.
 The plea is upheld and the suit is dismissed.
 A subsequent suit for some other properties on the basis of the same sale deed is barred
 as the issue about the fictitious nature of the sale deed was actually in issue in the former
suit directly and substantially.
 A sues B, C and D and in order to decide the claim of A, the court has to interpret a
will.
The decision regarding the construction of the will on rival claims of the defendants will
operate as res judicata in any subsequent suit by any of the defendants against the rest.

 A files a petition in a High Court under Article 226 of the Constitution for
reinstatement in service and consequential benefits contending that an order of
dismissal passed against him is illegal.
The petition is dismissed.
A cannot thereafter file a fresh petition in the Supreme Court under Article 32 of the
Constitution nor can institute a suit in a civil court as such petition or suit would be
barred by resjudicata.
 A, claiming himself to be the owner of the property files a suit for eviction of tenant B
and sub-tenant C which is decreed ex parte by a Small Cause Court.
C then files a suit in the civil court on the basis of title.
A pleaded res judicata in the light of the decree passed in the former suit.
The finding regarding ownership of A will not operate as res judicata in asmuch as a title
to the property was not directly and substantially in issue in the former suit.

A files a petition in a High Court under Article 226 of the Constitution for reinstatement in
service and consequential benefits contending that an order of dismissal passed against
him is illegal.
The petition is dismissed on the ground that disputed questions of fact are involved in the
petition and alternative remedy is available to the petitioner.
A suit in a competent civil court after dismissal of the petition is not barred by resjudicata.
A sues B for rent for the year 1989-90 alleging that B was liable to pay it. B applied for time to file
the written statement, which was refused.
The only issue raised by the court was regarding the amount of rent and the suit was decreed. A
files another suit against B for rent for the year 1990-91.
B contends that he is not liable to pay rent

 As a mortgagor A sues B for the redemption of certain property alleging that he has mortgaged it
with possession to B. The mortgage is not proved and the suit is dismissed.
A file another suit against B for possession of the same property claiming to be the owner
thereof. The suit is not barred
 A sues B for possession of property as an owner basing his claim on title. The suit is dismissed. A
subsequent suit by A against B for possession of the same property as mortgagor is not barred
• A sues for possession of math property as an heir of Mahant. The suit is
dismissed.

• A subsequent suit by A against B as the manager of the math is not

barred.

• A sues B for title to the property as an heir of C under the customary

law. The suit is dismissed. The subsequent suit for title to the property
as an heir of C under personal law is barred.
RES JUDICATA IN PUBLIC INTEREST LITIGATION
• There is no definition of public interest litigation in any act or legislation. Judges have construed it to take the general
public's intent into account.

• The goal of social action or public interest litigation is to address the complaints of the general public.

• If the prior proceeding was not a legitimate public interest litigation, the subsequent proceeding for the same public
interest litigation will not be barred

• Public interest litigation or social action litigation is fought with the objective to make good the grievances of public at
large

• In the case of Ramdas Nayak v. Union of India, the court noted that the same issue was repeatedly litigated in
public interest cases then the matter should be put an end by applying the Doctrine of Res Judicata

• In Forward Construction Co. v. Prabhat Mandal the Supreme Court was directly called upon to decide the
question. The apex court held that the principle would apply to public interest litigation provided it was a bona
fide litigation.
 RES JUDICATA IN TAXATION MATTERS
• Strictly speaking res judicata does not apply to income-tax proceedings.
• But each assessment being a suit, what is decided in one year may not apply in the
following years

In Amalgamated Coalfields Ltd. Janapadha sabha,

• the apex Court has said that each assessment year, being an independent unit,
• a decision for one year may not operate as res judicata in another year.
• But if a pure question of law, e.g. constitutional validity of a statute is decided,
• “it may not be easy to hold that the decision on this basic and material issue would
not operate as res judicata against the assessee for a subsequent year.”
 RES JUDICATA IN WRIT PETITION
• It is settled principle of law that general principle of res judicata applies to writ petitions

Darayao v. State of UP
• the Supreme Court has exhaustively dealt with the question of applicability of the
principle of res judicata in writ proceedings and laid down certain principles
• If a petition under Article 226 is considered on merits as a contested matter and is
dismissed, the decision would continue to bind the parties
• If the petition under Article 226 in a High Court is dismissed not on merits but because
of laches of the party applying for the writ or
• because it is held that the party had an alternative remedy available to it the dismissal
of the writ petition would not constitute a bar to a subsequent petition under Article 32
• If a writ petition is dismissed in limine and an order is pronounced in that behalf,
whether or not the dismissal would constitute a bar would depend on the nature of
the order. If the order is on merits, it would be a bar.

• If a petition is dismissed in limine without a speaking order, such dismissal cannot be

treated as creating a bar of res judicata.

• If a petition is dismissed as withdrawn, it cannot be a bar to a subsequent petition

under Article 32

• The doctrine of constructive res judicata applies to writ proceedings. The rule of
constructive res judicata however does not apply to a writ of habeas corpus.

• If a petitioner withdraws the petition without the leave of court to institute a fresh
petition on the same subject-matter, the fresh petition is not maintainable.
EX PARTE DECREE AS RES JUDICATA:
• Until it is reversed, an ex parte decree remains enforceable and legitimate. But whether the
case was judged on its merits is the true litmus test for res judicata

RESJUDICATA BETWEEN CO DEFENDANTS:

Res judicata can apply not only to disputes between plaintiffs and defendants but also to
conflicts between co-defendants or co-plaintiffs. When considering res judicata between co-
defendants, certain conditions must be met
• Presence of Conflict of Interest: There needs to be a conflict of interest among the co-defendants
involved in the case.
• Final Decision on the Conflict: The conflicts or questions among co-defendants must have been
conclusively decided in a prior legal proceeding.
• Co-defendants must have been either necessary or proper parties in the earlier lawsuit where the
conflicts were addressed
 Foreign Judgments when cannot be Enforced in India

Foreign Judgment not by a competent court

• a judgment of a foreign court to be conclusive between the parties must be a judgment pronounced
by a court of competent jurisdiction

• R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar

• alleged by the respondent that since he was not a subject of the foreign country, and that he had not submitted
to the jurisdiction of the Foreign Court (Singapore Court), the decree could not be executed in India.

• The Appellant, in defense of this argument, stated that the Respondent was a partner of a firm which was doing
business in Singapore and had instituted various suits in the Singapore Courts

• The Court held that it was the firm which had accepted the jurisdiction of the foreign Court and the Respondent,
in an individual capacity, had not accepted the jurisdiction.
Foreign Judgments not on Merits
• in Gurdas Mann v. Mohinder Singh Brar the Punjab & Harayana High Court held
• that an exparte judgment against plaintiff and decree which did not show that the plaintiff had
chance to provide evidence to prove his claim before the Court,
• was not executable under Section 13(b) of the CPC since it was not passed on the merits of the
claim.

When a Foreign Judgement is Against Indian or International Law

• I & G Investment Trust v. Raja of Khalikote, a suit was filed under the English Jurisdiction
to avoid the consequences of the Orissa Money Lenders Act. The Court held that the
judgment was passed on an incorrect view of the international law.
• A judgment passed by a foreign Court upon a claim for immovable property, situated in the Indian
territory may not be enforceable since it violates International Law.
• A judgment passed by the foreign Court, where before a contrary Indian law had been shown, but
the Court had refused to recognize such law, then that Judgment or decree may not be enforceable
Foreign Judgments opposed to the principle of Natural Justice
• Lalji Raja & Sons v. Firm Hansraj Nathuram, the Supreme Court held that just
because the suit was decreed ex-parte, although the defendants were served with
the summons, does not mean that the judgment was opposed to natural justice.

Foreign judgment obtained by fraud

• In the case of Satya v. Teja Singh the Supreme Court held that since the plaintiff
had misled the foreign court as to its having jurisdiction over the matter, although
it could not have had the jurisdiction, the judgment and decree was obtained by
fraud and hence inconclusive.
Foreign Judgments founded on breach of Indian Law
• Ruchi Majoo v. Sanjeev Majoo, the Supreme Court emphasised that in matters concerning
child custody, the welfare of the child is paramount. Therefore, an Indian court must
independently review the case and make a decision that considers the best interests of the
child, taking into account any ruling made by a foreign court.

• China Shipping Development Co. Limited v. Lanyard Foods Limited

• foreign company delivered cargo to the Indian company
• letter of indemnity issued by the respondent Indian company
• respondent Indian company, which denied its liability and therefore the foreign petitioner company
initiated legal proceedings against the Indian company in the English Courts
• the English Court passed ex-parte order awarding a certain amount in favor of the petitioner foreign
company on consideration of evidence and on merits of the claim filed by the foreign company

• A foreign Judgment may be enforced by proceedings in execution in certain specified cases

mentioned in Section 44-A of the CPC.
• The List of the Reciprocating Territories as per the Provisions of Section 44 A of the
Code of Civil Procedure, 1908
• United Kingdom
• Singapore
• Bangladesh
• UAE
• Malaysia
• Trinidad & Tobago
• New Zealand
• The Cook Islands (including Niue)and The Trust Territories of Western Samoa
• Hong Kong
• Papua and New Guinea
• Fiji
• Aden.
 Stages in Suit hearing / trials
• Filing of plaint [Order 7, Rule 1, 30 days]Plaintiff can withdraw the plaint within this time
period.
• Service of summons [Order 7, Rule 2, 30 days] Defendant can file a written statement within this
time period.
• Appearance of parties [Order 9, Rule 1,30 days] Parties can appear in person or through their
lawyers.
• Written statement [Order 8, Rule 1,30 days] Defendant can file a written statement denying the
plaintiff’s claim.
• Settlement [Section 89, Any time], Parties can settle the dispute at any time before the judgment
is pronounced
• Interlocutory proceedings These are proceedings that are taken up by the court during the course
of the suit to decide some interim matter, such as the grant of an injunction or the appointment of
a receiver.
• Production of documents [Order 13,As per order] Parties are required to produce all
documents relevant to the case.
• Examination of parties [Order 10,As per order] Parties are examined by the court to
elicit their evidence.
• Discovery and inspection [Order 12,As per order] Parties are allowed to inspect
each other’s documents and to ask questions about them.
• Admission [Order 11, As per order] Parties can admit facts that are not in dispute.
• Framing of issues [Order 14, As per order] The court frames the issues that are to be
decided in the case.
• Hearing of suit and examination of witnesses [Order 18 ,As per order] The
court hears the evidence of the parties and their witnesses.
• Judgment [Order 20, As per order] The court pronounces its judgment
after considering the evidence and arguments of the parties.

• Appeal, review, and revision, The parties can appeal against the
judgment, or the court can review or revise it.