MULLA The Key to Indian Practice [11 ed.] 9789351437031

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MULLA The Key to

Indian Practice A summary of the Code of Civil Procedure by

SIR DINSHAW FARDUNJI MULLA

11th Edition

LexisNexis

Preface to the Eleventh Edition Change is inevitable and difficult. This is true not only about life but also about law. The over-arching mission of the author, in the preparation of this book is to avoid complexity in the Code of Civil Procedure and eliminate the procedural difficulties. The avowed reason behind accepting the offer to edit the Eleventh Edition of a work on The Code of Civil Procedure 1908 by Sir Dinshaw Fardunji Mulla was much more than to update and/or to provide the law students, young advocates, law-teachers and judicial officers with an easy-to-use tool for reading, teaching and practising in the conduct of suits in and out of court. The exercise was also aimed to provide a direct link with practical work and easy access to all the common and complicated troubles of Civil Procedure. This is significant in view of the growing impression that the new breed of lawyers is not passionate about procedural niceties in civil law, may be they do not find it very 'interesting'.

Praise for the earlier edition "For those who want to study the core of the civil procedure code, this book is a must as the language is simple and the subject is explained in a conceptual way without the rote method of learming through section wise study. This book is very logical in arrangement and enables the reader to grasp the essentials of the code in a simple and reader friendly manner"

About the book

Mulla -TheKey to Indian Practice by Sir Dinshaw Fardunji Mulla provides a summary of As the book towards its end tends to drag a bit with lot of ithe Code of Civil Procedure.

technical details and information about Civil Procedure, the new edition is an attempt to

further simplify the learning of procedure adopted by Civil Courts. The discussion of the subject-matter of the present edition, however, continues to be topic wise. This book covers a lot of information and technical details of Civil Procedure in a very simplified way. This might interest technically inclined readers to know the procedure and the way civil courts are working. One of the things that stand out throughout the book is the aim of the author to avoid complexity and to provide easy and comprehensive knowledge about the Civil Procedure.

New to the Edition Latest Supreme Court and High Courts Judgments Contemporary topics that have emerged during the progress of this work have also been incorporated, such as, right to impleadment of a beneficiary of Trust, effect of delivery of possession of the 'property agreed to be sold' on the issue of limitation of filing suit for specific performance, whether mortgage can be redeemed even after the sale has taken place but before confirmation of such sale, duties of the High Court while sitting as Court of first appeal, non-maintainability of separate suit under Order 23 Rule 3 and 3A CPC, whether there is legal necessity to fresh impleadment of legal representatives of a deceased plaintiff when they are already on record in their individual capacity, and transfer of suit from one court to another for joint trial The provisions of the Code of Civil Procedure, 1908 have been concisely discussed in a systematic manner with an attempt to co-relate the chapters aiming to make the reading interesting

Preface to the Eleventh Edition

Key Features Covers how the course of an ordinary suit is followed, from the moment the plaintiff determines to sue till the time he

obtains a decree

Elaborates in detail the critical process of execution of a decree and the possible consequences of an appeal by an affected party

Employs the explanatory method of treatment enabling advocates not only to understand the provisions of the Code, but also to see how these provisions are applied in practice

Revised and updated thoroughly to include latest judgments and case laws

Content and Structure This book contains 15 Chapters with 1 Appendix. Its opening chapter gives the introduction to the Code of Civil Procedure, 1908, as to how it came into being, why its need was felt and what is the scheme of the Code.

Chapter 2 explains the constitution of Couts and their Jurisdiction, namely, how many types of courts are there in which suits of civil nature can be presented and what is their authority to decide such suits. Chapter 3 specifically elaborates the essentials of a suit and the conditions which must be fulfilled to initiate civil proceedings in a court of law, and what should there be in a plaint in the case of a suit for specific performance. Chapter 4 details out the places where civil suits of different nature can be instituted, and the possible objections which can be raised against the place of suing. Chapter 5 accounts the

requisites for impleadment of parties and the ingredients of Cause of Action and its joinder or misjoinder. The different stages of asuit from its institution to execution are enumerated in Chapters 6, 7,8 and 9. Chapters 10 and 11 contain the remedies of first and second appeals against the order or decree of lower court(s). Chapter 12 gives an insight of the provisions of reference. revision and review of the decisions of same or lower courts.

The nature of supplemental and special proceedings, say, for temporary relief to the parties, death or mariage of parties, as well as friendly suit etc. are explained in Chapter 13. Chapter 14 covers the procedure in case of special suits by minor, indigent person, inter-pleader suit, suit by or against a firm, or Government, or summary suits etc. This chapter further enlightens in general as als the principle res-ju its applicability in the case of foreign judgments, besidesthe doctrine of res-subjudice. Further, Chapter 14 of the book deals with subjects like 'Foreign Judgments' and 'Caveat"'. Chapter-15 addresses the Alternative Dispute Redressal Mechanism, which is now an integral part of the mandatory procedure to be followed by Civil Courts.

Acknowledgements Ihope that this edition will be useful for all entities in the legal profession. Any suggestions towards its further improvement will be thankfully acknowledged and incorporated in the next editio. They may be sent to the publisher.

I shallremain grateful to the commissioning, editorial, and production teams of the publisher, LexisNexis, for their invaluable inputs and utmost cooperation. Further, I would like to express my special thanks to my wife- Smt. Savita Vashisht, who is AssociateProfessor in English and Mr. Abhishek Mital - my Law Researcher as without their cooperation and assistance, this edition could never have been completed.

Justice Surya Kant VI

Preface to the Tenth Edition The Code of Civil Procedure, 1908, is a voluminous statute. For a law student or a fresh advocate, it is not possible to go through the entire Code and understand it completely.

Sir D F Mulla, in this work has given an idea of practice and procedure in the conduct of suits in and out of court, to law professionals especially new entrants as well as law students. It is a clear and sagacious exposition, in brief, of the important provisions of the Code. In the form of just fourteen lectures he has very nicely unfolded the complete Code. The treatment he adapted enables readers to understand the provisions of the Code as well as

inspires them to learn how to apply the provisions to the practice of civil law. The present tenth revised edition has been updated by incorporating select decisions delivered by the Supreme Court of India and various High Courts on the Civil Procedure Code. The case law on the subject has been searched and collected from several Journals

including All India Reporter, All India High CourtCases, AIR Civil Cases,Supreme Court Cases, Delhi Law Times, Madras Law Journal, Maharashtra Law Journal, MP Law Journal, Gauhati Law Reporter, Karnataka Law Journal, etc.

In this lucid narration of the Code, important sections have been referred in appropriate places and also supplemented with latest case law in a very penetrating way so as to make the work not only a guide to Indian civil practice but also a readable summary of the Code. It has been designed in a way best suited to the requirements of those initiating their study of procedural law. I take this opportunity to take the blessings of my revered parents and teachers, to thank my wife, Saraswati, and daughter, Anushree, to express gratitude to my learned colleagues Dr S S Srivastava, Dr Lily Srivastava, Dr Preeti Mishra, Dr S K Pandey and Advocate Kuldeep Srivastava, and the rest who expressed their valuable ideas and put forth their suggestions to enrich this new edition. I extend my most sincere thanks to my publishers, M/s LexisNexis Butterworths, for their support in the publication of this edition.

Shriniwas Gupta Lucknow

Preface to the Ninth Edition An acclaimed classic that has been in existence for more than three quarters of a century without losing any of its sheen or usefulness, was sure to present some difficulties in revision. The arrangement of the book as conceived and adopted by Sir DF Mulla and maintained by successive editors, is avowedly different from other books on the same subject, which made the task of revision further difficult. The object of the present work, as conceived by Sir Mulla, is to give an idea to the student

of law, of the practice and procedure in the conduct of suits in and out of court. The Code of Civil Procedure, 1908 is a voluminous statute and it is impossible for anyone, especially a student, to go through the entire code and understand the same or be able to distinguish relevant provisions. The work is a clear and brief exposition of the important provisions of the Code and gives an overview of the conduct of civil suits in Indian courts. It is in the form of lectures that were fourteen in number earlier. Now in view of section 89 CPC, a new chapter on 'Alternative Dispute Redressal Mechanisms' (ADRs) has been added. In these chapters, the course of an ordinary suit is followed from the moment the plaintiff determines to sue till the time he obtains a decree and thereafter it follows appeal by the defendant and further appeals. This method of treatment has been adopted so as to enable the student not only to understand the provisions of the Code, but also to see how these provisions are applied in practice. Every important section of the Code has been noted in its appropriate place supplemented with latest decisions and efforts have been made to make the work as useful as possible to all readers, not only as a guide to Indian practice but also as a readable summary of the Code arranged in a manner best suited to the requirements of beginners in the study of law.

The work has been written in a special narrative form that gives it a very personal touch

distinguishing it from other books on the subject. Loyalty to the original form and style has been maintained while incorporating the change in language of the pleadings and terminology. Moreover, an attempt has been made to substitute the latest case law laid down by the Supreme Court as well as various High Courts in place of old case law. The last edition in 2003 and since then the law through judicial decisions has undergone a change, which has been duly incorporated at the appropriate places I take this opportunity to seek blessings of my parents and teachers, to thank my wife,

children and other family members, to express gratitude to my dear friends and esteemed colleagues Dr Sudhir Kumar Jain, Sh Sanjay Kumar, Ms Neena Krishna Bansal, Ms Shalinder Kaur, Ms Sarita Birbal and all those who guided me and gave valuable suggestions in my work on this new edition. I express my sincere thanks to M/s LexisNexis, Butterworths, New Delhi, for their support in publishing the book in its present form, especially Ms Pankhuri Shrivastava Publishing Manager, Ms Sheeba Bhatnagar and Ms Richa Kachhwaha, Senior Legal Editors, for providing all the necessary input, material and support, as well as Ms Debarati Banerjee, Commissioning Editor.

New Delhi February 2008

Vinay Kumar Gupta

Preface to the Eighth Edition An acclaimed classic that has been in existence for more than three quarters of a century without losing any of its sheen or usefulness, was sure to present some difficulties in revision. The arrangement of the book as conceived and adopted by Sir DF Mulla and maintained by successive editors, is avowedly different from other books on the same subject, which made the task of revision further difficult. The object of the present work, as conceived by Sir Mulla, is to give an idea to the student of law, of the practice and procedure in the conduct of suits in and out of court. The Code of Civil Procedure, 1908 is a voluminous statute and it is impossible for anyone, especially a student, to go through the entire Code and understand the same or be able to distinguish relevant provisions. The work is a clear and brief exposition of the important provisions of the Code and gives an overview of the conduct of civil suits in Indian courts. It is in the form of lectures that are fourteen in number. In these lectures, the course of an ordinary suit is followed from the moment the plaintiff determines to sue till the time he obtains a decree andthereafter it follows appeal by the defendant and further appeals. This method of treatment has been adopted so as to enable the student not only to understand the provisions of the Code, but also to see how these provisions are applied in practice. Every important section of the Code has been noted in its appropriate place, and efforts have been made to make the work as useful as possible to students, not only as a guide to Indian practice but also as a readable summary of the Code arranged in a manner best suited to the requirements of beginners in the study of law. touch The work has been written in a special narrative form that gives it a very personal distinguishing it from other books on the subject. The present edition, while trying to be loyal to the original form and style, has tried to incorporate the change in language of the latest pleadings and terminology. Moreover, an attempt has been made to substitute the case-law laid down by the Supreme Court as well as various High Courts in place of old caselaw. The last edition of the book was published in 1994 and thereafter, the Code underwent

major amendments. These amendments have been duly incorporated at the appropriate places. I take this opportunity to thank my beloved wife and children and all those who assisted me in my work on this edition. I would particularly like to thank Mr Vidyaraya Chakravarthy, Commissioning Editor, LexisNexis Butterworths whose invaluable help in providing the necessary material and support helped in publishing the book in its present form.

New Delhi November 2003

Vinay Kumar Gupta

Preface to the Seventh Edition Since the professed object of the present work is to give an idea to the student of the practice and procedure in the conduct of suits in and out of court, and since the arrangement of the book as conceived and adopted by Sir DF Mulla and painstakingly maintained by successive editors is avowedly different than other books on the same subject, the task of revision presented some difficulties. This work is acclaimed as a classic. It contains a lucid exposition of the material provisions of the Code of Civil Procedure, 1908. However, I felt that the utility of this work can be enhanced by providing further comments on the material provisions of the Code with the decisions of Supreme Court and High Courts and by adding certain topics which are useful from the student's point of view. While making additions, I have tried to take care to see, as far as possible, that the flow and the cadence of the book is not disturbed. It became my obsession to ensure that this edition must continue to meet the needs of the students as well as new entrants in the profession. I feel immensely indebted to my father who has bestowed his utmost attention upon me all throughout and which I have come to regard as my greatest fortune. I also take this opportunity to acknowledge my deep sense of gratitude to Shri Girish R Pathak, Advocate, who affectionately initiated me into legal practice and whose bold and unhesitating entrustment of contentious work gave me opportunities to observe and experience the

working of labyrinthine principles of civil law in actual practice and to M/s NM Tripathi Pvt Ltd, Bombay for their support in publishing this work. Ahmedabad

Umesh D Shukla

15 February 1994

.

1.

.

Awt

Contents to

Prefaceto theEleventhEdition

n

Preface to the Tenth Edition

Prefacetothe Ninth Edition

b

yistyhuty

Preface to the Eighth Edition Preface to the Seventh Edition

ta? pv

.

a.

viii 1X

x

xvi

Table ofCases

CHAPTER 1

CHAPTER 2

Introductory

The Courts and their Jurisdiction 7

2.1 Constitution of Courts

t.F 8

2.2 Jurisdiction

"Lack of Jurisdiction and Irregularexercise of Jurisdiction

9

2.2.1 Original and Appellate Jurisdiction 2.2.2

Jurisdiction

as Regards Local

10

Limits,

Pecuniary

Limits,

and

Subject-matter

11

2.2.3 Ordinary Original and Extraordinary Original Civil Jurisdiction 2.3 Courts 2.3.1 Courts in Presidency Towns

13 13

2.3.2 Courts in other Parts of India

13

2.3.2.1 Original Jurisdictionh to s2us) brsanis 2.3.2.2 Appellate Jurisdiction

2.3.2.3 Courts ofSmalC l ause 2.4 The Three Rules 2.5 Suits of a Civil Nature 2.5.1

Express Bar

2.5.2 Implied Bar Jurisdictional Fact" CHAPTER 3

e

12

itg1.121i

2h1nnat

14 14 14 15 16 18

t 19 20

The Four Essentials of a Suit

3.1 Parties

23

3.2 Cause of Action

26

3.3 Subject Matter 3.4 Reliefs Claimed

29

Events happening after the institution of suit 3.4.1

Reliefs in Suits on Contracts

3.4.2 Reliefs in Suits for Torts

29 30 31

32

xii

Contents

3.4.3 Reliefs in Suits on Mortgage 3.5 Plaint in Suit for Specific Performance

32

33 34

3.5.1 Summary 3.5.2 Comment

5

CHAPTER 4 Place of Suing

4.1 Placeof Suing

37

4.2 Sections 16, 17, 19 And 20 of the Code

38

38

4.2.1 Suits for Immovable Property 4.2.2 Suits for Compensation for Wrong Done to the Person or to Movable Property 4.3 Place where Wrong is Committed 4.4 Residence 4.5

Carries on Business

4.6 Personally Works for Gain 4.7 Clause 12 of the Charter

40 45 46 48 49

4.7.1 Suits for Land

19

4.7.2 Suits other than those for Land

9

4.8 Points of Distinction Berween Sections Clause 12 of the Letters Patent 4.9 Ascertaining the Particular Court 4.10

40

16, 17 and 20 of the Code and

50 51

52 53

Objection as to Place of Suing 4.10.1 Factors Constituting a Failure of Justice

54

4.10.2 Waiver of Objection to Territorial or Pecuniary Jurisdiction "Objection Us 21(3) CPC in Execution proceedings" 4.11 Objections as to Over-valuation and Under-valuationl "Forum shapping CHAPTER 5 Parties and Cause of Action 5.1 Preliminary 5.2 Transactions as Distinguished from Cause of Action 5.3 Joinder of Parties

55 55

zmu

56 59 59 63

5.3.1 Joinder of Plaintiffs 5.3.2 Joinder of Defendants

64 65

6

5.4 Procedure in Case of Misjoinder of Parties

5.5 Joinder ofCausesof Action 5.5.1 One Plaintiff, One Defendant, and SeveralCauses of Action 5.5.2 Joinder of Plaintiffs and Causes of Action 5.5.3 Joinder of Defendants and Causes of Action 5.5.4 Joinder of Plaintiffs, Defendants and the Causes of Action 5.6 Procedure in Case of Misjoinder of Parties and Cause of Action 5.7 Non-joinder of Parties

5.7.1 Effect of Non-joinder of a Necessary Party 5.7.2 Effect of Non-joinder of a Proper Party 5.7.2.1 Who is a Proper Party?

.

67 68

13

S.

68 69 70 71 71

72 73 73

Contents CHAPTER 6

6.1

Steps in a Suit

1b

Institution of a Suit [Order IV, Rule 2]

6.2 Summons to Defendant [Order V 6.2.1

75

31

81

elastt.

What Constitutes a Summons?

81

6.2.2 Service of Summons

191T

6.2.3 Personal or Direct Service

6.2.4 Mode of PersonalService 6.2.5 Substituting Service 6.2.5.1 First Mode

83 83 85

t

6.2.5.2 Second Mode

tefot o2f911tmd 85 11orroits3 A 86 87

6.3 Inspection of Documentsreferred to in the Plaint [Order

XI,.I.e 88 88

Rule 15] 6.4 Written Statement [Order VIII) 6.4.1 Set-off and Counter Claim 6.4.1.1 Set-off

91

anur3rots8ouob.i.

91

6.4.1.2 Counter Claim 6.4.2 Written Statement in Suit for Specific Performance 6.4.3 Non-Compliance with Order for Written Statement "Signing and Verification of pleadings under O.VI R.14 and 15 6.5 Amendment of Pleading and Particulars

6.5.1 ScandalousAllegations in 6.5.2 Particulars CHAPTER7 Documents and Witnesses

93 96 96 97 98

Pleadingshoty

101

102

tO l io rEiC103 104 7.I1n.t1errogatories L tulw to notto zn e ' t tis4 7 7.1.1.1 Form of Interrogatories

7.1 Discovery and Inspection [Order XI]

7.1.1.2FormoftheAffidavitin Answerbaot lee leonii o0o 7.1.2 Affidavit of Documents

106

7.1.3 Premature Discovery

109

7.1.4 Inspection

109

7.1.5 Non-compliance with Order tor Discovery or Inspectionubsu()

110

7.2 Notice to Admit Facts or Documents [Order X1l]

7.3 Summoning ofWitnesses [Order XVI]

7.4 Production ofDocuments[Order Alll CHAPTER 8

Hearing and Disposal

lpqy 0laT

8.1 First Hearing and Settlement ofIssues [Order X; Order XII, Rules 1-2; Orders X1-XV 8.1.1

Whether the Suit can be Decided on a Single Other Issues Undecided

111 O

117

Issue Leaving 120

8.2 Hearing of the Suit and Examination ofWitnesses [Order XVII] "Evidence recorded by another judge under O.XVII R.15"

127

8.3 Judgment [Order XX]

128

124

Contents

xiv "Alteration in judgment"

129

8.4 Decree [Order XX]

130

"Mesne Profits"

132

8.4.1 Kinds of Decree

133

"Passing of more than one preliminary or final decree

134

"Interest" U/s 34 CPC "Costs" Us 35, 35-A, 35-B

135 136

8.5 Where Parties do not Appear [Order IX]

CHAPTER 9

138

Execution of Decrees

9.1 Meaning of Execution 9.1.1

Application for Execution

143

9T

144

9.1.2 Who may Apply for Execution

144

9.1.3 Against Whom Execution may be applied for 9.1.4 Notice Before Issuing Process

144

9.1.5 Mode of Execution 9.1.6 Execution againstPerson of Judgment-Debtor

145

9.1.6.1 Decree for Payment of Money 9.1.6.2 Decree other than Money Decree 9.1.6.3

Procedure

9.1.6.4 Restriction and Conditions

144

146 146 146

146

.

147

9.1.6.5 Period of Detention andRelease U 9.2 Payment out of Court

147

9.3 Garnishee

148

9.4 Stay of Execution

147

148

9.5 Execution against Property of Judgment-debtor 9.5.1 Irregularity in the Conduct of Saleof Artached Property

151

9.6 Disposal ofSale-proceeds

151

9.7 Resistance to Delivery of Possession to Purchaser 9.8 Courts by which Decrees may be Executed 9.9 Percepts

9.10 Questions to be Determined by Court Executing 9.11

Procedure

Execution of"Cross-Decrees" CHAPTER 10 Appeals from Original Decrees 10.1 Appeals from Original Decrees

10.2 Court of Appeal 10.3 MemorandumofAppeal 10.4 Stay of Execution 10.5 Securiry for Costs

10.6 Notice of Day for Hearing Appeal 10.7 Cross-appeal and Cross-objections

Decree

149

152 152 153 153 154

154

155

158 158 160 161 161 161

Contents

X

163

10.8 Hearing of the appeal 10.9 Judgment and Decree

271

10.10 Consequence of Non-appearance of Parties CHAPTER I1 Appeals from Appellate Decrees or Second Appeals 11.1 Second or Special Appeals

11.2 Appeals to the Supreme Court 11.2.1

m

lisyn

In What Cases is a Second Appeal Possible?

11.1.2

l

167

g or

11.1.1 What is Substantial Question of Law?

iai

Procedure in Appeals to the Supreme Court

11.3 Appeals from Orders

114 The Next Chapter CHAPTER 12 12.1

169

172 174

174 175

176 178

References, Revision and Review

Reference

F

12.2 Revision

179 180

12.3 Reviewof Judgment [Order XLVII)

u

12.4 The Next Chapter CHAPTER 13

166

183 187

Supplemental and Special Proceedings (A) Supplemental Proceedings

13.1 Arrest and Attachment before Judgment

189

13.1.1 Arrest before Judgment [Order XXXVIII, Rules 1-4] 13.1.2 Attachment before Judgment [Order XXXVIII, Rules 5-12]

13.2 Temporary Injunction [Order XXXIXI 13.3 Receiver [Order XL] 13.4 Security for Costs [Order XXV] 13.4.1 Discretion of the Court 13.5 Withdrawal of Suits [Order XXII, Rules 1-2] 13.6 Payment into Court [Order XXVI 13.7 Compromise of Suits [Order XXIII, Rule 3]

i13173

190 191

193 197

199

t

200

Le1A

200 202 203

(B) SpecialProceedings 13.8 Special Case [Section 90; Order XXXVI]

13.9 Death, Marriage and Insolvency of Parties [Order XXI] CHAPTER 14

0

205

205

Suits in Particular Cases

14.1 Scope

211

14.2 Notice before Suit

211

14.3 Consent before Suit

213

"Doctrine ofCypres 14.4 Title of the Suit

e123 213 214

14.5 Parties

214

14.6 Contents of Plaint 14.7 Signing and Verification of Pleading

215

215

xvi

Contents

14.8 Service of Summons, Appearance, Etc. 14.9 Procedure 14.10 Decrees

215

14.11 Execution ofDecrees

216

14.12 Other Special Provisions

216

14.13 Interpleader Suits [Section 88, Order XXXV] 14.14 Suits by or against Minor and Lunatic [Order

216

215 216

XXXII]

217

Order 32-A "Suits concerning family matters"

218

14.15 Suits by Indigent Persons [Order XXXII] 14.15.1

218

Appeal as Indigent Person

14.16 Suits by or Against Firms [Order XXX] 14.16.1 When Partners May Sue or be Sued in Firm Name

221 221 221

14.16.2 Suit by a Firm

221

14.16.3 Suit Against a Firm

222

14.17 Suit Involving Question of Interpretation of Constitution or Validity of Statutory Instrument 14.18 Summary Suits 14.19 Bar of Certain Suits 14.19.1

223 223 225

ASuit may be Barred asRes Judicata [Section 11] 14.19.1.1 Conditions

ba

"Res Judicata between co-defendants

225 227 228

"Proforma Defendants"

228

"Matter Collaterally in Issue

230

14.19.1.2 Representative Suits

231

14.19.1.3 Courts of Limited Jurisdiction 14.19.1.4 Applicability of ResJudicata to other Proceedings

231 231

14.19.2 Stayof Suit

232

14.19.3 Restitution

35

14.20 Miscellaneous

236

14.20.1

236

Foreign Judgments

14.20.2 Caveat

238

14.20.3 Powers of Court 14.20.3.1 Enlargement of Time (Section 148) 14.20.3.2 Inherent Powe

239 239 239

14.20.3.3 Power to Correct Error

241

14.20.3.4 Transfer of Suit

241

CHAPTER15 AlternativeDisputesRedressaM l echanisms(ADR) h

245

APPENDIX

249

City Civil Courts and their Jurisdiction

Index

253

lorrour hgr

CHAPTER.

INTRODUCTORY

The province of law differs from that of ethics. While ethics condemns every sort of falsehood; law does not punish all falsehoods, but only those that affect the good governance of the state. On referring to the Indian Penal Code, 1860, one finds that

che only kinds of falsehoods which are punishable under the Code are perjury, forgery, cheating, and giving false intormation to a public servant in certain matters. At times, law goes beyond ethics, and makes it penal to do an act which may not be objectionable from an ethical point of view. A rule of the road in the United Kingdom and India is that drivers shall keep to the left, and a breach of the rule constitutes an act punishable in both the countries. A different rule prevails on the continent of Europe, for the rule there is that drivers shall keep to the right. Neither of these rules, however, is opposed to ethics. Keeping aside ethics, a perusal of law is necessary. Law may be divided into civil and criminal. It is not easy to distinguish berween crime and civil wrong and, in some cases, the

distinction

same act may be a

crime as well as a civil

wrong.

Yet there is a

between the two, which, in its essence, is quite simple. The distinction

does not lie in the nature of the act complained of, but in the consequences which visit the wrongdoers. In case of a crime, the wrongdoer is punished and kinds of punishment vary from fine to imprisonment, depending upon the nature of crime. In case of a civil wrong, the aggrieved person is normaly compensated by monetary relief. Law dealing with civil wrongs and the remedies available for their redressal may be conveniently

labelled as civil law. In

the present lecture we are concerned

with civil law, as distinguished from criminal law. There is another division of law, often expressed by the words 'substantive' and 'adjective' or 'procedural'. Substantive law deals with rights and liabilities, imposes and defines the nature and extent of legal duties; adjective law deals with practice and procedure. The Indian Contract Act, 1872, the Transfer of Property Act, 1882, the Specific Relief Act, 1963, the Indian Trusts Act, 1882, the Indian Succession Act, 1925, are all

instances of substantive law. The Code of Civil Procedure, 1908, the relevant civil

2

-

Mulla The Key to Indian Practice

Chapter

courts Acts, the Presidency Small Cause Courts Act, 1882, the Indian Evidence Act,

1872, are instances of adjective law.

In these lectures, we are concerned with adjective law, but the study ofsubstantive law should precede the study of adjective law and, therefore, it is advisable to study the five Acts mentioned above before commencing the study of the Code of Civil Procedure, 1908 (Code) or of the IndianEvidence Act, 1872. A prior study of the said Acts is essential to have a thorough

understanding

of the Code. In order to

grasp the provisions of the Code, simpler and easier methods have been evolved in the present lectures.

In these lectures, we have traced the course of an ordinary suit from the moment a plaintiff determines to sue until an appeal is preferred to the Supreme Court. As our typical suit, we have taken a suit for specific performance, and we have given the torms of the plaint, writ of summons, written statement, affidavit of documents, interrogatories, summons to witnesses, issues, and decree in the suit. The suit is then carried to an appeal, and ultimately to an appeal to the Supreme Court. The proceedings in the suit and appeal are so conceived in these lecturesas to facilitate taking note of almost every important section and rule contained in the Code, and the relevant civil courts Acts. Within the limits of fifteen lectures, an endeavour has been made to give a clear idea of

the

important steps that are

usually taken in an ordinary suit. As stated above, the Code is an instance of adjective procedure.

Procedure

is a mere

machinery,

law dealing with practiceand

having

its

object

to

facilitate the

administration of justice, meaning thereby that procedure is a process necessaryto be undertaken for enforcement or recognition of the legal rights and liabilities of the litigating parties by a court of law. The procedural rules are equally important as much as the rules of substantive law, but are not meant to defeat the substantive law

or obstruct the administration of justice. The procedural rules are not mere technicalities and it is a misconception to ignore them altogether as several other rules of procedure serve the very ends of justice under the substantive law and some rules are needed for proper resources,

time management and public policy. However, procedural law is alwayssubservient to substantive law. The procedure is handmaiden to the substantive rights of the parties.'

Nothing can be given by a procedural law that is not sought to

a substantive law.

"lt is a procedure,

further its ends: not a penal

enactment

something for

be given by

designed to facilitate justice and

punishment

and penalties;

not a thing

designed to trip people up."

Sukhbir Singh v. Brij Pal Singh, AIR 1996 SC 2510: (1997) 2 SCC 200. Saiyad Mohammad Baker El-Edroos v. Abdul Habib Hasan Arab, AlR 1998 SC 1624: 343. 3. Sangram Singh v. Elction Tribunal, AIR 1955 SC 425. 2.

(1998) 4 SCU

Chapter 1

Introductory

Civil procedural law is an indispensable instrument for the atainment of justice and it fulfils many legal and social functions and it assumes complementary character when it puts into motion and gives life to substantive law. It assumes the protective character by representing the orderly, regular and public functioning of the legal machinery and the operation of the due process of law, and sustains and safeguards every person in his life, liberty, reputation and property, while it assumes remedial or practical character when it deals with the actual litigation process itself and enhances the importance and application of rules for the conduct of the judicial process. Before 1 July

1859,

there were no less than

nine

different

systems

of civil

procedure simultaneously in force in Bengal. The systems of procedure in other parts of British India were equally numerous. The evils arising from this state of things had been felt, and they were to a certain extent, remedied by the Code of 1859. However, the Code of 1859, aspassed, did not apply to Supreme Court, or to the presidency small cause courts, nor did it extend to non-regulation provinces. In course of time, it was extended to almost the whole of British India, and it was also made applicable to the high courts by virtue of their respective charters. As the Code was ill-drawn, ill-arranged and incomplete, a fresh Code had to be passed in 1877. A few months' experience, however, showed that several amendments were desirable, and after five years, another Code was passed, namely the Code of 1882. The Code of 1882 remained in operation for more than quarter of a century and to remedy the defects experienced during that period, a comprehensive revision of the code was 1882 was undertaken in the first decade of trwentieth century, and the Code of 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. Having regard to the fact that the procedural niceties were becoming potential source of motivated delays at the hands of unscrupulous litigants that the necessity to cut short the delays at various levels was considered and the Code was

drastically amended by the Code of Civil Procedure (Amendment) Act, 1999, which proposed several changes to the Code. However, the same was not notified and some of the proposed changes under the Amendment Act of 1999 were deleted or

substituted

through the Code of Civil Procedure (Amendment)

Act, 2002,

consistent with the demands of fair play and justice which came into force on 1 July

2002. The important changes in the Code brought about by these amendments fix the time limit for doing certain things, permit the parties to adduce evidence by affidavits, and further the provision for settlement of disputes through arbitration, conciliation,

lok adalats and

meditation.

The Supreme Court

in Salem Bar

4. Dr WhitleyStoke'sAnglo-IndianCodes,vol. Il, pp. 380-86. 5. Act 104 of 1976. For the background, see Law Commission of India, twenty-seventh and fifty-fourth Reports, s. 1(3).

Mulla The Key to Indian Practice

Chapter 1

Association and others v. Union of India and oshers has held the amendments in the Code brought into force w.e.f. 1 July, 2002 as

constitutionally valid.

The Code of 1882 contained 49 chapters, each chapter consisting of several sections, the total number of sections being 652. The arrangement of the present Code is a novel one. It proceeds upon the lines of the Judicature Acts and the Rules

framed under those Acts. 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 rules and orders comprised in Schedule I constitute the second part. As regards the 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.' The high courts have not been slow in exercising this power, and the work of annulling, altering and adding to the rules has been going on an extensive scale. If the work continues in the manner in which it has been going on for some times past, we shall soon have a separate Code which, from every point of view is most undesirable. As for each state, a result regards high courts, it is to be observed that they have the power under S. 129 to make rules to regulate their own procedure in the exercise of original jurisdiction. Such rules may be inconsistent with the provisions of the Code, but they must not be inconsistent with the letters patent establishing those courts.

The Code was enacted with the object of consolidating and amending the laws relating to the procedure of the courts of civil judicature. It is a complete Code in itself as regards the subject it deals with. It would govern all actions of a civil nature, unless

otherwise

provided

for

and thus,

its

provisions

are to be construed as

exhaustive with regard to the matters dealt within it. However, when there is no specific provision in the Code, courts must be guided by the principles of justice, equity and good conscience." Some of the provisions do make certain exceptions and it is necessary to notice them." The present Code came into force on 1 January, 1909. It extends to the whole of India except" the areas mentioned in S. 1, but it does not apply in its entirety to all the courts of India. Its preamble states that the Code was enacted to consolidate and

amend the law, relating to the procedure of the courts of civil judicature, but the expression 'courts of civil judicature' is not defined in the Code. However, by judicial process, it will be determined in each case, whether the Code is applicable to a

particular 6. 7. 8.

9. 10.

11. 12.

court or

forum

and if yes, to what

extent.

lts

applicability

SalemBarAssociationandothersv. Union of India andothers, (2005) 6 SCC 344.

can be

.

Director ofTnspectionofTncome Tax v. Pooran Mal & Sons (1975) 4 SCC 568. Iridium Indian Telecom Ltd v. Motorola Inc, (2005) 1 CTC 304 (SC): (2005) 2 SCC 145. Manohar Lal v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527. SeeCode of Civil Procedure 1908, s. 4(1). Ram chand andSonsSugar Mils (Pu) Ltd. Barabanki(Ursar Pradesh)v. KanhayalalBhargava, AlR 1966 SC 1899: (1967) 37 Comp Cas 42 (SC). Iridium Indian Telecom Ltd. u. Motorola Inc., (2005) 1 CTC 304 (SC). Code of Civil Procedure, 1908, s. 1(3).

Chapter

Introductory

extended or restricted by legislatures. For instance, the Code applies to proceedings in the testamentary and intestate jurisdiction, except as otherwise provided by Indian Succession Act, 1925. Insolvency courts are courts of civil judicature, but their procedure is regulated by special Acts. The Code also makes certain specific provisions to this eftect. Thus, only a few portions extend to the presidency small cause courts, and those portions are declared by S. 8 and by O. LI. As regards provincial small cause courts, the whole of the Code extends to these courts, except the portions specified in S. 7 and in O. L. As regards high courts in the exercise of

their ordinary original civil jurisdiction, the whole of the Code extends to those courts, except the portions specified in S. 117 and S. 120, and in O. XLIX, R. 3. We

shall revert to this subject later on.

The Code is in two parts: G) the body of the Code which contains ss 1 to 158; and

(i)

the First Schedule containing O. I to O. LI and rules thereunder. While sections lay down the general principles of the jurisdiction, the orders and rules prescribe the method and manner in which that jurisdiction may be exercised. Further, if the rules are inconsistent with the sections, the latter shall prevail, the former being secondary in narure. However, the sections and the rules have to be read together and construed harmoniously.

The Code, being a procedural law, is retrospective in operation and its provisions apply to the proceedings pending at the time of is having come into force. However, the procedure correctly adopted and concluded under the previous

(repealed) law cannot be re-opened for the purposes of applying new procedure." At the same time it shall not affect the vested rights except where the amendment has been expressly or by necessary implication been made retrospective." The legal position has been aptly summarised saying that 'all procedural laws are retrospective unless the Legislature expresly states to the contrary. It has been held that the procedural laws in force must be applied at the date when the suit or proceeding comes on for trial or disposal. It has been held that a Court is bound to take notice

of the change in the law and is bound to administer the law as it was when the suit came up for hearing. It has been held that if a Court has jurisdiction to try the suit, when it comes on for disposal, it then cannot refuse to assume jurisdiction by reason

of the fact that it had no jurisdiction to entertain it at

the date when

was

instituted'. The function of adjective law is to facilitate justice and therefore, the rules of procedure must be construed liberally

further its ends," and, and in such manner so

as to render the enforcement of substantive rights effective."

13. 14. 15. 16.

Nani Gopal Mitra v. Stateof Bihar, AIR 1970 SC 1636: 1970 CrLJ 1396. Mohan Lal v. Sawai Man Singh, AIR 1962 S75:(1962) I SCR 702. Sudhir G. Angur v. M.Sanjeev ó Ors.(2006) 1 SCC 141. Manohar Lal Bhogilal Shah u. State of Maharashtra, AIR 1971 SC 1511: (1971) 2 SCC 119.

17.

Sukhbir Singh v. Brij Pal Singh, AIR 1996 SC 2510 : (1997) 2 SCC 200.

6

Mulla The Key to Indian Practice

Chapter 1

The Code recognises the inherent powers of the court and specifically provides that nothing is to limit or otherwise affect the inherent powers of the court to make

such orders as process of the

may be necessary for the ends of justice or to prevent abuse of the court." Where the Code is silent regarding a procedural aspect, the

inherent power of the court can come to its aid to act ex debito justitiae for doing real and substantial justice berween the parties."

?

ii: B

..

: ni .be .

.

E.1.

18. Code of Civil Procedure 1908, s. 151. 19. Jet Plywood Put Lid v. Madhukar Nowlakha, AIR 2006 SC

1260: (2006) 3 SCC 699.

CHAPTER

2

THE COURTS AND THEIR JURISDICTION

2.1

CONSTITUTION

OF COURTS

The Code pre-supposes knowledge on one's part of the various courts in India and of their jurisdiction. For an exhaustive treatment of this subject, the Tagore Lectures for the year 1872 can be referred to. In the year 1858, i.e., the next year after the Revolt of 1857, a statute was passed

by the British parliament called the Government of India Act, by which the Government of India was transterred from the East India Company to Her Majesty, Queen Victoria. In the year 1861, there were (amongst others) two statutes passed by the British parliament called the High Courts Act, and the Indian Councils Act.

The High Courts Act, 1861 empowered Her Majesty to establish, by letters patent, under the great seal of the United Kingdom, a figh Court at Calcutta for Bengal, a High Court at Bombay for the Bombay Presidency, and a High Court at Madras for the Madras Presidency. The said Act also empowered Her Majesty, if at any time it was though fit to do so, to establish a high court in and for any other portions of the territories within Her Majesty's dominions in India. Pursuant to the power so given, three high courts were established in the year 1862, namely, the High Courts of Calcutta, Bombay and Madras, and one high court was established in the year 1866, namely, the High Court of Allahabad. All these high courts were established by letters patent or charter, and they are therefore called Chartered High Courts. The charter, for each of these high courts defines the nature and the extent

of its jurisdiction. The other statute, namely, the Indian Councils Act, 1861, empowered the Governor-General of India in the Council to establish other courts in British India. Pursuant to the power so given, a large number of courts were established in British India, such as the presidency small cause courts, provincial small cause courts,

district courts, subordinate judges courts, munsiffs courts, etc. The jurisdiction of these courts is defined in the Acts by which they have been established.

8

Mulla The Key to Indian Practice

Chapter 2

Before proceeding to enumerate the principal courts of India and to state the nature and extent of their jurisdiction, the following is a short note on the meaning

of the word 'jurisdiction'.

2.2 JURISDICTION Jurisdiction means the extent of power of a court to entertain suits and applications. It signifies the power, authority and competency of the court to adjudicate disputes

presented before it. It refers to the right of administering justice by means of law.'" Before a court can be held to have jurisdiction to decide a particular matter it must

not only have jurisdiction to try it but must also have the authority to decide the questions at issue and pass appropriate orders.*

Thus, jurisdiction means the power or authority of a court to inquire into the facts, to apply the law and to pronounce a judgment and to carry it into execution. There are three kinds of jurisdiction of courts, viz, pecuniary, territorial and jurisdiction as to the subject matter. It is also classified into original and appellate

jurisdiction. The limits on the jurisdiction of the court are imposed by a statute under which the court is constituted and can be extended or restricted by the statute. Where no restriction is imposed on the jurisdiction, it is said to be unlimited. Relying on the maxim

ex dolo malo non

oritur action,

the Supreme

Court

held

that by an

agreement which absolutely ousted the jurisdiction of a court having jurisdiction to decide the matter, would be unlawful and void, being contrary to public policy

under section 28 of the Indian Contract Act, 1872." Where a court lacks inherent jurisdiction-whether pecuniary or territorial or the subject matter jurisdiction to try a matter, express consent of the parties,' waiver or acquiescence'

cannot create it.

Conversely,

where a court has the

jurisdiction,

consent of the parties, waiver, acquiescence or estoppel cannot take it away. However, if rwo or more courts have jurisdiction to try a suit, the parties may, by consent, select the one and exclude the other." The defect in the inherent jurisdiction of a court, strikes at the very authority of the court to pass a decree. And a decree passed by a court lacking

jurisdiction

is nullity and its invalidity can be set

up as a defence, when the decree is being relied upon, even at the stage of execution or in collateral proceedings, and the defect can not be cured, even by the consent of

1. Official Truste, West Bengal v. Sachindra Nath Charterje, AIR 1969 SC 823: (1969) 3 SCR 92. 2. Official Trustee, West Bengal v. Sachindra Nath Chatterjee, AIR 1969 SC 823.

3.

Ujain Bai v. State UttarPradesh, AIR 1962 SC 1621.

4. In A.B.C. Laminart u. A.P. Agencies, AIR 1989 SC 1239. 5. Patel Roadways Ltd, Bombay v. Prasad Trading Co, AIR 1992 SC

1514:(1991) 4 SCC 270.

6. PDasa Munni Reddyv. PAPpa Rao, AIR 1974 SC 2089.

7. Hira al Patniv. Kali Nath, AIR1962SC 199: (1962) 2SCR 747. 8. 9.

Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 : (1955) 1 SCR 117. Globe Trasport Corpn v. Triveni Engg Works, (1983) 4 SCC 707.

9

The Courts and their Jurisdiction

Chapter 2

the parties to the suit.

A decree passed by a court without

jurisdiction is a coram

non judice (not before a judge)." A court is entitled its jurisdiction,

to determine whether a matter, in which it is asked to exercise

falls within its purview or not. In other words, a civil court has the

inherent jurisdiction to decide as to whether it has jurisdiction in a matter or not" and in deciding the question of jurisdiction, the substance of the pleadings and not their form must be considered."

The Apex Court approved the Full Bench decision of Allahabad High Court,

which holds that:" "The

plaintiff chooses his forum and files his suit.

If he establishes the

correctness of his facts he will get his relief from the forum chosen: If he frames his suit in a manner not warranted by the facts, and goes for his relief to a

court which cannot grant him relief on the true facts, he will have his

dismissed.

Then

there will be no question

of returning

the plaint

suit

for

presentation to the proper court, for the plaint, as framed, would not justify the other kind of court to grant him the relief. If it is found, on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the

plaintiff are not true and the facts alleged by the defendants are true, andthat the case is not cognizable by the court, there will be two kinds of orders to be

passed. If the jurisdiction is only one relating to territorial limits limits, the plaint will be ordered to be returned for presentation to court. If, on the other hand, it is found that, having regard to the suit, it not Cognizable by the class of court to which the court plaintiffs suit will have to be dismissed in its entirety."

or pecuniary the proper nature of the belongs, the

The court, having jurisdiction, has the power to grant interim relief. The power to grant

interim

relief is discretionary and inherent in every court of competent

jurisdiction,5

"Lack of Jurisdiction and Irregular exercise of Jurisdiction" The 'existence' of jurisdiction and 'exercise' of jurisdiction are not synonymous. A court draws its jurisdictional competence from pecuniary and territorial limits, as also the nature of subject-matter. The Court acquires jurisdiction only when al three tests are satisfied. It may while exercising the jurisdiction properly vested in it,

also adjudicate other questions related and incidental to the main cause. If the Court makes an error 10.

. 12. 13. 14. 15.

while

deciding such incidental

or related issues, it amounts to

Kiran Singh v. ChamatPasuwan, AIR 1954 SC 340.

iranSinghv.Chama PnasuwanA,lR1954SC340. Life Insurance Corpn of India Automobilesd- Co, AIR 1991 SC 884: (1990) 4 SCC 286. Bank of Baroda u. Mori Bhai, AIR 1985 SC 545. Raizada Tpandas v. MIs Gorakhram Gokalchand AIR 1964 SC 1348. Dalpat Kumar v. Prahlad Singh, AIR 1993 SC 276; Bina Murlidhar Henidev v. Kanhaiyalal Lokram Hemidev, AlR 1999 SC 2171.

10

Mulla The Key to Indian Practice

Chapter 2

"irregular exercise of jurisdiction" as compared to a decision where its jurisdiction is

barred expressly or by implication and thus the decision of Court suffers from "lack

ofjurisdiction". An error of judgment committed by inferior Court is curable by the appellate forum buta void order cannot be validated even by the superior forum.

Where a court having jurisdiction over the subject-matter of the suit and over the parties

thereto passes a decree in a claim

which is barred by

limitation

and

fails to do its duty imposed by S.3 of the Limitation Act, the Court has merely made an error of law which could be corrected only in the manner laid down by

this code.6 "Lack of Jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an enquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make... The dicta of the majority of the House of Lords, in the cited case shows the extent to which "lack and 'excess of jurisdiction

have assimilated.

The net effect is to reduce the difference

berween

jurisdictional error and error of law within jurisdiction almost to vanishing point. The

practical

effect of the decision is that any error of law can be reckoned as

jurisdictional.The question whether there isexcess of jurisdiction or mere error within jurisdiction can be determined only by construing the empowering statute which will give little guidance... Even if lack of jurisdiction is assumed to result from every material error of law - even an error of law within jurisdiction in the primitive sense of the term...it does not mean that the order was vitiated by any

errorof law. 2.2.1 Original and Appellate Jurisdiction A court may have original or appellate jurisdiction or both. In the exercise of its original jurisdiction, a court tries original suits instituted in that court. In the exercise of its appellate jurisdiction, it hears appeals from orders and decrees passed by subordinate courts. There are some courts that are courts of original jurisdiction only, eg, the provincial small cause courts. There are some courts that are courts

only of appellate jurisdiction, and not of original jurisdiction; thus, the High Court of Allahabad is not a court of original jurisdiction, that is to say, no suits can be instituted in that cour, but it has jurisdiction to hear appeals from decreespassed by

subordinate court in the state. There are other courts which have both original and

16. Ityavira Mathai v. Varkey Varke, AIR 1964 SC 907 17. 18.

Anisminic Ltd. v. Foreign Compensation Commision, (1969) 2 AC 147. M.L. Sethi v. R.P. Kapur, 1972 (2) SCC 427.

The Courts and their Jurisdiction

Chapter 2

appellate jurisdiction, eg, the High Courts of Calcutta, Madras, Delhi and Bombay," district courts, etc.

2.2.2 Jurisdiction

as Regards Local Limits, Pecuniary Limits, and

Subject-matter Then again we speak of the jurisdiction of a court

) asregardsirslocallimits (i) as regards its pecuniary limits; and

ii) asregardsthesubject-matter ofsuits. Every court has its own specific local territorial limits, which refers to the geographical boundaries, beyond which it cannot exercise its jurisdiction. These limits (in the case of subordinate courts) are usually, fixed by the state government by notification in the official gazette. Thus, the district courts can exercise jurisdiction only within the district and high courts can exercise jurisdiction only over the territory of that particular state.

The pecuniary limits of a civil court are laid down in the relevant civil court Act. The pecuniary jurisdiction of a civil court refers to the amount or the value of cases that can be presented before it for adjudication, and is determined on the basis of the value of the relief claimed by a plaintiff. At the same time, it is always open to the court to consider and also to the defendant to challenge, the correctness of the valuation fixed by the plaintiff. As regards pecuniary limits, there are certain courts which have no such limit imposed upon their jurisdiction, such as high courts, district courts, and (in certain states), certain other courts. The City Civil Court at Ahmedabad has unlimited

pecuniary jurisdiction while High Court of Gujarat has only appellate jurisdiction in so far as suits are concerned.

For areas outside Ahmedabad,

courts of civil judge

(senior division), established under Bombay Civil Courts Act, 1879 have unlimited pecuniary jurisdiction but there are other courts that have pecuniary limits imposed upon their jurisdiction, e.g., the courts of civil judge (junior division) cannot try suits in which amount claimed exceeds Rs 50,000, the presidency small cause courts," which cannot try suits in which the amount claimed exceeds Rs 5,000, and provincial small cause courts, which cannot try suits in which the amount claimed exceeds Rs 2,000," or the amount fixed in each state by local legislature. In Delhi, the court of civil judge has the jurisdiction to try suits in which the amount claimed does not exceed Rs 3,00,000 and the court of district judge has the pecuniary jurisdiction to try suits in which the amount claimed is more than Rs 3,00,000 but

19. See ch. 4; under el. 12 of the Charter 20. Presidency Small Cause Courts Act, 1882, S. 15. 21.

Provincial

Small

amendments.

Cause

Courts

Act,

1887, s.

15(2).

The

amount

may be altered by the local

12

Chapter 2

Mulla The Key to Indian Practice

does not exceed Rs 20 lacs and for suits in which the amount claimed is more than

Rs 20 lacs, the High Court of Delhi has the original jurisdiction to try such suits.

For the pecuniary jurisdiction of different grades of courts, the various civil courts Acts in the states can be referred to. Further, the forum of appeal, as far as the pecuniary

jurisdiction

is concerned, is

also determined by the value of the suit and not by the amount decreed. It is not proposed to go into the exhaustive details of hierarchy of courts or their respective pecuniary jurisdictions. The establishment of various courts in different parts of India differ from each other in their nomenclature as well as extent of jurisdiction. Absence of uniformity in this regard is a factor which prevents the author from making any further elaboration, except to the extent indicated hereafter. In a suit for rendition of accounts, a court can pass a final decree for a sum exceed-

ing the imits However,

of its pecuniary

jurisdiction"

and also for future mesne profis.

where a decree passed by court is beyond

its

pecuniary

executing court cannot refuse to execute the decree as decree without

jurisdiction,

jurisdiction."

It is the plaintiff's valuation in his plaint which prima facie determines the juris diction" and the allegation made in the plaint which decide the forum. There is no denying the fact that the allegations made in the plaint decide the forum. The jurisdiction does not depend upon the defence taken by the defendants in the

written statement.

25

Jurisdiction, as to the subject-matter refers to he power and authority of the court to try and entertain a particular type of suits. The jurisdiction of a court depends upon the right to decide the case and not upon the merits of its decision." All courts cannot try all types of suits. Different courts are empowered to try different types of suits and certain courts cannot try certain suits because of the subject-matter involved. The presidency small cause courts have no jurisdiction to try suits for damages, for libel and slander, suits for specific performance of a contract, suits for the recovery or partition of immovable property, suits for the foreclosure or redemption of a mortgage of immovable property, suits for dissolution of partnership or for partnership accounts, etc. Subject-matter means the relief claimed

and not property involved."

2.2.3 Ordinary Original and Extraordinary Original Civil Jurisdiction In the exercise of its ordinary original jurisdiction, a chartered high court tries and determines suits instituted in that court.

22. Mohan Meakin Ld v.IntermationsTrade, AIR 2004 HP11:2002 (3) Shim LC 39. 23. AK Mukherjee v. Regional Institute of Printing Technology, AIR 2003 Cal 40. 24. 1shwarappav. Dhanj, AlR 1932 Bom 111. Abdulla Bin Ali v. Galappa, AlR 1985 SC 577. 26. Pankaj Bhargav v. Mahendra Nath, (1991) 1 SCC 556: AIR 1991 SC 1233.

.

27.

Kalu Parvati v. Krishnan Nair, (1969) Ker LJ 599.

Chapter 2

13

The Courts and their Jurisdiction

In the exercise of its extraordinary original civil jurisdiction, a chartered high court has the power to remove any suits from a court subordinate to it, and to try it itselt, if it thinks proper to do so for the purpose of justice." By special Acts, certain high 29 courts (besides chartered high courts) also have original civil jurisdiction.

2.3 COURTS

2.3.1 Courts in Presidency Towns The object of this lecture is not to provide a complete list of the courts, but to explain some of the most important sections of the Code, which are hereinafter

reproduced in the form ofrules. In each of the three presidency towns, there is a high court, a city civil court and a small cause court. As regards high courts, there is no limit to their pecuniary

jurisdiction. As regards city civil courts, their jurisdiction is dealt with in the appendix The

jurisdiction

of

presidency

small cause courts

has been

dealt

under

jurisdiction'.

2.3.2 Courts in Other Parts of India Outside the presidency towns, there is in each state, a number of courts of different

grades. Their hierarchy differs from state to state, but they may roughly be divided into the classes shown in the table of courts given on next page.

TABLE OF COURTS Order of Grade (a) District Judges

MaharashtraState Delhi State District Judgesand Additional District Judge

West Bengal and Tamil Nadu State District Judges

(b) Assistant Judges

Courts of Civil JudgesCivilJudges (Senior Division)

mCourts

Courts

of Civil Judges

Junior Division)

28. Clause 13 of the Charter.

29. Delhi, Himachal Pradesh and Jammu & Kashmir. 30. See The Three Rules' below.

Subordinate Judges Courts

Munsiff's Courts

4

Mulla The Key to Indian Practice

Chapter 2

2.3.2.1 Original Jurisdiction (i)

Of these three grades of courts, the district court is the principal court of original civil jurisdiction in the district. In other words, it is the court of the highest grade in the district.

i) Next in order ofgradeare the courts of civil judges of the senior division in Maharashtra and Gujarat; courts of civil judges in Delhi and of subordinate judges in Tamil Nadu and West Bengal. There is no limit to the pecuniary jurisdiction of these courts, and they may entertain any suit of a civil nature except in Delhi, where the court of civil judges can try and entertain suits of the value upto Rs. 3,00,000.

(ii) Then come the courts of civil judges of the junior division in Maharashtra and Gujarat, and the

munsifs' courts in

Tamil

Nadu and West

Bengal. The pecuniary jurisdiction of a civil judge of the junior division in Gujarat is confined to suits of which, the value does not exceed Rs 50,000. Since pecuniary jurisdiction differs from state to state and it is revised time and again, it is outside the scope of this book to provide

further details in this regard.

2.3.2.2 Appellate Jurisdiction Of these three grades of courts, the district courts have everywhere appellate jurisdiction. An appeal lies to the district courts:

) fromdecreespassedby thecourtsbelongingtograde Il; and i)

from decreespassedby courts belonging to grade II, where the value of the original suit does not exceed the prescribed amount.

An appeal lies to the high court:

) fromdecrees of courts belonging to grade II, where the value of the suit exceeds the prescribed amount; Cii) from decrees passed by the district court. In some states, courts other than district judges have also been vested with such

jurisdiction.

2.3.2.3 Courts of Small Cause Besides the above courts, there are provincial

small cause courts established under

the Provincial Small Cause Courts Act, 1887. The courts of small causes are courts of preferential jurisdictions and nor of exclusive jurisdiction." The pecuniary jurisdiction of these courts is confined to suits of which the value does not exceed specified limits. Again, there are about 44 kinds of suits which these courts have no jurisdiction to entertain. A list to these suits is contained in the second schedule to

31.

Abdul Hamid u. Ilrd ADJ Mainpuri, 2000 All LJ 763.

Chapter 2

15

The Courts and their Jurisdiction

the Act.

However, a decree passed by a court of small causes can be transferred to a civil court for execution and can be executed by sale of immoveable property.

2.4 THE THREE RULES The following rules are of great importance: () No court shall entertain any suit, the amount or the value of the subjectmatter of which, exceeds the pecuniary limits of its jurisdiction (S. 6). Thus, a small cause court at Ahmedabad which the amount claimed exceeds Rs 5,000.

(i)

entertain

any suit in

No court shall entertain any suit which, as regards the subject-matter thereof, has been excepted from its cognizance. Thus, neither a presidency nor a provincial

ii)

cannot

small cause court can entertain a suit for the recovery of

immovable property. Every suit shall be instituted in the court of the lowest grade competent to try it (s. 15). Thus, a suit to recover Rs 500 as damages for breach of a contract should, in a presidency town, be instituted in the presidency small cause court, and not in the city civil court or the high court. It is not

that the high court certainly

has such

or city civil court has no jurisdiction to try the suit. It jurisdiction

but the above rule,

which is a rule

of

procedure, requires that the suit being one, which it is competent for the small cause court to try, should be instituted in the small cause court, that being the court of the lowest grade in the presidency town.

(iv) "The object underlying S.15 is to see that courts of higher grades are not overburdened with suits and to afford convenience to the parties." But if the suit is one,

which is not competent for the small cause court to try,

eg., suit for the recovery of land situated in a presidency town, it should be instituted in the high court or city civil court, as the case may be, however small the value of the land may be. Excepting certain suits instituted in a district

specifically provided by law, as a rule, no original suit is court. It is not because a district court has no original

jurisdiction, but because in every district there is a court, besides district court. This is the court of civil judge, senior division, in the State of Maharashtra and Gujarat or

the court corresponding to them in other states. These courts may try value, as there is no limit to their pecuniary jurisdiction.

suit of any

Thus, let us take the case of a suit for partition of immovable property of the value of Rs 10 akh. Such a suit cannot be instituted in any court belonging to class III, because the value of the property exceeds its pecuniary jurisdiction. Then, is a court

32. The Provincial Small Cause Courts Act, 1887, Second Schedule. 33. Sunil Kumar v. PPrakash, AlR 2005 Ker 181 (DB): 2005 (1) KLT 800. 34. Union of India v. Ladulal Jain, AIR 1963 SC 1681. 35. As to city courts, see Appendix.

16

Mulla The Key to Indian Practice

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belonging to class II competent to try the suit? Yes. And is a court belonging to cass I (that is, a district court) competent to try? Yes. In which court should then the suit be instituted? In the court of the lowest grade competent to try it." And which is the court? It is a court belonging to class II, that is, the court of the civil judge of the senior division in Maharashtra or Gujarat, and the court of the subordinate judge in Tamil Nadu and West Bengal. It isbecause of the rule now under consideration that no original suit is, except as aforesaid, instituted in a district court, and the work of a district court is confined mostly to the hearing of appeals. However, in Delhi, the district court has the original as well as appellate jurisdiction and the suit of the nature mentioned above shall be filed in the district court as the court of civil judge does not have a pecuniary jurisdiction to try and entertain a suit of such value. As regards suits cognisable by a provincial

small cause court, it is to be observed

that these courts have an exclusive jurisdiction in respect thereof, that is to say, suit cognisable by a small cause court cannot be tried by any other court, having

jurisdiction within the local limits of the jurisdiction of the small cause court by which the suit is triable."

2.5 SUITS OF A CIVIL NATURE Another

important rule is that no court has jurisdiction to try any suit unless it is of

a civil nature (s. 9). Here, a question

arises as to what is a suit of a civil nature.

There is no definition provided in the Code nor any determine the 'civil nature'. A suit can be said to be of determination of civil rights. Civil rights mean the rights citizen, within the domain of private law as distinct from

guidelines mentioned to civil nature if it involves and remedies vested in a rights related to criminal

or political matters and public law.* The

civil

distinguished

rights can be of a private

from

groups

individual

or associations

or other known legal entities as

without

having any distinct legal

personality or recognition. However, it does not follow that such groups or associations can never bring actions in court of law. Ordinarily, questions relating to internal management ot such groups or associations are regarded as not of a civil nature. The caste based structure of our society affords a good example: disputes relating to caste were declared by courts to be outside the purview of jurisdiction of civil courts. The reason behind such rule was that it was not deemed fit or proper to interface with the autonomy of caste and its social relations. Therefore, it was held that when a member of caste was excluded from the man-pan invitation or an invitation to the caste dinner for a breach of caste-rule, such member could not question the legality or validity of the decision by filing a suit in the civil court." If a caste passed a 36. Code of Civil Procedure,1908,s. 15. 37. 38.

Provincial Small Cause Courts Act, 1887, s. 16. PMA Metropolitan v Moran Mar Marthoma, AIR 1995 SC 2001: 1995 Supp (4) SCC 286.

39.

Raghunath v. Janardan, (1891) 15 Bom 599.

Chapter 2

17

The Courts and their Jurisdiction

resolution compelling its members to pay contribution on certain auspicious 40 occasions, it cannot be enforced in a civil court against a defaulting member." However, if a person is expelled from his caste, a suit will lie for declaration that his expulsion was unlawtul and for damages." Any suits in which the principal question relates to religious rites or ceremonies are not suits of a civil nature. Suits for vindication of mere dignity attached to an office are not suits of a civil nature. In Devchand v. Ghanshyan," 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. A claim by a priest that he is entitled to receive certain honours in a specific manner will not be entertained by a civil court. Following this rule, courts have refused to entertain claims for

precedence in worship of deity and to receive gifts on ceremonial occasions. If one has to trace the underlying principle behind such and other decisions of similar nature, it can be sately stated that the relations between parties in all such cases were governed by either social or moral code of conduct. There was no legal right which was sought to be enforced. In absence of such legal right, courts wisely refrained from regulating behaviour of public on the basis of any social or moral code of conduct which obviously did not possess any legal sanction. Such litigation must now be rare, but the underlying principle should be grasped so that new situations in different garbs meet the same fate, if rights or obligations sought to be enforced are not based upon, or derived trom, statutes or contract. However, the fact that determination of a question relating to civil

rights depends

upon the decision of a caste question as regards religions rites and ceremonies, does

not take out the suit from the category of civil suits." When the principal question in a suit relates to an office, it will be a suit of a civil nature. The right to an office is a right of a civil nature. The suit to vindicate such right is maintainable notwithstanding the fact that it may be necessary to decide questions as to religious rites or ceremonies. The term office is nowhere defined, but it has been judicially held that the essential condition for existence of an oftice is that its holder must be under legal obligation to discharge certain duties which are attached to the office and for the non-observance of which, he may be visited with penalties. It is immaterial whether any fees are attached to such office or not. It is equally immaterial whether such office is attached to a particular place or not. The leadingg case on the subject is Sri Sinha Ramanuja Jeer v. Sri Ranga Ramanıja Jeer. The principles in the aforesaid decision are stated as follows:

() A suit with respect to religious honours, dignities or privileges simplicitor is not a suit of a civil nature.

40. Abdul Kadir v. Dhanna, (1896) 20 Bom 190. 41. Jagannath v. Akali, (1894) 21 Cal 463. 42. Devchand v.Ghanshyan, AIR 1935 Bom 136: (1935) 37 Bom LR 417.

45. Narayan v. Krishnaji, (1886) 10 Bom 233. 44. Ramakrusha Mahopatra v. Gangadhar Mahopatra, AIR 1958 Ori 26. 45. Sri Sinha Ramanuja Jeer v. Sri Ranga Ramanuja Jeer, AlR 1961 SC 1720.

18

Mulla The Key to Indian Practice

Chapter 2

(i) A suit to enforce one's right to office and to recover or enjoy perquisites, remuneration, privileges or honours attached to such oftice is maintainable. (ii)

The essential condition for existence of office is that its holder shall be under legal obligation to discharge the duties attached to such office and if he fails to discharge such duties, he can be either

compelled to perform

such duties or he shall be subjected to penalties. The courts are empowered to decide all suits of a civil nature, excepting suits of which, their cognisance is either expressly or impliedly barred." There is no absolute

right in any person to demand that his dispute be adjudicated upon only by a civil court." It follows, therefore, that courts do not possess jurisdiction to try all suits of a civil nature. There are certain types of suits of a civil nature from which the courts are precluded, either expressly or impliedly, from trying and adjudicating. The provision

under S. 9 of the code enables a person to file a suit of civil nature

excepting those, the cognizance whereof is expressly or by necessary implication barred." The civil courts have the jurisdiction to try all the suits of civil nature except those entertainment whereof is expressly or impliedly barred. Any statute which excludes such jurisdiction is an exception to general rule that all disputes shall be triable by a civil court. Any such exception cannot be readily inferred by the

Courts It is well settled principle of law that mentioning of a wrong provision or non mentioning of any provision of law would by itself, be not sufficient to take away che jurisdiccion of a court if it otherwise vested in it in law. While exercising its power, the court would merely consider whether it has the source to exercise such

power or not.° Both cases of express and implied exclusion or bar shall be illustrated separately.

2.5.1 Express Bar The expression 'expressly barred used in the Code means barred by any enactment or statutory instrument. A legislature can bar the jurisdiction of civil courts, in suits

of civil nature, provided it keeps itself within the legislative competence and does not contravene the provisions of the Constitution." For example, S. 11 of the Code bars a court from trying a suit in which the matter in issue has already been finally decided earlier. It is a case of express bar. The principles of finality or res judicata means 'a thing adjudicated' that is, an issue that is finally settled by judicial decision. The plea of res judicata is a restraint 46.

Dwarka Prasad Agarwala v. Ramesh Chandra Agarwala, AIR 2003 SC 1969 : (2003) 6 SCC 220.

47. Union of India v. Delhi High Court BarAssociation,(2002) 4 SCC 275: AIR 2002 SC 1479. 48. Vishnu Dutta Sharma v. Daya Sapra, (2009) 13 SCC 729 (736). 49. Ramesh Govindram v. Sugra Humayun lMirza Wakf, AIR 2010 SC 2897 (2900) : (2010) 8 SCC 726. S0. J Kumardasan Nair v. IRIC Sohan, AIR 2009 SC 1333 (1336). 51. Commr of Income Tas, Bhubaneshwar v. Parmeshwari Devi Sultania, AIR 1998 SC 1276: (1998) 3 SCC 481.

Chapter 2

19

The Courts and their Jurisdiction

on the right of a plaintiff to have an adjudication of his claim. The plea must be clearly established, more particularly where the bar sought is on the basis of constructive res judicata. The plaintiff who is sought to prevented by the bar of opportunity constructive res judicata should have notice about the plea and have an It is of universal application as it is to put forth his contentions against the same.

based on two age old principles, namely, 'interest veipublicaentsit finis litium

which

means that it is in the interest of the State that there should be an end to the litigation, and the other principle is 'nemo debet his ve ari, se constet curiae quod sit pro un act eademn cause'

meaning thereby that no one ought to be vexed twice in a

litigation if it appears to the Court that it is for one and the same cause. The plea of res judicata is not a technical

doctrine but a fundamental

principle

which means the

rule of law in ensuring finality in litigation. Thus principle seeks to promote honestly and fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final berween the parties. The principle is founded on three principles which are non-negotiable in any civilized version of jurisprudence, namely: (1) no man should be vexed twice for the same cause,

(2) it is in the interest of State that there should be an end to a litigation, (3) a judicial

decision must be accepted as correct.

If there is an issue berween the parties that is decided, the same operate as a

res

judicata between the same parties in the subsequent proceedings. In the same way, S. 293 of Income-tax Act, 1961 provides that no suit shall be brought in any civil courts to set aside or modiły any assessment made under that Act. However, civil courts have the jurisdiction to examine cases where the provisions of the Act have not been complied with or where the statutory tribunal

has not acted in conformity with the fundamental principles of judicial procedure.

2.5.2 Implied Bar A suit is said to be impliedly

barred when it is not barred expressly, but yet its

cognisance is barred on account of general principles of law or public policy. For example, a suit cannor lie to recover costs incurred in a criminal court." A suit also cannot lie for damages for defamatory statements made during course of judicial proceedings by a party or a witnes. Act of state cannot be called in question in civil courts. Their cognisance is impliedly barred. It is an act of executive as a matter of

policy in the course of its relations with other states, e.g., making and performance of treaties, seizure or

annexure

of

territories

etc are acts of states in its sovereign

52. Alka Gupta v. Narendra Kr. Gupta, (2010) 10 SCC 141 (149, 150). $3. MNagbhusana v. State of Karnataka, AIR 2011 SC 1113 (1118): (2011) 3 SCC 408. Gangai Vinayagar Temple v. Meenakshi Ammal, (2009) 9 SCC 757 (769). S5. Ramchandra Dagdu Sonavane v. Vithu Hira Mahar, AIR 2010 SC 818 (828): (2009) 10 SCC 273. S6. State of West Bengal v. Indian Iron and Steel Co Ltd, AIR 1970 SC 1298: (1970) 2 SCC 39.

.1899) 12All166. 58.

(1901) 25 Bom 230.

20

Mula The Key to Indian Practice

Chapter 2

capacity. Political questions are also impliedly excluded from the jurisdiction of civil courts. Matters of policy in relation to other states cannot be made subject matter of a suit.

An implied bar may be raised when a statute provides for a special remedy to an

aggrieved party." There are certain statutes which set up or establish tribunal for redressal of grievances arising under the statutes. Whether such tribunals take away the jurisdiction of civil courts in absence of an express bar contained in the statutes is a question which has repeatedly cropped up and the extent of jurisdiction of such tribunals and finality attached to their decisions have been subject matter of several decisions. The leading decision on this point is Dhulabhai v. State of Madhya Pradesh. It has been laid down that where there is no express bar, it is necessary to examine the remedies and the scheme of the statute as a whole. If a statute creates a new special right or liability and provides for the determination of the right or liability and also provides that the tribunal shall decide all questions relating such

right or liability, it may be held that the jurisdiction of the civil court is impliedly barred. It is a settled legal position that if the statute is ultra vires the constitution, the tribunal or authority established, the statute cannot decide about such vires. Where vires of the provisions is not involved, other aspect of the matters are normally left to tribunals or authorities and remedy of a civil suit is barred. Special Courts and tribunals are not substitutes for civil courts.

A statute ousting the jurisdiction of the civil court is strictly construed

and

exclusion is nor to be readily inferred," such exclusion must be either explicitly expressed or clearly implied.* 'A suit in : civil court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under

the Act but in violation of its provisions. 65

Jurisdictional Fact" Jurisdictional fact' means the composition of such facts and events which must be in existence to enable the court of first instance to assume jurisdiction over a subject-

matter. Where an inferior court or tribunal or body which has to exercise the power of deciding facts is first established by an Act of Parliament, the legislature has to consider what powers it will give to that tribunal or body. It may in effect say that if a certain state of facts exists and is shown to such tribunal or body before it proceeds

59.

NDMCv.

Satish Chand, AIR 2003 SC 3187 : (2003) 10 SCC 38.

60. Dhuabhai v. State of Madhya Pradesh, AIR 1969 SC78. 61. OmPrakashSinghv. M. Lingamaiah, AIR 2009 SC 3091:(2009) 12 SCC 613. 62. See Dhruv Green Field Lrd v Huleam Singh (2002) 6 SCC 416; see also N. Padmamma v. S. Ramakrishna Reddy, (2008)

15 SCC 517 (S523); Sulochana v. Rajinder Singh, (2008) 15 SCC 538 (593,

47); United India InsuranceCo. Lrd. v. Ajai Sinha, (2008) 7 SCC454 (467). 63. Nagri Pracharinvi Sabha v. Fifih ADJ, Varanasi, (1991) Supp 2 SCC 36. 64. Mario Catta Aereira v. State of Goa, 2010 (6) Mah LJ 115 (122) (DB). 65.

Firm Seth Radha Kishan v. Administrator, MC, Ludhiana, AIR 1963 SC 1547.

The Courts and their Jurisdiction

Chapter 2

21

to do certain thing, it shall have jurisdiction to do such things but not otherwise. Therefore the requirement of condition precedent prior to the exercise of jurisdiction is called "Jurisdictional Fact".0

The jurisdiction of civil court is to be determined having regard to the averments contained in the plaint. A plea of bar to jurisdiction of a civil court shall be considered having regard to the contentions raised in the plaint and not having regard only to the reliefs claimed dehors the factual averments made in the plaint. The civil court's jurisdiction is not ousted where special officer could have been moved for the grant of ancillary relief." It is always open to a party for his convenience to fix the jurisdiction of any competent court to have his disputes adjudicated by that court alone, that is to say,

if one or more courts have jurisdiction to try the suit, the parties may choose any one of the two competent courts to decide their disputes. And where parties under their own agreement, expressly agree that their disputes shall be tried by that particular competent court, then the party can only file the suit in that court alone and it is not open to the parties to go at a diferent jurisdiction. Such a suit it filed

would be in violation of the said agreement between the parties." At the same time, consent or failure to object," admission, omission or previous conduct cannot confer jurisdiction on the court, where there is inherent want of jurisdiction."" In case of overlapping jurisdictions of two courts in service matters, the employee has option

to choose forum when right accruesunder statute or common law." A workman in LIC has choice of seeking remedy from civil court or industrial court. "4 For

further

reference,

well-known

commentaries

on S. 9 of the Code may be

referred to. It is one of the important provisions and before instituting any suit, one should be careful to examine whether it is of civil nature and if yes, whether its

cognisance is not expressly or impliedly barred.

66. Reg v. Commissioner for specialpurpose of Income Tax, (1888) 21 QBD 313.

67. Sulochana v. RajemdraSingh, AIR 2008 SC 2611 (2615). 68. SeeChurch of North India v. Lavajibhai Ratanjibhai, AlR 2005 SC 22544: (2005) 10 SCC 760. 69. Kalipindi A. Narasamma u. Alla N. Rao, (2008) 10 SCC 107 (109). 70. See Shriram City Union Finance Corpn Ltd v. Rama Mishra, 2001 (1) OLR 164: (2002) 9 SCC 613.

.iran

v.Chaman,AIR 1954SC340

72. See Sita Ram Kashi Ram Kanda v. Pigmenis Cakes SCC 12.

Chemicas Mfg Co, AIR 1980 SC 16: (1979) 4

73. RajasthanSRTC v. Mohar Singh, (2008) 5 SCC 542 (545-46) : AIR 2008 SC 2553. 74.

L.I.C. v. R. Suresh, (2008) 11 SCC 319 (324-25).

CHAPTER

3

THE FOUR EsSENTIALS OF A SuIT

The four essentials of a suit are as follows:

() Partiess

i) Causeofaction; (ii) Subject-matter; (iv) Reliefs claimed by the plaintif. All these essentials must concur in every suit properly framed.

3.1 PARTIES There must be at least two parties to every suit, namely, a plaintiff and a defendant. There may, however, be two or more plaintiffs. Similarly, there may be rwo or more defendants, but there must be at least one plaintiff and one defendant in every suit. A person is a party to a suit if there is a cause of action against him.' In other words,

if cause of action no longer survives against a person due to his death or any other unforeseen

circumstance or if his name has been struck-off, such person shall nor

remain party to a suit even if his name continues on record erroneously. The Code provides for a necessary party and a proper party and also contains

provisions relating to joinder, non-joinder and misjoinder of parties in a suit. A proper party is a party who, though not a necessary party, is a person whose presence

would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he may not be a person in favour of or against whom the decree is to be made.

1. Ishwar Bhai Patel v. Harihar Bahera, AIR 1999 SC 1341: (1999) 3 SCC 457. 2. Mumbai International Airport Pvt. Ltd. v. RegencyConvention Centre & Hotes Put. Lid., AIR 2010 SC 3109 (3112) : (2010) 7 SCC 417.

24

Mulla The Key to Indian Practice

Chapter 3

The necessary party is one without whom, no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision of the question involved in the proceedings.' Where the plaintiffs sought declaration of certain rights in a suit on land belonging to State of Haryana, the State of Haryana was a necessary

party." The proviso to R. 9 ofO. I of the Code provides that non joinder of necessary party would be fatal. A petition was filed to challenge the promotion. The candidates higher up in the seniority were not impleaded in the petition. Such a petition could not be adjudicated upon in the absence of those senior candidates. There is a distinction berween a necessary party and a proper party. A necessary party is one, whose presence is essential and in whose absence, no effective decree or

order can be passed or made. A proper party is one, without whom a decree or order can be passed or made, but whose presence is necessary for an effectual and complete

adjudication of the matter.' There is difference berween the locus and right of impleaded, and the rwo cannot be equated. A person having locus may not be denied appearance, but a person who is a necessary party cannot be denied

impleadment.

Option to participate does not

mean right to be impleaded. A person is impleaded or can claim to be impleaded if he has any interest or lis." For example, in a suit for

pre-emption,

the vendee is a

necessary party. The plaintiff in a suit being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief.

Consequently, a person who is not a party has no

right to be impleaded against the wishes of the plaintiff.

However, R. 1002) of O. I of the code provides for impleadment of proper or necessary parties. If necessary party is not impleaded, the suit itself would be liable to be dismissed. If a person is nor found to be a necessary or proper party the court has

no jurisdiction to implead him against the wishes of the

plaintiff. Further, If the

court is satisfied that the presence of a particular person is necessay to effectively and completely adjudicate all the disputes berween the parties, irrespective of the wishes

of the plaintiff, the court may exercise the power [O.1 R.10 (2)] and join a person as

party to the suit."

3. StateofAssamv. Union of lndia, (2010) 10 SCC 408 (412). 4. Jagtu v. Suraj Mal, AIR 2010 SC 3490 (3491): (2010) 13 SCC 769 (770) : (2010) 3 ARC 877 (SC): Civil Appeal No. 644 of 2004 decided onAug. 5, 2010. 5. Public Service Commission, Uranchal v. Mama Bisht, AIR 2010 SC 2613. See aso Dist. Collector. rikakulam v. Bagathi Krishna Rao, AIR 2010 SC 2617. 6. Sureshu. Yeormal Diut. Central Coop.Bank Lid AIR2008 SC 2432 (2435) : (2008) 12 SCC 558. 7. Arun Tiwari v. Zita Mansavi ShikshakSangh, AIR 1998SC 331. 8. Utar PradeshAvasEvam VikasParishadv. GyanDevi, AlR 1995SC 724: (1995)2 SCC 326. 9. Mumbai International Airport v. RegencyConvention Centre d Hoiels (1) Ltd., (2010) 7 SCC 417 (422. 423): AIR 2010 SC 3109. 10. Savitri Devi v. DistrictJudge, (1999) 2 SCC 577.

|5

The FourEssentialsof a Suit

Chapter 3

Where, in a suit, the plaintiff fails to join a person who is either a necessary party or a proper party to the suit, it is a case of non-joinder of parties. Where two or more persons are joined as plaintiffs or defendants, although they should not have been joined in the suit, it is a case of misjoinder of parties.

Order I of the Code deals with parties to the suit and 0. 1, R. 9 provides that the suit shall nor be defeated for non-joinder or misjoinder of a proper party. However, it is not so in case of non-joinder of a necessary party. Similarly,

no decree may be reversed or

substantially

varied, nor any case be

remanded in appeal on account of any misjoinder or non-joinder of parties not afftecting the merits of the case or the jurisdiction of the court as provided under S. 99 of the Code. However, this also does not apply to non-joinder of a necessary party. But where all the affected persons had not been joined as parties to the petition, and some of them only were joined, the Supreme Court took the view that the interests of the persons who were before the court and were sufficently and well represented and,

therefore,

the

petition was not liable to be dismissed on

that

ground i.e. (Non-joinder ofnecesssaryparty)." The objections as to the non-joinder or misjoinder of parties must be taken at the earliest possible opportunity and in all cases at or before, the settlement of issues and if such objections not so taken, it will be deemed to have been waived. If the objection as to non-joinder of necessary party has been taken by the defendant at the earliest stage and the plaintiff declines to add the necessary party, he cannot 12 subsequently be allowed in appeal to rectity the error by applying for amendment.

With the object of bringing before the court, all the persons interested in a suit so the that all the disputes/questions may be finally decided in the presence of all parties, the court has been given power to strike out a party improperly joined and to add party(ies), whose presence the court considers, necessary for the effectual and complete adjudication of the questions involved in a suit, enabling the court to decide all such questions without much delay, inconvenience and expense." The general rule as regards parties to a suit is that all persons interested in a suit

shall be parties thereto. An exception to this general principle is formulated under O. I, R. 8. It provides that when there are numerous persons having the same interest in a suit, one or more of them, may with the permission of the court, sue or be sued or defend such suit on behalf of others also. 'Since, O.I R.8 is merely an

enabling provision. It does not compel an individual to represent the body of persons having the same interest if his action is otherwise maintainable without joining the rest in the suit. Moreover, O.I R.8 can be invoked on the premise that the persons have "same interest in the suit. It is not necessary that the "Cause of action" must be the same."" Ordinarily a transferee pendente lite without leave of the

11. B. PrabhakarRao v. Stateof A.P, (1985) Supp. SCC 432. 12. Naba Kumar v.Radhashyam,AIR 1931 PC 229. 13. 14.

Anil Kumar Singh v. Shiv Nath Mishra, (1995) 3 SCC 147: 1994 (4) Scale 953. T.N Housing Board v. T.N. Ganapathy ,(1990) 1 SCC 608.

26

Mulla The Key to Indian Practice

Chapter 3

court cannot be impleaded as a party." The lis pendens transfereel purchaser has no right of impleadment, lispendens does not prohibit a transfer. It, however, mandates that transferee will be fully bound by decree that may be passed against his

transferor.° The power of the court to add, strike out or substitute any party to a suit is general in nature and discretionary, and is subject to specific statutory provisions.

The provision under R. 10(2) of O. I of the code speaks about the judicial discretion of the court to strike out or add parties at any stage of proceedings. The court can strike out any party who is improperly joined. It can add anyone as a plaintiff or defendant if it finds that he is a necessary party or proper party. A beneticiary ot trust has right to implead as party - He is a proper party

He

cannot be treated

as

stranger."' The court under R. 10(2) of O. I of the code will of course act according to reason and fair play and not according to whims and caprice." The main object behind striking out or adding parties is to bring before the court all the persons interested in a suit so that all the disputes may be finally determined in presence of all the parties" effectually and completely, without much delay, inconvenience andexpense. The power to add, strike out or substitute any party to a suit can be exercised by the court suo motu.

3.2 CAUSE OF ACTION Action' means suit while a "cause of action' means literally the cause or the set

of

circumstances

which leads up to a suit. A cause of action arises when a legal right is action' as used in the Code means every fact The expression 'cause of

infringed. which it is necessary for the

plaintiff to prove that he is entitled to a decree in the suit; in other words, the media upon which the plaintift asks the court to arrive at a

conclusion in its favour." The term 'cause of action' has not been statutorily defined although it has received judicial

interpretation.

The term is held to include all those facts which must be

proved or established in order to succeed. To put it differently, everything which if not proved would give the defendant a right to an immediate judgment must be part

of cause of action. The expression'cause of action means the bundle of facts which gives rise to a right or liability."" It is a bundle of facts, whose proof is a sine qua non

for ultimate success in the suit. The classic definition of the expression "Cause of Action" is found in the instant case," wherein Lord Brett observed: "Cause of action

15. Sunil Gupta v. Kiran Girhotra, (2007) 8 SCC 506 (510). 16. S.N. Arora v. Brokers & BrokersPur. Ltd., AIR 2011 Del 89 (93-96) (DB): 2010 (118) DRJ 631. 17. Baluram v. P. Chellathangam AIR 2015 (SC) 1264. 18. Mumbai International Airport Put. Ltd. v. Regency Convention Centre Hotels Pvt. Ltd, AIR 2010 SC

3109 (3114): (2010) 7SCC 417. 19. Savitri Devi v. DistrictJudge.Gorakhpur,AIR 1999 SC 976: (1999) 2 SCC577. 20. 21.

Anil Kumar Singh v. Shiv Nath Mishra, (1995) 3 SCC 147: 1994 4) Scale 953. Chand Koer v. Pratap Singh, (1889) 15 IA 156: (1889) ILR 16 Cal 98.

22. 23.

Sonic Surgical v. National Insurance Co. Ltd., (2010) 1 SCC 135 (137) : 2009 (13) Scale 363. Cooke v. Gill,(1873) 8 CP 107.

Chapter 3

The FourEssentials ofa Suit

means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court." Whether a particular fact constitutes a cause of action is determined with reference

to the facts as disclosed in the plaint and by taking into account the substance of the

matter rather than the form of action." For deciding whether the facts averred by the plaintitf would or would not constitute cause of action, partly or wholly, the court must consider whether such facts constitute material, essential or integral part of the cause of action. If it is, it forms a cause of action, but if it is not, it does not form a cause of action."

It has no relation whatsoever to the defence which may be

set up by the defendant,

nor does it depend upon the character of the relief prayed

for by the plaintiff. A court enjoys jurisdiction in a suit, if the cause of action arises within the local limits of its jurisdiction. And even if a part of the cause of action arises within the local limits of its jurisdiction, it has the jurisdiction to try and entertain the suit. The provision under R. 3 of O. II of the Code, specifically provides where cause of action are united, the jurisdiction of court as regards the suit shall depend on the

amount or value ofaggregatesubject-matters at the date of instituting the suit." Every plaint must disclose a cause of action; if it doces not, it is the duty of the court to reject the plaint (O VIl, R. 11). When the plaint read as a whole does not disclose material facts giving rise to a cause of action which can be entertained by a civil court, it may be rejected in terms of O. VII, R. 11 of the Code." The court cannot dismiss a suit for not disclosing cause of action, but can only reject the plaint." Hence in drafting a plaint, one must be very careful to see that the plaint discloses a cause of action. The object underlying O.VII R.1 (e), which requires that the plaint shall contain the particulars about the facts constituting the cause of action and when it arose, is to enable the court to find out whether the plaint discloses the cause of action because the plaint is liable to be rejected under O.vII

R.11 CPC, 1908. The purpose behind the requirement that the plaint should indicate when the cause of action arose is to help the court in ascertaining whether the suit is not barred by limitation. Further, the error in mentioning the date on which the cause of action had arisen in the plaint in such a case would not disentitle

the plaintiff from secking relief from the court in thesuit. What is the cause of action in a suit for damages for breach of a contract? In order to answer this question, we must ask ourselves the further question as to what facts must be proved by the plaintift in such a suit so that he may succeed in obtaining a decree in his favour? The answer is, that there are two facts which he must prove,

namely:

24. 25. 26. 27. 28. 29.

Udhav Singh v. Madhav Rao Scindia, AIR 1976 SC 744: (1977) 1 SCC 511. Alchemist Lid. v. State Bank of Sikkim, (2007) 11 SCC 335. Dabur India Ltd. v. K.R. Industries, AIR 2008 SC 3123 (3130): (2008) 10 SCC 595. Abdul Gafur v. State of Uttarakhand, (2008) 10 SCC 97 (102): 2008 (11) Scale 263. Canara Bank v. Garts Ind Tex (P) Ltd., 2009 (1) KLT 368 (371-72) (DB). Kuldeep Singh v. Ganpat Lal (1996) 1 SCC 243.

Mulla The Key to Indian Practice

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Chapter 3

) that thedefendantenteredinto theallegedcontract with him; and i) that thedefendant committed abreach of this contract. In other words, the cause of action consists of rwo parts, namely:

) themakingof thecontract;and (ii) the breach thereof by the defendant.

Both these facts must therefore be

alleged in the plaint, and they must both be proved at the hearing of the suit, to entitle the plaintiff to a decree for damages against the defendant. If A enters into a contract with B in Bombay to sell and deliver goods to B in Bombay, but A fails to deliver the goods, the whole cause of action is said to arise in Bombay. If the contract is made in Bombay, and the goods are to be delivered to B in Madras, and A fails to deliver the goods to B in Madras, a part only of the cause of action (namely, the making of the contract) is said to arise in Bombay, and a part so far as the breach is concerned) in Madras. In other words, if the contract is to be performed at the place where it is made, the whole cause of action is said to arise in that place, but if it is made in one place, and is to be performed in another place, a part of the cause of action is said to arise in one place and a part in another place. Even the performance of contract may be required to be made at more places than

one. If A enters into a contract with B in Bombay whereby A agrees to deliver goods

to Bat Madras in consideration of B agreeing to pay to some other person, on A's behalf, the price of such goods at Calcutta, then the contract is made at Bombay and is required to be performed by A at Madras and by B at Calcutta. It can be said that a part of the cause of action has arisen at all the three places. This distinction is very important in determining the court in which the suit is to be instituted, and it will

be dealt with in the next chapter." Let us now take the case of a tort. If A brings a suit against B for damages for a libel upon A, then A must prove, in order that A may be entitled to a decree, the following three facts, namely:

G) that the writing complained

of was published by the defendant;

i) that it isuntrue;and (ii)

that it is defamatory for A.

These three facts constitute As cause of action, and they must all be alleged in As plaint. In the case of tort of malicious prosecution, A must establish that the defendant launched a criminal prosecution against him, that it terminated in A's favour and that it was launched maliciously against A without any reasonable and probable cause.

To know the essential facts which constitute the cause of action in a particular case, one must have a thorough knowledge of the substantive law bearing upon the

30.

Chapter 4 'Place of Suing'.

Chapter 3

29

The FourEssentialsof a Suit

case. In case of doubt or difficulty, leading cases compiled in various textbooks on the subject must be referred to. Before

drafting

the plaint, one is well advised to look at the substantive law

governing the matter. In fact, without close examination

of relevant facts in the

context of applicable substantive law, it is highly possible that litigation may misfire It is recommended that standard textbooks on drafting pleadings be referred to before finalising a plaint in order to avoid any mishap. In bigger cities, courts have shown tendency to construe pleadings rather strictly in such cases. A plaint will constitute a foundation and except by amendment thereot, one is not permitted to

travel beyond the plaint. In a suit for declaration of title and injunction the appellant had the cause of to do so, and hence he action to sue for specific performance in 1991 but he omitted should not be allowed to sue on that course of action which he omitted to include when he filed his suit. The court considered this omission as relinquishment of that

part of its claim. The suit was therefore, hit by the provision ofO. II, R. 2 of the code. Where rwo causes of action are distinct and different O. I, R. 2 of the code would not come into play. O. II, R. 2 of the code would come into play only when both suits are based on the same cause of action and the plaintiff had failed to seek all the reliefsbased on or arising from the cause of action in the first suit without the

leave of the court."

3.3 SUBJECT MATTER Jurisdiction

over subject

matter is a sine qua non, without

which a court shall be

incompetent to try the cause. The subject matter of a suit is the property claimed in the suit. Such property may be movable or immovable.

3.4 RELIEFS CLAIMED Every suit shall be

instituted

by presenting the plaint to court or any officer

appointed in this behalf. Every plaint shall comply with rules contained in O. VI and O.

VII as far as they are applicable. The plaint shall contain the following

particulars:

) Name of the court in which suit isbrought. i) Name,descriptionandplace ofresidenceof the plaintiff. (iii)

Name, description and place of residence of the defendant, so far as they can be ascertained.

(iv) Facts constituting cause of action and when it arose.

31. Van Vibhag Karamchari GNSS Maryadit v. R. Chander, AIR 2011 SC 41 (46): 2010 (11) Scale 99. 32. Alka Gupta v. Narendra K. Gupta, AIR 2011 SC (14) : (2010) 10 SCC 141.

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Chapter 3

(Facts sharing that the court has the jurisdiction over the matter. (vi) Valuation of subject matter for the purposes of jurisdiction and court fees.

vii) Reliefsclaimed. Every plaint shall state specifically the reliefs which the plaintiff claims. The same rule applies to any relief claimed by the defendant in his written statement."The general rule, no doubt, is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues and evidence have been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. Further to allow one party to rely upon a matter in respect of which the other part did not lead evidence and has had no opportunity to lead evidence, would

introduce considerations of prejudice, and in doing justice to one party, the court cannot do injustice to another." Moreover, the suit cannot be dismissed merely on the ground that the plaintiff has claimed a larger relief that he is entitled to. But the lesser relief to which the plaintiff is entitled will be granted in his favour," and the court cannot grant a larger relief to the plaintiff than that claimed by him even if he is entitled to it unless he gets his

plaint amended with the leave of the court.

Events happening after the institution of suit The underlying principle is that the Court shall determine the rights of the paries on the basis of their claim or counter-claim as on the date of institution of suit and ignore the subsequent events, if any. This rule of prudence however can be deviated by the Court in a casewhere the effect of over-looking the later events would lead to miscariage of justice. "However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied

) char cherelief, as claimed originally has, by reason of subsequentevents, become inappropriate or cannot be granted;

i) that taking note of suchsubsequentevents or changedcircumstanceswould shorten litigation and enable complete justice being done to the parties;

(ii)

that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite

33. Code of Civil Procedure,1908, O. VII, R. 7. 34. Bhagwati Prasadv. Chandramaul, AIR 1966 SC 735. 35. Udhaw Singh v. Madhav Rao Scindia, (1977) 1 SCC 51.

36. Staseof Bihar v. Dr. Radha Kishna, (2002) 6 SCC 308.

The Four Esentials ofa Suit

Chapter 3

-

party is not taken by surprise...The Court may thus depart from the above rule and mould the relief in the light of altered circumstances. Every suit must, as far as practicable, be framed to provide grounds for final

decision on the subjects in dispute and prevent further litigation concerning them, and thus must include the whole of the claim which the plaintift is entitled to make in respect of the cause of action. Where neither the title of the plaintiff nor previous possession of the plaintiff nor encroachment by the defendants was made out, the suit was held liable to be dismissed. Splitting of claims is barred, however, any portion of the claim can be relinquished. Where a question arises as to whether a plaintiff has claimed a particular relief, the

court must read the plaint as a whole, and consider the substance of the matter

rather than the form of pleading" Where the suit is for recovery of money, precise amount must be stated unless suit itself is for accounts or mesne profits or debts which cannot be estimated. In such cases,

approximate

amount

must be

mentioned

so that reliefs can be

claimed

simultaneously or in the alternative. In fact, it is convenient to file a suit for specific performance and in the alternative, for damages. Where the subject matter of suit is an immovable property, there must be proper description of such property, sufticient to identiky it and whenever applicable, its boundaries and number in revenue records must be provided. Ubi jus ibi remedium means, where there is a right, there is a remedy. The word jus has reference to the cause of action; the word remedium to relief. The nature of the relief or remedy to which a plaintif is entitled depends upon the nature of his rights

or his cause of action.

3.4.1 Reliefs in Suits on Contracts In suits on contracts, there are three remedies open to the aggrieved party according

to the nature of the contract, namely:

) specpifiecrformance 41

i)damages; (i) injunction. As a general rule, it may be stated that where there is a breach of a contract to

transfer immovable property, the plaintiff is entitled to specific performance ot the

37. 38. 39. 40. 41. 42.

Om Prakash Gupta v. Ranbir B. Goyal, (2002) 2 SCC 256. T.K. Mohammed Abubucker v. PSM Ahmed Abdul Khader, (2009) 14 SCC 224 (232). Hindaleo Industries Ltd u. Union of India, (1994) 2 SCC 594: 1993 (4) Scale 666. Specitic Relief Act, 1963, ss. 10-20. Indian Contract Act, 1872, s. 73. Specific Relief Act, 1963, ss. 36-37.

32

Mulla The Ky to lndian Practice

Chapter 3

contract," but where the breach is of a contract to transfer movable property, the plaintiff is not entitled to specific performance, but to damages only. Thus if A agrees to sell B, A's house for Rs 1,000 and A fails to transfer the house to B, then B is entitled to a decree directing A to convey the house to B on B paying the purchase

money toA. It Aagrees to sell B I00 maunds of sugar at the rate of Rs 3 per maund on a certain day and fails to deliver sugar to B, then B is entitled to only damages

against A; for B can buy sugar of a similar quality in the market, and if B has to pay more for it, say at the rate of Rs 4 per maund, B may claim from A as damages Rs

100, being the difference berween the contract price and the market price. Injunction is also one of the remedies in the case of certain contracts. Thus, if A lets B his land on condition that B should nor dig sand or gravel thereout, and B threatens to do so, A is entitled to sue B for an injunction to restrain B from digging in violation of the contract.

3.4.2 Reliefs in Suits for Torts Where a tort has been

committed,

the remedy

damages. Where a tort is about to be

open to the

committed,

the

party

appropriate

aggrieved

is

remedy is

injunction. Thus, if B is about to publish statements defamatory of A, A may sue B for an injunction to restrain B from publishing them. If B has already published them, A may sue B for damages.

3.4.3 Reliefs in Suits on Mortgage n suits

on mortgage, there is one remedy open to the mortgagor,

namely,

redemption, and there are two remedies open to the mortgagee, namely, sale or foreclosure, according to the nature of the mortgage.4 "4

Illustration A borrows Rs 5,000 from B. It is agreed that A should repay the amount

with

intereston

January 1915. As security for the debt, A transfers the house to B,

subject to a

proviso that B will re-transfer the house to A upon payment of the

mortgage-money on 1 January 1915. If A tenders the mortgage-money to B on or after the due date, but B refuses to accept it alleging that more is due to him, and refuses also to transfer the house to A, A may sue B for redemption of the mortgage.

On the other hand, if A fails to pay the mortgage-money to B on the due date, B may sue A either for foreclosure of the mortgage or for sale of the house. The effect of a final decree for forecdosure in favour of B is to debar A from all rights to

redeem the mortgaged property.

43.

In a proper case, damages can be awarded, see New Maneekchowk

Spinning Et«. Co. v. Seth Govinddas

Gjudgment of the Supreme Court dated 4 March 1966 in CA No 621 of 1963).

44. Transter ofProperty Act, 1882,S. 6/. 45.

Ibid, s. 87; Code of Civil Procedure, 1908, O. XXXIV, R. 3.

The FourEssentials ofa Suit

ter 3

reliefs claimed in a plaint are called prayers; they are contained in the la

raphof the plaint.

PLAINT IN SUIT FOR SPECIFIC PERFORMANCE

ng stated the four essentials of a suit, the following is the form of a plaint in for specific performance. Such a suit is brought by one person (AB) again (CD) has agreed to sell his property to AB, b her person (CD) when the latter fuses to carry out the agreement to sign the necessary deed of sale. If AB wan roperty himself he has to sue for specific performance, but if he is not particular t getting the property, he may sue CD for damages only for breach of the

act.

Form of Plaint in Suit for SpecificPerformance

In the High Court of Judicature at Bombay [O. VI, R. 1(a)] Ordinary Original Civil Jurisdiction Suit No ..

of Bombay, Hindu inhabitant, a coal broker, ng in the Fort.

D of Bombay, Mohammedan inhabitant, a merchant, residing outside the Fort.

of 1914 Plaintiff [O. VII, R. 1(6)] Defendant [O.VII, R. 1(c)]

e plaintiff above named states as follows:

dated 1 April 1914, and signed by t 1. By an agreement, defendant, the defendant contracted to sell to the plaintiff certa

immovable property therein described and referred to, for the sum Rs. 2,00,000. A copy of the said agreement is hereto annexed and marke A [O. VI, R. 9; O. VII, R. 3].

2. On 1 May 1914 the plaintiff tendered Rs 2,00,000 to the defendant, a demanded a transfer of the said propery by a sufticient instrument, b

the defendant has not executed any

instrument of transfer

[O. VII,

1(e), R. 5].

3. The plaintiff has been and is still ready and willing to pay the purchas money of the said property to the defendant

4. The said agreement was made in Bombay, the said property is situated in

T15.

Bombay, and the defendant resides in Bombay. [O. VII, R.

1(].

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Chapter 3

6. The plaintiff will rely on the documents a list whereof is hereto annexed and marked B [O. VII, R. 14].

7. The plaintif, therefore, prays: [O. VII, R. 1(g)] (a) That the defendant may be ordered to transfer the said properry to

the plaintiff by a sufficient instrument. [O. VII, R. 7]. (6) In the alternative, that the defendant may be ordered to pay to the plaintiff Rs 2,00,000 as damages for breach of the said contract. [O. VII, R. 71

(c)That the defendant may be ordered to pay the plaintiff's costs of his suit (Note-Strictly speaking, this prayer is unnecessary).

AB

GH Plaintiffs Attorney

Plaintiff u ui [O. VI, R 14]

[O. V1, R. 14]

1, AB, the plaintiff above named, do solemnly declare that what is stated in paras 1, 2, 3, 4 and 6 is true to my own knowledge, and that what is stated in the remaining paras, is stated on information and beliet, and I believe the same to be true. [This clause is called verification clause]

[O. VI, R. 15] Solemnly declared

[O. VI, R. 15]

nofsAB

Plaintiff

at Bombay on 1 June 1914

Before me

XY Commissioner

3.5.1 Summary In the form of the plaint given above there are four essentials of a suit, namely:

i) the parties, who are AB, the plaintiff and CD, the defendant; (i) the cause of action, which is set out in paras 1 and 2 of the plaint, consisting of the making of the contract and breach thereof; (ii)

the subject-matter,

which is referred to in para 1 of the plaint, being the

property agreed to be sold by the defendant to the plaintiff; and

iv) the reliefs claimed, which are specific performance, and, in the alternative, damages, if the court decides that specific performance ought not to be

granted4. 7

47.

Specific Relief Act, 1963, ss. 21 and 24.

The FourEssentialsof a Suit

Chapter 3

3.5.2 Comment The reason why para 3 has been inserted is that a

plaintiff

suing for specific

performance must himself be ready and willing to pertorm his part of the agreement. It is a statutory

requirement

that the plaintiftf must aver and prove

that he has

performed or has always been ready and willing to perform the essential terms of the contract. For this, it is not necessary that the plaintiff shall deposit the tender price or consideration, unless directed by the court. Moreover, the plaintiff must show readiness and willingness to perform as per true construction or interpretation oft the agreement. What is the effect of failure to aver and prove readiness and willingness? Though

this is not falling within the scope of this book, it is necessary to keep in mind the consequences because failure to aver and prove as aforesaid is fatal to the suit.

No

relief can be granted if plaintiff fails to aver and prove. No relief can be granted if plaintiff fails to aver and prove his readiness and willingness to perform essential terms of agreement as per its proper construction. This does not, however, mean that failure to reproduce exact words of the statute would prove fatal. All that is

required is that the facts and averments pleaded in the plaint disclose substantial compliance with the aforesaid legal requirements." It is, however, advisable to reproduce exact phraseology of the statute in order to avoid any technical objection being raised against a person.

The first part of para 5 has reference to the pecuniary jurisdiction of the çourt; the second part to the Court Fees Act 1870. Another thing which is not given in the form above is, that only material facts are stated in the plaint as required by O. VI, R. 2. Further, the forms of plaints are given in Appendix A to Sch I of the Code, namely, Form Nos 47 and 48, as required by O. VI, R. 3."

48. Rajya Tusibai Patel v. Berar Enterprise d Ors.,(1987) 2 GLR 1082: AIR 1988 Guj 42. 49. Read Code of Civil Procedure, 1908, O. I1, R. 2(3); O. VI, Rr. 1-3, 9, 14, 15; and O. VI1, Rr. 1, 2, 3,

5,7,9,11, 14-18.2.

4

CHAPTER

PLACE OF SUING

4.1 PLACE OF SUING Before

instituting a suit on behalf of a client, the first thing to be determined is the

court in which the suirt should be brought. To do this, first of all, the place of suing must be determined. The expression 'place of suing retfers to the venue of trial in India and has nothing to do with the competency of the court. The questions of pecuniary and subject-matter jurisdiction come subsequently, i.e., only after the question of territorial

jurisdiction is answered, but there may be as many as three

courts of different grades in that place, namely the district court, the subordinate judges court, and the munsifs court. The next thing, therefore, to be determined is, in which particular court in that place the suit should be instituted, having regard to the value of the suit, and the subject-matter thereof. Sections 15 to 20 regulate the venue where a suit can be filed and apply only to

those places where the Code is in force. The important provisions as to place of suing are contained in Ss. 16, 17 and 20 of the Code, and are imperative for the suitor. These sections do not apply either to chartered high courts (S. 120) or to presidency small cause courts (S. 8). The former courts being in this respect governed by the provisions of cl 12 of the Charter, and the latter courts by those of Ss. 18 and 19 of

Presidency Small Cause Courts Act, 1882. For the purpose then, of determining the place of suing, we have to deal with threeclasses of courts, namely:

) higchourts; (i) presidency small cause courts; ii)

courts to which the provisions of Ss. 16, 17 and 20 of the Code apply, eg, district courts, subordinate judges courts, munsiff's courts, provincial small cause courts.

1.

yfrerjo19 s.dsvomrat To) etiuë

Oriental Bank of Commerce v. Santosh Kr. Agarwal, 2010 Cal WN 810 (819)

(NOC) 610(Cal-DB). 2. As to City Civil Courts, see APpendix.

(DB): 2008 AIHC

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38

Chapter 4

Now, as regards suits, there is large variety of them. To get a rough idea of the different kinds of suits, it is advisable to read the list of suits given in S. 19 of the

Presidency Small Cause Courts Act, 1882 and Sch. II of the Provincial Small Cause Courts Act. There are suits for land or other immovable property. There are suits to recover debts, and suits on contracts. There are suits for torts, and the tort or wrong

complained of may be: (a) wrong to the person, eg., assault, battery, false imprisonment; or (b) wrong done to one's reputation, eg, defamation; or

()wrong

done to movable property, e.g.,Conversion; or

(d) wrong done to immovable property, «g., trespass and nuisance in different forms (of which, the disturbance of an casement of light and air is a familiar instance). There are suits arising out of ife, marine and fire insurance policies. There are suits to enforce trusts, suits for the cancellation or rectification of instruments, suits for legacies, suits to contest awarcds, suits to set aside decrees and suits on foreign judgments

4.2 SECTIONS 16, 17, 19 AND 20 OF THE CODE For the purpose of the present inquiry, suits may be divided into threeclasses, namely: 6) suits for immovable propertry (Ss. 16-17); (i) suits for compensation property (S. 19);

for wrong done to the person or to movable

ii) suits of all other kinds (S. 20). Under suits for immovable property there are five kinds of suits referred to in cl. I(a) to (e) of S. 16 of the Code, namely, suits:

(a) for the recovery of immovable property; (6) for the partition of immovable property; (c) for foreclosure, sale or redemption in the case of a mortgage of, or charge

upon, immovable property; (d) for the

determination of any other right to or interest in, immovable

property, eeg, a suit by a purchaser for specific performance of a contract for the sale of a house to him;

()

for compensation for wrong to immovable properry, eg., trespass and nuisance.

The property within the meaning of S. 16 of the Code

refers only to property

situated in India.

4.2.1 Suits for Immovable Property It can only be instituted in the court within the local limits of whose jurisdiction the property or any portion thereof is situate in consonance with Ss. 16-

Chapter 4

Place ofSuing

39

17. Where agreement for development of property was recorded in Delhi and dispute was related to the determination of rights and interest of parties over immovable property situated at Chandigarh. Fact that defendant does not reside or have any office in Delhi will not clothe Courts at Delhi with territorial jurisdiction. Suit is governed by Section 16(d). It may be noted that neither a presidency, nora provincial small cause court can try suits for immovable property. Where the suit is for compensation for wrong or any other relief in respect of

immovable property situated within jurisdiction of different courts, the suit can be brought in any one court within whose jurisdiction, any portion of the property is situated. Further a suit to obtain relief or compensation in respect of wrong to immovable property, held by a defendant or on his behalf, where relief can be obtained

entirely by his personal obedience, can be instituted apart from the court within whose local limits the property is situated, in a court within the limits of whose jurisdiction, the defendant actually and voluntarily resides, or carries on business, or personally works for gain. Its object is to benefit suitors and to avoid multiplicitry to legal proceedings. It is applicable to suits for partition, it there are several immovable properties situated at different places, a suit for partition of such properties can be

brought at any one of the places in respect ofall the properties. Questions arise as to whether it is compulsory for the plaintiff to bring a suit in respect of all the properties at one place? Is it possible to bring separate suits? While cases are conflicting, the words used in S. 17 suggest that they are permissive, and do

not prohibit a person from bringing separate suits at different places.

Section 17 has no application if cause of action in respect of properties situated outside the jurisdiction of the court in which suit is brought is different from the cause of action in respect of properties situated within its jurisdiction. The applicability of S. 17 depends upon existence of a single or common cause of action in respect of all such properties. In Nasir Ali v. Mohamad Ali," the plaintif filed a suit in Oudh court to recover immovable properties some of which were outside the jurisdiction of the court. He claimed all the properties under a Will. He also prayed for appointing/ declaring himself to be mutawali of a wakf of some other property. Regarding the last prayer, Privy Council stated that cause of action in respect of wakf propery was entirely different, and could not have been clubbed merely on the ground that the other properties claimed under the Will were situated in the same district.

When

there is a single cause of action in respect of several properties

situated at different places, a suit can be brought at one of such places provided the

entire claim falls within the pecuniary jurisdiction of the court. The principle is that it is only in those cases where cause of action is common in respect of

all the

properties or the basis of claim is same then the suit can be brought at one of such

places included within its scope and reliefs in respect of properties situated outside

3. SplendorLandbase Lid. v. Mirage Infra. Ld., 2010 AIHC (NOC) 1030 (Del-DB): 169 (2010) DLT 126 FA.O. (OS) No. 150 of 2010, Dt. 9.4-2010: AIR 2010 (NOC) 933 (Del). 4. Sardar Nisam Ali v. Mohammad Ali, AIR 1932 PC 172, (1932) 59 IA 268.

Mulla The Key to Indian Practice

40

Chapter 4

the jurisdiction of the court. However, it is necessary that all such properties must be in India, for courts have no jurisdiction in respect of properties situated abroad." The question arises that in the event of an uncertainty as regards the court within whose jurisdiction the property is situated, what is the remedy?

In circumstances, where it is doubtful in which of rwo or more courts, a particular property is situated, you are entitled to file suit in any one of such courts alleging such uncertainty. If the court is satisfied about uncertainty, it will record a statement to that effect and proceed to dispose of the suit. Its decree will be binding. However, the court must enjoy pecuniary as well as subject matter jurisdiction in respect of the suit. Any objection regarding jurisdiction raised in appellate or revisional court shall not succeed unless there is a failure in justice. Even failure to record a statement is

not fatal to the decree. However, if there is no reasonable ground to believe that there was any uncertainty and if there is consequent failure of justice, such a decree becomes vulnerable, and liable to be set aside.

4.2.2 Suits for Compensation for Wrong Done to the Person or to Movable Property It may be instituted at the option of the plaintiff in the court of the place where the wrong was done or the court of the place, where the defendant resides or carries on business which may be done

through an agent or personally

work

for gain in

accordance with S. 19. Thus if A, residing in Delhi, publishes in Poona statements defamatory to B, B may sue A, either in Delhi or in Poona. This section is limited to actions in torts committed in India and to the defendant residing or carrying on business or personaly working for gain, in India. It excludes suits in respect of torts committed outside India. In such cases, if the defendant is residing in India, suit can be brought under S. 20, and not under this section. In order to make this section operative, commission of wrong as well as position of the defendant about his residence or place of business or work, both must be in India. What is a wrong? It is nowhere defined in the Code. The word 'wrong' signifies an action, violative ofa legally recognised right. Salmond defines a wrong as simply a wrong act-an act contrary to the rule of right and justice. However, it must be a legally recognised rule before any action can be maintained in a court of justice. The use of the word in the section is confined to a tort or actionable wrong to person or movable property. In cases of such wrongs, this section is attracted, and the plaintiff has an option to choose the forum for filing a suit.

4.3 PLACE WHERE WRONG IS cOMMITTED Ordinarily,

there should be no

difficulty

in ascertaining the place where wrong is

committed.

However, in some cases, wrong may consist of a series of acts and it is

5. Nilkanth Balwant Nath v. Vidya Narsingh Bharathi Swami, AIR 1930 PC 188. 6. Janki Devi v. Mannila,

AIR 1975 All 91: 1975 AWC 87.

Chapter 4

41

Placeof Suing

sometimes not easy to specify the place where it was committed. In such a case, a suit can be brought at any place where any of the acts have been committed. In other cases, it may also happen that a wrong may be committed at one place, but its consequences or effects are suffered at another place and in such cases, it has been held that the place at which consequences or effects are suffered will also get jurisdiction." Where actionable wrong occurs at place A and its resultant effects are suffered at place B, the court at place B will also have jurisdiction.

Damage resulting at a place,

different from the place where wrong is committed, in consequences of such wrong will also furnish a cause of action. It is necessary that the suit must be for compensation and if other reliefs are sought, it would fall outside the scope of the present section. All other suits may be instituted at the plaintiff's

option, in any one of the

following courts, namely: ) the court of theplace,where thecause ofactionariseseither wholly or in part; ()

the court of the place, where the defendant resides or carries on business, or personally works for gain;

ii)

where there are two or more defendants, the court of the place where any one of them resides or carries on business or personally works for gain, 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, in that place, acquiesce in such institution (S. 20). Whether there was acquiescence on the part of the defendant is a question of fact." The word

'actually' used in Ss. 16, 19 and 20 of the Code, means really and not

constructively, and 'voluntarily means his own volition. To constitute residence, the following two things must be present: G) the factum of residence; and

i) the animus-anelementofintention. Confinement

of a person in jail is not an actual and voluntary residence although he

is actually and physically present there. The word 'business' in the expression 'carries on business in Ss. 16, 19 and 20 of

the Code, means some real and systematic or organised course of activity or conduct with a set purpose."

The expression

carries

on business

does not necessarily require the actual

presence of a person to carry on the business, and it may be carried on through

others, provided the person retains the control of thebusiness. 7. State v. Savodaya Industries, AIR 1975 Bom 8. (1984) 1 GLR 706.

197.

9. ar EasternSteamshipCompany v. Kokia Trading Co. Ltd., AlR 1978 AP 433. 10. Satya v. Teja Singh, AIR 1975 SC 105: (1975) 1 SCC 120. 11. Narain Swadeshi Weaving Mills v. Commr of Exces Profit Tax, AIR 1955 SC 176: (1955) 1 SCR 952. 12.

M Venkatswamy v. Marudapursbram, (1997) 2 Mad LJ 245.

42 The

Mulla The Key to Indian Practice expression

personally

works

for

gain'

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means a place where a person is

gainfully employed and was inserted to give jurisdiction to the courts, when a person

lives outside the local limits of its jurisdiction." And out of the three expressions (a) actually and voluntarily resides; (6) carries on business; and (c) personally works for gain, used in Ss. 16, 19 and 20 of the Code

dealing with the territorial jurisdiction of the civil courts, the expression carries on business is the widest of all and applies to natural as well as juristic persons, carrying

on business with or without profis." The relevant date for determining territorial jurisdiction is the date of institution of suit. All these expressions have been dealt in detail in this chapter.

Ilustrations (a) A resides at Delhi, and B at Agra. B borrows Rs 2,000 from A at Benares, and passes a promissory note to A payable at Benares. B fails to repay the loan. A may sue B at Benares where the cause of action arose, or at Agra where B resides. A cannot sue B at Delhi where A resides.

(b)

If in illustration (a), the note was made payable at Amritsar, a part of the cause of action would arise at Benares, where the note was passed (ie., where the contract was made), and a part of Amritsar, where it was made payable (i.e., where the contract was to be performed), and A could then sue B, at his option also at Amritsar.

(c)

B and C pass a joint promissory note to A at Benares and made payable at Benares. B resides at Agra and C at Simla. A may sue B and C at Benares,

where the cause of action arose. He may also sue them at Agra where B resides,

or at Simla where C resides, but in either of these cases, if the non-resident defendant objects, the suit cannor proceed without the leave of the court.

Here are similar reference to some other causes of action. In case ofa tort, where S. 19 is not attracted, the place where tort is committed or its effects suffered will be a place where a suit can be instituted. In a suit of malicious prosecution, the place where summons of criminal case is served is a place where a part of cause of action arises and the court at such place shall have jurisdiction in respect of such suit."In a suit to administer the estate, or tor the grant of probate or letters of administration and the undertaking to administer will furnish a part of the cause of action. In a suit to set aside a decree obtained by fraud, the court, which passed such decree will have jurisdiction to try such suit. If such decree is sought to be executed, and some action is taken in pursuance of execution, such as attachment

of property etc, the court at which execution application is made or the court where jurisdiction

to entertain a suit to set aside such

fraudulent decree." A suit for infringement

of trademark or copyright can be

such action is taken will also have

14. Bakhtawar Singh Balkrishan v. Union of India, AIR 1988 SC 1003; Union of India v. Ladu Lal Jain,

AIR 1963 SC 1621.. 15. Mohana Kumaran Nair v. Vijaya Kumaran Nair, AlR 2008 SC 213: 2007 (12) Scale 130. 16. RP. Goala (Dr.) v. Amarpal Singh, AIR 1972 Raj 142. 17. Asghar Ali & Co v. VappalaSatyanarayana, AIR 1957 Cal 317.

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48

brought at a place where such infringement takes place. " Where the respondent was working at Dehradun and retired from service at Dehradun, no part of cause of action arose in the State of Uttar Pradesh. An order issued by Allahabad High Court

would not be sustainable." The parties to a contract may stipulate that the suit shall be brought at a particular

place only. Suppose A enters into a contract with B to sell goods at Bombay, and B agrees to make payment to A at Ahmedabad and a clause is inserted in the contract that a suit, in respect of the contract shall be instituted only at Bombay, what is the effect of such agreement? Is it valid? In commercial transactions also, one can come across clauses such as subject to Bombay jurisdiction only, etc. How far do such agreements bind the courts? Several interesting questions having far-reaching implications arose out of such choice of forum made by parties and law, in this respect can now safely be taken to be well-settled.

Consent of parties cannot confer jurisdiction upon courts which they otherwise do not posses. Agreement between the parties conferring jurisdiction on court of some place which would otherwise not have jurisdiction, would be void being opposed to public policy." However, the parties to an international trade contract may agree to submit and to have their disputes resolved by a foreign court termed as a 'neutral

court or court of choice creatingexclusive ornon-exclusive jurisdiction in it." At the same time, the parties are not entitled to take away, by their consent, the jurisdiction vested in the courts, but if there are more than one courts having jurisdiction, it is possible for the parties to stipulate that the suit shall be brought in

one of such courts only. In other words, the parties can, by their agreement, restrict themselves to institute a suit at a particular place only out of several places available under law for instituting legal proceedings. Such agreements are upheld as valid

being not contrary to public policy nor contravene S. 28 or S. 23 of the Indian Contract Act, 1872** nor against the statute." In Hakam Singh v. Gammon (lndia) Lid," it has been observed as follows: It is not open to the parties to an agreement to conter by their agreement jurisdiction on a court which it does not possess under the Code. But where

Cwo courts or more have under the Code of Civil Procedure jurisdiction to try a suit or proceedings, an agreement between the parties that the disputes

berween the parties shall be tried in one of such courts is not contrary to public policy. Such an agreement does not contravene S. 28 of the Contract Act.

Now if such kind of agreement is valid, what is its effect? Does it mean that the court selected by the parties alone will have jurisdiction to the exclusion of other

18. 19. 20. 21. 22. 25. 24.

DCS Bureau v. United Concern, AIR 1967 Mad 381. StareBank of Patiala v. Vinesh Kr. Bhasin, (2010) 4 SCC 368 (375): AIR 2010 SC 1542. HarshadChinman Lal Modi v. DLF Universal Ltd., AIR 2005 SC 4446: (2005) 7 SCC 791. Modi Entertainment Network u. WSG CricketPut. Ltd., AIR 2003 SC 1177. Man Ronald Drukimachiner AG v. Multicolour Ofset Ld, AIR 2004 SC 3345 :(2004) 7 SCC 447. Hanil EraTextiles v. PuromaticFilters, AIR 2004 SC 2432. Hakam Singh v. Gammon (lndia) Ltd, AIR 1971 SC 740.

44

Mulla The Key to Indian Practice

Chapter 4

courts? Does it mean that parties can exclude, by their agreement, other courts granted under the law? The answer is in the negative. By

virtue

of such agreements,

the

courts

excluded

thereby,

jurisdiction which they otherwise possess. They retain jurisdiction the agreement of the parties. jurisdiction

and such freedom

jurisdiction

do

of

not lose

norwithstanding,

It is always held that excluded courts do not lose cannot be conceded to the parties to take away, by

consent, jurisdiction granted under the law. The courts will lean in favour of upholding such agreements, and will insist that the parties adhere to the chosen forum and will not allow them to ignore the stipulation, but they are not bound by it. They can try suits or proceedings notwithstanding the agreement it they are satisfied that the circumstances justify departure from agreement or that it would be oppressive or unjust to insist that the suit or proceedings should be instituted at the selected place only. The courts have the discretion and power to relieve the parties from their self-imposed restriction, if rigid insistence on such selection is likely to lead to injustice or unreasonable harassıment or inconvenience in view of the surrounding circumstances, the balance of convenience, the nature of the claim and of the defence, the history of the caseand the stakes involved." In Rai d SonsPut.

Ltd v. Trikamji Kanaji Gajar é Sons

it has been observed as follows:

The prima facie leaning of the court is that the contract should be enforced and the parties should be kept to their bargain. Subject to the prima facie leaning, the discretion of the court is guided by the consideration of justice. The balance of convenience, the nature of the claim and of the defence, the history of the case, the proper law which governs the contract... are all material and relevant considerations. If on a consideration of all the circumstances of the case, the court comes to the conclusion that it will be unjust or unfair to stay the suit, it may refuse to grant the stay asked for. The courts have tended to construe such clauses or stipulations rather strictly. There must be very clear expression of intention to restrict the parties to a particular forum. Such clauses do not find favour with courts and they are viewed with suspicion. It is now accepted that the doctrine of freedom of contract is quite

illusory and in many cases, the parties do not have equal bargaining strength. In such cases, the stronger party succeeds in inserting clauses favourable to itself on account of its vastly superior bargaining power. In RSD Finance Co. Pvt. v. Shree Vallabh Glass Works Lid" such tendency is clearly evident. In that case, the fixed deposit receipts issued by the defendant contained the endorsement "Subject t Anand Jurisdiction. It was held that such endorsement was insufticient to amount to an ouster clause. It has been observed as follows:

The endorsement 'Subject to Anand Jurisdiction' does not contain the ouster clause using the words like 'alone', 'only', 'exclude' and the like. Thus, the 25.

Pattnaik Industries (Put) Ltd. v. Kalinga Iron Works, AIR 1984 Ori 182.

26. Rai 27.

SonsPvt. Lid v. Trikamji Kanaji Gajjar *Sons,16 GLR 31, AIR 1975 Guj 72.

RSD Finance Co. Pot. v. Shree Vallabh Glass Works Lrd, (1993) 2 SCC 130.

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45

Placeof Suing

maxim 'epressio unius est exclusio alterius' cannot be applied under the facts and circumstances of the case and it cannot be held that merely because the

deposit receipt contained the endorsement 'subject to Anand

Jurisdiction'

it

excluded the jurisdiction of all other courts who were otherwise competent to entertain the suit. The

Supreme

Court

observing

that

such

agreements

must

be

properly

construed keeping in view the intention of the parties and the expressions used in the agreement, has taken similar view in ABC Laminart Pvt Ltd v. APAgencies,Salem. An agreement conterring an exclusive jurisdiction on one court to the exclusion of

another court should be clear, unambiguous, explicit and specific. " An agreement as to the choice of forum or the exclusion of jurisdiction of a court is binding on parties thereto, and does not affect a third party who is a stranger to

the contract. The object of Section 20 is to secure justice to every man's hearthstone and that

defendant should not be put to any trouble and expense of travelling long distances in order to defend himself. It deals with personal actions and various alternative places are made available to the plaintiff to file a suit. Options are given to select place where cause of action has arisen, either wholly or in part or the place where defendant actually and voluntarily resides or personaly works for gain or carries business. We shall now consider certain aspects regarding residence and place

the the on of

business and work for gain.

4.4 RESIDENCE This

word is not defined in the Code. It must be given its plain,

natural and

ordinary meaning. According to dictionary meaning, the term 'to reside' means to dwell for a long time or to live at a particular place or in a particular house. 'Resides refers only to natural persons, and not legal entities or the government." Whether a person resides at a particular place is a question of fact, and it must depend upon particular circumstances. There can be no hard and fast rule or criterion to

determine the question about residence nor any straight jacket formula to help.

The twin requirements to constitute residenceare () factum of residence; and (i) the aminus, i.e., the element of

intention."

The person must have an established

home. However, the term 'residence at least signifies a permanent dwelling place where a man lives with his family, if any. It must be actual residence, and not merely technical or constructive

residence."

It must be voluntary

residence, and not a

28. ABC Laminart Pvt Ltd v. APAgencies,Salem, AIR 1989 SC 1239:(1989) 2 SCC 163. 29. New Moga Transport Co v. United India lnsurance Co. Ltd., AIR 2004 SC 2154. 30. East India TransportAgencyv. National InsuranceCo. Ltd., AIR 1991 AP 53 (FB). 31. Laxman Prasad v., Prodigy Electronics Ltd., AIR 2008 SC 685 : (2008) 1 SCC 618. 32. See Bakhtawar Singh v. Union of India, AIR 1988 SC 1003: (1988) 2 SCC 293.

33. Satya v. TejaSingh, AIR 1975 SC 105. 34. MSM Buhari v. SM Buhari, AIR 1971 Mad 363.

46

Mulla The Key to Indian Practice

Chapter 4

compulsory residence. A person confined in jail actually resides there, but it is a compulsory residence, and it cannot be said that he voluntarily resides there. Similarly, where a person has no established home and is compelled to live in hotels, boarding house or the house of others, his actual and physical habitation is the place where he currently resides." The relevant date of residence is when the suit is insti

tuted.

In order to satisfy the statutory requirements, both the

elements regarding

residence ought to be present before a suit can be brought. The residence or dwelling must be of a more or less permanent character. The residence must be actual as well as voluntary. If residence is actual but involuntary, as in the case of a

person in prison, statutory requirement is not satisfied. It is possible that a person may have more than one places of residence. In such cases, he is said to reside at all

such places. His temporary absence from one place will not make any difference if he has animus revertendie, i.e., intention to revert. At the same time, if he resides at a particular place temporarily or casually, it cannot be said that it is sufficient for the purpose of filing a suit against him at such place. It will depend upon the facts and circumstances of each case, whether his stay at a particular place can be claimed to

be sufficient for the purpose of his residence.

4.5 CARRIES ON BUsINESS Business means some real, substantial and systematic or organised course of activity or conduct with a set purpose The place where the defendant carries on business is a place where suit can be

brought under S. 20. The expression carries on business used in this section is the

widest of all and applies to natural as well as juristic persons. It is not required that the

defendant must personally carry on business. The word personally appearing before work for gain is advisedly nor used against the words 'carries on business'. The

omission is significant and deliberate. Therefore, it is not necessary that the defendant must personally carry on business at a partricular place. It is not necessary that there

should be actual presence or personal effort of the defendant in such business. He must be sharing gains or losses, as the case may be. Even if he carries on such business through specially appointed agent, it is sufficient to bring a suit against him. The agent must be a special agent, who attends exclusively to the business of the defendant and not a general agent, who also does business for any one that pays him.

Suppose A is carrying on business at Ahmedabad and habitually sends its products for sale at Bombay to another person who acts as a commission agent. If that person has an independent business at Bombay, a suit can be filed against A at Bombay, only if A is carrying on business at Bombay. A suit can also be filed against A at

Bombay if that person carries on business in As name and if he remains exclusively attached toA. 35. Narayanan v. Kochupennu, AIR 1954 Tr & Coch 10, p. 141. 36. Mohan Singh v. Laiya Ram, AIR 1956 Punj 188. 37. Muthia Chettiar v. Shanmugham, AIR 1969 SC 552: (1969) 1 SCR 44.

38. (1881)ILR 3 All 91 (PC). 39.

Mazagaon Dock Ltd. u. CIT, AIR 1958 SC 861: (1959) 1 SCR 848.

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Place of Suing

lt is equally

important

that essential

part of the business is carried

on at a

particular place. It is not sufficient if only incidental or consequential functions are performed at that place. Suppose A is carrying on retail business of selling products art Ahmedabad and A is

acquiring them at Similarly, if A has

such products through its agent at Bombay who imports or purchases Bombay, it cannot be said that A is carrying on business at Bombay. if A is carrying on manufacturing and selling activities at Ahmedabad, and appointed an agent merely for the purpose of procuring orders and

forwarding the same to himself, it cannot be said that A is carrying on business at

Bombay. However, if As agent is authorised to accept orders and finalise them, it may be a different story altogether. After ascertaining the nature of business, it is necessary to examine whether essential activities of such business are carried out in order to decide whether it can be said that a person is doing business at that place. IfA is a retailer at X place, and if for this business, makes a wholesale acquisition at Yplace, it cannot be said that A is

carrying on business at Yplace. Where an offer is accepted at Delhi it would mean that the contract has been

entered into at Delhi and jurisdiction would be of Delhi, irrespective of the fact that formal documentation by way of agreement was made at Jhansi." What will be the position in respect of other entities and individuals? One finds an explanation attached to S. 20, which speaks of corporations. They include companies incorporated under Companies Act, 1956." If a suit is instituted on the ground that cause of action has arisen at a particular place, in that case, the explanation is not attracted, and a suit is maintainable even if a corporation is not carrying on business at such place." However, a suit can also be brought against the corporations where it carries on business. How can it be determined where a corporation carries on business? The answer is provided by this explanation.

If it has only one place of business, there can be no difficulty.

If it carries on

business at several places for this purpose, it carries on business at its principal office in India.

However, if a cause of action has arisen at a place where such corporation has its subordinate office, it is deemed to carry on business at such place where subordinate office is situated. In other words, then a cause of action has arisen at a work place where subordinate office is situated, the suit cannot be brought at the

place of its principal office. In such cases, by statutory fiction, it is presumed that corporation carries on business at the place of its subordinate office where the cause of action has arisen. Conversely, cause of action or a part of cause of action must have arisen at the place where the subordinate office of the corporation is situated, for the explanation to apply. The use of the word or in the explanation must be read

40. Magnum Buildersd-Developers d ChawlaConstruction(V) v. Ircon International Ld, 2008 (4) Arb LR 235 (Al): 2008 (3) AWC 2980: AIR 2005 (NOC) 59 (All) : 2008 (5) ALJ 362. 41. 42.

Hakan Singh v. Gammon (lndia) Ltd., AIR 1971 SC 740. CW Corpn v. Central Bank of India, AIR 1973 AP 387.

Mulla The Key to Indian Practice

48

as disjunctive and not as conjunctive. where the principal office is situated.

Chapter 4

Therefore, in such cases, it is quite immaterial

Whether a person carries on business at a particular place is a

The expression 'carries on business applies to

Government

question of fact.

of India as well as

corporations. However, it does not refer to functions carried on by the Union of India in discharge of its executive powers conferred by the Constitution." Transaction occurred at a particular place is specifically affirmed or alleged in the plaint showing right to sue. Suit can be instituted in the Court within the local limits of whose jurisdiction that transaction occurred. Presence of a subordinate not office of a company in the place where cause of action wholly or in part arises is necessary to attract clause (c) of Section 20 in the case of Corporation or Companies. "Carrying on business" occurring in clauses (a) and (6) has no significance on relevancy in interpreting clause (c) of Section 20. Explanation to a

main provision of an Act cannot be allowed to override it. Held: () (i)

Territorial jurisdiction may fall under more than one clause and the suit can be filed in more than one Court. Plaintiff has the right and liberty to choose any one of the courts

simultaneously having jurisdiction. (ii)

"Cause of action" is the basis from which issues can be formulated and issue arises when material proposition of fact or law is affirmed by one

party and denied by the other.

4.6 PERSONALLY WORKS FOR GAIN Where a person resides outside the jurisdiction of court, but personally works for gain within its jurisdiction, a suit will lie against him in that court. Suppose A is residing at Gandhinagar,

but is practicing as an advocate at Ahmedabad, a suit can

be brought against A at Ahmedabad. The word 'works implies efforts on the part of the defendant and if such etfort is absent, it cannot be said that he is personally working for gain. It implies mental or physical effort. Suppose if a priest is receiving gifts or offerings at a particular place, it cannot be said that he is working there. This part of the section does not apply to non-personal entities such as government, com-

panies or corporation. Where there are more than one defendants and the court enjoys jurisdiction only

over one or some of the defendants, but not over all the defendants, the leave of the court must be sought before a suit can be filed before it. The leave must be express. The leave may be granted even wichout hearing the opposite party, and even after

institution 43. 44. 45. 46. 47.

of the suit. The leave can even be granted at the stage of appeal.

M Venkata Swamyv. Marudapurshpam, (1992) 2 Mad LJ 245. Bakhtawar SinghBalkishan v. Union of India, AIR 1988 SC 1003. Joy P. Chungath v. Lawkin Lid, 2012 (5) R.C.R.(Civil) 331. Neela Productions,Sreekumar Theatre, Trivandrum v. S Kumaraswamy, AIR 1966 Ker 239. Manoramabai v. brahim, AIR 1969 Bom 366: (1969) 71 Bom LR 317.

In

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49

granting or refusing leave, the court shall consider the convenience of the parties, the The collector of availabiliry of the evidence and the larger interest of justice." stamps, Satna passed the order directing the appellants to deposit deficit stamp duty as well as registration charges. In appeal, order of collector was affirmed by Commissioner Rewa Division, Rewa. An appeal filed challenging both the orders

was dismissed by Board of Revenue at Gwalior on merits. The order of Collector as well as that of the Commissioner was merged in the order of the Board of Revenue. The part of cause of action had arisen to the appellants at Gwalior also. The Bench

of High Court at Gwalior shall have jurisdiction to decide the writ petition." In cases, where one or more defendants in a suit are outside the jurisdiction of the court, such a suit shall fall within the jurisdiction of the court only if such defendant(s) acquiesces to its jurisdiction and an objection against the jurisdiction can be raised. However, if no objection is raised, such a non-objecting defendant(s) will be estopped from challenging the jurisdiction of the court subsequently. Whether there is an acquiescence on the part of the defendant is a question of fact.

4.7 CLAUSE 12 OF THE CHARTER It has already been pointed out that the High Court of Allahabad has no original civil

jurisdiction,

in other words, no suits can be instituted

in that court. We

therefore have to confine our attention to the other high courts, namely, the High

Courts of Calcutta, Madras and Bombay. The extent of their ordinary original civil jurisdiction is defined in cl 12 of their respective charters." Suits, so far as clause is concerned, may be divided into two classes, namely: (i) suits for land;

that and

i) suits other than those for land. The effect of provisions of cl 12 is that barring certain suits which it is quite unnecessary to mention, the said high courts can try:

4.7.1 Suits for Land (a) if the land is situated wholly within the local limits of the ordinary original civil jurisdiction of the said high courts; or (b) where the land or property is situated in part only within the said limits, if the leave of the court shall have been first obtained.

4.7.2 Suits Other Than Those for Land (a) if the cause of action has arisen wholly within the said limits; or (b) where the cause of action has arisen in part only within the said limits, if the leave of the court shall have been first obtained; or

()if the defendant at the time of the commencement of the suit dwells, or carries on business, or personally works for gain, within such limits. 48. Bank of India v. Mehta Bros., AIR 1984 Del 18: 1983 (5) DRJ 252. 49. Vishnu v. State of M.P., 2009 (3) MPLJ 39 (42) (DB): 2009 (4) MPHT 123. S0. Manoramabai Moreshwar v. lbrahim Khan Bismilla Khan, AlR 1969 Bom 366. S1. Certain other high courts have original civil jurisdiction by the later Acts.

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Mulla The Key to Indian Practice

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As to the meaning of the expression 'suits for land' in cl 12 of the Charter, there is a

conflict ofdecision. According to the Calcutta High Court," the expression 'suits for land' refers to the five kinds of suits mentioned in cl (a) of S. 16 of the Code. According to the Bombay High Court;" suits for the foreclosure, sale, or redemption in the case of mortgage of immovable property, and suits for specific performance of a contract to transfer immovable property, are not suits for land. The result is that you may institute in the High Court of Bombay, a suit for the sale of mortgaged property, though the property may be situate outside Bombay, provided that the mortgage was executed in Bombay, or the defendant resides in Bombay. Such a suit from the point of view of the Bombay High Court, is a suit in personam to recover a debt, and it belongs to the second of the two classes of suits mentioned above. It is a maxim of equity that equity acts in personam. Following the maxim, the courts of equity in England entertain suits relating to immovable property, though the property may be situated abroad, eg, in Germany, provided that either the person of the defendant or his personal property is within the jurisdiction of the court. The jurisdiction, however, is confined to three classes of suits only, namely: (i) suits arising from breach contract; (i) suits arising from a breach of trust; and (ii) suits arising from fraud respecting land situate abroad. The High Court of Bombay purports to follow the said maxim. The maxim is reproduced with some alteration in the proviso to S. 16 of the Code. According to the Madras view,"" a suit for specific performance

of a contract to sell land is not a suit for land.

In determining the place of suing in the case of suits other than those of land, the two factors of importance are (i) the cause of action; and (i) the place of residence of the defendant. The place of residence of the plaintiff is of no consequence.

4.8

POINTS OF DISTINCTION BETWEEN SECTIONS 16, 17 AND 20 OF THE CODE AND CLAUSE 12 OF THE LETTERS PATENT

The points of distinction are as follows:

) Leave to sue isnecessaryunder cl 12 of the Charter in the case of suits for land, if only a portion of the land is situated within local limits of the original jurisdiction of the high court, and in the case of other suits, where the defendant does not reside within the said limits, if only a part of the cause of action has arisen within the said limits. No such either under S. 17 or S. 20 of the Code.

leave is necessary

(n) In all cases in which leave to sue is necessary under cl 12 of the Charter, it must be obtained before the suit is filed, otherwise, the suit will be

52. Sudamdih Coal Co. v. Empire Coal Co (1915) ILR 42 Cal 942, pp. 951-52. 53. Hatimbhai v. Framroz, AlR 1927 Bom 278 : (1927) 29 Bom LR 498. 54. Vellappau. Govinda Das, (1929) ILR Mad 809 (FB) : AIR 1929 Mad 721.

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dismissed. Leave to sue under S. 20 may be granted by the court even after the suit is filed. (1)

In a case where the suit is not one for land, where no part of the cause of

action has arisen within the local limits of the original jurisdiction of the court, and there are two or more defendants, all of whom do not reside within the said limits, if the suit is instituted in a high court, it has no jurisdiction to entertain the suit; it has been held that every defendant must be residing within the said limits to give jurisdiction to a high court; but if the suit be instituted in a court to which the provisions of S. 20 of

the Code apply, the court has jurisdiction to try the suit, if either the leave of the court is obtained or the non-resident defendant submits to the

jurisdiction of the court. llustrations (a) A resides in Bombay and B at Poona. A agrees in Bombay to sell and deliver goods to B at Poona on payment of the price in Poona. The goods are delivered,

but the price is not paid. Can A sue B in the High Court of Bombay? Yes, but only after obtaining leave to sue, tor a part only of the cause of action has arisen

in Bombay, namely, that the contract was made in Bombay.

(6)A

resides in Bombay, and B and C reside in Poona. A, B, and C, being

together at Poona, passa joint promissory note to D payable in Poona. cannot sue A, B, and Cin the High Court of Bombay, for the cause of action arose wholly in Poona, and all the defendants do not reside in Bombay.

4.9 ASCERTAINING THE PARTICULAR COURT Having

ascertained

the

place

of

suing,

one

can

have

no

difficulty

in

ascertaining in which particular court in that place, the suit is to be brought. Let us take an instance. A and B are co-owners of a house situated in Baroda. A resides in Bombay and B in Surat. The value of the house is Rs. 75,000. A wants to sue B for a

portion. In which court will you advise him to institute the suit? First, determine the place of suing. It is Baroda, for the suit is one for immovable propery, and the property is situated in Baroda. Next determine in which of the four courts in Baroda the suit is to be brought. It cannot be the provincial small causes court, for its has no jurisdiction to entertain suits for partition of immovable property. It cannot be the court of the civil judge of the junior division, for though it has

jurisdiction to entertain suits for partition of immovable property, the value of the subject matter is beyond its pecuniary jurisdiction and the value of the property is

exceeding Rs 50,000. There remain cwo other courts, namely, the district court and the court of the civil judge of the senior division. Both these courts have jurisdiction to entertain the suit. Of these two, the court of the civil judge of the senior division is the court of lower grade. The suit must, therefore, be brought in the court of the civil judge of the senior division. S5. Seech. 2, under the heading°Courts in other parts of India'. 56. See ch. 2, under the heading 'Courts of Small Causes'.

52

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Question arises as to what is the result, if a suit is

Chapter 4

brought

in a court i

which,

having regard to what is stated above, it ought not have been brought? And this

leads to the consideration of rwo more principles.

4.10 OBJECTION AS TO PLACE OF SUING The first of the two principles referred to above relate to the place of suing. Thus, suppose that in the case above, A sued B in Surat instead of suing him in Baroda where the land was situated, and that a decree was passed by the court at Surat for A.

Suppose, further that B appealed from the decree to the High Court the ground that the court at Surat had no jurisdiction to try the suit. that high court should entertain the objection and allow the appeal, different, and though the objection is one as to jurisdiction, the high entertain it, unless:

of Gujarat on It would seem but the rule is court will not

(G) the objection to jurisdiction was taken by B in the court of first instance (the court at Surat) and at the earliest possible opportunity or before the issues were framed; and

i)

there has been a failure of justice consequent upon the suit having been tried by the court at Surat (S. 21). The result is that, if no objection to jurisdiction was taken at all by B in the court at Surat, or if such objection was taken at a later stage of proceedings betore the court, or even if such objection was taken at the earliest possible opportunity, but there has been

no failure of justice consequent upon the suit having been tried by the court at Surat, the appellate court would not allow the objection, and would not interfere with the decree passed by the Surat court.

All the three conditions, namely, objection in the court of first instance; objection at the earliest possible opportunity or before the settlement of issues; and a consequent failure of justice, must co-exist." "S.21 CPC does not preclude objections as to the

place of suing being taken in the appellate or revisional court, if the trial court has not decided the suit on merits. Jurisdiction of courts is of three kinds, namely jurisdiction as to subject matter, pecuniary jurisdiction, and territorial jurisdiction. The consequences of absence of jurisdiction are not same, in respect of the aforesaid jurisdictions. They vary according to the type or nature of jurisdiction. If the court has no jurisdiction as to subject matter, its decree will be a nullity, but if it did not have pecuniary or territorial jurisdiction,

its decree is not a

nullity.

'Objection

proceeding must be raised at the earliest but an objection

to the

maintainability

of a

that the authority did not

have the jurisdiction to entertain the proceedings over the subject-matter goes to the roor of the proceeding. However, a defect with respect to the lack of inherent jurisdiction is basic and fundamental and validity of such an order can be challenged 57. As to"failure or justice', see Bahrein Petroleum Co. v. Pappu, AIR 1966 SC 634: (1966) 1 SCR 461.

58. KoopilanUneenPathumma . KoopilanUneenKuntalan Kuty, AIR 1981 SC 1683: (1981) 3 SCC 589. 59.

R.S.D. V. Finance Co. (P) Ltd. v. Shree Vallabh Glass Works Ltd.,(1993) 2 SCC 130.

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PlaceofSuing

at any stage, even in execution or in collateral proceedings. A suit was filed with regard to execution of decree of specific performance. Objection that was decided by a Court which had no territorial jurisdiction. Judgment cannot be reversed purely on technical grounds unless there is a failure of justice. Objection with regard to territorial jurisdiction is technical objection." It is liable to be set aside if aforestated

conditions are satisfied. This is the effect of provisions of S. 21 of the Code. The provisions make it incumbent upon B to make up his mind at the earliest stage of the suit as to whether, he should object to the jurisdiction of the court. If he does not object at the earliest stage of suit, the appellate court will not entertain the

objection, but this does not mean that ifBr ises the objection as to the court at Surat at a later stage of the proceedings;

jurisdiction

the court at Surat

in

should

decline to entertain the objection. The court at Surat, being the court of first instance, is bound to entertain the objection, whatever may be the stage at which the objection is raised; and if it finds that it has no jurisdiction, it should not try the suit any further. In that case it should dismiss the suit, and return the plaint to A to present it to the proper court (O. VII, R. 10). The effect of returning a plaint as distinguished from rejecting it, is to save the plaintiff the court fees which he has already paid. Suppose now that no objection as to jurisdiction is raised by B in the court at Surat, but if the court itself at a late stage of the proceedings discovers that it has no jurisdiction to try the suit, it is the duty of that court to dismiss the suit, and return

the plaint, but what if after the court at Surat finds that it has no jurisdiction, both A and B consent to the court at Surat proceeding with the suit and disposing it of on its merits? Can the Surat court proceed with the suit in such a case? The answer is

no,

for

it is an

established

principle

that

parties

cannot

by

consent

confer

jurisdiction upon a court as jurisdiction is conferred upon courts by the legislature. The leading case on the subject is Ledgard v. Bul. A similar rule has been enacted

with reference to pecuniary limits.

4.10.1 Factors Constituting a Failure of Justice Failure of justice' refers to the merits of the case. It depends upon facts of each case. For this purpose, the court will have to go into merits of the case and form its opinion on the justice and give the decision. If any party is prevented from adducing evidence, oral or documentary, due to the distance berween place of suing and place where such evidence would readily and easily be

available, it may result in failure of justice, If it appears to the court that on account of the suit being in the court not having territorial jurisdiction, either party did nor have a fair trial, it would mean failure of justice. The court may not be unfair, but by virtue of the distance or such other factor, if either party is handicapped in putting its case properly and adequately, it may result in failure of justice. When a 60. Cantonment Boardvu. Church of North India, 2012 (12) SCC 573.

61. K.P.RangaRao v. KV. Venkatesham,2015 () RC.R. (Civil) 301. 62. Ledgard v. Bul, (1887) ILR 9 Al 191: (1884-85) 13 IA 134 (PC).

54

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Mulla The Key to Indian Practice

defendant has actively participated in the trial and had full opportunity of defence in all aspects, he cannot say that there was a failure of justice.

4.10.2 Waiver of Objection to Territorial or Pecuniary Jurisdiction If the defendant does not raise an objection as to the territorial or pecuniary jurisdiction, it is clear that judgment in such case would be valid. The general principle of waiver has now found a statutory recognition in S. 21 which clearly provides that failure to raise objection in the court of the first instance and at the earliest opportunity, shall prevent the defendant from raising such an objection at a

subsequent stage, and the judgment would not be vitiated on the ground of absence of territorial or pecuniary jurisdiction. S. 21 of the Code does not apply to High Court in exercise of its original civil jurisdiction. Incidentally, it may be pointed out that if the court does not possess jurisdiction as to subject matter, its judgment would be a nullity and of no legal effect whatsoever. In Hiralal Doshi v. Barot Ramanlal," Supreme Court has observed as under: A decree is said to be a nullity

if it is passed by a court having no inherent

jurisdiction. Merely because a court erroneously passes a decree or there is an error while passing the decree, the decree cannot be called a nullity. The decree to be called a nullity is to be understood in the sense that it is ultra vires the

powers of the court passing the decree and not merely an avoidable decree. Thus, when objection is in respect of jurisdiction as to subject matter and not in

respect of pecuniary or territorial jurisdiction, it goes to the root of the matter, and such objection cannot be waived. Consent and waiver cannot cure inherent lack of It is a jurisdiction. An order passed by a court having no jurisdiction is nullity. fundamental rule that consent cannot confer jurisdiction as to subject matter, but

the same rule will not apply to absence of territorial or pecuniary jurisdiction. In Hiralal v. Kalinath,

it has been observed as under:

It is well settled that the

objection as to local jurisdiction

stand on the same footing

as an objection to the competence of a court to try a

case.

court

Competence

of a

to

try a case goes to

of a court does not

the

very

root

of the

jurisdiction and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to local

jurisdiction

of a court can be

waived and this principle has been given a statutory recognition.

In Kiran Singh v. Chaman Paswa," it was held as under:

63. OriemtalBank ofCommercev. S.K. Agarua, 2008 (3) CHN 202: 2008 AIHC (NOC) 610 (Cal): AIR 2008

Cal 148: A.P.D. No. 179of 2001, Dt. 15.5.2008 (DB). 64. Hiralal Doshi v. Barot Ramanlal, (1993) SCC 458: AIR 1993 SC 1449. 65. Harshad Chiman Lal Modi v. DLF Universal Lta., AlR 2O05 SC 4446.

66. Hiralal v. Kalinath, AIR 1962 SC 199:(1962) 2 SCR 747. 67.

Kiran Singh v. Chaman Paswan, AIR 1954 SC 340: (1955) 1 SCR 117.

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55

Placeof Suing

The policy underlying Sections 21 and 99, CPC, and Section 11 of the Suits Valuation

Act is the same, namely, that when a case had been

court on the merits and judgment

tried by the

rendered, it should not be liable to be

reversed purely on technical grounds, unless it has resulted in failure of justice and the policy of the legislature has been to treat objections as to jurisdiction

both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there had been a prejudice on merits.

"Objection U/s 21(3) CPC in Execution The object behine

proceedings"

Section 21 (1) & (2) CPC is to curb

the practice of raising

objections to the territorial and pecuniary jurisdiction of the Court of first instance, at the appellate or revisional stages. Sub-section (3) has

further

expanded this

principle to the competence of Executing Court and no objection with reference to the local limits of its jurisdiction can be allowed by any Appellate or Revisional court unless such

objection

is taken in the

Executing

court at the earliest

possible

opportunity, and unless there has been a consequent failure of justice. Sub-section (3) has been added to give effect to the principle laid down by the Supreme Court in Hira Lal Patni v. Kali Nath, wherein it was held that "Objection as to territorial jurisdiction does not go to root of competence and a validity of decree cannot be challenged on that ground in execution proceedings."

4.11 OBJECTIONS AS TO OVER-VALUATION AND UNDER-VALUATION The second of the rwo principles referred to above relates to over-valuation and under-valuation of suits. The general rule is, that it is the plaintiff's valuation in his

plaint which fixes the jurisdiction not only of the court of first instance, but of the appellate court, and not the amount, which may be ultimately decreed by the court. Although it is the plaint value which fixes the jurisdiction, it does not follow that the plaintiff is at liberty to assign any value he likes to his suit and

thus,

be free

to

choose his own court for bringing his suit. If the defendant disputes the valuation, it is the duty of the court in which the suit is filed to inquire what the real value of the suit is. The rules for valuing suits are laid down in the Court Fees Act." If the court finds that the suit has been over-valued or undervalued by the plaintift, and that there has been a consequent change of forum, it should return the plaint to the plaintiff to present it to the proper court (0. VII, R. 10). If the suit has been undervalued but not so as to change the forum, the court should grant time to the plaintiff to correct the valuation and pay the extra court fees. If the valuation is corrected,

within the time fixed by the court, the court should proceed with the suit. Ifit is not corrected within the fixed period, it is the dury of the court to reject the plaint. Suppose now that a suit has been over-valued so that it is brought in a court of a

higher grade, or that is undervalued so that it is brought in a court of lower grade. Suppose, further, that the decree of the court is against the defendant, and that the 68. Hira Lal Patni v. Kali Nath, AIR 1962 SC 199. 69. The Court Fees Act, 1870.

Mulla The Key to Indian Practice

Chapter 4

defendant appeals from the decree. Can the appellate court set aside the decree as a mater of course? The answer is no, unless:

) the objection as to jurisdiction by reason of over-valuation or undervaluation was taken by the defendant in the court of first instance and before the settlement of issues; and (i) the over-valuation or undervaluation is found by the appellate court to have prejudicially affected the disposal of the suit on the merits. This is the effect of the provision of S. 11, Suits Valuation Act, 1887. These pro visions are similar to those contained in S. 21 of the Code. But once it is found that valuation is proper, the court is entitled to pass a decree for an amount even higher

than its pecuniary limits. Such decree is legal and free from vice. However, if there is any amendment proposed to be made in the plaint as a result of which, the

valuation will exceed the pecuniary limits, the court granting the amendment will

lose jurisdiction." Illustrations ()

A

sues

B

to

recover

possession

of

a

house,

valuing

his

claim

at

Rs 4500. The suit is filed in court X, which has no jurisdiction to try suits of a value exceeding Rs 5,000. The market value of the house is Rs 7,000, but B does not object to the jurisdiction of court X. If B appeals from the decree and objects to the jurisdiction of court X, the appellate court should not entertain the objection.

i)

i)

A sues B for accounts and values his claim below Rs 50,000. The suit is filed in the court of civil judge (junior division), but the amount found due on taking account exceeds Rs 50,000. In such case, the court decree because it is the plaintiff's valuation in his

has power to pass a plaint which fixed

jurisdiction, and not the amount which has been found court.

and decreed by the

A sues B to recover Rs 15,000. The suit is filed in the court of civil judge junior division). By a subsequent amendment, the claim is enhanced to Rs 55,000. The court will lose jurisdiction to try the suit once amendment is

granted.

"Forum Shopping" Forum Shopping is an unethical recourse resorted to by some unscrupulous litigants for getting their case heard in a court of law in order to get favourable order or judgment. The (mal)practice.

Courts have taken a very strong view

against this growing

In Chetak Construction Ltd. v. Om Prakash," the Apex Court observed that:

70. See Code of Civil Procedure, 1908, ss. 7, 8, 16, 17, 18, 19, 20, 21, 120; O. VII, Rr. 10-11. Note in

particular, the amendmentsmade in 1976 in ss. 20, 21, and O. VIl, Rr. 10-11. 71.

Chetak Construction Ltd. v. Om Prakash, 1998 (3) RCR (Civil) 644.

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57

Placeof Suing

"Indeed, no lawyer or litigant can be permitted to browbeat the court or malign the presiding officers with a view to get a favourable order. Judges shall

not be able to perform their duties frely and fairly if such activities of justice would become a casualty and

Rule of Law

would receive a set-back.

The

Judges are obliged to decide cases impartially and without any fear or favour. Lawyers and litigants cannot, be allowed to "terrorize" or "intimidate" judges with a view to "secure" orders which they want. This is basic and fundamental

and no civilized system of administration of justice can permit it. We certainly, cannot approve of any attempt on the part of any litigant to go "forum

shopping

A litigant cannot be permitted 'choice' of the forum' and every

attempt at "torum shopping" must be crushed with a heavy hand."

.

t.:

tir t..1

..

i:

.

5

CHAPTER

PARTIES AND CAUSE OF ACTION

5.1

PRELIMINARY

As discussed earlier,' the four ingredients of a suit are: (1) parties, (2) cause of action, (3) subject-matter, and (4) reliefs claimed by the plaintiff. Of these four, the last two do not require further comment, but the other two, namely, parties and cause of action require a fuller statement. These rwo essentials are so intimately connected with each other, that one cannot be dealt with without dealing with the other. In fact, the very expression cause of action' conjures up the notion of parties, i.e., some persons as plaintiffs having a cause of action against others as defendants.

5.2

TRANSACTIONS AS DISTINGUISHED FROM CAUSE OF ACTION

It is very important for the purpose of the present chapter to note the distinction between an act or a transaction

and a cause of action. A cause of action always

springs from an act or a transaction.

An act or a transaction

may give rise to one

cause of action or it may give rise to two or more causes of action. Where there are several causes of action, a separate suit may be brought in respect of each distinct cause of action, though they may arise out of the same transaction. In a suit, the plaintiff is bound to claim the entire relief. A suit has to be so framed as to afford

ground for final decisions on the subjects in dispute and to prevent further litigation concerning them. However, one cannot split a cause of action, and bring two or more suits in respect of the same cause of action as laid down in O. II, R. 2 of the Code, which centres around one and the samecause of action. The object of O. II, R. 2 of the code is two fold. First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent a plaintitt

1. Chapter 3, The Four Essentials of a Suit. 2. Kunjan Nair Sivaraman Nair v. Naraynan Nair, AIR 2004 SC 1761: (2004) 3 SCC 277.

from

Mulla The Key to Indian Practice

60

Chapter 5

splitting the claims and remedies based on the same cause of action. It does not bar a second suit based on a different and distinct cause of action. Order. I1, R. 2 insists upon

inclusion of the whole claim which the

plaintiff is

entitled to make in respect of a cause of action put in the suit. It directs securing exhaustion of relief in respect of a cause of action and not to the inclusion in one and same action of difterent causes of action, even though they may arise from same

transaction." A's cab comes into collision with B's van. The collision causes (i) damage to As cab and (iü) bodily injury to A. Here the same transaction, namely, collision, gives rise to two distinct causes of action, one, in respect of the damage to A's cab and the other, in respect of the injury to A's person. Here A may bring one suit against B in respect of both causes of action though he is not bound to do so. He may, if he likes, bring two separate suits against B, one for compensation for damage to his cab, and the other, for compensation for injury to his person. However, he cannot bring more than one suit in respect of either of these two causes of action. Thus, if he brings a suit for damages for injury caused to his arms and legs, he cannot bring another suit for damages for internal injury, though he may not have been aware, when he brought the first suit, of such injury. The leading case on the subject is Brunsden v. Humphrey.

This sub-rule deals

with framing of suit and says that the plaintiff must include the whole of the claim in respect of a particular cause of action and if he omits to sue or intentionally relinquishes any portion of the claim, he shall not afterwards sue in respect of such portion. The provision, like the principle of res judicata, is based on the salutory and cardinal principle that all disputes must be settled once and for all and no person ought to be vexed twice for one and the same cause, but he can omit or relinquish the portion of the claim in order to bring suit within the jurisdiction of a court. In the same way, if the plaintiff is entitled to pray for several reliefs, either concurrent or alternative, and if he omits to sue for all such reliefs, he cannot afterwards sue for such omitted reliefs, unless he has obtained leave of the court. It is important to notice that court can grant leave to the plaintiff in respect of relief, but not in respect of portion of the claim. This rule also applies to a defendant who claims a set off or counter claim. When defendant pleads O. II, R. 2, he must file the pleadings in the previous suit.° The plea can be established only on proof of the identity of the cause of action as well as the identity of the parties in two

suits.

3. Alka Gupta v. Narender Kumar Gupta, (2010) 10 SCC 141 (147). 4. S. Nazeer Ahmed v. State Bank of Mysore, AIR 2007 SC 989 : 2007 (2) Scale 349: (2007) 11 SCC 75. 5. Brunsden v. Humphrey, (1884) 14 QBD 141. 6. NVSriniwasa Murthy v. Mariyamma, AIR 2005 SC 2897: (2005) 5 SCC 548.

7. State of Maharashtra v. National Construction Company, Bombay, AlR 1996 SC 2367; Inacio Martins through LRs v. Narayan Hari Nayak, AIR 1993 SC 1756: (1993) 3 SCC 123. 8. BengalWaterproof Ltd v. BombayWaterproof Mjg. Co., AIR 1997 SC 1398 : (1997) 1 SCC 99. 9.

Gurinderpal v. Jogmitter Singh, (2004) 11 SCC 219.

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61

The plea of bar under O. I, R. 2 is a highly technical plea and must be taken

specifically. And if not taken, the court shall not entertain and decide the plea suo motu. For the plea of bar under O. II, R. 2 to be successful, the defendant has to establish that: () the previous and the second suit arise out of the same cause of

action, (i) the cause of action on which subsequent claim is founded had arisen to the claimant where the enforcement of the first claim has been sought and (ii) the earlier suit had been decided on merits." Raising of plea of bar of O. II, R. 2 in appeal for the first time is not permissible," and also cannot be permitted to be raised before the Supreme Court if not raised before the high court. " There is material difference between R. 2(2) and R. 2(3) of O. IIL.These rules will not apply ifcauses of action are distinct. " In Shanker Sitaram v. Balkrishna Sitaram," the plaintiff filed a suit for partition embracing the entire property, but abandoned certain claim for accounts. He subsequendy filed a suit to enforce that claim for accounts on the same cause of action. It was held that the suit was bad under O. II, R. 2. In the same way, if a person omits any portion of the claim in order to bring the suit within the pecuniary limits of any court, he cannot afterwards sue for such omitted portion. Suppose Rs. 3,50,000 has to be recovered from a person and only a suit for Rs. 3,00,000 is filed

in the court of the civil judge, omitting to sue for Rs. 50,000 in order to bringg the suit within pecuniary limits. The omitted portion cannot be sued for afterwards. To give another example: A has let out his house to B at a yearly rent of Rs. 60,000 and, the rent is due and unpaid for the years 2000, 2001 and 2002, but

if A sues B only for the rent due for the 2002, he cannot afterwards sue B for rent, either for the year 2000 or 2001. Similarly, where a plaintiff files a suit for declaration that he continues to be in service but does not claim arrears of salary and other consequential reliefs, he cannot bring a second suit for reliefs, not claimed in the previous suit." Such a suit would be clearly barred under O. II, R. 2.

Order I, R. 2 also applies where the plaintiff is entitled to several reliefs in respect to the same cause of action."" He must seek all such reliefs and if he omits to sue in respect of any such reliefs, he cannot afterwards sue for such reliefs. In the suit for specific performance, one must also seek relief of damages/ compensation in the alternative. But in this part of the rule, it is provided that the plaintiff can omit to sue in respect of a particular relief with the leave of the court. The leave of the court is the sine qua non for entertaining a fresh suit for the relief omitted to be claimed.

10.

Dalip Singh v. Mehar Singh, (2004) 7 SCC 650.

11. Union of India v. HK Dhruv, (2005) 10 SCC 218. 12. S Santokh Singh v. Gurbax Singh, AIR 2003 NOC 6 (Del). 13. Dalip Singh v. Mehar Singh, (2004) 7 SCC 650.

14. nion of India v. HK Dhru»,(2005) 10SCC 218. 15. Shanker Sitaram v. Balkrishna Sitaram, AIR 1954 SC 352. 16. Stateof MadhyaPradeshv. Mangilal Sharma, AIR 1998 SC 743: (1998)2 SCC 510. 17.

Gurbux Singh v. Bhooralal, AIR 1964 SC 1810.

62

Mulla The Key to Indian Practice

Chapter 5

The suit filed for omitted relief after the question of leave and limitation attaining finality in earlier litigation could not be held barred by limitation." If leave is granted, he can afterwards sue in respect of such omitted relief. Such leave may be granted at any stage of the suit, and has to be obtained in the earlier suit and not in the subsequent suit." There are divergent views as to whether this rule applies to

concurrent reliefs only and not to alternative reliefs. It is advisable to include alternative reliefs also, if it is not possible to obtain leave of court for such omission. But without leave of the court, reliefs must be omitted because reliefs are in the altenative. Before instituting a suit for specific performance i.e. special civil suit, prior leave is required to be obtained under O. I1, R. 2(3) of the Code." What will happen if rwo suits are simultaneously filed? Will the O. I1, R. 2 apply in such case? Different high courts have responded differently. According to the Bombay High Court, such suits may be consolidated. According to the Allahabad, Madhya Pradesh and Rangoon High Courts, the later suit must be dismissed. The plaintiffs must be given an option to elect the suit, according to Madras High Court. We must await a definite pronouncement of the Supreme Court on such a point. Till a definite pronouncement is made by the Supreme Court, the proper procedure must be followed, which is to consolidate such suits.

The underlying object of O. I, R. 2 is to prevent further litigation and to prevent defendant being vexed rwice in respect of the same cause of action. If the first suit is pending, the second suit can be consolidated with the first and both may be heard together. The word afterwards suggests that the prohibition contained in the rule is intended to apply when the suit is already decided.

Order II, R 2 will not apply where there are different causes of action arising from the same transaction. Suppose A files a suit for recovery on the basis of a promissory note and the suit is filed on the ground that there were material alternations in the

note, As subsequent suit on original consideration will not be barred. In Arjunlal Gupta v. Mriganka Mohan," the first suit ended in a compromise and a consent decree was drawn up. However, the terms of the consent decree could not be

observed. The second suit was brought, alleging failure to carry out the terms of the decree and such allegations were part of the cause of action, which was different from the cause of action in the first suit. Hence, it was held that the consequent suit was not barred. However, the bar of O. II, R. 2 of the Code will not apply, where a relief for which, a subsequent suit is filed was not in existence when the previous suit was brought or where the cause of action on the basis of which, the previous suit was brought does not form the basis of the subsequent suit, or where in the earlier suit, the plaintiff could not have claimed the relief, which he seeks in the subsequent

18. Hindustan Motors Ld. v. D.R Motors, ILR (2010) MP 215. 19. SNP ShippingServicesPut Ld v. World Tanker Carrier Corp., AIR 2000 Bom 34. 20. Vimal Builders v. Ketan K. Thakkar, 2010 (1) Bom CR 398 (407-409) (DB). 21. Arjunlal Gupta v. Mriganka Mohan, AIR 1975 SC 207: (1974) 2 SCC 586.

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Parties and Cause of Action

63

suit. The bar of O. II, R. 2, will also not apply where the court permitted withdrawal of the carlier suit with liberty to file fresh suit on the same cause of action." The test for finding out whether a subsequent suit shall be barred because of the previous suit is whether the claim in the second suit is in fact, founded on a cause of action

which was the

foundation

of the former suit. IF the answer is in

affirmative, the bar of Order II R.2 would apply. But if it is in negative, it would not be attracted."

In Mohd. Khalil v. Mahbub ali" the Privy Council laid down the following principles governing bar to a subsequent suit under O.II R.2 CPC, 1908: () The correct test in cases falling under O.lI R.2 is "whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation of the former suit."

i)

If the evidence to support the two claims is different, then the cause of action are also different.

()

The causes of action in the two suits may be considered to be the same if in substance they are identical.

Further, the previous barring of the splitting of claims applies only to suits and not to appeals, insolvency proceedings, execution proceedings and writ petitions. However, arbitration proceedings have been held to be within the ambit of bar under O. II, R. 2 of the Code."

5.3 JOINDER OF PARTIES An act may be done by a single individual and it may affect one person only, say, if A assaults B, or it may affect two or more persons, when A assaults B and C

simultaneously. If AassaultsB and Con differentoccasions,and not simultaneously, it is a case, not of a single act or transaction, but of two acts or transactions.

An act, again, may be done by two or more individuals, and it may affect only one person, as where A and B simultaneously assault C, or it may affect two or more persons as where A and B simultaneously assault C and D. Where assault is simultaneous, it is one act. Where it is made on difterent occasions, it is a case of several acts.

Where an act is

done by a single

individual,

and it affects only one

individual,

there is no question of joinder of parties. The question of joinder of parties arises only where an act or transactions proceeds from two or more persons, or when it affects two or more persons. Thus if A and B assault C, the question arises whether C

22. Inacio Martins through LRs v. Narayan Hari Nair, AIR 1993 SC 1756:(1993) 3 SCC 123. 23. See Raujibhai Mathurbhai Solanki v Bijabhai Devjibhai Prajapati, AIR 2004 Guj 102. 24. Kewal Singh v. Lajwanti, (1980) 1 SCC 290

.Mohd. 26.

Khalil v. Mahbub ali, AIR 1949 PC78

K.V. George v. Secretary to Government, Water and Pouwer Department, AIR 1990 SC 53: (1989) 4

SCC 595.

Mulla The Key to Indian Practice

64

can join A and B as defendants in one suit, or whether he should

Chapter 5 bring a separate

suit against either of them. Similarly, if A assaults B and C, the question arises whether B and C can join as plaintiffs in one suit against A, or whether they should each bring a suit against A. The answer to the above questions is given in the rules below. There is one set of rules for the joinder of plaintiffs and another set of rules

for the joinder ofdefendants.

5.3.1 Joinder of Plaintiffs All persons may be joined in one suit as plaintiffs:

(i) where the right to relief alleged to exist in each plaintiff arises out of the same act or transaction; and

(i) where, if suchpersons brought separatesuits, any common question of law or fact would arise (O. I, R. 1).

Both the conditions are cumulative and not alternative and both must be fulfilled." all the questions arising in the case should be However, it is not necessary that would be sutficient if one of the questions is common to all the parties and it common to them." Although all the persons coming under this rule may join as joinder plaintiffs, the court has the power to order separate trials when any such 9 embarrasesthe trial. Illustrations (a) A and B each buy a certain number of the debentures of a company on the faith of certain statements made in a prospectus issued by the directors of the company. A and B may join as plaintiffs in one suit for damages against the directors, because the publications and the beliet induced are common

questions of facts arising out of the same transaction namely, the issue of the prospectus. (b)

An altercation takes place between A on the one hand and B and his wife on the other. A assaults B and his wife simultaneously. B and his wife may join as plaintiffs in one suit for damages against A.

()

A agrees to sell and deliver to B, 500 maunds of sugar at the rate of Rs. 3 per maund on 4 May 1914. On the same day, he agrees to sell and deliver to Ca like quantity of sugar at the same rate. B and C cannot join as plaintiffs in one suit against A because the transactions are different.

Note It is immaterial

that the plaintiffs

in illusts (a) and (6) each have separate

causes of action against the defendant. It is sufficient if the transaction is the same. The test is not the identity of the cause of action, but of the act or transaction. Under the Code of 1882, the test was the identity of the cause of action. Therefore

27. SantSingh v. Des Ram, AIR 1974 P&H 276. 28. SitakRamv. Rajender Chandra, AIR1956 Assam 7. 29. 30.

Code of Civil Procedure, 1908, O. 1, R. 2. Drincgubier v. Wood, (1889) 1 Ch 393.

Parties andCauseof Action

Chapter

65

A and B in illust (a) could not join as plaintiffs in one suit. It was necessary for each of them to bring a separate suit. The same remarks apply to illust (6).

5.3.2 Joinder of Defendants All persons may be joined in one suit as defendants:

)where any right to relief alleged to exist against them arises out of the same act or transaction; and (1) where, if separate suits were brought against such persons, any common question of law or fact would arise (O. I, R. 3). Both the conditions are cumulative and not alternative and both must be fulfilled." Like in a case of joinder of plaintiffs, it is enough if there is one question common to all the defendants which is of sufficient importance. It is also not necessary that all the defendants should be interested in all the reliefs claimed or that their liability should be the same;" the rule is only permissive and not mandatory. Similarly, the court may order separate trials where any such joinder embarrasses or delays the

trial." The primary object of Rule 1 and 3 of Order I is to

avoid multiplicity of suits and

unnecessary expenses.

Illustrations (a) A, riding in an omnibus belonging to B, is injured through a collision berween the omnibus and a cart belonging to C. A may join B and C as defendant in one suit of damages for personal injury caused by their negligence or the negligence of either of them, because the case involves common

guestions

of fact arising out of the same transaction,

namely,

collision.36 (b)

An altercation takes place between A on the one hand and B and B's son on

the other. B and B'i son simultaneously assault A. A may join B and B's son as defendant in one suit of damages.

(c) A, B and C each enters into an agreement with D to supply coal to D for his factory. A, B and C fail to deliver the coal. D cannot join A, B and C as defendant in one suit for damages, for there are three distinct agreements and therefore, three difterent transactions,

Note: It is immaterial that the plaintiffs in the aforesaid illustrations have separate cause of action against each of the defendants. It is sufficient that the transaction is

the same. The test is not the identity of cause of action, but of the act or transaction.

31. Sant Singh v. Des Ram, AIR 1974 P&H 276. 32. SeeSudershan Goel v. Neu Bank of ndia, AIR 1984 P&CH 233. 33. Amar Singh v. Jagdish, AIR 1976 P&cH 276.

34. Code of Civil Procedure, 1908, 0. 1, R. SA 3. Iswar Bhai v. Harihar Behera, (1999) 3 SCC 457 36.

Bullock v. London General Omnibus Co., (1907) KB 264.

Mulla The Key to Indian Practice

66

Chapter 5

It is important to note such right existing in favour of the plaintifs or against the defendants need not be joint. It may be joint, several or even in the alternative. When there is a promissory note payable to A and B jointly, they may sue together and their interests can be said to be joint but where C has assaulted A y

,t

may bring a single suit though their interest is several and not joint. Ifa Hindu dies leaving a widow, an adopted son and a separate brother and disputes arise berween the widow and the adopted son by brother, such a suit can still be maintained because the claims of the widow and the son can be treated in the alternative. If

adoption is invalid, the properry may go to the widow, and if valid, to the son. This also applies to suits against the defendants, against whom the plaintift may claim jointly, severally or in the alternative.

5.4 PROCEDURE IN CASE OF MIsJOINDER OF PARTIESs If two or more persons are joined as plaintiffs in one suit, in contravention of the rule given above as to joinder of plaintiffs, the case is one of misjoinder of plaintifs. Similarly, if rwo or more persons are joined as defendants in one suit, in contravention of the provisions of the rule given above as to joinder of defendants, the case is one of the misjoinder of defendants. The objection on the ground of misjoinder of parties should be taken at the earliest opportunity at the time issues

were raised or before the settlement of issues. However, if ground for objection has arisen subsequently, it is permissible to raise such objection after settlement ofissues. It is the duty of the party to raise the objection in the written statement at the earliest point of time and objection not so taken will be deemed to have been waived (O. 1, R. 13). Where such objection is taken, and the court finds that it is valid, the suit shall not be dismissed (O. I, R. 9). The non-impleadment of a necessary party is fatal even in a writ petition. If a necessary party is not impleaded, no order to the detriment of a person can be passed without hearing him." The plaint may be amended by striking out the names of such persons as have been improperly joined as parties (O. I, R. 10(2)). A misjoinder of parties, either the plaintiffs or the defendants, is not fatal to the suit. It is only a remedial defect even if the court has not deleted the parties or any of them and even if such defect is not cured, the decree or order would be valid and would not be liable to be reserved or

substantially varied. The objection as to the misjoinder or

non-joinder of parties cannot be taken for

che first time in appeal or revision. However, the things are different, where it is a case of non-joinder of parties. For the purposes

of

non-joinder

of parties, a

distinction

has been made

necessary party and a proper party."

37. SandhyaraniSahoov. DJs Anr, (2009) 107 CLT 160 (161) (DB).

38. Manoharamma HI Put Ld v. ArunaHotelsLid., AlR 2004 Mad 344. 39. See ch. 3 for a necessary party and a proper party.

between a

Chapter 5

Parties and Causeof

Action

67

The provision under 0. I, R. 9 of the code lays down that no suit shall be defeated by reason of misjoinder or non joinder 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

partiesactuallybefore it." Under O. 1, R. 9 of the Code, while non-joinder ofa proper party is not fatal to the suit, non-joinder of a necessary party does prove fatal of the suit, if the plaint is not amended to implead a necessary party.

5.5 JOINDER OF CAUsES OF ACTION As regards joinder of causes of action, there are two general rules which apply to all

cases,irrespective of the number of plaintiffs or the number ofdefendants:

) In a suit for therecoveryofimmovableproperty, a plaintif is not entitled, without the leave of the court, to join any claim except: (a) claims for mesne profits or arrears of rent; (6) claims for damages for breach of any contract under which the propery is held; and (c) claims in which the relief sought is based on the same cause of action (O. II, R. 4). The provisions of O. l, R. 4 of the Code are aimed at avoiding the claim to property, to become complicated, by the joinder of other causes of action. (ii) A agrees to sell a house with all furniture in it to B. A fails to deliver possession either of the house or of the furniture to B. B may sue A for possession of the house and join in that suit (a), a money-claim for mesne profits realised by A, subsequent to the date on which A ought to have delivered possession of the house to B; (6) a money-claim for any damages that may have been sustained by B by reason of the breach of contract on As part; and (c) a claim for the delivery of the furniture but B cannot join

any other claim with the suit. (ii) A sells and delivers certain goods to B. A dies leaving a will, of which C is the executor. C sells and delivers to B some goods belonging to him. C cannot, in the same suit, claim from B, the price of goods sold by his tester A, and the price of goods sold by him. Similarly, B also sells some goods to C for C's purposes. B cannot, in the same suit claim from C the price of goods sold to A and the price of goods sold to C. The general rule is that no claim by or against an executor, administrator, or heir as such shall be joined with claims by or against him personally (O. II, R. 5). We now proceed to deal with the following three cases.

) One plaintiff, onedefendantandseveraclausesto action. (i) Two or more plaintiffs, one defendant andseveralcauses of acion.

ii)

One plaintiff, rwo or moredefendants, andseveraclauses of action.

The rules given below are to be read subject to the rwo general rules given above.

40.

Somnah Banerjee v. Arati Rani Chakraborry, AIR 2010 Gau 187 (190).

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Mulla The Key to Indian Practice

5.5.1 One Plaintiff, One Defendant, and Several

Chapter 5

Causes of Action

Where there is only one plaintiff and only one defendant, the plaintiff is at liberty to unite several causes of action in the same suit against the defendant (O. I1, R. 3). If the causes of action are so disconnected that they cannot be conveniently tried together, the court may order separate trials (O. I1, R. 6). Thus, if A sues B for damages of breach of a dozen contracts berween him and B, the court may, in a

proper case, order separate trials of separatesets of contracts. In Saccharin Corpn Ltd v. Wild," the plaintiff sought to unite 23 causes of action against the defendant in the same suit. It was considered an outrageous extension of latitude and almost an abuse of process ot the court.

Though

it is not expressly stated in the

rule, it is

implicit that two or more causes of action can be united, provided they are intimately connected with each other or when one was subordinate or collateral to

the other.

5.5.2 Joinder of Plaintiffs and Causes of Action Where two or more persons are jointly entitled to the relief claimed, as where a promissory note is passed to A, B and C jointly, there is but one cause of action. In

all other cases, where there are two or more plaintifts, it will be seen that their causes of action are separate. In these cases, it is enough that the causes of action arise out of the same transaction, and that there are common questions of law or

fact. It is further necessary that they should be jointly interested in the several causes of action against the defendant (O. II, R. 3). If the plaintiffs are not so interested, the case is one of misjoinder of plaintiffs and causes of action. It is not permissible to join together persons having claims against different persons, and bring a single suit. Different persons claiming under different pro-notes cannot join together and file a single suit." It will be seen, however, that in almost every case, since the passing of the new rules, in which the transaction was the same and

there were common question of law or fact, the plaintiffs, it was held, had a joint interest in the causes of action, and it was only when there were two or more distinct acts or transactions, that the suit was held to be bad for misjoinder of plaintiffs and causes of action. Where despite objection as to the misjoinder of plaintiffs and causes of action, a decree is passed for the plaintifs, and the appellate court if finds that there has been such a misjoinder, it shall not interfere with the decree, unless the misjoinder has affected the merits of the case (S. 99).

Illustrations (a)A enters into two agreements with B and C jointly for the sale of goods and commits a breach. B and C may file a suit claiming damages in respect of both the agreements. Here, in both causes of action, B and C are jointly

interested and they arise out of same transaction. 41.

Saccharin Corpn Ltd v. Wild, (1903) 1 Ch 410.

42.

Kota Sreevalli v. Chinni Seetharamaiah, AIR 2005 AP 521.

Chapter5

69

Parties andCauseof Action

(b) X sells to

Y rwo plos

of land.

A claims one plot by adverse

possession, while B claims another plot by adverse possession. A and B cannot file a suit as co-plaintiffs because they are not jointly interested in the

plots. Their respective claims of adversepossession are in respect of distinct plots, and A does not claim interest in the plot adversely claimed by B and viceversa.

(c) Where A enters into separate agreements with B, C, D, E and E, and commits breach of such agreements, they cannot join as co-plaintiffs in a suit because they are not jointly interested in separatecauses of action. (d)

A, shareholder in a company, sues B, C, D, the directors, to recover damages

on his own behalf for fraudulentdy inducing him to purchase shares by declaring an illegal dividend; and he joins a claim in the same suit on behalf of himself and all other shareholders for repayment by the directors to the company of the amount of the divided illegally paid out by them. The suit is bad for misjoinder of plaintiffs and causes of action, for though the transaction is the same in a sense, namely, declaration of dividend, the plaintiffs are not all jointly interested in them. A' grievance, that he purchased the shares owing to the declaration of the dividend (which showed that the company was a flourishing one) is peculiar to him only. It is better to say in this case that there are two acts or

transactions,

namely,

the

declaration of dividend which affected A, with the payment of dividend, which affected all theshareholders.

5.5.3 Joinder of Defendants and Causes of Action Where there are two or more defendants and rwo or more causes of action, the plaintift may unite several causes of action in the same suit against the same

defendants jointly (O. I, R. 3). It is not enough that thecauses of action arise out of the same transaction, and that there are common questions of law or fact. It is further necessary that the defendants should be jointly interested in the main questions raised by the litigation.

If this is not so, the case is misjoinder of defendants

and causes of action. It will be seen, however, that in almost every case since the passing of the new rules, in which the transaction was the same, and there were common questions of law or fact, the defendants, it was held, had a joint interest in the main questions raised by the litigation, and it was only when there were two or more distinct acts or transactions that the suit was held to be bad for misjoinder of defendants and causes of action. In the case given in illust (c) below," a great effort

was made on behalf of the defendants out of the same transaction, and defendants had no joint interest in However, the efforts failed, and the

to show that though the causes of action arose there were common questions of fact, the the main questions raised by the litigation. court of appeal held that the defendants were

properly joined as parties. That case shows to what length the Court of Appeal in England is prepared to go under the corresponding English Rules. The rule

comprised in O. I and 0. II of the first schedule of the Code have been taken from the English Rules, and there is no doubt that the courts in India will follow the 43. Stroundv.Lawson,(1898) 2 QB 44. 44. Compania Sansinena v. Houlder Brothers, (1910) 2 KB 354.

70

Mulla The Key to Indian Practice

Chapter 5

decision in that case. It is advisable to read the judgments in that case, as also in

Marks and Co v. KnighrSteamship Co." They throw relating to joinder of parties.

flood of light on the rules

Illustrations (a) A and B enter into two agreements with C for the sale of goods and breach,

for

which

C

may

bring

a

suit

against

A

and

co-defendants, claiming damages in respect of both the agreements. both causes, A and B are

jointly

liable and they arise out

commit B

as

Here in

of the same

transaction. (b) A and B enter into separate agreements with C and commit breach. Here, C cannot file a suit joining A and B as co-defendants because they are not jointly liable or answerable. A is not liable for breach committed by B and viceversa. (c) A is the exporter of frozen meat, B is the owner of a line of steamers. By a contract between A and B, B agrees to carry frozen meat from Argentine to Europe in steamers belonging to him or in other suitable steamers to be procured by B. B procures a steamer called the Devon belonging to C, and it is agreed berween A and B as regards a particular shipment of meat, that it

should be made in the Devon. Meat is accordingly shipped in the Devon, and the master of the Devon signs the bill of lading in respect of it and hands it to A. The Devon turns out to be unseaworthy, and the meat is damaged. A sues B and C, claiming damages against B on the terms of the contract berween them, and against C upon the bill of lading. It is an implied condition of a bill of lading that the ship is seaworthy. The suit is not bad for misjoinder, for the causes of a bill of lading that the ship is seaworthy. The suit is not bad for misjoinder, for the causes of action arise out of the same transaction, namely,

the alleged

unseaworthiness

of the Devon;

there is a

common

question of fact, namely whether the ship was unseaworthy; and the causes of action are not of such a character that they cannot be combined together." (d) A delivers cotton to B, C and D under separate contracts to be ginned in their respective factories. B C and D fail to gin the cotton, A sues B, C and D, for damages for breach of the contracts. The suit is bad for misjoinder of defendants and it is also bad for misjoinder of defendants and cause of action. Here, there are three distinct agreements, i.e., three distinct transactions, each giving rise to a distinct cause of action,

one against B,

another against Cand the third against D.

5.5.4 Joinder of Plaintiffs, Defendants and the Causes of Action Where there are two or more plaintifs, rwo or more defendants and severalcauses of action, the plaintiffs may unite the cause of action against the defendants in the same suit only when all the plaintiffs and all the defendants are jointly interested in all, the causes of action. However, if neither the plaintiffs nor the defendants are jointly interested in the causes of action, the suit will be bad on rwo counts-for

45. 46.

Marks and Co v. Kight Steamship Co., (1910) KB 1021. Compania Sansinena v. Houlder Bros., (1910) 2 KB 354.

PartiesandCauseof

Chapter 5

71

Action

misjoinder of plaintiffs and causes of action; and misjoinder of defendants and causes of action.""

5.6

PROCEDURE

IN

CASE

OF

MISJOINDER

OF

PARTIES

AND

CAUSE OF ACTION The objection as to misjoinder of parties and causes of action should be taken at the earliest possible opportunity, otherwise, it would be deemed to have been waived (O. I1, R. 7). In all cases where issues are settled, objection must be raised before the settlement of issues. However, it can be raised thereafter, if it can be shown that grounds tor objection arose subsequently. Where such objection is taken, and the court finds that it is valid, the court may allow the plaintiffs, where the case is one of

misjoinder of plaintiffs and causes of action, to elect which of them should proceed on the plaint already filed, and the plaint may then be amended by striking out the names of the other plaintiffs and all references to the claims made by them. Thus, in the case given in the illust. (d) under the head Joinder of Plaintiffs and Causes of Action, A may be allowed to elect to proceed with his claim for damages, in which case, all references to the claim made by A and the other shareholders for a refund of the dividend

should be struck out and a separate suit may be brought in respect

thereof. Where the case is one of misjoinder of defendants and causes of action, the court may allow A, in illust. (d) under the head Joinder of Defendants and Causes

of Action' to elect to proceedagainst any one of the threedefendantsB, Cand D. If A elects to proceed against B, the names of C and D should be struck out from the title of the suit as well as from the body of the plaint, as also all reference to the agreements with Cand D (O. VI, Rr. 17, 18).

5.7 NON-JOINDER OF PARTIES Persons, who are necessary parties to a suit should all be joined as parties, otherwise

it is a case of non-joinder of parties. Necessary parties are the is essential and in whose absence, no effective decree can be the partics who ought to have been joined' within O. 1, R. Civil Procedure Code gives a wider discretion to the Court defect of a party

parties whose presence passed at all. They are 10(2).** 'Rule 10(2) of to meet every case or

and to proceed with a person who is a either necessary party or a

proper pary whose presence in the Court is essential for etfective determination on the issues involved in the suit. Thus, if A passes a promissory note, jointly to B, C, and D, all three must join as plaintiffs in one suit against A." Similarly, in a suit for a partition of joint family property, all the members of the joint family should be joined as parties to the suit. On the same principle, all the members of a partnership are necessary parties to a suit for partnership accounts. If any of the persons interested refused to join as a plaintift, he should be joined

as a defendant,

47. Madan Lal Raja Ram u. Munshi Daru, AIR 1956 Pepsu 80. 48. Kasturi v. lyamperumal, AIR 2005 SC 2813: (2005) 6 SCC 733. 49. ThomsonPress (lndia) Lud, v. Nanak Builders Investors P. Lid, 2013 (5) 50. Indian Contract Act, 1872, s. 45.

SCC 397

for no

72

Mulla The Key to Indian Practice

person can be added as a

plaintif,

without

his consent

person, who is a necessary party to a suit has not been

Chapter 5 [O. 1, R.

10(3)].

Where a

joined as a party, leave to

amend the plaint may be applied for, and such leave will, as a rule, be granted. Such

leave will not be granted, if on the date of the application, the suit

in respect of that

person is barred by limitation." A, B and C are members of a partnership. The partnership is dissolved on 1 January 1910. A sues B in December 1912 for partnership accounts, but omits to join C as a defendant. B contends that C is a necessary party to the suit, and that the suit cannot be proceeded with, in his absence. Thereupon, A applies in February 1913 for leave to add C as a party. The 1913, the suit as respects C is barred by application must be refused, for in February limitation, and the suit must be dismissed. A suit for an account of a dissolved

partnership should be brought within three years from the date of

dissolution."A

could have joined Cas a defendant at any time up to 1 January 1913. He cannot do

so after that date. It is highly damaging to omit to join parties to if they are necessary parties thereto.

a suit, particularly

5.7.1 Effect of Non-joinder of a Necessary Party If a necessary party is not joined, its absence shall be fatal to the liable to be dismissed. Its defect cannot be cured in any manner. in absence of a necessary party will be nullity" or null and void,

suit and it will be The decree passed being violative of principles of natural justice. In the case ofnecessaryparties, the courts cannot decide the suit at all in their absence." Even in a case where a necessary pary is not joined, the court cannot straight away dismiss the suit and opportunity must be given to the plaintiff to amend the plaint by adding parties necessary for effective adjudication."

If the plaintiff does not do so, even after being required to add anecessary party, the suit shall be dismissed. The plaintiff will not be allowed to rectify the error in an appeal from the decree in a suit, where there was a case of non-joinder

of necessary

party and where objection was taken in the suit." The question

whether any person is a necessary party has to be answered in the

background of facts and circumstances of each case. There is no hard and fast rule to answer this question. No guidance is available from the Code as to the persons who ought to have been joined in a suit, but the underlying principle from the decided cases show that those persons are considered necessary parties, without whom no effective decree can be passed at all, and who are directly and legally interested in the dispute involved". A person is not anecessary party, if an effective decree an be granted in its absence or who is not directly interested in the issues but only

S1. Limitation Act, 1963, s. 21. 52. Limitation Act, 1963, Art. 5. 53. Khetrabasi Biswal v. Ajaya Kumar Bansal, (2004) 1 SCC 317. 54. Profula Chorone v. Satya Chorone, AIR 1979 SC 1682. 55. AIR 1979 Tri 80. Naba Kumar v. Radha Shyam, AIR 1931 PC 229. 57. Kanakarathanammul v. Logananatha, AIR 1965 SC 271.

S8. Kasturi v, byamperuma, AIR 2005 SC 2813. 59. HBL Ltd v. Union of India, (2001) 7 AD Del 1060.

indirectly

73

Parties andCauseof Action

Chapter 5 affected.

"If a special statute makes a person a necessary

pary

to the

proceedings and also provides that non-joinder thereof will result in dismissal of petition,

the court

the

R.10 as to avoid the

cannot use the curative powers of O.I

consequences of non-joinderot such party. 60 In certain cases, there are enacted rules to determine necessity of a party, for eg, 0. XXXI provides that in a suit against a trust, all trustees ought to be joined as defendants. Here, it will not be necessary to consider whether effective decree can be passed in absence of all the trustees, because rules require that all the trustees must be joined. Therefore, where there are statutory provisions regulating the constitution of the suit and parties to be joined, the answer is provided by statute itself and all such parties ought to be joined, unless provision is construed to be directory.

5.7.2 Effect of Non-joinder of a Proper Party The consequences of of a necessary party. court will decide the court shall decide the

omission to join a proper party are not the same as in the case If a proper party is not joined, the suit will not fail, but the suit as it stands and its outcome shall not bind the party. The matters in controversy on the basis of rights and liabilities of

parties actually before it but the court cannot determine rights or liabilities or parties in their absence and, therefore, its decree, as a general rule, shall not bind persons

who were not parties betore it.

5.7.2.1 Who is a Proper Party? A person whose presence may be necessary in order to enable the court to adjudicate effectively and completely all questions involved in the suit, is a proper party. In cases of eviction on the ground of sub-letting or unauthorized transfer, sub-tenant or transferees are proper parties if not necessaryparties. The presence of such a party is a matter of convenience for the court. It will depend upon the facts and circumstances of each case. It is a matter of discretion and the court will decide whether presence of a party 1s so necessary or not.

In Razia Begum v. Sahebzadi Anuwar Begum," the Supreme Court considered the power of court to add parties. Justice Fathima Beevi observed as under: Rule 10(2) gives the court a wide discretion to meet every case of detect of

parties, and is not affected by the inaction of the

plaintiff to bring the

necessary parties on record. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but

whose presence is necessary for a complete and final

decision on the question involved in the proceeding.

60. Mohan Raj v. Surender Kumar, AIR 1969 SC 677. 61. Abdul Kareem v. Hashim, 2010 (3) KLT 667: 2010 (2) Rent CR 647 (DB). 62. Racia Begum v. Sahebzadi Anwar Begum, AIR 1958 SC 886.

74

Mulla The Key to Indian Practice

Chapter 5

The addition of parties is a question of judicial discretion, which has to be exercised 63 in view of all the facts and circumstances of a particular case. The power of the court is not restricted to cases where either party makes an

application for addition of parties. It can be exercised suo motu by the

court if it

appears that there is a necessity to join any person as necessary or proper

party. In a

suit for specitic pertormance, a stranger to the contract is not a proper party.

4

.9 L -4

-

.

63. RameshH Kundanmalv. Municipal Corpn of GreaterBombay, (1992) 2 SCC 524. 64. Rasiklal v. Natwarlal, AIR 1975 Guj 178a: (1975) 16 GLR 533; Panne Khushali u. Jervanlal,

MP 148. Se the Code of Civil Procedure, 1908, 0. 1, 0. I, Rr. 3, 4, 5; O. VI, Rr. 17, 18.

AIR 1976

CHAPTER

6

STEPS INA SUIT

6.1 INSTITUTION OF A SUIT [ORDER IV, RULE 2 Every suit is to be instituted by presenting a plaint to the court or to such ofticer as

it appoints in that behalf (O. IV, R. 2). The plaint must be presented in duplicate, and must comply with the general rules as to pleadings' and with the provisions of the Code dealing with the plaints," to the extent they are applicable. Unless these requirements are fulfilled, the plaint cannot be deemed to have been duly instituted. Usually, the plaint must be presented on a working day and during office hours, however, a judge may accept a plaint at his residence, even after the

The day of institution

office hours.

of proceedings shal be the day of filing of claim, in

accordance with the procedure prescribed, betore the authority empowered to receive it, and not the day when the court takes up the plaint for consideration, and applies its mind to the merits of the matter. A plaint may be presented personally by the plaintiff or by a person duly authorised by him or by his pleader. 'As per the provisions of Order III Rule 4, once the counsel gets power of attorney/authorization by his client to appear in a matter, he gets a right to represent his client in he Court and conduct the case." Presentation

Similarly,

by a person

who had no power of attorney is a mere

omission to sign and verify a plaint

irregularity.

are mistakes which can be rectified

subsequendy.' Further, where the plaint filed is not accompanied by supporting affidavit as required by the provisions of O. VI, there would be no due institution of the plaint. The defect can be removed by filing the affidavit. However, the rectification would not relate back to the when, in view of deeming clause, there would be no valid institution of the suit." Further, the plaintiff must enter in a list, all the documents on which he relies in the suit and which are in his possession or power and produce the list in court, at 1. Code of Civil Procedure, 1908, O. VI.

2. 1bia., 0. VIl. 3. Secretaryto the Governmentof Orissa v.SarbeswarRout, AIR 1989 SC 2259:(1989) 4 SCC 578. 4. 5. 6.

Y. Seebachen v. Superintending Engineer, WRO/PWD 2015 (1) R.C.R.(Civil) 89 Bal Mukund Prasad Gupta v. Mathura Prasad, AIR 2002 All 363. Bhakti Hari Nayak v. Vidyawati Gupta, AIR 2005 Cal 145.

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Chapter 6

the time of presentation of the plaint. At the same time, the plaintiff must deliver the documents and a copy of the documents to be filed with the plaint. Where the plaintiff relies on a document which is not in his possession and power, he must state in whose possession or power it is, wherever possible.° A document which ought to be produced in the court by the plaintiff at the time of presentation

of the plaint, or to be entered in the list and annexed with the plaint, but which is not produced or entered accordingly will not be received in evidence on his behalf at the hearing of the suit without the leave of the court. However, these provisions are not applicable to documents produced for the examination of plaintiff's witnesses or handed over to a witness to refresh his

memory."

Where the plaint is admitted and the court orders for service of summons on the defendant(s) which has to be in the manner as provided under O. V of the Code, it

will direct the plaintiff to present as many copies of the plaint alongwith copies of all documents on which plaintiff relies as there are defendant(s), within seven days of the order along with requisite court fee for the service of summons on the

defendant(s)," as non-compliance of O.VII R.9 will result in rejection of plaint. The court, in which a plaint is presented may accept the

plaint,

or reject the

plaint, or it may return it to the plaintiff. The plaint shall be rejected in the following cases: (a) where it does not disclose a cause of action;

(b) where the suit appears to be barred by the law of limitations;

() where the relief claimed is undervalued, and the valuation is not corrected by the plaintiff within the time fixed by the court; (d) where the relief claimed is properly valued, but the plaint is

written upon

paper which is insufficiently stamped, and the requisite stamp-paper is not supplied by the plaintiff within the time fixed by the court; (e) where the plaint is not presented in duplicate;

(where the plaintiff fails to comply with the provisions of R. 9, ie., with the

procedure on to admission of plaints." Different clauses in O. VII, R. 11 provided in relation to rejection of plaint should not be mixed up. In a given case, an application for rejection of the plaint may be filed on more than one ground and a clear finding to that effect must be arrived at."

A plaintiff, whose plaint is rejected may appeal from the order rejecting the plaint (S. 96), or he may present a fresh plaint (O. VIl, R. 13), but it is no use presenting a

7. Code of Civil Procedure, 1908 (assubstituted by the Amendment Act of 1999), O. VIII, R. 14(1). 8. Tbia.. (as substituted by the Amendment Act, 1999 w.e.f. 11 July 2002

which is the same as O. VI,

R. 15 earlier), O. VII, R. 14(2).

9.Tbid., (as substituted by the Amendment Act, 2002 w.e.f. 1 July 2002), O. VIl, 10. bid,(as substituted by the Amendment Act, 1999 w.e.f. 1 July 2002), O. VIl, 11. Tbid., (as substituted by the Amendment Act, 2002 w.e.f. 1 July 2002), O. VII, 12. Code of Civil Procedure, 1908, (as amended by the the Amendment Act, 2002

whichcl. I) and () areinserted),O. VII, R. 11. 13.

Kamala v. K.T. Eshwara SA, (2008) 12 SCC 661 (668).

R. 14(3). R. 14(4). R. 9. w.e.f. 1 July 2002 under

Chapter 6

Steps in a Suit

7

fresh plaint where the original plaint is rejected on ground (b). The proper course in such a case is to appeal from the order. The order falls within decree' [S. 2(2)] and

the

definition

of

is appealable. The appeal was liable to be rejected where trial

court has considered matters which were outside the purview of the plaint, to hold that the suit is barred by law." The provision

contained in O. VII, R. 11 is mandatory and the court has no

discretion to reject the plaint once contingencies specified in the Code occur. However, before rejecting the plaint, opportunity should be given to the plaintiff to remove the ground of objection wherever it is possible to do so. Suppose if the plaintift makes an application for amendment of plaint which seeks to remove the objection on account of which the plaint was liable to be rejected, such amendment should be considered before rejecting the plaint.

A plaint is liable to be rejected, if it does not disclose a cause of action. However, in order to reject a plaint on this ground, it is only the substance of the plaint and not its form, that has to be looked into.

In TArivendandam v. TV Satyapaland anor. If on a

meaningful-not

formal-reading

Krishna Iyer J observed as under:

of the plaint it is manifestly

vexatious and meritless in the sense of not disclosing a clear right to sue, the

trial court should exercise its power under O. VII, R 11, CPC... A distinction lies berween "there is no cause of action' and 'the plaint does not disclose a cause of action'. In the former case, the plaint can be rejected even without issuing a summons to the defendant, whereas in the latter, the court, after considering the entire material on record shall come to such a conclusion." 6

I, after examination of oral and documentary evidence adduced by the party, the court comes to the conclusion that there is no cause of action, it is quite different than a finding that the plaint itself does not disclose a cause of action. In the former case, the suit has to be dismissed, while in the latter, the plaint is liable to be rejected."

It is settled law that for the purpose of disposal of an application for rejection of plaint under O. VII, R. 7(d) of the Code, the court must treat all the averments made in the plaint to be true and if it appears that even if the statements so made are treated to be true, the suit is barred by any law for the time being in force, the court can reject the plaint." An application for rejection of the plaint has to be decided by the court on the basis of averments in the plaint and filing of written statement by contesting

defendant is not

necessary." The court

would take the allegations

14. Hammappa v. Chikkannaiah, 2009 (1) Kar LJ 269 (273) (DB).

15. TArivendandam v. TV Satyapaland anor, AIR 1977 SC 2421: (1977) 4 SCC 467. 16. ReptacosBrett Co Ld v. GaneshProperty, AIR 1998 SC 3085; Stateof Orissa v. Klockner ó Co, AIR 1996

SC 2140:(1996) 8 SCC 377. 1. Jagannathv. Chandrawati, AIR 1970 All 309 (FB). 18. Gauri Shankar Das u.KC Das Put.Ltd., 2011, AIR CC 1711 (Cal-DB). 19. See Saleem Bhai v. State of Maharashtra, AIR 2003 SC 759, see aso N. Ravindran v. V. Ramachandran, AIR 2011 Mad 136 (138).

78

Mulla The Key to Indian Practice

Chapter 6

contained in the plaint as correct and would not look into the allegations made in the written statement." Power under Order 7 Rule 11 of Civil Procedure Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial. The averments in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. If clever drafting has created the illusion of a cause of action it should be nipped in the bud at the first hearing by examining the parties under Order 10 of the Code." Where jurisdiction, averments made in plaint are germane, plaint is rejected for want of pleas taken by defendant in written statement would be wholly irrelevant at that stage.

When the plaint read as a whole does not disclose material facts giving rise

to a causc of action, it may be rejected in terms of O. ViI, R. 11. However, disputed questions cannot be decided at the time of considering application under O. VII, 11." The power under O. VIL, R. 11 can be exercised at any stage of the suit, before registering the plaint or after issuing summons to the defendant at any 26 time before the conclusion of trial." Application by a party is not necessary

O. VII, R. 11(d) provides for rejection of plaint if it is barred by any law. Such an embargo in the maintainability of the suit must be apparent from the averments made in the plaint. This rule of the Code being one of the exceptions must be striccly construed. In Minakshisundaram Chettiar v. Venkatachalam Chettiar, the Supreme Court observed as under:

If on the materials available before it, the court is satisfied that the value of relief as estimated by the

plaintiff

in a suit for accounts is undervalued, the

plaint is liable to be rejected under Order 7, R. 11(b)... The plaintiff cannot arbitrarily, and deliberately undervalue the relief.

If the suit is instituted against government, without addressing the statutory notice under S. 80, the plaint is liable to be rejected. However, if the plaintiff pleads a waiver of notice, he must be given an opportunity to establish waiver. In view of privileges enjoyed by members of Parliament, suit for damages for defamatory statements made in Parliament is not maintainable, and is liable to rejected."

20. Exphar SA u. Eupharma Laboratories Ltd, AIR 2004 SC 1682: (2004) 3 SCC 688. 21. Church of Christ Charitable Trust Edu. Charitable Society v. Ponniamman Educational Trust, 2012 (8) SCC 706

22. Wipro Limited v. O.C.A India (P) Ltd, AIR 2008 Mad 165 (DB). 23. Churchof North India v. LavajibhaiRatanjibhai, AIR 2005 SC 2544. 24. Popat and Kotceha Propery v. State Bank of India, (2005) 7 SCC S10. 25. Saleem Bhai v. State of Maharashtra, AIR 2003 SC 759. 26. Vithalbai (P) Ltd v. Union Bankof India, AIR 2005 SC 1891: (2005) 4 SCC 315. 27. Vishnu Dutt Sharma v. Daya Sapra, (2009) 13 SCC 729 (736). 28. Minakshisundaram Chettiar v. Venkatachalam Chettiar, AIR 1979 SC 989: (1980) 1 SCC 616. 29. Ebrahim Mohammadbhai v. State, AIR 1975 Bom 17. 30. TKJain v. S Reddy, AIR 1971 Del 86.

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79

If on examination of the plaint, it clearly appears that the suit is barred by limitation, the plaint is liable to be rejected. Where the suit filed earlier was at the stage of recording of evidence and the application under O. VII, R. 11 of the Code is filed to delay the proceedings of the suit, the application under O. VII, R. 11 of The rejection of plaint at a belated stage after the the Code would be rejected." filing of written statement, framing of issues and cross-examination is not approved. Limitation would not commence unless there has been clear and unequivocal threat to rights claimed by the plaintiff."

At what stage can the rejection of plaint takeplace? Rejection of the plaint on ground that the suit is barred by a law. Said question

can be raised at any time by defendant. Adjudication in respect of that question deciding that would depend upon the facts and circumstances of each case. For question, only averments made in the plaint are relevant." The grounds maintained

in O. VIl, R. 11 are not exhaustive. Those are not the only grounds upon which the plaint can be rejected. The court has inherent powers to reject the plaint on the ground other than those mentioned in O. VII, R. 11, if there is a failure to comply with the mandatory legal requirements or where a reading the allegations in the plaint reveals that the same is abuse of the process of law. The fact that the plaintifts were put in possession of the property agreed to be sold on the date of

agreement itself would not make any difference with regard to the limitation of filing the suit for specific performance."However, plaint can be rejected in part, i.e., any particular portion of the plaint cannot be rejected though it can be rejected against one or some of the defendants. The plaint can be rejected as a whole if it does not disclose the cause of action. A part of it cannot berejected." Rejection of the plaint under Order 7 Rule 11 of the CPC is a drastic power conferred in the court to terminate a civil action at the threshold The conditions precedent to the exercise of power under Order VII Rule 11, therefore, are stringent. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law." For instance, plaint signed by a person not so authorised by the plaintiff and the defect, not cured within the time granted by the court; or where the plaint does not disclose a clar right to sue.

The rejection of a plaint on any of the grounds stated in O. VII, R. 11 of the Code, does not preclude the plaintif from presenting a fresh plaint, in respect of the samecause of action.

31. 32. 33. 34. 35. 36.

Dwarika Prasadv. Rameshwar Dayal, (2010) 13 SCC 569 (572). 1 319613 1 Ram Prakash Gupta v. Rajiv Kr. Gupta, (2007) 10 SCC 59. C. Natrajan v. Ashim Bai, AIR 2008 SC 383 (DB): (2005) 7 SCC 5101: (2004) 1 SCC 271, relied on. Om Aggarwal v. Haryana Financial Corporation, (2015) 4 SCC 371 Raghunath Prusti v. Sardekh Khan, AlR 1958 Ori 111. ITCLtd., u. DebtRecovery Tribunal, AlR 1998 SC 634: (1998) 2 SCC 70.

37. Fatehji o Companyv. L.M. Nagpal,2015(2) R.C.R.(Civil) 999 38. Sopan Sukhdev Sable v. Assistant Charity Commr., AIR 2004 SC 1801: (2004) 3 SCC 137. 39. Roop Lal v. Nachhattar Singh, (1982) 3 SCC 487 40. P.V. Guru Raj ReddyRep.by GPA Laomi Narayan Reddy v. P. Neradha Reddy, 2015 (2) R.C.R. (Civil) 43.

41. Code of Civil Procedure, 1908, O. VI, R. 13. However, it may not apply tocaseswhere the plaint has been rejected on the ground enumerated in O. VII, R. 11 (d) of the Code.

Mulla The Key io lndian Practice

80 Where

the

plaint

is presented

to a wrong

court,

it

Chapter 6

'shal'

be

returned

to be

presented to the proper court; and this may be done at any stage of the suit (O. VII, R. 10). Where at any stage of the suit, the court finds that it has no jurisdiction, whether territorial, pecuniary or as to subject matter, the court is bound to return the plaint to be presented to the proper court where it ought to have been instituted. The requirement under the rule is mandatory, but such an order cannot be made til court has come to a definite finding that it has no jurisdiction, and the suit should have been instituted in another court. court has no power to order return of a

plaint simply because it would be more advantageous for the defendant. The plaint can be returned, provided absence of jurisdiction is disclosed in the plaint itself. If the court comes to such a conclusion after contest and after evidence is adduced, the suit should be dismissed."" The plaint can be returned for presentation before the

proper court having jurisdiction even at the stage of final hearing of the suit." How ever, where by an amendment in the suit, the valuation of the suit is increased so as to go beyond the pecuniary jurisdiction of the court, it would not be a case of suit

wrongly instituted attracting provisions of O. VII, R. 10." Where an application for rejection/return of the plaint is filed only to delay the progress of suit, dismissal of such application with costs would not require any interference." Where plaint is returned under this rule, the second suit instituted in proper court

cannot be regarded as continuation of first suit for the purpose of limitation." The time taken in the first suit may be excluded in the computation of period of limitation in view of S. 14 of Limitation Act, 1963. When the plaint is filed in a proper court, after getting it back from the wrong court, it cannot be said to be a continuation of the suit and the suit must be deemed to commence when a plaint is

filed in the proper court."" An order passed under O. VII, R. 10 for return of plaint is an appealable order under O. XLIII, R. 1(a). An order for return of plaint can be passed at the appellate or revisional stage even after the decree is passed. Suit filed in the Court which had no jurisdiction. Plaint be returned to plaintiff even if trial was concluded and decree 48

passed.

Once the court has decided to return the plaint, it must intimate its decision to the

plaintiff before actually passing any order. The plaintift may, thereafter, make an application that the court may specity the other court where and on what date the plaint has to be presented, and may issue notice to the plaintiff and the defendant. If such an application is made, the court shall fix the date for appearance in a specified court and issue notices to the plaintiff, and the defendant of such date. In such a case,

the necessity of issuance of summons when the second

suit is brought is obviated

unless the court

deemed to be a summons.

42.

otherwise directs and the said notice is

(1979) All LJ 1086.

43. Madhavi Dasu. TataEngineering,(2005) 3 CHN 252 (DB) (Cal). 44. 45. 46. 47. 48.

MKModi v. KKModi, AIR 2005 Del 219. Laxman Pd. u. Prodiy Electronics Ltd, (2008) 1 SCC 618: (2008) 1 SCC 618. Amar v. Union of India, AIR 1973 SC 313: (1973) 1 SCC 115. Harshad Chimanlal Modi v. DLF Universal Ltd. ,(2006) 1 SCC 364.

ONGC Lid. v. Mk. ModernConstructionand Co. AIR 2014 (SC)83.

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81

However, it must be remembered that if the plaintiff makes such an application, he loses the right to prefer appeal from order under O. XLIII, R. 1(a). The suit which is instituted on the re-presentation of the plaint in the competent court after its return by the court which lacked jurisdiction, is a freshly instituted suit within the provisions of the Code. Such a suit will be tried de novo in

accordance with the provisions of the Code." If there is no ground for rejecting or returning the plaint.

After

the

plaint is admitted,

the plaint, the court should admit

it is numbered

and registered as a suit

(O. IV, R. 2).

6.2 SUMMONS TO DEFENDANT [ORDER V The next step after the suit has been duly instituted and admitted is that a summons

may be issued to the defendant to appear and answer the claim, and the defendant may be served in the manner prescribed, not beyond 30 days from the date of

institution of thesuit. The day for the appearance of the defendants may be fixed with reference to the current business of the court, the place of residence of the defendant(s) and the time necessary for service of summons, and must be fixed in such a manner as to allow

the defendant sufficient time to enable him to appear and answer." The summons must also order the defendant to produce all documents or copies thereof in his possession or power upon which he intends to rely in support of his case. Every summons must be accompanied by a copy of the plaint." When a summon is sent calling upon a defendant to appear in the court and file his written statement, it is obligatory on the part of the court to send a copy of the plaint and other documents appended thereto, in terms of O. V, R. 2. In the absence of a copy of plaint and other documents, the defendant would be unable to file his written

statement."4 What is a summons? There is no definition

provided in the Code. In substance,

summons means a notice that suit or legal proceedings have been filed and a person,

to whom it has been issued is required to remain present for specified purpose.

6.2.1 What Constitutes a Summons? (a) The

name

of

the

court

in

which

the suit or legal

proceedings

instituted. (b) The purpose for which the presence of defendant is required. 49. VogelMedia International v. JasuShah, 115 (2004) DLT 679: AlR 2005 (NOC) 292 (Del). 50. Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 11 July 2002), s. 27. 51. Tbid., O. V, R. 6. 52. Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 11 July 2002), 0.v, R. 7.

53. Tbid., (as substituted by the Amendment Act, 1999 w.e.f. 1 July 2002), O. V. 54. Nahar Enterprises v. Hyderabad Aluyn Lsd., (2007) 9 SCC 466 (467, 468).

are

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82

Chapter 6

() The date and time ofappearance. (d) The seal and signature of the judge or officer appointed in this behalf. It must be accompanied by a copy of plaint, or where permitted, a concise statement

thereof. In summary suits under O. XXXVI, it must also be accompanied by copies of documents produced along with a copy of the plaint. There can be several purposes for which summons can be issued to the defendant.

It may be for appearance and answer, or for settlement of issues or final disposal 'of the suit, etc. The following is the form of summons for the final disposal of the suit:

[Inthe.. Court.... Suit No 500 of 1914 AB of Bombay Hindu Inhabitant, a coal broker, Plaintiff residing in the Fort CD of Bombay Hindu Inhabitant, a cloth merchant Defendant residing outside the Fort

To CD of Bombay Hindu Inhabitant, Whereas AB of Bombay Hindu Inhabitant has instituted a suit against you for specific pertormance of an agreement to sell certain immovable property described in the said agreement, you are hereby summoned to appear in this court in person or by a pleader duly instructed, and able to answer all material questions relating to the suit, or who shall be accompanied by some person able to answer all such questions

on the....

day of ...

.19 ..........

at ...

o'clock in the.

noon, to answer the claim, and as the day fixed for your appearance is appointed for final disposal of the suit, you must be prepared to produce on that day all the witnesses upon whose evidence and all the documents upon which you intend to

rely in support of your defence. Take notice that in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.

Given under my hand and theseal of the court, this day of 19..... Judge

Notice-1. Should you apprehend your witnesses will not attend on their own accord, you can have a summons from this court to compel the attendance of any witness, and the production of any document that you have a right to call upon the witness, and the production of any document that you have a right to call upon the WItness to produce, on applying to the court and on depositing the necessaryexpenses. 2. In case of a money claim, if you admit the claim, you should pay the money into court together with the costs of the suit, to avoid execution of the decree which may be against your person or property or both.

Chapter 6

83

Steps in a Suit

A summons may be issued to the defendant (s) to appear and answer the claim to

the plaintiff, and to file the written statement of his defence, within 30 days from the date of service of summons.Where a defendant(s) appears on the date of presentation of the plaint and admits the claim of the plaintift, summons may not be issued to such a

statement within

defendant(s)."

Where the defendant(s)

fails to file

written

the specified period of 30 days from the date of service of

summons, he may be

allowed to file the same on some other day not beyond the

period of 90 days from the date of service of summons, for reasons to be recorded in

writing."

6.2.2 Service of Summons The next step after the issue of summons is to serve it on the detendant. The service of summons of the defendant is quite necessary and is of prime importance, as it is

intended to inform him of the institution of a suit against him, and to extend him an opportunity to resist the suit. Keeping in pace with the technological and other developments, O. V of the Code, dealing with service of summons, has been thoroughly amended by the Amendment Act, 2002 incorporating all these technological and other developments to be used for service of summons.

6.2.3 Personal or Direct Service In ordinary cases the summons

should be served either upon the defendant in

person or on his agent empowered to accept service on his behalf. Where the defendant or his agent so authorised is residing within the jurisdiction of the court, in which the suit has been instituted, the summons may be delivered or sent to the

proper officer or to a courier service approved by the court." The service of summons, addressed to the defendant or his agent, so authorised may be made by delivering or transmitting a copy of the summons by:

) registeredposatcknowledgemendtue; () speedpost; (ii) a couricer service approved by the high court,

iv) any other means oftransmission ofdocuments, including, (a) fax message;

(b)

electronic mail service, etc.

However, all the expenses for the service of summons to the defendant have to be

borne by the plaintiff. 55.

Code of Civil Procedure (as substituted by the Amendment Act, 2002 w.e.f. 1 July, 2002) O. V,

0).

S6. Ibid. (as sustituted by the Amendment Act, 2002 w.e.f. 1 July 2002), first proviso to O. V, R. 1(1). .Tbid (as substituted by the Amendment Act, 2002 w.e.f. 1 July 2002), second proviso to O. V, R. 1 (1). 8. Code of Civil Procedure, 1908 (as substituted by the Amendment Act, 2002 w.e.f. 1 July 2002), O. V, R. 9(1). 59. Tbid. (as inserted by the Amendment Act, 2002 w.e.f. 1 July 2002), O. V, R. 9(3). 60. Tbid (as inserted by the Amendment Act, 2002 w.e.f. 1 July 2002), proviso to O. V, R. 93).

Chapter 6

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84

Where the defendant does not reside within the jurisdiction of the court in which the suit has been instituted and the court directs the service of summons on the

defendant in any of the aforesaid modes, except by registered post acknowledgement due, the provisions relating to the service of summons, where the defendant resides within the jurisdiction of another court, shall not apply.°" The summons shall be taken to have been duly served, summons is received back with the endorsement of the person authorised by the courier service, that the defendant

if the article containing postal employee or the or his agent has refused

to accept the delivery of the article as it is presumptive evidence of due service, especially when the address given on the registered letter is admitted to be correct. Where the summons was properly addressed, pre-paid and duly sent by registered post acknowledgement due, the summons shall be taken to be duly served, even if acknowledgement has been lost, mislaid or not received back by the court, within 30

days from the date of issue of summons.

Where summons or notice by registered 5

post is sent at the given and correct address, there is a presumption

of due service.

The filing of the registered cover of the notice is not enough and the contents of the nature have also to be brought on record. In addition to the service of summons on the defendant by the court, the court may permit the plaintiff to effect service of summons for appearance on the defendant and deliver the summons to the plaintiff, if the plaintiff moves an application for the same. However, where the summons so delivered to the plaintiff is returned back as refused by the defendant, then the service of summons shall be effected by the court. opportunity

to the

"Though

there can be no

objection

plaintiff to serve summons on the defendant,

in

giving an

there should be

sufficent sateguards to avoid false report of service of summons. High Courts should make appropriate rules or issue practice directions to ensure that the provisions are

properly implemented and there is no abuse of process of law. i) Where there are rwo or more defendants, service should made on each defendant. (i)

Where

the

defendant

cannot

be

found

and

has

no

agent

empowered to accept service, service may be made on any adult member of the family." Before summons can be served upon adult member of the family of the defendant, certain conditions are required to be satisfied:

61. Tbid. (as inserted by the Amendment Act, 2002 w.e.f. 1 July 2002), O. V, R. 9(4). 62. Code of Civil Procedure, 1908 (as inserted by the Amendment Act, 2002 w.e.f. 1 July 2002), O. V, R. 90). 63. KMajeed v. Pappa, AR 2004 Mad 457 (DB). 64. Ibid. 65. PT Thomas v. ThomasJacob, AlR 2005 SC 3575. 66. 67.

T. Vijendradas v. M. Subramanian, (2007) 8 SCC 751. Code of Civil Procedure, 1908 (as inserted by the Amendment Act, 2002 w.e.f. 11 July 2002), O. V, R. 9A(2). 68. Ibid (as inserted by the Amendment Act, 2002 w.e.f. 11 July 2002), O. V, R. 9A(4). 69. SalemAdvocate Bar Assn. (1) v. Union of India ,(2005) 6 SCC 344 70. Note the amendment of O. V, R. 15 in the year 1976.

Chapter 6

85

Steps in a Suit (a) At the time of service, the defendant is absent. (b)

There is no

likelihood

of his being

found at residence,

within

a

reasonable time. (C) There is no authorised agent to receive summons, on behalf of the

defendant. ii)

In a suit relating to any business against a non-resident defendant, service may be made on the manager.

(iv) In a suit for immovable property, within the meaning of S. 16, service may be made on any agent of the defendant in charge of the property, if the service cannot be made on the defendant in person, and the defendant has no agent empowered to accept the service. (O. V, Rr. 9 to 15).

6.2.4 Mode of Personal Service In each of the five cases mentioned above," service is to be made by delivering or

tenderinga copy of the summons to the person proposed to be served, and obtaining his signature to an acknowledgement of service endorsed on the original summons. If the acknowledgement is signed, the summons is deemed to be served, and the service is then called personal or direct service as distinguished form substituted service. After the service is made, the serving officer should endorse the

time and mode of service on the original summons, the names and addresses of the person, if any, identifying the person served and witnessing the delivery or tender of summons and then return it, to the court from which it was issued (O. V, Rr. 1016, 18). The serving officer is usually called a bailiff and his duty is to serve the

process of the court, i.e., summons, warrants, etc. A natural question may arise as to what shall be done, if a person sought to be served refuses to accept such service. He may try to evade service for motives. There are also a category of recalcitrant persons who wish to accomplish their objects by avoiding service of summons. Service of summons is a vital step in any legal

proceedings and if there is any lethargy in ettecting service, the very purpose of filing the suit may sometimes be frustrated. In a suit for specific performance, you require an interim injunction restraining the defendant from transferring the subject matter of the suit because otherwise the suit may become infructuous. Having obtained an injunction, if one fails to serve the summons and thereby to notify the defendant that the injunction has been granted, the defendant may conveniently transter the subject matter and plead that he was not aware of the injunction at all. If such plea is believed, the suit for specific performance becomes meaningless and infructuous. Utmost attention has to be given to ensure service of summons.

6.2.5 Substituting Service The word 'substituted' suggests that it is a substitute or alternative mode of service of summons. Where it is not possible to serve summons in an ordinary way, it must be 71. See under the heading 'Personal or Direct Service' above.

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served by one of the alternative modes provided in the Code, i.e., by aftixing a copy of it in some conspicuous place in the court house, and also on some conspicuous part of the house, in which the defendant is known to have last resided, or carried on business, or personally works for gain, or by publication in the newspaper or by the beat of drum, etc. However, certain conditions must be satisfied, before summons can be served by substituted service of summons and one may notice the difference between the two. Substituted service cannot be claimed as a matter of right. When ordered,

substituted

service is as effectual as personal service. It,

however,

must be

remembered that this is not a regular mode of service and hence, it should not normally be allowed and can be effected only as a last resort.'4 The substituted service can be resorted to where the defendant refuses to accept

the summons and sign the acknowledgment, and where he successfully avoids service of summons. One may notice the difference between the two. Without satisfaction, court cannot direct substituted service. However, in a petition for divorce by mutual consent where husband was absent on the first date of hearing

and summons revised were not properly served, court though not satisfied that husband was evading service, directed substituted service of summons."

6.2.5.1 First Mode This is provided under O. V, R. 17. It can be resorted to when the defendant or his

authorised agent or any of the aforesaid persons upon whom the Code permits service of summons, refuses to sign acknowledgement. lt can also be restored to when following conditions are satisfied: (1) The service officer cannot reasonable diligence.

find the defendant

after using all due and

i)

The defendant is absent from his residence likelihood of his return within a reasonable time.

and

there

is

no

ii)

There is no authorised agent or any other person upon whom the Code permits service of summons.

In Cohen v. Nursing Dass" the expression 'due and reasonable diligence to find out the defendant' has been explained:

It is true that you may go to man's house and not find him, but that is not attempting to find him. You should go to his house, make enquiries and, if necessary, follow him. You should make enquiries to find out when he is likely to be at home, and go to the house at a time when he can be found. Before

service like this can be effected it must be shown that proper efforts have been made to find out when and where the defendant is likely to be found-not as seems to be done in this country, to go to his house in a perfunctory way, and 72. Basant Singh v. Roman Catholic Misison, (2002) 7 SCC 531 73. Smruti Pahariya v. Sanjay Pahariya, AIR 2009 SC 2840 : (2009) 108 Cut LT 205 (SC) : (2009) 13

SCC 338. 74.

Cohen u. Nursing Dass, (1892) 19 Cal. 201.

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Steps in a Suit

because he has not been found there, to affix a copy of the

summons on the

outer door of his house." If the defendant refuses to sign the knowledgement or if the aforesaid three conditions are satisfied, summons can be served in the following manner:

() A copy of summons shall be affixed on the outer door or other conspicuous part of the house where the defendant ordinarily resides or carries business or personally works for gain.

()

The original summons shall be returned with the report of the serving officer. Such report must state the circumstances under which a copy was affixed and the name and address of a person who has identified the house.

The matter does not end here. Affixing of copy and submission of report are not enough. After report is submitted, the court shall examine the serving officer, either on affidavit or otherwise and declare that summons is duly served. If the court is not

satisfied with affidavit or oral examination, it may make such other inquiries as may be deemed fit. Still if the court is not satisfied, it may call for fresh service of summons. In this mode, the serving ofticer aftixes a copy of summons on his own decision and later on the court declares that there is a valid or proper service of summons. The declaration of due service under this rule should be express." The

failure to file affidavit by process server renders the service not one in accordance with law."6

6.2.5.2 Second Mode What does one do if defendant successfullyavoids service of summons? The first mode is available only when defendant refuses to sign acknowledgement. However, if the defendant keeps out of way so as not to be available at all, and there are no other persons on whom service can be made under the Code, what can be done in such cases? The second mode provides an answer. It says that if defendant is

keeping out of the way to avoid service of summons, or if summons cannot be served in ordinary way for any other reason, summons can be served in following manner:

() A copy of summons may be affixed on a conspicuous part of the court house. (i) A copy of summons may also be affixed on conspicuous part of house where defendant is last known to have resided or carried on business or personally worked for gain. ii)

It may be ordered to be served in such other manner as the court may direct. If necessary, the court may direct that a public advertisement may be issued in a local newspaper having

circulation

in the area where the

defendant is last known to have resided or carried on business or personally

5. ParasuramaOdayarv. Appadurai Chety c Ors., AIR 1970 Mad 271. 76. AIR 1970 SC 2538.

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worked for gain. Where summons were served by newspaper publication, the plea that person sought to be served does not read such newspaper is not

open. In the second mode, the court's order has to be obtained first and service is made

later on. Here lies the distinction berween two modes of substitute service. In the former, service precedes the order, while in the latter, service follows the order. It is as effective as a personal service.

However, as substituted

service is not a regular mode

of service, should not be resorted to, unless the serving officer had been unable to find the defendant despite all due and reasonable diligence. Substituted service

could be ordered only if the defendants were getting out of the way for the purpose of avoiding service or for any other reason, summons could not be served in the ordinary way. No such evidence adduced in the instant case. Effort was made only once when the defendants were not available at their house. Consequently, there was no ground for ordering substituted service by way of munadi. Accordingly, ex parte proceedings ordered against the defendants on the basis of substituted service by way of munadi, cannot be said to be proper.'" Thus, you will find elaborate rules for

service of summons. It shows anxiery of draftsmen to ensureobservance of principles of natural justice before any matter is adjudicated. Every possible effort ought to be made to make defendant aware of legal proceedings made against him. The court has a very wide discretion in directing service of summons in such other manner as it thinks fit. It may also direct that summons may be served merely by aftixing a copy at the last known address of the defendant only that such service is

valid even if no copy is affixed on the conspicuous part of the court house.

6.3

INSPECTION OF DOCUMENTS [ORDER XI, RULE 15]

REFERRED TO IN THE PLAINT

After the writ of summons is served on the defendant, he has to file a written statement of his defence, if so ordered by the court. Before a written statement is drafted on behalf

of the defendant, one must refer to a copy of the plaint very carefully. If any documents are reterred to in the plaint, of which the detendant has not got copies, a notice should be given to the plaintiffor his pleader to produce them for inspection (O. XI, R. 15) and

the same should be inspected. The discovery, inspection and production of documents has been discussed in detail in the next lecture.

6.4 WRITTEN STATEMENT [ORDER VII] After inspection of the said documents has been done, the defendant's written statement should be drafted. In drafting the written statement, it is necessary to 77. Sunil Poddar v. Union Bank of India, AIR 2008 SC 1006: (2008) 2 SCC 326. 78.

Bondla Ramalingam v. Shiv Barasiddiah, AIR 1979 AP 180.

79. Lilu Ram v. Mangtu Ram,2012 (6) RC.R(Civil) 18. 80. AIR 1969 SC 1552.

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Steps in a Suit

refer to the rules contained in O. VI and O. VIII. Order VI is general in nature, which deals with pleadings, i.e., plaints and written statements. Order VIl deals exclusively ith plaints, and O. VIIl with written statements. Every party in a case has a right to file a written

statement.

'Even if, the allegation was that fraud was

played while obtaining the signature, then too, no permission to file a fresh written statement could be given to him as there cannot be rwo written statements on record."This should be in accordance with natural justice."" A written statement may be described as a reply of the defendant to the

plaint

of the

plaintift,and is pleading of the defendant, and may contain newer facts in favour of the defendant. The defendant has to present the written statement within 30 days of the date of service of summons on him." However, the court may allow the defendant to file the written statement on any other day, beyond the initial period of 30 days, which shall not be beyond 90 days from the date of service of summons, after recording reasons for such permission." The provisions contained in O. VIIL, R. 1 spell out a disability

on the defendant,

and do not

impose an

embargo on the power of the court to extend the time and as such are directory, and not mandatory. The court in its discretion has the power to allow the defendant to file a written statement even after the expiry of the period of 90 days. However, the time can be extended only in exceptionally hard cases, and not so frequently and routinely so as to nullify the period fixed by O. VIII, R. 1. Delay in filing written statement can be condoned in exceptionally hard cases. Proviso to O. VIII, R.I is directory and use of the word 'shall not by itself is sufficient to indicate its mandatory nature. There is no provision in the Code for cancelling or setting aside a written statement already filed, and substituting it with a fresh

one. This A prayer seeking time beyond 90 days ought to be made in writing limitation of 90 days for filing the written statement does not apply to suits filed on the original side of the high court." The Supreme Court was called upon to consider whether the time-limit of ninety days prescribed by the provision to Rule 1 of Order VIII for filing written statement by the detendant was mandatory or merely directory. Considering the provision of the code as originally enacted, and to ensure speedy disposal ofcases but without sacrificing fairness of trial and principles of natural justice inbuilt in all procedural laws, the court held 'the provision is directory and permisive and not mandatory and imperative...All the rules of procedure are the hand maid of justice. The process of justice may be speeded up

81. Sameemal Runwal v. Prakashchandra Kothari, 2011 (2) R.C.R.(Civil) 512 82. Dumtibai v. Paras Finance Co., (2007) 10 SCC 82 (85). 83. Food Corpn of India v. YadavEngineerand Contractor, AIR 1982 SC 1302. 84. Code of Civil Procedure (as substituted by the Amendment Act, 2002 w.e.f. 11 July 2002), O. VII, R. 1.

85. Tbid,proviso to O. VII, R. 8(1). 86. Zolba v. Keshao, AIR 2008 SC 2099: (2008) 11 SCC 769. 87. Thakorbhai H. Parel v. Shree D.G.A. Samaj Seva Sangh, AIR 2009 Guj 155. 88. Salem Advocate Bar Association v. Union of Tndia, AIR 2005 SC 3353; Kailash v. Nankhu, AIR 2005 SC 2441; SK Salim Hazi Abdul Khayunsab v. Kumar (2006) 1 SCC 46. 89. Iridium India Telecom Ld u. Motorola Ine, AIR 2005 SC 514: (2005) 2 SCC 145.

Mulla The Ky to Indian Practice

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and hurried but the fairness which is a basic element of justice cannot be permitted

to buried." The defendant in his written statement apart bring his claim for set-off or counter claim, documents for his defence, claim for set-off or are within his possession or power, he must file

from replying to the plaint, may also and where the defendant relies on counter claim, and those documents the same along with a copy and list of

documents, at the time of presentation of the written statement." In case, the document(s) relied upon by the defendant is not within his possession or power, he must state in whose possession or power the same is, wherever possible, and a document, which ought to be produced by the defendant, is not

produced, may not be received in evidence on his behalf

without the leave of the

court." The documents produced for the cross examination of the plaintiff's witness or handed over to a witness for refreshing his

memory are exempted

from the

operation of the aforesaid provision.' It is of utmost importance to remember that as a general rule every allegation of fact in the plaint, if not denied specifically or by necessary implication, shall be taken to be admitted by the defendant.

It is also no

use denying generally the grounds of liability alleged in the plaint; every allegation of fact, the truth of which the defendant does not admit, must be dealt with specifically. Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged in the plaint that the defendant received a certain sum of money it is not sufficient to deny that how much he received. In he received that sum or any part thereof, or else set out case of evasive denial and non-specific denial by defendant of the plaintiff's case, there can be constructive admission. Lastly, the defendant must raise by his pleading, all matters which show the suit not to be maintainable, as, for instance,

limitation, or want of jurisdiction, and also all matters, which show that the transaction, in respect of which the suit is brought is void or voidable, as for instance,

fraud, misrepresentation, or facts showing illegalicy' (O. VIl, rr 2-5). If such matters are not raised and do not find their place in the written statement, the defendant shall not be entitled, as of right, to rely upon them." The defendant shall also not be entitled to raise a case different statement, unless there is an amendment.

from the one pleaded in

written

As regards facts alleged in the plaint, begin the paragraphs of the written statements as far as possible in one or other of the following forms:

1.

3. 4. 5. 6. 7. 8.

9.

Kailashv. Nankhu, (2005) 4 SCC 480 Code of Civil Procedure, 1908 (as inserted by the Amendment Act, 1999), O. VI1, R. 1A(1). Ibid, O. VIII, R. 1A(2). Ibid (as substiruted by the Amendment Act, 2002), O. VIlI, R. 1A(3). Tbid (as inserted by the Amendment Act, 1999), O. VIII, R. 1A(4). Dinesh K Singhania v. Caleutta StockExchangeAssociation Ltd (2005) 2 CHN 601 (DB) (Cal). Indian Contract Act, 1872, Ss. 19, 19A, 23, 24 and 25. MManamuti v. Stase of Karnataka, AIR 1979 SC 1704; K Goundan v. MSP Rajesh, AIR 1861. Attar Singh v. Staie of Uttar Pradesh, AIR 1959 SC 564: 1959 Supp (1) SCC 928.

1966 SC

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Steps in a Suit

Chapter 6

(a) the defendant denies that... (set out facts); (b) the defendant does not admit that ... (set out facts); [this form is to be used where the defendant is not in a position either to admit or to deny the facts);

(c) the defendant admits that .. (set out facts), but says that ... (set out facts); (d) the defendant submits that the court has no jurisdiction to hear the suit on the ground that ... (set for the grounds) or that the suit is barred by article.. of the schedule to the Limitation Act, 1963. ([This form is to be used when the defence raises a point of law (O. VIIl, R. 2)J. There is a distinction

berween denial of a fact and

non-admission

of a fact. In the

former, there is a positive assertion that the alleged fact does not exist, while in the

latter, there is merely absence of knowledge, on the part of the defendant regarding such alleged fact. If facts, not specifically denied are deemed to be admitted, their proof is dispensed with and the court shall proceed on the footing that such facts are true, but this is discretionary. Where the defendant does not deny the averments in the plaint, the same would be deemed to have been admitted under R. 5 of O. VIl of the Code." In construing pleadings, the proviso [to O. VIII, R. 5(1)], must be involved

only in exceptional

circumstances, so as to prevent obvious injustice to a

party, or to relieve him from the results of an accidental slip or omission, and not to help a parry, who deliberately made vague denials, and thereafter sought to rely upon them for non-suiting the plaintiff." The court may require any such fact to be provided otherwise than by admission where it appears to the court that if such facts are accepted as proved, it will lead to unjust result and where such admission occurs on account of circumstances which do not inspire confidence, it may be proper to insist on independent proof of such facts.

6.4.1 Set-off and Counter Claim Suppose if one has to prepare a written statement for the defendant who has to recover

from or adjust certain sum of money against the claims of the plaintift, how will one advise him? In all cases where the defendant does not merely defend, but seeks to claim or recover money or other relief against the plaintiff, there are provisions for set-off and counter claim which are applicable in different sets of circumstances. There are certain prescribed conditions and circumstances under which one is allowed to claim set-off or counter claim or both. We shall examine them one by one.

6.4.1.1 Set-off Set-off

means a claim set against

another."

lt is a reciprocal

acquittal

of debts

between two persons."

10. SerhRamdayalJas v. Lami Prasad, (2009) 11 SCC 545 (554): AIR 2009 SC 172. 11. Balraj Taneja v. Sunil Madan, AIR 1999 SC 3381: (1999) 8 SCC 396. 12. Chamber's Tuent first Century Dictionary 1997,P. 1283: ConciseOngordDictionary, 1995, p 1268. 13.

Pramada Prasad Mukherjee v. Sagarmal, AIR 1954 Pat 439.

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Where a written

statement

contains a claim for set-off, it has the same effect as

plaint in a cross-suit, and the rules relating to written

apply to a written statement in answer to claim of set- off. Following

Chapter 6

statement by a defendant 4

conditions must be satisfied before the defendant can plead set-off

against the plaintiff:

) The suit of the plaintiff mustbe forrecoveryofmoney. (i) The caim of the defendant against the plaintiff must be for an ascertained sum of money.

ii) Such sum must belegallyrecoverable. Civ) Such sum must not exceed pecuniary limits of jurisdiction of the court. (v)

Both the parties must fill in the same character in set-off as well as suit cdaim.

(vi)

Claim of set-off must be recoverable by the defendant or by all the

defendants, if more than one. (vii) It must be recoverable from the plaintiff or from all the plaintiffs, if more than one. No set-off can be pleaded where suit is not for recovery of money. If the amount is unascertained, set-off cannot be pleaded, e.g., unliquidated damages. If the claim of set-off is

time-barred,

it is nor legally recoverable and hence,

set-off can not be

allowed. If it exceeds pecuniary limits, the proper course is to file a separate suit. However, it is open to the defendant to abandon or relinquish a portion of the claim

inexcessof pecuniary limits and continue set-off within such limits in order to avoid bringing a separate suit. If the parties do not fill the same permissible.

character, set-off is not

Suppose A is appointed as executor of a Will and B filed a suit to claim a legacy

under the Will againstA, hence A cannot set-off his personal claim against B, because in the suit claim and claim for set-off, A does not file in the same character. In the former, he is sued as an executor, while he seeks set-off in his personal

capacity.

In case of set-off claimed by the defendant, the plaintiff is entitled to file a written statement. The court can pass a decree in favour of the defendant and against the plaintiff. The effect of set-off, if allowed, is either to negative or to reduce the claim of the plainiff against the defendant. The court fees are payable in respect of set-off. Some decisions laying down that no court fees are payable in respect of legal set-off do not lay down good law. The provisions dealing wich legal ser-off and their application is limited to ascertained sums of money only. However, the provision regarding set-off is not exhaustive and courts have allowed the defendant to claim set-off in certain circumstances de bors under the Code. Such set-off is called equitable set-off. Even 14. Code of Civil Procedure, 1908, O. VIlI, R. 6(3).

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Steps in a Suit

unascertained sums of money are also allowed to be claimed by way of set-off on condition that such claim arises out of the same transaction out of which the suit claim has arisen. The brief points of distinction between legal and equitable set-off are as follows:

Equitable set-off

Legal set-off (1) It must be for anascertainedsum of money.

(1)

(2)

(2) It is a matter of discretion of the court.

It can be claimed as a matter

It may even be for unascertained sum of

money.

of

right if conditionsare fulfilled. (3)

It is not necessary that claim for set-oft should have arisen the same transaction.

(3) The claim for equitable set-off must have arisen out of the same transaction and

out of

it

cannot be allowed if thecross-demandrelates to a different transaction."

(4)

The

amount

must

be

legally

(4) The amount may not be legally recoverable and may be allowed if there exists a fiduciary relationship between the parties.

recoverable.

5) Courtfeeispayable.

(5)

Court fee is payable.

(6) However, even in case of equitable set-off, if at the date of the written statement, the defendant's claim is time barred, though not barred at the date of the suit, it will be allowed only to the extent of the plaintiff's claim, and no decree will be passed for the balance found due to him. But not in the case of legal set-off.

6.4.1.2 Counter Claim It is a claim, independent of and separable from the plaintiff's claim, enforceable by crossaction. A counter claim is treated as a cross-suit which must contain all the features

A counter claim is a claim made by a defendant in a suit against a plaintif.

of aregular suit," and must be filed within the limitation period." The provisions for counter claim were added in 1976. The relief under O. VII, R. 6A of the Code is

discretionary

remedy but discretion is to be exercised in

judicious manner." The object was to ensure trial of all issues between the parties at one time as far as possible. It makes a complete departure from provision for set-off, and makes it easier for the defendant to make a counter claim. The restrictions attached to set-off are not applicable to the counter claim. The right to make a counter

claim

is in

addition

to the

right to

claim

set-off and both are not

plaintiff inconsistent or mutually exclusive. In fact, when the claim against the exceeds the claim against the defendant, it is a combination of both, set-off, to the extent of plaintiff's claim, and counter claim for the excess over and above such

15. Union of India . KCT & Bros(CoalSales)Ltd., AIR 2004 SC3024. 16. Stroud's Judicial Dictionary, vol. 5, 1986,p. 2388.

17. Sugesen &Co Put Ltd v. Hindustan Machine Tools Ltd, AIR 2004 AP 428. 18. RakeshAhuja u Jagan Nath, (2004) 138 PLR 249. 19. Ballepanda P. Poonacha v. KM. Madapa, (2008) 13 SCC 179 (183-85).

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Chapter 6

claim. The counter-claim is required to be treated as an independent suit in view of

provisions of O. VIII, R. 6A of the Code.0 The defendant can set up any right or claim arising out of a cause of action accruing against the plaintiff. However, there is one important condition. Such cause of action must have arisen before the written statement is submitted or before

the time to submit written statement has expired. t is immaterial whether

it has

accrued betore or after the institution of the suit, but no counter claim can be made to set up any right or claim arising out of cause of action which has accrued after the time for filing the written statement or delivering the defence has expired." Once the right to file the written statement has been lost or the time limited for delivery of defence has expired, then neither the written

statement can be filed as a right, nor

counter claim can be allowed to be raised.* It is not necessary that counter claim must be submitted alongwith the written statement. It can be submitted later on, provided cause of action has already accrued earlier as aforesaid." However, the defendant would not be permitted to file a counter claim after closure of plaintiff's

evidence. by

adding

Court cannot allow the application for amending the written statement a

counter

claim

after

the

conclusion

of the

trial."In

a suit

for

dissolution of firm, counter-claim was limited to damages caused to the defendant

till filing of WS. After 13 years amendment of WS and enhancement of counterclaim were sought. The court held that the claim was barred by limitation.0

The counter claim must not exceed the pecuniary limits of the jurisdiction of the court. It has the same effect as that of a cross-suit, and the rules relating to a written statement

by a

defendant

apply

to a

written

statement

filed

in an

answer

to a

counter claim. However, the court is empowered to exclude such counter claim upon application of the plaintiff to that effect. It appears that right or claim set-up ought not to be disposed of by way of counter claim and independent suit should have been filed. The counter claim may be excluded, but if it is allowed, it has the effect as if it is a cross suit. The plaintiff is entitded to file a written statement to such claim. Even if the suit is withdrawn, dismissed or stayed, counter claim will stand independently and continue. It is just as if the defendant has become plaintiff and the plaintiff has become defendant. In a suit for recovery of money the appellant was found to be not entitled to claim any amount. A counter-claim was lodged by the respondent, which

was allowed by an order of special court. The view expressedby the special court did not call for any interference in the opinion of the apex court.

20. GayathriWomenWelfareAssociationv. Gowramma, (2011)2 SCC 330 (339). 21. Santilata Tripathy v. KrushnaPriya Pani, 99 (2005) Cut LT 542. 22. Ramesh Chand u Anil Panjwani, AIR 2003 SC 2508: (2003) 7 SCC 350. 23. Mahendra Kumar v. State of Uttar Pradesh, AIR 1987 SC 1395. 24. N Eashwara Prasad v. Margadershi Chit Fund Lud., 2004 AIHC 2134 (AP); Southern Ancillaries Pon. Ltd. v. SAFoundariesPvt. Lid., AIR 2003 Mad 416. 25. Muni Singh v. Laxmi Rai, 2015(1) R:C.R.(Civil) 158. 26. SouthKonkanDstilleries v. PrabhakarGajanan Naik, AIR 2009 SC 1177 (1181). 27. Naresh Kr. Aggarwala v. Canbank Financial Services Ltd., AIR 2010 SC 2722: (2010) 6 SCC 178.

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Steps in a Suit

Chapter 6

The distinction berween set-off and counter claim is given below:

Set-off

Counter Claim

(1) The claim against the plaintiff must be for money-ascertained in case of legal set-off, ascertained also in case of equitable set-off.

(1) The claim against the

(2) The suit must be for recovery of

(2) It is not necessary that suit must be for recovery of money. Even in other suits without monetary reliet, counter claim can be made.

money.

3) In equitable set-off, claim must arise out of same transaction.

need

not

be

monetary

plaintiff claim

alone. Any other right or claim can also be made.

(3) It is not necessary that counter claim must arise out of the same transaction. It is an independent

action. 4) The amount must be recoverable on the date of institution of the suit.

(4) The amount must be recoverable on the date of filing of the

written- statement.

A set off or counter claim cannot travel beyond the scope and limit of the suit with which it is concerned. It cannot bring out something which is completely foreign to the

suit. Both the original suit as well as the counter claim has to be well

within the pecuniary limits of jurisdiction of the court in which the suit has been instituted. A counter claim exceeding the pecuniary limits of jurisdiction of the court would be returned. A counter claim can be entertained against the plaintiff and not against a codefendant."" Normally, it is the defendant who may file a counter claim against the

plaintiff. But incidentally and along with the plaintiff, the defendant may also claim relief against the co-defendants in the suit. But a counterclaim against co-defendants is not maintainable." Court fee is payable on the counter claim. A counter claim cannot be entertained when made for the first time at the appellate stage."0

These are valuable provisions to avoid multiplicity of legal proceedings. They enable parties to agitate their grievances against each other before one forum. They seek to ensure consistent and coherent trial of suit, they are salutary provisions at a time when litigations take a long time and deter persons from seeking redressal of grievances.

28. Udhavdas Tyagi v. Srimurti Radha Krishna Mandir, (2001) 4 SCC 443 (MP). 29. Rohit Singh v. State of Bihar, (2006) 12 SCC 734 30. Southerm Ancillaries Ld. v. SA Foundries Pun. Ltd., AIR 2003 Mad 416.

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6.4.2 Written Statement in Suit for Specific Performance The following is the form of a written statement in answer to the plaintiff's suit for specific performance:

(Title of suit as in Plaint]S

The written statement of the defendantabovenamed 1. The defendant admits the agreement referred to in paral of the plaint, but says that the sale has to be completed and the purchase-money was to be paid on 1 May 1914, and that it was agreed that time should be of the

essence of the agreement. 2. The plaintiff was not ready with the purchase-money on the aforesaid day. On the 5th day of May 1914, the contract was rescinded by agreement between the plaintiff and the defendant. 3. The defendant denies that the

plaintiff tendered Rs 2,00,000 alleged in para 2 of the plaint or at all [O. VIlI, R. 4].

to him as

4. The defendant submits that the plaintiff is not entitled to any of the reliefs claimed by him, and that the suit should be dismissed with costs. 5. The defendant will rely on the documents a and marked as No 1.

list whereof is hereto annexed

Signature and verification clause as in Plaint]

6.4.3 Non-Compliance with Order for Written Statement Where a party,

from whom a written

statement is required by the court, fails to

present it within the time fixed by the court, the court may pronounce judgment against him, or it may grant him further time, or make such other order as it thinks fit. It may be added that there are certain courts, in which no written statement is required at all. Where the written statement is not filed, the civil court has the jurisdiction to proceed under Order VIII Rule 10 of C.P.C. and pronounce the judgment

-

However,

the orders are not

required

to be in

mechanical

manner.

Further, inspite of admission, court may still require the plaintiff to prove the fact which has been admitted by the defendant. The

Court, at no stage, can act blindly

or mechanically.33 Considering the relevant provisions of O.VIII and O.XX of CPC, the Hon'ble Suprme Court in Balraj Taneja v. Sunil Madan," stated :

The court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass

31.

See ch. 3.

32. See Indian Contract Act, 1872, s. 55. 33. Gujarat Maritime Board u. G.C. Pandya, 2015 (3) R.C.R.(Civil) 94. 34.

Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396.

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Steps in a Suit

judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In a case,

especially where the defendant has not

the court should be a little cautious in proceeding Before passing the judgment against the defendant

filed a written

statement,

under O.VIII R.10 CPC. it must see to it that even

if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the court's satisfaction and, therefore, only on being satisfied that there is no fact, which needs to be proved on account of deemed admission; the court can conveniently pass a judgment against the defendant who has not filed the

written statement. But if the plaint itself indicates that there are disputed question of fact involved in the case regarding which rwo different versions are set out in the plaint itseltf, it would not be safe for the court to pass a

judgment

without

requiring the plaintiff to prove the facts so as to settle the

factual controversy."

"Signing and Verification of pleadings under O.VI R.14 and 15 Order VI Rule his pleader (if good cause is authorized by

14 CPC provides that every pleading shall be signed by the party and any) except in a case where a party, by reason of absence or for other unable to sign the pleading, it may be signed by any person duly him to sign the same or to sue or defend on his behalf. The object of

requiring every pleading to be signed by the party is to prevent, as far as possible,

disputes as to

whether a suit

was

instituted

with the

plaintiff's

knowledge

and

authority. "In cases where the plaint contains allegations of fraud which must be false or true to the knowledge of the plaintif, the defendant can insist on the

plaintiff himself signing the plaint."35 Rule 15 pertains to verification of pleadings 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. "A defect in signature or verification is only an irregularity in procedure and will not be a ground for rejecting the plaint."36 "Where the allegations in an election petition under the Representation of the People Act purport to be based on information and the verification clause reters to the entirety of the petition and the attached schedule, absence of enumeration of the various paragraphs therein as having been based on

information

cannot be considered to be a defect."37

35. The Rajah of Tomkuhi v. Braidwood and Ors.(1887) 9 All. 505. 56. Karam Singh v. Ram Rachhpal Singh, AlIR 1977 H.P. 28. 37. Bhikaji KeshaoJoshi and Anr. v. Brijlal Nandlal Biyani and Ors., AIR 1955 SC 610.

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Chapter 6

6.5 AMENDMENT OF PLEADING AND PARTICULARS The

pleadings

must

contain

all

the

material

facts

in

a

concised

form

for

substantiating its case set up by a party so that the opposite party is not taken by surprise. "It is also equally well settled that no party should be permitted to travel

beyond its pleadings and that all necessary and material facts should be pleaded by

the party in support of the case set up by it. The object and purpose of pleadings is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that the other party may not be taken by surprise".° After the written statement is filed, one has to consider, where one is acting for a plaintif, whether the plaint requires any amendment. An application for leave to amend the pleading may be made at any stage of the proceedings. Such an application may be made, not only by a plaintiff to amend the plaint, but also by a defendant to amend the written statement (O. VI, R. 17) as has been observed by the Supreme

Court

that admission

made in the

written statement can be explained through an amendment." In the leading case of Cropper v.

Smith," the object

underlying

amendment of

pleadings has been laid down as follow:

"It is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Courts do not exist for the sake of discipline, but for the sake of deciding

matters in controversy. However, no application for amendment will be allowed after the commencement of trial unless the court is of the opinion that inspite of due diligence, a party could not have raised the matter before the commencement of the trial." Whether the party seeking

amendment

has acted

circumstances of each case.

with

due

"Due diligence

diligence

depends

on

the facts and

means reasonable diligence, it means

such diligence as a prudent man would exercise in the conduct of his own affairs."

During the intervening period of framing of issues and the date fixed for evidence, trial does not commence and to an application for amendment of pleadings, the proviso shall not apply. Preferential rights can ordinarily be claimed within one year and a plaintiff seeking amendment after 13 years is not

maintainable."

Before the

amendments of the year 2002 in the Code, leave to amend the pleadings could be

38. 39. 40. 41.

Ram Sarup Gupta v. Bhishun Narain Inter College, AIR 1987 SC 1242. Sushil Kr. Jain v. Manoj Kumar, AlR 2009 SC 2544: (2009) 10 SCC 434. Cropper v. Smith, (1884) 29 Ch D 700. Code of Civil Procedure, 1908(as inserted by the Amendment Act, 2002 w.e.f. 1 July 2002), proviso to

0. VI, R. 17. The proviso to O. VI, R. 17 does not apply to pleadingscompleted before the commencement of the Amendment Acts of 1999 and 2002 i.e. before 1 July, 2002. 42. HP State Civil Supplies Corpn Ltd. v. Palli Banal Co-op Agri ServicesSociety Ltd, AIR 2003 NOC 551 (HP). 43. Chander Kanta Bansal v. Rajinder Singh Anand, (2008) 5 SCC 117 (122).

44. AshutoshChaturvedi v. Prano Devi, AlR 2008 SC 2171 : AIR (1975 Pat 336, AR 1986 Ori 119, (2004) 3 SCC 392; AIR 1957 SC 357 and 2006 (13) Scale 332 relied on.

Chapter 6

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99

granted at any stage of the proceedings, before or after the trial and even at the

appellatestage. Generally, all amendments would be allowed which are necessary for the purpose of

determining

the real

question

in

controversy

berween the parties

to any

proceedings or for correcting any defect or error in any proceedings," provided it does not

substitute

a new cause of action,"

and where the

injury caused to the

opposite party can be compensated for by costs. However, negligent or careless may have been the first omission, and however late, the proposed amendment should be

allowed, if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs, but leave to amend will be refused if the amendment would convert the suit or the defence into another of a different and inconsistent character. Thus, if A sued B to recover certain property as the adopted son of C, he will nor be allowed at the hearing of the suit to amend his plaint by

alleging that if the court finds that the adoption is not valid, he is entitled to recover the property as the heir of D. Amendments are allowed to avoid uncalled for multiplicity of litigation."" An amendment which clears confusion in the pleadings," brings subsequent facts on record, would be allowed. However, no amendment would be allowed which amounts to defeating a legal right accruing to the opposite party on account of lapse

oftime. f amendmentsoughtdoesnotrequireanyfurtherevidenceorinconsistent evidence

such

type

of amendment

giving

clarification

in

pleading

must be

allowed."S1

The condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real

question in controversy. If that condition is not satisfied, the amendment should nor be allowed. On the other hand, if the amendment is necessary to decide the "real controversy" between the parties, the amendment should be allowed even though

the court may think that the party seeking the amendment will not be able to prove the amended plea. This is the basic test, which governs the courts unchartered powers of amendment of pleadings. No amendment should be allowed when it does

not satisty this cardinal test. The merits of the averments sought to be incorporated through amendment are not to be adjudged at the stage of consideration of prayer for amendment." In dealing with a prayer for amendment the courts normally prefer substance to form

45. Bakshish Singh v. Prithi Pal Singh, (1995) Supp 3 SCC 577; Arundhati Mishra v. Sri Ram Chatritra Pandey, (1994) 2 SCC 29.

Ka Kumaru.DipenderKau, (2005)9 SCC304. 47.

Bollepanda P. Poonacha v. K.M. Madapa, (2008) 13 SCC 179 (183-185).

48. DondapatNiarayananReddy . DuggR i eddy(,2001)8 SCC115. 49. Punjab National Bank v. Indian Bank, AIR 2003 SC 2284. 50. Prem Bakshi v. Dharam Dev, AIR 2002 SC 559: (2002) 2 SCC 2. S1. Yakub Ali v. Rubi,2011 (1) R.C.R.(Civil) 129 risng Prasad v. SteelProducts Ltd. ,AIR 1953 Cal. 15 53. Sampash Kumar u. Ayakannu, AIR 2002 SC 3369: (2002) 7 SCC 559.

Mulla The Key to Indian Practice

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Chapter 6

and techniques and the interest of justice is one of the most important considerations. If a party is entitled to amend its pleadings, the right of the party to amend cannot be defeated just because a wrong section or a wrong provision has

been quoted in the amendment petition." A delay in making an application for an amendment may be a ground for doub-

ling the genuineness of the amendment, but not a good ground for retusing the application. O. VI, R 17 of the Code speaks of amendment of pleadings whereas O. VII, R. 9 of the Code provides for subsequent pleadings by a defendant. The distinction berween the two provisions is widest. Whereas by unless a contrary

reason of the former intention is expressed by the court, any amendment carried out in

the pleadings shall relate back to the date of filing original thereof, subsequent pleadings stand on different footings." It is the duty of the court to decide as to has commenced is necessary to decide whether the amendment of WS after the trial the real dispute between the parties. Only if such a condition is fulfilled the

amendment should be allowed. The proviso to R 17 of O. VI of the Code restricts the power of the court and puts an embargo on exercise of its jurisdiction. Relief sought for by the defendants in a subsequent petition under Order 6 Rule 17 Civil Procedure Code was elaborately dealt with on the rwo earlier petitions filed by the defendant-appellants

under Order 6 Rule

16 and Order 8 Rule 9 Civil Procedure

Code. Subsequent petition labeling the petition under Order 6 Rule 17 Civil Procedure Code is wholly misconceived and was not entertainable. Filing of subsequent application for the some relief is an abuse of the process of the court.

Petitioner filed application for amendment of written statement on the ground that he has obtained a licence for setting up a housing

colony

during

pendency of

suit. Application filed after about 4-3/4 years after issuance of licence and afterissues have been framed. No cogent explanation forth coming on record why application for amendment was not filed before commencement of trial. As per proviso to Order 6

Rule

17,

no

application

for

amendment

shall

be

allowed

after

trial has

commenced, unless court comes to conclusion that in spite of due diligence party could not have raised the matter before commencement of trial. Therefore application cannot legally be allowed. A party seeking amendment is required to give cogent reasons than mere inadvertence for not taking the said plea earlier. The principles applicable to the amendment of the plaint are equally applicable to amendments of the written

S4. Venture Global Enginering v. Sayam Computer Services Lad, AIR 2010 SC 3371 (3374) : (2010) 8 SCC 660. 55. Estralla Rubber v. Dass Estate, (2001) 8 SCC 97.

6.

PAJayalakshmiv. HSaradha,(2009) 14 SCC 528 (528).

57. Vidyabati v. Padmalatha, AIR 2009 SC 1433 (1436), (2009) 2 SCC 409. S8. S. Malla Reddy v. Ms. Future Builders Co-operative Housing Society, 2013 (9) SCC 349 59. RP.S Associatesv. Om Parkash @ Hari Singh, 2012 (5) R.C.R.(Civil) 109 60. Gurdial Singh v. Raj Kumar Aneja, AIR 2002 SC 1003: (2002) 2 SCC 445.

Chapter 6

Steps in a Suit

statementbut

101

not with the same rigour and the courts are more generous in

allowing the amendment of the written statement. Case law on this subject abounds with insta es where courts have taken extremely liberal views in consideration of grant of amendments. As a general rule, amendments are allowed unless they cause such injustice to other party which cannot be compensated in terms of money or they are mala fide or they take away vested rights accrued to other party. Suppose A has fileda suit for recovery of money against B, and later on seeks to raise a new claim which is barred on the date of application for amendment, can such amendment be allowed? Does the court have power to allow such amendment and if yes, what is the effect? The court undoubtedly has the power to allow such amendment and if allowed, the amended claim or new claim shall be deemed to have been made on the date of suit and, therefore, will be saved from being time barred." It is a power which can save a claim by giving, so to speak, retrospective effect as if it was originally included on

the date of institution of the suit. In appropriatecases, the court may order that the amendment amendment

would would

take eftect take effect

from from

the date an the date an

application application

was made or the was made or the

amendment was allowed and not from the date when the plaint or written statement was presented."

Such

power

would be sparingly

exercised and as a general

rule,

amendments which have the effect of taking away vested rights will not be allowed.

Some of the important rules for drafting the client's pleading, ie., plaint written statement have already been covered.

or

Application of O.VI R.17 to otherproceedings The provisions of Rule 17 are equally applicable to other proceedings such as execution

proceedings, insolvency proceedings, arbitration proceedings, election matters, proceedings under the Land Acquisition Act, claim petitions etc. Even where provisions of the code are not applicable, courts and tribunals evolve their own procedure in conformity with the principles of natural justice, equity and goodconscience.

6.5.1 Scandalous

Allegations in Pleadings

One should not introduce any matter in any pleading which may be unnecessary or scandalous or which may tend to embarrass or delay the fair trial of the suit. If there is any such matter in the opponent's pleadings, one may apply to the court to have it struck out. In a suit to enforce a compromise of a former action, it is embarrassing if

the plaintiff sets out in the plaint the original disputes; such allegations will theretore be struck out (O. VI, R. 16).

61. BKNPillai v. P Pilai, AIR 2000 SC 614. 62. Leach Co. u. Jardine Skimmers. AlR 1957 SC 357. 63. Sampath Kumar v. Ayyakannu ,(2002) 7 SCC S59 64. Abdul Jabar v. Staseof Jammu and Kashmir, AIR 1957 SC 280; Vishwavicyalaya v. Rajkishore, AIR 1977 SC

615:(1977)

1 SCC 279.

65. Seechs.3 and). 66. See in this chapter, under the heading 'Written Statement.

102

Mulla The Key to Indian Practice

In Sathi Vijay Kumar v. Tota Singh,

Chapter 6

the Supreme Court stated:

It cannot be overlooked that normally, a court cannot direct as to how they should prepare their pleadings. If the parties have not offended the rules of pleadings by making averments or raising arguable issues, the court would not striking out pleadings. The power to strike out pleadings is extraordinary in nature and must be exercised by the court sparingly and with extreme care, caution and circumspection."

6.5.2 Particulars In all cases in which a party relies on any misrepresentation, fraud, breach of trust,

willful default or undue influence, etc; particulars (with dates and items ifnecessary) should be stated in the pleading. Thus, it is not sufficient for a party to make general allegations of fraud in his pleading. He ought to set out the particulars of the alleged fraud. If no particulars are given, the other party may apply to the court for an order directing the party pleading to give the particulars. If the particulars given are not sufficiently specific, the court may order further and better particulars (O. VI, R. 4). It is only when one knows the particulars that one knows the specific case at the hearing. When acting for a defendant, first get the particulars, and then draft the

written statement. In Bishundeo Narain v. SeogeniRai,

the Supreme Court observed:

"Now if there is one rule which is better established than any other, it is that in

cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence."

The courts have taken a strict view of the requirement to give particulars. If general averments are made

without

giving

particulars,

it is held that such averments are

insufficient even to amount to averments of fraud or other misconduct. In absence of particulars, the court will not treat the case as containing averments of such nature at al. No evidence will be allowed to be adduced when particulars are not pleaded. Moreover, when such particulars are pleaded it is necessary to confine to such particulars

only and the case can be decided on such particulars.

No other

evidence will be permitted to be adduced.

67. 68.

69.

Sathi Vijay Kumar v. Tota Singh. (2006) 13 SCC 353. Bishundeo Narain v. Seoger Rai, AIR 1951 SC 280. Read the Code of Civil Procedure, 1908, O. IV, O. V, O. VI, O. VII, R. 10-11; O. VIII and O. XI, R. 15.

1

CHAPTER

DocUMENTS AND WITNESSES

7.1 DISCOVERY AND INSPECTION [ORDER XI] The purpose of discovery,

inspection and production of documents is to enable a

party to a suit to obtain necessary information regarding the material facts constituting the case of the opposite party and to support their own case eicher directly by

obtaining admissions of the opposite party or indirectly by impeaching the case of the opponent. There can be a discovery of document for the purposes of securing, as far as possible, a disclosure of all material documents in the possession or power of the opposite party and to put an end to unnecessary and protracted inquiry as to the material documents in the possession or under the control of opposite party.' Grant or refusal of discovery of documents is at the discretion of the court, which is exercised keeping in mind the expediency, justness and the relevancy of the documents to the matter in question. The objection as to discovery of any document must be in atfidavit in prescribed form,' with such variations as circum-

stances may require. Every party to a suit 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. He is also entitled to obtain

admissions from his opponent to facilitate the proof of his own case. entitled to know the evidence of his opponent's case or the However, he is not

names of his witness, for if this were allowed, an unscrupulous party might tamper with his opponent's witnesses, and might manufacture evidence in contradiction and so shape his case as to defeat justice. It is different,

however, as to

documentary

evidence. A party to a suit is entitled to know beforehand what documents his

opponent has in his possession or power and to inspect them, whether they relate to his own case or to his opponent's case.

1. Remeshuar Narayan Singh u. Rikhanath Koeri, AlR 1920 Pat 131 (DB).

2. Sasanagoudav. SBAmarkhed, AR 1992 SC1163:1992 (1 U 775 (SC). 3. Code of Civil Procedure, 1908, Form No. 15, Appendix 4. Ibid., O. XI, R. 13.

, Sch. I.

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Mulla The Key to Indian Practice

It is clear from what has been stated above that A is bound, make discovery of, i.e., to disclose: (i)

all

material

facts

which

constitute

As case (but

Chapter 7

if B so requires it, to

no

evidentiary

facts

necessary to prove his case), and all facts necessary to support Bs case;

(i)

all documents in As possession or power relating to matters in question in the suit, even if they are against his case.

In case (), B obtains the information by administering interrogatories to his opponent, A, which A is bound to answer by affidavit. In case (i), A is bound to disclose the documents by affidavit; such affidavit is called the aftidavit of documents. Section 139 of the Code lays down that an affidavit is a statement in writing, made on oath before an officer of the court authorized to administer oaths. A person making an affidavit is called a deponent; he deposes to the facts contained

in the affidavit. These two modes of discovery shall be dealt with separately.

7.1.1 Interrogatories There can be discovery of facts by interrogatories.

Interrogatories

reter to a set of

series of questions drawn up for the purpose of being propounded to a party, witnesses or other person, having some information of interest in a case, and if the

information relates to documents in possession of the other party, the disclosure of the documents is called discovery of documents. A plaintiff may administer interrogatories to the defendant and a defendant may administer interrogatories to the plaintif. There are, however, cases in which one defendant may administer interrogatories to another defendant, as where the plaintiff's case is that if one of them is not liable, the other is. Interrogatories can be administered only by leave of the court. As a general rule no such leave is granted to a plaintiff until after the written statement is filed or the time to file it has expired, and no such leave is granted to the defendant until after he has filed his written statement. The interrogatories

must be in a prescribed form" with such variations as

circumstances may require. The party to whom interrogatories are delivered is bound to answer them by affidavit to be filed within 10 days after service of the interrogatories.

The affidavit in answer to

interrogatories

must be in prescribed

form with such variations as circumstances may require. In this context, O. XI, Rr. 1-11, 22 is relevant and states that if the person finds any of the interrogatories to be scandalous or irrelevant or not exhibited bona fide for the purposes of the suit, he may apply to the court within seven days after service thereof to strike them out on that ground under O. XI, R. 7. However he is not bound to do so; he may take the objection in the affidavit in answer, and refuse to answer them as is allowed under

O. XI, R. 6. They can be objected also on the ground of privilege or that the matter

5. Black's Law Dictionary, sixth edn. 6. Code of Civil Procedure, 1908, Sch. 1, Appendix

'C, Form No. 2.

7. 1bia., 0. XI, R. 4. 8. Code of Civil Procedure, 1908, Sch. I, Appendix 'C, Form No. 2. 9. Tbid., 0. XI, R. 9.

Chapter 7

Documents and Witnesses

105

inquired into are not sufficiently material at that stage or any other ground. The party interrogating may then, if so advised, apply to the court for an order requiring the party served to answer the interrogatories not answered by him. The court will

then consider the propriety of the objection taken by the party served, and if it disallows the objection to any interrogatory, it may order the party served to answer the interrogatory

by a further

evidence any one or more of without putting in the others.

affidavit. Any party may, at the trial of a suit, use in

the answers of the opposite party to

interrogatories

Interrogatories must relate directly to the matters in issue in the suit. The interrogatories in the nature of a fishing enquiry cannot be allowed." Interrogatories

would not be disallowed merely because the opposite partry has filed certain documents which give answer to the interrogatories. ' Interrogatories which do not relate directly to the matters in issue are deemed to be irrelevant, that they might be admissible on per S. 146 of the Indian Evidence credibility of a person will not be cross-examination. At the same

norwithstanding

the oral cross-examination of a witness. Thus as Act, 1872, questions which are put only to test the allowed, although of course they may be asked in time, one must be very cautious as to what

interrogatories should be exhibited to the opposite party. Delivering interrogatories to the opposite party gives him an opportunity of shaping his answers in the manner most favourable to him. The answers as a rule will be framed by his pleader, and that is an advantage which he does not possess while he is under cross-examination in the witness box. Therefore, only those interrogatories must be administered, the answers to which are absolutely necessary to enable one to determine the line of action. The rest must be lett for cross-examination.

The power to serve interrogatories would be liberally used whenever it can shorten litigation and serve the interest of justice, within certain limits and with considerable care and caution,'" and shall be refused if scandalous or are abuse of process of the court. The proper time for considering the question what particular questions the party interrogated

should be compelled to answer, is after the partry interrogated has

made his affidavit in answer (O. XI, R. 8). One defendant

may administer interrogatories to another defendant, provided

there is some right to be adjudicated in the

action between them, as the words

opposite party in O. X1, R. 1 are not restricted solely to the relationship of plaintiff and defendant. The proceedings referred to in S. 141 of the code include all "miscellaneous applications" and is not restricted only to original proceedings. The provisions of the code are applicable as far as possible to all proceedings and for that purpose application

under O. XI, R. 1 cannor be an exception.

Since the order

granting or rejecting prayer for interrogatories is neither a 'decree nor an 'appellable order, no appeal lies against it.

10. AFLDevelopersPut Lid v. Veena Trivedi, AIR 2000 Del 354. 11. Sharda Dhir v. AshokKumar Makhija, AIR 2003 Del 288:99 (2002) DLT 350.. 12. P Balan v. Central Bank of India, AIR 2000 Ker 24:(2001) 103 Comp Cas 746 (Ker). 13. Adarsh Palace Pvt. Ltd. v. Somanath Dwibedi, AIR 2010 (NOC) 490 (DB) : (2009) 108 CLT 74 (77): 2010 AIHC (NOC) 676 (Ori-DB) : 2009 (Supp.) OLR 902.

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Chapter 7

7.1.1.1 Form ofinterrogatories Title of the suit as in plaint Interrogatories

on behalf of the above

ned

plaintiff

(or defendant)

for the

examination of the abovenamed defendant (or plaintiff): (1) Did not, etc. (2) Has not, etc.

(3) Was not, etc.

7.1.1.2 Form of the Affidavit in Answer Title ofthe suit The answer of the abovenamed defendant (or plaintiff) to the interrogatories for his examination by the plaintiff (or defendant). In answer to the said interrogatories, I the abovenamed

defendant (or

plaintif),

make oath and say as follows:

(1) As to interrogatory No 1, Isay that... (2) As to interrogatory No 2, I say that..

(3) I object to answer the interrogatory (stategrounds ofobjections).

numbered 3 on the ground

that...

Sworn at Bombay on the

8th day of May 1914.

CD Defendant Before me

XY Commissioner

7.1.2 Affidavit of Documents The provisions regarding the discovery of documents, enable a party to compel his

opponent to disclose the documents in his power or possession, relating to any mater in question in a suit, in order to put an end to unnecessary and protracted inquiry as to the material documents in possession or under control of the opposite party.

Any parry to a suit may apply to the court for an order directing any other party to make his affidavit of documents. Even a defendant may apply for an order directing a co-defendant to make his affidavit of documents, where issues are joined berween them, as where a claim in the alternative

is made against

them. As a general rule, no

such order is made on the application of a plaintiff until after the written statement

is filed or the time to file it has expired, as no such order is made on the application of a defendant until after he has filed his written statement. The party required to

Chapter 7

Documents and Witmesses

107

make an affidavit of documents is bound to disclose all documents

which are or have

been in his possession or power, relating to any matter in question in the suit. However, discovery shall not be ordered if the court is of the opinion that it is not

necessary either for a fair disposal of the suit or for saving costs, or if the document is altogether irrelevant or immaterial or where the prayer has been made with a view to delaying the proceedings." Before ordering discovery or inspection, the court is also to satisfy itself that the documents are in existence." If there be any documents which he objects to produce for the inspection of the opposite party, he must specify them in a separate list and state the ground of his objection. After the affidavit has been filed and a copy thereof furnished to his adversary, the adversary is entitled to inspection of such of the documents as the party filing the affidavit does not object to produce. As regards the last mentioned

documents, it is for the court to decide

whether they are privileged from inspection. If they are privileged, no order for

inspection is made. The denial of inspection of privileged documents originates from the well known maxim soluspopuli est suprema lex (public welfare is the highest law).The following is a list of such documents.

) Documents which ofthemselvesevidenceexclusivelythe party's own case or title and contain nothing supporting or tending to support the adversary's case or title. Thus if A sues B tor the recovery of immovable property, B is not bound to produce for his inspection the title-deeds of

the property which B may have in his possession, provided they constitute evidence exclusively of B's title to the property, and contain nothing supporting his title to the property. (i)

Confidential communications berween a party and his legal adviser, eg, professional advice given by the legal adviser, entries in his diary of

communication berween him and his clients, et.

ii)

Public official documents, the production whereof would be injurious to publicinterests.

The following is a form of an affidavit of documents:

[Title ofthe suitl I, the abovenamed defendant, CD, make oath and say as

follows:

(1) I have in my possession or power the documents relating to the matters in question in this suit set forth in the first and second parts of the first schedule hereto. (2) I object to produce the said documents set forth

in the second part of the

first schedule hereto [stategrounds of objection].

14. Central Bank of India v. Shivam Udyog, AIR 1995 SC 711:(1995) 2 SCC 74. 15. Bhagwani Devi Mohata Hospital v. ADJ Raigarh, AIR 2005 Raj 274: 2005 (2) WLC 90. 16.

Indian Evidence Act, 1872, ss. 126,129.

17.

Tbid., ss. 123-24.

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108

Chapter 7

(3) I have had, but have not now, in my possession or power the documents relating to the matters in question in this suit set forth in the second schedule hereto.

(4) The last-mentioned documents were last in my possession or power on state when and what has become of them, and in whosepossession they now

are. (5) According to the best of my knowledge, information and belief I have not now, and never had, in my possession, custody or power or in the possession, custody or power of my pleader or agent, or in the possession, custody or power of any other person on my behalf, any account, book of account, voucher, receipt, letter, memorandum, paper or writing, or any copy of, or extract from any such document whatsoever, relating to the in matters question in this suit or any of them, or wherein any entry has been made relative to such matters or any of them, other than and except documents set forth in the said first and second schedules hereto.

the

Sworn at Bombay, etc. In para 5, A states on oath that he has no other documents

in his possession

or

power, however, B has reasons to suspect or believe that he has other documents in his possession relating to the matters in issue in the suit. The question would be as to whether B is entitled to an order directing A to make a further affidavit of documents and to disclose therein the documents which B says he must have in his possession.

The

answer

is no,

since as a general

rule,

As

adversary's

oath

is

conclusive. A reading of O. XI, Rr. 12-19 makes it clear that the only cases in which the court will make an order for a further affidavit are:

)when it appears (1) from the affidavit itself, or (2) from the documents disclosed therein, or (3) from the pleadings, that he has other documents in his possession;

i) where A has misconceived his case so that the court is particularly certain that if he had acted on a proper view of the law he would have disclosed further documents as in the case of British Association of Glass Bortle Manufacturers v. Nettelford.* It

is

not

necessary

that

documents

sought

to

be

discovered

must

be

admissible in evidence. It is sufticient if they are relevant and relate to any matter in question. If they can throw any light on the case, it is adequate to order discovery. It is also not necessary that a party seeking discovery must specify the documents. It is quite likely that he may not be aware about the details and he may come to know

only after the affidavit is filed."" It is not incumbent upon applicant to file affidavit along with application for discovery of documents. Also there is no need to specify

18. British Association ofGlass Bottle Manufacturer v. Nertleford, (1912) AC 709. 19. ML Sethi v. RP Kapur, AIR 1972 SC 2379: (1972) 2 SCC 427.

Documents and Witnesses

Chapter 7

document sought to be produced. Every document

109 throwing

light on the case is

relevant though inadmissible.20

7.1.3 Premature Discovery Where the right to the discovery or the inspection sought depends on the determination of any issue in the suit, the court may try that issue as a preliminary issue betore deciding upon the right to the discovery or inspection. Thus if a person is sued for an account of profits made by him by an alleged breach of trust, and if he denies that he was a trustee for the plaintiff, the court may try the issue as to whether the defendant was a trustee, before directing him to produce his books for the plaintiff's inspection.

7.1.4 Inspection Where a party knows that the other party is in possession of relevant documents,

then an application can be made for their production, without first asking for discovery of documents. The primary object of Order XI, Rule 15-19 is the exchange of documents between parties to the suit even before settlement of issues so as to curtail the procedural delay.

Where in the pleadings, affidavit or list of documents annexed with the pleadings of a party, or a reference is made to any document, the other

party may give notice

to produce such documents for the inspection of the party giving notice and to

permit takingcopies of it."" It is a valuable right given to a litigant to inspect original documents produced before the court or otherwise relevant to the subject-matter of inquiry. The documents are required to be divided into three broad categories for the purpose of

understanding the right of inspection available under the Code with regard to them:

) Documentsreferredto inpleadingsoraffidavits. (i)

Documents entered in the list annexed to pleadings.

Cii) Other documents. Every party to a suit is entitled to inspect the documents falling within

the first two

categories as a matter of right. The other party cannot refuse inspection in respect of such documents. It is also entitled to take copies of such documents. If the other party does not offer inspection, it shall nor be enticled to put the same in evidence in that suit unless he can establish that it relates to his own title or that there was any

other sufficient cause for not complying with the notice. For documents falling within the third category, inspection cannot be obtained as a matter of right. An application is required to be made showing relevance of the 20. Narendra Gole v. Ram Krishna Sharma, AIR 2011 (NOC) 229 (MP-DB); W.P. No. 5857 of 2010, dt. 13-10-2010. Sri Niwas v. Election Tribunal of Lucknow, AIR 1955 All 251 (DB). 21. 22. Code of Civil Procedure, 1908, O. XI, R. 15.

110

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documents of which inspection is sought and that they are in power or possession of other party. Inspection will be granted if the court is satisfied about relevance and their necessity or utility in the fair disposal of the case. The notice to produce the documents for inspection must be in the prescribed form with such variations as the circumstances may require" and must be given at or before the settlement of issues." This stipulation in O. XI, R. 15, is nothing but directory and does not mean that inspection cannot be allowed after the settlement

ofissues.0 The party to whom notice to produce the documents is given, within 10 days of the receipt of notice has to notify to the other party giving notice of the date, time and place where the document can be inspected and such time shall not be beyond three days from the date of delivery of such notice. Such notice has to be in the prescribed Code of Civil Procedure 1908, Sch I, Appendix 'C', form no 8. A question that would arise here would be as to at what stage can inspection be obtained. Normally, a party is entitled to ask for inspection after pleadings are over on both sides, but the Code does not impose any restrictions in this regard and allows inspection at any time. Inspection can be obtained even before the written statement is filed. It rests within the discretionary powers of the court. In one case,

and inspection of however, the Bombay High Court refused to allow production documents before the written statement was filed."" During the course of inspection, a party is entitled to make notes or even take out photocopies of the same."

7.1.5 Non-compliance with Order for Discovery or Inspection The party not complying with the notice to produce the documents will not be able to put any such documents in evidence, on his behalf in such suit." The consequences of non-compliance with the order to answer interrogatories, or for discovery or inspection of documents havebeen dealt with under O. XI, R. 21 of the Code, which provides that if the non-compliance of such an order is on the part of the plaintiff, his suit is liable to be dismissed and if the non-compliance of such order is on the part of the defendant, his defence is liable to be struck off. The party seeking discovery, interrogation or inspection may give an application which may be decided after hearing the defaulting party. The power to dismiss the suit or strike out the defence can be exercised either suo mou or upon application of any party. Where the defendant does not care to comply with the orders of the court and in a

23. Ibid., Sch. I, Appendix C, Form No. 7. 24. Ibid., 0. XI, R. 16. 25.

Tbid. (as amended by the Amendment Act, 1999, w.e.f. 1 July 2002), O. XI, R. 15.

26. SalemAdvocate Bar Association v. Union of India, AIR 2005 SC 3353: (2005) 6 SCC 344. 27. Indian Overseas Bank v. Shreekrishna Woolen Mills Put. Ltd, AIR 1988 Bom 343: (1987) 89 Bom LR 510. 28. Jagatbhai Punjabhai Palkhiwala v.

Vikrambhai Punjabhai Palkhiwala,

GLR 1242. 29. Code of Civil Procedure, 1908, O. XI, R. 15.

AlR 1985 Guj 112 : (1984) 2

Chapter 7

Documents and Witnesses

111

way ignores the orders, his defence can be struck off." However, the defence would not be struck ott merely because the defendant has not responded to the notice to produce the documents. The power must be exercised only where the defaulting

party fails to attend the hearing or is guilty of prolonged or inordinate or inexcusable delay which may cause substantial or serious prejudice to the opposite party." The sine qua

non

tor

exercising

the

power

order

R. 21

is

failure

to

answer

the

interrogatories, order of discovery or inspection of documents. The suit cannot be dismissed under O. XI, R. 21 for non-compliance of R. 14 which is with respect to production of documents." Where a suit has been dismissed under R. 21, the

plaintiff shall be precluded from bringing a fresh suit on the same cause of action. A drastic power is conferred under this rule and it is quite essential that it must be sparingly used. A suit or defence cannot be lightly thrown out. The default must be willful. There must be obstinacy or contumacy in disregarding the order of the court. Such power

must be exercised as a matter of last resort when faced with

willful and deliberate disregard of the order of the court"

7.2 NOTICE TO ADMIT FACTS OR DocUMENTS [ORDER XI] Facts admitted

by the parties to a suitt need not be proved.

Admission

in the

pleadings or judicial admissions made by the parties, at or before the hearing of the case, stand on a higher footing than evidentiary admissions and are binding on the

party making them and constitute waiver of proof means admission of facts contained in the document.

Admission of a document

Admissions are not conclusive and a gratuitous or erroneous admission can be withdrawn. Further, admissions are to be taken in entirety.

Admissions need not be made expressly in the pleadings and the court can proceed even on

constructive

admissions.

Admissions can be de hors the pleadings and need

not necessarily be contained in the pleadings. And such admissions can be oral or in

writing. Order XII,

Rr. 2-5

of the Code provide that after discovery is made and

inspection is taken, the next step to be taken is to call upon the adversary, by notice

in writing, to admit within seven days of the date of service of the notice, the genuineness of documents which one wants to use at the hearing, and to admit facts constituting evidence of the case. If no such admission is made by the adversary where it ought to have been made, he will be liable to pay the costs of proving the

30. D Ram Mohan Rao v. Sridevi Hotels Pvt. Ld. (MIs), AIR 2003 NOC 345 (AP).

31. ShardammaKaveri v. SharadG adau, AR 2005 Kant 445: 2005 (6) Kar 1 284. 32. Babbar Sewing Machine Co u. Trilok Nath Mahajan, AIR 1978 SC 1436: 1978 4 SCC 188. 33. Archdioceseof Bhopal v. Hasan Kabir, 2009 (4) MP LJ 530 (533, 535) (DB).

34. Babbar Sewing Machine Co u. Trilok Nath Mahajan, AlR 1978 SC 1436.

5. NagindasRamdasv. Dalpatramlecharam,AIR 1974SC 471: (1974)1SCC 242. 36. Sitaram Morilal Kalal v. SantanuPrasadJaishankerBhatt, AIR 1966 SC 1697: (1966) 3 SCR 527. 37. Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.t. 1 July, 2002), O. XII, R. 2. Mohd. Yunus u. Deviani, (2010) 4 MP LJ 24 (28) (DB).

112

Mulla The Key to Indian Practice

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documents and facts. By virtue of O. XII, R. 3A, the court may, at any stage of the proceedings, without any notice to admit documents being given by the other pary, of its own motion call upon a party to admit a document and record whether that party admits, refuses or neglects to admit that document. If the documents are not denied specifically or by necessary implication or stated to be not admitted, they are deemed to be admitted unless the court insists upon their formal proof independently. Therefore, every notice for admission of documents must be carefully replied and denied or not admitted, failing which the court may treat them as admitted, dispensing with their formal proof. A notice in writing calling upon the other party to admit facts can also be served at any time not later than nine days before the hearing, and if the other partry refuses or neglects to admit such facts within six days of service of such notice, the costs of proving those facs shall be paid by the party so refusing or neglecting. An admission made in pursuance of the notice

shall be only for the purposes of that particular suit (O. XII, R. 4). Where admissions of facts are made, the court is empowered to make order or give judgment having due regard to admissions made. Such admissions may be oral or written. For such order or judgment, it is not necessary to wait for determination of other disputed matters. In one case, the Delhi High Court gave judgment in respect of a portion of an award admitted by the other party holding that this

provision is applicable to applications under the Arbitration Act, 1940.

The object

behind the rule is laudable. The court should be able to make an order at least where

there are no disputes between the parties. It need not wait till other disputed matters are resolved or adjudicated. However, judgment on admissions cannot be claimed as a matter of right and depends on the discretion of the court, which must be satisfied that the admission relied upon is dear, definite and unequivocal." A party, on the admission of other party can press for judgment as a matter of legal right. However,

the court always retains its discretion in the matter of pronouncing judgment."

Admission should betakenas whole It is well settled that an admission must be taken as whole or not at all.

In Utam Singh Duggal & Co. Ld. v. United Bank of India," it wasobserved that "where one portion of the claim was admitted and the other portion was denied, and both the portions were severable, the

plaintiff

could ask for a judgment

on the

portion admitted by the defendant." Whether

there is a clear admission or not, cannor be decided on the basis of

judicial precedents. The decision of the question depends on the facts of the case." If there is any admission by the defendant or an admission can be inferred from the 38.

Bharat Overseas Construction (P) Lid v. University Teachers o-op. Howsing Sociery Lid., AIR 1991 Del

20:39 (1989) DLT 446. 39. 40. 41. 42.

Razia Begum v. Anwar Begum, AIR 1958 SC 886. Karam Kapahi v. Lal ChandPC Trust, (2010) 4 SCC 753: AIR 2010 SC 2077. Uttam SinghDuggal o Co. Ltd. v. United Bank of India, (2000) 7 SCC 120. JeevanDieses Electricals Ltd.vu Jasbir Singh Chadha, AIR 2010 SC 1890 (1893) : (2010) 6 SCC 601: (2010) 4 LW 114: (2010) 5 MLJ 311 (SC).

Documens and Witnesses

Chapter 7

113

facts and circumstances of the case without any dispute, such admissions can be acted upon in order to expedite and dispose of the matter." It is a well settled

principle of law that a counsel can make not only concession on a question of law but also on facts which would be binding on the parties. A decree can be passed on the basis of such concession in terms of O. XII, R. 6 of the code." Judgment on admissions can be passed by the court on its own motion without an application made by a party or on the application of any party. The judgment-on admission can be passed even after issues have been

framed,"

and even at

the stage of final

arguments. "The power to give judgment under this rule is discretionary and enabling in nature and the party cannot claim it as of right. The Court is also not bound to pass a judgment upon admission. If the court is of the opinion that it is not sate to pass a judgment on admission, or that a case involves questions which cannot be appropriately dealt and decided on the basis of admission, it may, in the exercise of its discretion, retuse to pass a judgment and may insist upon clear proof of even admitted facs.' *"The provision under O. XII, R. 6 of the code is not mandatory still the purpose for which such a provision has been inserted should be taken into consideration. Order 12 Rule 6 confers wide discretion on court to pass judgment either at stage of suit on basis of admission of facts made in pleadings or otherwise. But court shall later on decide other questions which arise for consideration in suit. Provisions of Order 12 Rule 6 are not mandatory rather

discretionary. While exercising the power of passing Judgment on admission made in pleading or otherwise Court must keep matter pending for adjudication so far as other issues are concerned.

Conclusiveness of admission In Nagubai

Ammal v. B. Shama Rao

"An admission is not conclusive as to the

truth of the matter stated therein. It is only a piece of evidence; the weight to be attached to such admission should depend upon circumstances under which it was made. It can be shown to be erroneous or untrue."

7.3 SUMMONING OF WITNESSES [ORDER XVi] Rule I of O. 16 provides for presenting a list of witnesses proposed to be called by a party and obtaining summonses to such persons on or before the day appointed by the court, which must not be later than 15 days after the date on which issues are

settled. If the party failed to obtain the summonses through court for attendance of witnesses, they are at liberty to have the witness brought

without the assistance of

43. Chananjit Lal Mehra v. Kamal Saroj Mahajan, AIR 2005 SC 2765 : (2005) 11 SCC 279. 44. Saroj Anand v. Prahlad Rai Anand, (2009) 15 SCC 505 (512): 2009 (4)Scale 474. 45. Rajiv Sharma v. Rajiv Gupta, AIR 2004 Delhi 248 (DB); Dinesh K Singhania v. CaleuttaStockExchange

AssociationLtd., (2005) 2 CHN 601l (Cal-DB).

46. P'arivaS r eva Sansthanv. VenaKalra,AlR2000Del 349: 86(2000) DLT 817. t 47. RaziaBegumu.SahebzadiAnwarBegum, AlR 1958 SC 886 48. Maluwa Strips P. Lid. v. Jyoti Lrd., (2009) 2 SCC 426 (431): AIR 2009 SC 1581. 49. RaveeshChand Jain v. Raj Rani Jain ,2015 (2) R.C.R(Civil) 118 50. Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593.

1

10 2e1s6)

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the court under R. 1A of O. XVI. Nonetheless, when they seek the assistance of the court, they are enjoined to give reasons as to why they have not filed the application within the time preseribed under R. 1 of O. XVI. In

order to issue a summons

to a witness

to adduce

evidence

or to

produce

documents in court, the parties to the suit must present a list of witnesses of whom they propose to call as witnesses, not later than 15 days from the date of settlement of issues. The court may, in appropriate cases, condone the delay and receive the list even after 15 days." To ensure he attendance of a witness, either party may apply to the court for issuing summons upon them; stating in such application the purpose

for which the witness is proposed to be summoned.

Summons

shall be

issued by the court only in respect of the witness whose names appear in the list of witnesses. The court, in its discretion, may permit a party to summon any witness, other than those whose names appear in the list of witnesses on sufficient cause for omission of name of such witness, shown. A person may be summoned to produce a document without being summoned to give evidence and any person summoned merely to produce a document will be deemed to have complied with the summons if he causes the document required to be produced in the court.

A person is entitled to apply to the court for a witness-summons (or subpoena as it is called), at any time after the institution of the suit. It does not matter at what stage of the suit it is applied for. It may be applied for even after the hearing has

commenced and the court has no power of refusal to issue it. The only case in which it may be refused is when the application is not made bona fide, where the person knows that the oppoSite party 1s not going to come into court on sentimental grounds, and yet proposes to call the opposite party as his own witness to put pressure upon him. To issue the summons in such a case would amount to an abuse

of the process of the court and the court may refuse it under its inherent powers as specified under S. 151.

Before the summons is granted, a sum of money should be paid into court sufficient to defray the travelling and other expenses of the person summoned and his subsistence allowance for one day. The sum so paid into court is to be tendered

to the person summoned at the time of serving the summons. If the person summoned is detained for a longer period than one day, a further sum sufficient to defray the expenses of his detention has to be paid into court, and the same is then to be tendered to him. Order XVI clearly lays down that

a summons to a witness is

to be served as nearly

as may be in the same manner, as a summons to a defendant.

If the witness fails to

attend, the court may issue a proclamation requiring him to attend and may at the same time issue a warrant for his arrest and make an order for the attachment of his

property. If the witness then appears and satisfies the court that there was sufficient cause for his non-appearance, the court may order the property to be released from 51. LalithaJ. Rai v. Aithapparai, AIR 1995 SC 1984: (1995) 4 SCC 244. 52.

NBalraju v. G Vidyadhar, AIR 2004 AP 516.

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115

Documents and Witnesses

attachment. However if he does not appear or appears but fails to satisfy the court, the court may impose upon him a fine not

exceeding Rs 500, and may order the

property attached to be sold for the payment of the amount of the fine. "The above provisions enact the machinery for procuring attendance of witnesses. It is the duty of the court to entorce attendance of witnesses summoned by the parties, if necessary by coercive process. These provisions are essential and have been enacted

with a

purposeful eye, because the consenting parties in a suit usually have no control over It should not, however be witnesses who may be required to give evidence. forgotten that a party runs a serious risk by invoking coercive machinery for compelling his witnesses to remain present. It is quite likely that on accou t ofssuch process being issued, he may turn hostile and may not support the case of the party at whose instance he is called as witness. Since the provisions of Rule 10 are penal in

nature, the procedure laid down therein must be strictly

followed."The

provision

under R. 1l of O. XVI of the code is subject to the provisions of sub-rule (3) of R. 1 so before proceeding to examine any witnesses who might have been brought by a

party for the purpose, the leave of the court may be necessary. This by itself would not mean that R. 1A is in derogation to sub-rule (3) of R. 1 of the code.

However

0. XVII, R. 1A states that if it is managed to bring in witnesses, there is no necessity that they must appear in response to summons. They can volunteer to give evidence at the behest of either party. This applies to the production of documents by the witness also. In case where witnesses are not likely to come on their own and summons are

required to be issued, a list of witnesses for evidence or production of documents must be provided within 15 days from the date of settlement of issues. One will not be entitled to examine a witness whose name is not shown in the list unless sufficient cause for the omission of his name is shown. It is also to be remembered that when an application is made for summons, it must specifically state the purpose for which

summons is required to be issued. If it is for giving evidence, it must state so. If it is for production of documents only, it must be clarified. The idea seems to be that the person to whom summons has to be issued must know for what purpose he is being summoned to the court. As regards service of summons, now there is an additional mode of available by R. 7A. If : party applies, the court can hand over or summons for service to that party. This is called direct service. The required to pay any process fees in such a case. If the witness refuses to

service made deliver such party is not accept or to

ign acknowledgment or if it cannot beserved directly, the summons thereafter may be served through the court machinery as if it were a summons to the detendant. If the witness is served, the party must report to the court accordingly. If such witness does not remain present, the court shall examine the party before taking any action against the witness.

53. National Rice co-Dal Mills v. FoodCorpn. Of India, AIR 1972 P&H 163. 54. DuwarkaPrasad Bai v. Rajkunwar Bai, AlR 1976 MP 214. 55. Ashok Sharma u. Ram Adhar. (2009) 11 SCC 47 (50): (2009) 2 SCR 9.

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It is not expected that the name of a witness be given in the list if he is going to attend voluntarily. The list is required only for those witnesses for whom summons must be issued. If there is any delay or omission, it may be condoned on sufficient cause being shown. The court must adopt a liberal approach on the ground that procedural laws are handmaidens of justice and they must not be construed in a

narrow or pedantic manner."

7.4 PRODUCTION OF DOCUMENTS [ORDER XI] The parties are required to produce the documentary evidence in their power and possession, i.e., in actual physical possession or control, on or before settlement of issues. There are some rules which require production of certain documents along

with pleadings (O. VIIR. 14; O. VIII, R. 1A). All original documents not produced earlier must be produced before settlement of issues. Such production is a matter of right and no permission is required to be obtained, but once that stage is crossed, the

production of documentspasses into the domain of discretion of court and can be done only on permission. While granting permission, court may impose costs. It may even refuse permission if late production is likely to lead to irreparable injustice to other side. Where the documents were in possession of the plaintiff even on the date of filing of the suit, but were not filed at the appropriate stage, they cannot be admitted at later stage unless cogent reasons are given." At the same time; omission to mention the documents in the plaint or subsequent incidental or supplemental

pleadings, does not affect the power of the court to grant leave to produce the documents at a later stage.

"The court has power to receive any document at a later

stage if thegenuinenessof a document is beyond doubt and it is relevant or material to decide the real issue in controversy. where a eivil proceeding as well as criminal

It is a well settled

principle

of law that

proceeding is pending, the latter should

begiven primacy. The court may adopt a liberal approach and late production,

normally allowed, is opportunity is given to the other side to adduce

attended to with costs and further further evidence, if necessary. There are two exceptions to this rule. When documents are tendered for cross-examination of witness of the other side or

refreshing the memory of a witness, this rule does not apply and such production is allowed at any stage and this may be understood in the light of O. XI, O. XII, O.

XVI of the Code.

56. 57. 58. 59.

MangeRam v. Brij Mohan, AIR 1983 SC 925: (1983) 4 SCC 36. BennettColeman & CoLud (MIs) v Janaki Ballav Patnaik, ATR 1989 Ori 145. Hardyal Singh v. Kamlinder Kaur, 2002 AIHC 2171 (Del) :97 (2002) DLT 868. Bada Bodiah v. Bada Lingaswamy, 2003 AlHC 1285 (AP): 2003 (1) ALD 790.

60. Billa Jagan Mohan v. Billa Sanjeeva ,(1994) 4 SCC 659 61. Lakshmi v. Chinnammal, AlR 2009 SC 2352. 62. Madan Gopal Kanodia u. Mamraj Maniram & Ors, AIR 1976 SC 461: (1977) 1 SCC 669.

8

CHAPTERO

HEARING AND DISPoSAL

1Rf 11 8.1

FIRST

HEARING

AND

SETTLEMENT OF ISSUES

[ORDERX;

ORDER XII, RULES 1-2; ORDERS XI-XV] The suit is now ready tor hearing. In a large majority presidency towns, the hearing is split into two parts, namelys

of courts

outside

the

(1) First hearing at which issues are settled; and

(2) hearing when evidence is taken of the parties and their witnesses. The term first hearing

of a suit has not been defined in the Code. It is the day on

which the court applies its mind and goes into the pleadings of the parties in order to understand

their

contention.'

small cause suit, the first hearing

In cases in which no issue need be framed, e.g.

would be the day on which the trial starts.

It has already been mentioned the material facts on which the Framing of issues is an important laying the path on which the trial therefrom." The correct decision issues, correctly

determining

that every pleading should contain a statement of party pleading, relies for his claim or defence. stage at which scope of the trial is determined by shall proceed excluding departures and diversions of civil lis largely depends on correct framing of

the real points in controversy

which needs to be

decided.

An issue means a point

in question at the

conclusion

of pleadings berween

contending parties in an action. Issues arise when a material proposition of fact or law in affirmed by one party and denied or not admitted by the other.

1. Arjun Khiamal Makhijani v. Jamnadas Tuliani, AIR 1989 SC 1599; Siraj Ahmed Siddiqui v. Prem Nath Kapoor, AIR 1993 SC 2525. 2. Sangyam Singh v. Election Tribunal, AIR 1955 SC 425. 3. See ch. 3.

4. Makhan Lal Bangal v. Manas Bhunia, AIR 2001 SC 490. S. New Shorter Oxford English Dictionary, 1993.

Mulla The Ky to Indian Practice

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Chapter8

"Issues are the backbone of a suit. They are also the lamp-post which enlightens the parties to the proceedings, the trial court and even the appellate court- as to what is the controversy, what is evidence and where lies the way to truth and justice. ,6

The duty of framing proper issues rests with the judge himself, however, the parties and their consents are bound to asist the court in the process of framing of issues. It does not mean that the failure to take point in framing issues, shall amount to abandonment of issues or that such party shall not have a right to crossexamine. The question of maintainability of suit by itself does not give rise to a triable issue. The High Court is competent to dispose of the suit on preliminary issues,as contemplated in O. XIV, R. 1, which may include the issues with regard to

maintainability of suit. Order XIV, R. 1(2) states that 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. Issues are of rwo kinds, namely (1) issues of fact; and (2) issues of law. However, there may be issues of mixed law and fact. Every material proposition affirmed by one parry and denied by the other shall form a subject of a distinct issue. No issues should be raised on subsidiary matters of fact. The object of framing issues is to direct the attention of parties to the principal question on which they are at variance. What one has to prove at the hearing is the existence or non-existence of facts in issue, these have to be proved by facts, which are called evidentiary facts. These evidentiary facts must be relevant facts, i.e., they must be relevant to the facts in issue. One should, at the hearing of the suit, direct the attention to the facts in issue, in other words, the issues and the evidence which lead to prove either the existence or non-existence of the facts in issue, must be

relevant to the facts in issue. Not every fact which has a bearing of some sort on the fact in issue is a relevant fact. There are relevant facts in Ss. 5 to 55 of the Indian

Evidence Act, 1872.

At the first hearing of the suit, the parties have to:

) appear in court either in person or by a pleader who is able to answer all material questions relating to the suit, or to send some person on his behalf who is able to answer such questions;

(i)

produce in court have nor already required by O. document which

all documents on which he intends to rely and which been filed in court, when the plaint was presented as XIII, R. 1; O. VII, Rr. 14-18; O. VIII, R. 1A. No is not produced at the first hearing will be received in evidence at any subsequent stage of the proceedings, unless good cause is shown.

6. Stateof Gujarat v.JaipalsinghJaswantsinghEngg o Contractors, (1994) Guj. L.R. 258 7. Makhan Lal Bangal v. Manas Bhunia, AIR 2001 SC 490. 8. Ajay Mohan v. H.N. Rai, (2008) 2 SCC 507: AIR 2008 SC 804. 9. Abdul Gafur v. State of Uttarakhand, (2008) 10 SCC 97 (103) : 2008 (11) Scale 263.

Chapter 8

119

Hearing and Disposal

At the first hearing of the suit, after reading the plaint and the written statement, the answers to interrogatories (if any), and such documents as it thinks proper, the Court has to:

(i) ascertain from the party or his pleader which material facts in the pleading of either party are admitted or denied by the other, and for that purpose, to examine, if necessary, the parties or any person on their behalf who is able to answer material questions relating to the suit according to O. XI and it any party refused or was unable to answer any material question, the

hearing must be postponed for not more than seven days with directions to the party to appear in person" and after so doing:

()

(ii)

direct the parties to opr for one of the modes for settlement of dispute outside the court, namely, through arbitration, conciliation, settlement through Lok Adalat, and mediation;" frame and record the issues on which decision of the case appears to depend;

(iv) at once pronounce the judgment, if it appears that the parties are not at issues on any question of law or fact in accordance with O. XV, R. 1. It will thus be seen that the principal object of the first hearing is to settle issues, and that issues are framed from the following materials: (a) pleadings; (b) answers to interrogatories;

() documents produced by the parties; and (d) statements made on oath by the parties or by any persons present on their behalf, and statements made by the pleaders of the parties (O.

XIV, R. 3). Where it appears to the court that issues cannot be framed

properly

without

examination of any person or inspection of any document not produced on record, it may order examination of the person or documents as the case may be.

Issues which do not arise from pleadings or other aforesaid materials should not be

framed.2 The court has the power under O. XIV, Rr. 1(5) and 5 of the Code at any time before passing the decree to amend the issues, to frame additional issues, and to strike out issues that appear to it to be wrongly framed. One has to be careful at the time when issues are framed since the burden of proof is sometimes reflected in the way in which they are framed. No important issues should be omitted to be raised because it may vitiate the trial, but not always. Where the parties well understood the two cases opposed to each other and led all the evidence in

support of their

10. Code Civil

1 July 2002), O. X,

Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f.

R.4(1). 11. Tbid. (as inserted by the Amendment Act, 1999 w.e.f. 1 July 2002), s. 89. 12. Site Ram v. Radha Bai, AIR 1950 PC 68.

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contentions, the absence of an issue shall not be fatal to the case and there shall be

no miscarriage of justice." A denovo trial may be ordered only if

the omission to

frame a particular issue affects the disposal of the case on merits," eg., dismissal of suit being barred by limitation without framing appropriate issue regarding limitation." Necessary issues ought to be framed by the trial court in order to

determine rights of the parties.

6

Whether the Suit can be Decided on a Single

8.1.1

Issue Leaving

Other Issues Undecided There may be situations where the whole suit may be disposed of on a particular issue or ground and where there may not be any necessity to frame and decide other issues. Here the question that arises is, suppose the suit is barred

by res

judicata or the court has no jurisdiction over the subject-matter, is it possible to dispose of the suit on this issue alone? Here O. XIV, R. 2 provides an answer. A civil court can dispose of a suit on preliminary issues. The issues of res judicata constructive res judicata as also the maintainability of the suit can be adjudicated upon as preliminary issues. And when facts are admitted such issues shall be decided as preliminary issues." Ordinarily, and as a general rule, the court must pronounce judgment on all issues. Once issues have been framed, court has to

proceed to record evidence and pronounce judgments on all issues. The dismissal

of suit as not maintainable, after framing issues, is wrong procedure and is illegal." It is not permissible to decide a case on a preliminary issue even when it is possible to do so unless certain conditions mentioned in O. XIV, R. 2 are satisfied. The

conditions are:

)

The court must be of the opinion that a case or any part thereof may be disposed of on any particular issue.

(i) It must be an issue of law. If it is an issue of fact or mixed issue of fact and law, it cannot be decided as a preliminary issue.

(Gii) The issue of law must relate to the jurisdiction of the court or bar created by any law to the suit. If the aforesaid conditions are satisfied, the court may frame the preliminary issue and decide the suit and postpone the settlement of other issues to a later stage, if and when required. It the suit is required to be decided after decision of preliminary issue, other issues may be framed. If not, the suit shall be dismissed. Issue relating to

13. SayedaAkhtar v. Abdul Ahad, AIR 2003 SC 2985 : (2003) 7 SCC 52. 14. KawalKishan u. Dina Nath, AIR 1993 SC 881:(1992) 2 SCC 51.

15. See Pratima Sinha v. Shashi Kumar Naraina Sinha, (2004) 13 SCC 599.

16. NafeesaUsmani u. Anwar Jahan, 2009 AIHC (NOC) 913 (MP) (DB); W.P. No. 8987 of 2007. Dt. 28.1.2009, see also Ajit Gaitonde v. Ezilda E. C. Pinto, 2009 AIHC 3292 (Bom-DB) : 2011 (1) RCR

(Civil) 477. 17. Abdul Rahman v. Prasony Bai, AlR 2003 SC 718: (2003) 1 SCC 488. . 18. R Gopalkrishna v. K.S. Corpn., 2008 (5) Kar LJ 327 (331-332) (DB) : AIR 2008 Kant 77: ILR 2008

KAR 2034.

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Chapter8 sufticiency preliminary

of court fees is not mere issue of

121

law, hence cannot be decided as

issue."19

Only issues of laws pertaining to jurisdiction or bar created by any law to the suit are capable of being framed as preliminary issues. Issues of fact, mixed issues of fact and law and issues of law other than the aforesaid cannot be tried as preliminary issues. In view of provisions under O. XIV, R. 2, evidence must be accepted on all issues. Where jurisdiction becomes a mixed question of fact and law, it cannot be decided as a preliminary issue." Issues regarding territorial jurisdiction and limitation can also be tried as preliminary issues even if they depend upon factual evidence.

Order 14 Rule 2 of CPC confers power upon the Court to pronounce judgment on all the issues but where issues both of law and fact arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on the issue of law, it may try that issue first if that issue relates to the jurisdiction of the Court or a bar to the suit created by any law. There is a mandate to the Court that notwithstanding

that a case may be disposed of on a preliminary issue, the Court has

to pronounce judgment on all the issues. The only exception to this is contained in sub-rule (2). This sub-rule relaxes the mandate to a limited extent by conferring discretion upon the Court that if the Court is of opinion that the case or any part

thereof may be disposed of "on an issue of law only", it may try that issue first The exercise of this discretion is further limited to the contingency that the issue to be so tried must relate to the jurisdiction of the Court or a bar to the suit created by a law

in force.21 The power to dispose of the suit on preliminary issues is, however, discretionary. Even if the aforesaid conditions are fulfilled, the court may refuse to decide the

matter on preliminary issues in exercise of its discretion." The allegation of fraud cannot be heard and decided as a preliminary issue. Ordinarily suits and proceedings

should be decided by rendering finding on all theissues. The following will be the eight issues in the suit for specific performance in the plaint and the written statement given in this book:"

)

Whether the sale was not to be completed and the purchase money to be paid on 1 May 1914 as alleged in para (1) of the written statement?

(i)

Whether

it

was

not

agreed

between

the

plaintiff

and

the

defendant that time should be the essence of the contract as alleged in the said paragraph?

19. Moola Vijaya Bhaskar u. Moola S.S. Ravi Prakash, AIR 2009 AP 150, see also Nawab Shagafath Ali Khan

. NawabImdadHahBahadur,(2009) 5 SCC162(178). 20. SaradekantaPanda v. PoonamPadhi, (2010) (1) DMC 728(731) (DB) : AIR 2009 Ori 145 21. Foreshore Co-operative Housing Society Limited v. Praveen D. Desai (Dead), 2015 (2) R.C.R.(Civil) 42. 22. Sunni Central Wagf Board Ors v. Gopal Singh Vishrad o Ors, AIR 1991 All 89. 25. Renubala Nama v. Renubala Das, (2009) 5 Gau LR 120 (124-125) : AIR 2010 Gau 8; see also Ramesh Chandra Shankla v. Vikram Cement, AIR 2009 SC 713. 24. See chs 3 and 6.

Mulla The Key to Indian Practice

122 ii)

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Whether the plaintiff was ready and willing to perform his part of the contract on the aforesaid date as alleged in para 3 of the plaint?

(iv)

Whether the agreement was not rescinded by mutual consent on the fifth day of May 1914 as alleged in para 2 of the written statement?

(v)Whether

the plaintiff tendered Rs 2,00,000 as alleged in para 2 of the

plaint? (vi) Whether in any event, the plaintiff is entitled to specific performance of the said agreement? (vii) Whether the plaintiff is entitled to anydamages, and if so, what? (vii) It is

General issue (i.e., whether the plaintiff is entitled to any relief at all.)

pertinent

to note that there is no

issue as to the factum of the agreement

berween the parties, as the agreement has been admitted by the defendant in para 1

of his written statement. It is essential to mention here that certain new provisions relating to adjournments were introduced by way of amendments in 1976 and 1999 w.e.f. 1 July 2002. They have a far-reaching impact upon the suits and their conduct by the court. As a general rule, at any stage, the court is empowered to adjourn the matter if sufficient cause is shown. Such order of adjournment may also be attended by order of costs to be paid by one party to other or to a witness. Adjournment cannot be discretion and, in practice, claimed as a matter of right. The courts have wide

adjournments are granted liberally. In ascertaining whether a party has reasonable ground for adjournment, the court should not travel beyond the date on which adjournment is sought for. Merely because a pary had taken many adjournments

earlier is no ground for refusal of adjournment. While considering a prayer for adjournment, the court shall keep in mind the legislative intent to restrict grant of adjournments." However, where hearing of suit has commenced, it must be continued from day-to-day till all witnesses in attendance are examined. There can be no adjournment in such cases, unless there are exceptional reasons which must be recorded in writing. This rule is statutory. It is always desirable to take evidence as:

whole continuously. It helps the court in having better appreciation and a cohesive picture of the entire trial in the mind of the judge. A piecemeal trial may lead to complications and an imperfect

understanding of the case as a whole.

The fact that the pleader is engaged in another court shall not be a ground for adjournment. When a counsel who is ready in the pre-lunch session, seeks accommodation in the post-lunch session on the ground of a sudden illness or physical ailment, the court cannot refuse a short accommodation and dismiss the appeal on the ground that the client was cantankerous and unreasonable before the Lok Adalat. The rwo issues have no relation to each other and such dismissal can 25. Seech. 6. 26. State Bank of India v. Chandra Govindji (2000) 8 SCC 532 27. SalemAdvocasesBar Asociation n. Union of India, AlR 2005 SC 3353: (2005) 6 SCC 344.

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only be attributed to prejudice." Similarly, boycott of court by advocates and strike by advocates is not sufficient ground for adjournment" If the pleader is ill or unable to conduct proceedings on account of any reason, matter cannot be adjourned unless the court is satisfied that the party applying for adjournment could not have engaged another pleader in time. "Adjournments have grown like cancer corroding the entire body of justice delivery system. It is sad, but true, that the litigants seek and the courts grant adjournments at the drop of hat. Though provisions of Order 17 Rule of C.P.C. are not mandatory, but adjournments beyond three may be granted for justifiable cause. Justifiable cause means a cause which is not only sufficient cause as contemplated under Order 17 Rule 1 of C.P.C.,

but unavoidable and sort of compelling necessity like sudden illness of the litigant or the witness or the lawyer; death in the family of any one of them; natural calamity like floods, carthquake, etc. in the area where any of these persons reside; an accident

involving the litigant or the witness or the lawyer on way to the Court and such like cause. The list is only illustrative and not exhaustive. However, the total number of adjournments, granted to a party, during the hearing of the suit shall not be more than three and the court shall impose costs occasioned by the adjournment." However, absence of lawyer or his. nonavailability because of professional work in other court or elsewhere or on the ground of strike call or the change of a lawyer or the continuousillness of the lawyer or similar grounds will not justify more than three adjournments to a party during the hearing of the suit.* The proviso to O XVII, R. 1 comes into play only if a party seeks adjournment after having availed the same for more than three times during hearing of the suit." The provision limiting adjournments cannot be held to 6 be ultra-vires or unconstitutional." If the witness is present, but the party or his pleader is not ready to examine or

cross-examine, the court may close the stage of evidence against that party. If the party remains absent on the day on which the matter is fixed for hearing, the court may proceed under O. IX or pass such other order as it may deem fit. Where neither the plaintiff nor the witnesses are present, the suit has to be dismissed under O. XVI, R. 2 and not under O. XVI, R. 3." However, if the absent partry has already led or adduced substantial evidence, the court may proceed as if it is present and decide the matter on merits in accordance with O. XVII, R. 2.

28. B.P. Moiddeen Sevamandir v. A.M. Kutry Hassan (2009) 2 SCC 198 (205): 2008 (16) S cale 364.

29. AssociaedEngineeringIndustriesu. Inder Mohan Kohli, AIR 2000 Del 90. 30. Ramon Services Pvt Lid v. Subhash Kapoor, AIR 2001 SC 207 (2001) SCC (L&S) 152.

51. ShivCotexv. 1irgun Auto Plast P. Ld., 2011 (9) SCC 678. 32. Code of Civil Procedure, 1908 (as substituted by the Amendment Act, 1999 w.e.f. 1 July 2002), O.

XVII, R. 1(1),provisSO. 33. Ibid, 0. XVII, R. 1(2).

34. ShivCorexv. TirgunAutoPlastP. Ld., 2011 () SCC678. 35. Mayadevi Kukreja u. Meera Agarwal, 2009 (3) MP LJ 688: AIR 2010 MP 27 (DB). 36. SalemAdvocate BarAssn. (1) v. Union of India, (2005) 6 SCC 374. 37.

Mohan Das v. Ghrisia Bai, AIR 2002 SC 2436.

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If the matter is adjourned at the instance of a party for his evidence or attendance

of witnesses or any other specific purpose and if that party fails to do so, the court may proceed to decide the suit if parties are present or it may proceed under the

aforesaid R. 2, if both the parties or any of them are not present. Where the party fails to appear on the date and no substantial evidence is adduced

by it, the court cannot proceed on merits treating that party as present. The court must proceed under O. XVII, R. 2 and if a decree is passed, it must be regarded as ex-parte and it is liable to be set aside under O. IX, R. 13. Ifa suit is decreed or dismissed under O. XVII, R. 2 coupled with O. IX, R. 6 or O. IX, R. 8, the remedy is an application under O. IX, R. 9 or O. IX, R. 13, as the case may be. And if it is under O.

XVII, R. 3 the remedy is an appeal or review, as the decision is on the

merits in the presence of the parties. At the same time, if the suit is decreed or dismissed by proceeding under the explanation to O. XVII, R. 2, the decision will be on merits and the remedy will be an appeal. However, if the order does not indicate as to what evidence was evaluated and/or whether the merits of the case were tested, an application under O. IX, R. 13 would lie."

8.2 HEARING OF THE SUIT AND

EXAMINATION

OF WITNESSES

[ORDER xVII] There is no such thing as a first hearing in courts in the Presidency towns. The

following is the practice followed in the high courts at the hearing of suits: (a)

Plaintitf's counsel reads pleadings, i.e., plaint and written statement.

(b)

Defendant's counsel raises issues.

(

Plaintiff's counsel opens the case by stating briefly the facts of the case and giving an outline of the evidence he intends to call to prove the issues as to

which the burden of proof lies on him. (d) Then follows the examination, cross-cxamination and re-examination of the plaintif and his witness. (e)

Plaintiff's counsel then closes his case by saying I close my case, or this is

my case.

(

Defendanť'scounselopens thedefence by stating shortly what thedefence is and what evidenced he proposes to call.

gThen follows the examination,crosS-examination,and re-examination of the defendant and his witnesses. (h)

Defendant's counsel then closes his case, and addresses the court generally on the whole case.

38. PrakashChander Manchanda & Anor u. Janki Manchanda, AIR 1987 SC 42: (1986) 4 SCC 699. 39. BJanakiramiah Chethy v. AK Partha Sarthi, AIR 2003 SC 3527: 2003 (3) Scale 660.

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125

) Plaintiff's counsel then replies generally on the whole case, and thus finishes the hearing of the suit. This procedure is in accordance with O.

XVII, Rr. 1,2 of theCode. Trial in Open Court It is well settled that, the Courts shall hear, all cases brought before it, whether civil,

criminal or others, in public unless expressly barred under the law. In Scott v. Scot," it was observed that, "in the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity, there is no justice. Publicity is the very soul of justice. It is the keenest spur to extortion and surest of all guards against improbiry. It keeps the judge himself while trying under trial in the sense that the security of securities is

publicity." Trial in Camera In Kehar Singh v. State (Delbi Admin.)" it was observed that, "indeed the principle that all cases must be tried in public is really and ultimately based on the view that all cases must be tried in public is really and ultimately based on the view that it is such public trial of cases that assists the fair and impartial administration of justice. The administration of justice is thus the primary object of the work done in courts; and so, if there is a conflict berween the claims of the administration of justice itself

andthose of public trial, public trial must yield to the administration of justice." Order

XVII,

R. 1 states that at trial, the

enabling provision

plaintiff has the right to begin. It is an

entitling the plaintiff with the right to begin. The plaintiff's

counsel states his case and calls evidence in support, and then addresses the court

generally on the whole case. The defendant's counsel then replies generally on the whole case. If it is proved after the pleadings are read and issues raised, that the burden of proving the whole case lies on the defendant, the defendant's counsel has to begin, i.e., he has to state the defendant's case and call evidence in support of his

case. Thus, if A sues B for money lent and advanced, and if B admits the loan but contends that the loan has been repaid, the burden of proof lies on B, the defendant. Similarly if A sues B for damages for breach of contract, and if B admits the contract, but denies

liability on the

ground that it is a wagering transaction, the

burden of proof lies on B. Where there are several issues, the burden of proving some of which lies on the plaintiff, and some on the defendant, the procedure laid down in O. XVIII, R. 3, is to be followed. That procedure may be explained by an illustration. A sues B for damages for breach ofa contract. B denies the contract, and contends that, if there was any contract at all, it was one by way of wage, and that he is not, theretore liable. Here there are two issues, (i) as to the factum of the contract; and (i) as to 40. Scott v. Scot, 1913 AC 417. 41. Kehar Singh v. Stase (Delhi Admin.), (1998) 3 SCC 609.

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Mulla The Key to Indian Practice

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whether the contract was a wagering contract. The burden of proving the first issue lies on A, and proving the second issue on B. Here A must begin and prove the contract. He may then adopt one of the courses, namely (a) produce his evidence on the ther issue and then close his case; or (b) reserve it by way of answer to the evidence that may be produced by B. In the latter case B has to produce his evidence on the issue as to wager, and A may then call his evidence in the rebuttal. B may then reply specifically on the evidence produced by A. A is then entitled to reply generally on the whole case. In the hypothetical suit for specific performance with which we have been dealing all along, the burden of proving issues 3, 5, 6 and 7 lie on the plaintiff and that of proving the remaining issues lie on the defendant. It is a case, however, which, having regard to its facts, will proceed in the ordinary manner, and does not require any evidence in rebuttal. If the plaintiff's counsel is absent at the time of hearing or arrives late, and in the meantime the counsel for the defendant starts his arguments, the counsel for the plaintiff has no right of

interruption." The same procedure as that laid down above is to be followed in cases in which there has been a first hearing, except (a) and (b), for the pleadings in these cases have been read and the issues have been raised at the first hearing.

The rules as to burden of proof are laid down in Ss. 104-114 of the Indian Evidence Act, 1872. The rules as to the examination, cross-examination, and reexamination of witnesses are laid down in Ss. 135-166 of the said Act. As regards witnesses, it may be observed that the evidence of a witness of his examination-inchief shall be given by an affidavit and copies of the same shall be supplied to the other party." However, according to O. XVII1, R. 16, a witness may be examined before the hearing when he is about to leave the jurisdiction of the court, or if there is other sufficient cause to examine him immediately. This is called examination de beneesse. A witness may also be examined on commission in the cases specified in O. XXVI, Rr. 1,4 and 5. One of the cases is where he resides beyond the local limits of the court's jurisdiction.*" However, a witness residing within the local limits of the

jurisdiction may also be examined on commission in the interest of justice or expeditious disposal of the case or for any other reason."" In this connection O. V, R. 4 states as to when a defendant cannot be ordered to attend in person and O. XVI, R. 9 explains as to when a witness cannot be so ordered.

As far as cross-examination and re-examination of the witnesses is may be taken either by the court or by the commissioner appointed by The commissioner has the power to remark as to the demeanour of the record the objections raised during the evidence. However, he has

concerned, it the court. witness and no power to

42. SheelaBarse v. Union of India, (1988) 4 SCC 226 43. Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 1 July 2002), O. XVIIl, R4. . 44. See ch. 2, under the heading Jurisdiction'. 45. Code of Civil Procedure, 1908 (as inserted by the Amendment Act, 1999 w.e.f. 1 July 2002), O. XVIII, R. 19 read with O. XXVI, R. 4A.

46. Ibid, O. XVIl, R 4(2).

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127

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objections and they have to be decided by the court at the stage of

arguments. le, the plaintiff has the right to begin in leading evidence. However, if this clainm or fact is admitted by the defendant, and he contends that the plaintiff As a general

is disentitled to any relief on other grounds of fact, the defendant has a right to begin in such cases. As regards the defendant's interse, which of the defendants

should begin has not been dealt with under 0. XVIII. The defendants who wholly or in part support the case of the plaintiff should be called upon to lead evidence before those defendant's who do not support the case of the plaintiff." Whoever the parties must give evidence before their begins evidence, it is necessary that respective witnesses, as has been stated in O. XVIl, R. 3A. This provision is salutary because no party can be allowed to fill up the lacuna found in the evidence given by their witnesses. However, the prohibition is not absolute. It is possible to obtain permission from the court for later examination of the party. Such permission should be obtained before witnesses are examined. However, there are judicial decisions which

grant such permission even if it is sought after witnesses are

examined." The order of adducing evidence outlined above is liable to be distributed

or

disregarded by the court. It can examine any witness at any stage, with reasons to be recorded for such deviation from the order. Suppose if a witness is suffering from disease and it is not likely that he may survive till trial takes place in its sequence, he may be examined before recording evidence of any party or witness. The court will exercise its discretion looking at the exigencies. If it appears that insistence on normal sequence is likely to result in loss of evidence or non-availability of material or valuable evidence, the order can be departed from and such witness may be examined at any stage.

"Evidence recorded by another judge under O.XVIll R.15" 0.

XVIII R. 15 addresses an unforeseen

situation

death, transfer or other cause from concluding the successor to deal with any evidence or memorandum foregoing rules as if such evidence or memorandum by him or under his direction under the said rule from the stage at which his predecessor left it.

where a Judge is prevented by

trial of a suit. It empowers his taken down or made under the had been taken down or made and may proceed with the suit

This rule does not apply to the Chartered High Courts. "Evidence heard and recorded by one-Judge is to be treated as evidence in suit before

another Judge,

when the suit on account of change of assignment or any other reasons comes up for hearing before some other Judge. For that, neither consent of parties nor specific

47.

Tbid.

48. ChandraShekharPattjoshi v.JogendraPattjoshi,AIR 2004 Ori 131:97 (2004) Cur LT 465. 49. Paramananda Fatehsingh v. Labanya Bawa, AlR 1979 Ori 132.

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Mulla The Key to Indian Practice

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order of release of suit as part heard is required by earlier Judge who has merely recorded evidence."30 Further, the court has the power to recall at any stage of the proceedings, any

witness already examined as stated in O. XVIII, R. 17. The provision of O. XVIl, R. 17 is merely an enabling provision for the convenience of the court and does not permit a party to re-examine the witness to fill the lacuna in the case. Under O. XVIll, R. 17 a party or a witness can be recalled for re-examination. The power under R. 17 of O. XVIll of the code is to be sparingly exercised and in appropriate cases and

not as a general

rule

merely

on

the

ground

that

the

recall

and

re-examination would not cause any prejudice to the parties. That is not the scheme or intention of R. 17 of O. XVIII of the code. The power to recall any witness under this rule should be invoked not to fill up the lacuna in the evidence of the witness which has already been recorded but

to clear any ambiguity that may have arisen

during the course of his examination. Where a vital question has not been put to the witness during examination due to lapse of counsel, the witness may be re-called under this provision. The party seeking re-call of the witness must point out the essential questions that had not

been put to the witness earlier. The

right of the court to act under this rule is not restricted to action on its own motion. "

After the conclusion of evidence of the parties, the parties may address the oral arguments and before the conclusion of oral arguments they shall submit concise written arguments, and the court shall fix the time limit for oral arguments."

8.3 JUDGMENT [ORDER XX] After the case has been heard, the court may pronounce judgment at once, or it may take time to consider its judgment and in that case the judgment may be pronounced within 30 days of the conclusion of hearing which in exceptional and extraordinary circumstances may be extended not beyond a period of 60 days from the date of conclusion of the hearing and copies of the judgment shall be made available to the parties immediately after pronouncement of the judgment. 'An unreasonable delay between hearing of arguments and delivery of judgment, unless explained by exceptional or extraordinary circumstances, is highly undesirable even when written arguments are submitted. It is not unlikely that some points, which the litigant considers important, may have escaped notice. But, what is more important is that litigants must have complete confidence in the results of 50. Keith Allams v. Irwin D'silva AIR 2000 Bom 182. 51. Vadiraj Naggeppa Vernekar u. Sarad Chand Prabhakar Gogate, AIR 2009 SC 1604 (1607): (2009) 4 SCC 410. 52. Gullipalli Naram Naidu v. Kinthali Kumaswami Pandian, AIR 2003 AP 481. 53. Code of Civil Procedure, 1908 (as inserted by the Amendment Act, 1999 w.e.f. 1 July 2002), O. XVII,

R. 2(3A).. 54. 1bid, O. XVIIL, R. 2(3D). 55. Code of Civil Procedure, 1908 (as substituted by the Amendment Act, 2002), O. XX, R. 1(1). 56. 1bid (as substituted by the Amendment Act, 1999), O. XX, R. 6(B).

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litigation. This confidence tends to be shaken if there is excessive delay berween hearing of arguments and delivery of judgments. Justice, as we have often observed, must not only be done bust must manifestly appear to be done.""In civil cases, the judgment must be pronounced within two months of conclusion of the hearing of the case.The court is to record reasons for delay in pronouncing judgment beyond 30 days after hearing. An unreasonable delay unless explained by exceptional or extraordinary circumstances is highly undesirable. A judgment delivered after a long delay is liable to be set-aside without examining the case on merits. Judgment' means the statement given by the judge on the grounds of a decree or order as stated under S. 2(g). Every judgment (other than one of a court of small cause) should contain: (1) a concise statement of the case;

(2) the points for determination; (3) the decision thereon; and

(4) the reasons for such decision. Judgments ofa court of small cause need not contain more than items (2) and (3). In suits

in which issues have been framed the court should state its findings or

decision, with the reasons for the findings, upon each separate issue. The last paragraph of a judgment must state in precise terms the relief granted by such judgment. The relief allowed by the court should be specific and not in general terms. If a party has any grievance as to the statement of facts recorded in the judgment, which is conclusive of the facts so stated and cannot be contradicted by

affidavit or other evidence, or about the recording of concessions made by a party, they can call the attention of the very judges who have made the record. And if no such step is taken,

it is not open to the party to canvass the same before the

superior court to the contrary." The judgments

delivered/pronounced

which have remained unsigned are valid,

effective and operative as any other effective

signing is a formality to follow the judgment,

judgment

signed by the judge"

as

and the judgment to be operative does

not await signing thereof.

"Alteration in judgment" O. XX Rule 3 says that the judgment shall be dated and signed by the Judge in open court at the time of its pronouncement, and once signed, such judgment shall not afterwards be altered or added to, save as provided by section 152 or on review.

57. RC. Sharma v. Union of India,(1976) 3 SCC 574.

S8. Anil Rai v.Stateof Bihar, AIR 2001 SC 3173. 59. Kanhaiya Lal v. Anup Kumar, AIR 2003 SC 689: (2003) 1 SCC 430. 60. 61. 62. 63.

State of Bihar v. SecretariatPress Ministerial Staff Union, AIR 2002 SC 2145: (2002) 9 SCC 68. Shankar K Mandal v. State of Bihar, AIR 2003 SC 4043 : (2003)) 9 SCC 519. Phool Kumari v. Nandu Ram, AIR 2003 HP 75. Vinod Kumar Singh v. Banaras Hindu University, AIR 1988 SC 371:(1988) 1 SCC 80.

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This rule applies to appeals also. The Court is well within its competence to reconsider the draft order so long as it has not been perfected under this rule but it cannot do so once the judgment is signed. "In view of the provisions under O. XX R. 3 and 6 and S.152 and S.153 of CPC, once the judgment and decree in jurisdiction it cannot be pursuance thereof has been passed by a court of competent made subject matter of interpretation by another court so as to mean something different from what it shows."* "This rule does not bar the power of the High Court to alter under section S. 15l a scheme framed by it under section S. 92 on a

proper cause being shown." The court should state its findings or decisions with reasons thereof upon cach issue separately (O. XX, R. 5) in the judgment. 'A judgment must be a self. contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the court and in what manner. The process of reasoning by which the court came to a particular conclusion and decreed or dismissed the suit should clearly be reflected in the judgment."00 Thus, in hypothetical suit for specific performance with which we have been dealing all along, the court should record its finding on each issue. The findings form a part of the judgment. The mode of recording the findings is "I find issue no. 1 in the negative, issue no. 2 in the negative, issue no. 3 in the affirmative, issue no. 4 in the negative, issue no. 5 in the affirmative, issue no. 6 in the negative,

5,000'. This means that all the issues are found issue no. 7 in the aftirmative-Rs. against the defendant except issue no. 6 as to specific performance. The effect of the findings is the judgment for the plaintiff in that suit for Rs 5,000. This has been enumerated in O. XX, Rr. 1-5. The court may also award costs to the plaintiff as stated by S. 35 of the Code and interest on judgment [on Rs 5,000 and costs] at the

specified rate stated in S. 34. It is pertinent to note

that there is no

judgment

for the

plaintiff for specific

performance.

8.4 DECREE [ORDER XX] As clearly stated by S. 33, a decree follows a judgment. Order XX, R. 6A states that after the judgment is pronounced, the decree shall be drawn up as expeditiously as possible and in any case, within 15 days from the date on which the judgment is pronounced.

Delayed drawing up of a decree shall not have any adverse etfect on its

validity as it has nothing to do with the merits of adjudication. "Following essential requirements should be fulfilled if an order should be treated

asa'decree':0 64. Kalyan Singh v. Vakil Singh, AIR 1990 MP 295 65. Samarendra Nath Sinha v. Krishna Kumar Nag, AIR 1967 SC 1440. 66. Balraj Taneja v. Sunil Madan,(1999) 8 SCC 396. 67. See ch. 3.

68. Mohd Serajuddin v. Mohd Abdul Khalique, AIR 2005 Gau 40. 69.

Cantonment Boardv. Church of North India , 2012 (12) SCC 573.

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Hearing and Disposal

G) there should be an

adjudication

131

in a suit;

(i) the adjudication should result in a formal expression which is conclusive so far as the court expressing it;

(i) the adjudication should determine the rights of parties with regard to all or any of the matters in controversy in the suit; and Civ) the

adjudication

should be one from which an appeal does not lie as an

appeal from an order

(under Section 104 and order 43 Rule 1 of the

Code) nor should it be an order dismissing the suit for default." The term 'decree' has been defined in S. 2(2). The essentials of the decree are:

) Theremustbeanadjudication ofdisputes. (i) Such adjudication must conclusively determine rights of parties with regards to all or any of the matters in controversy in the suit. Gii) There must be formal expression of such adjudication.

Rejection of plaint under O. VII and determination of any question within S. 144 are deemed to be decrees. However, any order from which an appeal lies or an order

of dismissal for default are not decrees. The decree will then be drawn up by an officer of the court. It should contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, and shall clearly state the relief granted or other determination of the suit, eg., that the suit is dismissed. While drating a decree, care must be taken to see that it agrees with the judgment as regards the relief granted or other determination of the suit as enumerated in O. XX, R. 6. The provision under O. XX of the code requires a judgment to contain all the issues and findings or decision thereon with the reason therefore. The judgment has to state the relief allowed to a party. The preparation of decree follows the judgment. The decree shall agree with the judgment. If the decree does not agree with the judgment, the court has an inherent power to amend it so as to carry out its own meaning. Defect in drawing up a decree is a curable irregularity." The court may not have suo motu power to amend a decree but the same would not mean that it cannot rectify a mistake. " "The court has also the power conferred upon it by S. 152 of the Code to correct clerical or arithmetical mistakes, in a decree arising from any accidental slip or omission. The principle behind the provision under S. 152 of the code is that no one should suffer due to a bona fide mistake." In either of the above cases, a decree may be amended by the court either of its own motion or on the

application of any of the parties. If a decree is sought to be amended in any other case, it can only be done by a review of judgment which will be explained hereafter" or by an appeal." The provisions of O. XX, R. 6A enable a party to file an appeal without annexing the certified copy of the decree alongwith the memorandum of 70. Om Prakash Verma v, State of A.P (2010) 13 SCC 158 (188). 7. MobdSerajuddinv. Mohd Abdul Khalique, AIR 2005 Gau 40. 2.S.Satnam Singh v. SurenderKaur, (2009) 2 SCC 562 (569). 73. Tilak Raj v. Baikunthi Devi, 2009 (4) Bom CR (SC) 570 (B): AIR 2009 SC 2136: 2009 (3) All MR 956 74. Seech. 12. 75.

See chs. 10-11.

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appeal. Filing of certified copy of the judgment would suffice and the operative portion of the judgment shall for all practical purposes be deemed to be a decree." The grant of mesne profit without any inquiry in terms of O. XX, R. 12 of the code is not permissible" and the computation of mesne profit must be in accordance with provisions given under O. XX, R. 12 of the code."

"Mesne Profits" S. 2(12) CPC provides that'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. "The object of awarding a decree for mesne profits is to compensate the person who has been kept out of possession and deprived of enjoyment of his propery even though he was entitled to possession thereof." It is thus clear that ... "Wrongful possession of the defendant is the very essence of a claim for mesne profits and the very foundation of the defendant's liability

therefor. As a rule therefore, liability to pay mesne profits goes with actual possession of the land. That is to say, generally the person in wrongful possession and enjoyment of the immoveable property is liable for mesne profits. But, where the plaintiff's dispossession, or, his being kept out of possession can be regarded as a joint or concerted act of several persons, each of them who participates in the commission of that act would be liable for mesne profits even though he was not in actual possession and the profits were received not by him but by some of his

confederates."0 "It is no doubr the serled law that the test set by the statutory definition of "mesne profits is not what the plaintiff has lost by his exclusion, bur what the defendant has, or might reasonably have made by his wrongful possession."0 However, "when the person in wrongful possession planted indigo for use in his adjacent factory and it was proved that the ordinary farmer would have grown sugar cane, wheat or tapioca mesne profits should beassessed on the profits of cultivation

of those more profitable crops. Similarly ... "Interest is an integral part of mesne profis and has, therefore, to be allowed in the computation of mesne profits itself. That proceeds on the theory that the person in wrongful possession appropriating income from the property himself gets the benefit of the interest on such income. 76. Laka Kula Sujatha v. Thummu Manemma, 2004 AlIHC 2237 (AP): 2004 (3) ALD 215:2004 (3) ALT 298. 77. Ganapati Madhav Sawant v. Dattur Madhav Sawant, (2008) 3 SCC 183. 78. Manohar v. Jaipal Singh, (2008) 1 SCC 520: AIR 2008 SC 429. 79. Lugy Kochuvareed v. P. Mariappa Gounder, (1979) 3 SCC 150.

B0. Lucy Kochuvareed v. P. Mariappa Gounder, (1979) 3 SCC 150. 81. RP. David v. M. Thiagarajan, 1996 AIHC 1194.

82. Harry Kempson Gray v. Bhagu Mian, AIR 1930 PC 82. 83.

Mahant Narayana Dasjee v. Tirumalai Tirupathi Devasthanam, AIR 1965 SC 1231.

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The following is a form of a decree:

Form of Decree (Title of suit as in plaint) 84 Claim for specific performance of an agreement,dated the ...... day of 1914, and in the alternative for damages, Rs 5,000.

The suit coming on this day for finaldisposalbefore .... [nameof thejudge] in

thepresenceof ..

Ipleader'n samelfortheplaintiffand of.

.pleader's

name for the defendant, it is declared that the plaintiff is not entitled to specific pertormance of the said agreement, and it is ordered and decreed that the detendant do pay Rs 5,000 to the plaintiff as and for damages for breach of the contract

referred to in the plaint, and Rs... on account of the costs of the suit, with interest thereon at the rate of 6 percent per annum from this date to date of realization.

Given under my hand and seal of the court,

.. day of

this.

.19.... Judge

8.4.1 Kinds of Decree A decree may be either preliminary or final. A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when the suit has been completely disposed of and this has been clearly stated in S. 2(2). The form given above is a form of a final decree. A preliminary decree, as is stated by O. Xx, Rr. 13-16, is usually passed in suites for dissolution of partnership,

suits for account berween principal and agent, administration suits, and pre-emption suit. Thus, in a suit for the dissolution of a partnership and for partnership accounts, the court before passing a final decree, may pass a preliminary decree declaring the

proportional shares of the parties, fixing the day on which the partnership shall stand dissolved or be deemed to have been dissolved, and directing such accounts to be taken as it thinks fit. Where such a decree is passed, the suit is adjourned to a date

fixed by the court for passing a final decree. After the accounts are taken and the amount due to each partner has been ascertained, the court may pass a final decree. The

instant case was a suit for

partition

of

property.

Parties

entering

into

compromise. It was stipulated in compromise that they were in separate and exclusive possession of properties allotted to them. A decree was passed entirely on basis of compromise. As the parties were already in possession of their shares no further enquiry was required to be made. Held, in the circumstances the compromise decree was final decree and not preliminary decree. It is very important to note S. 97 of the Code which states that if a partry aggrieved by a preliminary decree does not appeal from that decree, he will be precluded from disputing its correctness in any appeal which may be preferred from the final decree. 84. See ch. 3. 85. Bimal Kumar v. Shakuntala Debi, 2012 3) SCC 548.

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While passing a decree in suit for partition of property or separate possession of a share, It is necessary for Court to examine the nature and character of the properties in suit such as who was the original owner of the suit properties, how and by which

source he/she acquired such properties, whether it was his/her self-acquired propertry or ancestral property, or joint property or coparcenery property in his/her hand and, if so, who are/were the coparceners or joint owners with him/her as the case may be. Second, how the devolution of his/her interest in the propertry took place consequent upon his/her death on surviving members of the family and in what proportion, whether he/she died intestate or left behind any testamentary succession in favour of any family member or outsider to inherit his/her share in properties and if so, its effect. Lastly, whether all properties are included in the suit and all cosharers, coparceners, co-owners or joint-owners, as the case may be, are made parties 86

to the suit.

'A preliminary decree can be varied if law governing the parties is amended before conclusion of the final decree proceedings, he party benefited by such amendment can make a request to the Court to take cognizance of the

amendment and give

effect to the same. If the rights of the parties to the suit change due to other reasons, the Court seized with the final decree proceedings is not only entitled but is duty bound to take notice of such change and pass appropriate order.

"Passing of more than one preliminary or final decree" There can be more than one preliminary or final decree within the meaning of Section 2(2) CPC. "There is nothing in the Code of Civil Procedure which

prohibits the passing of more than one preliminary decree, if circumstances justify the same and that it may be necessary to do so, particularly in partition suits when after the preliminary some parties die and the shares of other parties are thereby augmented. If such an event transpires the court can and should pass a second preliminary decree correcting the shares and if there is a dispute in that behalf the

order of the court deciding the dispute and making the variations in the shares specified in the preliminary decree already passed, is a decree in itself, which would 88 be liable to appeal. Ordinarily there will be only one final decree in a suit. Special circumstances like

two or more causes of action joining together may require the passing of more than one final decree in the same suit. "The definition of decree itself does not put any limitation on the power of the court to make one or more final decrees nor does it declare that the court would become functus-officio or would be bereft of its

jurisdiction no sooner than it passesa final decree irrespective of whether that decree finally disposes of the suit or not." There is nothing in the code to infer that the court cannot pass more than one final decree in a suit.

86. 87.

Shasidhar v. Ashwini Uma Mathad, AIR 2015 (SC) 1139. Prema v. Nanje Gowda, 2011 (6) SCC 462

88.

Phoolchandánd v. Gopal Lal, AIR 1967 SC 1470.

89.

Azizabi v. Fatima Bi and Others, (1977) 1 Andh WR 136 (141) DB.

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Hearing and Disposal

"Interest" U/s 34 CPC The term 'interest' has not been defined in the Code. "Black's Law Dictionary (7th Edition) defines "interest inter alia as the compensation fixed by agreement or allowed by law for the use or detention of money, or for the loss of money by one who is entitled to its use; especially, the amount owed to a lender in return for the

use of the borrowed money. According to Stroud's Judicial Dictionary of Words and Phrases (5th Edition) interest means, inter alia, compensation paid by the borrower to the lender for deprivation of the use of his money."90

"There are three divisions of interest according to the period for which interest allowed by the Court, viz:

is

(1) Pre-lite: interest accrued due prior to the institution of the suit on the principal sum (due) adjudged. Interest for the period anterior to institution of suit is not a matter of Procedure as it is referable to substantive law and can be sub-divided into rwo sub-heads; (i) where there is a stipulation for the payment of

interest

at a fixed rate

(contract

rate) and

(i)

where there is no such

stipulation as per statutory provisions providing certain rate of interest and in its absence as per the interest Act (from date of demand (from date of service of demand notice) and at prevailing market rate and bank lending rate as guidance). (2) Pendent-lite: In addition to pre-lite interest, it is the additional interest on the principal sum adjudged or declared due from the date of the suit either at contract rate if reasonable or at such rate as the Court deems reasonable in the discretion of the Court (as per Section 34 CPC till date of decree or under Order 34 Rule 11 C.P.C. in case of mortgage debt if contract rate is unreasonable and excessive to reduce even from date of suit till expiry of the period of redemption) as not a substantive law;

(3) Post-lite: In addition to pre-lite interest on principal sum and pendentlite interest on the principal sum adjudged or found due, it is the further interest on such principal sum (as per Section 34 CPC or under Order 34 C.P.C. as not a substantive law, from the date of the decree to the date of the

payment and in mortgage decree from date of preliminary decree till expiry of period of redemption and thereafter till realization/payment as the case may be in any decree for money held due with or without charge preliminary or final or partly final decree) or to such earlier date as the Court thinks fit, in the discretion of the Court, at a rate not exceeding 6 per cent per annum except where the transaction is a business or commercial one to grant above 6 percent

but does not exceed contract rate.

»91

at So far as the rate of pendent-lite and post-lite interest is concerned, no doubt it is the discretion of the Court save the power is exercised judiciously, having regard to 90. Central Bank of India v. Ravindra, (2002) 1 SCC 367. 91. M. RajeswarRao v. Chitluri Satyam, Review A.S.M.P. No. 2386 OF 2013 decided on 09. 12. 2013.

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the principle of restitution. It was by taking note of drastic fall in bank rate of interest that the Apex Court reduced the post lite interest from 18% to 9% p.a. "Interest is also payable in equity in certain circumstances. The rule in equity is that interest is payable even in the absence of any agreement or custom to that effect

though subject, of course, to a contrary agreement. Interest in equity has been held to be payable on a market rate even though the deed contains no mention of interest. Applicability of the rule to award interest in equity is attracted on the existence of a state of circumstances being established which justify the exercise of such equitable jurisdiction and such circumstances can be many."

Section 34 CPC does not provide for the payment of 'Compound Interest i.e interest on interest. But it can be awarded if stipulated by way of agreement. The Hon'ble Supreme Court has noted the practice of charging interest as prevalent in Australia, Canada and India to hold that "compound interest can be awarded by Courts in India when justice so demands and is not to be regarded as being against public policy. The Court noted that it is a common knowledge that provision is made for the payment of compound interest in contracts for loans advanced by banks and financial institutions and such contracts are enforced by Courts."

"Costs" U/s 35, 35-A, 35-B According to Black's Law Dictionary "costs is a pecuniary allowance made to the successtul party for his expenses in prosecuting or defending a suit or a distinct proceeding wit a suit." Costs' under CPC may be divided into four heads i.e. General Costs (S.35), Miscellaneous Costs (O.XX-A), Compensatory Costs (S.35-A)

and Costs for causing delay (S.35-B). Section 35 confers the courts with discretionary power to award the costs. Even if the court has no jurisdiction to try the suit yet it can award costs in exercise of such powers.The object of Section 35 is not to enable litigant to make anyching in the way of gain or profit, over and above the expenses for maintaining or defending the action, nor to give exemplary damages or smart money, by way of penalty or punishment on the opposite party."72 "Awarding of costs under Section 35 must be a judicial discretion exercised on sound legal principles. The general rule is that follow the event i.e. successful party is entitled to his costs, unless

he is

guilty of misconduct or there is other good cause for depriving him of it."" where the Court directs that any costs shall not follow the event, the Court

"But shall

costs shall

state its reasons in writing." 98 The court has full power to determine by whom or out of which property and to what extent such costs are to be paid, and to give directions for such purposes. 92. 93. 94. 95. 96. 97. 98.

D.D.Au. Joginder S. Monga, AIR 2004 SC 3291 South Eastern Coalfields Ltd. v. Stateof M.P. and Ors. AIR 2003 SC 4482. Renusagar Pouer Co. Lid. v. General Electric Co., 1994 Supp.(1) SCC 644. The Fim ofN. Peddanna Ogeti Balayya and ohers u. Karta V. SrinivasayyaSettiSons. AIR 1954 SC 26. Vital Shetty and ohers v. Parameshuari alias Uijakke Shedthi andothers, AIR 1954 Mad 100. T. S. Swaminatha Odayar v. Official Receiver of West Tanjore, AIR 1957 SC 577. Section 35 (2) CPC 1908.

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137

O. XX-A inserted by the Code of Civil Procedure (Amendment) Act, 1976 gives explicit powers to the court to award costs in lieu of expenditure, including expenses incurred on notices, typing charges, expenses of witnesses and obtaining copies etc. The award of costs under this provision shall be regulated by the rules made by the High Court. Section 35-A empowers the court to make an order for compensatory costs in respect of false or vexatious claims or defences. "Section 35-A is intended to deal

with cases for which the exercise of ordinary discretion of the Court under section 35 would not afford a sutficient

compensation.""

"Section 35-A empowers a civil

court to award compensatory costs in extremely exceptional cases. Three conditions are to be satisfied before the court proposes to award compensatory costs in a suit. They are (1) the claim or defence must be false or vexatious (2) objection must be

taken that the claim or defence is false or vexatious to the knowledge of the pary raising it (8) such claims or defence must have been disallowed or withdrawn or

abandoned in whole or in part." "Section 35-A is sufficiently wide to bring within it not only a party who actually puts forward a false claim or defence but also a person who instigates and supports

the party who puts forward such claim or defence. Thus, where one of the defendants is the real actor or instigator behind the plaintiff's vexatious claim, the

court can pass an order for

compensatory costs, under this section, both against the This provision does not apply to appeals or revision plaintiff and the defendant. but includes execution proceedings. The court can award costs under Section 35-A not exceeding three thousand rupees or the limits of its pecuniary jurisdiction, and the amount awarded under this section shall be taken into account in any subsequent suit for damages or compensation in respect of such claim or defence.

Section 35-B enables the courts to impose 'costs for causing delay'. It provides that if, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit-() fails to take the required step, or (i) obtains an adjournment for taking such step or for producing evidence or on any other ground, the Court may, for reasons to be recorded, impose costs on such party payable to the other party which are reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date. Furcher, the payment of such costs, on the date next following the date of such order, shall be a pre-condition to further prosecution of- (a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs or (b) the defence by the defendant, where the defendant was ordered to pay such costs, as the case may be.

The provisions of Section 35-B are mandatory. The provisions of S. 35-B (2) of the code, which provide for the recovery of the amount of costs independently on the basis of the order to be separately drawn up for that purpose, further shows as to

1. V. Peddarangaswami v. State of Madras, AIR 1953 Mad 583. 2. 1986 Ker LT 278. 3. Chittam Subbaya v. Muihyala Ramachandrappa And Ors, AIR 1945 Mad 84.

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how sacrosanct and legislature."4

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binding the order of costs is intended to be treated by the

8.5 WHERE PARTIES DO NOT APPEAR [ORDER IX] We have hitherto assumed that both the plaintiff and the defendant appear at the hearing of the suit. We have now to consider the consequence of the nonappearance of parties. The rule as to this may be briefly stated as follows: (i) Where on the day fixed for appearance, it is found that the summons was not served upon the defendant in consequence of the plaintiff's failure to pay the court fee or postal charges, chargeable for that service or to present the copies of the plaint, the court may order for dismissal of the suit. This is

clearly

stated

Amendment

by O.

Act,

2002

IX,

R. 2

w.e.f.

of the

1 July

Code

2002).

(as

amended

However,

no

by

order

the

of

dismissal may be made, if the defendant appears in person or through agent on the day fixed for him for appearance as is provided by proviso to

O. IX, R. 2. (i)

Order IX, Rr. 3-4 state that where neither party appear when the suit is called on for hearing, the court may make an order that the suit be

dismissed. However, it is not obligatory upon the court to dismiss the suit. The dismissal under this rule does not amount to a decree and no appeal lies therefrom. However, the plaintiff may then bring a fresh suit, or he may apply for an order to set the dismissal aside. If che court is

satisfied that there was sufficient cause for his non-appearance, it shall make an order, setting aside the dismissal and fix a day for proceeding with the suit. The court has to consider 'whether there was sufficient cause

for

the

absence

vious/subsequent date.

on

the

relevant

date

and

not

on

pre-

No notice of the application for setting aside

the dismissal order is required to be served on the defendant. But once the application is allowed, the defendant is entitled to get notice of

restoration and date of further hearing.° Requirement of notice is mandatory. Non service of notice is suficient to get decree set aside.' The filing of a fresh suit by the plaintiff, after the earlier suit having been dismissed under O. IX, R. 2 or under O. IX, R. 3, shall be subject to the law of limitations prescribed for such suit, and if the plaintiff chooses to apply for setting aside the dismissal order of suit, he shall move an

application within 30 days of the order ofdismissal of the suit.* (ii)

4. 5. 6. 7. 8.

Where the plaintiff appears and the defendant does not appear, the plaintiff has to prove service of summons on the defendant. If it is proved

Shri Anand Parkash v. Shri Bharat Bhushan Rai, AIR 1981 Punjab 269. GPSrivastavav. RKRaizada, AIR 2000 SC 1221: (2002) 3 SCC 54. Jawar PrasadShaw v. Jhaina Ghosh, AIR 2005 NOC 303 (Cal) : 2005 (1) CHN 12. Reena Sadh v. Anjana Enterprises, AIR 2008 SC 2054: (2008) 12 SCC 589. Limitation Act, 1963, Art. 123.

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that the summons was duly served, the court may proceed ex parte, and pass a decree for the plaintiff, on the plaintiff proving his case. "The provision of O.IX R.6 is confined to first hearing and does not per se apply to subsequent hearings." Where the date of hearing is declared a holiday, the court should not proceed exparte on the next working day. Where a decree is passed ex parte against a defendant,

he may prefer an

appeal from the decree (a course that is rarely adopted), or he may apply tor an order to set it aside. If the court is satistied that the summons was not duly served or that there was sufficient cause for his non-appearance, the court 'shall' make an order setting aside the decree, and shall appoint a

day for proceeding with the suit. Where an ex parte decree has been passed against two or more defendants, and if one of them only applies for an order to set it aside, the court may set it aside as against all the defendants if the decree is of such a nature that it cannot be set aside as against such defendant

only. This happens when the decree is one and

indivisible, as

where it has been passed against the members of joint Hindu family for a debr alleged to be due from the family. The above has been stated in O. IX, Rr. 6-13. Few changes were made in 1976 with regard to setting aside of an ex parte decree or order and these deserve our attention. We are aware that an ex parte decree can be set aside if summons were not properly served. This

provision was sometimes misused. A party, who may be fully aware of the pendency of suit may remain absent because there is some irregularity in the service of summons and may apply for setting aside ex parte decree after it is passed. To remedy this, now there is a provision under O. IX, R. 13, that an ex parte decree shall not be set aside on the ground of irregularity

in the

service of summons if the court is satisfied that the defendant had the knowledge of hearing of the suit. Secondly, no application for setting aside ex parte decree will be

maintainable

once appeal against such decree is

disposed of by a higher court. If appeal is withdrawn, then such application can be maintained.

In cases where the court has proceeded ex parte against the defendant, and the hearing of the case is adjourned without passing a decree for the

plaintiff, O. IX, R. 7 provides that the defendant may apply to the court

for setting 'the ex parte order aside. Neither the Code nor the Limitation Act, 1963 prescribe the period of limitation in concrete terms for moving such an application. However, it has to be on or before the date for which

the hearing of the case was adjourned and on showing sufficient cause, the court may set aside the ex parte order as is stated under O. X, R. 7. But, where the hearing of the suit is complete and the court has adjourned the

9. SangramSingh v. Election Tribunal, AIR 1955 SC 425. 10. Rafi v. Abdul Aziz, AIR 1987 AII 17.

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case for pronouncing the judgment, application under O. IX, R. 7 would not be maintainable." Where an ex-parte order is set aside, the position

as on the date when he was

defendant

is relegated

to the

proceeded ex parte and shall be

allowed to join the proceedings therefrom and nor from a prospective date. The court shall take care of the loss of time and inconvenience caused to the plaintiff by relegating back the proceedings to an carlier stage." In cases where the defendant fails to show a good cause for his non-appearance, the litigation does not come to end and he can take part in the proceedings of the suit from the stage already reached rill final

decision." (iv) Where the defendant appears and the plaintiff does not appear, and the defendant does not admit the plaintiff's claim or any part thereot, the court shall make an order that the suit be dismissed. The rule applies where there is only one plaintiff who does not remain present or there are two or more plaintiffs and all of them remain absent. The plaintiff is then precluded from bringing a fresh suit in respect of the same cause of action. However, he may apply for an order to set aside the dismissal, and if he satisfies the court that there was sufticient cause for his non-appearance, the court 'shall' make an order setting aside the dismissal and appoint a day for proceeding with the suit. This has been stated in O. IX, Rr. 8-9. A liberal approach should be made to understand the sufficient cause for non-appearance.

In Chhotalal v. Ambala Hargovan," the High Court of Bombay observed that "when a party arrives late and finds that his suit or application is dismissed, he is entitcled to have his suit or application restored on

payments of costs.' In a subsequent case in Currimbhai v. N.H. Moos

the same High

held that it would be difficult to agree with Chhotalal proposition of law. If such a rigid rule is laid down, it

Court

in principle as a might mean this

being heard. All that a defendant could successively prevent his suit ever that he would have to do would be appear late on successive dates, and allowed the suit to be heard ex parte and then to apply at the end of each day to have the suit restored for hearing. That obviously is a course which

no court would allow."

11. Bhanu Kumar Jainv. Archana Kumar, AIR 2005 SC 626. 12. RitaChaudhrie v.Samiya Dev, 2004 AlHC 2181 (Del): 2004 (72) DRJ518. 13. Vijay Kumar Madan v. RN Gupta Technical Education Society, (2002) 5 SCC 30. 14. East India Cotton Manufacturing Co Ld v. SP Gupta, 28 (1985) DLT 22: 1985 (8) DRJ 348. 15. Chhotalal v. Ambala Hargovan, AIR 1925 Bom. 423. 16. Currimbhai v. N.H. Moos, AIR 1929 Bom. 250.

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Notice of the application is required to be given to the defendant before

restoration of the suit under this rule. On restoration of the suit all interlocutory orders which have been passed before the dismissal would stand revived unless the court expresly or by implication excludes the operation of the interlocutory orders passed before the dismissal. "

If application for restoration of suit dismissed under O. IX, R. 8, be filed within 30 days of dismissal,an appeal lies from an order rejecting an application under O. X, R. 9° and a revision against an order

restoring a

suit dismissed in default. Theses rules do not apply to non-appearance owing to death" applies to a defaulter and not to a deceased. (v)

According

to O. IX, R. 10 where there are more

plaintifs

as the rule

than one,

and one or more of them appear and the others do not appear, the court may permit the suit to proceed as if all had appeared, or make such order as it thinks fit. (vi)

According to O. IX,

R. 11 where there are more defendants than one, and

one or more of them appear and the others do not appear, the court may permit the suit to proceed as if all had appeared, or make such order as it

thinks fit. The suit of the plaintiff is also liable to be dismissed under O. IX, R. 5 where the summons to the defendant was received unserved and the plaintiff fails to apply for issuance of fresh summons to defendant within 7 days from the date of return made to the court, unless he shows a sufficient cause for extending the time."

The consequence of non-appearance as enumerated under O. IX of the Code shall ensue where either the plaintiff or the defendant who has been ordered to appear in person neither appears, nor furnishes any sufficient cause for such non-appearance is stated in O. IX, R. 12. The term

'sufficient

cause' appearing at various places in O. IX has received a

liberal interpretation. The ultimate purpose of doing substantial justice must be kept in mind. After all, judgment rendered by the court after offering opportunities to all parties and in satisfaction of principles of natural justice is much more valuable than judgment in absence of either parties. Normally, if it appears to the court that cause for absence is bona fide, the court will set aside the order passed ex parte. However,

where it appears that any party was recalcitrant or mala fide it may refuse to set aside

17. Vareed Jacob u. SosammaGeevanghese, AIR 2004 SC 3992: (2004) 6 SCC 378.

8. Limitation Act, 1963, Artile. 122. 19. KPJayakumar v. K Ravindran, AIR 2004 Ker 209 (DB). 20. Raja Debi Baksh v. Habib Shah, (1913) 40 LA 151:(1913) 21.

ILR 35 All 331 (PC). Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 1 July 2002), O. K,

R.5.

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x parte orders. "The test to be applied is whether the party honestly intended to remain present at the hearing of the suit and did his best to do so.* Negligence can be condoned, but indifference stemming from ulterior motives may meet stern rejection of application to set aside ex parte decree or order. Similar terminology is used in S. 5 of Limitation Act, 1963 where also it has received such broad

construction."

3:. ,

K

.i

.!7*

22. Payal Ashok Kumar v. Ashok Kumar, (1992) 3 SCC 116. 23. It would be relevant and important at this stage to read Code of Civil Procedure, 1908, O. X, O. XIl, Rr. 1-2.

CHAPTER

9

ExECUTION OF DECREES

9.1 MEANING OF EXECUTION The term 'execution' has not been defined in the Code. 'Execution' means the process for enforcing or giving effect to the judgment of the court, and is complete when the judgment-creditor gets the money or other thing awarded to him by the

judgment.' Execution is the enforcement of decree or orders by the process of the court so as to enable the decree holders to realize the fruits of the decree, judgment,

or order. Suppose that in the hypothetical suit for specific performance' a decree is passed for the plaintiff for Rs 5,000. Suppose, further, that the defendant does nor pay the amount of the decree to the plaintiff. Then a question that arises here is as to what steps should the plaintiff take to enforce the decree against the defendant, in other words, how should he proceed to execute the decree? The subject of execution of decrees is dealt with in O. XXI of the Code which makes detailed and exhaustive provision for execution of decrees and orders, and are substantive as well a procedural. That order contains 106 rules, and is the longest of all orders in the

Code. The present chapter contains an analytical abstract of that order. The reference to the rules given in this chapter are to the rules of O. XXI. A obtains a decree against B for Rs 5,000. Here A is the decree holder, B is the

judgment-debtor, and Rs 5,000 is the judgment-debt. If B fails to satisfy the decree,

A may apply for execution of the decree against B* person, or against his propery, or both.

This has been specified by R. 30. However, the court may, according to

R. 21 in its discretion,

refuse execution at the same time against the person and

property of the judgment-debtor. Execution against the person of the judgmentdebtor consists in arresting him and detaining him in jail. Execution against the 1. Re Overseas Aviation Engineering (GB) Ltd., (1962) 3 All ER 12. 2. State Bank ofRajasthan v. RustamjiSavkasha, AIR 1972 Guj 179. 3. See ch. 3. 4. See ch. 8.

144

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property of the judgment-debtor consists in attaching and selling his property, and paying the decree-holder the amount of the judgment-debt out of the sale proceeds.

9.1.1 Application for Execution Rule 10 specifies that all proceedings in execution are to be commenced by an application for execution. Rule 11(2) states that the application for execution must be made in cases of decree, other than a decree granting a

mandatory

injunction,

within 12 years from the date of the decree and in cases of decree for a mandatory injunction, within three years from the date of the decree° in writing, and should contain the particulars set forth in Rr. 11(2) to 14. However, R. 11(1) states that the only exception is where the decree is for the payment of money and the judgment debtor is in the precincts of the court when the decree is passed, in which case the court may order immediate execution on the oral application of the decree-holder at

the time of passing the decree. If the application complies with the requirements of Rr. 11(2) to 14, the court will issue its process for the execution as per R. 24. If it does not, the court may reject it, or may require it to be amended as stated by R. 17. If the application is rejected, the decree-holder may present another application properly framed.

9.1.2 Who May Apply for Execution Rule 16 primarily deals with the rights of a transferee of decree, who has been given

the right to seekexecution at par with the transferor - decree holder. If the decree has been passed jointly in favour of more persons than one, any one of such persons may apply for execution as provided partition suit can be executed by the

by S. 146. For Example, a decree passed in defendant as he is also a decree-holder to the

extent of share allocated to him.

9.1.3 Against Whom Execution May be applied for Section 50 specifies that if the judgment-debtor is living, execution is to be applied for against him. If he is dead, execution may be applied for against his legal representatives. In the latter case, the decree may not be executed against the person of the legal representative, but only against the propery of the judgment-debtor which has come to the hands of the legal representative, and has not been duly disposed of by him. Execution may be taken out against, "Surety of the judgment-debtor."

9.1.4 Notice Before lssuing Process Rule 22 states that ordinarily, no notice is required to be issued and the court can issue its process for the execution of the decree. However, under certain

circumstances notice is required to be to be issued before the issue of process. They are as follows:

5. Limitation Act, 1963, Art. 136. 6. 1bid., Art. 135.

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145

) Where the application for execution is made more than two years after the date of decree. i)

Where such application is made against the legal representative of a party to the decree.

ii)

Where such application is made against the assignee or receiver in insolvency where a party to the decree is adjudged insolvent. In a case where application for execution is made by arrest and detention

of the judgment-debtor in case of a money decree, the court is required issue a notice under R. 37, unless it appears that the judgment-debtor

to is

likely to abscond or leave the local limits of the jurisdiction of the court

in

which case, no notice

is necessary.

(iv) Where the execution of the money decre is sought against the person of the judgment-debtor. (v) Where the execution is sought against the surety of the judgment-debtor. (vi)

Where the execution is sought by the transferee or assignee of the decree-

holder. The notice is issued to the judgment-debtor in order to afford an opportunity to him to put forward his objections against the maintainability of the execution application and to enable the judgment-debtor to satisfy the decree before execution is ordered against him.

9.1.5 Mode of Execution More than one mode of execution of decrees have been provided under the Code.

Section 51 of the Code specifies thus. The decree can be executed in any of the following modes:

) bydelivery ofanypropertyspecificallydecreed; i) byattachmentandsale ofproperty; (Gii) by sale without attachment of any property; (iv) by arrest and detention in prison; (v) by appointing a receiver; (vi) by such other mode or

manner as the nature of the relief granted may

require. A decree-holder has the option to choose a particular mode for executing and enforcing a decree in his favour. It is for him to decide in which of the several modes he will execute his decree.' The modes or kinds of execution are subject to the conditions and limitations prescribed under the Code. We shall consider two chief

modes of execution ofdecrees.

7.

Shyam Singh v. Collector,

District

Hamirpur,

(1993) Supp 1 SCC 693.

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9.1.6 Execution Against Person of Judgment-Debtor 9.1.6.1 Decree for Payment of Money In case of a money decree, it can be executed by attachment and sale

of the judgment-debtor or

......]or

of the property

both. The provisionspecityingthis is not

exhaustive and does not override other provisions of the Code of Civil Procedure, 1908.° However, a person can be arrested and detained in civil prison in execution

of money decree in any one of the following circumstances only: debtor has dishonestly transferred, concealed or removed his property or has committed any other act of bad faith or the judgmentdebtor is likely to abscond or leave the local limits of the courr's

() thejudgm

jurisdiction with the object or effect of obstructing or delaying the execution of the decree; or (i) the judgment-debtor has the means to pay the amount of the decree and refuses or neglects to pay the same; or (iii) the decretal dues are such that the judgment-debtor is bound in a fiduciary capacity to be accountable. However, S. 51 also specifies that while

calculating

the means possessed by the

judgment-debtor, the properties, which cannot be attached in execution of a decree are to be excluded. The words 'refuses or neglects' envisages the capacity to pay. Inability

to pay is not the same

thing as refusal or neglect to pay.

Default due to

inability as distinguished from refusal or neglect does not justify arrest and detention. Some element of bad faith must be present. Before a person is arrested

and detained, it is obligatory upon the court to issue notice and afford opportunity of hearing to the judgment-debtor. Where the judgment-debtor disobeyed the order of injunction and trespassed into the suit property, he may be ordered to be arrested or detained in civil prison.

9.1.6.2 Decree Other Than Money Decree Besides

money

decree,

there

are

several

kinds

of

decrees

which

can

be

executed by arrest and detention of the judgment-debtor. They are as follows:

) Decreeforspecificmovableproperties, i) Decree for specificperformance of a contract.

ii) Decreeforperpetualinjunction. 9.1.6.3 Procedure The procedure differs depending upon the nature of the decree. In case of a money decree, the notice is required 8. 9.

to be issued. As stated earlier, atter such notice is

Saraswatibai v. Govind Rao v. Keshav Rao Mahajan, AlR 1961 MP 145 (FB). Ramakrishna Naidu v. Sethuraman, AIR 2005 Mad 108.

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ExecutionofDecrees

147

judgment-debtor does not appear in obedience to the notice, the court

shall issue a warrant for arrest as provided by R. 37(2). After the judgment-debtor appears, the court shall hear the decree-holder and take the evidence and give

opportunity to the judgment-debtor to show cause. After hearing both the parties, the court may order detention or release. The court also has the power to detain the judgment-debtor pending the conclusion of the inquiry as stated under R. 40. In case of decrees other than money decrees, no notice is required to be issued unless the case falls

under R. 22.

However, in all such cases, the court has the

discretion to issue notice instead of process for execution.

9.1.6.4 Restriction and Conditions According to S. 57, no woman can be arrested or detained in execution of a money decree. No person can be arrested till the decree-holder pays subsistence allowance in the court. The state government may fix the scales according to rank, race and judgment-debtor nationality as per S. 57 and R. 39. No arrest can be made if the pays the amount of the decree and cost to the officer arresting him as has been stated under S. 55. Section 55 also provides that no dwelling house shall be entered into

after sunset and before sunrise for the purpose of making arrest.

9.1.6.5 Period of Detention and Release The total period of detention shall not exceed three months. However, in case where the decretal amount does not exceed Rs 5,000 such period of detention shall not exceed six weeks." If the decretal amount is Rs 2,000 or less, the judgment-debtor, in such cases, cannot be detained in civil prison. " On expiry of the period of detention, he shall be released. Such release does not discharge him from the judgment-debt. However, he cannot be re-arrested in execution of the same decree. He can be released

from the detention before the expiry of the prescribed period in the following cases: (1) payment of amount mentioned in the warrant;

(i) satisfaction of the decree in any other manner; ii) request of the applicant at whoseinstance judgment-debtor is detained; (iv) omission to pay subsistence allowance;

(vserious illness. 9.2 PAYMENT OUT OF COURT An important

question to be asked here is that, suppose that B has paid, in part

payment, Rs 3,000 to.A after the decree was passed out of court, is the court bound to take such payment into account? It is quite unsafe to try and get a satisfying

decreeout of court without complying with the procedural formalities.

10. Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 1 July 2002), s. 58(1). 11. Tbid., s. 58(1A).

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Where any decree is satisfied, wholly or in part, out of court, the decree-holder shall certify such satisfaction to the court and the court shall record the same. If the decree-holder does not certify, the judgment-debtor may apply to the court and such court may certify after issuing a notice to show cause the failure of the decree-holder to satisfy that there was no satisfaction of the decree as claimed. However, before such satisfaction is recorded, it must be established that it is proved by documentary evidence or that it is made in accordance with the rules.

If any satisfaction of the decree is not certified by the decree-holder or recorded by the court after following aforesaid prescribed procedure, it shall not be recognized by the court executing the decree. If payment of Rs 3,000 is not certified by the decree holder and not recorded by the court, the decree for Rs

5,000 can be executed

without taking account of the part of Rs 3,000.

9.3 GARNISHEE Suppose, in the case given above, B has to recover Rs 3, 500 from C. A can make an application for attachment of the debr owned by C to B in order to secure

satisfaction of his decree against B. Cis called 'garnishee'. Stated simply, 'garnishee means a

judgment-debtor's

debtor. A garnishee has been defined as 'one in whose

hand money belonging to a debtor is attached at the suit of the creditor." The word garnishee denotes one who is required to garnish', i.e., to furnish a creditor with

the money to pay off a debt." Garnishee proceedings are a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing due to the judgment debtor which form

part of his property available in execution. Before issuing attachment, the court may issue a notice to the garnishee. Such notice calls upon

the

garnishee

to

pay

the

amount to satisfy the decree or to show cause why he should not do so. If garnishee makes payment in the court, it will amount to a valid discharge of his debt. The garnishee has the right to show cause why such debt is not payable or why he should not be called upon to make payment in the court. IF the garnishee disputes the liability, it shall be decided as if it were an issue in a suit and upon determination of such issue, the court can make order as deemed fit. Such determination is appealable as a decree as provided for in Rr. 46(A) to 46(I). Money payable by the issuing bank judgment-debtor and such under the letter of credit is not the one belonging to the claim can be decided only in independent proceedings and not in garnishee

proceedings.

9.4

STAY OF EXECUTION

In order to enable the judgment-debtor to obtain stay of execution or any other order from the appellate court or the court which passed the decree, the execution of 12. Shorter Oxford English Dictionary, vol. 1, 1990, p. 833. 13. (1981) AlI ER 225. 14. Fargo Freight Ltd v. Commodities Exchange Corpon, AIR 2004 SC 4109: (2004) 7 SCC 203.

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ExecutionofDecrees

Chapter 9

the decree can be stayed by the court to which decree is sent for execution. Such stay

can be granted upon security or conditions required or imposed by the court.

9.5 EXECUTION AGAINST PROPERTY OF JUDGMENT-DEBTOR This subject may be considered under two heads, namely, (i) attachment; and (i) sale. We shall first state the rules relating to attachment, and then the rules governing sale, because attachment precedes sale. Attachment is levied, and the sale of the property attached is effected by an officer of the court under a warrant issued

from the court. attachment and sale, it is to be observed Before considering the rules relating that there are certain kinds of property which are not liable to attachment or sale in execution of a decree. These are described under S. 60. Subject thereto, all saleable property which belongs to the judgment-debtor, or over which he has a disposing power which he may exercise for his own benefit, is liable to attachment and sale in

execution of a decree against him.

) Attachment:Artachment of propertybelonging to ajudgment-debtormay be divided into two classes (a) movable; and (b) immovable. (a) Artachment of movable property This is done in different ways according to the nature of the property, and is stated in Rr. 43 to 53.

(b) Artachment of immovable propery: If the propertry is immovable, the attachment is to be made by an order

prohibiting

the judgment-

debtor from transferring or charging the property in any way, and prohibiting all other persons from taking any benefit from such transfer or charge. The order is to be proclaimed at some place on or adjacent to the property, and a copy of the order is to be affixed on a

conspicuous part of the property and then upon a conspicuous part of the court-house as according to R. 54. In execution sale, notice to judgment-debtor

is necessary at every stage. Sale gets vitiated where

attachment of property and issuance of sale proclamation is done without notice to judgment debtor." An attachment of an immovable property effected in execution of a decree will continue until the said property is sold and sale is confirmed." Word 'sold' in R. 58, proviso,

Objection 17

Cl. (a) means

complete

confirmed

auction sale.

to attachment of property is tenable even after

auction

sale.

Section 64 states that where an attachment has been made, any private

transfer of the property attached, whether movable or immovable, is void as against all claims enforceable under the attachment.

5. Mahakal Automobiles v. Kishan Swaroop Sharma, (2008) 13 SCC 113: AIR 2008 SC 2061 l6. GS. Mani v. B. Chinnasamy Naidu, AIR 2010 SC 3600 (3601): (2010) 9 SCC 513. Kancherla Lakshminarayana v. Mattaparthi Shyamala, AlR 2008 SC 2069: (2008) 14 SCC 258 (266).

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If any claim is preferred to any property attached in execution of a decree by any person other than a party to the suit, the procedure prescribed by Rr. 58 and 59 are to be followed. If any question relating to the execution of the decree arises between the parties to the suit, or their representatives, they are to be dealt with under S. 47.

If during the pendency of the attachment the judgment-debtor satisfies the decree through the court, the attachment will be deemed to be withdrawn as is given under R. 55, otherwise the court will order the property to be sold under R. 64. If the properry attached is currency coins or currency notes, the court may under R. 56, direct the same to be paid to the decreeholder in satisfaction of his decree, for coin or currency-notes do not require to be sold.

(i) Sale of attached property: If the property attached is movable property which is subject to speedy and natural decay, the same may be sold at once according to R. 43. Rule 76 states that every sale in execution of a decree should be conducted by an ofticer of the court except where the property to be sold is a negotiable instrument or a share in a corporation, which the court may order to be sold through a broker. After the propery is attached, and according to R. 66 the first step to be thereof whether the property is taken by the court towards the sale movable or immovable, is to cause a proclamation of the intended sale to be made stating the time and place of sale, and specifying the property to be sold, the revenue (if any)assessed upon the property, the encumbrances

(if any) to which it is liable, the amount for the recovery of which the sale is ordered, and such other particulars as the court considers material for a

purchaser to know, in order to judge the nature and value of the propery. Rule 68 states that no sale should take place until after the expiration of acleast 15 days in the case of immovable propery and of at least seven days in the case of movable propery calculated from the date on which a copy of the proclamation has been affixed on the court-house of the judge ordering the sale, unless the judgment-debtor consents in writing to the sale being held at an earlier date. R. 68 speaks about the sale effected by

Receiver acting under Insolvency Act and after seeking permission from Court to effect sale, it cannot be set aside for the sole reason that there is a transgression of mandate of O. XXI, R. 68." The court may in its discretion and in accordance with R. 69 adjourn the ale from time to

time, but if the sale is adjourned for a longer period than 30 days, a fresh proclamation should be made, unless the judgment-debtor consents to

waive it.

18.

T.V.R. Fund u. Official Receiver, 2009 (3) KLT 508 (510, 512) (DB).

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It is important to note that no holder of decree in execution of which property is sold, can bid for or purchase the property without the express permission of the Court.

9.5.1 Irregularity in the Conduct of Sale of Attached Property Rule 90 specifies that no sale of immovable property can be set aside on the ground of irregularity in publishing or conducting the sale, unless upon the facts proved, the court is satistied that the

party seeking to set aside the sale has sustained substantial

injury by reason of such irregularity. As regards movable propery, the rule is that a sale of movable

property is not liable to be set aside in any case on the ground of

irregularity in publishingg or conducting the sale. The only remedy open to the party who has sustained any injury by reason of such irregularity is to institute a suit for

compensation against the person responsible tor the irregularity. Where there was no proper publication of the sale in the daily newspaper and the auction has been knocked down in favour of the close relation of the decree-holder for a much less

value of the disputed properry, the order of the executing Court and all the consequent orders by the Courts below would be set aside." The mortgage can be redeemed by paying the dues even after the sale has taken place but before the

confirmation of such sale. a" R. 90(3) would not be applicable where sale was held in

violation of mandatory requirements of the Rules 64 and 66 of O. XXI of the Code. However, in accordance with R. 78 if such person be the purchaser himself, the party sustaining the injury may sue for the recovery of the specific property, and for compensation in detault of such recovery.

9.6

DISPoSAL OF SALE-PROCEEDS

The sale proceeds of property sold in the execution of a decree are to be applied in the manner prescribed by S. 73, which deals with powers of Executing Court for

proportionate distribution ofassets of judgement-debtor amongst different decreeholders In

V.T. Veerappa Chettiar v. P.S. Palaniappa

Chettiar,"

it was observed that

"Section 73, Civil P. C. provides that where assets are sold by a Court and more

persons than one have before the receipt of such assets, made application to the Court for the execution of the decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets after deducting the costs of realization shall be ratable distributed among all such persons. The following conditions have to be satisfied before Section 73 Civil P. C. can be applied:

(1) The decree-holder claiming ratable distribution should have applied for execution of his decree to the appropriate Court;

19. Pappu Ramireday v. Pappu Lakshmi Narayana Reddy, (2009) 16 SCC 346 (347). 20. EmbassyHotels Pvt. Ltd. v. Mis. Gajaraj O Co. ,2015 (1) RC.R.(Civil) 310.

21. PK. Kuruvilla v. Corpn.Bank, 2008 (1) KLT 604 (614) (DB): 2008 AIHC (NOc) 891 (Ker-DB). 22.

V.T. Veerappa Chettiar v. P.S. Palaniappa Chettiar, AIR 1973 Mad 313.

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(2) such application should have been made prior to the receipt of the assets

by the Court. (3) The assets of which a ratable

distribution is claimed must be assets held by

the Court. 4) The decree-holder should be holder of a decree for the payment of money. (5) Such a decree should have been

obtained

against the same

judgment-

debtor." "It is a general principle of law that debts due to the State are

entitled to

priority over all other debts. If a decree holder brings a judgment-debtor's propertry to sale and the sale-proceeds are lying in deposit in Court, the State may, even without prior attachment exercise its right to priority by making an application to the executing Court for payment out. If however, the State does not choose to apply to the Court for payment of its dues from the amount lying in deposit in the Courr but allows the amount to be taken away by some other attaching decree holder, the State cannot thercafter make an application for payment of its dues from the sale proceeds since there is no amount left with the Court to be paid to the State. However, if the State had already effected an attachment of the propery which was sold even before its sale, the State would be entitled to recover the sale proceeds from whoever has received the amount from the Court by filing a suit. Section 73(3) read with 73(2) such a relief being granted in a suit."

C. P.C. contemplates

contemplates such a relief being granted in a suit."

9.7

RESISTANCE TO DELIVERY OF POSSESSION TO PURCHASER

Subject to Rr. 97-104, where immovable property is sold in execution of a decree, and the purchaser is resisted in obtaining possession of the property, he may make an application to the court complaining of such resistance. The court will thereupon fix a day for investigating the matter, and will summon the party against whom the application is made to appear and answer the same.

9.8

COURTS BY WHICH DECREES MAY BE EXECUTED

Sections 38-39 provide that a decree may be executed either by the court which

passed it, or by the court to which it is sent for execution. A decree may be sent by the court, which passed it for execution to another court in the following instances:

(1) if the judgment-debtor resides or carries on business within the local limits of the jurisdiction of such other court; or (2) if the property sought to be attached or sold in execution of the decree is situated within those limits; or (3) if the decree directs

23.

Union of India v. Mk. Somasundaram Mils (P) Lid. AIR 1985 SC 407.

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the sale or delivery of immovable property situate within those limits. A decree may be sent for execution to another court either on the application of the decree-holder or by the court suo motu, and once the decree is transferred for execution to another court, the court

which has passed the decree ceases to have the

jurisdiction

to

execute the decree and the transteree court gets all the powers to execute the decree

as if it had been passed by the transferee court, which shall decide all the questions

arising in execution proceedings.

9.9

PERCEPTS

A precept means a command or an order." A percept is given by the court which passed the decree to a court which would be competent

to execute the decree, and to

attach any property belonging to the judgment-debtor at once, with the underlying object to prevent the judgment-debtor from alienating or otherwise dealing with his property to the detriment of the decree-holder till proper proceedings are taken. It always takes some time to transter a decree for execution to another

court.

Section 46 specifies that if the decree-holder has reasons to apprehend that the judgment-debtor will dispose of the property before "it is attached by the other court, he may apply to the court which passed the decree to issue a precept to the other court to attach the property at once. Whenever such precept is issued, the

court to which it is issued, should proceed to attach the property. The attachment under a percept remains in force for a period of two months, unless the time is extended by the court which has passed the decree.

9.10 QUESTIONS DECREE

TO BE

DETERMINED

BY

COURT

EXECUTING

Section 47 provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution,

discharge or satisfying of the decree should be determined by the court executing the decree on the application of parties, and not by a separate suit. The ambit and scope of the provisions in the Code, dealing with questions to be determined by the court executing the decree is very wide and comprehensive. Exclusive jurisdiction has been conterred on the executing court in respect of all matters relating to execution, discharge or satisfaction of decree arising between the parties. Once a decree is passed in a suit, it is the executing court which will deal with and decide all

questions in executing proceedings and not by filing a suit." This provision has been

enacted for the beneficial purpose of eliminating unnecessary litigation by allowing parties before the court to obtain adjudication of all such questions and provides an

inexpensive and expeditious remedy."

24. ConciseOxford Dictionary, 1990, p. 937. 25. Merla Ramanna v. Nallaparaju, AlR 1956 SC 87; Desh Bandhu Gupta v. NL Anand (1994) 1 SCC 131. 26. Gangabai Gopal Das Mohata v. Ful Chand, AIR 1997 SC 1812.

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Whether

a person is a

representative

or

not can be decided

Chapter 9 by

applying

the

following two tests: () Whether any portion of the interest of the decree-holder or of the judgment-debtor, which was originally vested in one of the parties to the suit, has by an act of the parties or operation of law, vested in the person who is sought to be treated as a

ii)

representative; and

If there has been devolution of interest whether, so far as such interest is concerned, that person is bound by the decree."

A decision

determining any such question is appealable as decree under S. 2(2).

9.11 PROCEDURE Rules 105-106 deal with the procedure for hearing in execution matters.

Execution of "Cross-Decrees" ecution ofcross-decreces. The O. XXI R. 18 CPC provides for the conditions must be satisfied to attract this rule:

following

) thecross-decreeshavebeenpassedin separatesuits; (i) thecross-decreesare capable of execution; and (ii) there are two existing final decrees, one in favour of decree-holder and other in favour of judgment-debtor. "It is true that effect cannot be given to the set off until applications are made to the Court for the execution of the two decrees. The right nevertheless is there, and

this right of the holder of one decree cannot be defeated by an attachment in favour of a third party of the other decree made after the right of set off hasarisen." "Even if the cross-decrees are not mutual in all respects still the petitioner is entitled to equitable set-off provided it can be equitably worked out without detriment to any

of the parties."4

27. State ofWest Bengal v. Partha Basu, (1997) 2 CHN 387; Jagdish Lal v. ME Periera, AlR 1977 Del 12. 28. M.L.M. Mahalingam Chettiar v. Ramanathan Chettiar, (1940) 42 Bom LR 1166. 29. P. Venkatavaradan v. Lakshmi Ammal and Ors., AlR 1982 Mad 5.

CHAPTER

10

APPEALS FROM ORIGINAL DECREES

10.1 APPEALS FROM ORIGINAL DECREES or It is a proceeding for review to be carried out by a higher authority of a decision given by a lower one. In other words, any application by a party to an appellate court, asking to set aside or reverse a decision of a subordinate court, is an appeal within the ordinary acceptation of the term. °An appeal is a creature of statute, and the right to appeal is neither an inherent nor a natural right. The expression 'appeal' has not been defined in the Code. It is an application petition to a higher court for a re-consideration of the decision of a lower court.

A person aggrieved by a decree is not entitled as of right to appeal from the decree. The right to appeal must be given by statute. Section 9 confers on a litigant, independent of any statute, a right to institute a suit of a civil nature in a court of law. So he has a right to apply for execution of a decree passed in his favour, but he has no right to appeal from a decree or order made against him, unless the right is clearly conferred by statute. "Unless a right

of appeal is clearly given by a statute, it

does not exist. Whereas a litigant has independently of any statute a right to institute any suit of a civil nature in one court or another." Section 96 of the Code gives a right to a litigant to appeal from an original decree; S. 100 gives him a right to appeal from an appellate decree in certain cases; S. 109 gives him in a right to appeal to the Supreme Court in certain cases; S. 104 gives him a right to appeal from orders as distinguished from decrees. An appeal from an original decree is called a first appeal. First appeal is a valuable right and the parties have a right to be heard, both on question of law and fact and

decided by giving reasons in support of the findings.

1. Chamber's 20th Century Dictionary, 1997 p. 59. 2. Sita Ram u.State of Utar Pradesh, AIR 1979 SC 745. 3. Nagendra Nath Dey v, Suresh Chadra Dey, AIR 1932 PC 165.

4. Zair Husain v.KhurshedJan, (1906) 28 All. 545. 5. Madhukar v. Sangram, (2000) 2 LRI 1126: AIR 2001 SC 2171.

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An appeal under S. 96 lies only from a decree. A party is not entitled to file against some of the observations or findings which neither amount to a decree, nor operate as res judicata. Where a suit is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue has no right to appeal and these findings shall not operate as res judicata against him.' An appeal from an appellate decree is called a second or special appeal. It is only in a limited number of cases that appeals are allowed from appellate decrees, and that appeals are allowed to

the Supreme Court. As regards appeals from original decrees, it is provided in the Code or by any other law. Thus, S. 96 makes it clear that no appeal lies from a decree passed by the court with the consent of parties. Where a decree cannot be said to be a consent decree the bar under S. 96(3) of the code would not apply. However, an appeal may lie from an original decree which is passed ex parte, ie,

without hearing one of the parties. No appeal lies against the decree passed by small cause court, if the value of the subject-matter does not exceed Rs. 10,000 except on a question of law. No appeal lies from the award of the Lok Adalat as it is an order under the consent of the parties, and is deemed to be a decree of the civil court." Ordinarily,

only a party to the

suit adversely affected by a decree or any of his

representatives in interest may file an appeal. " However, a person who is not a party to the decree or order may prefer an appeal with the leave of the court, if he is bound or otherwise prejudicially affected by such decree or order, as in such an eventuality he may be said to be an 'aggrieved person." If a third party establishes that he is interested in the welfare of the trust, he would be an aggrieved party' having locus standi to prefer an appeal."

On the first day of hearing at the admission stage, if the appellate court finds arguable points in appeal, then notices shall be issued to the respondents,

date for hearing of the appeal. And if the appellate court finds no merit

appeal, then

it shall dismiss the appeal even without

fixing a

in the

issuing notices to the

respondents." Conditional admission of an appeal is not envisaged by S. 96 and an appeal cannot be dismissed for failure to comply with that condition." The appellate court may take note of subsequentevents.

A right of review and right to appeal stand on different footings although some grounds may be overlapping if a review is granted, the decree stands modified but such

modification

of a decree is not an ancillary or a supplemental

proceeding so as

to be revived upon setting aside the decree granting review."

6.

Banarsi u. Ram Phal, AIR 2003 SC 1989: (2003) 9 SCC 606.

7. Deva Ram v. IshowarChand, (1995) 6 SCC 733: AIR 1996 SC 378. 8. Govt. ofAP u. M Pratima Reddy, 2010 (1) ALT 256 (271) (DB). 9.

Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 1 July 2002), s. 96(4).

10. PT Thomos v. Thomas Job, AlR 2005 SC 3575: (2006) 142 PLR 397. 11. State ofPunjab (Haryana) v. Amar Singh, AIR 1974 SC 994: (1994) 2 SCC 70. 12. Adi Pherozshah Gandhi v. HM Seervai,AdvocateGeneral of Maharashtra Bombay, AIR 1971 SC 385. 13.

Swami

Shankaranand v. Mahant Sri Sadguru Sarnanand,

AIR 2008 SC 2763 : (2008) 14 SCC 642

(644-46). 14. Bishnu Bhagat v. Puhpa Devi, AIR 2006 Jhar 117. 15. Mfof Devi Theatrev. Vishwarnath Raju, AIR 2004 SC3325. 16. DDA u. Joginder S Monga, (2004) 2 SCC 297: AIR 2004 SC 3291. 17. Rekha Mukherjee v. Ashish Kumar Das, AIR 2005 SC 1944 : (2005) 3 SCC 427.

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157

Appealsfrom Original Decrees

An appeal during the pendency of the review petrition is not maintainable. Against an ex-parte decree, the aggrieved party can take the recourse to two proceedings, file an appeal and file an application for setting aside the order under O. IX, R. 13 simultaneously. But in the event the appeal is dismissed, a petition under O. DX, R. 13 would not be maintainable. However, where an application under O. IX, R. 13 is dismissed, it would be open to the aggrieved party to argue on the merits of the suit so as to enable him to contend that the materials brought on record by the

plaintiff were not sufficient for passing a decree in his favour or the

suit was otherwise not maintainable." The two grounds cannot be raised in a first appeal against the ex parte decree under S. 96. In the first appeal under S. 96, the

defendant on the merits of the suit can contend that the materials brought on record by the plaintiff were not sufticient for passing a decree in his favour or that the suit was not otherwise maintainable." The right to appeal can be waived by a party under a legal and valid agreement, and if a party has accepted the benefits under the decree, he is estopped from

challenging its legality." However, an agreement by the next friend of a minor not to appeal is not binding on the minor. The right of appeal also stands destroyed if the court to which the appeal lies is abolished altogether, without any forum being

substitutedin its place2 The court hearing an appeal, has the power to implead a person as respondent who has not been so impleaded where it appears to the court that he may be a

person interested in the result of the appeal."* In case where preliminary and final decree are required to be passed and if a party aggrieved by preliminary decree does not prefer an appeal, he cannot be permitted to raise disputes about correctness of such decree in any appeal against the final decree. An appeal is a

continuation

of suit proceedings.

The appellate

court can re-

examine questions of fact and law and may even re-appreciate evidence. The powers of the first appellate court are co-extensive with those of the civil court of the original jurisdiction. However, there may be certain self-imposed restraints in the exercise of such powers. However they are discretionary and do not fetter jurisdiction of the courts. Unlike revision of the review where limited grounds of interference are available,

the appellate proceedings offer a much wider scope in

deciding about correctness of the judgments of the courts below. First appeal may be filed on a question of fact or on a question of law or on a mixed question of fact and law. In first appeals the court is free to decide all questions of fact and law which

8. Ibid. 19. Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626: (2005) 1 SCC 787. 20. Rasiklal M. Dhariwal v. M.S.S. Foodl"roducts, 2009 (2) MPLJ 329 344) (DB) 21. Dexter Ltd v. Hill Crest Oil Co., (1926) 1 KB 348; Ramesh Chandra Chandhok v. Chuni Lal Sabharwal hrough LR, AIR 1971 SC 1238. 22. Rhodes v. Suithenbank, (1889) 22 QBD 577. 23. Stareof Punjab (Haryana) u. Amar Singh. AIR 1974 SC 994: (1974) 2 SCC 70. 24. Code of Civil Procedure, 1908, O. XLI, R. 20().

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arise in the case." In determining the appellate forum, the value of the subjectmatter of the suit is material, and not the claim in appeal."

10.2 COURT OF APPEAL The court to which appeal lies is governed by local law."

10.3 MEMORANDUM OF APPEAL If your client is aggrieved by a decree, and instructs you to file an appeal on his

behalt, you have to draw a memorandum of appeal, setting forth the grounds of objection to the decree appealed from. These grounds are to be set forth without any argument or narrative, and they are to be numbered

consecutively. Be carcful to see

that every ground of objection is set forth in the memorandum; for if any ground is omitted the appellant cannot urge or be heard in support of it except by leave of the court, and such leave is not granted as a matter of course. The object of the rule is to give notice to the other party to the appeal, ie, the respondent, of the case that he has to meet at the hearing of the appeal. It is not to preclude the appellate court from deciding the appeal on other grounds. The appellate court has the power under O. XLI, Rr. 1-2, to rest its decision on (1) grounds set forth in the memorandum of appeal; or on (2) grounds taken by leave of the court; or on (3) any other ground, provided that the party who may be affected thereby has had a sufticient opportunity of contesting the case on the ground.

In drawing the memorandum of appeal one must refer to the judgment, the issues, and the findings thereon. The issues and the findings thereon will give a clue as to the

grounds that should be set forth in the memorandum. The memorandum of appeal must be accompanied by a copy of the judgment. The following will be the form of

the memorandum of appeal in the hypothetical suit for specific performance in which, we have assumed," a decree has been passed against the defendant for Rs 5,000:

Form of Memorandum of Appeal In the High Court of Judicature at Bombay

In appeal from its Original Civil jurisdiction

Suit No.......

AppealNo... CDetc. ...

of 1914 of 1914 Appellant and defendant

Vs

ABetc....

Respondent and plaintiff

25. Manick Chandra Nandy u. Debdas Nandy & Ors, AIR 1986 SC 446: (1986) 1 SCC 512. 26. Gopal Krishna v. Meenakshi, AIR 1967 SC 155: 1967 (15) BLJR 222. 27. See ch. 2, under the heading "Courts in other parts of India... appellate jurisdiction. 28.

See ch. 8.

Appealsfrom Original Decrees

Chapter 10

159

The defendant abovenamed being aggrieved by the decree passed by... on the

day

of 1914 in the above suit appeals from the saiddecree upon the following

among other grounds, namely: 1. That

the learned Judge erred in

holding

that the sale was not to be

completed on the 1 May 1914. 2.

That

the

learned Judge

ought

to have held

that

the sale was to be

completed on the said date, and that time was the essence of the contract. 3. That the learned Judge erred in holding that the plaintiff was ready and willing to perform his part of the contract. 4. That

the learned Judge erred in

holding

that

the

contract

was not

rescinded by mutual consent of the plaintiff and the defendant. 5. That the learned Judge ought to have held that the plaintiff was not ready and willing to pertorm his part of the contract, and that the contract was subsequently rescinded by mutual consent. 6. That the learned Judge erred in holding that the

plaintiff tendered Rs

2,00,000 as alleged by him.

7. That the learned Judge ought to have held that the plaintiff did not tender Rs 2,00,000 or any part thereof to the defendant. 8. That the learned Judge ought not to have awarded Rs 5,000 or any sum to the plaintiff as damages, and that he ought to have dismissed the plaintiff's

suit. 9. That the decision of the learned judge is against the weight of evidence in the case, and that it is against justice, equity and good conscience. Note-This

paragraph is usually added at the end in the belief that it covers all

grounds of objection

not expressly taken in the

memorandum,

but the idea is

erroneous. Besides the above grounds, which are based on the issues, one may set torth such grounds as may suggest themselves on a perusal of the judgment.

Suppose that there were two defendants in the hypothetical suit," both jointly entitled to the property, and the decree was passed against them both on the same grounds. In the case either defendant could appeal from the whole decree, and the

appellate court may reverse the decree in favour of borth. According to O. XLI, R. 1(3), after the memorandum of appeal is ready, it is to be presented to the court along with a copy of the decree and the judgment. The memorandum will be admitted, if it is in proper form. Where the appeal is preferred against a decree for payment of money, the appellant shall deposit the disputed

amount in court or furnish such other security within the time granted by the court.

29. See ch. 8.

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If there is any delay in presenting the appeal beyond the prescribed period of limitation, it shall be accompanied by an application for condonation of delay supported by an affidavit showing sufficient cause why the appeal could not be lodged within the prescribed period of limitation. Such application shall be decided prior to hearing and decision of appeal itself. The provision is, however, directory, and not mandatory. If the memorandum of appeal is filed withour being accompanied by an application for condonation of delay, the consequence is not necessarily fatal and the defect is curable."

Where an appeal is filed

alongwith an

application for condonation of delay in filling the appeal, the dismissal of appeal on the refusal to condone the delay is nevertheless a decision in appeal. "

Delay in filing appeal.- Appeal not accompanied by an application for condoning the delay. Consequences cannot be fatal. If the Appellant subsequently files an application to condone the delay before the appeal is rejected the same should be

taken up along with the already filed memorandum of appeal. Only then the court can treat the appeal as lawfully presented." It also provides that no stay of execution of decree shall be granted till the application for condonation is decided. However, the last part of the rule has been rightly held to be directory. In an appropriate 34 case, court may stay execution pending decision of such application.

10.4 STAY OF EXECUTION After the appeal is filed, the appellate court can be applied to, if the client so instructs, for a stay of execution of the decree appealed from. The court may or may not grant the application. It may grant the application if it is satisfied that there has been no unreasonable delay in making it, that substantial loss may result to the appellant unless execution is stayed, and that the appellant has given security for the due performance of such decree as may ultimately be binding upon him. Mere pendency of appeal is no ground to stay execution of decree. It also does not operate as stay automatically. The High Court while granting stay of execution of the decree must take into consideration the facts and circumstances of the case before it. It is not to act arbitrarily.

If a stay is granted, sufticient cause must be shown

which

means that the materials on record were required to be pursued and reasons are to be assigned. Such reasons should be cogent and adequate." There has to be a specific

order staying the execution of the decree. However, if the aforesaid conditions are satistied, a stay may be granted even ex parte. It is open for the court to impose any

condition as it may think fit and proper in the facts and circumstances of the case

while granting stay of execution.

Usually, it is granted on conditions of deposit or

furnishing of security or otherwise. It has been held that in appropriate cases, a stay

30. 31. 32. 33. 34.

Srateof Madhya l'radesh u.Pradeep Kumar, (2000) 7 SCC 372: 2000 (6) Scale 347. ShyamSunder Sharma v. Panna Lal Jaisural, AIR 2005 SC 226. H. DohilConstructionsCo. (P) La. v. Nahar Exports Ltd., 2015 (1) SCC 680 Dijabar d Anor v. Sulabha d Os., AIR 1986 Ori 38, AIR 1987 Guj 205. Code of Civil Procedure, 1908, O. XLI, R. 3A(3).

35. MaluaStrips(P) Lid. uJyoty Ld, (2009)2 SCC 426 (431): AIR 2009 SC 1581. 36. Mgt of Devi Theatrev. VishwanathRaja, (2004) 7 SCC 327 : AIR 2004 SC 3325.

Appealsfrom Original Decres

Chapter 10

161

may be granted even without any condition for security." On the other hand, there are decisions holding that furnishing security is mandatory. No stay can be granted without

such

security.

Though

the

language

used is

quite

empathetic

and

imperative, it appears that it would be proper to regard such provisions as directory. The court must have the power to dispense with the requirement of security if it is

likely to lead to injustice or extreme inconvenience. If the appeal has not yet been filed, and the client has reasons to apprehend that the other side will apply for execution of the decree, then the client's lawyer may apply to the court which passed the decree for a stay of execution. Where an order is made for execution of the decree one may apply on behalf of the appellant to the court which passed the decree for an order requiring the other

side to give security for restitution of the property that may be taken in execution of the decree, and the court should make the order if sufficient cause is shown by the appellant; or the appellate court may for like cause direct the court which passed the decree to take such security.

10.5 SECURITY FOR COSTS The appellate court may in security for the costs of the appeal, provided by the rules of the court money as security for the costs

its discretion demand from the appellant, or of the original suit, or both. In many cases it is that the appellant should deposit a fixed sum of of the appeal immediately after the appeal is

admitted.

10.6 NOTICE OF DAY FOR HEARING APPEAL Notice of the day fixed for the hearing of the appeal has then to be served upon the respondent in the manner provided for the service of summons.

10.7 CROSS-APPEAL AND CROSS-OBJECTIONS So far the position as regards the hypothetical suit is as follows. The suit was brought

by AB against CD for specific performance, and, in the alternative for damages. The court of first instance refused specific performance, but awarded damages to AB. CD preferred an appeal from the decree in so far as it awarded damages against him. AB apparently was content with the decree, though specific performance was refused to him. AB has now received a notice through the court informing him that CD has preferred an appeal from the decree. Now is the time for him to consider whether he should not as well take his chance and prefer an appeal from the decree in so far it

refused specific performance to him. If he decides to prefer an appeal, and does prefer it, his appeal will be called a cross-appeal. However, it may be that the time to file a cross-appeal has expired, for every appeal has to be filed ithin the limitation Ors., AIR 1987 Guj 113, reversed in Central 37. State of Gujarat v. Central Bank of India, Ahmedabad Bankof India v. Stae of Gujarat o-Ors., AIR 1987 SC 2320 on other point.

Mulla The Key to Indian Practice

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period prescribed by law. If the time has expired, AB may file what are called crossobjections; right to file cross-objections is a substantive right." These may be filed at any time within one month from the date of the service of notice upon him. In fact under the present Code, AB does not run any risk if, instead of filing a cross-appeal, he files cross objections. Under the Code of 1882 it was held that if the original appeal was withdrawn or dismissed for default, ie, non appearance of the appellant at the hearing, the cross-objections could not be heard. It is no longer so under the

present Code. Even when an appeal is withdrawn or dismissed for default, the court

has to hear the cross-objection and dispose it of. missed as time-barred

However, if the appeal is dis-

or has abated or is held to be not

maintainable,

the cross-

objections cannot be heard on merits as they are contingent and dependent upon the hearing of the appeal." Cross-objection would also be dismissed as not

maintainable, where appeal is found incompetent and not maintainable."

Furcher, while dismissinga defendant's appeal, the appellate court cannot modify the decree in favour of the respondents in the absence of cross-appeal or crossobjections." Let us now assume that AB decides to file cross-objections. The crossobjections are to be in the form of a memorandum rules relating to the memorandum

and they must comply with the of appeal. No court fee is payable on cross-

objections. The following will then be the cross-objections of AB. Whereas

at..

the

defendant

abovenamed has preferred

an

appeal

to

the

court

...fromthe decreeof ..

In suit No. ..

.of 1914, dated the

....day

of 1914 and whereas notice of

the day fixed for hearing the appeal was served on the plaintiff abovenamed on the

day of

...1914,

the plaintiff abovenamed files this memorandum of cross-

objections under Rule 22 of Order XLI of the Code of Civil Procedure, 1908, and sets for the following grounds of objections to the decree appealed from, namely: 1. The learned Judge erred in holding that the plaintiff was not entitle

specific performance of the contract referred to in the plaint. 2. The learned Judge having found all other issues for the plaintiff ought to have decreed specific performance of the said contract. Ordinarily, cross-objections may be filed against the appellant. However, in exceptional circumstances, respondent may file cross-objections against co-respondents, and the appellate court has the power to give whatever order it thinks fit not only between the appellant and the respondent, but also as berween respondent and co-

respondent.

38. See the Limitation Act, 1963. 39.

Supt Engineer v. B Subba Reddy, AIR 1999 SC 1747: (1999) 4 SCC 423.

40. 41.

Hari ShankerRastogi v. Sham Manohar, (2005) 3 SCC 761: (2005) 2 SCR 950. NJayaram Reddi v. Revenue Divisional Officer and Land Acquisition Officer, Kurnool, AIR 1979 SC 1393.

42. 43.

MCD v.InternationaS l ecuriy -IntelligencA egeneyLtd, AlR 2003SC 1515. Banarsi v. Ram Phal, AIR 2003 SC 1989.

Chapter 10 After the

Appeas from OriginalDecrees cross-objections

are filed, a copy

thereof

163 should be sent by the res-

pondent to the appellant. The cross-objections are heard as a rule after the original appeal. The respondent may support the decree on any ground in respect of which

findings adverse to the respondent are recorded against him. If the judgment is in favour of the respondent, but some of the findings are decided against the respondent, he is entitled to contend that such adverse findings are erroneous even

without raising any cross objection." He can also file cross objection in respect of an adverse finding even though the judgment and decree are in his favour on the basis of other findings under O. XLI, R. 22.

10.8 HEARING OF THE APPEAL On the day fixed for the hearing, the appellant will be heard in support of

the

appeal. The court may then dismiss the appeal at once without calling upon the respondent for a reply. If this is not done, the respondent is to be heard against the appeal, and in such case the appellant is entitled to a reply. After this is done, the

appellate court may: (a) determine the case finally, if the evidence upon the record is sufficient to enable it to pronounce judgment. The appellate court has power to pass any decree or make any order which ought to have been passed or made. It can even pass further

other decree or order as the case any require. Such

power exists notwithstanding the fact that the scope of appeal may be narrow. It can be exercised in respect of any party who has not preferred any appeal for objection. Where two or more decrees are passed in one suit, it has power even if appeals in respect of some decrees are not preterred at all. When the appellate court passes the decree, the original decree merges into it and such appellate decree shall be final and binding. The

powers are very wide,

but as a general rule, reliefs are founded

on

pleadings made by parties. Such powers are to be exercised with restraint

and only in exceptional cases."" The decree or order which ought to have been passed or made mean those which ought in law to have been passed or made. The final determination of the case may result in conftirmation, reversal, modification or substitution of original decree or order. 'Sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings." (b) remand the case to the court from whose decree the appeal is preferred, if that court has disposed of the suit upon a preliminary point, and the

appellate court holds that the decision of that court on the point is wrong. Appellate Court has power to remand the case, but only in rare situations, a case should be remanded e.g. when the trial court has disposed of a suit 44. Shanti Devi v. Nand Kishore, AIR 2004 P&cH 46: (2004) 136 PLR 377.. 45. RameshwarPrasad & Os. v. Shambehari LalJagannath Ó Anor,AIR 1963 SC 1901. 46. GiasiRam o Os. v. Ram Lal d Ors, AIR 1969 SC 1144;Koksngv. Deokabai, AlR 1976 SC 634. 47, Shasidhar v. Ashwini Uma Mashad,AlR 2015 (SC) 1139.

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on a preliminary issue without recording evidence and giving its decision on the rest of the issues." After the case is remanded, the lower court should proceed with the trial of the suit on the other issues or such issue as

the appellate court may direct it to try and then determine the case. Under R. 23A of 0. XLI introduced in 1976, the power to remand was widened. Even when

the

trial

court has decided

preliminary

point and when decree reversed in

considered necessary, it

the suit

otherwise

than

on a

appeal, if re-trial is

appellate court. The appellate court should not give any conclusive finding in matters it remands for further consideration because after a conclusive finding there remains nothing to be decided by the court to which the matter is remanded.

Further,

can be so ordered by the

it is not

open

to

the

appellate

court

to

issue

directions to the remand court as to how the proceedings after remand are to be conducted before the trial court." Appellate Court has power to remand the case, but only in rare situations, a case should be remanded e.g. when the trial court has disposed of a suit on a preliminary issue

without recording evidence and giving its decision on the rest of the issues, but it is not so in the present case. Remand makes the parties to wait for the final decision of a case for the period which is avoidable."An order of interlocutory order, which does not terminate the remand is an proceedings and can be challenged by the aggrieved party after the final

judgment.* "Remanding a case for re-appreciation of evidence and fresh decision in the matter is nothing but harassment of the litigant. The unnecessary delay in final disposal of a lis, shakes the faith of litigants in

the court." (c) frame issues and refer them for trial to the court from whose decree the

appeal is preferred, if that court has omitted to frame or try any issue

b

essential to the right decision of the suit." The lower court should then proceed to try the issues, and then return to the appellate court, the evidence on those issues together with its findings thereon and the reasons therefor. Either party may then file in the appellate court, a memorandum of objections to any finding, and that court will then proceed to determine the appeal. (d) take additional evidence or require such evidence to be taken by the court from whose decree the appeal is preferred, if () that court has refused to admit evidence which ought to have been admitted; or (i) the appellate court

requires

any

document

to be

produced

or

any

witness

to be

examined to enable it to pronounce judgment or for any other substantial 48. ZarifAhmad (D) v. Mohd. Faroog, AIR 2015 (SC) 1236. 49. Ravinder Kaur v. Ashok Kumar, AIR 2004 SC 904: (2003) 8 SCC 289. 50. Kanchusthabam Satyanarayana v. Nandusi Atchuto Ramayya, AIR 2005 SC 2010. 51. Zarif Abmad (D)u. Mohd. Farooq,AIR 2015 (SC) 1236. 52. angal Prasad Tamoli v. Navedswar Mishra, AIR 2005 SC 1964. 53. Lisamma Antonyv. Karthiyayani, 2015 (2) R.C.R. (Civil) 575. 54.

REMCO. Indi Workers House Bldg Co-op Society v. Lakshmesha, AIR 2003 SC 3167.

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cause; or (ii) the party who wants to produce additional evidence could not produce it despite exercise of due diligence or it was not within his knowledge before the decree was passed. An additional evidence may be permitted to be produced in appellate court when there is a substantial cause. "Appellate Court may call for additional evidence where the appellate court may require any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. Further held, it is the duty of the court to come to a definite conclusion that it is really necessary to accept the documents as additional evidence to enable it to pronounce the judgment. The authority and jurisdiction of the appellate court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way." The court is in-bound under the circumstances mentioned under O. XLI, R. 27 to permit additional evidence and the parties are not entitled as of right to the admission of such evidence and the matter is entirely in the discretion of

the court.° When an application for reception of additional evidence under O. XLI, R. 27 of the code is filed by the parties, it is the duty of the high court to deal with sought to the same on merits so as to find out whether the documents or evidence be adduced have any relevance/bearing in the issues involved. Additional evidence can be adduced in one of three situations, namely, (a) where the trial court has illegally refused the evidence although it ought to have been permitted, (b) where the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence, (c) where additional evidence was necessary in order to enable the appellant court to pronounce the judgment or any other substantial cause

of similar nature.Inadvertence or lack of proper legal advice is not a ground to admit additional evidence in appeal. It would be proper to consider the application for production of additional evidence alongwith the appeal. However, it can be considered independentdly. An appeal in which an application under R. 27 of O. XLI of the Code has been filed should be

decided by appellate court alongwith application for acceptance of additional evidence under O. XLI, R. 27 of the Code. The rejection of such an application would not be proper. Where a party is permitted to produce additional evidence, the other party

shaa lllsobegiveonpportunitytoadduceevidencien rebuttal.0s

oq

i

Where the appellate court directs additional evidence to be taken by the lower court, such court should proceed to take the evidence and send it when taken to the appellate

9030 ATHENE

55. Shalimar Chemical Works Ltd. v. Surendra Oil & Dal Mill, (2010) 8 SCC 423 (430): (2010) 10 SCR

05. S6. Surijit Singh v. Gurwant Kaur, 2015 (1)SCC 664. 57. NKamalam v. Ayyasamy, AR 2001 SC 2802. 58. Mahair Singh v. Naresh Chandra, AIR 2001 SC 134: 2000 (7) Scale356. 59.

Malyalam Plantations Ltd. u. State of Kerala, AIR 2011 SC 559 (563) : (2010) 13 SCC 487 (493), see also NE Rly Adm. v. Bhagwandas, (2008) 8 SCC 511. 60. Haryana State Industrial Development Corpn. v. Cork Manufacturing Co., AIR 2008 SC 56.

61. Eastern Equipment o Sales Lta. v. Yash Kumar Khanna, AlR 2008 SC 2360; see also Vimal Chand Ghevarchand Jain v. R Eaknath Jadoo, (2009) 5 SCC 713.

62. Jaidev Tripathy v. Dilip Kumar Panda, AlR 2004 Ori 194:98 (2004) CLT 295.

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court. The power to take additional evidence is confined to the grounds mentioned above. By a judicial process, it cannot be converted into a power to order fresh trial or allow parties to fill up the lacuna or defect. It cannot be exercised to help a party who has failed to exercise due diligence during original trial. Where some inherent lacuna or defect becomes apparent on an examination of evidence, additional evidence may be allowed." Where the court would be able to pronounce judgment on materials

available before it, it cannot admit additional evidence. It is the court which must require further evidence in order to enable it to pronounce judgment. The third ground on which additional evidence can be admitted was added by way of amendment in 1976. It seeks to expand the powers to receive additional evidence. While there is nothing objectionable in principle in admitting evidence which could not be produced or was not within knowledge before decree, such provision must be strictly construed and stringent requirement of proof must be insisted upon. It should not be allowed to convert appellate proceedings into further original proceedings. For the adduction of additional evidence, the jurisdiction of the appellate court is to be exercised not only when Cl. (a) or Cl. (aa) of sub-rule (1) of R. 27 of O. XLI of the Code is attracted but also when such a document is required by the appellate court itself to pronounce judgment or for any other substantialcause. The appellate court has the power to direct that a person who was a parry to the suit, but not made a party to the appeal, be made a respondent, if it appears that he is interested in the result of the appeal. It has also the power, as to which there was some doubr under the old Code, to pass a decree in a case like the following: A claims a sum of money from X or Y, and in a suit against them both obtains a decree against X. X appeals and A and Yare respondents. The appellate court decides in

favour of X holding that X is not liable to A. It has power to pass a decree againstY, though A did not prefer any cross appeal or file any cross-objections complaining of dismissal of the suit against Y. Subject as aforesaid the appellate court has the same powers as the courts of original jurisdiction in respect of suits instituted therein as specified under S. 107.

It is important to note before leaving this subject that S. 99 provides that no decree should be reversed or substantially varied, nor should any case be remanded

in appeal, on account of any misjoinder of parties or causesof action, or on account of any error or irregularity in any proceedings in any suit, not affecting the merits of the case or the jurisdiction

of the court by which the suit was tried.

10.9 JUDGMENT AND DECREE The judgment of the appellate court should state the points for determination, decision thereon, reasons for the decision, and the relief to which the appellant is entitled. The appellate court should state its own reasons; thus it is not enough to

63.

Venkataramaiah v. A Seetharama Redy, AIR 1963 SC 1526; Arjun Singh v. Kartar Singh &Ors., AlR 1951 SC 193. 64. Lachhman Singh v. Hazara Singh, (2008) 5 SCC 444 (446-447): 2008 (8) Scale 220.

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say in the judgment, I concur with the decision the Munsiff has given on each point. If this is done, the judgment will be set aside by the high court in the second appeal. After the judgment is pronounced, the decree will be drawn up.

10.10 CONSEQUENCE OF NON-APPEARANCE OF PARTIES The rules relating to the non-appearance of parties at the hearing of an appeal are very much the same as those relating to the non-appearance of parties at the hearing

of the suit.

.

.. .

*. .*: -

65. Seech. 8 and Code of Civil Procedure, 1908, O. XLI, Rr. 17, 19 and 21.

11

CHAPTER

APPEALs FROM APPELLATE DECREES OR SECOND APPEALS

11.1 SECOND OR SPECIAL APPEALS A party aggrieved by a decree passed by an appellate court may prefer an appeal to the high court to which the appellate court is subordinate. An appeal to a high court from a decree of an appellate court subordinate to it is called a second or special appeal. Such an appeal is allowed on the ground that the case involved a substantial question of law.' Second appeal is not a third trial on facts or one more dice in the

gamble. The existence of a substantial question of law is the sine qua non for the exercise of jurisdiction under S. 100 of the Code. Such an appeal may also lie from an ex parte decree. The memorandum shall state the substantial question of law. The high court must also formulate such question if it is satisfied that a substantial question of law is involved." The high court cannot proceed to hear a second appeal

without formulating the substantial question of law involved in the appeal:" failure to do so would vitiate the adjudication itself." However, during the course of hearquestion not formulated earlier if ing, the high court may hear the appeal on a deemed fit. No second appeal lies except on the ground

mentioned above. The conditions

mentioned in the section must be stricly fulfilled and no court has the power to add to or enlarge those grounds.

1. Section 100 as amended in 1976. 2. Gurdev Kaur v. Kaki, AIR 2006 SC 1975: (2007) 1 SCC 546.

3. Commr. of Hindu Religious & Charitable Endowment v. P. Sharmugama & Ors AIR 2005 SC 770: (2005) 9 SCC 232. 4. Mohd Hadi Husain v. Abdul Hamid Chaudhary, (2000) 10 SCC 248; R Laksbmi Narayan v. Santhi, (2001) 4 SCC 668. 5. Hubli Dharwar Municipal Corpn v. HS Mohd Khan, (2002) 2 SCC 109: (2002) 2 SCC 109.

. BashirAhmedv. AbdulRahman,AlR 2004 SC3284. 7. Radha Amma and anor v. C Balakirsbnan Nair and Ors., AIR 2006 SC 3343

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Thus, a second appeal does not lie on the ground of an erroneous finding of fact. The concurrent findings of facts, howsoever erroneous, cannot be disturbed by the high court in exercise of powers under this section. But this is not an absolute rule. The high court may substitute its own opinion for that of the first appellate court, where the conclusion drawn by the lower court was erroneous being:

(1) contrary to mandatory provisions of applicable law; (2)

contrary to the law as laid down by the Supreme Court;

(3) based upon inadmissible evidence or no evidence;

4) wrong casting of the burden of proof. The conclusion based on no evidence not only refers to a total dearth of evidence but also the evidence taken as a whole is not reasonably capable of supporting the finding. The respondent, at the hearing, is allowed to argue that the case does not involve such a question. Normally, the high court, while dealing with a second appeal, will not permit a new plea based on question of the fact to be revised." Similarly, a plea involving a mixed question law and fact also cannot be allowed for the first time." The high court cannot interfere in appeal and modify the decree on a question which did not arise for consideration in the suit or in the appeal and on which neither any evidence

nor any finding was recorded." "High Court can interfere with the finding of fact even in the Second Appeal, provided the findings recorded by the courts below are found to be perverse i.e. not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the core issue is not decided. There is no absolute bar on the re-

appreciation of evidence in those proceedings, however, such a course is permissible

in exceptional circumstances.** Where the legal representatives of neither of the parties were brought on record in the second appeal, the second appeal abates and no decree in favour of the party who was dead and against a party who was also dead can be passed.

Further no

appeal lies against the decision of a single judge of a high court in appeal or second appeal. Intra Court appeal in high court against order of single judge is not

maintainable in view of S. 100A of the Code notwithstanding any thing in the High Court Rules or the Letters Patent to the

contrary."'

The

LPA would

not be

maintainable against the judgment and order passed by Single Judge of high court in

8. 9. 10. 11. 12. 13.

Mst. Sugani u.RameshwarDas, AIR 2006 SC 2172: (2006) 3 CTC 108. Kondiba Dagdn Kadam v. Savitribari Sopan Gujar, AIR 1999 SC 2213. Hero Vinoth v. Seshammal, AR 2006 SC 2234:(2006) 5 SCC 545. Tirumala TirnupatiDevasthanamu. KM Krishnaiah, AIR 1998 SC 1132: (1998) 3 SCC 331 Ram Kumar v. Thanwar Das, AIR 1999 SC 3248; Babu Ram v. Indra Pal Singh, AIR 1998 SC 3201.

Radha Amma v. Balakrishnan Nair, AIR 2006 SC 3343: (2006) 7 SCC 546.

14. DR.RathnaMurthy v.Ramappa,2011 () SCC 158.

15. Kishnu v. Bihari, AIR 2005 SC 3799 : (2005) 6 SC 00. 16. Code of Civil Procedure 1908 (as substituted by the Amendment Act, 2002 w.e.f. 1 July 2002), s. 100A. 17. Geeta Devi v. Puran Ram Raigar, (2010) 9 SCC 84: (2010) 10 SCR 969.

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Appeas from Appellate Decrees or SecondAppeas

appeal. In Fuerst Day Lawson Lid. v. Jindal Exports Ltd." culled out from various decisions:

following law has been

1. Normally, once an appeal reaches the High Court it has to be determined according to the rules of practice and procedure of the High Court and in accordance with the provisions of the charter under which the High Court is constituted and which confers on it the power in respect to the method and

manner of exercising that power. 2. When a statute

merely

directs

that an appeal shall lie to a court

already

established then that appeal must be regulated by the practice and procedure of that court. 3. The High Court derives its intra-court appeal jurisdiction under the charter by which it was established and its powers under the Letters Patent were

recognized and saved by section 108 of the Government of India Act, 1915, section 223 of the Government of India Act, 1935 and finally, by Article 225 of the Constitution of India. The High Court, therefore, cannot bedivested of its Letters Patent jurisdiction unless provided for expressly or by necessary intendment by some special statute. 4. If the pronouncement absence of any

implication,

bar

of the single judge qualifies as a "judgment", in the

created

by a statute

either

expressly or by necessary

it would be subject to appeal under the relevant clause of the

Letters Patent of the High Court. 5. Since section

104(1)

Civil

Procedure Code

specifically saves the letters

patent appeal it could only be excluded by an express mention in section 104(2). In the absence of any express mention in section 104(2), the maintainability of a letters patent appeal is saved by virtue of section 104(1). 6. Limitation of a right of appeal in absence of any provision in a statute cannot be readily interred. The appellate jurisdiction of a superior court cannot be taken as

excluded

simply because a subordinate

court exercises its

special jurisdiction. 7.The exception to the aforementioned rule is where the special Act sets out a self-contained code and in that event the applicability of the general law

procedure would be impliedly excluded. The express provision need not refer to or use the word "letters patent" but if on a reading of the provision it is clear that all further appeals are barred then even a letters patent appeal would be barred." The use of expression "heard and decided by single judge of high court" in S. 100A suggest that only those appeals which were heard and decided by single judge on and after 1-7-2002 would be hit by bar contained in S. 100A." Whenever a writ 18. Mohd Saud v. Shaiki Mahfooz, AIR 2011 SC 485 (488): (2010) 13 SCC 517 (520). 19. Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., 2011 (8) SCC 333. 20. Datta Ram Ramesh Kr. v. D.I.G, B.S.F, Rajasthan, AIR 2011 Raj 76 (78) (DB).

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petition against order of the Scrutiny Committee is heard by a Single Judge and the State Law or Letter patent permits an intracourt appeal. Such appeal is maintainable.

The jurisdiction of the civil court to entertain any suit of a civil nature arising under a statute can be excluded only when cognizance is expressly or

impliedly

barred by

the statute which gives rise to such suits." Where the appeal has been admitted on a particular substantial question of law, the high

court is

empowered

to hear, for reasons to be

recorded,

any

other

substantial question of law, which was not formulated earlier, if it is of the view that the case involves such question.* However, the parties must be put to notice of such other formulated question and be given opportunity to address the same." "In

exerciseof jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. The proviso is applicable only when any substantive question of law has already been formulated. The expression "on any other substantial question of law' clearly shows that there must be some substantial question of law already formulated and then only any other substantial question of law which was not formulated earlier can be taken up by the High Court for reasons to be recorded, if it is of the view that the case involves such question." No second appeal lies from any decree in a suit for recovery of money exceeding Rs. 25,000.

not

As regards procedure in second appeals, it is the same as in the first appeals as been clearly stated in S. 108 and O. XLII.

has

11.1.1 What is Substantial Question of Law? Substantial question of law does not only mean a question of general importance but also substantial

question of law arising in a ase as berween the parties. In the

context of S.100 of the Code any question of law which affects the final decision in a case is a substantial

question of law as berween the

parties.

Where

it is found

that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law.Where the first appellate court is shown to have exercised is discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in secondappeal.40

To be a substantial question of law, it must be debatable, not previously settled by the law of the land or a binding precedent, and must have a material bearing on 21. Dayaram v. Sudhir Basham, 2012 (1) SCC 333

L.CA Sulasmanv. StateBankof Travancore,AlR 2006 SC 2848: (2006) 6 SCC 392. 23. See Thingarajan v. Venugopalaswamy B Koil, AIR 2004 SC 1913: (2004) 5 SCC 762.

Z.Laxmidevamma v.Ranganath,2015 (4) SCC 264. 25. Dharam Singh v. Karnail Singh, AIR 2009 SC 758 (760). 26. Code of Civil Procedure, 1908 (as substituted by the Amendment Act, 2002 w.ef. 1 July, 2002). s. 102. 27. Stae Bank of India v. S.N. Goyal, AIR 2008 SC 2594 (2599) : (2008) 8 SCC 92/103). See also Bhuri Bai v. Kamnarayan, (2009) 4 SCC 56. 28. Lisamma Antony v. Karthiyayani, 2015 (2) R.C.R. (Civil) 575.

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the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned." Its foundation must have been laid in the pleadings and

should emerge from the sustainable findings of facts arrived at by the court and it must be necessary to decide that question of law for a just and proper decision of the case. It depends on the facts and circumstances of each case whether a question of law involved in the case is a substantial one or not; the paramount consideration being the need for striking a judicial balance between the

indispensable obligation to do justice at all. stages and impelling necessity of avoiding prolongation in the life of any lis." "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. The subsistence of marriage if established by law, is not a substantial question of law Similarly finding arrived at by considering irrelevant fact or by nonconsideration of relevant fact gives rise to substantial question of law." If a question of law is termed as substantial, the question stands already decided by a larger Bench, its mere application to the facts of the case would not be termed as a

substantial question of law. Similarly the date of alleged partition between the plaintiff and the defendant is not a question of law." Normally in second appeal, the High Court should not interfere on the questions of fact, but if on the scrutiny of the evidence it is found that the findings recorded by the first appellate court is totally perverse then High Court can interfere in the Perversity of a finding. propriety of a matter as it constitutes a question of law. finding recorded by the lower court, is a substantial question of law. The question whether the trial

court

should have exercised its

substantial question of law.

29.

40

jurisdiction

differently

is not a

Govindraju v. Mariamman, AIR 2005 SC 1008: (2005) 2 SCC 500.

30. Commr, Hindu Religious and Charitable Endowment v. P Sharrmugamma, AIR 2005 SC 770: (2005) 9 SCC 232. 31. Ibid. 32. Chunilal V. Mehta and sons v entury Spg O Mfg. Co. Ltd., AIR 1962 SC 1314. 33. Bharatha Matha v. R Viya Renganathan, (2010) 11 SCC 483 (489) : (2010) 11 SCC 483. 34. Abdul Raheem v. Karnataka Electricity Board, AlR 2008 SC 956.

35. KondibaDagaduKondam v. SavitribaiSopanGujar, AIR 1999 SC 2213 : (1999) 3 SCC 722. 36.

Kartick Ch. Mandal v. Netai Mandal, (2009) 107 Cut LT 82 (SC) : (2009) 2 SCC 105.

37. Maria Colacov. Alba E.H.D Souza, (2008) 5 SCC 268 (271) : AlR 2008 SC 1965. 58. Kulwant Kaur v. Gurdial Singh Mann, AIR 2001 SC 1273. 39. MSVRaju v. Seeni Thevar, AIR 2001 SC 3389 : (2001) 6 SCC 652. 40.

Sugani v. Rameshwar Das, AIR 2006 SC 2172.

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11.1.2 In What Cases is a Second Appeal Possible? It is now

important

to provide an idea

of the cases in which a second appeal is

As regards high courts, a suit instituted on the original side of a high possible. court is heard ordinarily by a single judge of that court, and an appeal from a decree passed by him lies, as a rule, to a Bench consisting of rwo other judges of the same court. In this case there can be no second appeal, for a second appeal lies to a high court from a decree passed in appeal by a court subordinate to the high court (letters

patent, cl 15). However, the party aggrieved by the decree of the high court may conditions of S. 109 are satisfied." appeal to the Supreme Court, if tl Outside the presidency towns, there are, in each state, a number

of courts of

different grades which may roughly be divided into the following three classes, in the

order of their grades-

() districtcourts; Gi) subordinate judges courts (in some states, courts of the civil judges, senior division); and (ii)

munsiff's courts (in somestates, courts of the civil judge, junior division).

Of these three classes of courts, usually the district court jurisdiction. An appeal lies to the district court, usually from:

alone has appellate

() decrees of courts belonging to class (ii); and () decrees of courts belonging to class (i) in certaincases In both these cases, an appeal lies to the district court, and a second appeal lies to the high court if the case involves a substantial question of law, as stated above. However in neither case does an appeal lie from the appellate decree of the high

court to the Supreme Court; unless the high court cerrifies that the conditions of S. 109 are satisfied.**

In certain cases, an appeal lies directly to the high court, and there can therefore be no second appeal in such case. However, the party aggrieved by the decree of the

high court may appeal to the Supreme Cour,

if the high court certifies as above that

the conditions of S. 109 are satisfied.

11.2 APPEALS TO THE SUPREME COURT Section 109 of the Code of Civil Procedure states that an appeal lies to the Supreme Court from any judgment, decree or final order of a high court in a civil proceeding of high court, if the high court certifies that the case involves a substantial question of law of general importance, and that in the opinion of the high court, the said question needs to be decided by the Supreme Court. 41.Chapter 2, relating to courts and their jurisdiction, may be reterred to. 42. Se below, Appeals to the Supreme Court.. 43. In some states, courts next in grade below district courts also have appellate jurisdiction. 44. See below 'Appeals to the Supreme Court.

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Appeals from Appellase Decrees or SecondAppeals

A party cannot appeal to the Supreme Court unless the case is certified to be a one for appeal to the Supreme

Court, as where the case involves a question

fit of

company law, and the question is of importance to Indian companies generally as affecting their financial and commercial position. A party failing to obtain a certificate of fitness may apply directly to the Supreme Court for leave to appeal, and the Supreme Court may, in a proper case, grant such leave.

A mixed question of law and fact, when there is no pleading, no issue framed, nor evidence led, cannot be allowed to be raised for the first time before the Supreme

Court. The Supreme Court will be concerned with a substantial question of law arising in the case and its jurisdiction would not be restricted to illegality, irrationality or procedural impropriety in the decision making process. A suit filed on the original side of high court may be heard by a single judge of that court, or it may, in a special case, be heard by a Bench of two or more judges." An appeal lies to the high court from the decree of one judge of the said court." These are called letters patent appeals. Where a single judge of the high court, in appeal, exercising jurisdiction as an appellate court passes an order, Letters Patentorder."" When the suit is heard by two or more Appeal does not lie against that judges, an appeal lies directly to the Supreme Court, and this is contemplated by S. 109. The 'decree' referred to in S. 109 is, so far as

the case the high

courts are concerned, a decree passed in appeal by a high court from:

) adecree of a singlejudge of that court; or (i) a decree of a subordinate court. It is pertinent to note that it is not only a decree, but a final order that is appealable to the Supreme Court. Thus, an order in a partnership suit declaring the rights of

partners, and directing accounts to be taken on the footing of the rights so declared, is appealable to the Supreme Court, if the conditions of S. 109 are satisfied.

11.2.1 Procedure in Appeals to the Supreme Court Order XLV, Rr. 1-3 states that a party desiring to appeal to the Supreme Court should apply by petition to the court. Every petition should state the grounds of mentioned above appeal, a prayer for certificate, that the case fulfils the conditions as regards appeal to the Supreme Court.

In accordance with 0. XLV, Rr. 3-7, upon receipt of such petition, the court shall direct that notice be served on the opposite party to show cause why the certificate should not be granted. The parties will then be heard on the notice. Where the 45. Vasantha Viswanathan v. VK Elayaluwar, AIR 2001 SC 3367: (2001) 8 SCC 133.

46. CellularOperatorsAssociation of India v. Union of India, AIR 2003 SC 899: (2003) 3 SCC 186. 47. Letters Patent, Bombay, Madras and Calcutta, c 36. 48. lbid, cl 15. 49. Hemlata Panda v. Sukuri Dibya, (2000) 2 SCC 218; PSSathappan v. Andhra Bank Lid., AIR 2004 SC 5152.

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certificate is refused, the petition shall be dismissed. When the certificate is granted,

the applicant should, within the specified period, furnish security for the cost of the respondent, and deposit the amount required to defray the expense for preparing a correct copy of the record of the suit for transmitting it to the Supreme Court. Where such securiry has been permitted and deposit made, the court should declare the appeal admitted, give notice thereof to the respondent, and transmit to the Supreme Court, a correct copy of the said record. As regards execution of the decree appealed from, O. XLV, R. 13 clearly states

that the court may stay the execution, taking proper security from the appellant, or it may allow the decree to be executed, taking proper security from the respondent. The appeal will then be heard by the Supreme Court, and an order shall be made. Order XLV, R. 15 states that a party desiring to obtain execution of the order of the Supreme Court should apply by petition to the court from which the appeal was preferred. Such court should then transmit the order to the court which passed the first decree appealed from with directions to execute it.

11.3 APPEALS FROM ORDERS The decisions of a court of law may be divided into two classes, namely, (1) decrees and (2) orders. Orders, again, may be divided into two classes, namely, appealable orders and non-appealable orders.

Decision

Order

Decree

Appealable

Non-appealàble

The following are the points of distinctions berween a decree and an order.

(1) Section 96 of the Code of Civil Procedure states that every decree is appealable, unless it is expressly provided that no appeal shall lie from it; but every order is not appealable: only those orders are appealable which are specified in S. 100 and under O. XLIII, R. 1. (2)

In the case of decrees, S. 100 states that a second appeal lies to the high court if a question of law is involved. 104, Section sub-section (2), makes it amply clear that no second appeal lies in the

case of orders at all. A revision may, however, lie in certain cases." It is for the above reasons that the distinction between a decree and an order is important. The term 'order' is defined in S. 2, c. 14 of the Code as 50.

Chapter 12.

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177

the formal expression of any decision of a civil court which is not decree.

The lists given in S. 104 and O. XLIII,

R. 1 give an idea of

which orders are appealable at a glance.

Where an order passed under the Code of Civil Procedure, 1908 is not appealable,

the party aggrieved by such order may challenge the legality of the order in appeal against the decree and contend that no such order could have been passed and the judgment should not have been pronounced. The term 'decree' is defined in the Code as meaning 'the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regards to all or any of the matters in controversy in the suit. To constitute a decision in a decree, the following conditions must be present:

) The decision musthavebeenexpressedin a suit. i)

The decision must have beenexpressed on the rights of the parties with regard to all or any of any matters in controversy in the suit.

(ii)

The decision must be one which conclusively determines those rights.

If all the elements set forth above concur in a decision, the decision is a decree; if not, it is an order, for all decisions which are not decrees are orders.

llustrations (a) A applies for leave to sue as an indigent person. The application is rejected on a finding that A is not an indigent person. This decision is not a decree, for it is not a decision in a suit. The

application is for leave to sue, which

shows clearly that there is yet no suit. Every suit is commenced by a plaint, and an application for leave to sue as an indigent person does not become a plaint until the application is granted (O. XXXIII, R. 8). (b)

In a suit by A against B, an application is made by X to be added as a plaintiff to suit on the ground that he is interested in the subject-matter of the suit.

The application is rejected. The decision is not a decree, for it is not a decision on any right which X might have claimed in the suit had he been a party-

plaintift. In both the cases cited above an appeal was sought to be preferred from the decision. On referring to S. 104 and to O. XLI, R. 1, it will be seen that neither a decision rejecting an application to sue as applicacion to be added as a party,

an indigent person, nor a decision rejecting is specified in the list of appealable orders given

an

there. The decision not being an appealable order in either of them, it was contended on behalf of the appellant that it amounted to a decree, and it was therefore appealable. However, it was felt that the decision did not amount to a decree, and that it was not therefore appealable as such. It may be asked why is it that no second appeal lies from orders after dealing with appeals to the Supreme Court. The answer is that though the law does not allow a S1. Code of Civil Procedure, 1908, O. XLII, R. IA(1).

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second appeal from an order, whether it is interlocutory or final, it does allow an appeal to the Supreme Court from an order which is final in its character. An order is said to be final, if it has the effect of deciding finally the cardinal point in the suit.

11.4 THE NEXT CHAPTER Thus, there are certain decrees from which no appeal lies to the high court. The next chapter considers whecher there is any other way in which the party aggrieved by such a decree can approach the high court. There are, again, cases in which, though an appeal is allowed by law, the party aggrieved by the decree may apply for a review of judgment

to the very court

which passed the decree. These cases are also

considered in the next chapter.

. .

52. Chapter 12. 53. lbia.

.

CHAPTER

12

REFERENCES, REVISION AND REVIEW

Where no appeal lies to the high court,' the legislature has empowered the subordinate courts to refer questions of law for decision to the high court. This is called reterence. Similarly, where no appeal lies to the high court, the legislature has

empowered the high court to revise the proceedings of courts subordinate to it in certain cases. This is called revision, and the jurisdiction of the high court in these cases is called revisional jurisdiction. The high courts alone have

exercised revisional

jurisdiction under Ss. 113, 115 of the Code.

12.1 REFERENCE According to S. 113, a reference may be made by subordinate court, on a question which arises: a)

in a suit in which the decree is not subject to a second

court to the high

appeal to the high

court, or in the execution of such a decree.

(b) if it is a question of law or usage having the force of law, on which the court trying the suit or appeal entertains reasonable doubts. Section 113 also states that such reference may be made by the court either own motion or on an application by any of the parties. Where a question

on its of the

validity of any law is in issue, a reference must be made.

The primary object of making reference is to enable a subordinate court to

obtain

the opinion of the high court in non-appealable cases on a question of law avoid commission of an error which cannot be remedied at a later stage.

and to

Under the Code of Civil Procedure, 1908, it is only the court of civil judicature, who can make a reference to the high court. And while making a reference, the court must draw a statement of facts, formulate a precise question of law and express its own opinion on the question.

1. Chapter I1.

Mulla The Key to Indian Practice

180 The jurisdiction

Chapter 12

of the high court in references is merely consultative

and is

neither original or appellate. Hence, it cannot pass an order on merits. Once the high court answers the questions referred to it, nothing further survives for the high court to decide."

The following table contains the distinction berween 'reference' and 'appeal'.

SINo. 1.

L.

Reference

Power of reference is vested in the court. Power of reference may be exercised Suo motu.

Appeal A right to appeal is conferred on a Suitor. An appeal may be filed by a party or person aggrieved.

.

It can only be to the high court.

4.

It can only be made during the| It can be prefered only after the pendency of suit or appeal or decree is passed or an order made which is appealable. execution proceedings.

It may be to any superior court which may not necessarily be the high court.

The high court then hears the parties, and decides the points referred. A copy of its judgment is then sent to the court by which the reference was made. It is the duty of the latter cour, on receipt of the judgment by virtue of S. 113 and O. XLVI, R. l to dispose of the case in conformity with the decision of the high court. In certain cases, under O. XVI, R. 6-7 questions as to jurisdiction in small causes may be referred. The power to make reference is discretionary. However, where a question of validity of an act, ordinance or regulation is involved and where the court is of the opinion that they are invalid or inoperative but they have not been declared to be so by the Supreme Court or high court to which it is subordinate, the court shall make reference to the high court. Where the requirement laid down in the proviso to S. 113 of the Code is not satisfied, the reference made by the District Judge would be incompeten."

If the high court has already decided the question as to the validity of an Act, S. 113 has no application.

12.2 REVIsION Revision

means the action of revising and especially making a critical

examination

or perusal with a view to correcting or

improving.

or careful

The revisional

2. Delhi Financial Corpnv. RamParshadAIR 1973Delhi 28; Raja Husain u Gaviappa AIR 1984 Kant 108. 3. Municipal Corpn of City v. Shiv Shanker Gauri ShankerMehta, (1998) 9 SCC 197.. 4.

Stae of Maharashtra

v. Prashant Pretam Kr. Shegaonkar, AIR 2011 Bom 100 (105) (DB) : 2011 (4)

Bom CR 334. 5. Cenral Bank of India n. VrajlaK l kapurchanGdandhi. AIR 2003 SC 3028: (2003) 6 SCC 573. 6. Shorter Oxford English Dictionary, vol. 2, 1990, p 1821.

Chapter 12

References, Revision and Review

181

jurisdiction has been conferred on the high court, for the effective exercise of its superintending and visitorial powers over the subordinate courts. The revisional powers can be invoked by the high court either on an application of the aggrieved party or suo motu. High court cannot reappreciate evidence and set aside concurrent findings of courts below by taking a different view of the evidence. High court is

empowered only to interfere with the findings of fact if they are perverse or there is non-appreciation or non-consideration of material evidence on record." Section 115 does not, in any way, confer a right on a litigant

aggrieved by any order of the

subordinate court to approach the high court for relief. The scope of making a revision under this section is not linked with a substantive right."

The primary object of revision is to prevent the subordinate courts from acting

arbitrarily, capriciously and illegally or irregularly in the exercise of their jurisdiction, and keeping the subordinate courts within the bounds of their jurisdiction."" The scope of revisional jurisdiction depends on the language of the statute. Though revisional jurisdiction is a part of the appellate jurisdiction, it cannot be equated with that of a full fledged appeal." Once the civil revision applications are held to be not maintainable ordinarily the high court should not enter in to the merits of the matter. The high court has the power under S. 115 to call for the record of any case which has been decided by any court subordinate to it and in which no appeal lies thereto,

if the subordinate court appears: (a) to have exercised a jurisdiction not vested in it by law; or

(b) to have failed to exercise a jurisdiction vested in it by law; or

() to have acted in the exercise of its jurisdiction illegally or with material

irregularity and the high court may make such order in case as it thinks fit. "The section is

concerned with jurisdiction and jurisdiction alone involving a refusal to exercise jurisdiction where one exists or an assumption of jurisdiction where none exists and

lastly acting with illegality or material irregularity."" Revision against interlocutory orders is however, subject to certain

limitations as per proviso to S. 115. The high

court shall not vary or reverse any interlocutory orders except in following cases:

() if such order was made in favour of the applicant, it would have finally disposed of the suit or other proceedings; or

7. Johri Singh v. Sukh Pal Singh, AlR 1989 SC 2073; Manick Chandra Nandy u. Debdas Nandy, AIR 1986

446. 8. Yunus Aliv. Khurshed Akram, (2008) 7 SCC 293 (295-297): 2008 SC 2607 (2609) : AIR 2008 SC 9. 10. 1. 12. 13.

2607. Shiv Shaktico-op Housing Societyv. SwarajDevelopers, AIR 2003 SC 2434: (2003) 6 SCC 659. TT Ldu. SiemensPublic Communication NetworksLsd. (Ms), AIR 2002 SC 2308: (2002) 5 SCC 510. Chandrika Prasadv. Umesh Kumar Verma, AIR 2002 SC 108: (2002) 1 SCC 531. Nawab Shaugafath Ali Khan v. Nawab Imdad Jah Bahadur, (2009) 5 SCC 162 (178): 2009 (3) SCALE 934. Major S.S. Khanna v. Brig FJ]. Dillon, AIR 1964 SC 497.

182 (i)

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Mulla The Key to Indian Practice

if such order is passed without any legal evidence on the record, or on misunderstanding of evidence or suffers from any legal infirmity which materially prejudices the case of one of the parties or the finding is perverse" and would occasion failure of justice or cause irreparable injury.

It can be seen that both the phrases 'failure of justice' and 'irreparable injury' are very wide and confer discretionary powers to decide whether interference is called

for or not. Any illegality, irregularity or impropriety is capable of being corrected by the high court by passing such appropriate order or direction as the law requires and justice

demands. A revision shall be entertained by the high court only in respect of those orders which would have finally disposed of the suit or other proceedings.o The revision against order finally deciding the manner in which money decree is to be satistied,

would be maintainable." If the order is of interim nature or does not finally decide the lis, the revision will not be maintainable. "" Where application is an interlocutory application, the order passed rejecting it will not amount to finally deciding final decree proceedings. Hence, a civil revision petition would not be maintainable." The remedy under S. 115 shall be available unless expressly

enactment." Further, mere possibility of a interterence in exercise of revisional powers."

different

barred by any state

view is no

ground

for

The nature and extent of jurisdiction of the various courts subordinate to high court have already beendiscussed. It follows from what has been stated there, that if a court tries a suit which it has no jurisdiction to try having regard to the local limit of its jurisdiction not vested in it by law, it is a case of exercise of jurisdiction not vested in it by law. Similarly where a court has jurisdiction to entertain a suit or to execute a decree, or to review its judgment, but refuses to do so on the ground that it has no

jurisdiction, it is a case of failure to exercise jurisdiction vested in it by law. In all these cases, the high court may intertere in the exercise of its revisional jurisdiction, and make such order as it thinks fit. Where a conditional leave to defend a suit is granted, a revision application would be maintainable."

14.

Neelakantan v. Mallika Begum, AIR 2002 SC 827: (2002) 2 SCC 440.

15. Nalakath Saimuddin v. Koorikadan Sulaiman, (2002) 6 SCC1. 16. VS Saini v. DCM Lid., AIR 2004 Del 219. 17. RadhayShyam Gupa v. Punjab National Bank, AIR 2009 SC 930 (934): (2009) 1 SCC 376 18. Shiv Shakti Co-op Housing Society v. Swaraj Developers, AIR 2003 SC 2434: (2003) 6 SCC 659. 19. Kashammav.Mahadevappa,2008 (1) Kar LJ 652 (653, 655-56) (DB): ILR 2007 KAR 3512. 20. SadhanaLodh v. National InsuranceCo., (2003) 3 SCC 524. 21. Harshuardhan Chokkani v. Bhupendra N Patel, AIR 2002 SC 1373: (2002) 3 SCC 626. 22. Chapter 2. 23. Wada Arm Asbestos (P) Lid v. Gujarat Water Supply & SewerageBoard. (2009) 2 SCC 432.

Chapter12

References, Revision and Review

The third class of cases appropriate

for revision by the high

183 court is where a

subordinate court having jurisdiction and having exercised it, has acted illegally or with material irregularity in the exercise of such jurisdiction. Thus it is an illegality to pass a decree on an unstamped

promissory note.

Similarly, it is an illegality and a

material irregularity to make an order against a person without hearing him at all.

High court in its revisional jurisdiction under S. 115 of the Code can interfere with finding of fact arrived at by the Appellate Authority if it finds that the findings of the appellate authority on the question of bona fide requirement were either perverse or arbitrary. However, an error of fact or law cannot be interfered with in revision. The decision of the subordinate court on all questions of fact and law not touching the jurisdiction is final and not open to challenge in revision and the mere fact that

decision of the court is erroneous, whether it is upon fact or in law, does not amount to an illegality or material irregularity. Therefore the high court will not interfere in the exercise of its revisional jurisdiction

merely because the lower court wrongly

decides that the suit is barred as res judicata,

or that is barred by

limitation,

or

because it proceeds upon the erroneous construction of the sections of an Act. The principle is that where a court has jurisdiction to decide the question before it, and in tact decides such question,

it cannot be regarded as acting in the exercise of its

jurisdiction illegally or with material irregularity, merely because its decision is erroneous.Ifa subordinate court exercisesits jurisdiction not vested in it by law or fails to exercise the jurisdiction so vested, the said order under Section 115 of the CPC is revisable. After the amendment of Section 115, C.P.C. w.e.f. 1.7.2002, the said power is exercised under Article 227 of the Constitution. The revision application can be moved within 90 days from the date of decree or order sought to be revised."

12.3 REVIEW OF JUDGMENT [ORDER XLVI] The term 'review' means re-examination or second examination of a case." It is an act of looking at or offering something again with a view of correction or improvement." It means to reconsider the same material. When it appears that an error on the face of the record has occurred and it can be verified by mere looking at the record, a review application is maintainable.

"An error which is not self-evident

and has to be detected by a process of reasoning

can hardly be said to be an error

apparent on the face of the record justifying the Court to exercise its power of

24.

25.

26. 27. 28.

Ajit Singh u. Jit Ram, AIR 2009 SC 199 (203); see also Devaki Antharjanam v. Srudharan Namboodri, (2009) 7 SCC 798. Pandurang Dhondi Chougule v. Maruti Hari Jhadav, AIR 1966 SC 153; DLF Housing and Construction Co. Pvt. Ltd. v. Sarup Singh, AIR 1971 SC 2324. ML Sethi v. RP Kapur, AR 1972 SC 2379: (1972) 2 SCC 427. Sameer Singh v. Abdul Rab, 2015(1) SCC 379. Limitation Act, 1963, schedule, Art. 131.

.Chamber's 21stCenturyDictionary, 197,p. I197 30. Lily Thomas v. Union of India, (2000) 6 SCC 224.

31. Lakshmi Narain v.Secretaryof Govt, Dept. ofSurvey d* LandRecords,2010 (4) ALT 774 (781) : 2010 (5) ALD 91.

184

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Chapter 12

review. The mere possibility of rwo views on the subject is not a ground for review Review is not re-hearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court." In legal parlance it is a judicial re-examination of the case by the same court and by the same judge." The scope of review is very limited under O. XLVIl, R. 1 of the Code." It is for review of an error apparent

only and not to review judgment or order, even if parties are in a position to satisfy the court that the order under review is erroneous. The Code, under S. 114 confers a right of review if the conditions precedent laid down therein are satisfied and lays down the procedure under O. XLVII for it. The substantive provision of law does not prescribe any limitation on the power of the court except those which are specifically provided under S. 114 in terms whereof it is empowered to make such order as it thinks fit." Review in terms does not apply to an application for review in a writ petition."

A review cannot be equated with the original hearing of the case and finality of the judgment delivered by a competent court cannot be reopened or reconsidered, unless the earlier judicial view is manifestly is beyond any doubt or wrong.It dispute that the review court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law." A review is by no means an appeal in disguise whereby an erroneous decision is regard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing

with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial

point of law which stares one in the face, and there could

reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out."

The remedy of review was not known to Common Law and has been borrowed from the courts of equity. The doctrine of review is based on the philosophy that the mistakes and errors of human failing must be corrected so as to prevent miscarriage of justice. It is exercised to remove the error and not to disturb the finality." Review Petition has to be heard by the Judges, who pronounced the judgment, so long as they are in service. In review petition petitioner can only seek correction of errors or mistakes in the judgment apparent on the face of the record."

32. 33. 34. 35. 36. 37. 38.

Kamlesh Verma v.Mayawati, 2013 (8) SCC 320. Stateof Orissa v. Commr of LandRecords andSettlemens,AIR 1998 SC 3067: (1998) 7 SCC 162. Oriental Insurance Company v. Kalawati Devi, (2009) 13 SCC 767 (768). Span Co. Ld. v. A2Z Maintenance & EngineeringServicesLtd., 2010 (5) Bom CR 832 (836) (DB). Board ofControl for Cricket, India v. Netaji Cricket Club, AIR 2005 SC 592: (2005) 4 SCC 741. Maruti RealEstatePvt. Ld. v. L.I.C. of India, 2008 (1) CHN 442. Delbi Administration v. Gurdeep Singh (2000) 7 SCC 296; Susheel Naik v. GKNaik, (2000) 9 SCC 366.

39. InderchandJain v. Motilal, (2009) 14 SCC 663 (669).

40. Thungabhadra Industries Lrd. v. Govt. of A.P., AIR 1964 SC 1372.

41. Lil Thomasv. Unionof India, AIR 2000SC1650: (2000) 6 SCC 224. 42. Chief Secretary to Government v. Khalid Mundappilly, 2011 (1)RC.R. (Civil) 769.

Chapter 12

References, Revision and Review

185

Consumer Disputes Redressal Agencies under the Consumer Protection Act, 1986, have no power of review. The omission to cite an authority of law is not a

ground to review the earlier judgment. The purpose of review application cannot be "rehearing tor the purpose of saying whether a different conclusion on merits could be adopted.** Order XLVII, R. 1 states that a party aggrieved by a decree or order may apply for a review of judgment not only where no appeal is allowed from it, but also where an appeal is allowed from it, provided that no appeal has been preferred by him. A decree or order from which an appeal is allowed but where no appeal has been filed can be

reviewed."

The fact that some other party to the decree has preferred an

appeal is no bar to an application for a review of judgment if such appeal is common to the applicant and the appellant. Where principles laid down under O. XLVII, R. 1 are completely

An application grounds:

ignored, the order in review would be liable to be set aside.

for a review of judgment may be made on any of the following

i) discovery by the applicant of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree or order was passed;

i)

on account of some mistake or error apparent on the tace of the record;

i)

for any other sufficientreason(which)meanssufficientreasonanalogous to those specified immediately to it in the provisions of O. XLVII, R. 1." The words 'sufficient reason' are wide enough to include a misconception of fact or law by a court or even an advocate. An application

tor review

may be necessitated by way of invoking the doctrine actus curiae neminem gravabit. If the judgment is based upon any proposition of law which is reversed or modified by a subsequent decision of a superior court in any other case, it shall not be a ground for review." This has been clearly stated in the explanation to O. XLVII, R. 1. An error apparent on the face of the record may be one of fact or of law. No error can be said to be an error apparent on the face of the record if it is not self evident

and requires an examination or argument to establish it."

43. EurekaEstates Pvt Lrd v. APS CDR Commission, AIR 2005 AP 118 (DB). 44. Kishan Goyal v. Secty. to Govt. of Orissa, (2008) 106 Cut LT 92 (DB).

45. Kalpatru AgroforestEnterprisesv. Union of India, (2002) 3 SCC 692. 46. T. Thimmaiah v. Venkatachala Raju, (2008) 11 SCC 107 (108).

47. SankarDas v. P.P. Ld., (2009) 108 Cut LT 553 (556) DB): 2009 (2), OLR 790, see also MMB Catholicos v. MP Athanasius, AIR 1954 SC 526; Meera Bhanja v. Nirmala Kumari Chaudhari, AIR 1995 SC 455: (1995) 1 SCC 170.

48. Board of Control for Cricket India v. Netaji Cricker Club, AIR 2005 SC 592: (2005) 4 SCC 741. 4.Shanti Devi v. Stateof Haryana, (1999) 5 SCC 703. 50. Delhi Administration v. Gurdip Singh (2000) 7 SCC 296; Parsion Devi v. Sumitri Devi (1997) 8 SCC 715.

Chapter 12

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186

The application should be in the same form as a memorandum of appeal. After the application is admitted, a notice will be issued to the opposite party. The application will then be heard. It is to be heard by the very judge who passed the decree, unless he is no longer attached to the court, or is precluded from hearing it by absence or other cause for a period six months next after the application. And here the main point of distinction between an appeal and a review has to be noted. An appeal from a decree lies to a judge other than the one who passed the decree. A review of judgment lies to the same judge who passed the decree. In absence of any

statutory provision providing for review, entertaining an application for review or under the garb of clarification/modification/ correction is not permissible." Where there is no

sufficient

ground

for a review, the

application

should

be

rejected. Otherwise the court may grant the application. Where the application is re-hearing it. granted, the court may at once re-hear the case or appoint a day for Atter re-hearing the case, the court may pass such decree or orders as it thinks proper as per O. XLVII, R. 4, 6. Where review is allowed, the applicant would be entitled to refund of court fee paid on the review petition." XLVII, R. 9

The law does not allow a second review, that is to say, that under O. there can be no review of an

application

for a review and no

review

of a

decree

passed on a review. Regarding the maintainability of appeal against the review peition preferred by appellants themselves having invoked the jurisdiction of the appellate court, it would not be open to the appellants to take a contrary view and to urge that such appeal was not maintainable having being filed against an order passed in review petition.* The following table contains the points of distinction berween 'review' and 'revision'.

SINo. (1)

Revision

Rev

Review jurisdiction can beexercised Revisional

jurisdiction

can

be

by that very court which passed the | exercised only by the high court. decree or made the order.

(2)

Review is available irrespective of

whecher an appeal lies from

the

Revision

is

available

when

no

can

be

appeal lies.

decree or order. (3)

Review powers can be exercised by

Revisional

jurisdiction

the court only on application of the | exercisedevensuOmotu. aggrieved party.

4)

Order granting review is appealable.| Order passed in revisional Jurisdiction is not appealable.

51.

See ch. 10.

52. Kalabharti Advertising v. Hemant Vimanath Narichania, AIR 2010 SC 3745 (3749): (2010) 9 SCC 437. 53. JoyVerghese v. State of Kerala, AIR 2005 Ker 49. 54. Indian Overseas Bank u Ashok Saw Mil, (2009) 8 SCC 366 (376).

Chapter 12

References, Revision and Review

187

The review jurisdiction of the court can be invoked within 30 days from the date of the decree or the order.

12.4 THE NEXT CHAPTER The conduct of suit in and out of court from the date of their institution up to the final order of the Supreme Court have been explained thus far. There are, however, supplemental proceedings which are not obligatory upon a party to demand it. They may be taken at any stage of a suit as occasion demands. These proceedings form the

subject-matter of the next chapter. That chapter also deals with certain special types of proceedings and also with death, marriage and insolvency of parties.

.

55.

Limitation Act, 1963, schedule, Art. 124.

CHAPTER

13

SUPPLEMENTAL AND SPECIAL PROCEEDINGS

(A) SUPPLEMENTALPROCEEDINGS 13.1 ARREST AND ATTACHMENT BEFORE JUDGMENT Ordinarily, the properry of a debtor may be attached or he may be arrested only in execution of a decree. However, in order to prevent any attempt by a defendant to defeat the execution of decree and to enable the plaintiff to realise a decree in the event of the decree being passed in his favour, the Code provides for the arrest of a defendant or the attachment of his property, in certain circumstances before the delivery of judgment. The power of arrest of defendant or attachment of his property before the judgment is an extraordinary remedy, and must be exercised sparingly and with utmost care and caution. The process cannot be used by the plaintiff as a lever to coerce the detendant to come to terms.

A plaintiff may at any stage of a suit apply for arrest of the defendant before the judgment is passed against him. Similarly, he may apply for the attachment of his property before judgment. Such an application may be made at any time after the plaint is admitted, even before the service of summons upon the defendant. It is certainly not just that a defendant should be arrested or that his property be attached before a decree is passed against him. Hence, it is only in certain specified cases that the law allows an arrest or attachment before judgment. Where the arrest or attachment has been obtained on insufficient grounds, the law provides compensation to the defendant for an amount not exceeding Rs. 50,000.* Section situation stated therein, and it is open to a party to institute an independent suit for damages. The remedy under S. 95 is an

95 is a specific

provision

to meet the

alternative remedy in cases of wrongful obtainment of injunction, and it does not in any way interfere with the principles regulating suits for damages for tort or 1. Sardar Govindrao Mahadik v. Devi Sahai, AIR 1982 SC 989: 2. Code of Civil Procedure, 1908 (as amended by the Amendment

(1982) 1 SCC 237. Act, 1999 w.e.f. 1 July 2002), s. 95 (1).

190

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malicious legal process. The scope and ambit of such suit for damages shall necessarily be wider than the limited scope envisaged under S. 95. The regular suit shall be based on tort for abusing the process of court and the

plaintiff not only has to prove want of reasonable or probable cause for obtaining injunction, but also that the defendant was attracted by malice or an improper motive, and according to S. 95(2) an order determining such compensation shall bar any suit tor compensation in respect of such arrest. Separate suit for damages shall also be barred where an application for compensation

under S. 95 is dismissed."

13.1.1 Arrest before Judgment [Order XXXVI, Rules 1-4] Where the court is satisfied that the defendant with an intent to delay the plaintiff or to avoid any process or with intent to obstruct or delay the execution of any decree that may be passed against him: (a) has absconded or is about to abscond, or has

left or is about to leave

the

(6) has disposed of his property or any part thereof or has removed it from said limits;

the

local limits of its jurisdiction; or

the court may issue a warrant to arrest the defendant,

and bring

him before the

court to show cause why he should not furnish security of his appearance. Where the defendant is about to leave India, it is enough if the circumstances under

which he is about to leave India afford a 'reasonable

probability'

that any

decree that may be passed against him in the suit will thereby be obstructed or delayed in execution. The power to arrest the defendant and that too before a decree in favour of the plaintiff is drastic action and must be taken after due care,

caution, and circumspection.

6

Application for arrest before judgment.-In Vareed Jacob v. Sosamma Greevarghese An application for arrest may be made by the plaintiff at any time after the plaint is presented, even before the service of summons is effected on the defendant. However, before this extraordinary power can be exercised, the court must be satisfied about the following conditions:

The

plaintiffs suit must be bona fide and hiscauseof action must be prima

facie unimpeachable subject to his proving the allegations in the plaint.

The this

court must have reason to believe on adequate materials that unless extraordinary

power is exercised

there is a real

danger

that

the

defendant will remove himself or his property from the ambit of the

powers of the court." 3. Bank of India v. Lakhimani Das, AIR 2000 SC 1172: (2000) 3 SCC 640. 4. Yeragorla Narayana v. Gavvala Nellesu, AIR 2006 AP 305. 5. VBalakrishnan v. TM Gourieshan, AIR 2001 Mad 20. 6. In VareedJacob v. SosammaGreevarghese,(2004) 6 SCC 378. 7. Vareed Jacob v. Sosamma Greevarghese, (2004) 6 SCC 378.

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191

The warrant should specify the amount of the plaintiff's claim. If the defendantpays the amount to the officer entrusted with the execution of the warrant, he will not be arrested. If he does not pay the said amount, he will be arrested and brought before the court. If he shows such cause, the court will make an order directing his release. If he fails to show such cause, the court will make an order directing him either to

deposit in court, money or other property sufficient to answer the claim against him, or to furnish security for his appearance at any time until satisfaction of any decree that may be passed against him. If he fails to comply with the last-mentioned order, the court may commit him to the civil person for a maximum period of six months and where the value of t subject matter of the suit does not exceed Rs. 50, for a maximum period of six weeks. No arrest before judgment is allowed in a suit for land or

immovable property

specified under S. 16, cl. (a) to (d).

An order passed under O.38 R. 2, 3, or 6 is appealable under

O.43 R.1(q).

A woman cannot be arrested or detained in civil prison under this rule in case of a

suit for recovery of money.

13.1.2 Attachment before Judgment [Order XXXVII, Rules 5-12] The sole object of attachment before judgment is to give an assurance to the plaintiff that the decree which may be ultimately passed in his favour shall not be rendered

infructuous. Where the court is satisfied that the defendant, with an intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of his or any part thereof or remove it from its local limits, the court may direct the defendant either to furnish security in such sum as may be specified in the order to place at the disposal of the court, the said property or the value thereof, or such portion thereof as may be sufticient

to satisty the decree that may be passed against

him, or to appear and show cause why he should not furnish such security. Order XXXVIII Rule 5(1) empowers the court to direct a defendant to furnish security in the specified sum or produce and place his property or part thereof at the disposal of Cour, to the extent it is sufficient to satisfy the decree, if the Court is satisfied that such defendant is with intent to obstruct or delay the execution of any decree that may be passed against him, is about to remove the same from the local limits of the jurisdiction of the Court. Sub-rule (3) furrher empowers to direct conditional attachment of the specified property. Conditional atachment is provisional in modification. "The power given under this rule to nature and is always subject to make an alternative order directing the defendant either to give security within a definite period or to appear ands show cause why

he should not furnish security,

8. Mchelska Mills Mothers v. Chorus Girl Inc., AIR 1991 Del 129. 9.

Govindram v. Devi, AIR 1982 SC 989.

192 carries with

Mulla The Key to Indian Practice it, as an incident,

the power to

confirm

Chapter 13

the order that security be

furnished." "The fact that the cour has passed a conditional order of attachment does not mean that the requirement of sub-rule (1) of O. XXXVIII R. 5 has been taken away, nor does it mean that the defendant loses his right to show cause, why he should not furnish security. Therefore though a conditional order of attachment had been passed by the court, the defendant would have a right to appear and show cause

against it.IF he fails to show suchcause, the court may order that the property be attached, or if it has already been attached, it may confirm the attachment. Attachment before judgment of the movables" and of the money in the hands of a third parry due to the defendant can also be ordered." In order to secure the attachment of property betore judgment in a money suit, it is not necessary to consider that whether the suit property is the subject matter of suit and that it is within or

beyond the jurisdiction of the Court." An order of attachment before judgment may be likely to ruin the reputation

of the

party against whom such an order is

passed. Thus, the affidavit filed in support of the contentions should not be vague and should clearly establish that the defendant, with an intent to obstruct or delay the execution of the decree that may be passed against him is about to dispose of the whole or any part of his propertry. Particulars and grounds on which the belief or apprehension is based must be clearly stated with the source of information. Mere general allegations or a mere mechanical repetition of the language of the provision,

unsupported by particulars would not be sufficient. The power under O. XXXVIII, R. 5 of the code is extra ordinary and drastic and hence should not be exercised

mechanically or merely for the asking. The power under 0. be used sparingly and strictly in accordance with rule." While

XXXVIII, R. 5 should exercising jurisdiction

under O.

to form a prima facie

XXXVIII,

R. 5 of the Code, the court is required

opinion at that stage and need not go into the correctness or otherwise of the contentions raised by the parties." Where property is attached before judgment, and a decree is subsequently passed for the plaintif, it is not necessary to re-attach it in execution of the decree. Agriculture produce and production of such produce cannot be attached before judgment. The Code does not empower a court of small causes to

make an order for attachment ofimmovable property. " An order of attachment made without complying with the requirements shall be

void according to O.

XXXVIII, R. 5(4). An order passed without giving reasons

would be an illegal order. Thus the power to attach the property before judgment

10. 11. 12. 13. 14. 15.

Shah Umed Mal v. Shah Bhutaji, ILR (1969) 19 Raj 701. Shalimar Rope Works Ltd. v. N.C. Jobn and Sons Lrd., 1986 Ker LJ 1051. Sankar SealingSystem PLtd. v. Jain Motor TradingCo., AIR 2004 Mad 127. SurenderSingh Bajaj v. Kitty SteelsLtd., AIR 2003 AP 13 (DB). Muthoot Vehicle AssetFinance Lsa. v, Gopalan Kuttapan, 2009 (4) KLT 123 (126) (DB). Raman Tech Proces Engg Co Solanki Traders, (2008) 2 SCC 302; see also M.R. Lakshamanappa u. Ramachandra Bhas, 2008 AIHC 1678 (Kar) (merely having a prima facie case will not entitle the

plaintiff to an order of attachment betore judgment). T6. Kajendran v. Shankar Sundaram, (2008) 2 SCC 724. 17. Code of Civil Procedure 1908, 0. XXXVII, R. 13.

Chapter 13

Supplemental and Special Proceding

cannot be exercised in routine

manner.

193

*This process is never meant as a lever for

the plaintiff to coerce the defendant to come to terms. Hence utmost caution and circumspection should guide the court. The court must advert to the provisions of the Code in this regard, advert to and investigate the allegations thrown against the defendant, satisty itself that a case for attachment before judgment has been made out and then pass the requisite order. These principles have come to be recognised as

mandates to the Court and if the Courts act in breach thereof, such an order of the Court will have to be ignored as the result of dereliction of duty."" Attachment before judgment made without giving an opportunity to the defendant to furnish security shall be void." The attachment of property must be made in the manner provided tor the attachment of property in execution of adecree under O. XXXVII, R. 7. Under the said order,

R. 11A, an attachment made before judgment in a suit

which is dismissed for default will not become revived ipsofacto on the restoration of the suit after setting aside of the order of dismissal for default. Where the Supreme Court

appointed a receiver and possession was handed over to him,

attachment

would stand released." Where any claim is made in respect of such property, it shall be decided in the same manner as provided tor attachment of property in execution of a decree. Such

attachment shall not affect rights of persons not parties to the suit if such rights were existing prior to the attachment. The provision for attachment before judgment is not applicable where the property has already been disposed of and the purchaser has a right to object to attachment as he had become owner of the property before the filing of the suit." Mere non-appearance of the defendant despite servic f notice, if the defendant is in financial strain is not sufticient and does not justity an

order for attachment before judgment.""

13.2 TEMPORARY INJUNCTION [ORDER XXXIXI An injunction is a judicial remedy prohibiting persons from doing a specified act or

commanding them to undo some wrong or an injury. The relief of injunction is in the nature of declaratory and equitable." In the former sense, it is called a restrictive injunction and in the later, a mandatory injunction."

Injunctions are of two kinds, namely, () temporary; and (i) permanent. Temporary injunctions are such as are to continue until a specified time, or until the further order of the court. They may be granted at any stage of a suit, even before the service of summons upon the defendant and are governed by the Code. An 18.

Maudala Suryanarayana v. Barla Babu Rao, AIR 2010

(NOC) 573 (DB) : (Misc. Appeal No. 997 of

2009dt. 6.11.2009.. 19. T. Srinivasan v. V. Srinivasan, AIR 1985 Mad. 269 20. RBM Pari Joint Venturev. BengalBuilders, AIR 2004 Cal 58. 21. Chhagan Lal v. Kamal Chand, (2008) 3 SCC 303. 22

Subhash Bhimshanker Kalase v. State Bank of India, AIR 2005 Bom 165.

5. RBM Pati Joint Venturev. BengalBuilders, AIR 2004 Cal 58.

24. Saraswati Co-op Bank v. CM Shah, AlR 2002 Bom 203. 25. Ryan v. P.N. Juneja & Sons, 163 (2009) DLT 14. 26. Black's Law Dictionary, sixth edn.

194

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injunction is in the nature of a preventive relief granted to a litigant because he fears

furure possible injury. A perpetual injunction can only be granted by a decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually

enjoined from the commission of an act, which would be contrary to the rights of the plaintiff. Perpetual injunctions are governed by the Specific Relief Act, 1963." A temporary injunction may be granted in any of the following cases: (a) where any property in dispute in the suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree; (6) where the defendant threatens to dispose of his property with a view to defrauding his ereditors;

(where

the defendant threatens todispossessthe plaintiff; or

(d) where the defendant is about to commit a breach of

contract,

or other

injury of any kind. Illustrations (1)

A trustee threatens

to sell trust

property

in breach

of the

trust.

The

beneficiary may sue for an injunction to prevent the breach, and may at any time after the plaint is admitted apply for a temporary injunction to restrain the trustee from sellingg the propertry until the hearing and final disposal of the suit. (2) A lets certain lands to B, about to dig sand out of injunction to restrain B injunction as in illustration (3)

and B contracts not to dig sand or gravel thereat. Bis the lands in violation of his contract. A may sue for an from digging sand, and may apply for a temporary (1).

A pollutes the air with smoke so as to interfere materially with the physical comfort of his neighbour B. B may sue for an injunction to restrain the pollution, and may apply for a temporary injunction as in illust (1).

As a general rule, the court is required to issue a notice to the

defendant

before

issuing any injunction. However, where it appears that delay would defeat the object of granting injunction, the court may issue injunction without even giving notice to the defendant. It is called ex parte or ad interim

injunction.

Where the Court is

satisfied that a case for the grant of ex parte injunction without issuing notice to the opposite party is made out, proviso to rule 3 obligates the court to record reasons which is not a mere formality but a mandatory

In Shiv Kumar Chadha u. MCD,"

requirement.

the Supreme Court held that:

The requirement for recording the reasons for grant of ex parte injunction cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right 27. Specific Relief Act, 1963, ss. 38-42. 28. Shiv Kumar Chadha v. MCD, (1993) 3 SCC 161.

Chapter 13 which such

Supplemental and SpecialProceedings party

claims to exercise

either

195

under a statute

or

under the

common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party who invokes the jurisdiction of the Court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must sacisfy the Court about the gravity of the situation and Court has

toconsiderbrieflythesefactorsin theexparte order..

it isheldthat

the compliance of the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and part of Rule 3 will be a surplusage for all practical purpose. Proviso to Rule 3 of Order 39 of the Code attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all." When it is granted, the plaintiff is required to send copies of documents, plaint and

affidavit in support of application for injunction to the defendant immediately and to file an affidavit which is done on the same or next day. If the plaintiff has made a false statement or suppressed material facts, such ex parte injunction is liable to be

vacated forthwith. If x parte injunction is confirmed after hearing and final disposal of the suit, it can be subsequently

modified, discharged or set aside if there is a

change of circumstances which necessitatesuch variation or discharge or if it causes undue hardship. Under the second proviso to R. 4 of O. XXXIX of the Code the court is empowered to discharge, vary or set aside the order of

injunction

on an

application made by any party, dissatisfied with the order of injunction, provided there is a change in

the circumstances or the court satisfies that the order caused

undue hardship to that party." If a party willfully disobeys the injunction or commits breach thereof, the court has power to commit him to civil prison or to attach and sell his properties. If any movable property of perishable nature is a subject-matter of suit, there is also a provision enabling the court to sell it. While passing an interim order of injunction under O. XXXIX, R. 1 of the Code, the court is required to consider three basic principles, namely:

) the plaintiff hasaprimafaciecaseof infraction oflegalrights; Gi) the balance of convenience is in favour of the plaintiff; and

ii) the plaintiff will suffer irreparable loss which cannot becompensated in terms of money." The grant of an injunction is a discretionary remedy and an equitable relief and even if the above three conditions are satisfied, the court is not bound to grant interim relief

However,

the court is under an obligation

to undo the wrong done to a

party by the act of the court. Any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as an institution of

29. HotelLeela Venture Lid. v. YaseenBegum, 2009 (1) ALD 519 : 2009 (1) ALT 386 (DB). 30. Kishor Singh Ratan Singh Jadeja v. Maruti Corporation, (2009) 11 SCC 229 (238) : AIR 2009 SC 2882 : 2009 (5) Scale 229. 31. Gujaras Botling Co. Ltd. u. Coca Cola Co, AIR 1995 SC 2372: (1995) 5 SCC 54.

litigation

Chapter 13

Mulla The Key to Indian Practice

196

cannot be permitted to confer any advantage on a suitor

from delayed

action by the act of the court. There are equitable considerations, eg, the of the applicant, the delay in filing the application, which have to be weighed before issuing temporary injunction. Since the power of the discretionary, it can be exercised and injunction granted under the inherent

conduct carefully court is powers,

when judicial intervention is necessary to protect the applicant, even though the relevant provisions of the Code are not satistied." At the same time injunction may

not be granted if it caused administrative inconvenience or results in public mischief or perpetuates an illegalicy or where a party does not come before the court with

clean hands. Further ifa party fails to prove prima facie case to go for trial, it is not open to the court to grant injunction in his favour even if, he has made out a case of

balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted. Conduct of the parties is also a relevant consideration for the grant of injunction." Another species of

injunction is known as anti suit

restrains a party to a proceeding before it from

instituting

injunction.

When a court

or prosecuting

another court including a foreign court, it is called anti suit injunction. should be exercised sparingly because such an injunction

though

a case in

This power

directed against a

person, in etfectcausesinterference in exercise of jurisdiction of another court. Either party to the suit, plaintiff or defendant, may apply for the grant of temporary injunction. An injunction may be issued only against a party to the suit and not against a third party, and further only against persons within the jurisdiction of the court. The plaintiff must prove that a right to sue has accrued in his fovour. No suit can be filed by the plaintiff to protect a right of a third party. Appeal against an interim order is maintainable." Where an injunction order is neither extended nor vacated after a particular date, it shall not remain operative thereafter." At all events, the high court will desist from issuing an ex parte

mandatory injunction. Such interim orders are issued in exceptional cases only where failure to do so will lead to an irreversible or irretrievable

situation.

The

provision under R. 10, O. XXXIX of the Code is to take care of the cases of violation or breach of court order." Res judicata on injunctions.-The same suit or proceeding.

res judicata applies to different stages of the

32. Amarjeet Singh v. Devi Ratan, AIR 2010 SC 3676 (3681): (2010) 1 SCC 417. 33. Manohar Lal Chopra v. Hira Lal, AlR 1962 SC 527. 34. Kashi MathSansthanv. Srimad Sudbindra Tritha Swamy, AIR 2010SC 296 (299) :(2010) 1 SCC 689. 35.

Mandali Ranganna v. T. Ramchandra, (2008) 11 SCC 1 (9-10): AIR 2008 SC 2291.

36. Modi Entertainment Network v. WSG CricketPre Ltd., AIR 2003 SC 1177: (2003) 4 SCC 341. 3.Calcutta Swimming Club v. Lalit Singh,2009 (2) Cal HN 379 (384) (DB). 38. Magna Publishing Co. Ltd. v. Shilpa S. Shetty, AIR 2008 SC 681. 39. Arjan Singh u. Punit Ahluwalia, (2008) 8 SCC 348 (355, 357). 40. Sate Bank of Patiala v. Vincsh Kr. Bhasin, AIR 2010 SC 1542: (2010) 4 SCC 368.

41

Stm Ld vuProdataDoctor Pt. Lad, 2009 (112) DRJ 345: 2009 (41) PTC 626: 2010 (1) AD (Dlhi) 286.

Chapter 13

Supplemental and SpecialProceedings

In Arjun Singh v. Mohindra Kumar,

197

"if interim injunction is once granted or

refused by the court, the said power will operate till the disposal of the suit or throughout the proceeding. An application for granting or vacating injunction will lie if there are changed circumstances."

13.3 RECEIVER [ORDER XL] A receiver is an impartial person appointed by the court to collect and receive the rents, issues and profits of land or personal estate pending proceedings, where the court does not deem it reasonable that either party should collect or receive such rents, issues or profits and to enable their distribution to the persons entitled." When a court receiver is appointed in respect of any property, he acts on behalf of the court and holds the property for the benefit of the true owner." He does not become an assignee or a beneficial owner and the property does not vest in him in

his own right. A receiver is an officer or representative of the court, and subject to its orders. He has no power to deal with the property without the leave of the court. The court receiver cannot encumber the property in any manner without the leave of the court.

It is the

obligation

of the

court, as well as the receiver to preserve and

maintain the property as far as possible and practicable in the same form in which it was when it was taken in possession, and to maintain status quo. A receiver cannot sue or be sued except with the leave of the court. "No such sanction is, however, prosecute the receiver for a criminal offence alleged to have been necessary committed by him by abusing his authority as receiver."" He cannor delegate his duties. If any loss is occasioned to the property by the wilful default or negligence of a receiver, the loss, so far as it is not made good by the receiver, is to be borne by all the parties. The court receiver in his endeavour to protect the property cannot seek to make any profits as an agent of the court. 7 Appointment

of a

receiver

pending

suit is a

matter

which

is

within

the

discretionary jurisdiction of the court. Ordinarily the court would not appoint a receiver save and except on a prima facie finding that the plaintiff has an excellent chance of success in the suit." lt is a serious matter involving serious consequences and recourse to this remedy may be taken by a court only as a last resort."

9

42. Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993. 43. Kerr on Receivers, sixteenth edn., 1983, p. 3; Maharaja Jagat Singh v. Sawai Bhavani Singh, AIR 1993

SC1721 :1993 Supp (2) SCC 313. 44.

5.

Usha Harshad Kumar Dalal v. ORG Systems, (2000) 1 SCC 742. Tbid.

46. K.Shyamalambalv. M.S,Ramamurthi,AIR 1948 Mad. 318. 47. Pradeep C Modi v. Sashikant C Mody, AIR 1998 Bom 351. 48. Parmanand Pasel v. Sudha A Chowgule, AIR 2009 SC 1593: (2009) 11 SCC 127 (938). 49. B Sanjeevamma v. YPuranamma, AIR 1984 AP 28 (DB).

Mulla The Key to Indian Practice

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Chapter 13

Status of Receiver.-In Jagat Tarini Dasi v. Naba Gopal receiver has been appropriately explained in the leading case in The

receiver is

appointed

for the benefit

of all

representative of the court, and of all the parties wherein he is appointed.

Chaki," the status of the following words:

concerned;

he is the

interested in the litigation,

He is the right arm of the court in exercising the

jurisdiction invoked in such cases for administering only administer through a receiver."

the property; the court can

When it appears to the court to be just and convenient, and also when there is prima facie case in favour of the plaintiff and the case calls for taking of urgent measure like

appointment of receiver and the overall necessity to balance the interests of both parties requires," the court may by order appoint a receiver of any property, at any stage of a suit, whether before or after decree, and commit the same to his possession and management. The object behind appointment of receiver is to preserve the

property in dispute pending judicial determination of the rights of the parties to it. The appointment of receiver ensures that rights of parties are not jeopardised and that injury to suit property is prevented. It is one of the hardest remedies which the law provides for the enforcement of a party's right to property, and shall not be lightly resorted to. The appointment of a receiver, like injunction, is an equitable relief and is a discretionary power of the court. Before appointment of a receiver, the court

considers and takes into account the totality of circumstances, the ends of justice and the protection of the rights of the parties to the suit. The court may appoint a receiver not as a matter of course but as a matter of procedure,

having regard to the

situation. The court may confer upon the receiver all such powers (1) as to bring and defending suits; (2) the realization, protection and management of the property; 3) the collection and application of the rents thereof; and (4) the execution of documents as the owner himself has, or such of those powers as the court thinks fit. Thus, in a suit for dissolution of a partnership and for partnership accounts, the court may appoint a receiver of the partnership assets. Similarly, in a suit for

partition of joint property, the court may appoint a receiver of the property. A receiver may also be appointed in a suit for the administration of the estates of the deceased person, especially where there is no executor or administrator property. The remuneration to be paid to the receiver is fixed by the court.

of the

It is important to note that the mere fact that it is convenient to apPoint a receiver or that appointment of receiver will do no harm to any one is no ground for appointing a receiver. It must be just to appoint a receiver. Thus, if the case is one in which the plaintiff has not a present right to remove the defendant from the

50. Jagat Tarini Dasi v. Naba Gopal Chaki, ILR (1907) 34 Cal. 305. 51. Vijay L Mehrotra v. State of Uttar Pradesh, (2001) 9 SCC 687.

52. Kalpana Kothari v. SudhaYadav, (2002) 1 SCC203. 53. N.KodandaramaReddyy. G.I.K. Sangha,2008 (1) Kar LJ 703 (711). 54. ICIClv. Karnataka Ball Bearing Corp Ltd., (1999) 4 LRI 829. 55. Salma Majhi v. Birja Majhi, AIR 2004 Ori 46.

Chapter 13

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199

possession of property, the court will not remove him from possession and commit the possession to a receiver.

As the property in the hands of the receiver is in custodia legis, any obstruction or

interference with him will amount to a contempt of court. The receivers appointed by the court are expected to submit periodical accounts/reports to the court with copies to the parties. If their assigned task is completed, they should be discharged. They cannot continue as receivers for

decades, without doing anything and holding on to the amounts entrusted to them in trust. When any money belonging to the parties is entrusted to the receiver, he should deal with it as per the directions of the court." The court can appoint receiver even on an application under S. 151 of the Code and even on an application by a stranger." An order appointing a receiver cannot be

revoked or set aside merely because of the absence of the applicant on the day of delivery of possession of the property. An order appointing a receiver would not be reason proper where no prayer was made therefor, no application was filed and no issued was assigned in support of such appointment. Even show cause notice was not to party. Also there was no prima facie finding arrived at warranting the

appointment of thereceiver. One may apply for the appointment of a receiver and for an injunction at the same time. In fact it is advisable to do so, for a case may not be a fit one for the appointment of a receiver, and yet it may be a fit one for an injunction against the

defendant. Though it is usual to do so, it is not necessary to have any prayer in the plaint for an injunction or for a receiver. A party may apply for an injunction or for a receiver at any stage of a suit, and he may support his application by an atfidavit or affidavits.

13.4 SECURITY FOR coSTS [ORDER XXV] A defendant may at any stage ofa suit apply to the court for an order requiring the plaintiff to give security for the payment of costs incurred and likely to be incurred by the defendant in defending the suit. In this case, the court can make the order applied for. The object of this rule is to provide for the protection of defendants in cases where, in the event of success, they may have difficulty in realising their costs from the plaintiff. This provision cannot be used in cases in which the plaintiff is not liable for the costs of the suit, eg., an administration suit by a legatee. A defendant desirous of applying for security for the costs must do so promptly.

S6. Kanhaiya Lal v. DR Banaji (Dr), AIR 1958 SC 725; Everest Coal Co. Pvt. Ld. v. State of Bihar, AIR

1977 SC 2304 : (1978) 1 SCC 12.

57. 58. 59. 60. 61.

Amol Kumar Ghoshv. Basant Kr. Almal, (2010) 11 SCC 78 (83). Shib Shanker Rudra v. Jyolirmoy Rudra, AIR 2004 Cal 54.

Bhasker Adiya v. Minati Majumdar, AIR 2003 Cal 178 (DB). Balbir Singh v. Sanjay Dave, JT 2000 (7) SC 394: AIR 2002 SC 3563. Three Cheers Entertainments Put. Lsd. u. CESC Ltd., AlR 2009 SC 735 (740) : (2006) 12 SCC 592.

Mulla The Key to Indian Practice

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13.4.1 Discretion of the Court If it appears necessary, the court may order the plaintiff to furnish security. However, there is one exception. If the plaintiff is residing abroad and he does not possess sufficient immovable property within India, it is obligatory upon the court to pass an order requiring the plaintiff to furnish security.2 No such security can be demanded from a person granted leave to sue as a pauper

and, except in exceptional circumstances, from a minor plaintiff or his next friend even if both, the minor and his next friend, have no immovable property and reside

out of India. Where the security is not furnished within the time fixed, the court will dismiss the suit. Such dismissal can be set aside if there was sufficient cause which prevented

the plainiff from furnishing security.

13.5 WITHDRAWAL OF SUITS [ORDER XXII, RULES 1-2] The Code under O. XXIl provides for the withdrawal and adjustment of suits and deals with two kinds of withdrawal and adjustment: () absolute withdrawal, i.e., withdrawal and adjustment withour the leave of the court; and

(ii) qualified withdrawal, i.c., withdrawal and adjustment with the leave of the Court.

A plaintiff may find after the institution of a suit that he has no chance of success. In such a case he may under O. XXII, R. 1(1), proviso, withdraw the suit, instead of proceeding with it and incurring further costs. This is an absolute and unqualified right of the plaintiff and the court has no power to refuse permission

to withdraw the suit or to direct to him to proceed with it. Where the withdrawal of the suit is uncondiional such prayer cannor be rejected," unless there exist extraordinary

circumstanceswarranting refusal.The withdrawal of suit by unilateral request of plaintiff merely on the ground that the counsel for the defendant did not raise any

objection for the acceptance of request of the plaintiff for withdrawal, it said that withdrawal was, in any way,

conditional."

plaintiff is a minor or a person of unsound

However,

cannot be

suit where the

mind, the suit cannot be

withdrawn

without the leave of the court. Where the plaintiff withdraws the suit without seeking permission to one, costs can be imposed on the

plaintiff.

And after such

62. 63.

Revlon Inc. do Ors v. Kenco Chemicals, AIR 1987 Cal 285. K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458.

64.

Mahadkar Agencyv. Padmakar Archana Shety, AIR 2003 Bom 136.

65. SamdeshLd. v. Chandulal Jethalal Jaiwa, AIR 2005 Guj 219. 66. Pushpa Devi v. Rajeev Kharbanda, AIR 2011 P&H 83 (86).

withdrawal

file a fresh (without

Supplemental and SpecialProceedings

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201

seeking permission to file a fresh suit) the second suit shall be barred."" This bar

regarding the second suit is based on public as well.

policy and is applicable to writ

petitions

The principle underlying Rule 1 of Order XXIlI of the Code is that when

a plaintiff

once

institutes

a suit in a Court

and thereby avails of a remedy given to

him under law, he cannot be permitted to institute a tresh suit in respect of the same subject-

matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not

desire.""However,

withdrawal of writ petition without seeking permission to file a fresh petition on the ground of pursuing alternative efficacious remedy is permissible." An appellate court cannot set aside the judgment and decree of the trial court and permit withdrawal of the suit. Permitting withdrawal of the suit at the appellate stage would not allow the plaintiff to avoid the decree passed against him, but also make the defendant lose the advantage of the adjudication of the dispute in his favour." The rights which have come to be vested in the parties to the suit under the decree cannot be taken away by withdrawal of the suit at the appeal stage. There is no express bar in filing an application for withdrawal of the withdrawal appli-

cation.'" There is no provision in the Code for recall of an order permitting withdrawal. In the absence of a specific provision providing for recalling of an order permitting withdrawal Justice."4

of suit, the provisions of S. 151 can be resorted to in the

A plaintiff again, may of the case, but that his he may apply to the institute a fresh suit in

interest of

find that he had a good chance of succeeding on the merits suit must fail by reason of some formal defect. In such a case court for leave to withdraw from the suit with libery to respect of the subject-matter, thereof, and such leave may be

granted upon such terms as to costs as the court thinks fit." If the court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the same subject-matter, it may grant leave to withdraw from such suit with liberry

reserved in favour of the plaintiff accordingly. The primary object behind allowing the withdrawal of suit with liberty to file a fresh one on the same cause of action, is to prevent the defeat of justice on technical grounds. An application to withdraw a suit with liberty to file a fresh suit may either be allowed or refused in toto. Where

the court does nor grant the leave, it can dismiss only the application for liberty, but

67. Sarguja Transport Service v. STA Tribunal, Gwalior, AIR 1987 SC 88: (1987) 1 SCC 5.

68. Upadhyay d Co. u. State of Uttar Pradesh,AIR 1999 SC 509: (199) 1 SCC 81. 69.

Sarguja Transport Service v. STAT,

(1987) 1 SCC 5

70. Haryana State Co-op LandDevelopmentBank u. Neelam, AIR 2005 SC 1843 (2005) 5 SCC 71. Mangal Ram v. Chura Dut, AIR 2003 HP 143.

91.no

72. RRathinavel Chettian v. Sivaraman, (1999) 4 SCC 89. 73. Rajendra Prasad Gupta v. Prakash Chandra Mishra, 2011 (1) Scale 469: AlR 2011 SC 1137: (2011) 2

SCC 705. 74. Jet PlywoodPur. Lid. u. Madhukar Naulakha, AIR 2006 SC 1260: 2006) 3 SCC 699. 75. As to compronT see below. 76. Sheo Kumar v. Thakurji Maharaj, AIR 1959 All 463.

202

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Mulla The Key to Indian Practice

not the suit." In cases of qualified withdrawal of suit by the plaintiff, principle of estoppel does not operate, nor does the bar of res judicata

apply.

However,

the

plaintiff is bound by the law of limitation in the same manner as if the first suit had not been instituted. The plaintif cannot claim deduction of the time during which the suit which was withdrawn was pending, under S. 14 of Limitation Act, 1963. The term 'formal defect must connote such defect which does not pertain to the merits of the case and refers to a defect of form or procedure and not of substance." 'Sufficient grounds' must be interpreted independently of the term 'formal defect and cannot be read ejusdem generis with 'formal defect'. It gives a wide discretion to the court. In a suit for possession, non-joinder of co-owners as parties in suit is nota formal detect. In such case the court should not grant permission to withdraw the suit with a liberty to file a fresh suit on same cause of action." Where a suit is abandoned or withdrawn by a plaintiff and the defendant applies for transposition as a plaintif, the court shall consider such application having due regard to the question whether the applicant has a substantial issue to be decided as

against any of the other defendants according to O. XXIII, R. 1A of the Code. Application of O. 23 Rule 1 and 2 to other proceedings.-"The provision applies to appeals and writ petitions only and not to execution proceedings."

13.6 PAYMENT INTO COURT [ORDER XXIV] As it is competent for a plaintiff to withdraw his suit, so it is competent for a defendant in a suit for debt or damages to deposit in court such sum of money as he considers a satisfacion in full settlement of the claim. Such deposit may be made at any stage of the suit. It is usually made at the time of presenting the written statement; where it is so done, it is desirable to add a paragraph in the written statement in the following form: "The defendant as to the whole claim (or as to

Rs.part of the money claimed) has paid into court Rs..and says this sum is enough to satisfy the plaintiffs claim. Such deposit stops running of interest. Mere willingness to pay is not sufficient and does not stop the running of interest. The deposit should be unconditional, as conditional deposit does not stop the running of interest. Norice of the deposit is then given to the plaintiff, and the plaintiff may then with he leave of the court withdraw the amount. The procedure that follows may be explained by an

illustration.

A sues B to recover Rs. 5,000. B deposits

Rs. 4,000 in court in full sarisfaction of the plaintiff's claim. IfA accepts the amount as satisfaction in full of his claim, the only question that remains is one as to costs.

Thus, if no demand was made by A before suit, the court may not allow him any costs. In making its orders as to costs, the court should consider which of the parties is most to blame for the litigation. If A accepts the amount as satisfaction in part only of his claims, he may prosecute his suit for the balance; and if the court decides 77. Mario Shaw v. Martin Fernandes, AIR 1996 Bom 116. 78. Khatuna v.RamsewvakKashinath, AIR 1986 Ori 1. 79. Khatuna v. Ramsevak, AIR 1986 Ori 1. 80. Homeo Dr. TK Prabhawati v. CP Kunhathabi Unema, AIR 1981 Ker 170. 81. Pranjivandas Virjibahi v. PM Modi, AIR 2011 Guj 89 (92).

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203

that A is not entitled to more than Rs. 4,000, he will have to pay the costs incurred after the deposit. However, in neither case will interest be allowed to A on Rs. 4,000 after the notice of the deposit is served upon A. If in the case put above B admits by his written statement that Rs. 4,000 are due, but does not deposit the amount in court, A may at once apply for a judgment for Rs. 4,000. This is called judgment on admission. However, A cannot in that case prosecure his suit for the balance as has been stated by O. XII, R. 6.

13.7 COMPROMISE OF SUITS [ORDER XXII, RULE 3] The Code also deals with the compromise of suits and the effect of such compro mise. It is open to the parties to a suit to compromise the suit and adjust or settle the

dispute berween themselves by agreement and compromise, and apply for a decree

in terms of the compromise. Where the compromise was not the outcome of fraud and was not away from authority of power of attorney-holder, the consent order passed by the high court cannot be said to be anything but proper and valid." If the court is satisfied that the suit has been compromised, and that the compromise is lawful, i.e., not illegal; it is the duty of the court to pass a decree in accordance with the compromise. The consent decree would be valid where compromise terms are

entered into by power of attorney holder on behalf of parties."\WWherethe purported settlement is not

enforceable.

lawful,

the court's

order

recording the same would

not be

Further, if the agreement or compromise is in violation ofa special

statute, the court would refuse to record the same. Where joint compromise petition was filed by the parties before the Supreme Court and terms and conditions

of the compromise was duly singed by the parties, appeals were disposed of in terms of the compromise. "A compromise decree does not stand on a higher footing than the agreement, which preceded it. A consent decree is a mere creature of the agreement on which it is founded and is liable to be set aside on any of the grounds, which will invalidate the agreement." The agreement, compromise or satisfaction may relate to the whole of the suit or part of the suit or it may also include beyond the subject matter of the suit. Such a decree is called a consent-decree.

Directions passed by court on the basis of

statements made at the bar, amount to an executable decree by consent.

lf any party

82. United Telephone Co. v. Donohue, (1886) 31 Ch D 399. 83. Shanti Budhiya Vsta Patel v. Nirmala Jaiprakash Tiwari, AIR 2010 SC 2132 (2010) 5 SCC 104; see also Chitra Constructions P'vt Ltd. v. S. Subramanyam & Co., AIR 2008 (NOC) 2501 (Mad); Santosh v.

JagatRam, (2010) 3 SCC 251. 84. S.B.V. Patel v. N.J. Tiwari, (2010) 5 SCC 104: (2010) 6 MLJ 616 (SC). 85. Dwarka Prasad Aggarwal v. BD Aggarwal, (2003) 6 SCC 230: AIR 2003 SC 2686, see aso Arjan Singh

. Punit Ahluwalia, AR 2008 SC 2718 (2720) : (2008) 8 SCC 348;SnehaGupta v. DeviSarup,(2009) 6 SCC 194. 86. Roshan Lal v. Madan Lal, AIR 1975 SC 2130: (1975) 2 SCC 785. 87. Kishore K. Sippy v. Vaishnav S. Puri, (2008) 12 SCC 770.

8. RubySales &Services(P) Lta. v. State ofMaharashtra, (1994) 1 SCC 531. 89. Anil K. Surana v. State Bank of Hyderabad, (2007) 10 SCC 257.

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204

to the suit is a minor, the suit cannot be compromised without the leave of the court expressly recorded in the proceedings. Such leave may be refused if the court is of

opinion that the compromise is not for the benefit of the minor as given in O. XXXII, R. 7. Leave of the court is also required

When an order is passed on

for compromise in a representative suit.

compromise and the terms of

compromise

are

incorporated in the order, it becomes part of the order of the court and the terms should be strictly

enforced."

A decree remains

valid

unless set aside.

Where a

consent decree was never challenged and it was acted upon, the respondents had disposed of a property pursuant thereto and thus took advantage of a part thereof, it was impermissible for them to resile therefrom."" The compromise must be in

writing and signed by parties. A compromise not signed by parties or counsel offends R. 3, and as such is not enforceable."It need not be confined to the subjectmatter of the suit, although it must relate to the parties to the suit. Therefore, the court shall pass a decree in accordance with the compromise even if it travels beyond the scope of the suit. The lawyer or counsel is competent to sign consent terms on behalf of the parties. A compromise decree passed on the statement made by the counsel for the partry if authorised to make such a statement would be valid." A judgment by consent is intended to stop litigation between the parties. It creates an 94 estoppel by judgment. No appeal lies from a consent decree passed on the basis of a compromise. 'O. 43 R. 1-A (2), however, lays down that in an appeal against a decree passed after recording or refusing to record a compromise, the order recording or refusing to record a compromise can also be questioned. A party challenging the compromise can file an appeal under section 96(1) of the code and Section 96(3) shall not bar such an

appeal.However, a compromise decree strictly speaking cannot operate as res judicata." "A compromise decree is not a decision of the court. It is acceptance by the court of something to which the parties had agreed. A compromise decree merely sets the seal of the court on the agreement of the parties. The court does not decide anything.

Nor can it

be said that a decision of court is

implicit

in it.

Hence, a

compromise decree cannot operate as res judicata. In a consent decree, it cannot be said that a suit is heard and finally decided by the court on merits. Such a decree,

however, may create an estoppel between the parties." A compromise decree may be avoided on the grounds like fraud, undue influence, or coercion, but until it is avoided and displaced, it would be treated as lawful. An application for review or an application under S. 151 would be the proper remedy for getting the consent decree

90. 91. 92. 93. 94.

Salkia Businesmen'sAssociationv. Hourah Municipal Corpn, AIR 2001 SC 2790: (2001) 6 SCC 688. Deepa Bhargava v. Mahesh Bhargava, (2009) 2 SCC 294. SPMinocha v. Lila Ram, AIR 2002 Del 223. Rajinder Singh v. Pushpa Devi Bhagat, AIR 2004 Del 228. Byram Pestonji Gariwala v. Union Bank of India (1992)1 SCC 31; Prithvi Chandv. Shinde (1993) 3 SCC 271.

95.

Banwari Lal v. Chando Devi, (1993) 1 SCC 581.

97.

1991 SC 2234. Byram Pestonji u. Union Bank of India, (1992) 1 SCC 31.

96. Subba Rao u.JaganadhaRao, AIR 1967 SC 591; Byram Pestonji Gariwala v. Union Bank of India, AIR

Chapter 13

Supplemental and Special Procedings

set aside. However, a civil suit would be barred.'

"Under

205

O.23 Rules, 3 and 3A, a

separate suit was not maintainable and that the only remedy available to the aggrieved party was to approach the Court which had passed the compromise decree.

For a period of 15 years after the compromise decree and the execution of the sale deed plaintiff had not raised any question with regard to the authenticity or genuineness of what is stated in the will and the compromise decree In these circumstances, the compromise decree must pass the test of acceptability.

(B) SPECIALPROCEEDINGS 13.8 SPECIAL CASE SECTION 90; ORDER XXXVIJ There are certain suits which are called 'friendly suits'. What is done in such cases is that the parties do not institute a suit by presenting a plaint, but they enter into an

agreement in writing, stating the question of fact or law in the decision whereof they are interested in the form of a case for the opinion of the court and providing that upon the tinding of the court with respect to such opinion, one of them shall pay a certain sum of money or deliver certain property to the other or that one or more of the parties shall do, or refrain from doing, some other particular act specified in the agreement. The agreement is then filed in court and numbered and registered as a

suit berween one party as plaintitf

and the other as defendant. Where more than one

person enters into an agreement for seeking opinion of the court, the case of each individual

shall

be

registered

as a separate case.

The case is then set down

for

hearing as a suit; it is then heard and a judgment is pronounced in the same way as

in an ordinary suit, and upon the judgment so pronounced a decree follows.

Where the agreement for reterence is not drawn in accordance with the provisions of O. XXXVI, the court cannot assume jurisdiction to decide such reference. If the estimated value of the subject matter is not mentioned, the case cannot be registered as a suit and a judgment rendered in a case without fulfilment of the requirements of R. 2 is without jurisdiction.

13.9

DEATH,MARAIAGE [ORDER XXII]

AND

INSOLVENCY

OF

PARTIES

23/112l:

Let us assume for the purpose of this part of the chapter, three suitsS wich the following paties in each:

)Av. C; () Aand Bv. C;

2

Si SriIswarGopalJenv.BhagwandasShan,AIR 1982Cal 12. R Rajanna v. S.R Venkataswamy, AIR 2015 (SC) 706.

3. Dolfy A Pias @Adolphys Joseph Pais, (2014) 10 SCC 731.

amdhan Sinha v. Norified Area Authoriy, AIR 2001 Gau 149. 5.

Tbia.

Mulla The Key to Indian Practice

206|

Chapter 13

(iii) Av. C and D. The first question we have to consider is what happens to the suit on the death of

any of the parties to the said suit before decree. Suppose that in the first case, A dies pending the suit. Can his legal representative

prosecute the suit? The answer depends upon whether the right to sue survives 'Right to sue' means the right to bring a suit or the right to seek relief." And if the right to sue survives, A's legal representative, i.e., roughly speaking, his executor or administrator as stated in S. 2, cl. 11 may prosecute the suit. If it does not, the suit abates, and it cannot be proceeded with further. 'If the entire suit claim was founded on torts the suit would undoubtedly abate. If the action was founded partly on torts and partly on contract then part of the claim as relates to torts would stand abated and the other part would survive. If the suit claim was founded entirely on contract then the suit was required to proceed to trial in its entirety and be adjudicated upon." In what cases, then, does the right to sue survive? In all cases except where the suit is for damages for defamation or assault, and cases where, after the death of the parties, the relief sought could not be enjoyed or granting it would be nugatory. Where a suit for defamation is dismissed and the plaintiff has filed an appeal, what the appellant-plaintiff is seeking to enforce in the appeal is his right to sue for damages for defamation and as this right does not survive his death, his legal representative has no right to be brought on the record of the appeal in his place and stead if the appellant dies during the pendency of the appeal. The position, however, is different

where a suit for defamation has resulted in a decree in

favour of the

plaintiff because in such a case the cause of action has merged in the decree.

Thus,

if A's suit is for damages for defamation, and A dies pending the suit, the suit abates, and A's legal representative is not entitled to prosecute the suit. Similarly, if A sues B for divorce, and B dies pending the suit, the suit abates, and A is not entitled to prosecute the suit against B's legal representative. However, if A sues B for damages for breach of a contract, and itA or B dies pending the suit, the suit does not abate, for the right to sue survives." The rule then is that the death of a plaintiff or a defendant shall not cause the suit to abate, if the right to sue survives in accordance with O. XXII, R. 1. The provisions contained in O. XXII were devised to ensure continuation and culmination of suits into an effective adjudication, and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to death of one or the other, in the

proceedings.

6. N Jayaram Reddi v. Revenue Divisional Officer and Land Acquisition Officer, Kurnool, AIR 1979 SC 1393: (1979) 3 SCC 578. 7. 8. 9. 10. 11.

MVerappa v. Evelyn Sequeira, (1988) 1 SCC 556. Indian Succession Act, 1925, S. 501. Melepurath Sakunni v. Thekittil Geopalankutty, (1986) 1 SCC 118. Indian Contract Act, 1872, s. 37.

Amarjit Singh Kalra u. Pramod Gupta, AIR 2003 SC 2588: (2003) 3 SCC 272.

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207

However, in either case the application to bring the legal representative of the deceased on the record must be made within 90 days from the date of the death of

thedeceased, otherwise the suit will abate. " If no application is made, the suit abates automatically without any order of the court. Abatement is not dependent upon any judicial

occurs by

adjudication

operation

or declaration of such abatement by a

of law.

But nevertheless

abatement"

judicial order. It

requires

judicial

cognizance to put an end to a case as having been abated." An application to set aside abatement must be made within 60 days." It is the duty of the legal

representative who had knowledge abour

the pending proceedings to engage a

counsel and if any of them fails, the said legal representative is responsible for his lapse. Ditterent considerations arise in the matter of condoning the delay in filing an application for setting aside an abatement upon condonation of delay in a suit and an appcal. It is neither in doubt nor in dispute that such applications should be

considered liberally. The court should take more liberal attitude in the matter of

condonation of delay in filing such an application." Death of appellant during pendency of appeal. Widow of deceased filing application for substitution after 7 years. The widow had knowledge of pendency of appeal. Her plea that she was told by her husband that counsel would inform about the hearing of the application, cannot be a ground to entertain the application for condonation of delay of more than seven years for preferring the petition for substitution." The legal representatives having failed to move application for their substitution, cannot be permitted to file an application under O. 1, R. 10 for impediment being contrived to

Circumventtheprovisions of 0. XXII. " A suit cannot be revived by substituting legal representatives of the original defendant who was not alive at the time of institution of the suit." However, if a suit is filed against a dead person, without the knowledge of death, the court may, on an application by the plaintiff, permit legal representatives of the defendant to be

brought on record."" "Death of defendant during pendency of appeal before High Court. Application by a person to be brought on record claiming himself to be son ofdeceased. High Court allowed the application. Order of High Court set aside Held that High Court should have remanded the case to the trial court by taking

recourse to the provision of Order 22 Rule 5 proviso of CP.C. for deciding the question as to whether the applicant was legal representative of deceased.

r617110

22

21 nrto

12. Limitation Act, 1963, Art. 120.. 13. Dhurander Prasap Singh u. JP University, AIR 2001 SC 2552: (2001) 6 SCC 534. 14. Perumon B. Devaswam u. Bhargavi Amma, (2008) 8 SCC 321 (326).

1. LimitationAct, 1963,Art. 121. 16. Acez Sait v. Aman Bai, AIR 2003 SC 4444: (2003) 12 SCC 419. 17. KatariSuryanarayanay. KappisethiSubbaRao, (2009) 11 SCC 183 (187) : AIR 2009 SC 2907. 18. Karam Kaur v. Jalandhar Improvement Trust, 2015 (1) R.C.R.(Civil) 83. 19. Minati Dutta v. Sushil Chaudharry, AIR 2006 Pat 62. 20. Ram Prasad Dagduram v. Vijay Kumar Moti Lal Hirakhanwala, AIR 1967 SC 278.

21. Karuppa Swamy v. C Ramamurthy, AIR 1993 SC 2324: (1993) 4 SCC 41. 22. Karedla Parthasaradhi v. Gangula Ramanamma, AIR 2015 (SC) 891.

208 When

Mula The Key to Indian Practice

Chapter 13

the legal representatives of a deceased

plaintiff are already on record in

their individual capacity. Their fresh impleadment Order 22 Rule 2 CPC is sufficient."5

not necessary. A mere note under

Let us now consider the second case in which we have two plaintiffs. Suppose that in the second case A dies pending the suit. What is the procedure to be adopted?

This depends upon whether the right to sue survives to the other plaintiff B alone. If it does, A% name will be struck out, and the suit will proceed

with B alone as

plaintiff according to O. XXII, R. 2. Ifit does not, the legal representative of A must apply to the court to be made a party within the prescribed period from the date of A's death, otherwise the suit will abate so far as A is concerned. Thus, if the suit is brought by A and B as trustees, and A dies pending the suit, the right to sue survives to B alone. On A's death, his name will be struck out, and the suit will proceed with B alone as plaintiff. However, if the suit is brought by A and B on a promissory note passed jointly to them by C, the right to sue does not survive to B alone. A's legal representative therefore may apply to be made a party to the suit within the

prescribed period from the date of A's death. If he does not, the suit will abate as far as A is concerned." The third case stands on much the same footing as case II. In case III we have two defendants. If C dies pending the suit, and the right to sue survives against D alone as where they are trustees, C's name will be struck out, and A may proceed with the suit against D alone. However, if the right to sue does not survive against D alone, as where C is the principal debtor and D his surety, A should apply to bring the legal representative of C on the record within the prescribed period from the date of C's death, otherwise the suit will abate so far as C is concerned. No suit shall abate by reason of the death of either party between the conclusion of the hearing and the pronouncing of judgment, but judgment may in that case be pronounced, norwithstanding the death and will have the same force and effect as it had been pronounced before the death took place." 0. XXII, R. 10-A casts a duty on the respondent's counsel to inform the court about the deceased respondent and when death of the respondent is reported and recorded in the order/proceedings and the appellant has been notified, he cannot plead ignorance." In Gangadhar v. Raj Kumar," it was observed that 'rule 10-A O.XXII has been introduced in order to avoid procedural justice scoring a march over substantial justice.' Where the plaintiff dies, his legal representatives can make an joined in his place. The court cannot add a legal

application can be made by the defendant also.

application

to be

representative suo motu. The

Ordinarily,

it is made by legal

representatives of the plaintiff. Where the defendant dies, the plaintiff has to bring

23. D.R Somayajulu,Secretary D.L.S. v. Artili Appala Swamy, 2015 (2) SCC 390. 24. Indian Contract Act, 1872, s. 45. 25. Code of Civil Procedure 1908,O. XXII, R. 6; NP Thirugnanam (decd) by LRs. v. RJagan Mohan Rao,

AIR 1996 SC 116:(1995) 5 SCC 115. 26. 27.

Perumen B. Devasuwam v. Bhargavi Amma, (2008) 8 SCC 321 (331). Gangadhar v. Raj Kumar, (1984) 1 SCC 121

Chapter 13

Supplemental and SpecialProceedings

his legal representatives on record. The

209

plaintiff has to ascertain who is the legal

representative, and apply for substitution. Notice is required to be given to the legal representatives of the defendant sought to be substituted.

This embodies basic principle

of natural justice. The object is to ensure that

opportunity of hearing is given before any liability is fastened upon the legal representative of the deceased. It is also necessary that where the right to sue survives, the estate must be represented by some one who can answer the claims of the plaintiff." Suppose that A sues B for damages for breach of a contract, and that A becomes

insolvent pending the suit. In such a case, if the official assignee wants to proceed with the suit, he should give security for B'3 costs. If he fails to do within the time fixed, the suit will be dismissed. But the court may on good cause shown set aside

the dismissal. If B becomes insolvent, the court may stay a suit." The assignee of rights during the pendency of suit has right to be impleaded as party by stepping into the shoes of his assigner."" The above rules apply also to appeals, but they do nor apply to execution proceedings. There can be no abatement of appeal on the death of one of the

respondents during the pendency of appeal, where some of the heirs and legal representatives of the respondents were already on record." They also do not apply

torepresentativesuits, " and to arbitration proceedings. The marriage of a female plaintiff or defendant does not cause the suit to abate. Where a suit abates or is dismissed under this order, no fresh suit can be brought on the same cause of action. But the court may, for sufficient cause, set aside the

abatement or dismissal. The expression 'sufficient cause' implies the presence of legal and adequate reason. The word 'sufficient means adequate enough as much as may be necessary to answer the purpose

intended. The sufficient cause should be such as

it would persuade the court, in exercise of its judicial discretion, to treat the delay as anexcusable one.*

28. NJayaram Reddi v. Revenue Divisional Officer and Land Acquisition Officer, Kunoor, AIR 1979 SC 1393 :(1979) 3 SCC 578.

2See thePresidency TownsInsolvency Act, 1909,and the InsolvencyAct, 1920. rdev Singh v. Amarjit Singh, AIR 201l PXH 77 (80). Mohd. Hussain v. Gopibai, (2008) 3 SCC 233; seealso Mohd. Hussain v. Ocharlal, AIR 2008 SC 1462.

24 ram Panchayatv. Amar Singh, (2000) 10 SCC 644. 3. RaniRamakantv. First Addl CivilJudge, AIR 2006 All 5. 9. Baluant Singh v. Jagdish Singh, (2010) 8 SCC 685 (698).

14

CHAPTER

SUITS IN PARTICULAR CASES

14.1 SCOPE

172

For the purpose of procedure, suits may be divided into two clauses, namely, (1) suits in general; and (2) suits in particular cases. The procedure indicated in the previous chapters applies to suits in general. In particular cases, however, a different procedure is prescribed under the Code, and this is what we have to note in this chapter.

14.2 NOTICE BEFORE SUIT In ordinary cases no notice is required to be given to the defendant before suit. According to S. 80, such a notice, however, is a condition precedent to suits against the government. It is also a condition precedent to suits against a public officer in

respect of an act purporting to be done by him in his official capacity. The object of the notice

under

Concerned, an

this section is to give the

opportunity

government

or the public

officer

to reconsider the legal position and to make amends or

settle the claim, if so advised, without litigation. The section is a measure of public policy. The public purpose underlying this section is the advancement of justice and securing of public good by avoidance ofunnecessary litigation. The language of the section is express, explicit and mandatory, and does not admit any implication or

exception. The notice should be in writing, and it should state the cause of action, name, description, place of residence of the plaintiff and relief claimed by him. No Suit should be instituted until the expiration of rwo months next after the notice has been served. Such notice has to be served

upon a secretary in a case of

Central

GOvernment, a general manager in case of railway and a secretary or collector of the district in case of state government. The notice served on the district collector is

Suficient and complete notice to Government Middle School which was represented

1. Stateof Punjab v. Geeta Iron and Brass Works, AIR 1978 SC 1608: (1978) 1 SCC 68. 2. Bihari Chaudhary v. State of Bihar, AIR 1984 SC 1043: (1984) 2 SCC 627.

212

Mulla The Key to Indian Practice

Chapter 14

through the Education Officer.' However, the suit can be instituted against the Government without complying with the requirement of serving notice under S. 80(1), only with the leave of the court as enjoined under S. 80(2)." The permission to

institute a suit

without

notice is to be granted by a speaking

and

reasoned

order. The court has the power to dispense with the requirement of service of such notice if it is satisfied that the suit is filed to obtain urgent or immediate relief. For this purpose, a separate application is ordinarily made for leave of the court to sue without service of statutory notice. Such leave may be granted if it appears to the court that if requirement of service of statutory notice is insisted upon, it shall defeat the purpose or object of filing the suit. However, even in such cases, the court has no power to grant any interim relief ex parte without notice to

the government. 'A party filing application in Court under Section 80(2) of Civil Procedure Code seeking leave of Court to file suit against Govt. without issuance of notice under Section 80(1) of C.P.C. to Govt. authorities. For the purpose of determining whether such an application should be granted or not the court is supposed to give hearing to both the sides and consider the nature of the suit and urgency of the matter before taking a final decision. Till arguments are advanced and till the trial court is satisfied with regard to the urgency or requirement of

immediate relief in the suit, the court normally would not grant an application under Section 80(2) of the Civil Procedure Code." The notice is a legal requirement and not a mere formality, and is different from a cause of action tor instituting a suit. Unless leave is granted at the time of institution

of the suit, no suit shall be maintainable without such notice. The object is to alert the state to negotiate a just settlement, and avoid litigation as far as possible.' The notice has to be read in a broad manner in order to determine whether there is any

meaningful compliance with S. 80. Neither notice nor wordings of S. 80 should be in a narrow or pedantic manner completely divorced from common the notice substantially intimates the parties concerned generally of the the suit intended to be filed, it would be sufficient. The notice must recipient to identify the claimant. There should be identity berween the person issuing notice and the person instituting the suit. " A notice of a suit against the government or a public officer must be delivered to or left at the office of the appropriate authority. To whom such notice must be sent has also been mentioned in S. 80. Certain directions have been issued with regard to duty of the government to reply the notice of the Supreme Court." The notice under this section can be waived by the parry for whose benefit it has been provided. Fresh notice is required

construed sense. If nature of enable its

3. 4. 5. 6.

Ram Kumar u.StateofRajasthan,(2008) 10 SCC 73 (78): AIR 2009 SC 4 (8, 9) Bajaj HindustanSugár Industries Lid. u Balrampur Chini Mill Ltd, (2007) 9 SCC 43 (51). Cyanajet Moharana u. Binodini Paanaik, (2009) 107 Cur LT 132 (134-135) (DB). Govt. of Kerala v. Sudhir Kumar Sharma, 2013 (10) SCC 178.. State of Punjab u Geeia Iron and Brass Works, AIR 1978 SC 1608: (1978) 1 SCC 68. 8. Dhian Singh v. Union of India, AIR 1958 SC 274.

10.

Ghastyam Dasvu. Dominion of India, (1984) 3 SCC 46. Ibid.

11. SalemAdvocatesBarAssociationv. Union of India, AIR 2005 SC 3353 (2005) 6 SCC 344. 12. Bisham Dayal &-Sons v. State of Orissa, AIR 2001 SC 544.

Chapter 14

Suits in Particular Cases

213

to be given for the new cause of action having arisen between the original plaint and

amended plaint." In computing the period of limitation for institution of a suit, the period of notice has to be excluded." The plaint must also contain a statement that the statutory notice has been delivered or left. Omission to make such a statement is

fatal and the plaint will be rejected in itsabsence. The provisions of this section are not applicable automatically to statutory corporations, government companies, etc. There may be independent provisions in the statutes incorporating them for example, Delhi Municipal Corporation Act; Delhi Development Authority Act.

14.3 CONSENT BEFORE SUIT According to S. 91, a suit in respect of a public nuisance may be instituted by the

Advocate-General, or by rwo or more persons after obtaining the leave of the court. A suit in respect of public charities may be instituted by the Advocate-General, or by two or more persons having an interest in the trusts for charity after obtaining the leave of the court in accordance with S. 92 of the Code.

"Doctrine of Cypres" The Court can alter the original purposes of an express or constructive trust- created for public purposes of a charitable or religious nature and allow its property or

income to be applied cy-pres, if so required in view of circumstances specified in Section 92 (3) CPC. Cy-pres means that where a fund, given to the charity, is not

fully untilized for the particular purpose specified by the donor, and the donor had a general charitable intention the surplus may be applied to similar, allied or supplementary purposes. The court should be satisfied before applying the doctrine that the original object cannot be carried out in the manner and form intended by the donor. "The 'doctrine of cy pres' would only apply where a charitable bequest falls or is incapable of being fulfilled in accordance with the spirit or when directions of the founder cannot be carried out for the purpose and the spirit for which the T6 trust was created." According to Ss. 86, 87, 87A, 87B, a person who proposes to sue the ruler of a foreign state or an ambassador or envoy of a foreign state, should before instituting

the suit obtain the consent of the Central Government, certified by the signature of a secretary to the Government of India except where he is a tenant of immovable property which he holds from such ruler, ambassador or envoy, and the suit is brought by him as such tenant. The consent of the Central Government must be obtained before institution of the suit. The consent obtained after the institution of the suit is not sufficient." The provisions of S. 86(1) are not impliedly superseded

3

Ibid. 14. Limitation Act, 1963; Mohd Quaranuddin v. Stateof Andhra Pradesh, (1994) 5 SCC 118.

.Bihari Chaudharyv.Stateof Bihar, AIR1984 SC 11 l6. ThirumurugaKirupananda Variyar v. State Of Tamil Nadu, AIR 2002 Mad 42. 17. Mirza Ali Akbar v. UAR, AIR 1966 SC 230.

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Mulla The Key to Indian Practice

by provisions of Carriage by Air the name of his state.

Act."The

Chapter 14

ruler of a foreign state may be sued in

14.4 TITLE OF THE SUIT Suits by or against the government are to be instituted by or against the Union of India

or the state as

provided

under S. 79;

O.

XXVIl,

R. 3.

Section

procedural section and substantial compliance with the requirements

79 is a

thereof is

sufficient.9

14.5 PARTIES In suits concerning property vested in a trustee, executor or administrator, where the contention is between the beneficiaries and a third person, the trustee, executor or administrator shall represent beneficiaries, and it shall not ordinarily be necessary to make them parties to the suit. The provision under S. 79 of the Code provides that in suits by and against the Government, the authority to be impleaded as the

plaintiff or the defendant would be the Union of India or the Central Government or the State or the State Government." However the court may, if it thinks fit, order them or any of them to be made parties. Beneficiaries should always be made parties when the executors are wholly uninterested in the case or where they have an interest adverse to that of the beneficiaries. Where there are several trustees, executors or administrators, they shall all be made parties to a suit against one or more of them or against a third person, but executors who have not proved their testator's Will, need not be made parties, nor trustees, executors and administrators

outside India in accordance with O. XXXI, Rr. 1-2. All persons having an interest either in the mortgage-security or redemption

should be joined as parties to any suit relating to the

in the right of mortgage. The

purpose is to avoid multiplicity of suits. The rule is merely procedural and does not create any substantive

right. In a suit

under O. XXXIV, the plaintiff must proceed against the mortgaged However, a puisne mortgager may sue for foreclosure or for sale without prior morgager a party to the suit; and a prior mortgagee need not be subsequent mortgage, as has been stated in O. suit to redeem

property." making the joined in a XXXIV, R. 1.

Though not mandatory, the puisne mortgage should implead prior mortgagee in order to work out the rights of the parties for a full and saisfactory adjudication." Suit for the declaration of certain rights over the land belonging to State cannot be

granted without impleading it."

18. MansoorMumtaz v. Saudi Arabian Airlines Corpn., AIR 2002 Del 103. 19. Sri Laxmi P'aperDepot v. SDM, Bangaun,AIR 1998 Cal 195. 20. Collector v. Bagathi Krishna Rao, (2010) 6 SCC 427 (429).

21. Union Bank of Tndia v. Manku Narayana, (1987)2 SCC 335. 22. Kerela Financial Corporation v.SymdicateBank, AIR 1999 Ker 213 (FB). 23. Jagu v. Suraj Mal, 2010 (3) ARČ 877 (SC): (2010) 13 SCC 769 (770): AIR 2010 SC 3490 (3491).

SuitsinParticulaC r ases h

Chapter 14

215

14.6 CONTENTS OF PLAINT Section 80 of the Code states that where notice is required to be given to the Union of India or a state or to a public officer, the plaint should contain a statement that the notice has been served.

In every suit of interpleader, the plaint should contain certain statements which

you will find below,.2*4"

14.7 SIGNING AND VERIFICATION OF PLEADING Acording to O. XVII, R. 1, in any suit by or against the Union of India or a state, the plaint or written statement shoukd be signed and verified by such persons as may be appointed by the government, and who is acquainted with the facts of the case. In suits by or against a corporation, the pleadings may be signed and verified on

behalf of the corporation by the secretary or any director or other principal officer of the corporation who is able to depose to the facts of the case in accordance with O. XXIX, R. 1. A company may also authorise a person to sign a plaint on its behalt.

The rule confers a limited power to sign and verify. The company can also ratify the

act of signing and verifying of the pleadings by its officer.

14.8 SERVICE OF SUMMONS, APPEARANCE, ETC. As to suits against firms,seebelow Firms.27

eToa

139A9.119TIEE

14.9 PROCEDURE In suits concerning O. XXXIIA. The

ordinary

the

judicial

family, special provisions apply in accordance with

procedure is not

ideally suited to the sensitive area

of

personal relationships. Such matters require a special approach because they have an emotional angle or dimension which is otherwise absent. The ultimate object to be

achieved or aspired for is to preserve the integrity of the family. Such matters may be heard in camera if a party so desires.

It is the duty of the

court to make efforts for settlement. The court may also take help of welfare experts. It is also the dury of the court to make inquiry into facts alleged by the plaintiff as well as the defendant.

Suits or proceedings relating to Wills, intestacy and succession filed by a third party is governed by the ordinary procedure. 24. See below 'Interpleader'.

As

tosuits by oragainstfirms,seebelow, uits by oragainstFirms.

26. As to thissee O. XXVIl, R. 4 (Union of India or State); O. XXVIIA (Notice to Attorney General or Advocate-General); s. 81; O. XX\VIl, R. 8 (Public Officers); s. 85 (Foreign States and Rulers); 0. XXVIII, Rr. 1-3 (Military Men); O. XXIX, Rr. 2-3 (Corporations). 27. See'Suits by or against Firms.

216

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Chapter 14

Practice

14.10 DECREES As to decree to be passed in suits on mortgage, O.

XXXIV may be referred to.

14.11 EXECUTION OF DECREES Section 82 states that where a decree is against

the

Union

of India or a state or

against a public officer in respect of an act done by him in his official capacity, execution should not be issued, unless it remains unsatisfied for the period of three

months. According to S. 86, no ruler, high commissioner, ambassador or envoy of a foreign state can be arrested under the Code, nor can any decree against him be executed

against his property, without the consent of the Government of India.

14.12 OTHER SPECIAL PROVISIONS Having noted the difference in procedure in the cases mentioned above, we proceed to note the special procedure prescribed by the Code in interpleader suits, suits by or

against minors and lunatics, suits by indigent persons, suits by or against firms, suits involving questions of interpretation of constitution or validity of statutory instrument and summary suits.

14.13 INTERPLEADER SUITS [SECTION 88, ORDER XXXV] An interpleader suit is one in which the real dispute is not between the plaintiff and the defendant, but between the defendants who interplead against each other. In an interpleader suit, the plaintiff is not really interested in the subject-matter of the suit. In an interpleader suit, there must be some debt or sum of money or

other property in dispute between the defendants only. The primary object of an interpleader suit is to have the claims of rival defendants adjudicated. The plaintiff in an interpleader suit must be in a real position of impartiality. A plaint in an interpleader suit can be amended by inclusion of new properties

and joinder of new parties. IFT hold property in which I claim no interest, and it is claimed from me by two or more persons adversely to one another, I institute a suit against the claimants for obtaining a decision as to the person to whom the property should be delivered.

However, I cannot bring an interpleader suit, ifl hold the property in dispute as an agent or as a tenant of one of the claimants. In the plaint, I should state, in addition to the other statements necessary for plaints, that I claim no interest in the property other than for charges or costs, that there is no collusion berween me and any of the defendants, and I should specify the claims made

28. Mulla The Codeof Civil Procedure, Sixteenth Edn., 2002, Vol. 1.

Chapter 14

Suits in Particular Cases

217

by the defendants severally. I should also bring the property, if it is movable, in court. At the hearing of the suit I should apply to the court for an order that I be discharged from the suit and that my costs be provided for. If there is no charge of collusion made against me by any of the defendants in his written statement, the court will grant my application, and the suit will then be proceeded with as betrween the defendants. The suit is called an interpleader suit, because the defendants are compelled in the suit to interplead with one another. Where any of the defendants in an interpleader suit is

actually suing the plaintiff in respect of the subject matter of such suit, the court in which the suit against the plaintiff is pending, on being informed by the court in which the interpleader suit is pending, shall stay the proceedings in that suit as against

him in accordance with O. XXXV, R. 3.

14.14 SUITS BY OR AGAINST MINOR AND LUNATIC [ORDER XXXI] The Code, under O. XXXII has made provisions for the institution of suit by or against minors and persons of unsound mind with the object of protecting and safeguarding the interests of such persons. For the purpose of the Code, 'minor means a person who has not attained his majority within the meaning of Indian Majority Act, 1875. E>xcept for the

requirement of furnishing security, the provisions of the Code relating to minors also apply to persons adjudged to be of unsound mind. A person being major

according to personal law but minor according to Indian Majority Act cannot sue

without next friend. Every suit by a minor should be instituted in his name by a next friend. The next friend should be a person who is of sound mind, who has attained majority, who is

not a defendant in the suit, and whose interest is not adverse to that of the minor. The title to the suit in such a case is AB, a minor, by CD, his next friend, v. XY. Where the defendant is a minor, the court should appoint a guardian for the suit guardian ad litem). However, no person may be appointed as guardian for the suit without his consent in writing. The guardian ad litem should be person of sound mind, who has attained majority, who is not a plaintiff in the suit, and whose interest is not adverse to that of the minor. 'A suit filed by a plaintiff who is of unsound mind through next friend, the court is not required to pass any order of

appointment of next friend of guardian. Whereas in case, defendant is of unsound mind or minor, court is required to pass an order appointing guardian." The title of the suit in such a case is XY v. AB, a minor, by CD, his guardian ad litem. Where a minor has a guardian appointed or declared by the court, no person other than such guardian should act as the next friend or be appointed his guardian for the suit, unless the court considers that it is for the minor's welfare to do so and that too

only after serving him the notice of such appointment.

29. Jarnail Singh . NaramjanKaur, 2011 (2) R.C.R.(Civil) 215.

Mulla The Key to Indian Practice

218

The provisions of Rr. 2 and 3 of O.

Chapter 14

XXXI are mandatory."" A decree passed

against a minor in a suit in which he is not represented by a guardian ad litem is a

nullity, and it cannot be enforced against him. It is therefore, in the interest of the plaintitt to apply to the court for the appointment of a guardian ad litem soon after the plaint is admitted, and to see that a guardian ad litem is appointed. An order for the appointment of a guardian ad litem may also be obtained upon application in the name and on behalf of the minor. No next friend or guardian for the suit should, without the leave of the court expressly recorded in the proceedings, enter into any compromise, on behalf of a minor with reference to the suit. Any compromise entered into without such leave is voidable at the option of the minor. This rule is imperative, and it applies even if the next friend or guardian be the father of the minor, and the manager of a joint Hindu family of which the minor is a member."

A minor

plaintiff or defendant at attaining majority must elect whether he will

proceed with the suit and where he elects to proceed, he must apply for an order

discharging his next friend and for leave to proceed in his own name. And thereafter the title of the suit shall also be corrected. However, before the passing of any such order, notice must also be issued to the next friend. If he does not move in the matter, he shall be decmed to have adopted the proceedings and will be bound by

the result of the litigation. The above rules apply also to persons of unsound mind.

Order 32-A "Suits concerning family matters" Order 32-A, CPC contains special provisions in respect of suits relating to matters concerning the family. A duty has been caste upon the courts to make efforts for settlement in suits relating to "matters concerning the family." Rule 3 mandates that the Court shall make an endeavour in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject matter of the suit. These provisions

apply to all proceedings relating to family disputes like guardianship, maintenance, will, succession, adoption, etc. Rule 2 specifically provides that the proceedings under

this

provision

should

be held in camera, so as to

protect

the

personal

relationships from being affected.

14.15 SUITS BY INDIGENT PERSONS [ORDER XXXII] The provisions of the Code relatingg to such persons are intended to enable persons who are indigent to institute and prosecute suits without payment of any court fee other than fees payable for service process. The word person' mentioned in

30. Ghulam Rasoolv. Ghulam HassanReshi, AIR 2003 J&cK6. 31. GaneshaRow v. Tujaram (1913) 40 IA 1; Code of Civil Procedure, 1908, 0. XXXII. 32. Rajender Kumar v. Sanatan Dharam Mahabir Dal, (1999) ILR I P&H 362.

Chapter 14

Suits in Particular Cases

0. XXXIII includes not only

a natural person but other juridical person also. The

petitioners, a body

can

corporate

maintain

an

219

application

under O.

XXXIII,

R. 1

and an application under O. XLIV, R. 1.° If the indigent succeeds in the suit, the government has a first charge on the subject-matter of the suit for the amount of the court fee which would have been paid by him if he had not been permitted to sue as an indigent. If he fails in the suit or is dispaupered, or if the suit is dismissed for default (i.e., non-appearance at the hearing), the court should order such court fee to be paid by him. A person is 'an indigent person':

)when

he is not possessedof sufficient means to enable him to pay the fee

prescribed by law for the plaint in the suit proposed to be instituted by

him, (i)

or

where no such fee is prescribed, when he is not entitled to property worth rupees one thousand, other than property exempt from attachment in execution of a decree and the subject-matter of the suit.

The mere possession of immovable properties without any proof of derivation of income from it is not "sufficient means" to pay the court fee. The court has to enter into a finding regarding the capacity to raise money to pay.

The words is not possessed of contemplates not possession of property but sufficient means, ie., capacity to raise money to pay the requisite court fee. For determining the issue concerning "indigent person", the property which is exempr from attachment and the subject of the suit is not to be taken into consideration." A person is not entitled to institute a suit as an indigent as of right. He can sue as

indigent only if he has obtained permission of the court to do so. He has, therefore, to apply for permission to sue as an indigent. The application

should contain the

particulars required in regard to plaints in suits; a schedule ot property belonging to the applicant, with estimated value thereof, should be annexed thereto; and it should be signed and verified as if it was a

plaint. The application

should be presented to

the court by the applicant in person, unless he is exempted from appearing in court, in which case it may be presented by an authorised material the questions relating to application.

agent who can answer all The court may fix a

day for receiving evidence of applicant's indigency. Rule 7 lays down procedure for hearing. If after considering the material on record, the court comes to the conclusion that the

plaintiff be permitted to sue as a pauper, the court then must

pass an order to register the plaint and number it and proceed further in the ordinary manner excepr payment of court fee (O. XXXIII, R. 8). It is the duty of the 33. BhopalWholesale Consumer Co-operativeStore Ltd. v. Madan Lal Gandhi, 2009 (2) MP LJ 219 (221-22) OB); Union Bank of India v. K.I. Constructions, AIR 2001 SC 2277; Daman Singh v. Stateof Punjab, AIR 1985 SC 973, relied on. 34. Union of lndia v. Khader International Construction, JT 2001 (5) SC 218.

RajammaJosephu. Binu Prasad,2010 (1) KILT 572 (576-77) (DB). 0 Manjuata v.Sidhkaran,AIR 2005 Raj 32 (DB). 37. Stase of Haryana v. Baldev Raj, (2008) 162 PLR 204.

1u bru

Mulla The Key to Indian Practice

220

Chapter 14

court to insist upon report from the government regarding the financial status of the applicant. Where the clear mandate of Rr. 6 to 8 were not followed, it would vitiate the order granting leave to sue as pauper. While

considering the prayer for leave to sue as an indigent

person, the court

should not keep the question of jurisdiction and cause of action undecided. The court should first decide the question of jurisdiction and then proceed with the

matter of grant ofleave. It shall reject the application: (a) where it is not properly framed and presented; or (6) where the applicant is not an indigent person; or

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

d)where hisallegationsdo not showacauseof acion; or ()where he has entered into any agreement with reference to the subjectmatter of the proposed suit under which any other person has obtained an interest in such subject-matter.

If neither the application nor the examination of the applicant discloses any ground for rejecting the application, the court should, before granting the application, give an opportunity to the opposite party to show that the applicant is not entitled to sue as an indigent.

For this purpose, the court fixes a day for holding an

inquiry,

and

notice of the day so fixed is given to the opposite party and the government pleader. If the inquiry discloses any of the five grounds mentioned above for rejecting the application the court should refuse to allow that applicant to sue as an indigent, otherwise the court may grant the application. Where the court refuses the application, the plaintiff must be directed to pay the court fee and on payment of court fee, the suit is to be registered and the further

proceedings in the matter shall follow in the ordinary manner. The order of refusal is a bar to any subsequent application of the like nature by him in respect of the same right to sue, but the applicant may institute a suit in the ordinary manner, provided he first pays the costs incurred by the opposite party, and by the government in opposing the application. It is open to the defendant and the government pleader to apply to the court at any time during the pendency of the suit for an order that the plaintiff is not an indigent person and the court may order that the plaintiff is not an indigent person:

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

the course of the suit;

(6) if it appears that his means are such that he ought not to continue to sue as

indigent person; or 38. D Hemchandra Sagarv. D Prishviraj, AIR 2004 Kant 33.

Suits in Particular Cases

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221

()if he hasentered into anyagreementwithreferenceto thesubject-matter of the suit, under which any other person has obtained an interest in such

subject-matter. An application to sue as an indigent person can be filed subsequent to the filing of

the suit.

An omission to sign and verify the application does not entail rejection of

the application as it can be rectified.

Where the suit of the plaintif, in which permission to sue as an 'indigent person' has been granted, is withdrawn or dismissed or abates by reason of the death of the plaintiff, the court must order the state government to recover the court fee payable, from the plaintiff or the estate of the deceased plaintiff.

14.15.1 Appeal as Indigent Person A person entitled to prefer an appeal (first or second), who is unable to pay the fee for the memorandum of appeal, may present with the memorandum, an application for leave to appeal as

an indigent

person and may be allowed to appeal as indigent

person, subject to the provisions relating to suits by such persons.

14.16 SUITS BY OR AGAINST FIRMS [ORDER XXx] The provisions

of the Code relating to suits by or against firms are contained in

O. XXX of the Code.

14.16.1 When Partners May Sue or be Sued in Firm Name Any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm of which such persons

were partners at the time of the accruing

of the cause of action. In a suit by or

against a firm, the pleadings may be signed in accordance with O. XXX, R. 1. Order

and verified by any one of such persons XXX mandates that whenever suits are

filed by or against a firm, it shall be made a party." However, it does not prevent all the members of a firm from suing jointly in their individual names.

14.16.2 Sut by a Firm Where a suit is instituted by partners in the name of their firm, the plaintitt firm should, if so required by the defendant, disclose the names of all persons constituting the firm. If the names are not disclosed, the suit will be stayed. If they are disclosed, the suit will be proceeded in the same manner, and the same consequences in all respects will

follow, as if the persons whose names are so disclosed had been

named as plaintiffs in the suit. All proceedings should continue in the firm name, but the name of the partners disclosed in the manner specified above shall be entered in the decree. This is in accordance with O. XXX, R. 2.

39. Sivarajan Ku. State of Kerala, AIR 1998 Ker 98. 40. Sreevalli v. Chinni Seetharamaiah, AlR 2005 AP 521.

Mulla The Key to Indian Practice

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Chapter 14

14.16.3 Suit Against a Firm According

to

O.

XXX,

Rr. 3, 5 where a suit is

instituted

against a

firm,

the

summons should be served either upon one or more of the partners or upon the person who is then the manager of the firm. However, if the firm was dissolved to the knowledge of the plaintiff before suit, the summons should be served upon every person within India whom it is sought to make liable as partner. Every person served as above should be informed by notice in writing in what character he is served, i.e., whether he is served as a partner or as manager or in both characters. In default of

such notice, the persons served will be deemed to be served as a partner.

If the plaintiff was not aware of the dissolution when he filed the suit, the decree binds all the partners in the firm irrespective of whether they have been served

individually. In a suit instituted against a firm in its name, if any of its partner dies, whether before institution or during the pendency of the suit, it is not necessary to substitute the legal representatives of the deceased partner (O. XXX, R. 4). It will be so in appeals as well.

However, in a suit having been tiled in the name of the firm and all the partners die during the pendency of the suit, the legal representatives of the deceased partners must apply under O. I, R. 10 of the Code to be brought on record as plaintiffs. As regards appearance, it is to be

noted that a firm cannot appear as a firm.

The

partnersshould, therefore, appear individually in their own names, but all subsequent proceedings will continue in the firm name. A person served as manager need not appear unless he is a partner in the firm sued. Where a person served as a

partner denies that he is a partner, he may enter appearance under protest. Where an appearance is entered under protest, its etfect is to nullity the service altogether as regards the defendant firm. In such a case, the plaintiff may have the summons served upon one who is admittedly a partner or manager under R. 3, and after

obtaining a decree against the firm, apply for leave to execute it against denying the partnership under O. XXI, R. 50. However, the plaintiff is to adopt this course. He may ask the court to hold an inquiry, before with the hearing of the suit, as to whether the party who appeared under partner. Appearance without protest shall be taken as an admision of and his appearance shall be deemed to be on behalf of the firm. It shall

the person not bound proceeding protest is a partnership continue to

be an appearance of the firm, unless the court permits him to withdraw. The above rules apply to: )suit between a firm on one hand and one or more of its partners on the other hand;

(i) suits berween firms having one or more partners in common; (i)

suits against a person who carries on business in a name or style other than his own, as where AB carries on business in the name of AB 6- Co, or XY

Suits in Particular Cases

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223

Co, where the suit is brought against such person in the firm name as in Rr. 9-10. In case () and (i) no execution can be issued except by leave of the court under R. 9

of O. XXX. 14.17 SUIT

INVOLVING

QUESTION

OF

INTERPRETATION

OF

CONSTITUTION OR VALIDITY OF STATUTORY INSTRUMENT Where a suit involves a substantial question of law as to

interpretation

of Consti-

tution or as to validity of any statutory instrument, the court shall not decide the question without issuing notice to the Attorney General or Advocate General or Government

Pleader, as the case may be. The court may also add

government as a

party if there is an application for that purpose.

14.18

SUMMARY SUITS

The provisions of O. XXXVII of the Code, apply to the following classes of suits: 6) suits based upon bills of exchange, hundies and promissory notes;

i) suits in which the plaintiff seeks to recover a debt or liquidated amount arising on: (a) a written contract; (b) an

enactment,

where

the sum

sought

to be

recovered

is a fixed

amount or debt, other than a penalty; (c) a guarantee.

In certain specific kinds of suits, O. which differs materially from ordinary

XXXVIl provides for a summary procedure procedure under which the right to defend

inheres in every defendant. The object underlying summary procedure is to prevent unreasonable obstruction by a defendant who has no defence.

Suits for recovery of amounts due under cash-credit account and bill discounting purchase account,

by a

banker;""

suits based on

credit

card;""

suits based on

suits for recovery of inter-corporate loans based on receipt and agreement acknowledging inter-corporate loan secured by collateral securities;" suits for recovery of amount based on balance confirmation letters accepted unconditionally," are maintainable as summary suits. invoices/bills;"

In summary procedure laid down under O. XXXVII, the plaintiff must serve Summons of the suit to the defendant and the defendant may within 10 days of the Service of such summons, enter his appearance in the court along with address for

4

Punjab d Sind Bank v. Ram PrakashJagdishChander, (1990) 40 DLT 497. CentralBank of India, Manipuru. VasantKimi, AIR 1999 Bom 409. 5. KLG S el L. Ffujitsu 1ClIM Lid, AIR 2001 Del 357: 92 (2001) DLT 88. 44. Motorola India Lsd v. Kiklu I Malani, AlR 2003 Bom 92. 4). SunnSandHotel Ltd v. VV Kumar HUF , AIR 2003 Bom 168.

224

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service of notices on him and notice of entering into appearance must also be given to the plaintiff. Where the defendant enters appearance, the plaintiff must serve on the defendant, a summons for judgment in the prescribed form and the defendant

may within 10 days from the service of such summons for judgment, apply for leave to defend such suit, as the defendant does not have a right to defend the suit unless he shows, by filing affidavit or otherwise, that he has a defence to the claim of the plaintiff. At the stage of deciding this, the court has very wide powers. The question as to whether leave to defend a suit can be granted or not is within

the

discretionary powers of the high court and where such discretion has not been erroneously or with any irregularity exercised, no interference of the apex court is warranted." It can grant leave to defend unconditionally or impose conditions before granting leave to defend or pass judgment as prayed for or otherwise by refusing leave to defend. The leave to defend shall be given unconditionally if the defendantt shows a prima-facie case or raises a triable issue."" When the defence raised appears to be moonshine and show, unconditional leave to defend cannot be granted. What is required to be examined for grant of leave is whether the

defence taken in the application under R. 3 of O. XXXVII of the Code makes out a case, which if established, would be plausible defence in a regular suit." Conditional leave shall be granted if the court doubts the bonafides of the defendant or thinks that the defence is put only to gain time. The court can refuse leave if it is satisfied that facts disclosed by the defendant do not indicate a substantial defence or that the defence is frivolous or vexatious. The second proviso to O. XXXVII R. 3(5) of the code makes it very clear that leave to defend a suit shall not be granted unless the amount as admitted to be due by the defendant is deposited in court. The question as to whether leave to defend a suit

can be granted or not is within the discretionary powers of the high court and such

discretion has not been exercised erroneously or with any irregularity which warrants

interference by the Supreme

Court."

The

conditions

liable to be

imposed may vary in their nature and/or quantum. The court may require the defendant

to deposit

money before granting leave. The

court may also order

expeditious hearing of the suit. The principles for determining the defendant's application for leave to defend the suit have been laid down in various judicial pronouncements. An appeal lies against an order refusing leave to defend. Interlocutory order granting conditional leave to defend or refusing leave to

defend the suit can be challenged by aggrieved party in an appeal preferred against

46. SouthermSales d Servicesu.SauermilchDesign dr Handles GMBH, 2009 (1) Kar LJ 276: AIR 2009 SC 320.

47. DattEnterprises Ld u. VKDua, AIR 2006| Del 16. 48.

V.K Enterprises v. Shiva Stels, AIR 2010 SC 2885; seealso Maluva Strips Pvs. Ld. u Jyori Lid, (2009) 2

SCC 426. 49. SouthemSales dServicesu.SavermilchDesign d Handles GMBH. (2008) 14 SCC 457 (462). 50. Santosh Kumar v. Mool Singh, AIR 1958 SC 321; MechalecEngineers v. Basic Equipment Corpn., AIR 1988 SC 577; Raj Duggal v. Ramesh Kumar, AIR 1990 SC 2218: 1991 Supp (1) SCC 191.

Chapter 14

25

Suits in Particular Cases

the final decree." An order granting

conditional leave to defend the suit can be

challenged in an appeal against the decree. Where the defendant has not entered appearance having been served with the summons of the suit, within the prescribed period, or has not applied for leave to defend within the prescribed period having been served with the summons for judgment or where his application for leave to defend has been refused, the plaintiff is entitled to judgment forthwith. However, the court has the power to condone the delay in entering into appearance or in applying for leave to defend the suit, in special circumstances cause being shown by the defendant. What would constitute special circumstances would depend upon the facts of each case. The defendant shall

have to show not only special circumstances which prevented him from appearing or applying for leave to defend, but also the facts, which would entitle him leave to defend. "Setting aside of ex-parte decree under Order 37 Rule 4 of the Code cannot

be

allowed

in

routine

and

special

circumstances

are

required

to

be

established. However, the expression special circumstances has to be construed having regard to the individual fact situations. The Court has to balance the equities

and while safeguarding the interest of the plaintiff. Appropriate conditions can be laid down if the defendant makes out a debatable case which may prime facie show injustice in the ex-parte decree was not set aside.

14.19 BAR OF CERTAIN SUITS We have by this time reviewed all the sections and rules contained in the Code which come within the scope of these chapters. Now, we will discuss about suits which are barred for some reason or another under the Code.

14.19.1 A Suit may be Barred as Res Judicata [Section 11] Suppose that the suit for specific performance is heard and finally decided, can one file a fresh suit in respect of the same subject matter again? The answer is clearly negative. Section 11 deals with res judicata, and bars the trial of any suit or an issue in any suit in certain circumstances and if certain conditions are fulfilled. The doctrine of res judicata in substance means that an issue or a point decided and

having attained finality should not be allowed to be re-opened and re-agitated rwice over. In Satyadhyan Ghosal v. Deorjin Debi," the doctrine of res judicata has been explained in simplest possible terms in the following words: "The principle judicial

of res judicata is based on the need of giving a finality of

decisions.

What it says is that once a res is judicata,

it shall not be

S. Emkay Exports v. Madhusudan Shrikrishna, 2008 Bom CR 522. $2. Wada ArunAsbestos P. Ltd. v. Gujrat Water Supply & SewerageBoard, AIR 2009 SC 1027 (1030): (2009) 2 SCC 452. 53. Rajini Kumar u. Suresh Kumar Malhotra, AIR 2003 SC 1322: (2003) 5 SCC 315. 4. MaheshKumar Joshi v. Madan Singh Negi, AIR 2015 (SC) 974. 5. EscortsFarms Ltd v. Commr Kumaon Division, Nainital, AIR 2004 SC 2186: (2004) 4 SCC 281. 6. Saryadhyan Ghosal v. Deorjin Debi, AIR 1960 SC 941.

Mula The Key to Indian Practice

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Chapter 14

adjudged again. Primarily it applies as between past litigation and future litigation.

When a matter

whether

on a question

of tact or an a question of

law has been decided between two parties in one suit or proceeding and the decision

is final,

either because no

because the appeal was dismissed,

appeal was taken to a higher

or no appeal lies, neither

court or

party

allowed in a future suit or proceeding between the same parties to canvass

will be the

matter again. The objectives behind this rule are threefold. It is desirable that no man should be vexed more than once in respect of the same litigation. Ilt is equally desirable that there is an end to the litigation and a judicial decision must be accepted as correct.

The first is based on private interest and the remaining two take care of public policy and larger interest of the society." With the aforesaid objectives in view, the prohibition of res judicata has been enacted. The doctrine of res judicata is founded on the principles of justice, equiry, and good conscience, and is a species of the

principle of estoppel."It createsa different kind of estoppel viz estoppel by accord. "Doctrine of res judicata is not technical doctrine but a fundamental principle which

sustains rule of law in ensuring finality in litigation. The principles of res judicata are of universal application as it is based on rwo age old principles, namely, 'interest reipublicae ut sit finis litium' which means that it is in the interest of the State that there should be an end to litigation. No one ought to be vexed rwice in litigation if it appears to the Court that it is for one and the same cause. This principle of finalitry of litigation is based on high principle of public policy." It operates against both the parties to the suit, and not against one alone. The doctrine applies to all judicial proceedings and equally applies to a quasi-judicial proceeding before tribunals. The principle of res judicata applies whether the point in the earlier decision is one of fact or of law or of mixed law and fact, and must be

interpreted and applied liberally. The principle of res judicata operates on the court as it prohibits the court from trying the issue." Res judicata applies also as berween two stages in the same litigation to the extent that a court, whether trial court or a

higher court, having at an earlier stage decided the matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceeding.Berween

judicata."

the

parties

even a

wrong

decision

can

operate as res

Where the previous application had become intrucruous and was not

57. Ashok Kumar v., National Insurance Co., AIR 1998 SC 2046; State of Maharashtra u. Prabhakar Bhikaji Ingle, AlR 1996 SC 3069: (1996) 3 SCC 463. 58. Rajender Kumar u. Kalyan, AIR 2000 sC 3335; Lal Chand v. Radha Kishan, AIR 1977 SC 789: (1977) 2 SCC 88.

59. lshwar Dutt n. Land Acquisiton Colector, AIR 2005 SC 3165: (2005) 7 SCC 190. 60. Bhanu Kumar Jain vu.Archana Kumar, AIR 2005 SC 626.

61. M.Nagabhushana v. State of Karnataka, 2011 (3) SCC 408 62. SulochanaAmma v. Narayanan Nair, AIR 1994 SC 152: (1994) 2 SCC 14. 63. Pondichery Village and Khadi Inds Board v. P Kulothangan, AIR 2003 SC 4701: (2004) 1 SCC 68. 64. Utar PradeshState Road Transport Corpn v. State of Uttar Pradesh, AIR 2005 SC 446: (2005) 1 SCC 444. 65.

A.R Antulay v. R.S. Nayak, AIR 1988 SC

1531:(1988) 2 SCC 602.

Chapter 14

Suits in Particular Cases

227

decided on merits, the principle of res judicata would not operate. The principle of resjudicata is alien to criminal law. However in certain contingencies "issue estoppel would be available"." The findings arrived at by a court without jurisdiction cannot operate as res judicata. A question

whether a petition is barred by res judicata is not a pure question of

law." In order to decide the question whether a subsequent proceeding is barred by res judicata it is necessary to examine the question with reference to the (i) forum or the competence of the Court, (ii) parties and their representatives, (1i) matters in issue, (iv) matters which ought to have been made ground for defence or attack in the former suit and (v) the final decision."" Res judicata is a mixed question of fact and law and cannot be disposed of as a preliminary issue under O. XIV, R. 2(2)(6) of the Code. Res judicata relates to the plaintiff's duty to put forth all the grounds of attack in support of his claim, whereas O. II, R. 2 of the Code requires the plaintiff to claim all reliefs flowing from the same cause of action as a single suit. The two pleas are different and one will not include the other." The bar of res judicata is mandatory, and cannot be avoided by a party except by invoking the provisions of the Indian Evidence Act, 1872 on the grounds that the judgment was obtained by fraud or collusion or was without jurisdiction. The doctrine of res judicata is a rule of procedure, and not substantive law. It does not affect the jurisdiction of the court," and it is open to the party to waive the plea of res judicata. Res judicata has to be specifically pleaded and proved, and if the party fails to raise such plea it will be deemed to have been waived." The foundation of the plea of res judicata must be laid in pleadings. If this was not done, no party would be permitted to raise it for the first time at the stage of appeal. The plea cannot be raised for the first time in appeal before the Supreme Court."

14.19.1.1 Conditions The sphere of res judicata

is not exhaustive and it is ever growing.

Certain

conditions are required to be fulfilled for the application of the doctrine. The conditions are:

) there must be rwo suitsbetween thesameparties or theirrepresentatives; (i) they must be litigating under the same title;

66. 67. G8. 9.

Noharlal Verma v. Dist. Coop. Central Bank Ltd., Jagalpur, AIR 2009 SC 664 (666). Sardarji M. Waghela v. UO1, 2009 (2) Guj LR 1399 (DB) : 2009 CrLJ 3238. Municipal Committee v. Parshotam Das, (1996) 8 SCC 324. RameshCh. Sankla v. VikramCenmens,(2008) 14 SCC 58 (76).

srsooy

. JaswanStinghv.Custodian(,1985)3SCC648. . MadhukarDShendev. TarabaiAba Shedage(,2002)2 SCC85. 72. Alka Gupta v. Narendra Kr. Gupta, AIR 2011 SC 09 (13) : (2010) 10 SCC 141

5. IsabellaJohnson v. MA Susai through LRs, AIR 1991 SC 993 : (1991) 1 SCC 494. 4 Nazim Ali v. Anjuman Islamia, (1999) 3 SCC91; Wali Mohd v. RahmatBee, (1999) 3 SCC 145. CLd u. CommrofCentraE l xcise,New Delbi, AlR 2005 SC 1370.

76.

Madhvi Amma Bhawani Amma v. Kunjikuntry Pillai Meenakshi Pillai, AlR 2000 SC 2301.

Mulla The Key to Indian Practice

228 (i)

Chapter 14

the matter directly and substantially in issue in both the suits must be similar. In other words, the matters directly and substantially in issue in the subsequent suit must also be directly and substantially in issue in the

former suit; (iv) one of such suits must have been heard and finally decided (it is called a

former suit). The principle of res judicata will not apply when the entire matter was still in appeal and had not attained finality and was still in

dispute;" (v)the

court which decided the former suit must be competent to grant

relief claimed in the subsequent suit. The principle of res judicata will not apply where order was passed without

jurisdiction."

Briefly speaking, some of the conditions stated above are as follows: (i) Boch the suits must be between the same parties or their representatives. In other words, the parties to the subsequent suit must be deriving their titles to the subject matter of the suit from the parties of the former suit. They must be successors-in-interest of the parties to the former suit. Unless an issue directly and substantially raised in the former case is heard and

decided by the competent court, the principle of res judicara will not be attracted." Suppose the suit for specific performance has been decreed against the defendant and such decree has become final. The defendant dies thereafter. Such decree will be binding on his heirs also and if any of them filed a suit in respect of the same subject matter, the bar of res judicata will apply because the former suit was between the parties from whom the title has been derived by the parties in the subsequent suit.

"Res Judicata between co-defendants The general rule is that the res judicata applies between the plaintiff and defendant. "But adjudication berween co-defendants will operate as res judicata if there is a conflict of interest between the defendants concerned, it is necessary to decide the conflict in order to give the relief which the plaintiff claims, the question berween the defendants has been finally decided, and the co-defendants are necessary or proper parties in the former suit." Where there is no conflict of interest between codefendants or when the conflict between co-defendants is not adjudicated on merits the decision will not operate as res judicata berween them.

"Proforma Defendants" Pro forma defendant is a person who has no conflict of interest with the plaintiff and against whom no relief has been claimed. Whether such a formal party to an

77. HameedaBegum v. Champa Bai, 2009 (3) MPLJ 472(492) (DB). 78. Chandrabhai K. Bhoir v. Krishna A. Bhoir, AIR 2009 SC 1647: (2009) 2 SCC 315.

79. NSuresh Nathan v. Union of India, (2010) 5 SCC 692: AIR 2010 SC 2171 (2176). 80.

ftikhar Ahmed and Ors. v. Syed Meharban Ali and Ors. AIR 1974 SC 749.

Suits in Particular Cases

Chapter 14

-

229

action against whom no relief is claimed is bound by or entitled to the benefit of the rule of res judicata?

Section 11 of the Civil Procedure Code makes no distinction between a formal or an informal

party or between a party

against whom a relief is claimed and a party

against whom no relief is claimed. "A pro

forma

defendant

is joined as a party in a suit because his presence is

necessary in order to enable the Court effectually and completely to adjudicate upon the matters in controversy berween the parties. He does not enjoy any special rights or privileges which are not available to others and is as much bound by the decision of the Court as the other parties to the litigation. If therefore any such person had a right to be heard or to control he proceedings he is bound by the doctrine of res judicata even though he was joined merely as a formal party relief was sought or claimed against him.

and "even though no

The Full Bench of Punjab and Haryana High Court in Gita Ram Kalsi v. Prithvi Singh and others," held that Section 11 Civil Procedure Code makes no distinction berween a formal or an informal party or berween a party against whom a relief is claimed and a party against whom no relief is claimed. A pro forma defendant is as much bound by the rule of res judicata as a real defendant.

(i)

They must be litigating under the same title. This condition can be explained by the following illustration. Suppose a person files a suit claiming certain properties as heir to the mabant of a math. The suit fails. He files anor er suit claiming management and administration of the same properties in his capacity as a manager of the math. Here, the

subsequent suit will not be barred because the parties were not litigating under the same title in both the suits. The former suit was filed in the capaciry of an heir, while subsequent suit was filed in the capacity of a manager of the math. "The crucial test for determining whether the parties are litigating under the same title as in the previous suit is of the capacity in which they sued or were sued. The term "same title" has nothing to do either with the cause of action or with the subject matter of two suits. Where the right claimed in both the suits is the same, the subsequent suit will be barred even though the right in the subsequent suit is sought to be established on a ground different from one in the

former suit..84 ii)

ers in issue mean the matters which are alleged by one party and The 1 either denied or admitted by the other pary. There can be rwo ways in which any matter can be in issue in the suit. It may be actually in issue or

constructively

in issue.

When

any allegation

81. Mt Munni Bibi v. Tirloki Nath, AIR 1931 PC114. 82. Kidar Nath Goenka v. Munshi Ram, AIR 1935 PC 139. 85. Gita Ram Kasi v. Prithvi Singh andothers, 1956 PLR 200. 84. Union of India v. Pramod Gupta, (2005) 12 SCC 1.

or plea of defence is

Mulla The Key to Indian Practice

230 specifically

raised, it can be said that such

because the parties have raised it.

However,

Chapter 14 matter is actually

in issue

in certain cases, it may be

found that either party has failed to raise any ground of attack or defence which ought to have been raised. In such cases the matters which might and ought to have been made grounds of attack or defence in the former suit shall be deemed to have been the matters directly and substantially in issue in such suit. Suppose in a suit for specific

performance,

several

defences are open to A. Out of such defences, the plea regarding delay or laches is not raised by A and such suit has been decreed in favour of the plaintift, it is not permissible for A to raise such a plea in any subsequent suit berween the same parties in order to avoid the liability under the decree or in an attempt to set aside such decree. All the grounds of the suit for specific defences which A could have availed to in resisting performance ought to have been raised and As failure to do so results in a disability in raising such plea again. This is called the rule of constructive res judicata.

It is a

stautary

provision.

It is always

desirable

that

the

litigation is brought to an end expeditiously as well as conclusively. It should not be open to the parties to litigate on the same subject-matter

again and again even by raising pleas which were not raised earlier. In Workmen v. Board of Trustees, Cochin Port Trust, the Supreme Court explained the principle of constructive res judicata in the following words: "If by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceeding berween the

same parties. The principle of res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication;

then also the principle of res judicata on that issue is

directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid

multiplicity of litigation and to bring about finality in it is deemed to have been constructively in issue and, therefore, is taken as decided."

In the same way, if one has prayed for a specific relief in the plaint and if such relief is not expressly granted by the decree, it is deemed to have been refused.

"MATTER

cOLLATERALLY IN ISSUE"

It is mandatory for invoking the bar of res-judicata that the issue or matter in dispute in the former suit is direcly and substantially in issue in the subsequent suit.

But the decision in the former suit on the issues not alleged by one party and denied or admited by the other within the meaning of Explanation IIL, are incidental and 85.

Workmen v. Board of Trustes, Cochin Port Trus, (1978) 3 SCC 119.

Chapter 14 collateral

to

231

Suits in Particular Cases the lead issues and such

decision

"Decisions on an issue operate as res judicata

decided. Findings

incidentally

will

not

operate as res judicata.

only it that issue was raised and

recorded do not operate as res judicata."»86

14.19.1.2 Representative Suits The principle

of res judicata is also applicable to a suit of a representative character

or what is now sometimes described as 'public interest litigation. As seen, there is procedure prescribed under the Code which must be followed before a representative suit can be properly conducted. However, once such procedure is allowed, all persons interested in the subject-matter shall be deemed to claim under the persons expressly on record and consequently the final decision reached in such

proceedings will operate as resjudicata.

14.19.1.3Courts of Limited Jurisdiction You must have noticed that in order to attract the bar of res judicata, it is necessary that the court which tries the former suit must be competent to grant the relief claimed in the subsequent suit. However, by expln 8, this requirement has been relaxed in cases where an issue has been heard and finally decided by a court of limited jurisdiction. In such cases, it is sufficient if such court was competent to decide the issue, and it is immaterial that such court was not competent to try subsequent proceedings in which such issue was sought to be raised. For example, the tribunals constituted under various statutes of Parliament are the courts of limited jurisdiction. Their decision on an issue which they were competent to decide is not open to question or challenge in the subsequent proceedings before another court, and which the court of limited jurisdiction has no jurisdiction to decide. In other words, the requirement that the court which decides the former suit must be

competent to grant the relief claimed in the subsequent suit will not apply when the court of limited jurisdiction has decided upon an issue properly raised before it. Explanation 8 constitutes an exception to the aforesaid requirement.

14.19.1.4 Applicability of Res Judicata to other Proceedings It applies to the proceedings for execution

of a decree in accordance with Expln. 7.

It has been held that the general principles underlying the doctrine of res judicata are and 226 of the Constitution. They are applicable to writ petitions under Arts. 32 also applicable to the adjudications made under Industrial Disputes Act, 1947.

The rule of res judicata also applies to arbitration proceedings, public interest litigation and criminal proceedings," but does not apply to taxation proceedings, consent decrees, and interlocutory orders. It is also held that S. 11 is not exhaustive and any suit can be held to be barred by doctrine of res judicata even if all the

86. Madhvi Amma Bhawani Amma d Ors. u. Kunjikurty PillaiMeenakshi Pillai d Os., AIR 2000 SC 2301.

. Daryaov.StareofUtaPrradeshA,IR196lSC1457. 88. Bombay Gas Co v. Shridhar Bhau, AIR 1961 SC 1196:(1975) 4 SCC 690. 89. Dr. Rao VBJ Chelikani v. Govt. of A.P.,, 2010 (2) ALT 94 (125) (DB).

90. Fatma Bibi Ahmed Patel v. Stateof Gujaras, (2008) 6 SCC 789 (796) : AIR 2008 SC 2392.

Mulla The Key to Indian Practice

232

Chapter 14

conditions mentioned in S. 11 are not fulfilled, if it appears to the court that there is an attempt to re-agitate an issue once settled and decided."

Res judicata,

though, a branch of the law

of estoppel, however, differs from

estoppel in certain aspects.

SINo. (1)

Res judicata It results from a decision of the court.

Estoppel | It flows from an act of the pary.

(2) It ousts the jurisdiction of the court It is a rule ofevidencepreventinga to try and re-open the matter already| decided.

(3)It

Party from statement.

asserting

contrary

prohibits a man averring the same| It prevents a man from saying thing twice in successive litigations.

one

thing

at one

time

and the

opposite at another.

(4)

It binds both the parties to a It binds only that parrywho made the previous statement or showed litigation. the previous conduct.

It is appropriate to discuss a related topic regarding stay of suit.

14.19.2 Stay of Suit Suppose A has filed a suit for specific performance alleging a breach of contract committed by the other party, and if that other party subsequently files a suit in the same court or in any other court for a declaration that no concluded contract has taken place berween the parties, what is the remedy available to A in respect of subsequent suit? Since both the suits pertain to the same subject-matter, it is desirable that the disputes regarding such subject matter are resolved or adjudicated

by one court only. It will avoid contlicting decisions or complications arising therefrom. The remedy is provided by S. 10 which provides for the rule of res sub-judice,

i.e., stay of suit. The primary object of the rule of ressub-judice is to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon parallel litigation filed for the same cause of action, for the same subject matter, and for the same relief." "The object of Section 10 of Civil Procedure Code is to

prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same reliet. Provisions of Section 10 are mandatory.

This provision will not apply where few of the matters in issue are common and will apply only when the entire subject matter in controversy is the same." There are certain

conditions

which are required

to be

fulfilled

before the suit can be

stayed.

91. Workmen CP Trust v. Board of Tustee, AIR 1978 SC 1283 : (1978) 3 SCC 119. 92. Indian Bank v. Maharashtra State Co-op. Marketing Federation Ltd., AIR 1998 SC 1952 : (1998) 5 SCC 69. 93. Aspi Jal u. Khushroo Rustom Dadyburjor, 2013 (4) SCC 333

Suis in Particular Cases

Chapter 14 (i) There

must be two suits. One

previously

233 and the other subsequently

instituted. (i)

Both

must be

pending

in

courts

in

India

or courts

outside

India

established under the authority of Central Government.

ii)

The matter in issue in previous suit is directly and substantially in issue in the subsequent suit.

(iv) The court in which previous suit is instituted, must have jurisdiction to

grant relief claimed in the subsequent suit. (v)

Both the suits must be between the same parties or their representatives.

(vi) Boch the parties must be litigating under the same title. Since some of the above conditions are also required in connection with the bar of

es judicata, one may refer to that topic for fuller explanation of them. If these conditions are fulfilled, it is the dury of the court to stay the subsequent suit. The

court is empowered

to stay a later suit, and not a previous

suit.'

"Even

where the provision of Section 10 of the code do not strictly apply, a civil court has an inherent power under section 151 to stay a suit to achieve the ends of justice."

The section is mandatory in nature. It bars the trial of the subsequent suit. It does not bar institution of the subsequent suit. The fundamental test for applicability of the rule of res sub-judice is whether the decision in a previously instituted suit would operate as res judicata

in a subsequent suit.

And if it is likely to operate as res

judicata, the subsequent suit must be stayed and if not, the rule does not apply. Even if the subsequent suit is stayed, the court is entitled to hear the applications of interlocutory nature." "Section 10, however, does not take away the power of the court to examine the merits of the matter. If the court is satistied that subsequent suit can be decided purely on legal point, it is open to the court to decide such suit." S. 10 of

the Code provides for stay of subsequently instituted suit only at trial stage. The section will not apply if one of the suits is pending in a foreign court. The section is, however, not exhaustive and the court can exercise the inherent power to stay the

trial of the suit in appropriate cases. Though the section bars the trial of the suit, the effect of contravention of the prohibition does not render the decree or order a nullity as the rule of res sub-judice is merely a rule of procedure

away the jurisdiction of the court. And if an objection to the trial rule of res sub-judice is not taken at an

and does not take

of a suit under the

appropriate stage, like res judicata,

deemed to have been waived.

1. GC Care Centre & Hospital v. OP Care Pur. Ld., AIR 2004 SC 2339: (2004) 6 SCC 756. 2. P.V. Shetty v. B.S. Giridhar, (1982) 3 SCC 403.

3. NationalInstiuteof MH G NS CPameshwara, AIR2005 SC 242: (2005)2SCC 256

4. BV Sulumkav. Kadarappa, AIR 1974 Mys 63; seealso Surendra Sawhny u. Murlidhar, 2008 (2) Raj LW

929 (933-34) (DB). 5. Pukhraj D. Jain v. G. Gopalakrishna, (2004) 7 SCC 251. 6. Ranju Ram v. Nand Lal, AIR 2011 HP 35 (G7).

it is

234

Mulla The Key to Indian Practice

Chapter 14

(1) Section 10 is applicable to suits instituted in a civil court. It cannot apply

to proceedings of other nature instituted under any other stature.' (2) A suit may be barred for want of notice in accordance with S. 80. (3) Where a plaintiff omits to sue in respect of a portion of his claim, he cannot afterwards sue in respect of the portion of the claim so omitted according to O. II, R. 2. (4) Where a person entitled to several reliefs in respect of the same cause of

action omits to sue for any one of them without the leave of the court, he cannot afterwards sue in respect of the relief so omitted as stated in O. II, R. 2. (5) Order IX, R. 9 states that when a suit is dismissed for default, the

plaintiff

is precluded from bringing a fresh suit in respect of the same cause of action. (6) Were a suit has abated or has been dismissed under O.

XXII,

fresh suit can be brought in respect of the same cause of action to O. XXI, R. 9.

R. 8, no

according

(7) Where a suit has been withdrawn without the leave of the court by O. XXIII, R. 1, the plaintiff is precluded from instituting a fresh suit in

respect of the subject-matter of the suit so withdrawn. (8) Where an application to sue in forma pauperis is refused, it is a bar to a suit in

the ordinary manner in respect of the same right to sue, unless the applicant pays the cost incurred by the opposite party and of the

government

in

opposing the application in accordance with O. XXXII, R. 15. 9) An order determining an application for compensation for an arrest or attachment before judgment or for an injunction obrained on insufficient grounds

is a bar to a suit

for

compensation

in

respect

of the

arrest,

attachment or injunction as per S. 95.

(10) A suit by a person against a certified purchaser, on the ground that the purchase was made benami for the plaintifi, is not maintainable in any case according to S. 66.

In the following two cases the proper remedy is by application and not by

suit:

(1) Questions relating to the execution, discharge or satisfaction of a decree, and arising berween the parties to the suit in which the decree was passed or their representatives, are to be determined by the court executing the

decree on application of parties, and not by separate suit according to S. 47.

(2) No suit can be instituted for obtaining any restitution on reversal of a decree which could be obtained by application under S. 144.

7. National Instiute of MH & NS v. CParameshwara,AIR 2005 SC 242: (2005) 2 SCC 256.

Suits in Particular Cases

Chapter 14

235

14.19.3 Restitution Suppose that a decree for specific performance has been passed in the suit which we have been considering all along and if such decree has been already executed and

deed of conveyance made in favour of the plaintiff. Suppose further, if thereafter such decree of specific proceeding.

performance is reversed in appeal, revision or any other

what shall be the consequence? In such a case, what is the remedy

available to the litigant who has succeeded in obtaining reversal of the decree for specific performance? The answer is contained in S. 144 which provides for restitution. The term 'restitution' has not been defined under the Code. It has been defined to be 'an act of restoring a thing to its proper owner. The word 'restitution' variation in its etymological sense means restoring to a party on a modification, reversal of a decree or order, what has been lost to him in execution of decree or

or

order, or in direct consequence of a decree or order. The obligation arises automatically on the reversal or modification of the decree. The doctrine is founded on equity and is not exhaustive," and therefore even if the case does not fall within the strict terms of the Code, it is always inherent power/jurisdiction of the court to grant relief of restitution so as to do complete justice berween the parties." Further, since the object of the doctrine is to shorten litigation and to afford speedy relief to the party adversely afftected and merely lays down the procedure, the provision should be construed liberally. " It is based upon a principle that the act of court can do no wrong to any person. If a person has received any kind of benefits under a decree or order of the court and if such decree or order has been reversed or set aside, the person. who has received the benefit is under a legal obligation to return

the same to the person from whom it has been received. t can also be stated that the section is based upon the principle prohibiting unjust enrichment. One can apply for

restitution

where a decree is varied or reversed in any appeal,

revision or other proceedings or is set aside or modified in any suit instituted for that purpose. When such an application is made, the court shall cause such restitution to be made which will place the parties in the position which they would have occupied but for such decree. An application for restitution under S. 144 is an application for execution of decree." The words used in S. 144 indicate that it is mandatory for the court to order restitution. kind of orders. Restitution

In exercise of this jurisdiction, the court can make any may take different forms. And interest is part of normal

relief given in restitution, and such interest is not controlled by the provisions of the Interests Act." In the case we have been considering, the court may even order rerurning the possession of the property and cancellation of conveyance. The court may also order payment of compensation, damages, mesneprofirs, interest or refund of costs. The person who withdraws proceedings without seeking adjudication of tbett 8. Concise Oxford Dictionary, 1990, p. 1027.

9. 10. 1. 12. 13. 14.

SouthEasiern Coalfields Ltd v. Stateof MadhyaPradesh, AIR 2003 SC 4482: (2003) 8 SCC 648. Kavita Trehan v. Balsara Hygiene Products Ltd., AIR 1995 SC 441: (1994) 5 SCC 380. SouthEastern Coalfields Ltd v. State of MadhyaPradesh, AIR 2003 SC 4482: (2003) 8 SCC 648. Chinnammal v. Arumugham, AlR 1990 SC 1828: (1990) 1 SCC 513.

Magbool v. Khodaija, AIR 1966 SC 1194. South Eastern Coalfields Lid v. State of Madhya Pradesh, AIR 2003 SC 4482.

Chapter 14

Mulla The Key to Indian Practice

236

same or even when proceedings are dismissed, the said person is bound to restitute

benefit it has received under an interim order. Also simpliciter withdrawal of proceedings without restitution of benefit cannor be granted." However, while passing an appropriate order for restitution, it will be duty of the court to see that they are properly consequential. However, it will be necessary to

fulfill

the following

conditions

before the

restitution can be ordered: (1)

The decree under which the benefit has been received must have been varied, reversed, set aside or modified.

(2) The application

for restitution must be made by a party entitled to the

benefit by way of restirution. (3) The partry against whom restirution is ordered must have received some benefit under the decree which has been subjected to reversal or variation.

An application for restitution lies to the court which has passed the decree or made the order. "The court which passed the decree or made the order' does not include the court to which the decree was transmitted for execution." This is with explanation to S. 144(1), and can be ordered against the party, benefited under the decree reversed or its representative, assignee pendente lite. However, a court to which the decree is transmitted

in accordance who has been or transferee for execution

cannot order restitution." The operation of the section is not confined to decrees. It also applies to any other order.

It is

obligatory

to make an

application

under S. 144 in such

cases and a

separate suit claiming restitution is barred. The court is prohibited from entertaining any suit claiming restitution which could have been properly claimed under S. 144. An application for restitution is treated as an application for execution for the

purpose of limitation, and it is governed by Art. 136 of Limitation Act, 1963.

14.20 MISCELLANEOUS

14.20.1 Foreign Judgments A foreign judgment means the judgment of a foreign

court. A foreign court means a

court situated abroad, and not established by Union of India. Such judgment shall be conclusive berween the parties or persons claiming under them as provided under S. 13 of the Code. "It is a well settled proposition in private international law that unless a foreign court has jurisdiction in the international sense, a judgment delivered by that court would not be recognized or enforced in India." the Jurisdiction,

which is

important

in such

matters, is only the

competence

15. DTCu. InternationalAvenues,161 (2009) DLT 16: AIR 2009 (NOC) 2760 (Del-DB). 16.

Neelathupara Kumni v. Montharapalia Padipura, AIR 1994 SC 1591: 1994 Supp (3) SCC 760.

17.

Tbid.

18.

Mahijibhai v. Manibhai, AIR 1965 SC 1477.

19.

Sankaran Govindan v. Lakshmi Bharathi, (1975) 3 SCC 351

of the

Chapter 14

Suits in Particular Cases

237

court, i.e. territorial competence over the subject matter and over the defendant. Its competence or jurisdiction in any other sense is not regarded as material by courts in this country." the material date to decide the jurisdiction of the court is the time when the suit is instituted."" The rules laid down in this section are rules of

substantive law and not merely of procedure.

The rule ofconclusiveness of foreign

judgment applies only to matters directly adjudicated upon.

However, in following

cases, such judgment is not regarded as conclusive:

) where it is not given by a court ofcompetentjurisdiction; i)

where it is not a decision on merits of the case;

i) where ithasbeenobtainedbyfraud; (iv) where the judicial proceedings resulting in such a judgment are opposed to

natural justice;

(v) where itrefusestorecogniselaw of India, ifapplicable; (vi) where it is based upon an incorrect view of international law; (vii) where it sustains a claim arising out of a breach of Indian law; In the above cases, forcign judgments are not conclusive and their findings do not operate as res judicata." "One of the principles on which foreign courts are recognised to be internationally competent is voluntary submission of the party to the jurisdiction of such foreign court. The reason behind this principle is that having taken a chance of judgment in his favour by submitting to the jurisdiction of the court, it is not open to the party to turn and to contend that the court had no rule of foreign law or recognise a foreign

around when the judgnment is against him jurisdiction.The courts refuse to apply a judgment or a foreign arbital award if it is found that the same is contrary to the public policy of the country in which it is sought to be invoked or enforced. " It is always open for any party to show that such judgment is not conclusive. But the burden of proof rests upon the party which assails the judgment. If a certified copy is produced, the court shall presume that it was given by a court of competent jurisdiction. However, such presumption is liable to be rebutted in case the court had no jurisdiction (S. 14). The crucial date to determine

whether the

judgment

is of a foreign court or not is the date of the

judgment and not the date when it is sought to be enforced or executed."

A foreign judgment which is final and conclusive may be executed in India as ifit had been passed by the district court (S. 44A) and in execution proceedings it is open to a judgment-debtor

to raise all objection which he may take in a suit.

20. R. Visuwanathan v. Rukn-ul-Mulk-Syed Abdul, AIR 1963 SC 1. 21. Andhra Bank Lid. v. R. Srinivasan, AIR 1962 SC 232.

2.Moloji v. Shankar, AIR 1962 SC 1737. 23. 24. 25. 26. 1.

Union of India v. MV Damodar, AIR 2005 Bom 137. YNarasimha Rao v. Y Venkata Lakshmi (1991) 3 SCC 451. Narasimha Rao v. Venkata Lakshmi, (1991) 3 SCC 451. Renu Sagar Power Co. Ltd. v. General Electric Co, AIR 1994 SC 860: 1994 Supp (1) SCC 644. Raj Rajendra Sardar Moloji Nar Singh v. Shankar Saran, AIR 1962 SC 1737.

238

Mulla The Key to Indian IPractice

Chapter 14

If the violation of any order passed by a civil court is made the ground of issuance of a red corner notice, the court will enquire as to whether the same has undergone the tests laid down under Sections 13 & 44-A of the Code.

14.20.2 Caveat Sometimes, an unscrupulous party obtains ex parte injunctions or other interim reliefs by misleading the court. It takes quite long to get such interim reliefs vacated.

It may harm genuine or bona fide interests because of the abuse of the legal process. To avoid such a situation, there is a provision to prevent passing of ex parte orders without hearing attected parties. In such cases, a caveat may be lodged as under S. 148A. A caveat is a notice given by one party to the proper ofticer to the ettect that no action of a certain kind may be taken without first informing the person who gave the notice (caveator), and until the party has been heard in opposition." Caveat is a precautionary measure having the underlying object firstly, to safeguard the interest of a person against an order that may be passed on an application in a suit or proceeding instituted or about to be instituted, giving him an

opportunity of being heard, and secondly, to avoid multiplicity of proceedings. A caveat may be filed by any person who is going to be affected by an interim order likely to be passed on an application which is expected to be made in a suit or

proceedings instituted or about to be instituted." The caveat must state the nature of the application expected to be made against or affecting the caveator. There is no form prescribed for lodging a caveat. In absence of such a form, it may be in the form of an application stating the facts briefly and the nature of the application expected to be made. It is also not necessary that the caveator is joined as a party in

such expected application. It is sufficient if the caveator claims and establishes prima facie a right to appear before the court."" Requirement of specifying the name of a party likely to initiate proceedings is only directory and caveat cannot be rejected on this ground. A copy of the caveat must be sent by registered post acknowledgement due upon the opponents. If any application is made thereafter, the court shall serve a notice upon the caveator. A caveator is entitled to receive copies of the application and documents filed by the opponents. No order would be ordinarily passed without aftording an opportunity of hearing to the caveator. However, the lodging of caveat does not exclude the jurisdiction of the court to grant ex parte relief, if there are compelling circumstances, and the order passed without notifying the caveator shall not be void. The caveator cannot be permitted to steal a march over the opponents by lodging a caveat. In cases where delay may defeat the purpose of filing the suit or if the suit is likely to be rendered

infructuous, the court may pass ex parte orders as

28. Bhavesh Jayanti Lakhani v. State of Maharashtra, (2009) 9 SCC 551 (588).

29. Shorter Oxford Dictionary, Vol. 1, 1990, p. 301. 30. Siddalingappa v. Veeranna, AIR 1981 Kant 242. 31. Nirmal Chandra v. Girindra Narayan, AlR 1978 Cal 492. 32.

RBI Employee'sAssociation v. RBI, AIR 1981 AP 246.

239

Suits in Particular Cases

Chapter 14 may be necessary,

norwithstanding

the caveat. It cannot be allowed to be misused as

an instrument to buy time. It is essentially a matter of judicial discretion. Section 148A does not contemplate the enforcement of a notice, where notice is otherwise ruled out by other provisions of the Code. The caveat shall remain in force for a period of 90 days. If caveat is not made afresh, no notice is required to be served if the application is made after the expiry of the caveat.

14.20.3 Powers of Court 14.20.3.1 Enlargement of Time (Section 148) Under S. 148 of the Code, high

court has ample powers to extend the time

to

comply with directions of high court." It is evident from the language employed in the provision that the power given the court is discretionary and is intended to be exercised only to meet the ends Justice.5

to of

Where the court has granted time to do any act, it has discretion to extend such time from time to time. The 'act to be done must be the one prescribed under the Code and the time for doing that act is fixed by the court, and not by the Code. If for the 'act to be done' the time is prescribed by the Code itself, S. 148A has no

application and in such cases time can only be extended by the court in exercise of its inherent powers. "Extension of time' can be done even after the time originally granted has expired. However, the time so extended shall not exceed 30 days in

total

from the date of expiry of the period originally fixed or granted. However,

extension beyond maximum of 30 days can be permitted if the act could not be performed within 30 days for the reason beyond the control of the party, in exercise of its inherent powers. Such power is given to secure the ends of justice.

14.20.3.2 Inherent Powers The court has inherent powers to make such orders as may be necessary for the ends

of justice or to prevent abuse of the process of the court. In order to do real and

substantial justice berween the parties or to prevent abuse of the process of the court, the court

has

such

powers

to pass

appropriate

orders.

The

court

is

always

empowered to satisfy itself as to whether a party before it suffers from mental illness or not. The primary duty of the court is to see that truth comes out. The court has complete inherent power in an appropriate case under S. 151 of the Code to pass all orders for doing complete justice to the parties to the suit." The powers relate to matters of procedure. "Inherent powers enshrined under Section 151 Civil 33. Chloride India Lid u. Ganesh Das Ram Gopal, AIR 1986 Cal 74 (DB).

4Blagadeswar v. Govt. of A.P., 2008 (2) ALT 515 (520) (DB). 35. DVPaul v. Manisha Lalwani, AlR 2010 SC 3356 (3361); seealso Manohar Singh v. DS Sharma, (2010) 1 SCC 3.

6.

Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 1 July 2002), s. 148.

.Salem AdvocateBarAssociationv. Union of India, AIR 2005 SC 3353. 58. Jogdhayan v. Babu Ram, AIR 1983 SC 57: (1983) 1 SCC 26.

.

LalitKishorev.MeeruSharma,(2009) 9 SCC433(434).

Mulla The Key to Indian Practice

240

Chapter 14

Procedure Code can be exercised only where no remedy has been provided for in any other provision of the Civil Procedure Code. In the event that a party has obtained a decree or order by playing a fraud upon the court, or where an order has been passed by a mistake of the court, the court may be justified in rectifying such mistake, either by recalling the said order, or by passing any other appropriate order. However, inherent powers cannot be used in conflict of any other existing provision, or in case a remedy has been provided for by any other provision of the Civil

Procedure Code."" Section 151 deals with such power. It does not confer any power, but merely indicates that the court possesses such inherent powers. When the Code is silent regarding a procedural aspect, the inherent power of the court can come to its rescue and act ex debito justitiae."" An application invoking inherent powers of the court under S. 151 is not one which a party is required to make under any provisions of the Code for setting in motion the machinery of the court." It cannot also be exercised when there are specific provisions in the Code, i.e., the court cannot exercise inherent powers to set aside an ex parte decree where the case does not satisty the requirement laid by O.

X, R. 13. Ifa plaint is rejected and the plaintiff does not pursue the remedy under the Code, the court cannot set aside the order in exercise of inherent powers. When there is a specific remedy available under the Code, it is settled law that an application under S. 151 of the Code is not maintainable." The inherent powers do

While not enable the court to do which is prohibited by the Code or any statute." exercising powers under S. 151, the court first has to consider whether exercise of such power is expressly prohibited by any other provision of the Code, and if there is no such prohibition, then it will consider whether such power should be exercised, on the basis of facts mentioned in the application." In short, the power does not exist which enables the court to render the provisions of the Code, nugatory. Its exercise cannot be inconsistent with the provisions of the Code. Object and scope of

S. 151 of the Code is to supplement and not to override or evade other express

provisions of the Code.4 Under S. 151, the

court can issue

direction

either suo motu or

otherwise.""

Inherent power cannot be exercised to re-open the settled matters." Such power has its roots in necessity and its breath is co-extensive with the necessity." It is trite that

the exercise of inherent power is not invoked for reviewing any order." The court

40. Ramji Gupta v. Gopi Krishan Agrawal, (D) 2013 (9) SCC 438. 41. Jet PyuwoodPut Lid VMadhnkar Nawlakha, AlR 2006 SC 1260: (2006) 3 SCC 699. 42. G Christhudas v. Anbiah, AIR 2003 SC 1590. 43. Ramesuar Sarkar v. The Collector Nadia, 2009 (1) Cal LJ 303 (305) (DB).

44. Damodarar Pillai u.South Indian Bank, AlR 2005 SC 3460: (2005) 7 SCC 300. 45. Shipping Corpn. of India v. Machadeo Brothers, AIR 2004 SC 2093: (2004) 11 SCC 168. 46. State of U.P, v. Roshan Singh, (2008) 2 SCC 488.

47. Sharda v. Dharampal, AIR 2003 SC 3450: (2003) 4 ScC 493. 48. StateofWest Bengalv Karan SinghBinayak, AIR 2002 SC 1543: (2002) 4 SCC 188. 49. NS Mills v. Union of India, AlR 1976 SC 1152: (1976) 1 SCC 120. 50. Inderchand Jain v. Motilal, (2009) 14 SCC 663 (669).

Suits in Particular Cases

Chapter 14

241

can grant temporary injunction in cases not covered by 0.

XXXIX."

It is necessary

to remember that courts are established to do justice between the parties. Where a

matter has expressly been provided for in the body of the Code, ordinarily inherent power shall not be resorted to. When the proceedings under Art. 226 of the constitution of India stand terminated by final disposal of writ petition, it is not open

to

the

court

to

reopen

the

proceedings

by

means

of a

miscellaneous

application." There are innumerable situations for which no express provision is made by the Code. In such cases, the court is not helpless, and possesses the power to do complete justice betrween the parties.

14.20.3.3 Power to Correct Error If there are any clerical or arithmetical mistakes in judgments, decrees or orders, they can be corrected by the court. It can be done suo motu or on the application of any party. Similarly, if there are any errors in the judgments, decrees or orders, arising from accidental slip or omission, such errors can be corrected by the court. Such powers can be exercised at any point of time according to S. 152. Section 152 can be invoked for the limited purpose of correcting clerical errors, or arithmetical mistakes in the judgment, and cannot be invoked for claiming a substantive relief which was not granted under the decree, or as a pretext to get the order which has attained finality, reviewed." Provision under S. 152 should not be construed in pedantic manner." It cannot be invoked to modify, alter or add to the terms of the original order or decree so as to, in effect, pass an effective judicial order after the judgment. The power under S. 152 can be exercised by the court which passed the decree by supplying the omission." Where the author of the judgment himself admitted that there was a typographical mistake, the high court would not be right in coming to contrary conclusion. The court has the power to vary its judgment or amend its orders so as to carry out the intention and express the meaning of the court at the time when the order was made. If there are any errors or defect in any proceeding in a suit, it can be corrected at any point of time according to S. 153.

14.20.3.4 Transfer of Suit In certain circumstances the suit or other legal proceedings may be required to be transferred from one court to another. Section 24 deals with the general power of

transfer and withdrawal, of the high court and the district court. A court acting under S. 24 of the Code

may or may not in its

judicial

discretion

transfer a

51. Manohar Lal v. Seth Hiralal, AlR 1962 SC 527; Cotton Corpn of India v. United Industrial Bank, AIR 1983 SC 1272; Tanusree Basu v. Ishani På. Basu, AIR 2008 SC 1909: (2008) 4 SCC 791. 52. Nahar Industrial Enterprises Ltd. v., Hong Kong & Shenghai Banking Corpn., (2009) 8 SCC 646 (703). 53. Stateof Haryana v. Babu Singh, AIR 2009 SC 472 (476, 477) ?. S4. Bijay Kumar v. State of Iharkhand, AIR 2005 SC 2435; Century Textiles Industries v. DeepakJain, (2009) 108 Cut LT 226 (231) (SC). 55. Niyamat Ali Molla v.SomargonHousingCo-op.Socicty Ltd, AIR 2008 SC 225: (2007) 13 SCC 421. S6. Stae of Punjab v. Darshan Singh, AIR 2003 SC 4179: (2004) 1 SCC 328.

. PratibhaSinghv. ShantiDevP i rasad,AlR2003SC 643: (2003)2SCC330. 8. Union Bank of India v. Naurang, (2009) 16 SCC 352 (353). 9. Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan, AIR 2003 SC 351.

242

Mulla The Key to Indian Practice

Chapter 14

particular casc. This section does nor prescribe any ground for ordering the transfer of a case. In certain cases, it may be ordered suo motu and it may be done for administrative

reasons. But, when an application is made for transfer by a party, the

court is required to issue notice to the other side and hear the party before directing transfer. The powers, no doubt are very wide, however, those powers are being exercised within certain permissible limitations. Such transfer may be between the courts of co-ordinate jurisdiction or otherwise. The power under S. 24 can be exercised on an application for transfer by any of the parties to the suit, appeal or other proceedings or suo-motu by the court. A suo-motu transfer by the high court or district court does not call for issuance of notice to the parties before

passing the order. However, where the transfer is on the application of one of the parties, notice to the opposite party is mandatory." Under S. 24, a suit, appeal or other proceedings can be transferred or

withdrawn

at any stage even after the commencement of hearing and even in the course of execution proceedings. The petition for transfer of the suit, is a proceeding independent of the suit, and the order passed in the transfer petition cannot be characterised as an order passed in

the pending suit itself. "Transfer of suit from one Court to another for joint trial. It will not take away the right of parties to invoke Order 23 Rule 3 of C.P.C. and there is also no prohibition

under Order 23 Rule 3 or Section 24 of the Civil Procedure

Code to record a compromise in one suit. Suits always retain their independent identiry and even after an order of consolidation, the court is not powerless to

dispose of any suit independently."Ordinarily such powers are not exercised, unless there is likelihood of miscarriage of justice. If grave allegations are made against the judge and if there is no confidence that justice may be received at his hands, such are power can be exercised. However, the court must be satisfied that the allegations not frivolous or that they are not made with a view to escaping from an

inconvenient court. The mere convenience of the parties may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. If there is likelihood of undue hardship or inconvenience in adducing evidence at a particular place and if the entire evidence is available at some

other place, the suit, or other proceedings can be transferred. An order passed on an application under Section 24 of the Code has not been made appealable under

Section 104 of the Code or under any provision of the Code. Such power of transfer also vests in the Supreme Court and has been laid down in S. 25. It confers powers on the Supreme Court to transter any suit, appeal or other proceeding from one high court to another high court or from a civil court in one state to another civil court in any other state. It can be exercised on grounds similar

60. 61.

Jitendra Singh v. Bhanu Kumari, AIR 2008 SC 2987 (2989) : (2009) 1 SCC 130. Vivekananda Nidhi v. Asheema Goswami, (2000) 10 SCC 23.

62. 63.

Mahalaxmi Co-operativeHousingSociery Lid. v. Ashabhai Atmaram Patel, 2013 (4) SCC 404. DAVBoys Sr. SecondarySchool v DAV College Managing Committee, (2010) 8 SCC 401 (405).

64. Amit Khanna v. Suchi Khanna, (2009) II DMC 227 (AIl-DB).

Suits in Particular Cases

Chapter 14

243

to those indicated above, and where the transfer is expedient for the ends of justice. Where the defendant is likely to suffer extreme hardship, face difficulties in travelling to a distant place on account of advance age, has liability of documentary evidence, and majority of the witnesses, the power of transfer can be exercised. Where court feels that the plaintiff or the defendant is not likely to have a 'fair trial' in the court from which he secks to transfer a case, it is not only the power, but the duty of the court to transfer thecase.

.

.

:

, .

.

65. Kulheinder Kaur v. Kandi Friends Education Trust, (2008) 3 SCC 659: AIR 2008 SC 1333.

.

CHAPTER

15

ALTERNATIVE DISPUTES REDRESSAL

MECHANISMs (ADR)

The main challenge with which the judiciary in our country has faced is the huge arrears of cases pending at different levels in the courts, including high courts. The adversarial legal system, procedural wrangles and multiplicity of various remedies in the form of appeals or revisions are some of the factors which leave a litigant a little bit bitter and frustrated while waiting for justice for years. Keeping in mind the said challenge, a special provision has been introduced in the form of S. 89 by the CPC (Amendment) Act, 1999, w.e.f. 1 July 2002, in order to help the litigants to settle their disputes outside the court instead of going through the elaborate process in the court trial, by simpler and quicker methods. These methods are known as Alternate Dispute Redressal Mechanisms (ADR). However, ADR is not a substitute for judicial system, but supplementary to the judicial system. Having a hearing after completion of pleadings to consider recourse to ADR process under S. 89 of the Code is mandatory, but actual reference to ADR process in all cases is not

mandatory. The parties to the suit or proceeding may request the court to reter their disputes and if the court is satisfied that there exists an element of settlement which may be acceptable to the parties, it may refer the parties to any of the forums mentioned in the section at any stage of the proceedings. The decision rendered by these forums shall have the same binding effect as if made by a civil court after an elaborate trial, leaving little scope for appeal or revision particularly when the dispute is resolved

through Judicial settlement, Lok Adalat or Mediation. The mechanisms

mentioned in S. 89 are:

)arbitration; (ii)conciliation; latbih

1tiiaDitt01q

d

rmori beveo7 non

1. Afcons Infrastructures Ltd. v. Cherian Varkey Construction Co. (P,) Lid., (2010) 8 SCC 24 (38).

Mulla The Key to Indian Practice

246

Chapter 15

ii) judicialsettlementincludingsettlementthrough Lok Adalat; and (iv) mediation. Order XXVII, R. 5B and O. XXIlI A, R. 3, of the CPC contain special provisions enjoining a duty upon the court to make efforts and to assist the parties in

arriving

at a settlement in certain categories of suits/ proceedings relating to matters concerning family, such as marriage and divorce, guardianship, custody, maintenance, adoption, succession, etc and in suits/ proceedings by or against Government including public officers. Similar provisions are also found in Hindu Marriage Act, 1955, S. 23; and the Industrial Disputes Act, 1947, S. 12.

These provisions have been enacted with the ultimate aim of amicably solving the dispute berween the parties with the aid andassistance of the court with assurance of just, fair and lasting solution of the disputes expeditiously and permanently, and preventing the litigation from becoming a protracted affair. When the dispute in the suit is referred to arbitration or conciliation for settlement, the provisions of the Arbitration and Conciliation Act, 1996 govern the case. Section 89 makes applicable the Arbitration and Conciliation Act, 1996, from the When the Arbitration stage after the exercise of option and making of reference. and Conciliation Act, which is a special law, provides for a forum of adjudication, S. 89 of the Code cannot be resorted to refer a dispute for arbitration unless there is

mutual consent of all parties or arbitration agreement. Himachal Pradesh has evolved a pre-trial, in trial and post trial in the state of Himachal Pradesh. Lok

Adalats

were started

initially

as a

voluntary

resolution of disputes, which has received a statutory

The High

Court of

Conciliation

organisation

for

Project

informal

recognition in the Legal

Services Authorities Act, 1987. When a matter is referred to Lok Adalat for settle-

ment by a civil court, the provisions contained in the Legal Services Authorities Act, 1987 shall govern the parties in the matter of resolving the dispute. And when the matter is referred to mediation for settlement, the parties shall follow the procedure as may be prescribed. The Delhi High Court has framed The

Mediation and Conciliation Rules, 2004, to govern the procedure of mediation. Delhi has developed a full-fledged system of mediation by establishing mediation centers at district courts and high court, which are manned by independent fully trained judicial officers' mediators and advocates' mediators. When the mediation succeeds and the parties agree to the terms of settlement, the mediator will report the same to the court and the court eftects the compromise and passes a decree in

accordance with the terms of settlementaccepted by the parties. And if conciliation, mediation or judicial settlement is not possible despite efforts being made, the case will ultimately go to trial and in such an eventuality, any additional factual information received from a party is kept confidential and not disclosed to the other party

2. SalemAdvocate BarAssociation v. Union of India, AIR 2005 SC 3353. 3.

Southern Structurals Lid. v. K.S.E. Board, 2008 (1) KLT 105 (FB).

Chapter 15

247

Altemative Disputes Redresal Mechanisms (ADR)

and even the court. The lawyers should advise their clients to try for mediation for resolving the disputes, especially where relationships like family relationships and business relationships are involved, otherwise the litigation drags on for years and decades often ruining both the parties." These forums are not bound by the rules of procedure and the rules of evidence under the Indian Evidence Act, 1872 and flexible procedures can be adopted so as to

ensure speedy and inexpensive conduct of proceedings. Where a matter referred to any of the modes of settlement is settled, the entire court fee paid on the plaint is liable to be refunded and the court which has referred

the matter shall issue a certificate to the plaintiff to receive the full amount of court fee paid, from the collector, as provided under S. 16 of the Court Fee Act, 1870.

ty trcautms T

.22"

4. B.S. Krishna Murthy v. B.S. Nagaraj, AIR 2011 SC 784: 2011(1) SCALE 431 S. Vasudevan VA v. State of Kerala, AIR 2004 Ker 43.

Appendix

CITY CIVIL COURTS AND THEIR JURISDICTION 00.08

oqU bsdisbyH

bo2untln 007,02

o1q

In connection with courts in presidency towns, the jurisdiction of city civil courts was left over. It is proposed to deal with these courts here. City civil courts have been established in the three presidency towns, and also in the city of Ahmedabad and Hyderabad. In the presidency towns, these courts exercises the jurisdiction that would otherwise have been exercised by the respective High Courts. Elsewhere the city civil court exercises the jurisdiction that would otherwise have been exercisable by the district court. These district courts, it should be noted, exercise only ordinary original civil jurisdiction. They have no appellate

jurisdiction.

91 d rhi evi2i11203915 wo inob1c31qri ot211:09rvo 1.APPEALS o dguocvitsoqeo1s: tonoituibainuhjviahnigioviunibnoadilo Appeals against their decrees and orders lie (where appeal is allowed by law) to the

representative High Courts. In certain cases-Madras and Hyderabad provision for internal

there is

appeals-that is to say, an appeal lies from the decision of a

judgeto the principal judge.e o1 5ooi91 ioir noiotLzitut no21,mit bugo1 aA

2.JURIDICTION-PECUNIARY LIMITS1ai bnuvyairstdae) noitib mi The pecuniary jurisdiction of the city civil courts in the presidency towns is limited. That of the city civil courts elsewhere is unlimited-as would be expected in the case of a court which takes the place of the district court." This applies to the city civil courts in Ahmedabad and Hyderabad.

)Cet 1. Chapter 2, under the heading Courts in Presidency Towns. 2. See Chart.

. The City ofAhmedabad Courts Act 1961 (Gujarat Act 19 of 1961), s. 3. 4.

Ibid., s. 12.

Appendix

Mulla The Key to Indian Practice

250

3. JURISDICTION-OTHER LIMITATIONS Besides pecuniary limitations on the jurisdiction of ciry civil courts where applicable, there are, on their jurisdiction

() local limitations; and i)

limitations asregardssubject-matter in certaincases.

Chart ShowingPecuniary Limits of Jurisdiction in City Civil Courts ity CivilCourts

Pecuniaryjurisdiction Upto Rs 50,000

Ahmedabad Calcutta

Upto Rs 50,000

Hyderabad'

Unlimited

|Upto Rs50,000

LMadras

Chart SharingPecuniary Limits ofJurisdiction of Courts in Delhi

CivilJudge

Up to Rs 3,00,000 Above Rs 3,00,000 and

District JudgelAddl District Judge

upto Rs 20,00,000

HighCourt

Above Rs20,00,000

As regards local limitations, it is sufficient to say that jurisdictional limits of the three city civil courts for the presidency towns are co-extensive with the local limits

of the ordinary original civil jurisdiction of therespectivehigh court. The

jurisdictional

limits

of

the

city

civil

court

at

Ahmedabad

are

co-extensive with those of the city of Ahmedabad as defined in the relevant Act. The jurisdicion limits of the city civil courts at Hyderabad are similarly defined. As regards limits on jurisdiction with reference to subject-matter, most of the Acts, exclude, from the competence of city civil courts, admiralty and vice-admiralty jurisdiction, testamentary and intestate jurisdiction, and matrimonial and insolvency jurisdiction. The ciry civil court at Calcuta, however, stands in special category in

5. The City of Ahmedabad Courts Act, 1961 (Gujarat Act 19of 1961),ss. 3 and 12. 6. The Madras City Civil Court Act, 1892 (Central Act 7 of 1892), ss. 3 and 3A, and norification thereunder. 7. Andhra Pradesh(Telegana Area) Civil Courts Act, 1954, as amended. 8. The (Calcutta) Ciry Civil Court Act, 1953 (West Bengal Act 21 of 1953) s. 5 (2). 9. Bombay City Civil Court Act, 1948, s. 3, read with the Greater Bombay Laws and Bombay High Court

Declaration of Limits Aco) 1945; Calcutta City Civil Court Act 1953, s. 2(3) and 5(1); Madras City CIvil Court Act 1892,SS.2(2) and 3. 10. The City of Ahmedbad Courts Act, 1961 (Gujarat Act 19 of 1961), ss. 2(2) and 3.

City Civil Courts and theirJurisdiction

ndix

25

espect, because, the relevant Act contains elaborate provisions which, whi erring on the city civil court, jurisdiction to grant succession certificates an diction under Guardians and Wards Act, excludes from its jurisdiction erous matters listed in the Schedule to the Act. The list is a long one, and it roposed to reproduce it here.

,

.

:, 8-}

.

.í, ::2)

t, .

tPrdai irw,

Ci St

Codeaf

iOAds2,

C.npsit , 47

Subject Index

Breach of Contract, 31-32

Affidavit

C

as required by the provisions of O VI, 75 facts contained in, 104 forms of, 106

Carriage by Air Act, 214 Cause of Action applicability under section 17, 39

Amendment Act 1999 (and

2002), 3

AnimuRsevertendie4,6

definition of, 26 essentials of suit, 26

h

transactions as distinguished from, 59

Anti Suit Injunction, 196

Caveat, 238-239

Appeals a88rieved party, when may file, 156

application for acceptance of additional evidence, 165 as indigent persons, 221

from appellate decrees or second appeal, 170

from orders, 176-178 from original decrees, 155-158 hearing of, 163-166 memorandum of, 158-160

t

Chartered High Courts, 7

Civil Court pecuniary jurisdiction of, 11 suits instituted in, 234 territorial jurisdiction of, 42 validity of the decision by filing

suit in, 16 Civil Procedural Law, 3

im

Civil Suit, 205

procedure in appeals to the Supreme

Court, 175-176 second or special, 170

substantial question of law, 172-173 Appellate Court authority and jurisdiction of, 165 cros-appeal and cross-objections,

161-163 judgment of, 166-167 power to demand security for costs from appellant, 161

Code of 1859 (And 1882), 3 Code of 1859 (And 1882), chapters in, 4

i1Code of CivilProcedure(Amendment) Act 1999 (And 2002), 3

Companies Act 1956, 47 Consumer Protection Act 1986, 185 Counter claim, as independent suit, 93

Court of Appeal, 158

Arbitration Act 1940, 112 Attachment of Property, 149 irregularity in the conduct ofsale ofgib attached property, 151 B

Bombay Civil Courts Act 1879, 11

Courts See also "Civil Court appellate jurisdiction of, 14 by which decrees may be executed, 152-153 classes of, 174

constitution of, 7 in other parts of India, 13

Subject Index

254 Courts (Contd)

E

in presidency towns, 13

of limited jurisdiction,231

Ejusdem Generis, 202

of preterential jurisdictions, 14

Element of Intention, 45

of smallcause,14

Essentials of Suit

original jurisdiction of, 12

powers of, enlargement of time (section 148), 239 inherent powers, 239-241 to correct error, 241 to transfer suit, 241-243 rules governing fhunctioning

of, 15

D Decrees against a minor, 218 application for execution of, 144 application for execution of,

execution against person of Judgment-debtor other than

cause of action, 26 necessary party, 24 Proper party, 23

reliefclaimed, 29-30 subject matter, 29 Ex Debito Justitiae, 6, 240

ExecutionofDecree againstproperty ofjudgment-debtor, 149-151 application for, 144 mode of, 145 procedure for hearing in, 154 Express Bar, 18

money decree, 146

application for execution of, procedure for, 146-147 execution of, 143 execution of, stay of, 160-161 kinds of, 133-134 non-service of notice, 138 notice before issuing process, 144-145 other special provisions, 216

payment out of courr, 147-148 Discovery and Inspection documents for, production under Order

XIII, 116 documents for, summoning ofwitnesses

[Order XVI], 113-116 inspection, 109-110 non-compliance with order for, 110-111 notice to admit facts or documents

[Order XII), 111-112 of facts by interrogatories, 104

Discovery and Inspection premature discovery, 109

Doctrine of ResJudicata, 225

F

Foreign Judgment, 236-238 Forms of plaint in a suit for specific performance, 33 G

Garnishee Proceedings, 148

Government of India Act,7

H Hearing and disposal adjournment of, 122 allegation of fraud, 121 issue relating to sufficiency of Court fees, 121

jurisdiction, 120

High Courts Seealso"Chartered High Courts establishment of, 7 jurisdiction of, 8

High Courts Act 1861, 7

Documents application for discovery of, 109 inspection of, 111

I Implied Bar, 19

ah

255

Subject Index Income-tax Act 1961, 19 Indian

P

Parties and cause of action

Contract Act 1872, 1

fresh suit, leave of Court sine qua non, 61

Indian Councils Act 1861,7

toiv iog

Indian Majority Act 1875, 217 Indian Penal Code

no defendant sued or vexed rwice for

same cause of action, 59--60

1860, 1

IndianSuccessionAct 1925, 1,5 Indian Trusts Act 1882, 1

misjoinder or non-joinder of parties, 66

di

holaV enr?

9f

Industrial Disputes Act 1947, 231 Insolvency Courts, 5

non-impleadment of necessary party, 66 splitting claims and remedies based on samecause of action prevented, 60 suit for specific performance, 62

2Payment into Court, 202 Pecuniary Jurisdiction, 15

Interpleader Suit, 216-217

Place of Suing ascertaining the particular Court

of, 51-52 date for determining territorial

Joinder of Parties, 63-64 Jurisdiction

See also "Original and

1ldu

jurisdiction, 42 factors ofinmportance in determining. 50 objection to jurisdiction for, 52 suits for immovable property, 38 suits for land, 49

Appellate Jurisdiction'" courts of limited, 231 kinds of, 8

of districtcourts, 11 ordinary original and extraordinary original civil jurisdiction, 12 over subject matter, 29 power of court to entertain suits and applications, 8 regards local limits, pecuniary limits, and subject-matter, 11

waiver of objection to territorial or pecuniary, 54

contained in Ss. 16, 17 and 20 of the

Code, 38 Pleading and Particulars, 98-101

signing and verification of pleading, 215 Pleading, Amendment of, 98-101

Practice and Procedure, undertaken for enforcement or recognition of legal rights, 2

L

Precept, 153

Limitation Act 1963, 139, 236

Memorandumof Appeal,221 Munsiff's court, 37, 174

N

ro 3po 2tOT 1011112 1

Preferential rights, claim of, 98

r

Notice permission to institute suit without, 212 requirement of, mandatory, 138

PresidencySmallCauseCourts ia1qa1 Act 1882, 2, 37

Ptrinciple of res judicata, applicability, 231-232 Proceedings Judgment, arrest betore, 190-191. attachment of property before, 191-193

payment for settlement of the claim, 202 Ordinary Original Jurisdiction, 12 Original and Appellate Jurisdiction, 10

receiver appointed by the court, 196 security for the payment of costs incurred in defeating the suit, 200

256

Subject Index

Proceedings (Contd.) special, death, marriage and insolvency

ofparties,205

Review

ofjudgment,183-187 points of distinction with revision, 186

special case under section 90, Order

XXXVI, 205 supplemental, compromise of suits, 203-205 injunction under Order XXXIX, appointment

of a receiver,

193-197

Revision

pointsof distinction with review, 186 S

Specific Relief Act 1963, 1

Suits Valuation Act 1887 effect of the provision of S. 11, 56

grant of, 196 kinds of, 194 withdrawal of suits, 200

Suits Valuation Act 1887 section 11 of, 56

Provincial Small Cause Courts Suits

Act 1887, 14

Public Interest Litigation, 231

against public officer, 211 ascertaining the particular court for filing. 51

R

by indigentpersons,218-219 Receiver appointed by the court, 145 Reference, revision and review of judgment, 179

Rejection of plaint application for, 77

by or against firms, suit against a firm, 222 when partners may sue or be sued in

firm name, 221 by or against minor and lunatic by or against minor and lunatic, (Order

XXXII), 217-218 classes of, 38

at belated stage, 79 barred by any law, 77

ground for, 77 matters outside purview,

77

want of jurisdiction, 78 Reliefs tor suits on contracts, 31-32 in suits for torts, 32 in suits on mortgage, 32 Representative Suits

07t

See "Public Interest

Litigation" Res Judicata applicability to other proceedings, 231 bar of, 232

compromise of, 203-205 conditions for barring res judicata (section 11), 225-227 consent of the Central Government for filing, 214 contents of plaint under section 80, 215 disposal of, after framing issues not maintainable, 120

on preliminary issues, 118 effect ofprovisions of cl 12, 49 express bar, 18 factors constituting a failure of,

justice, 53-54 on foreign judgments, 38 for compensation for wrong done to the

person or to movable propery, 40 Residence, 46

Restitution application for, 236 on reversal of a decree, 235-236 security for, 161

for immovable property under, Ss. 16-17, 38, 39 land, 49

other than those for land, 49 four essentials of, cause of action, 26-29

Subject Index Suits (Contd.)

Suits (Contd.)

cause of action, joinder of defendants, 68-69 cause of action, joinder of plaintiffs, 66 cause of action, one plaintiff, one defendant, and several causes of action, 68

parties, 23-26 parties, non-joinder of, 71-72 procedure in case of misjoinder of, 66 reliefs claimed, 29-30 subject matter, 29 hearing and disposal of, 117 implied bar, 19 institution of, 75-76 summons to defendant, 81 interlocutory order to defend, 224 interpleader suit, 216-217 kinds of withdrawal and adjustment of, 200-202 non-joinder of a proper party, effects of, 73 non-joinder of party, effect of, 72-73 notice under S. 80, 211 objection, as to over-valuation

257)

and under

valuation of, 55-56 objecion, as to place of suing, 52 of all other kinds (s 20), 38 of plaint in a suit for specific performance, 33 place where wrong is committed, 40 points of distinction berween sections 16, 17 and 20 of the code and clause 12

of theletterspatent, 51 procedure, in case of misjoinder of parties and cause of action, 71 provision for stay of, 232-234 relating to Wills, intestacy and succession, 215

remedies for suits on contracts, 31-32 restitution of, 235-236 rules relating to non-aPpearance of parties at the hearing of, 167

security for the payment of costs incurred, 200 settlement of issues,decree, 130-132 first hearing, 117 hearing of the suit and examination of witnesses, 124

regarding territorial jurisdiction and limitation, 121 where parties do not appear, 133

signing and verification of pleading for filing, 215 title under S. 79, O XXVII, R. 3, 214

venue for filing, 37 written statement for specific pertormance, 96 Summons constitution of, 81-82 personal or direct service, 83-85 served by newspaper publication, 88 service of, 83

mode of personal service, 85

first mode, 86-87 second mode, 87-88 substituting service, 85-86 writ of, 88

Supplemental proceedings arrest before judgment, 189

attachment before judgment, 191-193 compromise, 203-205 temporary injunction, 193-197 withdrawal ofsuits, 200-202

T Transfer of Property Act 1882, 1

W Writ Petitions, 63 withdrawal of, 200

Written Statement counter claim, 93-95 in suit for specific pertormance, 96 inspection of, 88 non-compliance with order for, 96-97 set-off, 91-93

Mulla The Key to Indian Practice is an acclaimed classic that contains a

summary of the

provisions of the Code of Civil Procedure and provides an overview of the conduct of civil suits in Indian courts. The book educates students, legal practitioners and consultants about the practice and procedure in the conduct of suits in and out of court. Every important section of the Code has been noted in its appropriate place, thus making the work useful not only as a guide to

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Key Features Covers how the course of an ordinary suit is followed, from the moment the plaintiff determines to sue till the time he obtains a decree Elaborates in detail the critical process of execution of a decree and the possible consequences of an appeal by an affected party

Employs the explanatory method of treatment enabling advocates not only to understand the provisions of the Code, but also to see how these provisions are applied in practice Revised and updated thoroughly to include latest judgments and case laws

6bIt's Mulla, its the best there is, be it contracts or transfer of property or specific relief. Being in the final year of law, you're always on the look out for a book which is a one-stop access to the whole subject in a semester. This book helps in giving you a clear understanding of an otherwise passive statute.99

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